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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Case Number: LCC: 22R2023
Magistrates’ Court Case Number: 831/2019
Before: Bishop AJ
Delivered on: 11 March 2026
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 11 March 2026
SIGNATURE
In the matter between:
CROOKES BROTHERS LIMITED First Applicant
CROOKES BROTHERS SOUTH AFRICA (PTY) LIMITED Second Applicant
and
ZOLA ERIC MKOLOLO First Respondent
CYNTHIA O’REILEY Second Respondent
ALL OTHER PERSONS WHO RECEIVED OCCUPATION
THROUGH THE 1ST RESPONDENT Third Respondent
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ORDER
1. The eviction order granted by the Magistrate is reviewed and set aside.
2. There is no order as to costs.
JUDGMENT
BISHOP, AJ
[1] This is an automatic review in terms of s 19(3) of the Extension of Security of
Tenure Act 62 of 1997 (ESTA). The provision requires this Court to review every
eviction order granted by a Magistrate under ESTA. This Court must then confirm,
set aside, substitute or remit.
[2] It flows from an application to evict the Respondents brought in the Caledon
Magistrates’ Court seven years ago. The application was unopposed and so only the
Applicants’ version was presented.
[3] The Applicants are the owner and person in charge of Ou Werf Farm near
Caledon. In January 2010, the First Applicant concluded an employment contract
with the First Respondent , Mr Mkololo. Although the agreement never expressly
afforded Mr Mkololo accommodation as part of the consideration for his services, it
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includes this clause: “The provision of accommodation is subject to employment
within the Company and the right of occupation will fall away on termination of this
Contract.” It seems implicit in the contract – and the Applicants accept – that Mr
Mkololo’s employment agreement conferred on him a right of residence. There is no
direct statement of when he took up that right, but presumably it was some time after
January 2010.
[4] The Second Respondent, Ms O’Reiley, lived with Mr Mkololo as his partner.
When she moved onto Ou Werf does not appear from the application. Her right to
reside on the property was connected to Mr Mkololo’s , and therefore to his
employment.
[5] The employment relationship lasted until 2014. On 1 February 2014, the
police “raided” Mr Mkololo’s home on Ou Werf and discovered an “excessive amount
of liquor”. There was a total of 62.25 litres of beer . Mr Mkololo was charged with
“trafficking in alcohol” and, on 4 February 2014 paid an admission of guilt fine of
R5000.
[6] The police informed a manager on Ou Werf of the charge. The employer then
brought disciplinary charges against Mr Mkololo. An enquiry was held on 18
February 2014. The evidence against him was the police’s search and his admission
of guilt. Mr Mkololo claimed he did not sell the beer, but that it was for him and his
friends to drink. He admitted to signing the admission of guilt, but claimed the police
officers threatened to beat him and to lock him up if he did not sign.
[7] The chairperson of the enquiry concluded that there was sufficient evidence to
show that Mr Mkololo had been selling alcohol from his room on Ou Werf, and that
this was a dismissible offence. The employer resolved to dismiss him on 10 March
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2014. The notice included a statement that Mr Mkololo had “one month to vacate the
premises”. There is no indication that a separate decision was taken on whether or
not to terminate Mr Mkololo’s right of residence, or that he was given an opportunity
to make representations on, following his dismissal, his right to reside should be
terminated.
[8] Despite his dismissal and the demand that he vacate within one month , the
Applicants allowed Mr Mkololo to reside on the farm for more than a year before they
took steps to re move him. It would take four more years before they brought an
application for his eviction. This is the series of events:
[8.1] On 11 May 2015, the First Applicant delivered a notice to Mr Mkololo
repeating that his “accommodation on [Ou Werf] was subject to the
employment relationship”, and that “this right has expired with the termination
of your service”. It afforded Mr Mkololo another 30 days to vacate Ou Werf.
[8.2] More than a year later, on 26 August 2016, the Applicants’ attorneys
delivered another letter to Mr Mkololo. The notice was personally served by
the Sheriff on 28 September 2016. It recorded the history and then stated that
his “right to reside or occupy the Property is hereby cancelled”. He was,
again, given 30 days to vacate.
[8.3] Another nine months passed. On 24 May 2017 the Applicants’
attorneys sent a letter to Ms O’Reiley. It informed her that Mr Mkololo’s
residence had been terminated on 26 August 2016 and afforded her 30 days
to vacate the property. It did not afford her an opportunity to make
representations. The Sheriff personally served the notice on Ms O’Reiley on 5
July 2017.
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[8.4] The application to evict was brought two and a half years later, in
October 2019. The Sheriff’s return of service reports that when he or she
attempted to serve the application on Mr Mkololo on 26 November 2019, Ms
O’Reiley was present and reported that he was “in Worceste r (T.B.) Hospital.
[Mr Mkololo] last September month at given address”. Anton Alexander – a
person working in human resources on Ou Werf “also said that he has seen
[Mr Mkololo] long last.”
[9] None of these delays are explained. There may well be explanations. Perhaps
the Respondents promised to move, and the Applicants wished to avoid costly
litigation. But without an explanation , the delay of more than five years from the
termination of Mr M kololo’s employment to the application for eviction raises
questions about the nature of the relationship between the parties , their current
circumstances, and the basis for the Respondents’ continued presence on Ou Werf.
[10] In the founding affidavit, the deponent – Mr Prowse, the General Manager of
Ou Werf – states that the Respondents’ rights of residence “were cancelled based
on the fact that [Mr Mkololo is] no longer employed on the farm and therefore have
no right to occupy the dwelling any further.” There is no indication of when that
decision was taken, or any indication that the Applicants invited representations from
either occupier before taking it.
[11] The Applicants claim that the continued occupation of the house “causes a
shortage of housing”. The details are never explained. Given the delay in bringing
the eviction application, and the Applicants’ apparent acceptance of subsequent
delays in the determination of that application, it is difficult to believe the prejudice is
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substantial. Mr Prowse also states that he was informed that Mr Mkololo was
working on a farm called Fruitways.
[12] Mr Mkololo and Ms O’Reiley did not oppose the application. As they explain,
they were never referred to lawyers who could assist them.
[13] Ms Jevu of the Department of Agriculture, Land Reform and Rural
Development prepared a report in terms of s 9(3) of ESTA on 16 October 2020 – a
year after the eviction application was served . She reported that Mr Mkololo and Ms
O’Reiley are life partners and reside on Ou Werf with two minor children who attend
a nearby primary school. The names and ages of the two children did not appear
from the record. Ms Jevu reported that there was no accommodation available near
the school the two children attended.
[14] At that point Mr Mkololo was working for a security company in Worcester,
where he rented a shack, but he returned to Ou Werf on off-days and weekends. He
earned approximately R3 000 per month. Ms O’Reiley had been working as a
seasonal worker at Graymead until August 2020 . Ms Jevu recommended that the
eviction should not be granted until the end of the school year in order not to affect
the children’s schooling.
[15] The Applicants served the eviction application on the Theewaterskloof
Municipality. But it did not provide a report on the availability of alternative
accommodation.
[16] Shortly after the s 9( 3) report was filed, the Applicants filed a notice of set
down for a hearing on 27 November 2020 in the Caledon Magistrates’ Court . When
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the Sheriff served the notice on Mr Mkololo, Ms O’Reiley informed him that “he has
left the given address”.
[17] The Respondents did not appear in Court on 27 November 2020, an d the
matter was postponed to 22 January 2021. The Respondents were again absent on
that date. The Magistrate requested the Applicants’ attorney to provide written
argument, which he did.
[18] In his written argument, the attorney (Mr Erasmus) contended that the
Applicants “gave the Respondents ample time since date of termination on 10 March
2014 until 26 August 2016 to make representation as to why their right of occupation
should not be terminated”. Then “after receiving no representation the Applicants
approached their attorney of record to request that they issue a formal notice”
terminating their right of residence. However, as I return to below, there is no
evidence that the Applicants invited representations.
[19] The Magistrate gave judgment on 15 June 2022. After recording the facts and
the content of the Department’s report , she determined that it would be just and
equitable to evict. She did not consider whether the Applicants had, after terminating
Mr Mkololo’s employment, taken a separate decision to terminate his or M s
O’Reiley’s employment. The Magistrate held only that, as the dismissal was in terms
of the LRA, section 8 of ESTA was satisfied . Presumably to align with the
recommendation that the eviction should be postponed to the end of the school year,
she set the date of the eviction as 15 December 2022.
[20] The order was referred to this Court for automatic review in terms of s 19(3) of
ESTA. It seems that only occurred nearly a year later on 9 June 2023. The matter
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was originally allocated to a different judge, and was allocated to me on 12 May
2025 – nearly three years after the Magistrate’s order.
[21] The delays in this case are obviously unsatisfactory. There were delays on all
sides. The Applicants delayed in bringing the application. The Department delayed in
filing a report in terms of s 9(3). The Magistrate delayed in giving judgment. There is
an unexplained delay in the referral to this Court. And then this Court delayed for two
years in dealing with the matter.
[22] All of this meant that by the time I received the file nearly five and half years
after the application was launched, and three years after the eviction order was
granted, the facts had likely changed. Were Ms O’Reiley and her children still
occupying the farm? Was Mr Mkololo still living primarily in Worcester? What of the
children? If any of the Respondents is still residing on the farm , what are their
circumstances? Is Mr Mkololo still working and, if so, where and what is he earning?
Has Ms O’Reiley found work? Are the children still attending the same school?
[23] All these facts may well have changed significantly since the most recent
information in the s 9(3) report filed more than five years ago in October 2020. Yet it
is impossible to responsibly consider the review without those facts. That is why this
Court’s rules envisage a speedy process of automatic review. Rule 35A(1) requires
magistrates to “allow not less than 15 days for the review process in determining” the
dates for vacation and eviction.1 Rule 35A requires magistrates to “forthwith transmit”
the record and the reasons to this Court.
1 It is unclear what purpose this rule is meant to serve in light of s 19(5) of ESTA which provides that
any order of eviction is suspended pending automatic review. Whatever date a magistrate sets can be
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[24] Confronted with an automatic review where the most recent facts were nearly
five years old, the Court needed updated information. I could not responsibly decide
the review without knowing the current facts. Rule 35A(2) empowers this Court to
seek further information before it decides an automatic review. In particular, Rule
35A(2)(b) allows the Court to “afford any party an opportunity to deliver submissions
or further submissions on specific issues”. This power is vital to ensure that evictions
are not improperly granted, and also to deal with situations such as the present when
delays mean the facts may have changed.
[25] On 13 June 2025, I issued directions requiring the Applicants to file an
affidavit answering the following questions . Were the Respondents still present on
Ou Werf? If so , the Applicants were invited to provide any further evidence they
deemed relevant. If not, the Applicants were required to explain the circumstances
under which the Respondents vacated Ou Werf. I afforded the Applicants until 23
May 2025 to respond.
[26] Mr Cloete – the farm manager – duly filed an affidavit. He confirmed that Mr
Mkololo had left the farm in 2020, and that Ms O’Reiley and her two minor children
still occupied the house. He also confirmed that Ms O’Reiley’s right to reside on Ou
Werf flowed from Mr Mkololo’s employment, and that her right was terminated in the
notice sent on 24 May 2017. Ms O’Reiley, he attested, did not contribute to the
growth of the business in any way.
[27] In light of these representations, and because I still had concerns about the
impact of an eviction (particularly on the children) , and whether the original eviction
given effect to only if this Court reviews and upholds the eviction order before that date. But that too
indicates that the review process must be prompt.
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order should have been granted, I instructed the Registrar to approach Legal Aid
South Africa to see if they would be able to represent Mr Mkololo and Ms O’Reiley.
[28] Legal Aid South Africa agreed to assist, and contacted Mr Mkololo and Ms
O’Reiley. They agreed to instruct Legal Aid South Africa. The Court is deeply grateful
to Legal Aid South Africa for its assistance. It is always difficult to assess
applications where only one side of the story is presented. Where the result is a
potential eviction this Court should always take steps to obtain legal representation
for occupiers. Without, the risk of accidental injustice rises exponentially.
[29] I then issued further directions affording the Respondents an opportunity to
file submissions or affidavits, and granting the Applicants a chance to respond.
[30] On 20 November 2025, t he Respondents filed an affidavit deposed to by Mr
Mkololo, and confirmed by Ms O’Reiley, setting out their circumstances, and the
reasons why the eviction should not be confirmed on review . The following
averments are relevant:
[30.1] Mr Mkololo began living on Ou Werf in 2008 when he started working
there. He was permanently employed in 2010.
[30.2] Since 2023, he has worked as a security guard. He needs to live close
to his work and so resides in a shack in Zwlethemba Township in Worcester.
Although the details are not spelled out, it seems he was working elsewhere
in 2019 when the eviction application was originally brought. He does not
deny that he was not living on Ou Werf at that point.
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[30.3] However, he claims he has not “relocated or permanently left the farm”.
His children still live on Ou Werf, and he visits them when he is able. He says
Ou Werf is still his “permanent place of residence”.
[30.4] The children have not relocated to Zwelethemba because there is not
enough space, and he does not wish to take them away from the schools that
are close to the farm.
[30.5] Ms O’Reiley moved to Ou Werf in 2009, and resided with Mr Mkololo
as his partner. She, too, no longer lives on Ou Werf. For the last three months
she has been working f or Moltino Fruitways as a general worker. She lives in
Xola Naledi Township in Grabouw, where she was offered space in a shack.
She returns to Ou Werf on weekends to see the children. The Respondents
claim that Ms O’Reiley “has not relocated or permanently left the farm. It is still
her primary place of residence.” She has moved only so she c an be closer to
her work.
[31] Who are the children who now live on the farm?
[31.1] Nolubabalo O’Re iley is 21 -years-old. She is Ms O’Reiley’s daughter
from another relationship. She is unemployed and takes care of both Mr
Mkololo and Ms O’Reiley’s other children, and two of her own minor children.
The names, ages and circumstances of her minor children are not set out.
[31.2] L[...] O[...] is the child of Mr Mkololo and Ms O’Reiley . He is 17 -years-
old. He has a heart condition, which has caused him to discontinue school. It
seems there are also difficulties transp orting him to school as he cannot be
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unattended due to his condition. He is the recipient of a social security grant .
It is unclear if this is for his disability, or if it is a child grant paid to his parents.
[31.3] O[...] O[...] is 14 -years-old. In 2025, s he was attending Groenberg
Primary School in Grabouw. Presumably she now attends high school. She
also receives a social security grant. I presume this means her parents
receive a child grant.
[32] Mr Mkololo says he was not aware of the eviction application. As I explained
earlier, it was not served on him as he was not at Ou Werf. It appears that Ms
O’Reiley did not inform him about the application. She was not informed how to
obtain legal representation, and that is why they did not take steps to secure any.
[33] The Applicants elected not to file any further affidavits or submissions in
response to this affidavit.
[34] The question now is wh at this Court should confirm, set aside, substitute or
remit. I conclude that the eviction should be set aside as it was not justified when it
was made and must therefore be set aside . But I do not do so for the reasons the
Respondents advance.
[35] The Respondents argue that this Court should review the grant of the eviction
order for several reasons.
[36] First, Mr Mkololo admits signing the contract of employment but claims that
his right to reside on the farm, “was based on consent from the landowner, operating
separately from [his] employment.” Accordingly, so the argument goes, termination
of his employment did not justify termination of his right to reside. Mr Mkololo does
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not explain on what other basis the owner granted him consent to reside on the land.
His claim that it was not linked to his employment is not plausible.
[37] Second, he disputes the fairness or legitimacy of his dismissal. He claims the
alcohol was for his friends and neighbours, not for sale. It matters not. He admits he
was dismissed. He attempted to approach the Commission for Conciliation Mediation
and Arbitration, but did so late. It is not for this Court or the Magistrates’ Court to
second-guess the outcome of his dismissal.2
[38] Third, he argues that they have “no suitable alternative accommodation
available to us so an eviction would render us homeless.” That is not true for Mr
Mkololo and Ms O’Reiley. Th ey have accommodation elsewhere. It may be true for
the Nolubabalo and her children, L[...] and O[...]; but there is not enough information
to know. Given the conclusion I reach, I do not need to address that issue.
[39] Fourth, the Respondents point to the long period they have resided on Ou
Werf, as well as the delays since his dismissal as reasons they should not be
evicted. These would be relevant factors in considering whether eviction was just
and equitable. But I do not need to consider them for the reasons that follow.
[40] The real problem with the eviction application is that the Applicants never took
a separate decision to terminate the Respondents’ right of residence. In the
disciplinary decision, and all the correspondence that followed, termination of the
right to reside was assumed to follow automatically from the termination of Mr
Mkololo’s employment. But that is not our law.
2 ESTA ss 8(2) and (3). See also Belle Vallee Vineyards (Pty) Ltd and Another v Lakey and Others
[2025] ZALCC 27 at para 60.
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[41] In Snyders,3 in almost identical circumstances, the Constitutional Court
upheld an appeal against an eviction order because the landowner had wrongly
“assumed that, once she had terminated [the occupier’s] contract of employment,
that automatically terminated his right of residence as well. ”4 But, as Zondo J
explained, “that was not necessarily the position. The right of residence needed to
be terminated on its own in addition to the termination of the contract of
employment.”5 Until the right of residence was separately terminated, the occupier
“could not be required to vacate the house.”6
[42] The same reasoning applies here. In the decision dismissing Mr Mkololo he is
also required to vacate. No separate consideration is given to whether his dismissal
justified the termination of his right of residence.
[43] The closest the Applicants come are the letter s to Mr Mkololo dated 26
August 2016, and to Ms O’Reil ey dated 24 May 2017. The first records the history
and then states: “We give you notice that your right to reside or occupy the Property
is hereby cancelled”. But that decision was taken without affording Mr Mkololo an
opportunity to make representations on whether his right to reside should be
terminated or not. It was, in truth, merely a repetition of the existing position that the
Applicants believed that the right to reside terminated automatically as a result of Mr
Mkololo’s dismissal.
3 Snyders and Others v De Jager and Others [2016] ZACC 55; 2017 (5) BCLR 614 (CC); 2017 (3) SA
545 (CC).
4 Ibid at para 69.
5 Ibid at para 71.
6 Ibid.
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[44] I do not accept, as argued by the Applicants’ attorney in the Magistrates’
Court, that the Respondents had an opportunity to make represe ntations on whether
their right to reside should be terminated. The Applicants never invited to make
representations. There is no evidence that the Applicants indicated they were open
to representations. The evidence shows that the Applicants believed that Mr
Mkololo’s dismissal ineluctably led to the termination of his right of residence. The
later letter merely repeated the existing position. Without some new process, it could
not constitute a new decision. Because the Applicants never sought representations,
there was never a point where the Respondents could have known that the
Applicants were open to persuasion. That is, in my view, because they were not.
[45] Section 8(1)(e) of ESTA lists, as one of the factors in determining whether the
termination of a right of residence was just and equitable, “ 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. ”
An opportunity to make representations is not an absolute requirement. 7 But where,
as here, the absence of any request for representations shows that there was, in
truth, no separate decision to terminate the right of residence, it is a weighty if not
decisive factor.
[46] This case is different from Belle Vallee .8 There the landowner had also
wrongly taken the position that the termination of employment equaled loss of right of
residence. They were then advised of their error and issued a new notice calling for
7 Belle Vallee (n 2) at paras 64-6.
8 Belle Vallee (n 2).
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representations about why the right of residence should be terminated. That was
sufficient because it showed an awareness that a separate decision was required,
and informed the occupiers that they could influence the decision. Here there is no
evidence that the Applicants reconsidered their initial decision; they merely repeated
it.
[47] There is an additional flaw in the eviction application; it treats Ms O’Reiley as
a mere appendage of Mr Mkololo. Klaase9 makes it clear that ESTA occupiers
whose consent to reside flows from another person’s employment do not
automatically lose their right to reside when that person is dismissed. The owner
must make a separate determination whether to terminate their right to reside.
[48] Did that happen? The 24 May 2017 letter to Ms O’Reiley is similar to the 26
August 2016 letter to Mr Mkololo. It records that Mr Mkololo was dismissed, and that
Ms O’Reiley’s right to reside “flows from” her relationship with him. It then states:
“We give you notice that your right to reside or occupy the Property is hereby
cancelled”. It never asks for representations or suggests that her fate might be
different from Mr Mkololo’s. The termination of her right of residence was assumed to
flow automatically from Mr Mkololo’s dismissal.
[49] None of this should be read to mean that the Applicants may not have been
entitled to terminate Mr Mkololo and Ms O’Reiley’s right of residence. They may well
have been. But they should have considered that as a separate question from
dismissal. The evidence shows that they did not do so.
9 Klaase and Another v van der Merwe N.O. and Others [2016] ZACC 17; 2016 (9) BCLR 1187 (CC);
2016 (6) SA 131 (CC).
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[50] All of this means that the eviction order should not have been granted in 2022.
The only result is to set aside the eviction order that was granted. The passage of
time cannot cure the fatal flaw in the original eviction application.
[51] That does not mean that Mr Mkololo and Ms O’Reiley now have a permanent
right of residence on Ou Werf. They do not. It means only that the eviction
application was premature. The Applicants were required to properly terminate the
rights of residence prior to seeking eviction. They failed to show that they had done
so. As they had not established that they terminated Mr Mkololo or Ms O’Reiley’s
right of residence, they could also not have terminated their children’s right of
residence.
[52] But now it is 2026, and the position is different , and time may have achieved
what litigation did not.
[53] Both Mr Mkololo and Ms O’Reiley have left the farm. They do not fully explain
the basis on which they occupy the shacks in Xola Naledi and Zwelethemba. Mr
Mkololo rents his shack, while Ms O’Reiley says only that she has “been offered a
space in a shack”. It is not clear if she is a lessee, or merely being allowed to live
there out of generosity or charity.
[54] It seems open to debate whether Ou Werf is still their permanent home, and,
therefore, that they are still “occupiers” under ESTA. ESTA defines “ occupier” as “a
person residing on land which belongs to another person ”. ESTA did not previously
define “reside”. But the SCA held in 2009 that the word means that “a person has his
home at the place mentioned. It is his place of abode, the place where he sleeps
after the work of the day is done. … It does not include one's weekend cottage
unless one is residing there. … The essence of the word is the notion of '’permanent
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home.’” 10 ESTA was amended in 2018 to define “reside” as: “to live at a place
permanently”. That reflects the pre-existing judicial interpretation.11
[55] It seems to me an open question whether Mr Mkololo and Ms O’Reiley still
reside permanently on Ou Werf. If they do not, then they are not occupiers. If a
person is not an “occupier”, then they are not entitled to the protection from eviction
offered by ESTA.
[56] But the fact that Mr Mkololo and Ms O’Reiley are not occupiers does not
mean that their children and grandchildren are not occupiers. On the facts before
me, they permanently reside on Ou Werf. Whether they meet all the requirements to
be occupiers under ESTA is a separate question.
[57] All of this is merely to say that it remains open to the Applicants to take
whatever steps they deem appropriate, including terminating any existing rights of
residence, and bringing any new applications for eviction. My decision merely sets
aside the order granted in respect of the 201 9 eviction application because, at that
time, the Applicants had not lawfully terminated the Respondents’ right of residence.
[58] I make the following order:
[58.1] The eviction order granted by the Magistrate is reviewed and set aside.
[58.2] There is no order as to costs.
10 Kiepersol Poultry Farm (Pty) Ltd v Phasiya 2010 (3) SA 152 (SCA) at para 9, quoting with approval
Barrie NO v Ferris 1987 (2) SA 709 (C) at 714F.
11 See Sandvliet Boerdery (Pty) Ltd v Mampies and Another 2019 (6) SA 409 (SCA) at para 19.
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_________________
M BISHOP
Acting Judge of the Land Court
APPEARANCES:
For the Applicant: Conradie Incorporated
For the Respondents: Legal Aid South Africa, Stellenbosch