SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy








IN THE LAND COURT OF SOUTH AFRICA, JOHANNESBURG

CASE NO : LanC:02R/2025
MAGISTRATE’S COURT CASE NO: 3204/2022

Before the Honourable Flatela J
In Chambers
Date of Judgment: 14 March 2025

(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : YES/NO
DATE: 14/03/2025
SIGNATURE:









DELETE WHICWVER IS NOT APPLICABLE
(1) REPORTABLE : YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES f NO
(3) REVISED: YES f NO
DATE SIGNATURE
In the matter between:

VRFT PROPERTIES CC First Applicant

MARIUS MICHAEL VAN ROOYEN Second Applicant

and

JOHANNES FLORIS First Respondent

MARTHA MERCY FLORIS Second Respondent

CECILIA FRANSIENA FLORIS Third Respondent

AND ALL OTHERS PERSONS RESIDING Fourth Respondent
WITH OR UNDER THE FIRST TO THIRD
RESPONDENTS IN THE PREMISES ON
MIDDAGKRANSFARM, FRANSCHHOEK

DRAKENSTEIN MUNICIPALITY Fifth Respondent

PROVINCIAL DIREC TOR OF THE Sixth Respondent
DEPARTMENT OF AGRICULTURE
LAND REFORM AND RURAL DEVELOPMENT


ORDER
___________________________________________________________________

The Magistrate Court order dated 1 August 2024 is set aside and substituted with the
following order:

1. The Application is dismissed with no order to costs.


JUDGMENT


FLATELA J

Introduction

[1] This is an automatic review in terms of section 19 (3) of the Extension of
Security of Tenure Act 62 of 1997 (ESTA) emanating from the Magistrate’s Court,
Paarl, Western Cape Province.

[2] On 01 August 2024, the Magistrate granted the following order:

1. That the 1st to the 3rd Respondents and all those residing under them
shall vacate from the farm dwelling on Middagkrans, Farm Number
1546, Stellenbosch Municipality, Paarl Division on 30 August 2024
failing which, the Sheriff or his/her deputy is authorised an d directed
to evict the first to the third respondents and all those residing under
them from the said property on or before 16 September 2024. The
South African Police Services is instructed and authorised to assist
the sheriff and or his or her deputy to carry the eviction order.
Mentioned supra

2. The execution of the eviction order is suspended pending
confirmation from the Land Court on automatic review in terms of
section 19(3) of ESTA.

3. The Stellenbosch Municipality is ordered to provide the respondents
with alternative suitable emergency accommodation should they be
rendered homeless.

4. There shall be no order as to costs.

Parties

[3] The First Applicant is VRFT PROPERTIES CC , a close corporation with
limited liability duly registered under the laws of the Republic of South Africa, with a
registered address at 2 [...] E[...] Lane, Steenberg Golf Estate, Tokai, Western Cape,
7945. The First Applicant is the registered owner of the fa rm, having taken
ownership on 27 July 2020.

[4] The Second Applicant is Marius Michael Van Rooyen, a member of the First
Applicant, who is also the person in charge of the farm.

[5] The First Respondent is Johannes Floris, a 56 -year-old man currently residing
on a farm. The Second Respondent is Martha Mercy Floris, a 55 -year-old woman
who also lives on the farm. The First and Second Respondents are siblings. They
were born and had lived on the property all their lives. The Third Respondent is
Cecilia Fransiena F loris, a 37 -year-old unemployed woman residing on the farm,
who is the daughter of the Second Respondent. The Fourth Respondent includes all
other individuals residing with or under the First, Second, and Third Respondents on
the premises at Middagkrans Fa rm, located in Franschhoek, Western Cape
Province.

[6] The Fifth Respondent is Stellenbosch Municipality, a local municipality with its
main place of business at Plein Street, Stellenbosch, Western Cape. The Fifth
Respondent is a Municipality contemplated in section 155 of the Constitution of the
Republic of South Africa, 1996, established by the Provincial Minister of Local
Government under sections 12 and 14 of the Local Government, Municipality
Structures Act 117 of 1998.

[7] The Sixth Respondent is the Depar tment of Agriculture, Land Reform and
Rural Development.

Legal Principles applicable to evictions under ESTA

[8] It is trite that the Constitution is the point of departure in all eviction
applications, in particular, section 26(3) which guarantees that no one may be
evicted from their home without an order of court made after considering all the
relevant circumstances. The preamble of the Constitution recognises the injustices of
the past and it states that one of its purposes is to heal the divisions of the past and
to establish a society based on democratic values, social justice and fundamental
human rights.

[9] ESTA, centrally, is a legislation that seeks to give effect to section 25(6) of the
Constitution, which provides that '(a) person or community whose tenure of land is
legally insecure as a result of past racially discriminatory laws or practices is entitled,
to the extent provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress'.

[10] ESTA affords secure tenure as envisaged in section 25(6) to persons who
reside on land that they do not own.1 The mischief of ESTA is not only about
securing tenure of ESTA occupiers. In Daniels v Scribante,2 it was correctly pointed
out that this mischief i s “also about affording occupiers the dignity that eluded most
of them throughout colonial and apartheid regimes”3.

The Structure of ESTA

[11] The purpose of ESTA is to:

a. provide for measures with State Assistance to facilitate the long -term
security of the land tenure;

b. regulate the conditions of residence on certain land;


1 Daniels v Scribante and Another 2017 (8) BCLR 949 (CC) ( Daniels) para 13.
2 Ibid.
3 Ibid para 23.
c. regulate the conditions and circumstances under which the right of
persons to;

d. reside in the land may be terminated;

e. regulate the conditions and circumstances under which persons
whose right of residence has been terminated may be evicted from
the land and to provide for matters connected therewith.4

[12] ESTA recognises that ‘many South Africans do not have secure tenure of
their homes and the land which they use and are therefore vulnerable to unfair
eviction’, and the unfair eviction leads to great hardships, conflict and social
instability.

[13] Chapter II of ESTA deals with measures to facilitate long -term security of
tenure for occupiers. It provides that:

4. Tenure gr ants

1. The Minister shall, from the monies appropriated by Parliament for that
purpose and subject to the conditions of the Minister, may prescribe in
general or determine, in a particular case, provide tenure grants -

a. To facilitate the planning and impleme ntation of on -site and
off-site developments,

b. To enable occupiers, former occupiers and other persons who
need long -term security of tenure to acquire land or rights in
land;

c. For the development of land occupied or to be occupied in
terms of on -site or off -site developments;

4 See the preamble and the individual chapter headings to Chapters II, III and IV .

d. To enable occupiers and former occupiers to acquire suitable
alternative accommodations and;

e. To compensate owners or persons in charge for the provisions
of accommodation and services to occupiers and their
families.5

[14] Nkabinde J in Molusi and Others v Voges N.O. and Others6 said the following
regarding the balancing of the competing rights:

‘The pre -reform -era land law reflected the common -law based view that
existing land rights should be entrenched and protected against
unlawful intrusions. The land reform legislation – ESTA in this case –
changed that view. It highlights the reformist view that the common law
principles and practices of land law, that entrench unfair patterns of
social domination and ma rginalisation of vulnerable occupiers in
eviction cases, need to change. ESTA requires that the two opposing
interests of the landowner and the occupier need to be taken into
account before an order for eviction is granted. On the one hand, there
is the t raditional real right inherent in ownership reserving exclusive
use and protection of property by the landowner. On the other, there is
the genuine despair of our people who are in dire need of
accommodation. Courts are obliged to balance these interests. A court
making an order for eviction must ensure that justice and equity prevail
in relation to all concerned. It does so by having regard to the
considerations specified in section 8 read with section 9 as well as
sections 10 and 11 which make it clear th at fairness plays an important
role.

In PE Municipality this Court remarked that it is necessary “to infuse
elements of grace and compassion into the formal structure of the law”

5 Chapter II, Section 4 of the Extension of Security of Tenure Act 62 of 1997.
6 Molusi and Others v Voges N.O. and Others 2016 (3) SA 370 (CC).
and courts need “to balance competing interests in a principled way
and to p romote the constitutional vision of a caring society based on
good neighbourliness and shared concern” because “we are not
islands unto ourselves”. One immediately agrees that

“[t]he Judiciary cannot, of itself, correct all the systemic
unfairness to be f ound in our society. Yet it can, at least,
soften and minimise the degree of injustice and inequity
which the eviction of the weaker parties in conditions of
inequality of necessity entails.’7 (Footnote omitted)

Was the eviction just and equitable?

[15] In Aquarius Platinum (SA) (Pty) Ltd v Bonene and Others8, the Supreme
Court of Appeal settled the law in the determination of the application in terms of
section 89 of ESTA, the Court held that the eviction must engage in a consecutive
two-stage enquiry elo quently put as follows:

7 Ibid para 39 -40.
8Aquarius Platinum (SA) (Pty) Ltd v Bonene and Others 2020 (5) SA 28 (SCA).
9 Section 8 provides as follows:
‘8 Termination of right of residence
(1) Subject to the provisions of this section, an occupier's right of residence may be terminated on any
lawful ground, provided that such termination is just and equitable, having regard to all relevant
factors and in particular to -
(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner
or person in charge relies;
(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship to the owner or person in charge,
the occupier concerned, and any other occupier if the right of residence is or is not terminat ed;
(d) the existence of a reasonable expectation of the renewal of the agreement from which the right of
residence arises, after the effluxion of its time; and
(e) the fairness of the procedure followed by the owner or person in charge, including whether or not
the occupier had or should have been granted an effective opportunity to make representations
before the decision was made to terminate the right of residence.
(2) The right of residence of an occupier who is an employee and whose right of r esidence arises
solely from an employment agreement, may be terminated if the occupier resigns from employment
or is dismissed in accordance with the provisions of the Labour Relations Act.
(3) Any dispute over whether an occupier's employment has terminated as contemplated in
subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act,
and the termination shall take effect when any dispute over the termination has been determined in
accordance with that Act.
(4) The right of residence of an occupier who has resid ed 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 Iabour to the owner 45 or person in charge, may not be terminated unless that

‘. . . (the need to protect the rights of residence of vulnerable persons)
indicate a two -stage procedure. Section 8 provides for the terminati on
of the right of residence of an occupier, which must be on lawful ground
and just and equitable, taking into account, inter alia, the fairness of the
procedure followed before the decision was made to terminate the right
of residence. Section 8 at least requires that a decision to terminate the
right of residence must be communicated to the occupier. Section
9(2) then provides for the power to order eviction if, inter alia, the
occupier’s right of residence has been terminated in terms of s 8, the
occupier nevertheless did not vacate the land and the owner or person
in charge has, after the termination of the right of residence, given two
months’ written notice of the intention to obtain an eviction
order. Section 8(2) must of course be read with s 8(1) and provides for
a specific instance of what may constitute a just and eq uitable ground
for the termination of a right of residence ’.10

Whether there has been compliance with sections 8, 9 and 10 of ESTA

[16] Section 8 provides that the right to residence may be terminated on any lawful
grounds, provided that such termination is ju st and equitable, having regard to all
relevant factors. The provisions read as follows: -


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 pro vide Iabour shall not constitute such a
breach.
(5) On the death of an occupier contemplated in subsection (4), the right of residence 50 of an
occupier who was his or her spouse or dependant may be terminated only on 12 calendar months’
written notice to leave the land, unless such a spouse or dependant has committed a breach
contemplated in section 10(1).
(6) Any termination of the right of residence of an occupier to prevent the occupier from acquiring
rights in terms of this section, shall be void.
(7) If an occupier’s right to residence has been terminated in terms of this section, or the occupier is a
person who has a right of residence in terms of section 8(5) — (a) the occupier and the owner or
person in charge may agree that the terms and condition s under which the occupier resided on the
land prior to such termination shall apply to any period between the date of termination and the date
of the eviction of the occupier; or (b) the owner or person in charge may institute proceedings in a
court for a determination of reasonable terms and conditions of further residence, having regard to the
income of all the occupiers in the household.’
10 Aquarius Platinum supra n 8 para 13 .
“8. Termination of right of residence

(1) Subject to the provisions of this section, an occupier’s right of residence may be
terminated on any lawful ground, provided that such termination is just and equitable,
having regard to all relevant factors and in particular to -

(a) the fairness of a ny agreement, provision in an agreement, or provision of law on
which the owner or person in charge relies;

(b) the conduct of the parties giving rise to the termination;

(c) the interests of the parties, including the comparative hardship to the owner o r
person in charge, the occupier concerned, and any other occupier if the right of
residence is or is not terminated;

(d) the existence of a reasonable expectation of the renewal of the agreement from
which the right of residence arises after the effluxio n of its time; and

(e) the fairness of the procedure followed by the owner or person in charge, including
whether or not the occupier had or should have been granted an adequate
opportunity to make representations before the decision was made to terminate the
right of residence.”

[17] Section 9 of ESTA is entitled ‘Limitation on eviction’. It provides:

“(1) Notwithstanding the provisions of any other law, an occupier
may be evicted only in terms of an order of court issued under
this Act.

(2) A court may mak e an order for the eviction of an occupier if —

(a) the occupier’s right of residence has been terminated in
terms of section 8;

(b) the occupier has not vacated the land within the period of
notice given by the owner or person in charge;

(c) the conditions for an order for eviction in terms of
sections 10 or 11 have been complied with; and

(d) the owner or person in charge has, after the termination
of the right of residence, given —

(i) the occupier;

(ii) the municipality in whose area of juri sdiction the
land in question is situated; and

(iii) the head of the relevant provincial office of the
Department of Rural Development and Land Reform, for information
purposes,

not less than two calendar months’ written notice of the intention
to obtain an order for eviction, which notice shall contain the
prescribed particulars and set out the grounds on which the
eviction is based: Provided that if a notice of application to a
court has, after the termination of the right of residence, been
given to the occupier, the municipality and the head of the
relevant provincial office of the Department of Rural
Development and Land Reform not less than two months before
the date of the co mmencement of the hearing of the application,
this paragraph shall be deemed to have been complied with.”
(Emphasis added.)

[18] Section 10 of ESTA provides as follows:

“10. Order for eviction of person who was occupier on 4 February 1997 .

(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 section 6(3) and the court is satisfied
that the breach

(b) is material and that the occupier has not remedied such breach;

(c) 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 duties in terms of the law, wh ile
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;

(d) the occupier has committed suc h 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 a manner which could reasonably restore the relationship;
or

(e) the occupier —

(i) is or was an employee whose right of residence arises solely
from that employment; and

(ii) has voluntarily resigned in circumstances that do not amount
to a constructive dismissal in te rms of the Labour Relations Act.

(e) the owner or person in charge or the occupier have attempted mediation
to settle the dispute in terms of section 21 or referred the dispute for
arbitration in terms of section 22, and the court is satisfied that the
circumstances surrounding the order for eviction is of such a nature that it
could not be settled by way of mediation or arbitration.

(2) Subject to the provisions of subsection (3), if none of the circumstances
referred to in subsection (1) applies, a court may grant an order for eviction if
it is satisfied that suitable alternative accommodation is available to the
occupier concerned.

(3) If—

(a) suitable alternative accommodation is not available to the occupier
within a period of nine months after the d ate of termination of his or
her right of residence in terms of section 8;

(b) the owner or person in charge provided the dwelling occupied by
the occupier; and

(c) the efficient carrying on of any operation of the owner or person in
charge will be seriou sly prejudiced unless the dwelling is available for
occupation by another person employed or to be employed by the
owner or person in charge.

The court may grant an order for eviction of the occupier and of any other
occupier who lives in the same dwellin g as him or her and whose permission
to reside there was wholly dependent on his or her right of residence if it is
just and equitable to do so, having regard to —

(i) the efforts which the owner or person in charge and the occupier
have respectively made in order to secure suitable alternative
accommodation for the occupier; and

(ii) the interests of the respective parties, including the comparative
hardship to which the owner or person in charge, the occupier and the
remaining occupiers shall be exposed if an order for eviction is or is not
granted.”

[19] The applicants stated that they have complied with sections 8, 9,10 ,11 of
ESTA.

The Applicants’ pleaded case before the Magistrate

[20] On 31 October 2022, the applicants brought an applica tion for the eviction of
the First to the Third Respondents from one of the First Applicant’s houses on the
farm.

[21] Mr Marius Michael Van Rooyen, a member of the First Applicant and the
person in charge of the property, deposed to the applicants’ founding affidavit. Mr
Van Rooyen alleged inter alia that:

a. The respondents had obtained consent to reside on the premises from
the previous owner of the farm through a verbal rental agreement.
When the First Applicant became the owner of the property, a fixed
written rental agreement was concluded with the First Respondent on
20 October 2020 for the rental period until 30 September 2021 (the first
agreement). It was further agreed that the agreement would
automatically terminate on 30 September 2021 unle ss otherwise
agreed between the parties.

b. The first rental agreement expired on 30 September 2021, and the First
Respondent asked for an extension, and it was granted. The second
rental agreement was concluded between the First Applicant and the
First Resp ondent for the period running from 1 October 2021 until
March 2022 (the second rental agreement).

c. The First Applicant contended that it was explicitly agreed that the
respondents were to provide vacant possession of the premises on or
before 31 March 2022, should there be no further agreement to extend
the second rental agreement, and no extension agreement was
concluded.

d. The applicants asserted that during January and February 2022, the
First Respondent was repeatedly informed that the second rental
agreement would not be renewed, and that vacant possession of the
premises must be provided on or before 31 March 2022. The
respondents failed to vacate the premises.

e. The applicants further alleged that the First Respondent had
voluntarily vacated the prem ises and moved elsewhere and was
included in the eviction proceedings solely for completeness and to
illustrate the prior connection between the respondents and the
applicants. Furthermore, the applicants stated that the eviction of the
First Respondent is sought as he is the only individual with a direct
connection to the First Applicant and the household, as evidenced by
the rental agreement concluded between him and the First Applicant.

f. The grounds for eviction are simply that the second rental agreement
lapsed and was not extended. The applicants believed that the
respondents' continued stay on the farm was contingent upon the
rental agreement between the parties.

g. The applicants claimed that the premises were required to be
allocated to house qualifyin g members of staff who are permanently
employed as an employment benefit.

[22] The applicants contended that the eviction would be just and equitable due to
the following reasons:

a. The First Respondent does not permanently reside on the farm.

b. The respondent s already have access to alternative accommodation
with family and friends.

c. The respondents can afford alternative accommodation and are
accustomed to rental housing.

d. The Fifth Respondent has offered alternative accommodation, and the
applicants have made numerous attempts to contribute towards the
respondents' relocation.

e. The applicants have already accommodated the respondents on their
property for years; it is the respondents' responsibility to address their
housing needs with the assistance of th e Fifth and Sixth Respondents

[23] Regarding compliance with the provisions of ESTA, the applicants contended
that when the respondents failed to vacate the premises, they instructed their
attorneys to organise a round table discussion with the First Responden t and his
representative, Mr. Wilfred Moses, on 20 April 2022. The applicants alleged during
the meeting that the housing opportunities were discussed between the parties. It is
further alleged that the applicants offered relocation costs, and the applican ts’
Attorney, Ms. Esmeri Theron, specifically advised the First Respondent to explore
funding options through the Department of Human Settlements.

[24] The applicants alleged further that the First Respondent confirmed that his
sister (the Second Respondent) h as recently purchased housing in Franschhoek and
that he is currently on the Stellenbosch Municipality’s waiting list for a formal housing
opportunity.

[25] Ms. Esmeri Theron and Mr. Wilfred Moses agreed that the respondents would
consider various settlement possibilities and reply to the applicants’ attorneys. The
applicants contend that their attorneys received no feedback from the respondents or
their representatives. It is further alleged that a formal settlement offer, which
included a financia l contribution and transport for the respondents, was directed to
Mr. Wilfred Moses; however, it was never accepted, and the respondents did not
provide any reason for their rejection or failure to offer counterproposals to resolve
the matter.

[26] On 14 May 2 022, the applicants served a “Notice to Make Representations”
as envisaged under section 8 (1)(e) of ESTA. The notice informed the respondents
that:

a. The respondents were permitted to occupy the property solely by virtue
of the rental agreement. Thus, it f ollows that the basis of their
residence was the rental agreement, which has since expired without
any renewal.

b. Alternatively, should the respondents have acquired an independent
right of residence, which the applicants have not acknowledged, that
right is terminated.

c. The respondents were requested to provide the applicants or their
attorneys with substantial written representations, outlining the reasons
why their right of residence should not be terminated. The applicants
received no response.

Termination of the right to reside

[27] On 13 and 20 June 2022, the applicants issued a “Notice of Termination of
Right of Residence and Demand to Vacate the Premises" to the respondents
through the Sheriff, allowing them 30 days to leave the premises. However , despite
this period expiring, the respondents failed to vacate the farm. Consequently, the
applicants initiated eviction proceedings.

[28] The applicants contend that they are suffering severe prejudice as they
require the premises to accommodate their perma nent employees. The applicants
aver that the respondents contribute nothing towards electricity and water, and there
is no legitimate reason supporting their continued occupation.

Compliance with section 9 (2)(c) of ESTA read with section 10

[29] The applicants contended that the respondents are occupiers in terms of
section 10 of ESTA. However, the applicants urged the Court to take cognisance of
the fact that the First Respondent interrupted his residence on the farm when he
moved off it. In this reg ard, the applicants submitted that section 11 of ESTA should
apply to the First Respondent should he attempt to reoccupy the premises. (My
emphasis)

Compliance with section 10(2) of ESTA: The availability of suitable alternative
accommodation

[30] The applica nts contended that the respondents are capable of accessing
alternative accommodation on the basis that the First and Second Respondents are
gainfully employed elsewhere and are therefore in a financial position to afford
lodging away from the farm. The ap plicants asserted that the First Respondent has
already vacated the farm and confirmed his address, while the applicants believe
that he is currently occupying this residential property. This raises questions about
why the Second and Third Respondents fail ed to vacate the farm and relocate with
the First Respondent, considering that the First Respondent was the lessee of the
premises, not the remainder of the respondents. The applicants further stated that
the First Respondent confirmed his sister also owns immovable property in the
Franschhoek area. Consequently, the applicants believed that multiple housing
opportunities were available within the family in the immediate vicinity.

[31] The applicants repeatedly invited the respondents to make submissions
regard ing how the applicants could assist them with their relocation from the
property, but the applicants are not legally bound to do so. The applicants submitted
that the duty to provide alternative accommodation lies with Fifth and Sixth
Respondents, not with the applicants.

[32] Regarding compliance with section 10 (3) of ESTA, the applicants contended
that none of the respondents have reached the age of 60. The applicants submitted
that the respondents have not been declared permanently incapacitated. Therefore,
they do not meet the requirements of section 8 (4) of ESTA. The applicants
submitted that it is common cause that none of the respondents are currently
employed on the farm, and they simply continue to reside unlawfully and free of
charge on the property. Furthermore, the applicants could not reasonably have
expected the respondents to reside in the premises for much longer, as there were
and still are no objective reasons for them to do so.

[33] The applicants further submitted that the Legislature did not in tend for
individuals to continue occupying the property indefinitely, especially after the
occupiers' rights had been terminated.

[34] The respondents prejudiced them by refusing to relocate off the farm. The
applicants are prevented from housing their key per manent employees on the front
despite those employees being required to reside on the farm due to operational
reasons.

[35] The applicants submitted that the respondents right of residence has been
lawfully and fairly terminated in terms of section 8 of ESTA.

[36] The applicants argued in the alternative that the Court should find that section
11 of ESTA is also applicable to the application since the occupiers occupied the
property after 4 February 1997; and that they interrupted the residence or became
occupiers after the set date, the applicants submit that the provisions for an order for
eviction in terms of section 11 have been complied with.

[37] The applicants also assert compliance with sections 8, 9, 10, 11, 3, and 12 of
ESTA.

The Respondents’ case

First Respo ndent

[38] The respondents filed separate answering affidavits opposing the application.
The First Respondent stated that he was born on the farm in 1968 and continues to
reside there. He has lived on the farm all his life. He averred that he once worked on
the farm as a seasonal employee between the 1990s and 2000s until his parents
passed away.

[39] The First Respondent disputed that he had relocated from the farm; he stated
that he still resides there and that all his belongings remain on the property. He
assert ed that the property where the applicants claim he is now living at is his
godmother's house. He explained that he occasionally sleeps at his godmother’s
house, located at 5 […] B[…], Groendal, Franschhoek, to care for her and assist with
tasks around her home. He also occasionally stays at her house to spend more time
with his daughter.

[40] He is now employed by Huguenot Memorial Museum, where he earned a
monthly salary of R12,000. He has a 12 -year-old daughter.

[41] The First Respondent submitted that the provisions of section 10 of ESTA
applies to him, as he was an occupier of the farm before 4 February 1997. He
asserted that sections 11 and 12 of ESTA do not apply.

[42] The First Respondent denied having informed the applicants that the Second
Respondent own s immovable property and that multiple housing opportunities are
available for the family

[43] The First Respondent contends that when the First Applicant acquired the
farm, he was approached by the Second Applicant, who suggested that it would be
preferable to conclude a rental agreement to regulate the respondents’ residence on
the farm, which would help protect their tenure. Relying on this assurance, the First
Respondent agreed to conclude the rental agreement.

[44] The First Respondent duly paid th e rental amount to the First Applicant. As
the expiry date of the rental agreement approached, the respondents were informed
that they needed to vacate the farm. Due to lack of alternative accommodation, the
respondents requested an extension. The extensio n was granted for six months,
until 31 March 2022.

[45] The applicants demanded that the respondents vacate the farm by 31 March
2022. The First Respondent continued to pay rent each month; however, the
applicants refunded the payment and informed him via SMS on 19 May 2022 that
they would no longer accept the rental payments.

[46] The First Respondent contended that the applicants intentionally
compromised their tenure rights on the farm by requiring him to sign a lease
agreement with a specified end date, whi ch interfered with their rights to occupation
and use. The alleged attempts by the applicants to mediate and consult were merely
aimed at ticking the proverbial boxes rather than demonstrating a sincere effort to
accommodate them.

[47] The First Respondent ass erted that the applicants cannot rely on the
termination of the lease agreement, as it represents a deliberate effort to undermine
their tenure rights under the ESTA and effectively constitutes an eviction against
them. Furthermore, their basis of occupati on was never dependent on the lease
agreement.

[48] The First Respondent argues that an order for their eviction will not be just
and equitable in that:

a. The applicants have not satisfied the substantive and
procedural requirements of ESTA, including sections 3 , 4, 5, 6,
8, 9 and 10;

b. He has not committed any form of misconduct or breach.

c. They will be rendered homeless.

d. There is no suitable alternative accommodation available.

e. Meaningful engagement has not taken place with the
municipality

The Second and Third Respondents

[49] The Second Respondent asserted that the respondents were all born and
raised on the farm and have continuously resided there with the knowledge of all
farm owners. She had been residing on the farm for 54 years at the time of the
evictio n proceedings. The premises occupied by the respondents were allocated to
their late parents, who were employed on the farm. Their parents passed away in
2007 and 2008, respectively.

[50] The respondents assert that section 11 of ESTA does not apply in this
instance, as they have occupied the property since before 4 February 1997. The
premises comprise two bedrooms, one bathroom, an open -plan kitchen, and a living
room. The Second Respondent shares the property with the First and Third
Respondents.

[51] The First a nd Second Respondents previously worked on the farm. The
Second Respondent was employed as a domestic worker for the former owners, Mr
and Mrs Rutherford, and subsequently worked on the farm as a seasonal worker. A
payslip from 2015 and 2016 is attached to the answering affidavit.

[52] The Second Respondent currently works as a general worker at a fruit factory
three days a week, earning R247 daily.

[53] The respondents concede that they paid rent to the previous owner of the
farm; however, it was an oral contract with no end date and no written lease
agreement. Upon the transfer of ownership to the First Applicant, the respondents
assert that the applicants advised them that they must have a lease agreement to
safeguard their rights and regulate their stay.

[54] The F irst Respondent then agreed with the applicants on a specific rental
amount to be paid for their stay. The respondents understood that the lease would
be extended for longer periods, as it was common knowledge among the parties that
they had no other home. As the lease approached its expiry, the respondents were
informed that they needed to vacate the farm.

[55] As alternative accommodation was unavailable and they anticipated an
extension of the lease, the respondents requested a six -month extension, which was
granted and set to expire on 31 March 2022. Upon the expiration of the extension,
the respondents continued their farm occupation as they lacked alternative
accommodation. The First Respondent paid rent for April and May 2022; however, in
May 2022, the ap plicants refunded the rent that had been paid and requested that
the respondents vacate the property.

[56] The respondents argue that the termination of their right to reside was neither
just nor equitable and, consequently, unlawful under ESTA for the follow ing reasons:

a. The lease agreement between the parties was unfair as it
substantially limited their rights as occupiers;

b. They had a reasonable expectation that the agreement would be
renewed for longer periods, given that they believed and knew the
property to be their only home;

c. The conduct of the applicants in presenting the lease agreement was
not bona fide ; it was expla ined to the First Respondent that the
agreement was meant to secure the respondents’ tenure on the farm
and lawfully regulate their stay, but it turned out to be a process of
evicting them;

d. They stand to suffer more hardship upon eviction; they will be
rendered homeless as they do not have suitable alternative
accommodation.

[57] The respondents argue that they have not vacated the premises due to the
unavailability of alternative accommodation, as the property is the only home they
have known. They would con sequently become homeless if evicted. In this
circumstance, the respondents assert that the eviction application should be
dismissed. However, should the Court grant the eviction, they request that the order
be suspended until the municipality provides sui table alternative accommodation.

[58] The Second Respondent contended that eviction would result in
homelessness for both herself and her daughter. She stated that she has resided on
the farm for fifty -four years and has never left. Her daughter was also born on the
farm. The Second Respondent stressed that they lack alternative accommodation
and have reached out to a relative to determine whether they can provide shelter to
no avail.

[59] In their answering affidavit, the respondents requested mediation between th e
parties and the State Respondents.

Municipality Report

[60] According to the Municipal Report, a meaningful engagement took place on 1
June 2023 amongst all parties involved. The report indicates that the municipality
was not able to provide alternative accommodation. However, it will fulfil its
obligation to provide alternative accommodation or emergency housing if the
respondents become homeless following the eviction order. The identified informal
settlements are equipped with basic communa l services.

Common cause facts

[61] The First and Second Respondents initially began occupying the farm
property with their parents, who were employed on the farm and received housing as
an employment benefit. They were both born on the farm. They originally obtained
permission to reside at the farm from the farm's previous owner.

[62] The First Respondent entered into a rental agreement with the previous
owners, and it remains unclear how their rental arrangement was established.

[63] Upon transfer of the property to the First Applicant, the First Applicant
concluded a fixed rental agreement with the First Respondent on 20 October 2020.

[64] In terms of the fixed rental agreement:

a. The premises could be occupied by the respondents from 1 October
2020 until 30 September 2021 (“the first rental agreement”)

b. The agreement would automatically terminate on 30 September 2021
unless otherwise agreed between the parties.

[65] Upon the expiry of the first rental agreement and following the First
Respondent's request for a g race period to provide vacant possession of the
premises, another fixed -term rental agreement was established between the First
Applicant and the First Respondent for the occupation of the premises from 1
October 2021 to 31 March 2022 (“the second rental a greement”).

[66] The parties agreed that the second rental agreement would automatically
terminate on 31 March 2022. The respondents were to provide vacant possession of
the premises on or before 31 March 2022 unless an agreement was reached to
extend the seco nd agreement. The second agreement was not extended. The
respondents failed to vacate the property, and the applicants launched eviction
proceedings.

Dispute of Facts

[67] In paragraph 55 of the affidavit, the applicants allege the following:

“55.3. The fi rst respondent has already vacated the farm and confirmed his
residential address as 5 [...] B[...], Groendal, Franschhoek, 7690. It is,
therefore, believed that he is currently residing at this property, which raises
questions as to why the second and th ird respondents have not vacated the
farm along with the first respondent, especially considering that the first
respondent was the lessee of the premises and not the other respondents.

55.4 The first respondent personally confirmed that his sister also owns her
immovable property in the Franschhoek area; thus, there are multiple housing
opportunities for the family in the immediate vicinity.”

[68] The First Respondent vehemently denied that he had moved off the farm,
asserting that he still permanently resides at the farm. He explained that he stays at
his “grootmaak ma”’s house at 5 [...] B[...], Groendal, Franschhoek, to assist with
household tasks and to spend more time with his 12 -year-old daughter. He
confirmed that all his belongings remain on th e farm and stated that his godmother’s
place is not suitable as an alternative accommodation.

[69] The First Applicant denied that he had informed the applicants’ attorneys that
the Second Respondent had purchased a house. The Second Respondent denies
that she purchased a house and that she has alternative accommodation. She
asserts that the applicants failed to make genuine attempts to mediate the matter
and therefore section 8(1) (e) of ESTA was not complied with. She further submits
that the provisions of se ction 10 of ESTA were not complied with, and that the
eviction will lead to homelessness.

MAGISTRATE’S COURT JUDGMENT

[70] The Magistrate found that it would be just and equitable on the facts of the
case for an eviction order to be granted. His reasons for the order are as follows:

a. The Court considered the private landowner’s real right in the property,
the ESTA occupiers’ rights over the property, and the possibility of
homelessness should an eviction order be granted.

b. The Court found that the applicants have complied with all the
substantive and procedural requirements as specified in section 9 (2)
(a) and (b) of ESTA.

c. The court found that section 11 of ESTA finds application and
considered the factors contained therein.

d. The court determined that the respondents are not presently employed
by the applicants and do not contribute to the farm's activities or
productivity.

e. The applicants are being prejudiced and are suffering damage due to
the continued unlawful occupation of the respondents.

f. The Court found that the prejudice suffered by the applicants
outweighs that the respondents would suffer should an eviction order
be granted

g. The Court accepted that the First Respondent is not a permanent
resident of the farm as he does not reside on the farm permanently.

h. The respondents refuse to vacate the property as they have no
intention of giving up accommodation benefits and utilities provided by
the applicants

i. During the process of meaningful engagement, the applicants offered
to assist the respondents with their relocation from the farm. A financial
contribution of R50,000 was offered to the respondents so they could
use it as they wished. Even while these proceedings were pending in
court, the applicants remained willing to sett le the matter between the
parties in a mutually beneficial manner.

[71] In his judgement, the Magistrate listed the disputes of facts as follows:

a. Whether the First Respondent permanently occupies the premises on
the farm;

b. Whether the responde nts have access to alternative accommodation or
can have access to alternative accommodation by way of their means
and the assistance from Stellenbosch Municipality;

c. The prejudice that the respondents might face due to an eviction order
outweighs that of t he applicants;

d. The applicants failed to make genuine attempts to mediate the matter
and therefore section 8(1) (e) was not complied with;

e. The existence of a reasonable expectation of the renewal of the
agreement between the parties.

[72] The Magistrate’s Court found that the respondents’ opposition to the eviction
application should be dismissed as the issues raised fail to constitute a proper or
bona fide defence.

[73] The Magistrate’s Court accepted that the First Respondent does not reside on
the farm and that the respondents have simply refused to vacate the property
despite a lawful demand. The court also found that the applicants are prejudiced and
suffering due to the continued unlawful occupation of the property in question by the
respo ndents. Furthermore, the court established that the applicants’ right of
ownership is being expropriated. In this circumstance, the court determined that the
applicants have adhered to the procedural and substantive requirements of ESTA;
therefore, their e viction will be just and equitable.

Discussion

[74] The Magistrate referenced the principles of Plascon -Evans in the introduction
but did not apply those principles to resolve the factual disputes outlined in his
judgment.

[75] In their founding affidavit, the applicants asserted that the First Respondent
had already vacated the premises, which the First Respondent disputed in his
answering affidavit. Despite the respondents' denial, the applicants insisted on this
unsubstantiated allegation. In t heir heads of argument, the applicants sought to
introduce new facts to support this allegation. The respondents made the following
submissions:

“27.1 On 14 May 2022, the Sheriff attempted to personally serve their
representation notice t on the First res pondent. The second respondent
informed the sheriff during the service that the first respondent is not a
resident at the premises on the farm;

27.2 In an application for housing aid to the Stellenbosch municipality, the first
respondent voluntarily elected to disclose a residential address in town as his
place of residence. The first respondent indicated that he resides at 5[...]
B[...], Groend al, Franschhoek, as opposed to the main address on the farm.”

[76] It is trite that where the pleadings show disputes of fact, and the applicants
nevertheless decide to proceed by way of motion proceedings without resorting to
oral evidence, the principles enu nciated in Plascon -Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd11 are applicable. The general rule is that an applicant who seeks
final relief on motion must, where a dispute of facts arises in motion proceedings
accept the version set up by his oppone nt unless the allegations are, in the opinion
of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so
far-fetched or clearly untenable that the court is justified in rejecting them merely on
the papers.12

[77] This rule was f urther crystallised by the Supreme Court of Appeal in
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another13 where Heher JA
said:

‘A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There
will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing party and nothing more
can therefore be expected of him. But even that may not be sufficient if the

11 Plascon -Evans Paints Ltd v Van Riebeeck Paints (PTY) Ltd 1984 (3) SA 623 (A).
12 Ibid at p634 -635.
13 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another [2008] 2 All SA 512 (SCA).
fact averred lies purely within the knowledge of the averring party and no
basis is laid for disputing the veracity or accuracy of the averment. When the
facts averr ed are such that the disputing party must necessarily possess
knowledge of them, and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied’.14

[78] The Supreme Court of Appeal in National Director of Public Prosecutions v
Zuma15 clarified the Plascon Evans principle and held that:

‘Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the
circumstances are special, they cannot be used to resolve factual issues
because they are not designed to determine probabilities ’.16

[79] The respondents clai m to have lived on the farm for over 50 years, and this
assertion has not been effectively challenged by the applicants, who have not
provided evidence to refute it.

[80] While the applicants noted the allegation that the First respondent resided on
the farm, the applicants attempted to bolster their case by giving context to their
allegations, for the first time, in the heads of argument. In their founding affidavit, the
applicants make sweeping allegations based on hearsay evidence. These remain
unconfirmed and constitute hearsay evidence. The First Respondent’s version is not
so clearly untenable that the Court would be justified in rejecting it merely on the
papers. The First Respondent's version is that he has occupied the property since
birth and occasion ally slept at his godmother's place but would return home. It
should be accepted. Therefore, only section 10 of ESTA is applicable to the First and
Second respondents.


14 Ibid para 13.
15 National Director of Public Prosecutions v Zuma [2009] 2 All SA 243 (SCA) (12 January 2009 ).
16 Ibid para 26.
[81] The Magistrate merely cited the Plascon -Evans principle without applying it or
resolvin g the dispute and accepted the applicants’ assertion that section 11 of ESTA
applies to the respondents without explaining how he reached that conclusion.

[82] Consequently, the Magistrate concluded that section 11 of ESTA applies in
this case. This conclusion was evidently incorrect, considering that the respondents
had lived on the farm their entire lives. For this reason alone, this matter should be
set aside.

[83] This should be the end of the matter, but for completeness, I shall proceed
and deal with whether the eviction granted is just and equitable.

Meaningful engagement

[84] In their answering affidavit, the respondents requested that the court refer the
matter to mediation, considering the history of their occupation of the property. In
reply, the applicants rejected the mediation proposal, indicating that their legal
repre sentatives had already initiated contact with the State Respondents to arrange
a meeting for a substantial discussion. Additionally, the applicants noted that their
attorneys had communicated via email with the Department to inform the probation
officer re garding the section 9(3) ESTA report. The applicants contended that the
mediation proposed by the respondents is not a mandatory procedural requirement
as stipulated under ESTA. The applicants asserted that they had made several
attempts to mediate and tha t the respondents had been afforded multiple
opportunities to engage in dialogue.

[85] Furthermore, the applicants stated that it is a well -established legal principle
that meaningful engagement should occur between the relevant stakeholders while
the proceedings remain pending in court.

[86] The probation officer filed a report and made recomm endations to the parties
to consider the mediation process to resolve the dispute, as outlined in section 21 of
ESTA. The Probation Officer stated that the health condition of the Third Respondent
should be taken into account when considering suitable alte rnative accommodation.
The parties should engage meaningfully with the Municipality, and an eviction order
ought not to be granted without the availability of appropriate alternative
accommodation. The report further emphasises that the emergency housing o ffered
by the municipality is not suitable alternative accommodation for a family of three
adults.

[87] In his judgment, the Magistrate simply notes the Probation Officer's Report
and the Municipality Report. It is not sufficient to note the recommendations of the
Probation Report and disregard them. Dealing with the purpose of the reports
Ngcukaitobi AJ said in Drakenstein Municipality v CJ Cillie en Seun (Pty) Ltd.17

“There is a clear reason why the consideration of these reports is entrenched
in statute: th e reports must (a) indicate availability of alternative land in the
event of an eviction; (b) the impact of the eviction on the affected occupiers,
including their children; and (c) any undue hardship which will be caused by
the eviction. It can be seen fr om the provisions of section 9(3) that the
purpose of the statute is to protect occupiers from unlawful evictions and
where evictions are inevitable to ameliorate their adverse impact”.18

[88] In deciding whether the eviction would be just and equitable, the judicial
officer must consider the Probation officer report in ESTA matters. The Supreme
Court of Appeal held in Monde v Viljoen NO & Others:19

“The LCC has subsequently in Cillie held that a probation officer’s
report was not a mere formality. It found that the issues in s 9(3) of
ESTA that had to be addressed in the report were necessary to assist
a court in deciding whether an eviction was just and equitable; that the
importance of the report in an eviction could not be overemphasised;
and that it ensured that the constitutional rights of those affected by
eviction were not overlooked. Likewise, in Drakenstein Municipality , the

17 Draken stein Municipality v CJ Cillie En Seun (Pty) Ltd and Others (LCC44/2015) [2016] ZALCC 9
(3 June 2016)
18 Ibid para 15.
19 2019 (2) SA 205 (SCA) (28 September 2018).

LCC noted that s 9(3) was cast in peremptory terms; that the court’s
ability to discharge its function was frustrated without a report by a
probation officer; and that the absence of the report negatively affected
the interests of occupiers, since the purpose of ESTA was to protect
occupiers from unlawful e viction and where eviction was inevitable, to
ameliorate its adverse impact”.20

[89] In the present case, the Magistrate failed to consider the Probation Officer's
report. That is an irregularity.

Compliance with Section 8 (1) notice

[90] Zondo J in Snyders and Others v De Jager and Others 21 held:

“Section 8(1) makes it clear that the termination of a right of residence must
be just and equitable both at a substantive level as well as at a procedural
level. The requirement for the substantive fairness of the termination is
captured by the introductory part that requires the termination of a right of
residence to be just and equitable. The requirement for procedural fairness is
captured in section 8(1)(e). ”22

[91] On 20 April 2022, the a pplicants’ attorney scheduled a meeting with the
representatives of the First Respondent. The applicants’ attorneys emphasised that
the applicants no longer wished to lease the premises, as they solely intended to
utilise it for their corporate functions a nd daily farming activities. The applicants
proposed relocation options, and the applicants’ attorney advised the First
Respondent to explore funding opportunities through the Department of Human
Settlements .

[92] The Second and Third Respondents were not invited to be the part of the
meeting; it is unclear whether they were also invited to attend .

20 Ibid para 27.
21 Snyders and Others v De Jager and Others (3) SA 545 (CC) (21 December 2016).
22 Ibid para 56.

[93] On 14 May 2022, the applicants delivered to the respondents via the Sheriff a
“Letter of Demand and Notice to Make Representations in terms of Section 8(1)(e) of
the Extension of Security of Tenure Act, 62 of 1997 (‘the Act)” (“the Sec. 8(1)(e)” //
Letter) as to why their right to residence on the Farm should not be terminated. They
were given 30 (thirty) days’ Notice to make oral or written representations to t he
applicants’ attorneys of record. The respondents failed to make the representations.
The applicants terminated their right to reside and instituted these eviction
proceedings.

[94] The applicants raised concerns regarding the respondents' lack of response
to the notice issued under section 8(1)(e) of ESTA. However, upon examination of
the applicants’ actions, it becomes evident that the notice was primarily a formality,
serving merely to fulfil the compliance requirement outlined in section 8 of ESTA.
The a pplicants consistently indicated that the rental agreement between the parties
was for a fixed term, with a clear intention not to renew it. Throughout the second
agreement, the applicants communicated via letters from January 2022, explicitly
informing th e First Respondent of the decision not to renew the rental agreement.

[95] In the notice itself, the applicants reiterated that both the rental agreement
and any independent rights associated with it would not be extended. It is crucial to
note that whether or not the respondents replied to the notice was irrelevant, as the
applicants’ intentions were clearly articulated in all prior correspondence and the
notice itself; therefore, the eviction application was not just and equitable.

[96] The applicants alleged tha t the rental agreement governs the parties'
relationship, thereby circumventing compliance with the provisions of section 10 of
ESTA. The applicants even urged the court to find that the provisions of section 11 of
ESTA were applicable to the respondents.

[97] Section 10 (3) of ESTA establishes a higher threshold for the applicants. It
requires the court to consider the efforts made by both the owner or person in charge
and the occupier to secure suitable alternative accommodation for the occupier. The
applican ts argued strongly that they offered relocation costs and that it is not their
obligation to secure suitable alternative accommodation. Section 10 (3) of ESTA
stipulates that both parties must endeavor to secure alternative accommodation for
the respondent s; therefore, the submission that the responsibility to secure suitable
accommodation rests solely with the Sixth Respondent is inconsistent with the
legislation. The legislature anticipates that the applicants will make a genuine effort
to secure suitable accommodation for the respondents. Offering relocation costs of
the applicants and refusing to refer the matter to mediation is not a genuine effort to
secure suitable accommodation as envisaged by the legislation.

[98] The applicants contend that the municip ality has a constitutional duty to
provide suitable alternative accommodation, and this obligation cannot be
overlooked merely by asserting a lack of such accommodation. The applicants
argued that they do not have any obligation to accommodate the responde nts
indefinitely. However, this is not the respondents’ demand; rather, the respondents
suggested that the matter be referred to mediation and that the parties engage in
meaningful engagement. The Applicants failed to recognise the principles articulated
by Pretorius AJ in Claytile23. The learned judge held as follows:

‘In Daniels it was held that ESTA can, under certain circumstances, place a
positive obligation on a private landowner. This does not mean that private
landowners carry all or the same duties as the State to fulfil the obligations set
out in the Constitution.
But often adherence to a strict classification of horizontal or vertical
application of the Bill of Rights obfuscates the true issue: whether, within the
relevant constitutional and statutory context, a greater “give” is required from
certain parties. Any “give” must be in line with the Constitution. This Court has
long recognised that complex constitutional matters cannot be approached in
a binary, all -or-nothing fashion, but the re sult is often found on a continuum
that reflects the variations in the respective weight of the relevant
considerations.’24

[99] It is this greater “give” that is at the heart of this matter. The Court continued:

23 Baron and others v Claytile (Pty) Limited and Another 2017 (5) SA 329 (CC) (13 July 2017).
24 Ibid para 35.

‘The provisions of ESTA do not spell out, in section 10(2), who is
responsible for making available suitable alternative accommodation.
The logical role player would be the State. But where the State has
been cited as a party and has meaningfully participat ed in the
proceedings, and yet no suitable alternative accommodation could be
found, is that necessarily the end of the matter? I think not. Section
10(2) has a narrow scope: it only applies in circumstances where an
owner wishes to evict an occupier where there has been no breach or
breakdown of the employment relationship. Eviction under those
conditions should therefore be allowed only in exceptional
circumstances. Within this narrow scope, it might therefore be
appropriate to expect the private landowne r to assist with the finding of,
or, failing that, in truly exceptional circumstances, to provide suitable
alternative accommodation. This must be a contextual enquiry, having
due regard to all relevant circumstances.’25

[100] Unlike in other matters, there has not been a breach or breakdown of the
employment relationship in this case. The respondents were not residing free of
charge in the applicants’ premises, as the applicants allege. They were paying rent
monthly. The respondents argued that the eviction wou ld result in homelessness.

[101] In its founding affidavit and during the argument, the applicants submitted that
both sections 10 and 11 of ESTA were applicable, and that the requirements of
sections 10 and 11 had been complied with as follows: basis:

i. It is submitted that the respondents are capable of having access
to alternative accommodation since (inter -arlia);

ii. The respondents have had sufficient time to obtain alternative
accommodation and to vacate the property;


25 Ibid para 37.
iii. The First and Second Respondents, and pos sibly the Third
Respondent, are gainfully employed elsewhere and therefore, in
the financial position to afford alternative lodging of the firm;

iv. The First Respondent had already vacated the farm;

v. The First Respondent personally confirmed that his sister al so
owned her own immovable property in Franschhoek area, and
such there are multiple housing opportunities within the family in
the immediate area;

vi. The applicants repeatedly invited the respondents to make
reasonable suggestions regarding the manner in whi ch the
applicants could assist them with their relocation from the
property., notwithstanding those invitations, the respondents did
not respond and failed or refused to provide any suggestions in
this regard which in itself is indicative that the responde nts would
not require the applicants’ assistance and relocation from the
property;

vii. The Second and Third Respondents were gainfully employed
elsewhere, and they should have utilised their income to secure
alternative accommodation elsewhere;

[102] Addressing compliance with the requirements of section 10(3) of ESTA, the
applicants asserted that it would be just and equitable under the circumstances
because the respondents were only permitted to occupy the premises until the expiry
of the fixed term of the second rental agreement. Therefore, the applicants contend
that it is fair for them to expect the respondents to vacate the property, particularly as
there is no objective reason for the respondents to continue occupying the farm
property. The respo ndents disputed most allegations made that the respondents
have alternative accommodation.

[103] The applicants initially contended that they needed the house for their
corporate functions and later they contended that they needed it to house their other
employe es. The Magistrate accepted this without enquiry as to how the respondents’
occupation in the farm hampered the applicants farming operations.

[104] In Kanhym (Ply) Ltd v Simon Botha Mashiloane,26 Dodson J held that the
applicant must show a causal connection between the unavailability of that particular
dwelling and the serious prejudice which the owner‘s operation or operations will
suffer. The learned judge said:

‘I do not agree that a mere aver ment that the house is needed for
another employee justifies the inference that the efficient carrying on of
any operation of the applicant would be seriously prejudiced unless the
dwelling is available for occupation by another person employed or to
be em ployed by the applicant. It was necessary that the applicant set
out details of the serious prejudice which one or more of its operations
would suffer and to identify those operations. The enquiry is specific to
that particular occupier (the respondent in this instance) and the
particular house which he or she occupies. A causal connection must
be shown between the unavailability of that particular dwelling and the
serious prejudice which the owner’s operation or operations will suffer.
No such proof was of fered by the applicant.’27

Further considerations

[105] In the pleadings, the Second Respondent was cited, but there were no
separate substantive grounds for her eviction. The applicants only focused on the
First Respondent. The Second Respondent is a 56 -year-old woman, and the Third
Respondent is a 37 -year-old woman.

[106] The Second and Third Respondents were not invited to the meaningful
engagement meetings and there were no separate grounds for the eviction of the
Second Respondent. This is unsustainable post Klaase and Another v van der

26 1999(2) SA 55 (LCC).
27 Ibid para 12.
Merwe N.O. and Others.28 In that matter, Mrs Klaase appealed the decision of this
Court where it held that Mrs Klaase occupied the premises under her husband. The
Constitutional Court held:

‘The Land Claims Court’s finding that Mrs. Klaase occupied the premises
“under her husband” subordinates her rights to those of Mr. Klaase. The
phrase is demeaning and is not what is contemplated by section 10(3) of
ESTA. It demeans Mrs. Klaase’s rights of equality and human dig nity to
describe her occupation in those terms. She is an occupier entitled to the
protection of ESTA. The construction by the Land Claims Court would
perpetuate the indignity suffered by many women similarly placed, whose
rights as occupiers ought to be s ecured’29

[107] Although the First and Second Respondents are siblings, I believe the same
principles apply.

[108] In addition to the Magistrate’s erroneous conclusion that section 11 of ESTA
applies, there are several troubling aspects of his judgment that merit censure from
this Court.

[109] The Magistrate accepted the version presented by the applicants without
demonstrating consideration of the respondent’s submissions. I assert this because
comparing the Magistrate’s judgment with the applicants’ heads of arg ument
inevitably reveals elements of plagiarism in the applicants’ submissions. However, I
must empathetically point out that had this copying and pasting constituted a
reiteration of the parties’ submissions, similarly followed by the respondents’
submiss ions, as is customary in judgment writing, the Magistrate would have
avoided such criticism. However, his judgment appears to summarise the Applicant’s
submissions as stated in the heads of argument.

Order


28 2016 (6) SA 131 (CC).
29 Ibid para 66.
[110] Consequently, the following order is made:

1. The Magistrate’s Court Order dated 1 August 2024 is set aside and
substituted with the following order:

2. The Application is dismissed with no order to costs.


________________________
Flatela Luleka
Judge of the Land Court