IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE NO.: LANC: 27R2024
MAGISTRATE’S COURTS NO: 404/2022
In the matter between:
LALIBELA MANAGEMENT SERVICES PROPRIETARY
LIMITED Applicant
and
ZAMEKA PAYI First Respondent
MZWABANTU MAGWADI Second Respondent
MAKANA MUNICIPALITY Third respondent
DEPARTMENT OF RURAL DEVELOPMENT
AND LAND REFORM Fourth Respondent
JUDGMENT
MAJOZI AJ:
1. On 6 November 2024, the Magistrate Court for the District of Makana (“the
Magistrate Court”), granted an order evicting the first respondent from
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the farm known as Farm 300, Remaining Extant Portion 0, situated in the
district of Sarah Baartman, in the Eastern Cape Province (“the Farm”). In
its order, the Magistrate Court directed the first respondent to vacate the
Farm. If she failed to vacate the Farm before 31 December 2024, the
Sheriff of the Court was authorised to carry out the eviction from 3 January
2025.
2. The second respondent, who is the first respondent’s sibling, is the only
party that opposed the application. The eviction application in relation to
the second respondent was dismissed and there was no order as to costs.
3. The eviction order against the first respondent, was presumably granted
in terms of section 9 of the Extension of Security of Tenure Act 62 of 1997
(“ESTA”).
4. It is clear that the eviction order against the first respondent was granted
on the sole basis that, the first respondent, did not file any affidavit
opposing the application. The first respondent also neglected to file a
confirmatory or supporting affidavit, making common cause with the
second respondent.
5. This matter is now before me in terms of sections 19(3) of ESTA as an
automatic review. Section 19(3) of ESTA permits this Court in automatic
reviews, to grant the following orders: to substitute the order of the
Magistrate Court in whole or in part, set it aside in whole or in part, confirm
it in whole or in part or remit the case to the Magistrate Court with
directions to deal with any matter.
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6. For reasons that will appear hereinunder, the order I grant, partly sets
aside the order of the Magistrate Court evicting the first respondent and
all occupiers of the Farm under her from the Farm. The order of the
Magistrate Court, albeit granted on an unopposed basis, was erroneously
granted as there is substantial non-compliance with both section 8 and 10
of ESTA. The fact that the first respondent failed to oppose this application
did not, clothe the relief sought by the applicant, with lawfulness. Even
when matters are unopposed a case for the relief sought still has to be
made out.
7. It is trite that courts can only grant orders that are lawful as they are also
bound by the rule of law.
8. The Constitutional Court held that an order that is contrary to the
applicable legal context is neither competent nor proper. It is precluded by
the principle of legality in section 1(c) of the Constitution. Courts do not
grant illegal orders because they too are bound by the principle of legality
and the rule of law is supreme under the Constitution.
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9. The order evicting the first respondent from the farm is inimical to the
mandatory procedural and substantive prescripts that an owner of a farm
or person in charge must follow when seeking to evict an occupier. The
applicant failed to make out a case for the relief it sought against both the
first and second respondents. The order of the Magistrate Court has to
therefore be disturbed.
1 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) para 55;
Also see Eke Parsons 2016 (3) SA 37 (CC) at paras 25-29
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THE BRIEF COMMON CAUSE FACTS
10. As set out in the judgment of the Magistrate Court, the facts of this matter
are common cause.
11. It is common cause that:
11.1. the applicant is not the owner of the Farm, it is the person in
charge of the Farm and therefore had the necessary legal
standing to bring the application;
11.2. the first and second respondents, are siblings and descendants
of the late Daniel and Linah Magwadi;
11.3. the first and second respondents’ parents, were employed on the
Farm and thus worked and lived on the Farm for close to six
decades;
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11.4. the first and second respondents were born and raised on the
Farm;
11.5. the first and second respondents, were as of, 4 February 1997,
occupiers;
11.6. when the applicant, sought to terminate the first and second
respondents’ occupation of the Farm, he only issued a notice in
2 The second respondent alleges that, h is paternal grandparents were also
employed on the farm and h is father was born on the Farm. The second
respondent also alleges that, he and the first respondent were born, raised
and worked on the Farm.
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terms of section 8(1)(e) of ESTA, on the first and second
respondents’;
11.7. the first and second respondents were not given an opportunity to
make representations prior to the applicant taking steps to give
them a notice of eviction in terms of section 9 of ESTA;
11.8. the letters that were issued by the applicant in terms of section
8(1)(e) of ESTA, were received by both the first and second
respondents; and
11.9. without any further process pursuant to the issuing of the letters
in terms of section 8(1)(e) and 9 of ESTA, the applicant instituted
the eviction application.
COMPLIANCE WITH SECTION 8 OF ESTA AND THE DECISION OF THE
MAGISTRATE COURT
12. In the light of the abovementioned common cause facts, the Magistrate
Court at paragraph 43 of its judgment, held that since it was common
cause that the applicant did not comply with section 8 of ESTA, that fact
alone would bring the matter to finality. It further held that since there was
non-compliance with section 8 of ESTA , there would be no need to deal
with section 9 and section 10 of ESTA. The fact that the applicant had not
complied with section 8 of ESTA, led to the dismissal of the application
against the second respondent.
13. Section 8 of ESTA states as follows:
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“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 effective opportunity
to make representations before the decision was made
to terminate the right of residence…”
14. The Magistrate Court, referred to the Constitutional Court judgment of
Snyders and Others v De Jager and Others ,3 where the Constitutional
Court, indicated that, section 8(1) of ESTA makes it clear that the
termination of a right of residence must be just and equitable both on a
substantive level as well as on a procedural level. The requirement for the
substantive fairness of the termination is captured by the introductory part
to section 8(1) of ESTA which requires the termination of a right of
residence to be just and equitable.
15. The applicant failed to comply with this step and this was explained by the
second respondent in her opposing affidavit and it is also borne out by the
applicants own founding affidavit and annexures thereto. This fact alone,
3 Snyders and Others v De Jager and Others 2017 (3) SA 545 (CC) at para 56
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as explained by the Magistrate Court, justified the dismissal of the
application against the second respondent.
16. The incongruity of the Magistrate’s Court’s order is that the applicants’
letters purporting to terminate the first and second respondents’ right of
residence are a mirror image of each other. If the letter is deficient in
relation to the second respondent, it remained deficient as it relates to the
first respondent. The fact that the first respondent failed to oppose the
application did not regularise the applicant’s non-compliance with section
8 of ESTA.
17. A failure to afford the first respondent an opportunity to make
representations, is as the Constitutional Court decreed, a failure at a
substantial and procedural level. The first respondent ought to have been
invited to make representation prior to the termination of her right of
residence. This was not done for both the first and second respondents
and the application should have failed against both of them, not just the
second respondent.
SECTION 9 OF ESTA WAS ALSO NOT COMPLIED WITH
18. Further, section 9(2)(c) of ESTA dealing with limitation on eviction states
that, the court may make an order for eviction of an occupier if the
conditions for an order for eviction in terms of section 10 or 11 have been
complied with.
19. Section 10 of ESTA provides that, an eviction order may only be granted
to persons such as the first respondent, if the occupier has breached
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section 6(3) of ESTA and the Court is satisfied that the breach is material
and that the occupier has not remedied such a breach. It further provides
that, the order of eviction may be granted if:
“(b) the owner or person in charge has complied with the terms of any
agreement pertaining to the occupier’s right to reside on the land
and has fulfilled his or her duties in terms of the law, while the
occupier has breached a material and fair term o f the agreement,
although reasonably able to comply with such term, and has not
remedied the breach despite being given one calendar month’s
notice in writing to do so;
(c) the occupier has committed such a fundamental breach of the
relationship between him or her and the owner or person in charge,
that it is not practically possible to remedy it, either at all or in a
manner which could reasonably restore the relationship;
(d) 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 terms of the Labour Relations
Act; or…”
20. In its founding affidavit, the applicant, simply alleged that the eviction was
sought because it had issued a notice in terms of section 8(5) of ESTA. It
then averred that the first and second respondents have access to suitable
alternative accommodation and this fact justified the eviction relief sought.
The latter was disputed by the second respondent.
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21. So, even if the requirements of section 8 had been complied with by the
applicant, none of the requirements set out in section 10 of ESTA were
met by the applicant.
22. As a result of the aforementioned procedural and substantive deficiencies,
the Magistrate Court should not have granted the eviction application
sought by the applicant against the first respondent. The applicant had
failed to make out a case for the eviction of the first and second
respondents.
23. It is therefore necessary that, the order of the Magistrate Court, granted
on 6 November 2024, be set aside in part by also dismissing the
application in relation to the first respondent. The effect is that the
application for eviction fails.
24. In the premises, the following order is made:
24.1. the application in respect of the first and second respondents is
dismissed.
24.2. There is no order as to costs.
_____ ______
M MAJOZI
Acting Judge of the Land Court
of South Africa, Randburg
18 February 2026