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[2026] ZALCC 16
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GD Kilpin Estate (Pty) Ltd v Van der Vywer and Others (LCC75/2019) [2026] ZALCC 16 (1 April 2026)
IN
THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE
NO: LCC 75/2019
(1)
REPORTABLE: Yes☐/ No ☐
(2)
OF INTEREST TO OTHER JUDGES: Yes☐ / No ☐
(3)
REVISED: Yes ☐ / No ☐
Date:
01 April 2026
Before:
MALULEKE AJ
Heard
on: 3 FEBRUARY 2026
Delivered
on: 1 APRIL 2026
In the matter between:
GD
KILPIN ESTATES (PTY)
LTD
Applicant
and
CARL
VAN DER
VYWER
First Respondent
CHRISTA
VAN DER VYWER
Second Respondent
ANGELINE
VAN DER VYWER
Third Respondent
THEEWATERSKLOOF
MUNICIPALITY
Fourth Respondent
ORDER
The
application is dismissed.
There
is no order as to costs.
JUDGMENT
MALULEKE AJ
Introduction
[1] This is an
application for the eviction of the First to Third Respondents
(Respondents) from the farm Boesmansrug, described
as Remainder of
Portion 8 (Boesmansrug) on the Farm Vygeboom No 86, situated in the
Division of Calendon (“the farm”),
within the
jurisdiction of the Theewaterskloof Municipality, Western Cape. The
eviction application is instituted in terms of section
10 of the
Extension of Security of Tenure Act 62 of 1997 (“ESTA”).
Parties
[2] The Applicant
is GD Kilpin Estates (Pty) Ltd, the owner of the farm. Mr Phil Denis
Kilpin (“Mr Kilpin”) is
the Director of the Applicant. He
is the deponent to the founding affidavit.
[3] The First to
Third Respondents are, Carl van der Vywer (“Mr van der Vywer”),
Christa van der Vywer (“Mrs
van der Vywer”), and Angeline
van der Vywer (“Angeline”), respectively.
[4] The Fourth
Respondent is the Theewaterskloof Municipality
.
[5] The Department
of Land Reform and Rural Development has not been joined to these
proceedings.
Brief background
[6] Mr van der
Vywer was born on the farm in 1975 to Mrs Patronella van der Vywer,
deceased in 2010 and Mr Lodewyk van der
Vyver, deceased in 2012, who
were both employed on the farm. From 1975 to 1998, Mr van der Vywer
lived on the farm with his parents
and the Second and Third
Respondents. Mr and Mrs van der Vywer, have resided on the land prior
to 28 February 1997.
[7] Mr van der
Vywer was employed by the Applicant on the farm from 1991, at the age
of fifteen (15) years. He signed a Contract
of Employment with the
Applicant in 1994 and was allocated a house on the farm in 1998,
wherein himself, Mrs van der Vywer and
Angeline moved to.
[8] In 2005, the
farm was leased out to More Son Trust for a period of seven (7)
years, as a result of the aforegoing, Mr
van der Vywer had to sign a
seven year employment contract with More Son Trust who employed him
as spray tractor driver. After
the expiry of the seven years period,
in 2012, the Applicant recommenced with his farming activities and
entered into a new employment
contract with Mr van der Vywer.
[9] In 2015, Mr van
der Vywer qualified as a truck driver with Code 14 and was elevated
to the position of a truck driver.
Mr van der Vywer’s income
was increased however, he did not sign a new contract as the
Applicant stated that the 2012 contract
of employment remains
effective.
[10]
Mr van der Vywer’s Contract of Employment was terminated on 18
September 2017 for operational requirements (retrenchment).
Prior to
terminating Mr van der Vywer’s Contract of Employment, the
consultation process prescribed by section 189 of the
Labour
Relations Act 66 of 1995 (“LRA”), was followed. During
this process, an alternative position was offered to
Mr van der
Vywer, which he however declined because it reduced the salary he was
earning at the time, and it was going to leave
him and his family
worse off.
[1]
Mr van der Vywer’s Contract of Employment was therefore
terminated.
[11] The Applicant
offered Mr van der Vywer an amount of R50 000 to assist with the
relocation of the Respondents, however
Mr van der Vywer did not
accept it.
[12] The Applicant
dispute that Mr van der Vywer obtained a right of residence for
himself and his dependents by virtue
of his employment on the farm.
Further, the Applicant dispute that Mrs van der Vywer obtained a
right of residence in her own right
and assert that her right of
residence is derived from the fact that she is the child of the First
and Second Respondents.
[13]
The
Applicant asserts that Mrs van der Vywer
is
a periodical worker employed by Stripe Investments 54 (Pty) Ltd.
Boesmansrug Farm Trust holds 100% shares of Stripe Investments
54
(Pty) Ltd. In terms of her Contract of Employment,
[2]
she
does not qualify for housing on the land.
[14] Therefore, the
Applicant states that the underlying reason for granting
accommodation to Mr van der Vywer on the farm
fell away when Mr
van der Vywer’s Contract of Employment was terminated. Further,
that the Contract of Employment was terminated
fairly and no unfair
dismissal dispute is currently pending at the Commission for
Conciliation, Mediation and Arbitration (“CCMA”)
and that
all amounts due and payable to Mr van der Vywer by virtue of his
employment and termination thereof, have been paid to
him and that
there is no amount outstanding.
[15] Accordingly,
the Applicant asserts that the Respondents’ right of residence
on the farm was properly terminated,
irrespective of whether such
right emanated from a contract or employment, birth or any other
reason. Further, Mr van der
Vywer is permanently employed by LV
Contracts Transport and the Respondents can afford alternative
accommodation.
Issues that are to be
determined
[16]
The issues to be determined are whether:
a.
Mr van der Vywer, was an “occupier”
under ESTA
before he was employed by the
Applicant in 1991, at the time when he was 15 years old;
b.
If
Mr van der Vywer, was an occupier, did he waive
[3]
his right to occupy or was his right to occupy terminated by:
i.
Signing the Contract of Employment in 1994
with the Applicant. A copy of the Contract of Employment is not
annexed to the Founding
Affidavit or the Replying Affidavit;
ii.
Being allocated a house on the farm in 1998
by the Applicant.
iii.
Signing another contract in 2005 with More
Son Trust who was a lessee from 2005 to 2012; or
iv.
Signing another contract with the Applicant
in 2012 which stated that Mr van der Vywer will sign a separate
housing contract with
the Applicant. Copies of the Contract of
Employment and the Housing Contract are not annexed to the Founding
Affidavit or the Replying
Affidavit and there is no proof that a
separate housing contract was signed between the Applicant and Mr van
der Vywer;
c.
The eviction of Mr van der Vywer is just
and equitable?
d.
Mrs van der Vywer is an “occupier”
under ESTA or her right of residence was derived from that of
Mr van der Vywer?
e.
If Mrs van der Vywer is an occupier,
can her right of residence be terminated because of the termination
of the contract of
employment of Mr van der Wyver, even if it
terminated his right of residence?
f.
The eviction of Mrs van der Vywer is just
and equitable?
g.
Angeline is an “occupier”
under
ESTA or is her right of residence derived from the fact that she is
the child of Mr van der Vywer and Mrs van der Vywer?
h.
The eviction of Angela is just and
equitable.
Applicant’s case
[17] Mr van der
Vywer’s Contract of Employment was terminated on 18 September
2017 for operational requirements (“retrenchment”).
Prior
to terminating the Contract of Employment, the consultation process
prescribed by section 189 of the LRA was followed. During
that
process, an alternative position was offered to the Mr van der Vywer,
which he however declined, therefore his Contract of
Employment was
terminated. The Applicant argues that:
17.1
The underlying reason for the Applicant
granting accommodation to the Respondents on the land fell away when
Mr van der Vywer’s
Contractof Employment was terminated.
17.2
The Respondents were invited to attend a
meeting with the Applicant
and the
Applicant’s Attorney and Labour Consultant on 5 February 2019,
to grant all the Respondents an opportunity to
make representations as
to why their
rights of residence on the land should not be terminated.
17.3
After listening to all the representations
made by the Respondents, the
Applicant
decided to terminate the right of residence of the Respondents.
The termination was conveyed to the Respondents by
means of a letter
delivered to them
by the Sheriff. Also, paragraph 10 of the Replying
Affidavit states:
“
As
it can be seen in annexures “PDK 5” and “PDK 9”
of the Applicant’s Founding Affidavit, the right
of residence
of the Respondents were properly terminated irrespective of whether
such right of residence emanated from a contract
of employment, birth
or for any other reason.”
17.4In
the conclusion of the Founding Affidavit, the Applicant states that
in
paragraph 12:
“
Wherefore
and as any right of residence which the First, Second and Third
Respondent may have had on the Applicant’s land,
has been
lawfully terminated and as the Applicant has complied with the
requirements of ESTA, the Applicant prays for an order
in the
following manner:
12.1 that the First,
Second and Third Respondents and everybody holding under them vacate
the house which they currently occupy
and to leave the Applicant’s
land on or by a date determined by the honourable court.
12.2
that the honourable court determine a date on which the eviction
order may be executed in the event that
the First, Second and Third
Respondents and everybody holding under them, should they fail to
comply with 12.1 above.
12.3
…”
17.5
The Applicant admits in paragraph 5.1 of
the Replying Affidavit that
severance
package was not paid to Mr van der Vywer because he is
permanently employed by LV Contracts Transport and
he received the
Provident Fund
payment, and he offered Mr van der Vywer fifty thousand
rand (R50 000,00) to assist with the
relocation of the Respondents,
however,
Mr van der Vywer did not accept it.
17.6Mrs
van der Vywer is still employed on a periodical on the Applicant’s
farm.
17.7 Mrs van der
Vywer’s parents, both mother and father, who are sixty-three
(63)
and seventy (70) years old respectively reside with them on the farm
that her father is on the wheelchair. Though they receive
government pension, they are still dependent on
the Respondents.
Meaningful engagement
with the Municipality
17.8.
The Applicant stated that consultation with
the Municipality regarding
emergency and or
permanent alternative accommodation will be done in due course and
the supplementary affidavits will be filled
by the Applicant,
however, in the supplementary affidavit submitted and the replying
affidavit, there was no mention of meaningful
engagement with the
Municipality regarding emergency and or permanent alternative
accommodation, except for the compliance reports
submitted by the
Municipality and the Probation Officer.
Comparative hardship
[18] The farming
operations on the farm are seriously prejudiced by the continued
unlawful occupation of the house by the
Respondents due to the fact
that employees who are entitled to accommodation for themselves and
their families cannot be properly
housed on the Applicant’s
land.
[19]
The Applicant submits that it has made out
a case in terms of sections 10(2) and (3) of ESTA, for an order of
eviction against the
Respondents.
Respondents’
case
[20] Mr van der
Vywer states that he was born on the farm in 1975 and therefore
denies that he obtained the right of residence
solely by virtue of
his employment, and argues that:
20.1.
The Applicant did not consider all the
representations, he made a representation that he is multi-skilled,
has given twenty-five
(25) years of his life to the Applicant and has
had an impeccable employment record with the Applicant, which the
Applicant ignored.
20.2.
When
Mr van der Vywer’s Contract of Employment was terminated on 18
September 2017, he was offered an alternative position
which
reduced his salary and he declined, because in his representation as
required by section 8(1)(e), he requested to be given
his job
back,
[4]
however,
his representation was not considered and his Contract of Employment
was terminated.
20.3.
It
is not correct that all amounts due and payable to him by virtue of
his employment and termination thereof have been paid to
him, because
he was not paid his severance package. He also attached a copy of a
Certificate of Outcome of Dispute referred to
Conciliation
[5]
.
20.4.
The process of terminating their right of
residence was not fair and therefore, denies that their right of
residence had been duly
and properly terminated.
20.5.
Mrs van der Merwe was employed on a full
time basis at some point, though now she is employed as a periodical
worker.
20.6.
Mr
van der Vywer is not permanently employed by
LV
Contracts Transport, the Company calls him when there is work
available and he does not earn anything when there is no work.
If he
worked for the entire month, he receives R8000, which is reduced by
petrol money.
[6]
Legal framework
The material
provisions of ESTA
[21]
ESTA
was promulgated to give effect to key constitutional
[7]
rights, section 25 on property, including the right to security of
tenure, the right not to be arbitrarily evicted, and section
26, the
right of access to adequate housing. It seeks to protect vulnerable
occupiers living on land falling within the ambit of
ESTA from
unjustified evictions and the risk of homelessness. In line with its
purpose, ESTA must be interpreted in a manner that
promotes these
constitutional values and ensures that those who fall within its
scope are afforded the fullest possible protection.
Any termination
of such occupiers’ right of occupation must therefore comply
strictly with the provisions of ESTA.
[8]
[22]
The aspirations of ESTA as articulated in its
Preamble is to provide measures with State assistance to ensure
long-term security
of tenure on land,
for vulnerable
individuals or families residing on rural or peri-urban land with the
owner's consent. It was enacted to
inter alia
, regulate
conditions of residence on certain land as well as the conditions on
and circumstances under which the right of persons
to reside on land
may be terminated.
[23]
The Preamble further states that ESTA also
regulates the
conditions and circumstances under which
persons, whose the rights of residence has been terminated, may be
evicted from land and
to provide for matters connected therewith.
[24]
The material provisions of ESTA include:
24.1.
The
occupier defined in section 1 of ESTA to mean
a person residing on land which belongs to another person, and who on
4 February 1997 or thereafter had consent or another
right
in law to do so. It excludes a person using or intending to use the
land in question mainly for industrial, mining, commercial
or
commercial farming purposes, but including a person who works the
land himself or herself and does not employ any person who
is not a
member of his or her family; and a person who has an income in
excess of the prescribed amount
[9]
;
\24.2.
Section
3
[10]
of ESTA provides
for consent to reside on land. It states that an occupier’s
right to reside on land arises from
express or implied consent from
the owner or person in charge, and shall only be terminated in
accordance with the provisions
of section 8 of ESTA.
24.3.
See also
Misty
Cliffs Farm (Pty) Ltd and Another v Christoffels and Others
[11]
where
Du
Plessis AJ and Bishop AJ held that:
‘
Consent”
under ESTA includes both express and tacit consent. Importantly, the
Act establishes legal presumptions regarding
consent. A person who
has lived openly and continuously on land for over one year is
presumed to have consent (section 3 (4)),
and after three years,
their presence is deemed to have been with the knowledge of the owner
(section 3 (5)). These presumptions
also become relevant where the
formal right of occupation (such as one based on employment) has
ended, but no steps have been taken
to evict the person…’
24.4.
Termination
of residence in terms of section 8 of ESTA must be just and
equitable, considering the numerated factors in section
8(1)(a –
e). Only sections 8 (1) to (3)
[12]
are listed below as they will be the ones relied to.
24.5.
Section
9 of ESTA
[13]
provides for the
limitation of eviction. Section 9(2)(a) – (d) thereof require
compliance with section 10 of ESTA
[14]
,
if the person to be evicted was already an occupier on 4 February
1997 and compliance with section 11
[15]
if the person became an occupier after 4 February 1997.
24.6.
This
means that eviction can only be granted if the statutory
pre conditions in section 9(2)(a) – (d) are met. Further,
termination of consent must be just and equitable –
substantively and procedurally. In
Snyders
v De Jager
[16]
the
Constitutional Court in paragraph 56 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).’
Application of the law
The Respondent’s
source of right of residence
[25]
It is common cause that Mr van der Vywer was born at the farm, the
Applicant did not dispute that fact, therefore Mr
van der Vywer’s
occupation preceded his contract of employment. Mr van der Merwe had
his own right of occupation even when
he was employed by the
Applicant while residing with his parents.
[17]
He was appointed as a general worker on the Farm at the age of
fifteen (15) years in 1991 and signed the contract of
employment
in 1994, three years after he had started working for the
Applicant. Section 3 (5) of ESTA provides that 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. Applying this section to these facts confirms
that Mr van der Vywer was already deemed an occupier when he signed
all the contracts of employment that he has signed.
[26]
The question is whether if Mr van der Vywer was an occupier before
signing the 1998, 2005 and 2012 Contracts of Employment
and did he
waive
[18]
his right to occupy or was his right to occupy terminated? Taking
into consideration that section 3 (1) of ESTA provides that “
Consent
to an occupier to reside on or use land shall only be terminated in
accordance with the provisions of section 8.
”
Further, whether, when the Applicant required Mr van der Vywer to
sign the contract of employment that he alleges linked
Mr van der
Vywer’s right of residence to his employment, did he terminate
the original consent deemed by section 3(5)?
[27] Section 25
(1) of ESTA provides that: “
the waiver by
an occupier of his or her rights in terms of this
Act shall be void, unless it is permitted by this
Act or
incorporated in an order of the Court
.” The waiver is
not permitted by ESTA and it was not court ordered; therefore, Mr van
der Merwe could not have waived his
right of residence that he
already enjoyed. If the deemed consent was not terminated by the
Applicant and Mr van der Vywer did
not waived his right of residence,
it means Mr van der Vywer had two sources of occupation. Whether the
Applicant believes that
Mr van der Vywer did not have the right of
occupation before the signing of the contract of employment or
believes that Mr van
der Vywer waived his right of occupation by
signing the contract of employment, that belief is void in terms of
section 25(1)
of ESTA.
[28] Further,
section 25(2) of ESTA provides that “
the Court must
have regard to, but not be bound by, any agreement in so far as that
agreement seeks to limit any of the
rights of an occupier in
terms of this Act
.” It is common cause that Mr van der
Vywer signed the contracts of employment in 1994, 2005 and 2012,
these contracts are
recognised as far as his employment and the
termination thereof are concerned, however, for the purpose of
determining consent
by the owner or person in charge of the farm, for
occupation in the farm for Mr van der Vywer, the court is not bound
by the contract
of employment which links its termination to
automatic termination of occupation in the farm.
Whether Mrs van der
Vywer is an “occupier” under ESTA or her right of
residence was derived from that of Mr van der
Vywer
[29]
In the Constitutional Court case of
Klaase,
Matojane AJ
stated in paragraph 66 that:
‘
The Land Claims
Court’s finding that Mrs Klaase occupied the premises under her
husband” subordinates her rights to
those of Mr Klaase. The
phrase is demeaning and is not what is contemplated by section 10(3)
of ESTA. It demeans Mrs Klaase’s
rights of equality and human
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’
[30]
Du
Plessis AJ aptly responds to the question of whether Mrs van der
Vywer has a right of residence in her own right or derives her
right
under Mr van der Vywer in the case of
Van
Der Merwe N.O and Others v Stoffels and Others
,
[19]
in paragraphs 12 to 16 and states that:
‘
The
argument that all respondents' rights of residence stem from Mr
Stoffels is unpersuasive. Section 1 defines an “occupier”
as any person living on land with “consent or another right in
law”. Consent can be explicit, implied, or assumed.
Section
3(4) presumes consent unless proven otherwise and section 3(5)
considers continuous and open residence for a year as being
with
consent.
Courts
must guard against an automatic acceptance of occupation rights
derived from employment alone,
[20]
especially in instances where an earlier verbal agreement or
continuous occupation established consent,
[21]
and a later (often contested) written agreement limited what was
purportedly verbally agreed.
Accordingly, each
respondent’s occupation must be assessed on its own merits: by
reference to employment contracts, historic
residence, independent
consent, or statutory presumptions. The termination of one household
member’s employment does not,
without further cause, extinguish
the lawful occupation rights of other members who meet the statutory
criteria.
Even if one were to
accept that Mr Stoffels signed an agreement in 2019 that expressly
linked his housing to his employment, this
does not automatically
mean that the agreement binds Ms Stoffels. This is for various
reasons. Her evidence is that she was employed
on the farm in her own
right from 2006 until 2016, and that she derived her initial right of
residence from her own employment
(independent of Mr Stoffels), and
presumably, thereafter, in terms of consent (in terms of section 3).
If this is the case, Mr
Stoffels cannot sign away her rights
under his employment contract. Her right, therefore, had to
be terminated separately.
Ms
Pienaar, similarly, openly resided on the land for more than a year,
meaning that consent is presumed under section 3(4) and
deemed under
section 3(5). Similar arguments may be applicable to the other
respondents.
Since the magistrate assumed
that all the respondents’ rights are derived from the first
respondent, there was no separate
inquiry as to the justness and
equitableness of the eviction of the other respondents.’
[31]
In
Sterklewies
(Pty) Ltd t/a Harris Feedlot v Msimanga & Others
,
[22]
the Court held that:
‘
Plainly,
that is the right to occupy that arises from the express or tacit
consent of the owner of the land. In most cases that
consent will
arise from an agreement between the owner and the occupier, but an
agreement, at least if that expression is understood
to refer to a
contractually binding arrangement, is not in my view required. The
Act does not describe an occupier as a person
occupying land in terms
of an agreement or contract, but as a person occupying with the
consent of the owner.’
[32]
It is clear from
Van
Der Merwe N.O and Others v Stoffels and Others
,
[23]
above that the argument by the Applicant that Mrs van der Vywer and
Angeline’s
rights
of residence stem from Mr van der Vywer
is
unpersuasive, because section 1 of ESTA defines an “occupier”
as any person living on land with “consent or
another right in
law”. Consent can be explicit, implied, or assumed. Section
3(4) presumes consent unless proven otherwise
and section 3(5)
considers continuous and open residence for three year as being with
consent. It is also clear from
Sterklewies
(Pty) Ltd t/a Harris Feedlot v Msimanga & Others
,
[24]
above that “… the Act does not describe an occupier as a
person occupying land in terms of an agreement or contract,
but as a
person occupying with the consent of the owner.”
[33] Mrs van der
Vywer openly resided on the farm for more than a year; meaning that
she is presumed to have the consent of
the Applicant in terms of
section 3(4) and deemed under section 3(5) to be an occupier in her
own right. Her right of residence
is not dependent on Mr van der
Vywer’s. As a result, Mrs van der Vywer did not lose her right
of occupation when Mr van der
Vywer signed the contract of employment
with the Applicant, or when his contract of employment was
terminated, she remained an
occupier in terms of sections 3(4) and
3(5) of ESTA. The attempt to terminate her right of residence as a
result of the termination
of Mr van der Vywer’s contract of
employment is not a lawful ground, and therefore not just and
equitable.
[34]
In the Constitutional Court case of
Klaase
at paragraph
65, Matojane AJ said:
‘
In my view, Mrs
Klaase has made out a case that she is an occupier in terms of ESTA.
As an occupier, Mrs Klaase is entitled to the
protections set out in
ESTA. An eviction order may be granted against her only if certain
conditions are met. The first is that
her right of residence must
have terminated on lawful grounds, provided that the termination is
just and equitable, having regard
to certain listed factors.
[25]
So, for as long as the right of residence of an occupier like Mrs
Klaase has not been terminated in terms of section 8, the occupier
may stay. Obviously, section 8 has not been complied with and
there was no suggestion that it was. It follows that Mrs Klaase’s
right of residence was not lawfully terminated. It is accordingly
unnecessary for us to consider whether her consent to reside
on the
property was subject to any conditions, such as the continuation of
her marriage or Mr Klaase’s continued employment.
It is also
unnecessary to consider whether, if proper notice had been given, her
eviction would have been just and equitable
.’
[35]
Since Mrs van der Vywer has her right of residence under ESTA, her
right of residence should have been
terminated in terms of
section 8 on lawful grounds related to her and not her husband, and
the termination should be just and equitable.
Since the Applicant
terminated her right of residence on the basis of the termination of
Mr van der Vywer’s Contract of Employment,
the termination of
her right of residence is not on lawful ground and therefore not just
and equitable.
Whether
Angeline is an “occupier” under ESTA or is her right of
residence derived from the fact that she is the child
of Mr van der
Vywer and Mrs van der Vywer
[36]
Angeline like her parents, openly resided on the
farm for more than a year; meaning
that
they are presumed to have the consent of the Applicant in terms of
section 3(4)
and deemed under section
3(5) to be occupiers in their own right after living in the farm
openly and the Applicant being aware of
that. Her right of residence
is not
dependent on her parents.
Angeline did not lose her right of occupation when Mr van der Vywer
signed the contract of employment
with the Applicant, or when his
contract of employment was terminated, she remained an occupier in
terms of sections 3(4) and 3(5)
of ESTA. The attempt to terminate her
right of residence as a result of the termination of Mr van der
Vywer’s contract of
employment is not a lawful ground, and
therefore not just and equitable.
The Applicant’s
non-compliance with section 8 of ESTA
[37]
It is trite that the onus is on the Applicant to place information
before the Court to enable it to have regard to fact
the that the
termination of the Respondents right of residence was on lawful
grounds and to that such termination is just and equitable,
having
regard to all relevant factors and in particular the list enumerated
under section 8 (1) (a) to e)
[26]
:
37.1.
With regard to subsection (a), the fairness
of any agreement, provision in an agreement, or provision of law on
which the owner
or person in charge relies:
(a) Mr
van der Vywer was not charged with any misconduct, he was retrenched
and he was the only employee who was
retrenched due to operational
requirements. The Applicant alleges that Mr van der Vywer obtained
the right of residence by virtue
of his employment on the land.
Further that, the underlying reason for granting accommodation to Mr
van der Vywer on the land therefore
fell away when his Contract of
Employment was terminated. Clause 12 of t
he
Contract of Employment in Afrikaans, translated to English provides
that:
“
Accommodation:
Permanent employment does
not
automatically
include housing; it is granted at the discretion of management and
requires a separate housing contract.”
Further, a copy of the
Housing Contract or Housing Policy is not annexed to the Founding
Affidavit or the Replying Affidavit, neither
is it mention anywhere
in the Founding Affidavit or the Replying Affidavit that the
Applicant and Mr van der Vywer signed the Housing
Contract.
37.2.
With regard to subsection (b) the conduct
of the parties giving rise to the termination:
(a)
Mr van der Vywer was
retrenched due
to operational requirements in the faming business, therefore it is
not because of Mr van der Vywer’s conduct.
37.3.
With regard to subsection (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:
(a)
The Theewaterskloof Municipality report
indicates that the municipality does not have
alternative
accommodation available for the family. They will be considered for
future projects
. The report further indicates that
Mr van der Vywer, Mrs van der Vywer and Angeline are actively looking
for possible
alternative accommodation, however, affordability
remains a challenge and they
are registered on the
Housing Demand Database.
(b)
The probation report provided in terms of section 9(3) of ESTA
concluded that the family would be rendered homeless by an eviction,
as they do not have suitable alternative accommodation. The report
recommends that an eviction order should not be granted and
further
recommends that the Applicant and Respondents have further meaningful
engagements regarding the offer to compensate that
was initially made
to by the Applicant.
(c)
This shows
that the Respondents will suffer more hardship if evicted in
comparison to the Applicant if eviction is not granted.
In the matter
of
Timothy
Maluleke N.O. v Daniel Philamon Sibanyoni and Others
[27]
it was held that: “
Section
8(1)(c) requires the court to take into account the issue of
comparative hardship.”
(d)
In the
matter of
Timothy
Maluleke N.O. v Daniel Philamon Sibanyoni and Others,
[28]
the
court held that: “
A
finding that the provisions of section 8 have not been complied with,
ends the matter.
37.4.
With regard to subsection (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:
(a)
Mr van der Vywer was not charged with any
misconduct, but the Contract of Employment was terminated because of
retrenchment and
in his representation, he had requested that he be
offered his job back, however, the Applicant submits that the
circumstances
surrounding the application for an eviction order is of
such a nature that it cannot be settled by way of mediation or
arbitration.
(b)
The question that will be addressed later
is whether Mr van der Vywer’s right of residence emanating from
the presumption
of section 3(4) and deemed in terms of section 3(5)
have been terminated.
37.5.
With regard to subsection (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:
(a)
The Applicant acknowledges that the
Respondents had different sources of consent to occupy the farm. In
paragraph 10 of the Replying
Affidavit, the Applicant states that:
“
As
it can be seen in annexures “PDK 5” and “PDK 9”
of the Applicant’s Founding Affidavit, the right
of residence
of the Respondents were properly terminated irrespective of whether
such right of residence emanated from a contract
of employment, birth
or for any other reason.”
(b)
The Applicant failed to satisfy the Court
that there are
lawful
grounds relied on the termination of the right of residence of the
Respondents and that the termination is just and equitable.
In
the matter of Hatting and Others v Juta,
[29]
Zondo J. (as he then was), emphasised that Courts need to infuse
justice and equity into ESTA eviction enquiry. He further indicated
that the termination of the right of residence and eviction must not
only be based on a lawful ground. It must also be just and
equitable.
The Applicant’s
non-compliance with sections 9 and 10 of ESTA
[38]
Section
9(2) of ESTA provides that the Court may make an order for
the eviction of an occupier if the pre-requisite
enumerated
in section 9 (2) (a) to (c). This was dealt with in the SCA matter of
Mkangeli
and Others v Joubert and Others
[30]
where the Court said in respect of sections 8 and 9 of ESTA at
paragraph 13:
‘
As to the
remedy of eviction, section 9 provides that a court may only issue an
eviction order if certain conditions are met. The
first such
condition is that the occupier’s right of residence must
have been properly undersection 8. Other conditions
prescribed by
section 9 (2) include giving of two months’ notice not less
than two calendar months’ written notice
of the intended
eviction application after the right of residence has been terminated
under section 8 (section 9 (2) (d)). In a
case such as the present,
where the appellants took occupation of Itsoseng after 4 February
1997, section 11 also find application.
This section provides that a
court may only grant an eviction order if it is of the opinion that
it is just and equitable to do
so. In deciding whether it is just and
equitable to grant an eviction order the court must have regard to
the considerations listed
in s 11(3), but it is not limited to them.
Included amongst these is the consideration 'whether suitable
alternative accommodation
is available to the occupier' (s 11(3)(c) )
and 'the balance of the interests of the owner, ... the occupier and
the remaining
occupiers on the land' (s 11(3)(e) ).’
[39]
In the present case, Mr and Mrs van der Vywer took occupation of
Boesmansrug
before 4 February 1997,
therefore section 10 of ESTA finds application.
Section
10 provides that an order for the eviction of a person who was an
occupier on 4 February 1997 may be granted if, the occupier
has
breached section 6(3) and the court is satisfied that the breach is
material and that the occupier has not remedied such breach;
and the
occupier has not remedied the breach despite being given one calendar
months’ notice in writing to do so; or has
committed such a
fundamental breach of the relationship between him or her and the
owner or person in charge, that it is not practically
possible to
remedy it, either at all or in a manner which could reasonably
restore the relationship. Section 10(2) provides that
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.
In deciding whether it is just
and equitable to grant an eviction order the court must have
regard to the considerations
listed in Section 10(3) lists
considerations that the court must have regard to, which included
amongst others the consideration
'whether suitable alternative
accommodation is available to the occupier' including 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 balancing the
rights of all with
regards to comparative hardship.
[40]
In terms of section 10(1), an order for the eviction of a person who
was an occupier on 4 February 1997 may
be granted if
provision in section 10(1) – (3) have been met. However, in
this matter, Mr van der Vywer was born in the farm
in 1975, he has
lived in the farm for 51 years, he knows no other life. He has
not breached section 6 (3) of ESTA, as
required by section
10(1)(a)(b) and (c) of ESTA. His right of residence did not solely
arise from employment, he was retrenched,
there was no mediation
attempted. The Municipal report states that there is no suitable
alternative accommodation available
to the Respondents and
the Probation Officers report in terms of section 9(3) of ESTA
concluded that the family would be rendered
homeless by an eviction,
as they do not have suitable alternative accommodation and therefore
does not recommend that the court
grant the eviction order.
[41]
The Applicant alleges that the efficient carrying of his business
will be seriously prejudiced unless the dwelling is
available for
occupation by another person employed. The Applicant does not
demonstrate how the business would be affected because
the employees
referred to have been rendering their service from the houses they
live in. In
Kanhym (Pty) Ltd v Mashiloane
1999(2)
SA 51
(LCC),
Dodson J held at paragraph 12 that land owners cannot
merely make averments as to prejudice they would suffer without
setting out
in detail how they would be prejudiced and the nexus
between their prejudice and the Respondents’ occupation, he
said:
‘
The only facts
alleged by the Applicant to show compliance with section 10(3)(c)
were that the house was needed in order to provide
accommodation for
another employee. On this basis, the Applicant’s Attorney
argued that it could be inferred that the Applicant
would be
seriously prejudiced because it always have to build new houses
whenever an employee refuses to vacate a house after termination
of
his employment. The court was then asked to take judicial notice of
the costs of building additional accommodation. I have some
difficulty in following this reasoning. In any event, I do not agree
that a mere averment that the house is needed for another
employee
justifies the interference that the efficient carrying on of any
operation of the Applicant would be seriously prejudiced
unless the
dwelling is available for occupation by another person employed or to
be 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 identify those
operations. The enquiry
is specific to that particular occupier (the respondent in this
instance) and the particular house which
he or she occupies. A causal
connection must be shown between the unavailability of that
particular dwelling and the serious prejudice
which the owner’s
operation or operations will suffer. No such proof was offered by the
applicant.’
[42]
The termination of the right of residence of the Respondents lacks
substantive and procedural fairness, because section
8(1) of ESTA was
not complied with, which requires a phased approach to the
termination of the right of residence and the eviction
of the
occupiers. Even if the Respondents had become occupiers solely
pursuant to a contract of employment, a two-stage approach
to their
eviction was confirmed in the matter of
Sterklewies
(Pty) Ltd t/a Harris Feedlot v Msimanga & Others
[31]
where
the SCA said the following at paragraph 16:
‘
The Act
contemplates two stages before an eviction order can be made. First
the occupier’s right of residence must be terminated
in terms
of s 8 of the Act. The manner in which this is to be done is not
specified. Once the right of residence has been terminated
then,
before an eviction order can be sought, not less than two months’
notice of the intention to seek the occupier’s
eviction must be
given to the occupier, the local municipality and the head of the
relevant provincial office of the Department
of Land Affairs in terms
of s 9(2)(d) of the Act. That notice is required to be in a form
prescribed by regulations made in terms
of s 28 of the Act.’
Discussion
[43] In view of the
substantive and procedural defects, the peremptory requirements of
section 8 were not met. The Applicant
issued a notice of the
intention to terminate the right of residence of the Respondents, not
on lawful grounds and still failed
to terminate the Respondents right
of residence, then continued to apply to the Court for an order of
eviction of the Respondents.
[44]
It is trite that failure to comply with section 8 of ESTA on
the lawful termination of the right of residence constitutes the end
of the inquiry and an eviction cannot be granted if the termination
itself was not just and equitable. This has been aptly
put i
n
Aquarius Platinum (SA) (Pty) v Bonene &
others [2020] 2 AlI SA 323 (SCA)
, the
Court stated in paragraph 13 that:
‘
Thus,
both the clear meaning of the language of these sections and their
context the need to protect the rights of residence of
vulnerable
persons) indicate a two-stage procedure. Section 8 provides for the
termination of the right of residence of an occupier,
which must be
on lawful ground and just and equitable, taking into account, inter
alia, the fairness of the procedure followed
before the decision was
made to terminate the right of residence. Section 8 at least requires
that a decision to terminate the
right of residence must be
communicated to the occupier. Section 9(2) then provides for the
power to order eviction if, inter alia,
the occupier's right of
residence has been terminated in terms of s 8, the occupier
nevertheless did not vacate the land and the
owner or person in
charge has, after the termination of the right of residence, given
two months' written notice of the intention
to obtain a n eviction
order. Section 8(2) must of course be read with s 8(1) and provides
for a specific instance of what may
constitute a just and equitable
ground for the termination o f a right of residence.’
[45]
I
n
the matter of
Timothy
Maluleke N.O. v Daniel Philamon Sibanyoni and Others,
[32]
the
court held that: “
A
finding that the provisions of section 8 have not been complied with,
ends the matter.
Conclusion
[46] The Applicant
terminated the contract of employment of Mr van der Vywer, and then
attempted to terminate his right of
residence and that of Mrs van der
Merwe and Angeline. The Applicant did not comply with section 8 which
requires that the termination
of the right of residence of an
occupier must be on lawful ground and must be just and equitable. Mr
van der Vywer was an occupier
in terms of sections 3(4) and 3(5) of
ESTA before signing the Contract of Employment that purported to link
his right of residence
to the Contract of Employment. Mr van
der Vywer did not lose his right of residence by signing the Contract
of Employment
and there is no proof that he signed the Housing
Contract as stated in the Contract of Employment.
[47]
The termination of Mr van der Vywer’s right of residence, even
if it was solely derived from the Contract of Employment,
must be on
lawful ground and must be just and equitable.
In
Van
Der Merwe N.O and Others v Stoffels and Others
,
[33]
court in paragraphs 17 and 18 held that:
‘
Section
8(1) – (2) outlines the requirements for a lawful eviction.
Section 8(1) establishes a general rule that termination
of an
occupier’s right of residence is only lawful on valid grounds.
The termination must be “just and equitable,”
taking into
account all circumstances. The factors listed in this section
emphasise that this is a flexible and multi-faceted assessment,
not a
mechanical test. Section 8(2), although addressing termination of
occupation arising from an employment relationship, does
not override
the protections offered by section 8(1). Therefore, even if an
employee’s dismissal is lawful under the labour
law, the court
must still be convinced that the termination of the right of
residence is “just and equitable”’
[48] In addition,
the rights of residence of Mrs van der Vywer and Angeline are ESTA
rights in terms of sections 3(4) and
3(5), and may only be terminated
on any lawful ground, provided that such termination is just and
equitable, having regard to all
relevant factors and in particular to
section 8(1)(a)-(e), which the Applicant did not take into
consideration with regard to Mrs
van der Vywer and Angelina.
[49] Due to failure
to comply with the peremptory requirements of the
Extension of
Security of Tenure Act 62 of 1997
, I am unable to grant the eviction
order.
Order
[50] In the
circumstances, the following order is granted:
1.
The application is dismissed.
2.
There is no order as to costs.
J
MALULEKE
Acting
Judge of the Land Court
APPEARANCES:
For the Applicants:
Mr Frans Cronje
Instructed by:
CRONJÉS INC ATTORNEYS
For the Respondents: Ms K
Ngqata
Instructed by: T.J.
MGENGWANA
[1]
Annexure
“B” attached to the Answering Affidavit, p57.
[2]
Founding
Affidavit, paragraph 5.2
[3]
ESTA
section
25.
Legal status of agreements
(1)
The waiver by an occupier of his or her rights in terms of this Act
shall be void, unless it is permitted by this Act or incorporated
in
an order of a court.
(2)
A court shall have regard to, but not be bound by, any agreement in
so far as that agreement seeks to limit any of the rights
of an
occupier in terms of this Act.
(3)
Notwithstanding the provisions of subsections (1) and (2), if an
occupier vacates the land concerned
freely
and willingly, while being aware of his or her rights in terms of
this Act, he or she shall not be
entitled
to institute proceedings for restoration in terms of section 14.
[4]
Answering
Affidavit, paragraph 25.
[5]
Annexure
marked “E”.
[6]
Answering
Affidavit, paragraph 22.
[7]
The Constitution of the Republic of South Africa, 1996.
[8]
Molusi
and Others v Voges NO and Others
2016
(3) SA 370
(CC) para 7;
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
(6) SA 199
(CC) para 53
(Goedgelegen).
[9]
Prescribed
amount is R13 625. 00.
[10]
Section 3 provides that:
(1)
Consent to an occupier to reside on or use land shall only
be terminated in accordance with the provisions of section
8 of
ESTA
(2)
If a person who resided on or used land on 4 February 1997
previously did so with consent, and such consent was
lawfully withdrawn prior to that date—
(a)
that person shall be deemed to be an occupier, provided that he
or she has resided continuously on
that land since consent was
withdrawn; and
(b)
the withdrawal of consent shall be deemed to be a valid
termination of the right of residence in terms of section
8,
provided that it was just and equitable, having regard to the
provisions of section 8.
(3)
For the purposes of this Act, consent to a person to
reside on land shall be effective regardless of whether
the occupier, owner or person in charge has to obtain
some other official authority required by law for such residence.
(4)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 one year shall be presumed to have consent unless the
contrary is proved.
(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.
(6)
…
[11]
Misty
Cliffs Farm (Pty) Ltd and Another v Christoffels and Others
[2025]
ZALCC 34
para
34.
[12]
8.
Termination
of right of residence
(1) Subject to the
provisions of this section, an occupier’s right of residence
may be terminated on any lawful ground,
provided that such
termination is just and equitable, having regard to all relevant
factors and in particular to—
(a) the fairness of any
agreement, provision in an agreement, or provision of law on which
the owner or person in charge relies;
(b) the conduct of the
parties giving rise to the termination;
(c) the interests of the
parties, including the comparative hardship to the owner or person
in charge, the occupier concerned,
and any other occupier if the
right of residence is or is not terminated;
(d) the existence of a
reasonable expectation of the renewal of the agreement from which
the right of residence arises, after
the effluxion of its time; and
(e) the fairness of the
procedure followed by the owner or person in charge, including
whether or not the occupier had or should
have been granted an
effective opportunity to make representations before the decision
was made to terminate the right of residence.
(2)
The right of residence of an occupier who is an employee and whose
right of residence arises solely from an employment agreement,
may
be terminated if the occupier resigns from employment or is
dismissed in accordance with the provisions of the
Labour Relations
Act.
(3
)
Any dispute over whether an occupier’s employment has
terminated as contemplated in subsection (2), shall be dealt with
in
accordance with the provisions of the
Labour Relations Act, and
the
termination shall take effect when any dispute over the termination
has been determined in accordance with that Act.
[13]
Section
9 of ESTA provides for limitation on eviction
(1)
Notwithstanding the provisions of any other law, an occupier may
be evicted only in terms of an order of the Court
issued
under this Act.
(2)The Court may
make an order for the eviction of an occupier if—
(a)the occupier’s
right of residence has been terminated in terms of section 8;
(b)the occupier has
not vacated the land within the period of notice given by the owner
or person in charge;
(c)
the conditions for an order for eviction in terms of
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 Rural
Development and Land Reform, for information purposes,
not
less than two calendar months’ written notice of the intention
to obtain an order for eviction, which notice shall contain
the prescribed particulars and set out the grounds on
which the eviction is based: Provided that if a notice of
application
to the Court has, after the termination of the right of
residence, been given to the occupier, the municipality and the head
of the relevant provincial office of the Department of Rural
Development and Land Reform not less than two months before the date
of the commencement of the hearing of the application, this
paragraph shall be deemed to have been complied with.
[14]
10.
Order for eviction of person who was occupier on 4 February 1997
(1)
An order for the eviction of a person who was an occupier on 4
February 1997 may be granted if—
(a)
the occupier has breached section 6(3) and the court is satisfied
that the breach 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 possible to remedy it, either at all or
in a manner which could reasonably restore the relationship;
(d)
the occupier—
(i)
is or was an employee whose right of residence arises solely from
that employment; and
(ii)
has voluntarily resigned in circumstances that do not amount to a
constructive dismissal in terms of the
Labour Relations Act; or(e
)
the owner or person in charge or the occupier have attempted
mediation to settle the dispute in terms of
section 21
or referred
the dispute for arbitration in terms of
section 22
, and the court is
satisfied that the circumstances surrounding the order for eviction
is of such a nature that it could not be
settled by way of mediation
or arbitration.
(2)
Subject to the provisions of subsection (3), if none of the
circumstances referred to in subsection (1) applies, a court may
grant an order for eviction if it is satisfied that suitable
alternative accommodation is available to the occupier concerned.
(3)
If—
(a)
suitable alternative accommodation is not available to the occupier
within a period of nine months after the 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 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.
[15]
11.
Order for eviction of person who becomes occupier after 4 February
1997
(1)
If it was an express, material and fair term of the consent granted
to an occupier to reside on the land in question, that
the consent
would terminate upon a fixed or determinable date, a court may on
termination
of such consent by effluxion of time grant an order for eviction of
any person who became
an
occupier of the land in question after 4 February 1997, if it is
just and equitable to do so.
(2)
In circumstances other than those contemplated in subsection (1), a
court may grant an order for eviction in respect of any
person who
became an occupier after 4 February 1997, if—
(a)
the court is of the opinion that it is just and equitable to do so;
and
(b)
the owner or person in charge of the land and the occupier have
attempted mediation to settle the dispute in terms of
section 21
or
referred the dispute for arbitration in terms of
section 22
, and the
court is satisfied that the circumstances surrounding the order for
eviction is of such a nature that it could not be
settled by way of
mediation or arbitration.
(3)
In deciding whether it is just and equitable to grant an order for
eviction in terms of this section, the court shall have
regard
to—(a) the period that the occupier has resided on the land in
question;
(b)
the fairness of the terms of any agreement between the parties;
(c)
whether suitable alternative accommodation is available to the
occupier;
(d)
the reason for the proposed eviction; and
(e)
the balance of the interests of the owner or person in charge, the
occupier and the remaining
occupiers
on the land.
[16]
Snyders
and Others v De Jager and Others (Appeal)
2017 (3) SA 545
(CC)
(Snyders v De Jager).
[17]
Klaase
and Another v van der Merwe N.O. and Others
2016 (6) SA 131
(CC) (
Klaase
).
[18]
ESTA
section
25.
Legal status of agreements
(1)
The waiver by an occupier of his or her rights in terms of this Act
shall be void, unless it is permitted by this Act or incorporated
in
an order of a court.
(2)
A court shall have regard to, but not be bound by, any agreement in
so far as that agreement seeks to limit any of the rights
of an
occupier in terms of this Act.
(3)
Notwithstanding the provisions of subsections (1) and (2), if an
occupier vacates the land concerned
freely
and willingly, while being aware of his or her rights in terms of
this Act, he or she shall not be
entitled
to institute proceedings for restoration in terms of section 14.
[19]
Van Der Merwe N.O and Others v Stoffels and Others (LanC2025/032788)
[2025] ZALCC 44.
[20]
Misty
Cliffs Farm (Pty) Ltd and Another v Christoffels and Others
(LanC28/2025)
[2025] ZALCC 34
paras 41 – 43.
[21]
In terms of section 3.
[22]
Sterklewies
(Pty) Ltd t/a Harris Feedlot v Msimanga & Others
2012
(5) SA 392.
[23]
Van Der
Merwe N.O and Others v Stoffels and Others
(LanC2025/032788) [2025] ZALCC 44.
[24]
Sterklewies
(Pty) Lrd t/a Harris Feedlot v Msimanga & Others
2012
(5) SA 392.
[25]
Those factors are listed at section 8(1) and are—
(a) the fairness of
any agreement, provision in an agreement, or provision of law on
which the owner or person in charge relies;
(b) the conduct of
the parties giving rise to the termination;
(c) the interests of the
parties, including the comparative hardship to the owner or person
in charge, the occupier concerned,
and any other occupier if the
right of residence is or is not terminated;
(d) the existence of a
reasonable expectation of the renewal of the agreement from which
the right of residence arises, after
the effluxion of its time; and
(e)
the fairness of the procedure followed by the owner or person in
charge, including whether or not the occupier had or should
have
been granted an effective opportunity to make representations before
the decision was made to terminate the right of residence.
[26]
Ibid.
[27]
Timothy
Maluleke N.O. v Daniel Philamon Sibanyoni and Others
(LCC
2018/59) [2020] ZALCC (
Timothy
Maluleke
).
[28]
Ibid.
[29]
Hatting
and Others v Juta
2013
(3)
SA 275
(CC) para 32.
[30]
Mkangeli
and Others v Joubert and Others
2002 (4) SA 36 (SCA).
[31]
Sterklewies
(Pty) Ltd t/a Harris Feedlot v Msimanga & Others
2012
(5) SA 392.
[32]
Timothy
Maluleke
supra
n31 para 65.
[33]
Van
Der Merwe N.O and Others v Stoffels and Others
(LanC2025/032788)
[2025] ZALCC 44.