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[2020] ZASCA 128
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Moyeni v De Vries and Others NNO (808/2019) [2020] ZASCA 128 (13 October 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 808/2019
In
the matter between:
KATIE
MOYENI APPELLANT
and
JOHANNES
PETRUS DE VRIES
NO FIRST
RESPONDENT
RUDI
DAWID STRYDOM
NO SECOND
RESPONDENT
MARIE
CHRISTINE ELIZABETH
MEYERS
NO THIRD
RESPONDENT
JOHAN
WILLEM MEYER
NO FOURTH
RESPONDENT
TANYA
DE VRIES
NO
FIFTH
RESPONDENT
(In
their capacities as trustees of the De Vries Family Trust-IT
1439/2015C)
Neutral
citation:
Moyeni v De Vries and
Others NNO
(Case no 808/19)
[2020]
ZASCA 128
(13 October 2020)
Coram:
NAVSA, MOCUMIE and MAKGOKA JJA and EKSTEEN and
GOOSEN AJJA
Heard
:
15 September 2020.
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives via email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The time and date for
hand-down is deemed to be at
10h00
on 13 October 2020.
Summary:
Land – eviction under Extension
of Security of Tenure Act 62 of 1997 (ESTA) – whether appellant
was a protected occupier
as envisaged in s 8(4) of ESTA –
purpose is to protect people such as the appellant who are vulnerable
and to provide security
of tenure.
ORDER
On appeal from the Land Claims Court
(hearing an automatic review in terms of s 19(3) of
Extension of
Security of Tenure Act 62 of 1997
from Worcester Magistrates’
court.):
Order
1 The appeal is upheld with costs.
2 The order of the Land Claims Court
confirming the eviction of the appellant and others is set aside in
its entirety and substituted
as follows:
‘
The
Magistrate’s court eviction order of 17 November 2017 is set
aside and substituted as follows:
‘
The
application for eviction is dismissed with costs.’
3 The costs for the application for
condonation in relation to the non-compliance with the rules of this
Court to be borne by the
attorneys for the appellant.
JUDGMENT
MOCUMIE
JA (NAVSA and MAKGOKA JJA and EKSTEEN and GOOSEN AJJA concurring)
[1]
This is an appeal against the judgment and order of the Land Claims
Court (LCC) (Potterill J, sitting as the reviewing court)
granted on
7 February 2018. The matter was before LCC in terms of the automatic
review procedure, provided for in s 19(3) of the
Extension of
Security of Tenure Act 62 of 1997 (ESTA), after an eviction order was
granted by the Worcester Magistrates’
Court (Magistrates’
Court) on 17 November 2017. The LCC confirmed the eviction order in
terms of s 19(3)
(a)
of ESTA.
[1]
[2]
Mrs Katie Moyeni, the appellant, is a 73-year-old pensioner who
resides on Mooihoek Farm (the farm), Worcester, Breede Valley
in the
Western Cape. The De Vries Family Trust (the Trust), of which the
respondents are trustees, has been the owner of the farm
since
2015.
[2]
Mr Brown Moyeni, the appellant’s late husband, had been
employed there by the Trust as an assistant manager since 2015.
Before the Trust acquired the farm, Mr Moyeni had been employed there
by the first respondent, Mr Johannes De Vries. He had worked
for the
first respondent since 1994.
[3]
The appellant and her children came to live on the farm with Mr
Moyeni, in 1997. For as long as Mr Moyeni’s employment
relationship endured the appellant not only resided with him and
their family on the farm, she also worked as a seasonal worker
for
the first respondent and then the Trust. This, as will be shown
later, was superficially disputed by the respondents. Mr Moyeni
passed away during March 2014. After he
passed away the appellant and her
family continued to reside on the farm in the house allocated to
them.
[4]
On 19 September 2014, barely six months after Mr Moyeni, passed away,
the appellant was served with a letter from the attorneys
of the
Trust. The letter informed her as follows:(loosely translated from
Afrikaans):
‘
We
have received instructions from our clients to cancel your right of
residence and to request you to vacate the house that you
are
currently occupying, and also to leave the farm Mooihoek, on or
before 30 September 2015, in terms of
section 8
of the
Extension of
Security of Tenure Act [62
of 1997.]
The
consequence is that, in terms of
section 8(5)
of the
Extension of
Security of Tenure Act, you
are now given twelve (12) months’
notice to vacate the house you were provided with, which period shall
come to an end on
30 November 2014. Should you fail to comply with
this notice, we shall take the necessary steps to have you evicted.’
The
appellant did not vacate the house as instructed. The Trust
thereafter approached the Magistrate’s Court with an
application
for the eviction of the appellant from the house. The
matter was heard on 9 May 2016.
[5]
The Trust alleged that Mr Moyeni had been an employee of the Trust
and that the appellant occupied the house through him, as
her spouse.
After his death, so it was alleged, the appellant had no right to
remain on the farm. The Trust alleged that the appellant
had never
worked for it, except on one occasion – for one week, in one
season – as a temporary seasonal worker.
[6]
The Trust also alleged that the appellant had breached the housing
rules of the farm by keeping a dog without permission, having
lodgers
in the farmhouse, using vulgar language and abusing alcohol. As a
result, the appellant was issued with a written warning
on 4 November
2014, and on 9 March 2015 she was served with a disciplinary notice
which set out her alleged transgression namely,
that she kept lodgers
in the farmhouse contrary to the housing rules.
[7]
The Trust stated that it needed the farmhouse to provide
accommodation for its other employees. It had given the appellant the
option of using a smaller house on the farm and also offered her
assistance to relocate, which she refused. It
alleged that there were neighbouring farms where she could
find work and could be accommodated.
[8]
In her answering affidavit the appellant was emphatic that she had
the right to continued occupation of her home. She asserted
that she
had the consent of the previous and present owners, and had been
employed by the both the previous owner and the Trust.
[9]
Notwithstanding the appellant’s emphatic assertion that she had
been employed on the farm over an extended period the
Magistrate
found that there had never an employment agreement between the
appellant and the respondents. The Magistrate held that
the
appellant’s right to occupation was derived solely from her
late husband as employee of the Trust in terms of
s 6(2)
(d)
of the ESTA; and that upon the passing away of Mr Moyeni, her right
to remain had been lawfully terminate in terms of
s 8(5)
of ESTA
[3]
[10]
The Magistrate consequently, made the following order:
‘
(
a
)
The first respondent and all other persons having occupation through
her are ordered to vacate the house situated on Mooihoek
Farm, De
Wet, in the district of Worcester before or on the 31
st
of December 2017.
(
b
)
Should the [first] respondent and all other persons having occupation
through her not vacate the property voluntarily by that
date, the
Sherriff for the district of Worcester may execute this order on 2
January 2018 or a soon thereafter as possible.
(
c
)
The court makes no order as to costs.
(
d
)
This order is suspended pending the confirmation thereof by the Land
Claims Court on review.’
[11]
The main issue in this appeal is whether the appellant is a protected
occupier in terms of
s 8(4)
of ESTA.
[12]
At the commencement of proceedings before us we were called upon to
consider the appellant’s failure to note the appeal
within the
prescribed period. The appellant only applied for condonation for the
late filing of the heads of argument. This was
vigorously opposed by
the Trust. It was submitted, on behalf of the Trust, that there was
not only the late noting of the appeal
but also the late filing of
the appeal record. This Court enquired of the Trust whether it
insisted on depriving a pensioner of
humble means of an opportunity
to be heard on whether she should have been evicted as a result of
missteps by her attorneys. After
taking instructions, counsel for the
Trust indicated that the Trust was willing to accept that the matter
be heard on the merits,
but submitted that the Court should show its
displeasure by making the attorneys pay the costs. We were informed
from the Bar,
by counsel on behalf of the appellant, that the
Department was funding the appeal. We granted the condonation and
reserved the
question of costs. An issue I will deal with in due
course.
[13]
The Magistrate erred in finding that there was never an employment
agreement between the appellant and the Trust, as well as
with the
first respondent. The Trust was bound by what the appellant’s
answering affidavit said about her employment relationship
with the
past and present employers. Moreover, in the replying affidavit,
there was an admission on behalf of the Trust, albeit
with
qualification, that the appellant had been employed on the farm.
Significantly, the Trust admitted that the appellant was
a protected
occupier in terms of
s 8(4)
, but it insisted that she had committed
breaches in terms of
s 10(1)(c).
[14]
At this stage it is necessary to have regard to
s 8(4)
, which deals
with a particular category of protected occupiers.
Section 8(4)
provides:
‘
(4)
The right of residence of an occupier who has resided on the land in
question or any other land belonging to the owner for 10
years and—
(a)
has reached the age of 60 years; or
(b)
is an employee or former employee of the owner or person in charge,
and as a result of ill health, injury or disability is unable
to
supply labour to the owner or person in charge, may not be terminated
unless that occupier has committed a breach contemplated
in
section
10(1)(a)
, (b) or (c): Provided that for the purposes of this
subsection, the mere refusal or failure to provide labour shall not
constitute
such a breach. (Emphasis added.)
[15]
Section
10(1)
reads as follows:
‘
(1)
An order for the eviction of a person who was an occupier on 4
February 1997 may be granted if-
(a)
the
occupier has breached
s 6(3)
and the court is satisfied that the
breach
is
material and that the occupier has not remedied such breach;
(b)
the
owner or person in charge has complied with the terms of any
agreement
pertaining
to the occupier’s right to reside on the land and has fulfilled
his or her duty in terms of the law, while the
occupier has breached
a material and fair term of the agreement, although reasonably able
to comply with such term, and has not
remedied the breach despite
being given one calendar months’ notice in writing to do so;
(c)
the
occupier has committed such a fundamental breach of the relationship
between him or her and the owner or person in charge, that
it is not
practically possible to remedy it, either at all or in manner which
could reasonably restore the relationship…’
[16]
Section
6(3)
provides that an occupier may not =
‘
(a)
intentionally and unlawfully harm any other person occupying the
land;
(b)
intentionally or unlawfully cause material damage to the property of
the owner or person in charge;
(c)
engage in conduct which threatens or intimidates others who lawfully
occupy the land or other land in the vicinity; or
(d)
enable or assist unauthorised persons to establish new dwellings on
the land in question.’
[17]
In terms of
s 1
(xii) of ESTA
‘
occupier’
means a person residing on land which belongs to another person. and
who has or on 4 February 1997 or thereafter
had consent or another
right in law to do so...’
.
What should not be lost sight of is that ESTA was intended to provide
protection for vulnerable people like the appellant.
The
Constitutional Court stated in
Klaase
and Another v Van Der Merwe NO and Others
,
[4]
citing its earlier judgment in
Goedgelegen
,
[5]
‘ESTA is “
remedial
legislation umbilically linked to the Constitution”
.
It seeks to protect people, like Mrs Klaase, whose tenure of land is
insecure. In my view, the appellant falls squarely within
this
category of people – particularly in the light of her being a
woman.
[18]
Recently, the following was said in
Daniels
v
Scribante
:
[6]
‘
Painfully,
in some instances this is not just history. To this day, some of the
poorest in our society continue to keep homes under
the protection of
ESTA. Needless to say, occupiers under ESTA are a vulnerable group
susceptible to untold mistreatment.
This is especially so in
the case of women
.’
[19]
As stated earlier, the appellant was emphatic in her assertion that
she was a protected occupier in terms of s 8(4) of ESTA,
on the basis
that she had been employed on the farm during the relevant period and
was thus an occupier in her own right, rather
than through her
husband. The Magistrate was thus bound by her version of events. This
is especially so, in the light of the respondents’
admission in
their replying affidavit that she was a protected occupier.
Plascon
Evans
[7]
will
remain authority for what is stated in the first sentence. In holding
as aforesaid
the
Magistrate erred. In relation to the respondents’ reliance on
breaches in terms of s 10 of ESTA, it must be noted that
the
appellant strenuously denied that she had committed any breaches of
ESTA and insisted that she was a model occupier. Her allegations
in
this regard cannot be rejected merely on the papers filed of record.
The respondents did not provide any compelling and uncontroverted
evidence that might have entitled them to rely on the provisions of s
10 read with s 6(3) of ESTA. There was therefore no basis
on which
the order the Magistrate granted could be justified or for the
confirmation thereof by the LCC. The appeal ought to succeed.
[20]
Lastly, the issue of costs. There were several repeated missteps as
alluded to earlier in this judgment. There was repeated
flagrant
disregard of the rules of this Court by the attorneys for the
appellant. The explanation was far from satisfactory. All
counsel for
the appellant could proffer was an acknowledgement that more could
have been done. Of course, one would have hoped
that, by this time,
the many admonitions concerning what is required of an application
for condonation would by now be known by
practitioners who are
entrusted with the preparation of appeals to this Court. This case
has proven otherwise. To make it clear
that this conduct will not be
countenanced, this Court is duty bound to show its displeasure by
mulcting the attorneys responsible
for the flagrant disregard of this
Court’s rules with an appropriate order as to costs in relation
to the application for
condonation; even though the appellant is
successful in her appeal.
[21]
For all of these reasons, the following order is made:
Order
1 The appeal is upheld with costs.
2 The order of the Land Claims Court
confirming the eviction of the appellant and others is set aside in
its entirety and substituted
as follows:
‘
The
Magistrate’s court eviction order of 17 November 2017 is set
aside and substituted as follows:
‘
The
application for eviction is dismissed with costs.’
3 The costs for the application for
condonation in relation to the non-compliance with the rules of this
Court to be borne by the
attorneys for the appellant.
________________________
BC MOCUMIE
JUDGE OF APPEAL
APPEARANCES
For
Appellant: C Tsegarie
Instructed
by: Brink & Thomas Inc. C/O Webbers Attorneys
For
Respondents: A Van Loggerenberg
Instructed
by: Wilna Roux Attorneys C/O Symington & De Kok Attorneys
[1]
Section
19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA)
provides, inter alia: ‘Any order for eviction
by a
magistrate's court in terms of this Act, … shall be subject
to automatic review by the Land Claims Court which may–
(
a
)
confirm such order in whole or in part…’
[2]
See the Title Deed marked ‘DVF 3’ at page 23 of the
record.
[3]
Section
8(5) reads as follows; ‘On the death of an occupier
contemplated in subsection (4) the right of residence of an
occupier
who was his or her spouse or dependent may be terminated only on 12
calendar months’ written notice to leave the
land, unless such
a spouse or dependent has committed a breach contemplated in section
10F.’ Section 8(4) is dealt with
later in this judgment.
[4]
Klaase and Another v Van
Der Merwe NO and Others
[2016] ZACC 17
;
2016 (6) SA 131
(CC) para 51.
[5]
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC) (
Goedgelegen
)
para 53.
[6]
Daniels
v
Scribante
[2017] ZACC 13
;
2017 (4) SA 341
(CC) para 22, with reference to
Klaase
(above
fn 12).
[7]
Plascon
Evans
Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 654E-I.