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[2026] ZALCC 5
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Ezwelethu Communal Property Association v Kubheka and Others (LanC 07R/2025) [2026] ZALCC 5 (23 January 2026)
IN
THE LAND COURT OF SOUTH AFRICA
HELD
AT RANDBURG
Case
number: LanC:
07R/2025
Magistrate’s
Court case number:
12/2024
(1)
REPORTABLE: Yes☐/ No ☒
(2)
OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3)
REVISED: Yes ☐ / No ☒
Date:
23 January 2026
Before:
The Honourable Acting Judge Maluleke
In chambers
Delivered
on:
23 January 2026
In
the matter between:
EZWELETHU
COMMUNAL PROPERTY ASSOCIATION
Applicant
and
VUSUMUZI
KUBHEKA
First
Respondent
UNKNOWN
OCCUPANS OF IMMOVABLE
PROPERTY
KNOWN AS PORTION 2 OF
FARM
WYDELEGEEN 53 REGISTRATION
DIVISION
HT MPUMALANGA
Second
Respondent
SEME
LOCAL MUNICIPALITY
Third
Respondent
HEAD
OF THE DEPARTMENT OF RURAL
DEVELOPMENT
& LAND REFORM MPUMALANGA
Fourth
Respondent
ORDER
The
order granted by the Wekkerstroom Magistrate’s Court dated 19
September 2025 is set aside in its entirety.
The
case is remitted to the Wekkerstroom Magistrate’s Court for
reconsideration as a relocation
with an emphasis on
ensuring substantive fairness and possible mediation.
There is no order as to
costs.
JUDGMENT
MALULEKE
AJ
Introduction
[1]
This is an automatic review before me in terms of section 19 (3) of
the Extension
of Security of Tenure Act
62 of 1997 (“ESTA”) emanating from the Magistrate’s
Court for the District of Gert Sibande,
in the Sub District of Pixley
Ka Seme, held at Wekkerstroom, Mpumalanga.
[2]
On 19 September 2025, the Magistrate
granted an order in the following terms:
1.
The First Respondent and all occupiers
occupying through him are declared unlawful occupiers of the
farmhouse situated on portion
2 of the farm Wydgelegen 53,
registration division HT, Mpumalanga.
2.
The First Respondent and all occupiers
occupying through him are ordered to remove all their movable
property from the farmhouse
and vacate the mentioned farmhouse no
later than 60 calendar days after service of this order.
3.
The First Respondent and all occupiers
occupying through him are authorised to demolish any structure that
they have erected to
the farmhouse and salvage any material from such
demolition no later than 60 calendar days after service of this
order.
4.
If the First Respondent and all occupiers
occupying through him fail to comply with the order, the sheriff of
the district is authorised
and directed to evict them and their
movable belongings from the mentioned farmhouse.
5.
No cost order is made.
6.
The order is subjected to automatic review
to the Land Court and the execution of such is stayed pending the
outcomes of such
.
Parties
[3]
The Applicant is Ezwelethu Communal
Property Association (“the CPA”), registered in terms of
the Communal Property Association
Act 28 of 1996, under registration
number: CPA/18/1549/A, situated at Wydgelegen
Farm
53 HT, Wakkerstroom District, Mpumalanga Province (“the farm”).
[4]
Mr Mfanikhona Enock Thwala (“Mr
Thwala”) is the representative of
CPA,
appointed as such by virtue of a Resolution dated 15 December 2023,
and appointed duly to depose to the affidavit on behalf
of the
Applicant.
[5]
The First Respondent is Vusumuzi Kubheka,
(“Mr Kubheka”), currently residing on the farm. The
Second Respondents are
unknown occupants of the farmhouse,
occupying
through the First Respondent
. For the sake
of convenience, the First Respondent and the Second Respondents will
collectively be referred to as “The Respondents”.
[6]
The Third Respondent is the Pixley Ka Seme
Local Municipality, a local municipality with its main
place of business
at C/O Adelade Tambo Street and Dr Nelson Mandela
Drive, Mpumalanga.
[7]
The Fourth Respondent is the Head of the
Department of Rural Development & Land Reform (“the
Department”), with
its main place of business at 374 Mohammedia
Street, Piet Retief, Mpumalanga Province.
Background
[8]
The CPA is the owner of the farm that was
bought by the Department on 22 January 2018 on behalf of the CPA and
its beneficiaries
in land restitution. Mr Kubheka has always lived on
the farm with his family as a resident, hence he became a beneficiary
under
the verification list of beneficiaries of the CPA.
[9]
The CPA Constitution provides that office
bearers will hold office for 3 years only. However, Mr Kubheka has
been a Chairperson
for more than three years, due to the committee’s
inability to hold elections because of the COVID pandemic.
[10]
Some committee members of the CPA called
the Department to assist them in holding new elections as the term of
that committee had
already elapsed. The Department advised them to
elect a temporary committee and the fully fledged committee will be
elected [
sic
]
on a date to be determined by the Department.
[11]
The then committee of 2017 which Mr Kubheka
was the Chairperson of, informed the members of the CPA of the
meeting to be held to
elect a temporary committee. Mr Kubheka did not
form part of the committee members who were talking to the Department
regarding
the elections of a temporary committee.
[12]
The committee members who were talking to
the Department informed all the CPA members of the date of the
proposed meeting to elect
the temporary committee, and Mr Kubheka was
informed through his son, Adam Patrick Kubheka, of the date of the
meeting wherein
the elections of the temporary committee will take
place.
[13]
The meeting was held in September 2023
wherein the current committee was elected; however, Mr Kubheka did
not attend the meeting
and none of his family members attended.
[14]
On or about 19 November 2024, t
he CPA
instituted eviction proceedings in terms of section 9 of ESTA in the
Magistrate’s Court under case no. 12/2024, against
Mr
Kubheka
and the Second Respondents.
[15]
Mr Thwala
, a member of the
CPA
and the person in charge of the farm, deposed to the founding
affidavit on behalf of the CPA.
Mr Kubheka was the
Chairperson of the CPA committee from January 2018 to September 2023.
He was part of the committee that developed
the Constitution of the
CPA, and therefore should have intimate knowledge of the Constitution
thereof.
[16]
Mr Kubheka as the Chairperson of the
CPA, checked regularly on the farmhouse from 2018
to 2022 and he took occupation of the farmhouse in December 2022.
Mr
Kubheka has his own dwelling on the farm
.
When he was the Chairperson of the CPA, he left his dwelling took
occupation in the house that belonged to the CPA without the
necessary consent from CPA.
Mr Kubheka
’
s
wife, followed to move into the CPA’s house, to stay with
Mr
Kubheka
.
Mr
Kubheka
had first sent his children,
Sibusiso and Sandile Kubheka to occupy the house in 2018 before he
went to occupy the house in 2022.
[17]
After the election of the new
committee
members,
numerous meetings were held with Mr Kubheka, urging him to vacate the
farmhouse, but he kept on promising to vacate but
did not. He
remained in occupation of the farmhouse with his family. The
CPA seeks the eviction of the Respondents in order
to utilise
the farmhouse for its business.
[18]
The Respondents, despite receiving the notices of the
intention to terminate the residence and to evict them, have not
vacated the
farmhouse within the notice period given.
[19]
The CPA contends that the eviction would be
just and equitable because
Mr Kubheka has
his own house on the farm
; however, he left
his house and took occupation of the farmhouse that belonged to the
CPA without the necessary consent therein.
Therefore, they
already have access to alternative accommodation, his house, though
he argues that it is dilapidated.
[20]
Regarding
compliance with the
provisions of ESTA, the CPA contends that when the Respondents failed
to vacate the premises, they informed
Mr Kubheka
about the outcome of the meeting and requested him to hand over the
documents in his possession to the new Chairperson,
and to vacate the
farmhouse which belongs to the CPA. However, Mr Kubheka continues to
occupy the farmhouse to date and he refuses
to hand over the
documents in his possession to the current Chairperson.
[21]
Officials from the Department came to the
farm in 2023 and informed Mr Kubheka, in the presence of the CPA
members, to vacate the
farmhouse. He promised to vacate the farmhouse
after Good Friday of April 2023, but did not vacate and is still
occupying the farmhouse
to date. Mr Kubheka took full occupation of
the house in December 2022.
Termination
of the right to residence
[22]
A letter dated 30 October 2023 informing Mr
Kubheka that he has no legal right whatsoever to occupy the CPA’s
farmhouse, was
served on him on 23 November 2023. The said letter was
affixed to the principal door at Mr Kubheka’s place of
residence (the
CPA’s farmhouse) by the sheriff as Mr Kubheka
was not available for service. The sheriffs return of service was
filled in
court.
[23]
A copy of the letter was also served on the
Pixley Ka Seme local municipality on 22 November 2023. The sheriffs
return of service
was filled in court.
[24]
A copy of the letter was also served on the
Department on 10 November 2023. The sheriffs return of service was
filled in court.
[25]
A notice in terms of section 9(2)(d)(ii) of
ESTA was sent to the sheriff to serve on the Department.
[26]
A further notice in terms of section
9(2)(d)(ii) of ESTA was addressed to Mr Kubheka and was served by the
sheriff for Wekkerstroom
on the mother of Mr Kubheka, Ms Lizzy
Kubheka. The sheriffs return of service was filled in court.
[27]
The CPA submits that it is suffering severe prejudice as it is
prevented from conducting some of its business in the
farmhouse, as
Mr Kubheka prevents access to the farmhouse to all the members of the
CPA.
[28]
The CPA contends that Mr Kubheka has always lived
in the farm with his family, hence he became a beneficiary under the
verification
list of beneficiaries of the CPA, and therefore he and
the Second Respondents are
occupiers in terms of section 10 of
ESTA. However, Mr Kubheka
has his own dwelling in
the farm
; though he left his dwelling and
went to occupy the house that belonged to the CPA without the
necessary consent from
the CPA.
[29]
Regarding compliance with section 10 (3) of ESTA, the CPA contends
that the Respondents are not long-term occupiers in
the farmhouse but
in the farm itself.
[30]
The CPA submits that the Respondents’ right of residence has
been lawfully and fairly terminated in terms of section
8 of ESTA.
[31]
The CPA further submits that, in the alternative that the Court
should find that section 11 of ESTA is also applicable
since the
occupiers occupied the farmhouse after 4 February 1997; the CPA
submits that the Respondents are not evicted from the
farm, since
they have their own house on the farm, but the farmhouse that belongs
to the CPA. The CPA further submits that the
provisions for an order
for eviction in terms of section 11 have been complied with.
[32]
In the judgment, the Magistrate states that
the Respondents did not file any opposing papers and the application
proceeded unopposed.
Report in terms of
section 9 (3) of ESTA
[33]
The Department filed a report in terms of
section 9 (3) of ESTA. The report establishes among others; that Mr
Kubheka and the Second
Respondents will experience suffering should
they be evicted as a result of their current homestead being
dilapidated, unless the
court orders a temporary structure to be
constructed by the relevant government institution. The report
further records that the
Respondents indicated that they would not
vacate the farmhouse.
Meaningful engagement
[34]
There has been no substantive engagement between the parties with the
municipality and no report was submitted.
The
Legal Framework
[35]
It is trite that the point of departure in
all eviction applications is the Constitution, in particular, section
26(3) which guarantee
that no one may be evicted from their home
without an order of court made after considering the relevant
circumstances.
The preamble to 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.
[36]
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.’
[1]
[37]
This is a
relocation matter and not an eviction matter, because the Respondents
are not evicted from the land but relocated from
the farmhouse to
another house on the farm, therefore a distinction must be drawn
between “relocation” and “eviction”,
due to
different suitable alternative accommodation considerations that
emerge in the respective domains.
[2]
[38]
ESTA deals
with evictions in the rural areas of South Africa.
[3]
ESTA refers to “relocation” in the sense that evictees
should be provided with suitable alternative housing under certain
circumstances,
[4]
and does not deal with relocations on the same property. An owner or
the person in charge might, however, seek to relocate an ESTA
occupier, hence the courts have introduced the concept that the
movement of ESTA occupiers from one ESTA home to another, on the
same
property, is to be known as relocation. Although a relocation can
generally mean movement of people to another property or
house
off-site, or a relocation on the property itself, the case of
Boplaas
Landgoed (Pty) Ltd v Jonkies (LCC 37/2022)
[2022] ZALCC 38
(
Jonkies
)
demonstrates that “relocation” may have various meanings.
[39]
A
relocation in the context of ESTA is limited to the movement of ESTA
occupiers from one ESTA home to another on the same land
(i.e., the
same deed description and title deed).
[5]
In contrast, an eviction in terms of section 1 of ESTA is confined to
the removal of ESTA occupiers from the land (i.e., different
title
deeds).
[6]
There is hence a distinction between relocation and eviction.
[7]
[40]
An
eviction involves depriving an ESTA occupier, against his or her
will, of residence on land, the use of land, or access to water,
all
of which are linked to a right of residence in terms of ESTA.
[8]
Prior to an eviction, the owner or person in charge must first
terminate an ESTA occupier’s right of residence in terms of
section 8 of ESTA. This right may be terminated if the ESTA occupier
(a) has resigned from employment or has been dismissed, or
(b) has
committed a breach in terms of section 10(1)(a), (b) or (c).
[9]
Furthermore, the owner or person in charge must approach the court
for an order of eviction, and the court will grant such an order
if
it complies with the conditions set out in sections 10 or 11 of ESTA.
[41]
The process which is currently followed in the relocation of ESTA
occupiers is not provided for in ESTA, however, the
court has
extended the application of ESTA to relocation, though the right of
residence is not necessarily terminated when ESTA
occupiers are
relocated, it is imperative that sections 5(a), 6(2)(a) and 8(1)(e)
of ESTA are complied with. The majority judgment
in
Du Plessis and
Another v Kriel N.O and Others
[2024] 1 All SA 702
(LCC)
held
that section 8 of ESTA applies to relocations (not just evictions).
In this matter, Cowen J and Ncube J concurring, Cowen J
said in
paragraph 39:
‘
In
my view, the rights that are affected by any relocation are rights of
residence protected by section 8 of ESTA. In other
words,
properly interpreted, section 8 of ESTA is invoked where an
occupier’s right of residence is terminated whether or
not that
termination is intended to lead to an eviction either at the time it
is terminated or at any time thereafter.’
[42]
T
he Supreme Court of Appeal (“SCA”)
in the case of
Oranje v Rouxlandia
Investments
(Pty) Ltd
[10]
(
Rouxlandia)
ruled
that a relocation of an ESTA occupier to a different house on the
same property is not an eviction:
‘
The starting point
is the decision of this court in
Chagi
v Singisi Forest Products (Pty) Ltd
,
which conclusively spelt out whether a relocation could amount to an
eviction as contemplated by ESTA. The court held that because
s 6
encroaches upon a landowner’s right of ownership, it should be
restrictively interpreted. Therefore, an eviction in terms
of ESTA is
confined to an eviction from the land, not from one dwelling to
another. As such, a relocation could not amount to an
eviction in
terms of ESTA.’
[11]
[43]
The SCA ordered the relocation and said that a landowner or person in
charge is entitled to relocate an occupier, provided
that the move
does not infringe upon the occupier's fundamental rights to security
of tenure and human dignity, as protected by
ESTA, there is suitable
alternative accommodation provided, the occupiers rights in terms of
sections 5(
a
) and (d) read with section 6(2)
(a)
are
not affected, and the relocation does not impact on the occupier’s
human dignity. As such, a relocation could not amount
to an eviction
in terms of ESTA. The principle established in this decision is
therefore that, an eviction in terms of ESTA is
confined to an
eviction from the land, not from one dwelling to another.
[44]
Nkabinde J
in
Molusi
and Others v Voges N.O. and Others
[12]
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 marginalisation 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 traditional 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 that
fairness plays an important role.’
[13]
[45]
In
PE
Municipality
[14]
the Constitutional Court remarked that it is necessary “
to
infuse elements of grace and compassion into the formal structure of
the law”
[15]
and
courts need “to balance competing interests in a principled way
and to promote the constitutional vision of a caring society
based on
good neighbourliness and shared concern” because “we are
not islands unto ourselves
”.
[16]
One
immediately agrees that:
‘
[t]he Judiciary
cannot, of itself, correct all the systemic unfairness to be found 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.’
[17]
(Footnote
omitted)
Compliance
with sections 8, 9 and 10 or 11 of ESTA
[46]
Section
8
[18]
of ESTA provides that the right to residence may be terminated on any
lawful grounds, provided that such termination is just and
equitable,
having regard to all relevant factors. Section 9
[19]
of ESTA sets the basic requirements that must be met before a court
can grant an eviction order. Section 10
[20]
of ESTA provides the requirements for an order for eviction of a
person who was an occupier on 4 February 1997 and section 11
[21]
of ESTA provides the requirements for eviction of a person who was an
occupier after 4 February 1997.
.
[47]
A written notice was addressed to Mr Kubheka and was served on him
through affixion on the door of his residence, informing
him to
vacate the residence and that his right of residence is terminated,
however, as indicated above, this is not an eviction
but a
relocation. Accordingly, the Magistrate must reconsider the matter
under relocation and not eviction.
Discussion
[48]
It has been
established in case law that an eviction in terms of ESTA is limited
to the removal of ESTA occupiers from one land
to another, and not
from one house to another on the same farm.
[22]
As such, relocation does not constitute an eviction in terms of
ESTA.
[23]
Though relocation does not constitute eviction, it still has to
comply with the just and equitable requirements as outlined in
ESTA.
[49]
The CPA stated that Mr Kubheka did not avail himself for meetings to
discuss his relocation with the Second Respondents,
therefore, Mr
Kubheka did not make any representation as required in terms of
section 8(1)(e).
[50]
The probation officer’s report submitted in
terms of section 9(3) of ESTA, established that Mr Kubheka and the
Second Respondents
will experience hardship should they be evicted
because their current homestead is dilapidated and
not
habitable, therefore there is no suitable alternative accommodation.
[51]
The SCA
[24]
confirmed that, where a relocation infringes an ESTA occupier’s
right to human dignity, such a relocation could be successfully
resisted by invoking sections 5(
a
)
and 6(2)(
a
)
of ESTA. However, where suitable alternative accommodation was
provided and the right to human dignity was not infringed, sections
5(a) and 6(2)(a) of ESTA cannot be relied on to resist a
relocation
[25]
.
[52]
In consideration of the above, the Magistrate erred in ordering
eviction in a relocation matter.
Order
[53]
Accordingly, the following order is
granted:
1.
The order granted by the Wekkerstroom
Magistrate’s Court dated 19 September 2025 is set aside in its
entirety.
2.
The case is remitted to the Wekkerstroom
Magistrate’s Court for reconsideration as a relocation
with
an emphasis on ensuring substantive fairness and possible mediation.
3.
There is no order as to costs.
MJ
MALULEKE
ACTING
JUDGE OF THE LAND COURT
[1]
Daniels
v Scribante and Another
2017 (8) BCLR 949
(CC)(
Daniels
v Scribante
)
,
paras 14 to 23.
Du
Plessis and Another v Kriel N.O and Others
(LCC88/2022),
para 41.
[2]
Lerato Rudolph Ngwenyama ‘The difference between a relocation
and an eviction in the context of ESTA: A critical reflection
on
Boplaas Landgoed (Pty) Ltd v Jonkies (LCC 37/2022)
[2022] ZALCC 38
(15 August 2022)’.
Law,
Democracy & Development/ Vol 28 (2024).
[3]
2.
Application and implementation of Act
Subject
to the provisions of section 4, this Act shall apply to all land
other than land in a township
established,
approved, proclaimed or otherwise recognised as such in terms of any
law, or encircled by
such
a township or townships, but including—
(a)
any land within such a township which has been designated for
agricultural purposes in terms of
any
law; and
(b)
any land within such a township which has been established,
approved, proclaimed or otherwise
recognised
after 4 February 1997, in respect only of a person who was an
occupier immediately
prior
to such establishment, approval, proclamation or recognition.
Land
in issue in any civil proceedings in terms of this Act shall be
presumed to fall within the scope of
the
Act unless the contrary is proved.
[4]
Sections 10(2) and 11(3)(c) of ESTA.
[5]
Boplaas
Landgoed (Pty) Ltd v Jonkies (LCC 37/2022)
[2022] ZALCC 38
(2022) para 12 (
Jonkies
).
See also
Pharo's
Properties CC and Others v Kuilders and Others (LCC101R/00)
[2001]
ZALCC 1
(2001)
para 13;
Chagi
v Singisi Forest Products
2007 (5) SA 513
(SCA)
paras 19 and 20;
Oranje
and Others v Rouxlandia Investments (Pty) Ltd
2019 (3) SA 108
(SCA)
(2019
)
para 10;
Du
Plessis and Another v Kriel N.O and Others
[2024] 1 All SA 702
(LCC).
para
33. See also note 2 above.
[6]
Jonkies
para
12.
[7]
Ibid.
[8]
Section 1 of ESTA.
[9]
Section 8(2), (4) and (5) of ESTA.
[10]
(2019
(3) SA 108
(SCA) (
Oranje
v Rouxlandia Investments
).
[11]
Ibid
para 10.
[12]
2016
(3) SA 370
(CC) (
Molusi
).
[13]
Ibid
para 39.
[14]
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7
(
PE
Municiplaity
).
[15]
Ibid
para 37.
[16]
Ibid.
[17]
PE
Municipality
supra
n14 para 37 and
Molusi
supra n12 paras 39 – 40.
[18]
“
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 terminated;
(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 adequate opportunity to make representations before
the decision was made to terminate the right of residence.
[19]
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 make 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 jurisdiction 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 commencement
of the hearing of the application, this paragraph shall be
deemed to
have been complied with.
[20]
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, 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;
(d) 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 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;
(ii)
has voluntarily resigned in circumstances that do not amount to a
constructive dismissal in terms of the Labour Relations
Act.
(f)
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 date 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 seriously
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 dwelling 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.
[21]
11.
Order for eviction of person who becomes occupier after 4 February
1997
(1)
If it was an express, material and fair term of the consent granted
to an occupier in question, that
the consent would
terminate upon a fixed or determinable date, the Court may on
termination of
such consent by
effluxion of time grant an order for eviction of any person who
became an occupier
of the land in question
after 4 February 1997, if it is just and equitable to do so.
(2)
In circumstances other than those contemplated in subsection (1),
the Court may grant an order for
eviction in respect of
any person who became an occupier after 4 February 1997, if it is of
the opinion
that it is just and
equitable to do so.
(3)
In deciding whether it is just and equitable to grant an order for
eviction in terms of this section,
the court shall have
regard to—
(a) the period that the
occupier has resided on the land in question;
(b) the fairness of the
terms of any agreement between the parties;
(c) whether suitable
alternative accommodation is available to the occupier;
(d) the reason for the
proposed eviction; and
(e) the balance of the
interests of the owner or person in charge, the occupier and the
remaining
occupiers on the land.
[22]
Oranje
v Rouxlandia Investments
supra
n10 para 10.
[23]
Ibid.
[24]
Ibid.
[25]
Oranje
v Rouxlandia Investments
supra
n10 para 22.