IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Before the Honourable Flatela J
Delivered on: 10 March 2026
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) 0 F INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 10 MARCH 2026 S!GNATU
In the matter between:
HANS LINDE DU PLESSIS N.O.
PETRUS JOHANNES ERASMUS N.O.
CHRISTIAAN LOURENS DU PLESSIS N.O.
FREDERIK JACOBUS DU PLESSIS N.O.
and
SESHA TSHABALALA
SESHA TSHABALALA N.O.
PUSELETSO TSHABALALA
1
CASE NO: LCC 08R2025
MAGISTRATE CASE NO: 64/2020
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
Third Respondent
DIHLABENG LOCAL MUNICIPALITY
THE DEPARTMENT OF RURAL DEVELOPMENT
AND LAND REFORM
ORDER
Fourth Respondent
Fifth Respondent
1. The order of the Magistrate, Fouriesburg, is set aside in whole and is replaced
by the following order:
a. The matter is referred to mediation in terms of section 11{2)(b) of the
Extension of Security of Tenure Act 62 of 1997.
b. The mediation shall be concluded within six months of this order, unless
the mediator extends that period for good cause shown.
c. The Dihlabeng Local Municipality (Fourth Respondent) and the
Provincial Director of the Department of Land Reform and Rural
Development (Fifth Respondent) are ordered to participate meaningfully
in the mediation. They shall provide information regarding:
i. Housing assistance available to the First to Third Respondents.
ii. Availability of Suitable Accommodation
2. At the conclusion of mediation, the mediator shall prepare a report for filing with
the Magistrates' Fouriesburg Court, indicating:
a. Whether the parties reached an agreement, and the terms of that
agreement.
b. If the mediation does not lead to an agreement, the applicants may file
an application at the Fouriesburg Magistrates' Court. Such an application
shall be heard by a different Magistrate who has not presided over the
initial hearing and who has never overseen a criminal case. The
application must be accompanied by:
i. The mediator's report.
ii. Updated reports from the municipality and the Provincial Director
of the Department of Land Reform and Rural Development
regarding housing alternatives.
iii. The Probation officers' report
2
3. Pending the outcome of mediation and any subsequent court proceedlngs, the
First to Third Respondents shall be entitled to remain in occupation of the
dwelling on Farm La France.
4. There is no order as to costs.
JUDGMENT
FLATELA J
Introduction
[1 ] This is an automatic review of the eviction order issued by the Magistrate in
Fouriesburg, Free State Province, pursuant to section 19(3) of the Extension of
Security of Tenure Act 62 of 1997 (ESTA). The Magistrate granted an eviction order
against the First to the Third Respondents from the dwelling situated on FARM LA
FRANCE, described as the remaining extent of Farm La France No.378, District
Fouriesburg, Free State Province (the farm). The First Respondent and the Third
Respondent are a married couple who married on 28 February 2013 and have been
living together as husband and wife since then. The First and Third Respondents will
be referred to as Mr and Mrs Tshabalala.
[2] The Magistrate granted an eviction order against Mr and Mrs Tshabalala aft.er
finding that Mr Tshabalala contravened the provisions of section 6(3) of ESTA,
following a criminal court conviction for stealing beans from the Applicant's farm. The
Magistrate concluded that MrTshabalala committed such a fundamental breach of the
relationship between him and the persons in charge of the Farm, as outlined in
sections 10(1 ){a) to (c) of the Act, that it is practically irremediable and cannot be
restored in trust in any form or manner.
3
Issues for determination
[3] Central to this review is whether the termination of the Respondents' right of
residence was in accordance with section 8 of EST A, and whether an order of eviction
would be just and equitable under section 8, read together with the provisions of
section 10 of EST A
The Parties
[41 The First Applicant is Hans Linde Du Plessis N.O. The Second Applicant is
Petrus Johannes Erasmus N.O. The Third Applicant is Christiaan Lourens Du Plessis
N.O., and the Fourth Applicant is Frederick Jacobus Du Plessis N.O. They are
Trustees of the Brandwater Trust. The Brandwater Trust is the registered owner of the
Farms La France Nos. 378 and 379, since 1 August 2001. The Fourth Applicant,
Frederik Jacobus Du Plessis, the deponent of the Founding Affidavit, is a person in
charge of all farming activities and is authorised to make the application on behalf of
the Applicants.
[5J The First Respondent is Sesha Tshabalala, an adult male residing on the farm.
The Second Respondent is Sesha Tshabalala N.O, cited in his representative capacity
as father and guardian of their minor children, and the Third Respondent is Puseletso
Tshabalala, an adult female and the wife of Mr Tshabalala, residing on the farm. The
First to the Third Respondents will be referred to as the Respondents.
[6] The Fourth and Fifth Respondents, respectively, are the local municipality,
Dihlabeng Local Municipality, and the Department of Land Reform and Rural
Development, cited in accordance with section 9(2)(d) of EST A The Fourth
Respondent has a constitutional duty to provide alternative accommodation in the
event of the eviction of the First to Mrs Tshabalalas, whilst the Fifth Respondent is
responsible for ensuring the right of the First to Fifth Respondents to security of tenure.
ESTA mandates them to undertake both on-site and off-site developments to realise
this right. The Fourth and Fifth Respondents will be referred to as the State
Respondents.
4
Factual Background
[7] The facts are largely uncontested. Mr Tshabalala arrived on the farm with his
late parents in 1995 when he was two years old. His late parents worked on the farm
and were allocated the house where he and his siblings grew up. In 2013, he started
working on the farm as a gardener and was allocated a house. The terms of
employment were agreed verbally between the parties. He married Mrs Tshabalala in
the same year and has been living with her since then. They share their home with
their two minor children, aged 12 and 7.
[8] On 20 October 2016, the employment terms were formalised in writing. An
employment agreement was signed between Brandwater Boerdery, as the employer,
and Mr Tshabalala. The contract stated that he began working on 1 January 2014 as
a general worker earning a salary of R2,780. Regarding accommodation, it was
recorded that his tenure rights are directly linked to his service agreement, meaning
that if the employment ends, his tenure rights will also end. The agreement also
recorded that Mr Tshabalala's dependants' tenure rights are directly linked to the main
contract's service agreement.
[9] On 14 April 2018, Mr Tshabalala was summarily dismissed from employment
for misconduct, specifically theft of 10 bags of beans (valued at R7,500.00), in breach
of section 6(3)(b) of ESTA Mr Tshabalala referred the dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA).
[10] On 3 August 2018, Brandwater Boerdery (pty) Ltd and Mr Tshabalala reached
a settlement agreement under which the employer agreed to reinstate Mr Tshabalala
on the same terms and conditions that governed the employment relationship prior to
the dismissal on 14 April 2018. Mr Tshabalala was to report for duty on 6 August 2018.
[11] On 6 August 2018, the date of his reinstatement, Mr Tshabalala was served
with a notice of suspension, which he refused to sign. Following a disciplinary enquiry
with a notice of suspension, which he refused to sign. Following a disciplinary enquiry
held in his absence on 8 August 2018, Mr Tshabalala was found guilty of two charges:
5
dishonesty for stealing 10 bags of beans (valued at R7,500.00) on 14 April 2018, and
absence from work without permission from 15 April 2018 to 8 August 2018. He was
dismissed. Notably, his employer summarily dismissed Mr Tshabalala from 14 April
2018 to 6 August 2018, yet he was charged and found guilty of absence from work
during that period. Mr Tshabalala did not refer the issue of his second dismissal to the
CCMA.
[12] The Applicants launched the eviction proceedings against the Respondents.
The Applicants asserted that Mr Tshabalala was dismissed from his employment for
fundamental breach of the relationship under section 10(1)(c) of ESTA due to
misconduct (stealing 10 bags of beans), which Mr Tshabalala denied.
[13] I will first address the legislative framework, followed by a summary of the
evidence, analysis, and conclusion.
Legislative framework
[14] The Constitution is the starting point in all eviction cases. Section 25(6) of the
Constitution states that '(a) A person or community whose tenure of land is legally
insecure due to past racially discriminatory laws or practices is entltled, to the extent
provided by an Act of Parliament, either to legally secure tenure or to comparable
redress'. ESTA was enacted in terms of section 26(9)
[15] ESTA affords secure tenure, as envisaged in section 25(6}, to persons who
reside on land they do not own.1 The mischief of ESTA is not only about securing
tenure of ESTA occupiers, but "It is also about affording occupiers the dignity that
eluded most of them throughout colonial and apartheid regimes"2.
The Structure of ESTA
(16] The purpose of ESTA is to:
1 Daniels v Scribante and Another 2017 (4) SA 341 (CC) (Daniels) para 13.
2 Daniels supra n2 para 23.
6
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;
c. regulate the conditions and circumstances under which the right of persons
to reside in the land may be terminated;
d. 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.3
[1 7] 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.
[18J Chapter II of ESTA addresses measures to facilitate the long-term security of
tenure for occup iers. It provides that:
'4. Tenure grants
(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 implementation 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;
(d) To enable occupiers and tanner 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.'4
3 See the preamble and the individual chapter headings to Chapters II, Ill and IV.
4 Chapter II, Section 4 of the Extension of Security of Tenure Act 62 of 1997.
7
[19] Section 8 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. The provisions read as follows:
"(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.
(2)
(3)
(4)
[20} Section 9 of EST A deals with the limitations on evictions
"9. Limitation on eviction
(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;
8
(c) the conditions for an order for eviction in terms of section 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 Land Affairs, 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 Land Affairs 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."
[21] I now consider the parties' evidence. In motion proceedings, the affidavits filed
in the application constitute evidence.
The Applicants' evidence
FREDERJCK JACOBUS DU PLESSIS
[22] Mr Frederick Jacobus Ou Plessis was the Applicant's only witness. He stated
in his founding affidavit that he was in charge of all fanning activities on the farm and
that he was aware of the history of the occupiers and the Respondents.
[23) He testified that Mr Tshabalala was employed as a general worker on or about
20 October 2016. As part of his employment contract, the Third Applicant provided Mr
Tshabalala with a house, and his right to reside was directly linked to his employment;
he could only stay on the farm as long as he remained employed there. The contract
was translated into Sesotho, Mr Tshabalala's mother tongue.
9
[24] According to Mr Du Plessis, Mr Tshabalala, NO, and Mrs Tshabalala are not
occupiers in their own right. Her right of residence is "coupled to that of the 1st
Respondent".
[25] He stated that on or about 14 April 2018, MrTshabalala stole 10 bags of beans
without the necessary permission and therefore contravened the provisions of section
6(3) of the ESTA, as Mr Tshabalala stole property from the Applicants, which is a
serious breach of the Act.
[26] Mr Du Plessis averred that, after learning that Mr Tshabalala had stolen the
beans, he immediately took disciplinary action against him. He stated that Mr
Tshabalala was served with a copy of the disciplinary inquiry on 3 August 2018,
confirming that the disciplinary inquiry and hearing would take place on 8 August 2018.
However, Mr Tshabalala refused to sign the notice of disciplinary hearing. The
disciplinary hearing was held on 8 August 2018, and Mr Tshabalala was dismissed
from employment due to his misconduct.
[27] Mr Du Plessis averred that after the dismissal, Mr Tshabalala reported the
labour disputes to the CCMA. According to the Third Applicant, the matter has been
finalised, and there is no outstanding labour dispute between the parties; the
provisions of section 8(3) of ESTA are not applicable.
Just and Equitable Eviction and Alternative Accommodation
[28] Mr Du Plessis argued that the eviction is just and equitable because Mr
Tshabalala's right of residence, and thus the Second and Mrs Tshabalalas' derivative
rights, were lawfully terminated due to misconduct and the resulting breakdown of the
relationship.
[29] He stated that Mr Tshabalala is currently employed on a neighbouring farm, Mr
Viljoen's Farm, where suitable alternative accommodation is available, indicating they
will not be left homeless if evicted. The Applicants argue that they are incurring
unnecessary expenses by transporting new employees because the Respondents still
occupy the house built for employees, and the Applicants require the accommodation.
10
[30] Furthermore, the Third Applicant asserted that the "duty to supply alternative
accommodation to the First and Mrs Tshabalala vests with the Fourth and Fifth
Respondents [the Municipality and Department of Rural Development] and there is no
duty on the Applicants".
[31] The Third Applicant stated that the relationship between the Applicants and the
Respondents has deteriorated to such an extent that it cannot be restored at all or in
a practically feasible manner due to the actions of Mr Tshabalala.
Compliance with ESTA
[32] The Applicants stated that they served a Notice in terms of section 8(1)(e) and
section 9(2)(a){b) of ESTA on the Respondents on 18 November 2019, requesting
written representations as to why their right of residence should not be terminated.
Despite the notice being translated into Sesotho and served by the sheriff, no
response or written representations were received from the Respondents within the
15 days. A subsequent notice in terms of section 9(2)(d)(i} of ESTA, signed on 11
February 2020, informing the Respondents of the termination, was served on 9 March
2020, but the Respondents still refused to vacate the farm.
[33] The Notices were served on Dihlabeng Local Municipality (the Fourth
Respondent) and the Department of Rural Development & Land Reform (the Fifth
Respondent) in compliance with sections 9(2)(d)(ii) & (iii), and the Applicants confirm
that they were served via registered mail.
[34] A report by a Probation Officer, as contemplated under section 9(3) of ESTA,
was obtained.
11
The Respondent s' evidence
[35] Mr Tshabalala opposed the application on the basis that the termination of their
right to residence was not just and equitable in terms of section 9(2)(a)5, read with
section 8(1)6 of ESTA Secondly, Mr Tshaba!ala contended that the requirements of
sections 9(2) and 10 of ESTA have not been met. Therefore, the application ought to
be dismissed.
[36] Mr Tshabalala avers that he was only two years old when his family moved to
the farm. He lived with his parents until he was 19, when he began working on the
farm for the property's previous owner as a seasonal worker. He was employed as a
gardener on 27 November 2013 through an oral agreement. In 2016, the oral
agreement was converted into a written contract.
[37] He states that Mrs Tshabalala is an occupier under ESTA. He contends that
Mrs Tshabalala's right of residence came into effect in 2013 through the express or
tacit consent of the Applicants before Mr Tshabalala's employment contract
commenced.
[38] Mr Tshabalala denied stealing the beans as alleged. He says he was instructed
by the farm manager, Boeta, to assist his co-worker, Phakiso, in loading 10 bags of
50kg of beans. Phakiso was the driver of the van where these items were to be loaded.
5 Limitation on eviction
9. (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 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;
6 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;
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.
12
He claims it appeared to be a trap set by Mr Boeta and Mr Du Plessis. Mr Tshabalala
and Phakiso were arrested on 14 April 2018 and released on bail of R300. He was
summarily dismissed from work on the day of his arrest. He referred the unfair
dismissal to CCMA, and the matter was set down for hearing on 3 August 2018. He
testified that the Applicant tried to coerce him into withdrawing the dispute, but he
refused.
[39] The Applicants and Mr Tshabalala then reached a settlement agreement for his
reinstatement on 6 August 2018, which never materialised. He claims that on 6 August
2018, he reported for work in accordance with the settlement agreement but was
served with a notice of suspension pending a hearing in contravention of the
settlement agreement. According to Mr Tshabalala, he was never served with any
notice of suspension before the CCMA on 3 August 2018.
[40] Mr Tshabalala further denied that his employment was lawfully terminated; he
claims that the Applicants failed to adhere to the settlement agreement.
[41] Regarding the availability of the alternative accommodation, Mr Tshabalala
contended that he is employed part-time by a neighbouring farmer at one of that
farmer's farms in Clarens, which has no infrastructure. During the week, he stays in a
caravan with his co-workers. He states that he regards Farm La France as his home.
Factual disputes
[42] The following issues were several disputed facts, and the disputed facts were
referred to trial. The following issues were referred to trial.
i. Whether sections 10 and 11 of the ESTA are applicable in this
application.
ii. Whether Mr Tshabalala had contravened the provisions of section
6 (3) of EST A;
13
iii. Whether Mrs Tshabalala is occupying the property in her own
right or whether her right of residence is coupled to that of Mr
Tshabalala;
iv. Whether Mr Tshabalala made representations in terms of the
provisions of section 8(1) (e) of ESTA;
v. Whether the Applicants need the house that the First to Mrs
Tshabalalas are currently residing in to accommodate workers
employed by the Applicants.
vi. Whether Mr Tshabalala is permanently employed on a
neighbouring farm;
vii. Whether it would be just and equitable if the court grants the order
for eviction;
viii. Whether a suitable alternative accommodation is available where
the First to Mrs Tshabalalas can reside;
ix. Whether there is a duty on the Applicants to provide suitable
accommodation for the First to Mrs Tshabalalas.
Whether sections 10 and 11 of the ESTA are applicable in this application.
{431 The Magistrate found that section 10 is applicable to this eviction. Section 10
reads as follows
"1 O. 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 th~t the
breach is material and that the occupier has not remedied such breach;
(b) the owner or person in charge has complied with the terms of any
agreement pertaining to the occupier's right to reside on the land and has
fulfilled his or her 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;
(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
14
possible to remedy it, either at all or in a manner which could reasonably restore
the relationship; or
(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.
(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) lf-
(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.
a 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 lhe 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:
Whether Mr Ts habalala had contravened the provision s of section 6 (3) of EST A,
and whether the relation ship between Mr Tshabalala and the Applicants totally
deteriorated
and whether the relation ship between Mr Tshabalala and the Applicants totally
deteriorated
The Fourth Applicant's evidence (Hendrik Jacobu s Du Plessis)
[44] The Fourth Applicant, Hendrik Jacobus Du Plessis, was the Applicant's sole
witness. The Third Applicant testified that he and his brother received information that
15
Mr Tshabalala and his co-worker were about to remove the beans from the shed. They
caught them when they had finished loading the beans.
[45] He stated that on 3 August 2018, the Applicants and Mr Tshabalala reached a
settlement agreement stipulating that he would be reinstated on 6 August 2018. On 6
August 2018, Mr Tshabalala was served with a suspension letter, and on 8 August
2018, he was dismissed after being found guilty. Mr Du Plessis explained that they
require the house for their employees, as they are now using their van to fetch their
workers from townships. He further testified that there is no trusting relationship
between them. He testified that Mr Viljoen employed Mr Tshabalala on a neighbouring
farm and has alternative accommodation for Mr Tshabalala's family.
(46] During cross-examination, Mr Du Plessis explained that he and his brother
instructed their former farm manager, Boeta, to direct Mr Tshabalala and his colleague
to load wire from the storeroom for transport to another farm. Boeta gave Phakiso, the
driver, the key to the storeroom. Mr Du Plessis and his brother Christiaan received
information that Mr Tshabalala and his colleague were planning to steal beans from
the shed and load them onto the wire. Mr Du Plessis and his brother decided to hide
in the shed and watch as Mr Tshabalala loaded wire and ten SO-kilogram bags of
beans. When they were about to finish loading the beans, Mr Du Plessis and his
brother appeared, and when confronted, Mr Tshabalala and his colleagues apologised
in Sesotho.
[47] Mr Du Plessis reported the theft to the police, and Mr Tshabalala was charged
with theft, found guilty, and sentenced to twelve months, suspended for four years.
Mr TshabaJala's evidence
[48] Mr Tshabalala testified that on Saturday, 14 April 2018, the Farm Manager, Mr
Boeta, approached him while he was working in the garden and asked him to assist
his co-worker, Mr Phakiso Mphuti, with loading beans, wire, and poison, then deliver
his co-worker, Mr Phakiso Mphuti, with loading beans, wire, and poison, then deliver
these to another farm. He agreed. Tshabalala and Phakiso drove together to the shed
and began loading the beans first, then the wire, while searching for the poison, Mr .
Chris Du. Plessis emerged from the shed where he had hidden and asked what they
16
were doing. They explained that they had been sent by Mr Boeta to load beans, wire,
and poison and to offload them to another farm. He then accused them, as blacks, of
stealing from him and threatened to call other white farmers to come and beat them a
little. He locked them in the storeroom and left. Later, he returned with Silent Night
Security officers and, after a while, the CID. They were taken to the police station by
CID, arrested, and subsequently released on bail. He referred his unfair dismissal case
to the CCMA. Mediation at the CCMA took place, and on 3 August 2018, the employer
tried to coerce him to withdraw the case upon payment of R1000 (One Thousand
Rands), an offer he refused. He and his employer reached a settlement agreement
under which he would be reinstated. When he reported to work, Mr Du Plessis wanted
him to sign documents without reading them. This document was a notice of
suspension. He refused to sign it, but he took it to someone who assisted him with his
CCMA referral. (The notice of suspension informed him that he was suspended from
duty, with full pay, effective from the date of the notice, due to the serious allegations
of misconduct pending against him; secondly, that he will soon receive a notice of his
disciplinary hearing, and he must leave the premises as discussed during the CCMA
procedure.)
[49) That person advised him that the document he was given to sign stated that Mr
Tshabalala had agreed during the CCMA proceedings to vacate the premises; he
denied ever agreeing to vacate the farm during the CCMA proceedings.
[50] Mr Tshabalala testified that on 6 August 2018, when he resumed work pursuant
to the CCMA settlement agreement, he was given notice of suspension.
[51] He then received a phone call from an official at the department in Bethlehem,
who instructed him to deliver the document to their offices, which he did. He stated
that the department's official told him he would assist him in the eviction from the farm.
that the department's official told him he would assist him in the eviction from the farm.
[52] Regarding the alternative accommodation offered, MrTshabalala also objected
to both houses provided by his current employer. The first house was a one-room
dwelling that leaked and had no toilets. The second house was unsafe because it was
isolated from farm workers, located in the bush, surrounded by trees, and far from the
community. He also stated that moving would negatively impact his children's
schooling due to transport and distance issues, which could require them to change
17
schools. During cross-examination, Mr Niemand, for the Applicant, highlighted that the
alternative accommodation was close to transport and facilities. However, Mr
Tshabalala denied knowing about transport availability and argued that the locations
were unsafe and isolated. He stated that the offered accommodation was unsuitable
because it was unsafe, as it was detached from the farm community and villages, and
surrounded by trees. During the week, he works in Clarens, leaving his family on the
farm, where he resides with his coworkers in a caravan. He has three children born in
2023, 2018 and 2024. His wife was unemployed, having previously worked for the
Applicant as a seasonal worker.
[53] That was the end of the evidence; each party closed its case.
The Probation Officer's report
[54] A Probation Officer's Report (Report) was provided to the Magistrate, upon
request, in terms of section 9(3) of EST A. The report paid regard to the following:
a. The availability and suitability of alternative accommodation to the
respondents.
b. Indication on how the constitutional rights of the respondents be affected
by an eviction order, including the right to education of the child.
c. Undue hardship which an eviction order would cause the respondents.
d. Recommendations.
[55] The Probation Officers' report made the following findings based on the
information provided by the respondents.
a. Mr Tshabalala came to stay and work on the farm with his parents, now
deceased, at the age of 2 and has lived on the farm since then. He was
allocated a house when he started working on the farm in 2014.
b. The house where Mr Tshabalala resided with his family prior to his
employment is currently occupied by his siblings.
c. The main conflict between Mr Tshabalala and Mr Chris Du Plessis arose
from allegations of theft of items from the farm's storeroom.
18
d. Mr Tshabalala was dismissed from his employment following a guilty
verdict for misconduct.
[56] With regard to the availability of alternative accommodation, the report recorded
that the Respondents have no alternative accommodation, and that the Department
of Land Reform and Rural Development and Dihlabeng Local Municipality have no
suitable alternative accommodation as there are no available sites.
[57] The probation officer recommended that the eviction not be granted. She
suggested that the Respondents be allocated a portion of the farm, which would help
ease the conflict between the applicants and the Respondents; however, if the court
deemed it necessary to evict the Respondents, reasonable terms must be put in place
to provide them with suitable accommodation.
[58] The Municipality did not file any report.
The Magistrate's Judgment
[59] The Magistrate began his judgment by outlining the evidence presented by the
Applicants and the Respondents. From there, the Magistrate, without properly
assessing the evidence, proceeded to address other issues referred to trial. The
evidence before him clearly demonstrated two mutually contradictory versions
concerning the incident of 14 April 2018, the events of 3 August 2018 before the
CCMA, and the conditions of alternative accommodation. The Magistrate ignored the
evident dispute of facts in these events. It is possible to resolve the factual dispute by
considering the probabilities of both versions, evaluating whether they are plausible,
reasonable, and consistent, using the appropriate technique, as neatly summarised
by Nienaber JA in Stellenbosch Farmers' Winery Group Ltd and Another v Martell et
Cie and Others 2003 (1) SA 11 (SCA) at paragraph 5.
'The technique generally employed by court in resolving factual disputes of this nature
may conveniently be summarised as follows. To come to a conclusion on the disputed
issues a court must make findings on ( a) the credibility of the various factual witnesses;
19
(b) their reliability; and (c) the probabili1ies. As to (a), the court's finding on the
credibility of a particular witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary factors, not necessarily in
order of importance, such as (i) the witness' candour and demeanour in the witness
box, (ii) his bias, latent and blatant, {iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or put on his behalf, or with established
fact or with his own extracurial statements or actions, {v} the probability or improbability
of particular aspects of his version, (vi) the calibre and cogency of his performance
compared to that of other witnesses testifying about the same incident or events. As
to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or observe the event
in question and (ii) the quality, integrity and independence of his recall thereof. As to
(c), this necessitates an analysis and evaluation of the probability or improbability of
each party's version on each of the disputed issues. In the light of its assessment of
(a), (b), and (c), the court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility findings compel it in
one direction and its evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter. But when all factors are
equipoised probabilities prevail.'
[60] The Magistrate neglected to use the appropriate methodology to reconcile the
conflicting evidence presented. He failed to conduct a thorough evaluation of the
evidence from both parties; he just relied on the guilty verdict in the related criminal
evidence from both parties; he just relied on the guilty verdict in the related criminal
case, stating that the Criminal Court, in lts discretion, had determined that Mr
Tshabalala was guilty and that there had been a breach of the provisions set out in
6(3) of ESTA, thus violating Mr Tshabalala's right a fair hearing guaranteed in section
34 of the Constitution. This raises a pertinent question: why did the Magistrate refer
certain disputed facts for trial if he intended to base his conclusion primarily on the
verdict from the criminal proceedings? This is irregularity.
20
(61] Dealing with proper consideration of evidence, Madlanga ADCJ writing for the
unanimous court in Vodacom (Ply) Ltd v Makate and Another 1 expressed himself as
follows:
[45] The duty of proper consideration is an integral component of the fair hearing right.
The founding constitutional value of the rule of law and section 34 of the Bill of Rights
require, in my vjew, that a court should have regard to all material evidence and all
material submissions bearing on the issues it must decide. And the court must bring its
reasoning to bear on those material issues and reach a conclusion on them. The
evaluation of the evidence and reasoning may-as I say- be erroneous, but there cannot
be a fair hearing in compliance with the mle of law and section 34 if proper
consideration of the matter before the cou11 has not occurred.
[ 46] The close bond between the fair hearing right and the rule of law was
highlighted by this Court in De Beer N. 0. where it was held:
"This section 34 fair healing right affirms the mle oflaw, which is a founding
value of our Constitutfon. The right to a fair hearing before a comt lies at the
heart of the rnle of law. A fair hearing before a court as a prerequisite to an
order being made against anyone is fundamental to a just and credible legal
order. Courts in our country are obliged to ensure that the proceedings before
them are always fair."3
[62] Dealing with the provisions of section 10(1)(c) of ESTA, Schippers JA, writing
for the majority in Nimble Investments (Pty) Ltd v Malan,9 said the following:
7 (2025] ZACC 13
8 De Beer N.O. v North-Central Local Council and South-Central Local Council [2001) ZACC 9; 2001 (11) BCLR
1109 (CC); 2002 (1) SA 429 (CC) at para 11.
9 (2021] ZASCA 129; [2021] 4 All SA 672 (SCA); 2022 (4) SA 554 (SCA)
Para 46-47.
21
"In determining whether an occupier has committed a fundamental breach of the
relationship envisaged ins 10(1)(c) of ESTA. it seems to me that the following factors
must be considered. The history of the relationship between the parties prior to the
conduct giving rise to the breach. The seriousness of the occupier's conduct and its
effect on the relationship. The present attitude of the parties to the relationship as
shown by the evidence."10
(63] The judgment does not deal with these factors. He relied on the verdict of the
criminal court. The Magistrate failed to resolve the glaring factual dispute, which
defeated the purpose of referring the issues to trial. On this point alone, the
Respondents' eviction cannot be confirmed.
Whether Mrs Tshabalala is an occupier in her own right or whether her right is
tied to that of Mr Tsha balala
[64] In terms of ESTA, Consent means the express or tacit consent of the owner or
person in charge of the land in question, and, in relation to a proposed termination of
the right of residence or eviction by a holder of mineral rights, includes the expressed
or tacit consent of such holder. An Occupier means a person residing on land which
belongs to another person, and who, on or after February 1997 or thereafter, had
consent or another right in law to do so, ...
[65) Consent to reside on land is dealt with in Section 3 of EST A Subsection
(1) states that consent to an occupier to reside on or use land shall only be
terminated in accordance with the provisions of section 8.
(2) ..
(3) ..
(4) For the purposes of civil proceedings in terms of this act, a person who has
continuously or and openly resided on the land for a period of one year shall
be presumed to have consent unless the contrary is proved.
10 Id at para 47.
22
(5) For the purposes of civil proceedings in terms of this act, a person who has
continuously and openly resided on land for a period of three years shall be
deemed to have done so with the knowledge of the owner or person in
charge.
[66} The Applicants testified that Mrs Tshabalala is not an occupier in her own right,
but her right of residence is linked to that of her husband, Mr Tshabalala. The
Probation Officer also shared the Applicants' sentiments.
[67] In his supplementary opposing affidavit, Mr Tshabalala stated that Ms
Tshabalala is his wife, to whom he has been married since 28 February 2013. He
further argued that Mrs Tshabalala has been living with him since they got married.
She is an occupier under EST A; she has consent to reside on the farm since then.
During his oral testimony, Mr Tshabalala testified that the Applicant previously
employed Mrs Tshabalala as a seasonal worker.
[68] In their reply, the Applicants admitted that Ms Mrs Tshabalala has been
residing with Mr Tshabalala in the property but denied that she had consent to do so.
[69] Relying on the Applicant's argument, the Magistrate concluded that Mrs
Tshabalala's right of residence was secondary to that of Mr Tshabalala. The
Magistrate found that the Applicant's evidence was uncontested. This finding is
untenable in light of the Constitutional Court judgment in Klaase and Another v van
der Merwe N.O. and Others.11 In this case, Mrs Klaase appealed this court's decision
confirming the eviction order against her. This order was granted after Mr Klaase's
right of residence was terminated following a disciplinary inquiry.
[70] The Constitutional Court addressed inter-arlia the definition of an occupier
under ESTA and the presumption of consent under sections 3(4) and 3(5) of ESTA.
Matojane J writing for the majority held as follows:
11 2016 (6) SA 131 (CC).
23
"(57] The Land Claims Court's finding that the EST A occupier must be
residing with "apparent consent" and "without any other right to do so" is not
supported by the wording of ESTA which requires only that an occupier must
reside with "consent or another right in law to do so". The restricted meaning
of consent is not justified. The breadth of the concept "consent" in section 3
of ESTA is not insignificant. This section deals with the concept of consent,
in greater detail. In terms of section 3(1 ), the consent of an "occupier" to
reside on or use land shall "only" be terminated in accordance with the
provisions of section 8 of EST A.
[58] Section 8 falls under Chapter IV of ESTA that deals with "termination of
right of residence and eviction". It provides that an occupier's right of
residence may be terminated on any lawful ground, provided that the
termination is just and equitable, having regard to certain relevant factors.
These factors include: the fairness of any agreement or provision of law on
which the owner or person in charge relies; the conduct of the parties giving
rise to the termination; the interest of the parties, including the comparative
hardship to the owner or occupier concerned and 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 representation before the decision was made to terminate the right
of residence.
[59] Section 3(3) focuses on the substance rather than the form of consent,
providing that consent shall be effective regardless of whether the occupier
is required to obtain any other official authorisation required by law for the
occupier's residence. Additionally, ESTA provides that for the purpose of
civil proceedings in terms of EST A, a person who has continuously and
openly resided on land for a period of (a) one year shall be presumed to
have consent to do so unless the contrary is proved12 and (b) three years
have consent to do so unless the contrary is proved12 and (b) three years
12 Section 3{ 4).
24
shall be deemed to have done so with the knowledge of the owner or person
in charge.13
[71] At paragraph 66, 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 EST A.
It demeans Mrs. Klaase's rights of equality and human dignity 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 secured'14
(72] Given that Mrs Tshabalala has been residing openly on the farm since 2013,
with the Applicants' knowledge, she is an occupier under ESTA She is entitled to the
protections afforded by ESTA.
Termination of Mr Tshabalala's right of residence
[73) On 18 November 2019, the Applicants served on the First and Mrs Tshabalala
via the Sheriff a "Notice in terms of sections 8(1)(e) and 9(2)(a) and (b)" to provide
reasons as to why their right to residence on the Farm should not be terminated. They
were given 15 (Fifteen) days' Notice to make representations, failing which, their right
of residence will be terminated.
(74] Tshabalala testified that he delivered the notices to someone who helped him
with the CCMA case, and that person assisted him in responding to the notices. Even
though the notices were translated into Sesotho, based on those responses, it appears
that the person who assisted him may not have had legal qualifications; the responses
are off the mark and don't make sense.
13 Section 3(5).
14 Ibid para 66.
25
[75) Section 8(1)(e) mandates procedural fairness, ensuring the occupier has a
genuine opportunity to make representations before any decision to terminate their
right to reside. The Constitutional Court in Snyders and Others v De Jager and
Others15 held that:
'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).'16
[76) In the following paragraphs, the learned Judge held that
'If a person has a right of residence on someone else's land under ESTA, that person
may not be evicted from that land before that right has been terminated. In other words,
the owner of the land must terminate the person's right of residence before he or she
can seek an order to evict that person. However, it must be borne in mind that the
termination of a right of residence is required to be just and equitable in terms of s 8( 1)
of ESTA.'17
[77] Notably, the resolution to evict the Respondents was unanimously adopted on
15 July 2019 to initiate eviction proceedings against them and to authorise the Third
Applicant to sign all relevant documentation required to effect the Eviction in the notice
of suspension given to Mr Tshabalala. He was told to leave the farm. If it is not already
obvious, inviting the Respondents to make written or oral submissions as to why their
right to reside should not be terminated on the farm, once a resolution is reached,
appears to be merely a formality to comply with ESTA provisions.
15 2017 (3) SA 545 (CC) ( Snyders).
16 Ibid para 56.
17 Snyders supra n16 para 67.
26
[78] Dealing with the hybrid approach of combining the Notices in terms of sections
8(1) (e) and 9(2), Barnes AJ in Cosmopolitan Projects Johannesburg (Ply) Ltd v Leoa
& Others, 18 Barnes AJ expressed herself as follows.
'What is immediately apparent is that this is a Notice in terms of section 9(2}(d) of
ESTA, which purports also to terminate the first to fiftieth respondents' rights of
residence in terms of section 8 of ESTA. As Mr Botha, who appeared for the thirty-fifth
to fiftieth respondents, correctly submitted, this sort of hybrid approach is
impermissible. A section 9(2}(d) Notice is correctly and appropriately issued only after
an ESTA occupier's right of residence has been validly and fairly terminated in terms
of section 8.'19
[79] The jurisprudential authority from these cases is that ESTA supports a two
stage eviction process. rather than a hybrid approach. A notice of termination of
residence must be issued first, followed by the eviction notice under section 9(2) of
ESTA
Whether it will be just and equi table for the court to grant the eviction
[79] Section 10(3) provides that lf-
(a) suitable alternativ e 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.
a 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
113(2019] ZALCC 1.
19 Ibid para 34.
27
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.
[80] Applicants argued that they needed the house the Respondents are occupying
to accommodate their employees; they say they now transport the employees from
the township to work when the Respondents occupy the dwelling.
[81) The Magistrate stated that, due to his earlier finding that there was a breach of
trust between the parties, he was of the view that it would be unjust for the court to
refuse or dismiss the application.
[82) In Kanhym (Ply) Ltd v Simon Botha Mashiloane, 20 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 applicants initially contended that they needed the dwelling to house their
other employees and then changed their position to say they needed it to expand their
farming operations. The Magistrate accepted this without an enquiry into how the
respondents' occupation of the farm hampered the applicants' farming operations.
[83] Dodson J in paragraph 12 continued and stated that, '/ do not agree that a
mere averment 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 avaHabfe for occupation by another person employed
or to be employed by the applicant. It was necessary that the applicant set out details
or to be employed 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 identity
20 1999 (2) SA 55 (LCC).
28
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 unavaJJability of that particular dwelling and the serious
prejudice which the owner's operation or operations will suffer. No such proof was
offered by the applicant.'
AvalJability of suitable alternative accomm odation
[84] Mr Tshabalala testified that the alternative accommodation offered by Mr
Viljoen is unsafe and isolated from other farm workers, relying on Rouxlandia 2
Ltd21the Magistrate held that despite cracks observed by the court on the wall of the
house, it cannot be expected that the condition of that house would be identical to the
current house. The Magistrate said that in Rouxlandia 2, the Supreme Court of Appeal
held that ESTA was not enacted to provide security to an occupier in the house of their
choice.
[85] In Rouxlandia 2 Ltd, 22 The matter concerned the relocation of the occupiers
from one house to another on the same land owned by the same person. In that case,
the occupier argued that the house to which they were relocated was smaller than the
house the appellant was occupying. Therefore, the relocation would impair his dignity.
Nichols J, writing for the Court, said:
'However, what of the situation where a relocation does not impact on the human
dignity of the occupier? The Constitutional Court has acknowledged that the right of
residence conferred bys 8 of ESTA is not necessarily tied to a specific house. The
protection afforded by those parts of ss 5 and 6 of ESTA, on which the appellants rely,
is to ensure that an occupier will not be subjected to inhumane conditions violating
human dignity. To this extent, an occupier's right to resist relocation is protected. But
these sections do not amount to a blanket prohibition on relocation under any
circumstances. If indeed the relocation were to impair an occupier's human dignity,
circumstances. If indeed the relocation were to impair an occupier's human dignity,
then the provisions of s 5 and s 6 would apply, and the occupiers could invoke their
21 Orange and Others v Rouxlandia Investments (Pty) Ltd 2019 (3) SA 108 (SCA) (Roux/;mdia 2).
22 Orange and Others v Rouxfandia Investments (pty) Ltd 2019 (3) SA 108 (SCA) (Rouxlandia 2).
29
constitutional rights. This does not mean that all relocations necessarily suffer the
same fate. "23 (footnotes omitted)
"Suitable alternative accommodation is defined in s 1 of ESTA as 'alternative
accommodation which is safe and overall not less favourable than the occupiers'
previous situation.' Rouxlandia has offered alternative accommodation. It is not a
manager's house but a smaller 5-roomed house. It has been newly painted and has
running water, a flush toilet, and an inside bathroom. The roof is corrugated iron and
is leak-free. The criteria for suitability have, in my view, been fulfilled. In any event, Mr.
Orange does not object to the alternative accommodation on the basis that it is
unsuitable. He complains that it does not befit the status of a manager. He wants a
'bigger and better' house.'24 (footnotes omitted)
(86] The learned Judge continued in the following paragraph and stated:
'EST A was not enacted to provide security of tenure to an occupier in the house of his
or her choice. The primary purpose of ESTA, as set out in the preamble, is: 'To provide
for measures with State assis1ance to facilitate long-term security of land tenure; to
regulate the conditions of residence on certain land; to regulate the conditions on and
the circumstances under which the right of persons to reside on land may be
terminated; and to 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.'25
[87) Rouxlandia is distinguishable. In this case, Mr Tshabalala has rejected the
alternative accommodation because it does not feel safe, given the crack in the wall,
and because 1t is surrounded by trees and isolated from the farm community.
[88] "Suitable alternative accommodation" is defined in section 1 of ESTA as
'alternative accommodation which is safe and overall, not less favourable than the
'alternative accommodation which is safe and overall, not less favourable than the
occupiers' previous situation, having regard to the residential accommodation and land
for agricultural use available to them prior to eviction , and suitable having regard to-
23 Oranje and Others v Rouxlandia Investments (Pty) 2019 (3) SA 108 para 18.
24 Rouxlandia 2 supra n21 para 20.
25 Ibid para 21.
30
(a) The reasonable needs and requirements of all the occupiers in the
household in question for residential accommodation, land for agricultural
use, and services.
(b) their joint ending abilities; and
(c) the need to reside in proximity to opportunities for employment or other
economic activities if they intend to be economically active
[89] The Magistrate failed to consider the underlying justifications for the resistance
and instead wrongly applied an incorrect legal principle to the circumstances. He did
not consider the reasonable needs of the Respondents as outlined in a, b, and c of
the definition of a suitable alternative accommodation. The occupier retains the right
to reject alternative accommodation that they consider unsafe and that undermines
their dignity.
[90] Dealing with the matter of alternative suitable accommodation, Sachs J in Port
Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 {CC) held that:
'Section 26(3) evinces special constitutional regard for a person's place of
abode. It acknowledges that a home is more than just a shelter from the
elements. It is a zone of personal intimacy and family security. Often it will be
the only relatively secure space of privacy and tranquillity in what (for poor
people in particular) is a turbulent and hostile world. Forced removal is a shock
for any family, the more so for one that has established itself on a site that has
become its familiar habitat. As the United Nations Housing Rights Programme
report points out:
"To live in a place, and to have established one's own personal habitat
with peace, security and dignity, should be considered neither a luxury,
a privilege, nor purely the good fortune of those who can afford a decent
home. Rather, the requisite imperative of housing for personal security,
privacy, health, safety, pro1ection from the elements and many other
attributes of a shared humanity, has led 1he international community 10
recognise adequate housing as a basic and fundamental human
right.n25
recognise adequate housing as a basic and fundamental human
right.n25
26 PE Mun;c;pality supra n27 Ibid para 17.
31
Probation officers report
[91) In his judgment, the Magistrate notes that the concerns expressed by the
Probation Officer have been addressed by the Applicant, who maintained that Mr
Vijoen offered the alternative accommodation. It does not avail the Magistrate to
cherry-pick the Probation Officers1 report. The Magistrate did not engage with other
issues raised in the Probation officer's report at all.
[92J Dealing with the purpose of the reports, Ngcukaitobi AJ said in Drakenstein
Municipality v CJ Ci/lie en Seun (Ply) Ltd. 27
There is a clear reason why the consideration of these reports is entrenched
in statute: the reports must (a) indicate the 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. lt can be seen from 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' .28
Absence of the Municipality Report
[93] It is trlte that the Municipality has a constitutional duty to provide suitable
alternative accommodation. However, the Municipality did not file its report concerning
the availability of suitable alternative accommodation. The Magistrate did not call on
the Municipality to file such a report.
[94] Both the Constitutional Court and the Supreme Court of Appeal are of the view
that a municipality's obligations extend, at the very least, to providing a Court with all
of the information necessary to establish when an eviction would be just and equitable.
However, according to Drakenstein Municipality v Hendricks and Others [2009}
ZAWCHC 228, there does not seem to be a general duty on munlcipalities to report in
27 [2016) ZALCC 9.
28 Ibid para 15.
32
all cases. The Court reasoned that relevance is an important consideration in this
exercise, and it is, of course, ultimately for the court to decide what is relevant or not.
[95] The court can always call upon the municipality to provide relevant information
when necessary for a proper decision in a particular case. In this particular case, the
court failed to call the municipality's report.
Meaningful engagement
[96] ESTA enjoins the parties to the eviction to engage meaningfully. In Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2010 (3) SA
454 (CC) at paragraph 338 it was held that:
'The Constitutional Court introduced the concept of "meaningful engagement" between
the occupiers and the City as a major pre-condition for determining whether an eviction
order would be just and equitable. In this way the conundrum of how to balance
competing claims is partly resolved by getting the parties themselves to find functional
solutions according to their respective needs and interests, with the court establishing
the parameters of what is just and equitable'.
[97] l n Joe Slovo, the Constitutional Court at paragraph 244 held that
'The goal of meaningful engagement is to find a mutually acceptable solution to the
difficult issues confronting the government and the residents in the quest to provide
adequate housing'.
[98] While emphasising the need for meaningful engagement in the realisation of
socio-economic rights, the Constitutional Court has also developed it as a remedy in
cases where socioeconomic rights have been infringed or are threatened29 .
[99] In DiedericksJO, this Court at paragraph 10 affirmed that the requirement of
meaningful engagement applies to all eviction applications, whether they are in terms
29 Chenwi, L. (2011) "Meaningful engagement' in the realisafion of socio-economic rights: the South
African experience". Southern African Public Law, 26(1) p131.
African experience". Southern African Public Law, 26(1) p131.
30 Diedericks v Univeg Operations South Africa (Ply) Ltd t/a Hefdervue Estates (LCC18/2011) (2011]
ZALCC.
33
of PIE or ESTA, and whether they are in respect of state-owned or privately -owned
land. It held that:
'All decisions in these matters dealing with evictions -whether they be evictions carried
out in terms of PIE (PE Municipality, Joe Slovo) or whether they be in terms of the
National Building Regulations and Building Standards Act (Olivia Road) or ESTA
(Lebombo) or whether they be on private property (Olivia Road, PE Municipality,
Lebombo) or on state land (Joe Slovo), point to a requirement that there must be
engagement by the parties. The engagement is clearly directed at informing the parties
concerned and the local authority (even if not a party) in a manner so as to limit
homelessness - accordingly, in most cases, an eviction order would not be competent
in the absence of some form of engagement.'
[1 00J It is settled that in the determination of the Application for eviction in terms of ESTA,
the Court must engage in a consecutive two-stage enquiry. In Aquarius Platinum (SA) (pfy)
Ltd v Bonene and Others (Aquarius)31the Supreme Court of Appeal held as follows:
' ... (the need to protect the rights of residence of vulnerable persons) indicate
a two-stage procedure. Section 8 provides for the termination of 1he 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.32 Section
two months' written notice of the intention to obtain an eviction order.32 Section
31Aquarius Platinum (SA) (Ply) Ltd v Bonene and Others [2020] ZASCA 7; 2020 (5) SA 28 (SCA) para
13.
32 Limitations on Evictions
Section 9(2):
(d) the owner or person in charge has, after the termination of the rig hi 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 Land Affairs, 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 ihe 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
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8(2) must of course be read withs 8(1) and provides for a specific instance of
what may constitute a just and equitable ground for the termination of a right of
residence.'
[101] The court in this case did not conduct the t\No-stage enquiry; it simply relied on
the criminal court verdict, and courts are not permitted to apply ESTA passively -
they must conduct this enquiry. Given the circumstances of this matter, I believe the
eviction order was not just and equitable; therefore, the Magistrate's order in
Fouriesburg should be set aside.
[102] ESTA was amended by the ESTAAmendmentAct06 of 2023, which came into
force on 1 April 2024. The Act introduced section 11 (2)(b), stating that a court
considering an eviction may consider whether the parties attempted mediation.
[103] Dealing with the requirement of mediation introduced in the ESTA Amendment
Act, the full Bench of this court in Marais NO v Daniels33 held as follows:
"The benefits of mediation are compelling. By encouraging amicable
settlements, it relieves the burden on overextended courts, offers a more cost
effective alternative to prolonged litigation and enables swift resolution of
disputes. Mediation encourages constructive dialogue and mutual
understanding, often preserving long-standing relationships between parties.
Since 1994, it has always been Parliament's intention that mediation play an
important role in the resolution of land disputes. In all three primary statutes
which fell under the jurisdiction of the erstwhile Land Claims Court, the
Restitution Act, ESTA and the labour Tenants Act, provision was made for
mediation even prior to the adjudicative process.34 Under ESTA, s 21 has
always provided for mediation on request to the Director-General of DLRRD
given lo the occupier, the mllnicipality and the head of the relevant provincial office of the Department
of Land Affairs not less than two months before the date of the commencement of the hearing of the
application, this paragraph
application, this paragraph
shall be deemed to have been complied with.
33 Marais NO v Daniels (2025] ZALCC 38.
34 Section 21 of ESTA, section 13 of the Restitution Act and section 18(3) of the Labour Tenants Act
35
whether prior to or during litigation. Section 21, which lies at the heart of the
mediation requirements introduced by the EST A amendments, provides:
2 l. Mediation
(1) A party may request the Director-General to appoint one or more persons with
expertise in dispute reso]ution to facilitate meetings of interested parties and to attempt
to mediate and settle any dispute in terms of this Act.
(2) The Director-General may, on the conditions that he or she may determine, appoint
a person referred to in subsection (1): Provided that the parties may at any time, by
agreement, appoint another person to facilitate meetings or mediate a dispute, on the
conditions that the Director-General may determine.
(3) A person appointed in tenns of subsection (1) who is not in the foll-time service of
the State may, from moneys appropriated by Parliament for that purpose, be paid such
remuneration and allowances as may be determined by the Minister in consultation with
the Minister of Finance for services perfonned by him or her.
(3A) The Director-General may refer the disputes contemplated in this section to the
Board for mediation or arbitration as contemplated in section 15C(l)(d).
(4) AH discussions, disclosures and submissions which take place or are made during
the mediation process shall be privileged, unless the parties agree to the contrary.'
(104] It is true that, prior to the amendment to ESTA, the parties were not required to
attempt mediation before initiating eviction proceedings. However, there is nothing in
the ESTA Act that indicates it would be inappropriate for the court to refer the matter
to mediation, considering the benefits of mediation.
[105] Given the lack of meaningful engagement between the stakeholders and the
absence of a municipal report, I believe the parties' challenges can be effectively
addressed through mediation rather than through a lengthy litigation process. This
approach would facilitate direct communication among the parties, especially involving
approach would facilitate direct communication among the parties, especially involving
the state respondents. Additionally, the municipality and the Provincial Director of the
Department of Land Reform and Rural Development should be required to clarify the
support and resources they can offer to resolve these issues.
[106] In the circumstances, the following order is made:
1. The order of the Magistrate, Fouriesburg, is set aside in whole and is replaced
by the following order:
36
a. The matter is referred to mediation in terms of section 11 (2)(b) of the
Extension of Security of Tenure Act62 of 1997.
b. The mediation shall be concluded within six months of this order, unless
the mediator extends that period for good cause shown.
c. The Dihlabeng Local Municipality (Fourth Respondent) and the
Provincial Director of the Department of Land Reform and Rural
Development (Fifth Respondent) are ordered to participate meaningfully
in the mediation. They shall provide information regarding:
i. Housing assistance available to the First to Third Respondents.
ii. Availability of Suitable Accommodation
2. At the conclusion of mediation, the mediator shall prepare a report for filing with
the Magistrates' Fouriesburg Court, indicating:
a. Whether the parties reached an agreement, and the terms of that
agreement.
b. If the mediation does not lead to an agreement, the applicants may file
an application at the Fouriesburg Magistrates' Court. Such an application
shall be heard by a different Magistrate who has not presided over the
initial hearing and who has never overseen a criminal case. The
application must be accompanied by:
i. The mediator's report.
ii. Updated reports from the municipality and the Provincial Director,
Department of Land Reform and Rural Development regarding
housing alternatives.
iii. The Probation officers' report
3. Pending the outcome of mediation and any subsequent court proceedings, the
First to Third Respondents shall be entitled to remain in occupation of the
dwelling on Farm La France.
4. There is no order as to costs.
Flatela L
Judge of the Land Court
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