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 NO: LCC 163/2023
Before: MALULEKE AJ
Heard on: 6 FEBRUARY 2026
Delivered on: 04 May 2026
In the matter between:
CHARLES JOHANNES LAMBRECHTS N.O. Applicant
CHARLES JOHANNES LAMBRECHTS N.O. Second Applicant
HIGHLANDS NIGHT INVESTMENT 108 CC Third
Applicant
and
(1) REPORTABLE: Yes/ No
(2) OF INTEREST TO OTHER JUDGES: Yes / No
(3) REVISED: Yes / No
Date: 04 May 2026
PIET BOOYSEN First Respondent
JOHANNA DE JONGH Second Respondent
PATRICK DE JONGH Third Respondent
ADAM DE JONGH Fourth Respondent
ALL OTHER PERSONS RESIDING WITH OR Fifth Respondent
UNDER THE FIRST TO THE FOURTH RESPONDENT
IN THE PREMISES ON VERGENOEGD FARM,
WORCESTER, WESTERN CAPE PROVINCE
BREEDE VALLEY MUNICIPALITY Sixth Respondent
PROVINCIAL DIRECTOR OF THE DEPARTMENT Seventh Respondent
OF AGRICULTURE, LAND REFORM AND RURAL
DEVELOPMENT
ORDER
1. The application for an order for the eviction of the First Respondent is
granted.
2. The date on which the First Respondent is to vacate the premises in terms of
section 12(1)(a) of ESTA (if he has not yet done so) is to be 4 November 2026
after he has been paid the outstanding agreed settlement amount owed to
him.
3. The application for an order for the eviction of the Second to Fifth
Respondents is dismissed.
4. There is no order as to costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MALULEKE AJ
Introduction
[1] This is an application for the eviction of the First to Fifth Respondents
(Respondents) from the farm Vergenoegd Farm, No 656, situated in the Division of
Worcester, Western Cape Province. The eviction application is instituted in terms of
section 11 of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”).
Parties
[2] The First to Third Applicants are Mr. Charles Johannes Lambrechts N.O., Ms
Sharon Lee Lambrechts N.O. and Highlands Night Investment 108 CC (“the
Company”) respectively. Charles Johannes Lambrechts N.O. is the sole member of
the Company and the deponent to the founding affidavit.
[3] The First to Fifth Respondents are Mr. Piet Booysen (“Mr. Booysen”), Ms
Johanna de Jongh (“Ms de Jongh”) , Mr. Patrick de Jongh, Mr. Adam de Jongh and
all other persons residing with or under the First to the Fourth Respondents in the
premises on Vergenoegd Farm, Worcester, Western Cape Province respectively,
(“the Respondents”).
[4] The Sixth to Seventh Respondents are Breede Valley Municipality (“the
Municipality”) and the Provincial Director of the Department of Agriculture, Land
Reform and Rural Development (“the Department”), respectively.
Brief background
[5] Mr. Booysen arrived at the farm in March 2005 1 with Ms de Jongh and his 4
siblings, three brothers and a sister . They resided with their father, Mr. Adam
1 Founding Affidavit, paragraphs 14 and 37, however, in paragraphs 10 and 35 of the Answering
Affidavit, the First Respondent states that he arrived at the farm in August 2005. There is a
contradiction in terms of the dates, however the substantive information is the same.
Booysen, who was at the time, employed at the farm by Mr . Charles Lambrechts .
They resided at the farm with consent from Mr. Charles Lambrechts, the owner of the
farm. Mr. Booysen was employed by the Company from 1 March 2005 2 until 19
August 2014 when he was dismissed from the employment. Ms de Jongh was
employed by the Company as a child caretaker and later worked as a domestic
worker in houses situated on the farm from 14 December 2005 until about 19 August
2014.
[6] Mr. Patrick de Jongh was also employed on the farm by the Company on a
seasonal basis, which came to an end on 8 August 2014. Mr. Adam de Jongh also
was employed on a permanent basis on the farm from February 2010 to 8 October
2014. The First, Second and Fourth Respondents’ employment officially terminated
on or about 18 November 2014, when a settlement agreement was reached between
the parties at the CCMA.
[7] Mr. Booysen was allocated a house on the farm in September 2005 , due to
his permanent employment, which required his residence on the farm. He still
occupies that house with Ms de Jongh, Mr. Patrick de Jongh and all occupiers listed
as the Fifth Respondents. According to the Applicants, M s de Jongh did not qualify
for a house, because she was not permanently employed in the farm.
[8] Mr. Adam de Jongh was allocated a house because he was a permanent
employee, however, the Applicants contend that he relocated off the farm during
March 2022 , though he left his belongings in that house, and he is currently in
custody, serving a prison sentence for murder.
[9] The Applicants state that none of the Respondents are eligible for housing on
the farm after Mr. Booysen’s dismissal from his employment. The reason underlying
the Respondents' occupation of the premises on the farm came to an end after the
termination of the Contract of Employment of Mr. Booysen.
2 Mr. Booysen states that he started work on the farm in September 2005, while the Applicants state
that he started on 1 March 2005.
[10] The Applicants have instituted proceedings for an order of eviction against the
Respondents. Mr. Patrick de Jongh and Mr. Adam de Jongh have not filed any notice
to oppose and/or the answering affidavit . They were not represented at the hearing,
and the representatives from the Legal Aid of South Africa (“Legal Aid”) indicated that
they do not have a mandate to represent them.
Issues to be determined
[11] Issues to be determined are whether:
a. the respondents qualify as “occupiers” under ESTA?
b. the right of residence of all the occupiers was lawfully terminated?
c. the applicants complied with procedural requirements under ESTA?
d. the eviction is just and equitable under sections 8 and 9 of ESTA?
e. the Plascon-Evans rule is applicable to this case?
f. Whether Mr. Booysen has a lien for the renovations he effected on the
house they lived in?
g. a default judgment should be granted against Mr Patrick de Jongh?
Applicants’ case
[12] In their founding affidavit, the Applicants argue that the Respondents’ right of
residence arose solely on the basis of Mr . Booysen’s employment on the farm and
that since Mr Booysen’s employment on the farm has been terminated fairly in terms
of the Labour Relations Act (“LRA”) . The dismissal was taken to the CCMA by the
First, Second and Fourth Respondents. A settlement agree ment was reached on
compensation and the date for the official termination of their employment. Then,
they sent the required notices in terms of sections 8(1) and (2). The application for
an order of eviction is on lawful ground in terms of section 8(1) of ESTA.
[13] Mr. Booysen was found guilty for absenteeism, use of crude language in the
workplace and insubordination towards his superiors, for which transgression various
warnings were issued against him . Ms de Jongh unilaterally absconded from work
after the disciplinary hearing was called against Mr. Booysen. She stayed out of work
after the disciplinary hearing was called against Mr. Booysen. She stayed out of work
and joined in the CCMA referral. Her employment also came to a lawful end on 18
November 2014. She is now employed by Mr. Coetzee on the neighbouring farm.
They further argue that Mr. Patrick de Jongh and the Fifth Respondent reside in the
premises with or under the Mr. Booysen and Ms de Jongh in terms of section 6(2)(d)
of ESTA.
[14] Despite lawful termination of Mr . Booysen’s Contract of E mployment, the
termination of the Respondents' right of residence as well as many opportunities
provided by the Applicants to resolve the matter amongst the parties, the
Respondents have failed and/or refused to vacate the premises on the farm
voluntarily as requested. The Applicants also contend that a ll alleged rights relied on
in terms of sections 3(4) and 3(5) have been lawfully terminated. The eviction will not
render them homeless because Ms de Jongh has an RDP house in Erf 1[...] Riebeek
Kasteel under Breede Valley Municipality occupied by her son.
[15] They contend that since Mr . Booysen is 47 years, he is not entitled to the
additional protection in terms of section 8(4) of ESTA. They state that they have
complied with the conditions for eviction as required in section 11 of ESTA and they
have given the required notice in terms of section 9(2)(d) of ESTA.
Meaningful engagement with the Municipality
[16] The Municipal report provides that there are no alternative accommodation,
low-income rental houses, emergency or temporary accommodation available, and
recommends that the Respondents apply to be included in the housing database.
The report also provides that an eviction order will render the Respondents
homeless.
[17] The Probation Report recommends that an eviction order should not be
granted as there is a risk of homelessness and some of the occupiers are children,
taking into consideration that Mr . Booysen and Ms De Jongh are long -term
occupiers. The report recommends that parties should pursue mediation . The
Applicants argue that the Probation Officer failed to take into consideration what is
Applicants argue that the Probation Officer failed to take into consideration what is
pleaded in the Founding Affidavit and did not engage the ir representative. One can
only conclude that there was no meaningful engagement between the Probation
Officer, the Municipality, the Department and all the parties. As a result, there is no
report from the Department and the Municipality that indicates the assistance to be
provided with regard to emergency, short term or long term accommodation, in terms
of section 4 grants of ESTA ,will be provided to the Respondents if they were to be
evicted.
Comparative hardship
[18] The Applicants state that, due to the Respondents' unlawful occupation, they
are unable to utilise the house to provide (adequate) housing for their employees,
and by being unable to do so, the Applicants’ employees as well as the effective
functioning of the farming activities are being seriously prejudiced. As a result, t he
Applicants are suffering an enormous amount of financial strain by not being able to
utilize the premises.
Respondents’ case
[19] Mr. Booysen signed the Contract of Employment on 15 September 2008,
three (3) years after he has been working at the farm and was already residing at the
house he is currently residing in with his family ; however, he argues that he did not
sign the Housing Agreement with a signature that purports to be his, dated 3
September 2013.
[20] He was appointed as a general worker, then as a driver, and later as an
excavator and earned an additional One thousand five hundred rands (R1500,00) for
working as an excavator , which was revoked in 2014 by Mr. Jan Geldenhuys who
was the manager of the farm at the time, whil e still being expected to continue
working as an excavator without the additional pay.
[21] He s tates that , between 2008 and 2009, he received building material from
the Applicants to effect extensions to the house which initially had two (2) bedrooms.
He built additional two bedrooms, a bathroom and an enclosed porch, by himself
with the help of his family , as it was agreed with the Applicants that he would build
the additional rooms at a cost or fee, but he was never remunerated for the work he
did.
[22] The c ircumstances that led to the dismissal of the Respondents from
employment and this application:
22.1 Around 2013 , Mr . Booysen became sick and was diagnosed with
tuberculosis and received treatment for a period of 6 months. His
health was materially deteriorating at that point and could not perform
his work efficiently. This resulted in him no longer being able to do the
excavator work as he previously did. Mr. Booysen contends that prior
to these incidents, he had been a diligent worker.
22.2 He challenges the reasons for his dismissal that he was dismissed for
offences committed by his son , Mr. Adam de Jongh .3 He also
challenges the reasons for the dismissal of Ms de Jongh, that on the
day she was dismissed, she went to work as usual and on arrival at the
premises she worked, she was informed by Mr. Jan Geldenhuys that
she is no longer employed at the farm as her employment terminated
with that of her husband. She was advised to handover the keys to her
area of work. She did not receive a formal letter for her dismissal or
was she provided with reasons on why she was dismissed. she was
not even subjected to a disciplinary hearing.
22.3 Mr. Booysen states that he did not attend any disciplinary hearings held
against him because he had already regarded himself as dismissed.
He and Ms de Jongh referred the matter to the CCMA, within two
months a settlement was reached with the Applicants for a payment of
their salaries for a period of two months. The Applicants were required
to pay them R5600,00 (Five thousand and six hundred rands), however
the Applicants only paid them 50% of the amount and stated that they
3 Answering Affidavit, paragraphs 41 to 42.
will only pay the rest when the Respondents vacate the premises. To
date, they have not received the balances of the settlement amount.
[23] Mr. Booysen opposes the eviction on the basis that:
23.1 The termination 4 of their right to occupy is unlawful because they are
occupiers as defined in section 3 of ESTA. The termination is not just
and equitable as provided for in terms of sections 8(1)(a) -(e) of ESTA,
taking into consideration the fairness of the agreement, provisions in
the agreement, or provisions of law which are relied on by the owner or
the person in charge and the conduct of the parties giving rise to the
termination. They have lived in the farm for about twenty (20) years.
23.2 They are occupiers in terms of section 11 of ESTA, therefore, their
eviction would not be just and equitable in terms of , sections 11(3)(a)-
(e) of ESTA. There is no suitable alternative accommodation,5 and they
would therefore be rendered homeless , as a result, the hardship they
would endure as occupiers would far outweigh the hardship to the
Applicants and that s ection 26 of the Constitution protects them from
being rendered homeless.
23.3 He further argues that Ms de Jongh is not an occupier under him, but
an occupier in her own right in terms of sections 3(4) and 3(5), and that
her eviction must comply with section 8 and 9 of ESTA.
Whether Plascon Evans is applicable?
[24] The Applicants’ representative, Advocate Montzinger, urged the Court to apply
the Plascon Evans rule because it is stated in the founding affidavit, that Mr .
Booysen received housing solely because of his employment at the farm, and that
Mr. Booysen confirmed it in the answering affidavit. The Applicants further argued
4 Answering Affidavit, paragraphs 67 to 70.
5 Taking into consideration that they lived in a four (4) bedroomed house with a bathroom and
enclosed porch and the lien they have over the house.
that Mr. Booysen made a bare denial without proof, that he did not sign the Housing
Agreement.
[25] The approach to factual disputes is set out in the well -known matter of
Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd .6 The rule set out
provides that “….where there is a dispute as to the facts, a final interdict should only
be granted in notice of motion proceedings, if the facts as stated by the respondents
together with the admitted facts in the applicant’s affidavits justify such an order… .
Where it is clear that facts, though not formally admitted, cannot be denied, they
must be regarded as admitted “. The rule ensures that a Respondent’s version
prevails if it contradicts the Applicant’s version and it is not far -fetched or clearly
untenable.
[26] The Respondents raised real, genuine, and bona fide dispute of facts:
a. Ms de Jongh is an occupier in her own right, in terms of section 3(5) of
ESTA, her right of residence is not dependent on Mr . Booysen’s right of
residence, and she is not affected by the termination of his Contract of
Employment. As set out in Klaase and Another v van der Merwe N.O.
and Others,7 that women are occupiers in their own right;
b. The Applicants did not comply with the requirements of sections 8 and 9 of
ESTA with regards to all the other Respondents, except for Mr. Booysen;
c. On the disputed signature on Housing Agreement, it cannot be rejected
as far-fetched or untenable . T he Respondents’ representatives, Ms
Mgedezi and Ms Julius argued that the Applicants failed to provide expert
evidence to confirm that the signature is that of Mr. Booysen.
d. Mr. Booysen indicated that there is no suitable alternative accommodation,
that the termination of their right of residence was not lawful and that if the
eviction is granted, it will not be just and equitable , and will lead to them
being homeless.
6 1984 (3) SA 623 (A) at 634E – 635D paragraph 8, see also Stellenbosch Farmers' Winery Ltd v
6 1984 (3) SA 623 (A) at 634E – 635D paragraph 8, see also Stellenbosch Farmers' Winery Ltd v
Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C).
7 Klaase and Another v van der Merwe N.O. and Others [2016] ZACC 17.
[27] Advocate Montzinger, argued that Ms de Jongh did not file her own
answering affidavit or a confirmatory affidavit on Caseline, as a result, everything
argued by their representatives is hearsay evidence, it is pro non scripto and
therefore cannot be considered by the Court.
27.1 In paragraph 81 of the answering affidavit, Mr. Booysen stated that: “ I
make this submission on the basis that if the second respondent is to
be evicted, it must be done so on the basis of her being an occupier
and not as someone who derived residence through me and the
agreement that I had signed. On this consideration, I submit that the
eviction against her ought to be dismissed.”
27.2 Ms Mngedezi pointed out that the confirmatory affidavit of Ms de Jongh
was filed in Court but not uploaded on Caselines, therefore the
evidence is not hearsay. The court found it in the hardcopy bundle.
27.3 Further, if the Applicants expected a separate answering affidavit from
Ms de Jongh, they should have issued a separate application against
her. They joined her in the application for the eviction of Mr . Booysen
and on the basis of grounds not applicable to her but to Mr Booysen.
[28] The Respondents raised real, genuine, and bona fide dispute of facts. I will
proceed to discuss the legal framework applicable to the facts of this case.
Whether a default judgment for an order of eviction, should be granted against
Mr. Patrick de Jongh and Mr. Adam de Jongh?
[29] Legal Aid stated that they represent the First, Second and Fifth Respondents
only. Advocate Montzinger inquired whether Mr. Patrick de Jongh, and Mr. Adam de
Jongh, have decided not to participate in these proceedings despite being served.
He stated that Mr. Adam de Jongh is actually serving a prison sentence . He said he
will address the Court on Mr. Patrick de Jongh, and Mr. Adam de Jongh later that the
application must be successful against both of them. However, he did not address
application must be successful against both of them. However, he did not address
the Court on the application for a default judgment to be granted against them.
[30] Section 18 of the Land Court Act 6 of 2023 provides that:
“A judgment by default may be granted by the Court in the manner and in the
circumstances determined in the rules: Provided that the Court must be satisfied that
there was proper service of the process by which the case was initiated.”
[31] Rule 58(5) of the Land Claims Court Rules provides that:,
“If any party applies for a default judgment, he or she must present the evidence
necessary to support the judgment.”
[32] In Basel v Mkhize and Another8 paragraphs 7 and 8, Gildenhuys AJ held:
‘…A claim for eviction under the Tenure Act is, in my view, not a liquidated demand,
and default judgment must not be given in the absence of supporting evidence.
The nature and extent of the supporting evidence will depend significantly on the
perspicacity of the judicial officer concerned in relation to the facts of each particular
case. Where the court has to exercise a discretion or make a value judgment, there
must be evidence on which that discretion or value judgment can be based. The
evidence need not necessarily be viva voce. In most instances, affidavits will
suffice.’9
[33] In the matter of Du Plesis v Mosia,10 in paragraphs 6 to 7, Bam JP held:
‘As far as the manner of service is concerned, it is correct that regulation 9(4)
formulated in terms of the Act, allows service by affixation to the door of the
occupier’s place of residence when personal service is not possible. However,
regulation 11(2) of these regulations implies that, not only must the court be satisfied
that service was effected in this manner, but also that a copy of the notice was in fact
received by the person on whom it was required to be served. There is nothing in the
record of the proceedings to indicate that the magistrate applied his mind to this
requirement.
8 Basel v Mkhize and Another (LCC33R/01) [2001] ZALCC 8.
9 See Havenga v Parker 1993 (3) SA 724 (T).
10 Du Plesis v Mosia LCC117R/04 [2005] ZALCC 3.
It is instructive to note that the Land Claims Court Rules state that when it is not
possible or feasible to effect personal service, in accordance with the provisions of
rule 4(2) of the Uniform Rules, the court may, on application, make an order
containing the requisite directions. 11 There is clearly a discrepancy here when
contrasted with the service by affixation sanctioned in the regulations by the Act.
Perhaps the situation should be addressed and reconciled by an appropriate practice
direction.’
[34] The Court inquired from Advocate Montzinger , if all Respondents received
notices, he responded that all notices were served on Mr. Booysen as he was at the
house and received notices on behalf of all of them. Then he said, we know that they
received them because there is no dispute in the papers that they have not received
these notices. This statement is farfetched because the very two Respondents that
he says did not dispute receipt of the notices, have not entered notices on the
intention to oppose, that is not an indication that there is no dispute, it could be that
they did not receive the notices . There was no Affidavit from Mr. Booysen that
declared that he forwarded the notices to Mr. Patrick de Jongh and Mr. Adam de
Jongh. The Applicants were required to prove that the notice was in fact received by
the person on whom it was required to be served , they cannot just assume that they
received it.
Legal framework
The material provisions of ESTA
[35] ESTA was promulgated to give effect to key constitutional 12 rights, section 25
on property, including the right to security of tenure and not to be arbitrarily evicted,
and section 26, the right of access to adequate housing. 13 Any termination of such
11 Rule 4(2) “If it is not possible to effect service in any manner aforesaid, the court may upon the
application of the person wishing to cause service to be effected, give directions in regard thereto.”
12 The Constitution of the Republic of South Africa, 1996
12 The Constitution of the Republic of South Africa, 1996
13 It seeks to protect vulnerable occupiers living on land falling within the ambit of ESTA from
unjustified evictions and the risk of homelessness. 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. Its aspirations as articulated in its Preamble is to
occupiers’ right of occupation must therefore comply strictly with the provisions of
ESTA.14
[36] The material provisions of ESTA include:
36.1 The occupier is defined in s ection 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 amount15;
36.2 Section 3 16 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
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. 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.
14 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 (6) SA 199 (CC) para 53 (Goedgelegen).
15 R13 625. 00.
16 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.
consent from the owner or person in charge, and shall only be
terminated in accordance with the provisions of section 8 of ESTA.
36.3 See also Misty Cliffs Farm (Pty) Ltd and Another v Christoffels and
Others17 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…’
36.4 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),
even when relying on subsections 8(2) and 8(3).18
(6) …
17 Misty Cliffs Farm (Pty) Ltd and Another v Christoffels and Others [2025] ZALCC 34 para 34
18 “8. Termination of right of residence
(1) Subject to the provisions of this section, an occupier’s right of residence may be terminated on any
lawful ground, provided that such termination is just and equitable, having regard to all relevant
factors and in particular to—
(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner
or person in charge relies;
(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship to the owner or person in charge,
the occupier concerned, and any other occupier if the right of residence is or is not terminated;
(d) the existence of a reasonable expectation of the renewal of the agreement from which the right of
residence arises, after the effluxion of its time; and
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.
36.5 Section 9 of ESTA 19 provides for the limitation of eviction. Section
9(2)(a) – (d) thereof require compliance with section 10 of ESTA , if the
person to be evicted was already an occupier on 4 February 1997 and
compliance with section 11 if the person became an occupier after 4
February 1997.
36.6 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 20
the court held that:
‘Section 8(1)21 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
19 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.
20 Snyders and Others v De Jager and Others (Appeal) 2017 (3) SA 545 (CC).
21 Section 8 of ESTA supra n 18.
[37] The Applicants argue that Mr . Booysen received housing as an employment
benefit for the duration of his permanent employment on the farm, which housing
benefit terminated on the date of his dismissal. The express terms of the
employment agreement that the Applicants and employees conclude, the employees
agree to vacate residence after the termination of their employment. The question in
this regard is, whether the employee knew these terms referred to in March 2005,
three years before he signed the Contract of Employment on 15 September 2008.
What transpired between September 2005 when Mr. Booysen was allocated a house
and 15 September 2008 when he signed the Contract of Employment? The law does
now allow a vacuum.
[38] Sections 1 and 3 of ESTA governs who qualifies as an “occupier”.
• “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) 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.
• Section 3 (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.”
[39] In Sterklewies (Pty) Ltd t/a Harris Feedlot v Msimanga & Others 22 at
paragraph 3, the Court held:
‘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
22Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others (456/2011) 2012 (5) SA 392
(SCA) (Sterklewies).
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.’
[40] In terms of section 3(5) of ESTA , the Second, Third and Fifth Respondents
are deemed to be occupiers because they have continuously and openly resided on
the farm for more than three (3) years , with the knowledge of Mr. Charles Johannes
Lambrechts the owner of the farm . In Sterklewies it was stated that ESTA 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. However, Mr.
Booysen conceded in the answering affidavit that he received a house due to his
employment at the farm.23
[41] The Applicant s contend that the dismissal of the First , Second and Fourth
Respondents from employment was fair in terms of the Labour Relations Act, and
therefore, the requirements of section 8(2) 24 of ESTA have been satisfied. However,
in terms of section 8(1), the Applicants must still satisfy the Court that the termination
of the rights of residence of the Second to the Fifth Respondents is on lawful ground,
and just and equitable.
[42] Whether Ms de Jongh has acquired the right of residence in her own right , in
Klaase and Another v van der Merwe N.O. and Others ,25 Matojane AJ stated in
paragraph 66:
‘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
23 Answering Affidavit, paragraph 10 he said:
“… I officially moved to the property I currently occupy with the second respondent in September
2005. I received the housing benefit as a result of being employed at the farm. I was not required to
pay for rental, electricity or water when I moved to the house.”
24 Section 8(2) of ESTA: “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.”
25 Klaase and Another v van der Merwe N.O. and Others 2016 (6) SA 131 (CC).
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’
[43] Also, Du Plessis AJ aptly responds to the question whether Ms de Jongh has
a right of residence in her own right or derives from Mr Booysen’s in the case of Van
Der Merwe N.O and Others v Stoffels and Others ,26 in paragraphs 12 to 16, she
states that:27
‘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, 28 especially in instances where an earlier verbal agreement
or continuous occupation established consent, 29 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
she derived her initial right of residence from her own employment (independent of
26 Van Der Merwe N.O and Others v Stoffels and Others (LanC2025/032788) [2025] ZALCC 44.
27 See also GD Kilpin Estates (Pty) Ltd v Carl van der Vywer and Others LCC 75/2019 [2026] ZALCC
16 para 30.
28 Misty Cliffs Farm (Pty) Ltd and Another v Christoffels and Others (LanC28/2025) [2025] ZALCC
34 paras 41 – 43.
29 In terms of section 3.
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.’
[44] The Applicants stated that Ms de Jongh did not qualify to be allocated a
house, therefore, t his means that she did not sign any Contract of Employment that
linked her right of residence to h er employment. Her right of residence is deemed in
terms of section 3( 5) of ESTA. She is an occupier in h er own right, as stated in
Klaase and Another v van der Merwe N.O. and Others 30 that “She is an occupier
entitled to the protection of ESTA.
[45] The Applicants argue that Ms de Jongh was joined in the application and she
received the notices to make meaningful representation why her residence should
not be terminated along with that of Mr Booysen’s because it was linked to his
Contract of Employment , as her right of residence was solely dependent on him
being continually employed in the farm by the Company. This is not a lawful ground,
for the termination of her right of residence, therefore, there is no compliance with
section 8 of ESTA, the eviction will not be just and equitable.
[46] The Applicants stated also that Mr. Patrick de Jongh was employed on the
farm by the Company on a seasonal basis, which came to an end on 8 August 2014,
during his employment he did not qualify to be allocated a house. It therefore means
that his right of residence is deemed in terms of section 3( 5) of ESTA. He is an
that his right of residence is deemed in terms of section 3( 5) of ESTA. He is an
occupier in his own right, and therefore, the termination of his right of residence
should comply with sections 8 of ESTA. The Applicants failed to satisfy the Court that
30 Klaase supra n25.
they have complied with section 8 of ESTA , in this regard. With regards to Mr. Adam
de Jongh, in paragraph 17 of the founding affidavit, the Applicants stated that:
Mr. Adam de Jongh is merely included in these proceedings for completeness
purpose, and should he return to the farm whilst these proceedings are pending.
Furthermore, since his relocation and imprisonment, the goods left behind by him on
the farm were moved to the premises in question and now stored with the
Respondents. He is therefore included herein, to allow the removal of his belongings
should an eviction order be granted.
[47] Mr Adam de Jongh was allocated a house at the farm, when he relocated as
stated by the Applicants, he had left his belongings in the house that was allocated to
him. The Applicants should have initiated a process of evicting him from the
residence he was allocated. Joining him for completeness does not evict him from
the house he was allocated and it is not a lawful ground . The Applicants refer to the
notices of the proceedings they initiated in 2014, which they withdrew. All the notices
of the application of 2014 that was formally withdrawn from court cease to exist as a
live matter, they have become irrelevant to the new application.
[48] In view of the substantive and procedural defects, the peremptory
requirements of section 8 were not met with regard to the Second to Fifth
Respondents. In the matter of Maluleke N.O. v Sibanyoni and Others 31 the Court
at paragraph 65 held that “a finding that the provisions of section 8 have not been
complied with, ends the matter”.
Further, i t 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 in Aquarius Platinum (SA) (Pty) v Bonene & others [2020] 2 AlI SA 323
(SCA), where the Court stated in paragraph 13 that:
(SCA), where 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
31 Timothy Maluleke N.O. v Daniel Philamon Sibanyoni and Others (LCC 2018/59) [2020] ZALCC
(Maluleke N.O v Sibanyoni and Others).
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.’
[49] Mr. Booysen conceded that he received residence because of his
employment. He also confirmed that he signed the Contract of Employment ,
however disputes the signature purported to be his on the signed Housing
Agreement. In terms of section 8(2), h is employment on the farm has been
terminated, fairly in terms of the Labour Relations Act (“LRA”) , the matter was
referred to the CCMA, a settlement was reached, the amount to be paid to Mr
Booysen and Ms de Jongh was agreed to , and it was also agreed that their
employment will officially be terminated on or about 18 November 2014 . Therefore
after the CCMA outcome, they issued notices required in terms of section 8 and 9.
However, the Court still has to be satisfied that there was compliance with section s 8
and 9 with regard to all Respondents.
Compliance with section 8 of ESTA
[50] The Applicants failed to satisfy the Court that there were lawful grounds in
terms of section 8(1) to terminate the right of residence of the Second to Fifth
terms of section 8(1) to terminate the right of residence of the Second to Fifth
Respondents. Failure to comply with the peremptory requirements of section 8 ends
the matter. Further, section 9 provides that a court may only issue an eviction order if
certain conditions are met. The first such condition being that the occupier’s right of
residence has been properly terminated under section 8. In this instance, the ir right
of residence was not properly terminated and the ground for termination is that of Mr.
Booysen on section 8(2) extended to them.
[51] It is trite that, even in eviction in terms of section 8(2) of ESTA, the onus is on
the Applicants to place information before the Court to enable it to have regard to the
facts the that the termination of Mr Booysen’s right of residence was on lawful
grounds and is just and equitable, having regard to all relevant factors and in
particular the list enumerated under section 8 (1) (a) to e):32
51.1 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. Booysen argues that he is an ESTA occupier, even though he
conceded that he received residence because of his employment
on the farm by the Company.
(b) He disputes the signature on Housing Agreement purported to be
his, which the Applicants rely on to prove that he agreed to the
terms of that agreement that his right of residence is dependent on
his continued employment on the farm by the Company.
51.2 with regard to subsection (b) the conduct of the parties giving rise to
the termination;
(a) Mr. Booysen stated that he was dismissed because of the
misconduct of his son, Mr . Patrick de Jongh, even though the
Applicant stated that there have been more than one disciplinary
hearings against him.
51.3 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;
32 Supra n 18.
(a) The probation report provided in terms of section 9(3) of ESTA
concluded that the Respondents 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 matter be
referred to mediation . However, the Applicant s submit 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 Respondents also argue that they will suffer more hardship if
evicted in comparison to the Applicant if eviction is not granted. In
the matter of Maluleke N.O. v Sibanyoni and Others it was held
that: “ Section 8(1)(c) requires the court to take into account the
issue of comparative hardship.”
51.4 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; and
(a) Though Mr. Booysen pleaded that there is reasonable expectation of
the renewal of the agreement, however, that seems highly unlikely.
51.5 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) Mr. Booysen argues that there was no meaningful engagement
between them and the Applicants, in order for them to make
meaningful representation, because the Applicant did not make
prior arrangements with them for a meeting to give them an
opportunity to make meaningful representations. The Applicants
attorney would just arrive without prior arrangement and therefore
did not find Mr Booysen because he would be out looking for a job.
Compliance with sections 9 and 11 of ESTA
[52] 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) , are
complied with. This was dealt with in the SCA matter of Mkangeli and Others v
Joubert and Others33 where the Court at paragraph 13 held in respect of sections 8
and 9 of ESTA:
‘As on 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 terminated 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) ).’
[53] The Applicants allege that the efficient carrying of his business is seriously
prejudiced and it creates financial losses and therefore it is critical that the dwelling is
made available for occupation by another person employed who has to be at the
made available for occupation by another person employed who has to be at the
farm in order to do his or her job. 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
33 Mkangeli and Others v Joubert and Others 2002 (4) SA 36 (SCA).
would be prejudiced and the nexus between their prejudice and the Respondents’
occupation.
Discussion
[54] In the founding affidavit at paragraph 38, the Applicants stated that the First,
Second and Fourth Respondent s took the matter to the CCMA and that the
settlement agreement was reached and they have paid the settlement amount.
[55] The Respondents in the answering affidavit dispute that the Applicants paid
the settlement amount in full, they content that the Applicants paid only 50% of the
agreed settlement amount and said that they will pay the remainder when the
Respondents vacate the residence. In the Replying Affidavit, the Applicants replied
that they paid the entire amount, however, they did not attach the proof of payment
of the total agreed settlement amount.
[56] Section 13 of ESTA34 deals with compensation in terms of the labour laws and
for improvements and provides that the court must determine whether the occupier is
34 13. Effect of order for eviction
(1) If the Court makes an order for eviction in terms of this Act—
(a) the court shall order the owner or person in charge to pay compensation for structures erected and
improvements made by the occupier and any standing crops planted by the occupier, to the extent
that it is just and equitable with due regard to all relevant factors, including whether—
(i) the improvements were made or the crops planted with the consent of the owner or person in
charge;
(ii) the improvements were necessary or useful to the occupier; and
(iii) a written agreement between the occupier and the owner or person in charge, entered into prior to
the making of improvements, provides that the occupier shall not be entitled to compensation for
improvements identified in that agreement;
(b) the court shall order the owner or person in charge to pay any outstanding wages and related
amounts that are due in terms of the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983 )
the Labour Relations Act or a determination made in terms of the Wage Act, 1957 (Act No. 5 of 1957);
and(c)the court may order the owner or person in charge to grant the occupier a fair opportunity to—
(i) …
(ii) …
(2)The compensation contemplated in subsection (1) shall be determined by the court as being just
and equitable, taking into account—
(a)the cost to the occupier of replacing such structures and improvements in the condition in which
they were before the eviction;
(b)the value of materials which the occupier may remove;
entitled to compensation for improvements made to the land with the owner's
consent.
Subsection (1) provides:
(1) If the Court makes an order for eviction in terms of this Act—
(b) the court shall order the owner or person in charge to pay any outstanding
wages and related amounts that are due in terms of the Basic Conditions of
Employment Act, 1983 (Act Noo. 3 of 1983), the Labour Relations Act or a
determination made in terms of the Wage Act, 1957 (Act No. 5 of 1957);
Subsection (3) provides:
(3) No order for eviction made in terms of section 10 or 11 may be executed before
the owner or person in charge has paid the compensation which is due in terms of
subsection (1): Provided that the Court may grant leave for eviction subject to
satisfactory guarantees for such payment.
[57] Mr. Booysen also contended that the effected improvements in the residence
he and his family occupy with the consent of the Applicants. The Applicants provided
building material to effect extensions to the house which initially had two (2)
bedrooms. He built additional two bedrooms, a bathroom and an enclosed porch, by
himself with the help of his family, as it was agreed with the Applicants that he would
build the additional rooms at a cost or fee, but he was never remunerated for the
work he did.
[58] The Applicants deny that the parties agreed to remunerate Mr Booysen for the
building works conducted. The Applicants contend that they agreed to the extensions
effected to the premises if he was willing to attend to the extensions himself. To
(c)whether any materials referred to in paragraph (b) or contributions by the owner or person in
charge were provided as part of the benefits provided to the occupier or his or her predecessors in
return for any consideration; and
(d)if the occupier has not been given the opportunity to remove a crop, the value of the crop less the
value of any contribution by the owner or person in charge to the planting and maintenance of the
crop.
crop.
(3)No order for eviction made in terms of section 10 or 11 may be executed before the owner or
person in charge has paid the compensation which is due in terms of subsection (1): Provided that
the Court may grant leave for eviction subject to satisfactory guarantees for such payment.
assist him, they provided all building materials at no cost. No monies are due to the
Respondent in this regard. Whether there was an agreement or not, the Applicants
were enriched by the labour of Mr Booysen in effecting the improvements.
[59] The South African Law followed article 10 of the Roman Dutch Placaaten of
1658,35 which denies a lessee or an occupier of rural land who effected
improvements on the farm or farmhouse and has not been compensated for that, the
right to enforce the lien over the farm or property in question. It provides that r ural
tenants or occupiers cannot refuse to vacate until compensated; they must first
vacate and then sue for compensation. 36 If an eviction order has been granted, a n
occupier must generally vacate the land , before they can institute a claim for
compensation for improvements.
[60] Subsection 13(1)(a)(iii) of ESTA requires that there be a written contract for
this court to make an order for payment for the improvements, however, Mr. Booysen
can consider approaching Legal Aid to assist him to sue for the outstanding
payments for the cost of the labour for effecting the improvements on the house.
Conclusion
[61] It is trite that the applicant must apply for a default judgment; it is not
automatic, even though Mr. Patrick de Jongh and Mr. Adam de Jongh failed to enter
a notice of intention to oppose. However, there is no proof that the notices were
personally serviced on them. No such evidence was presented to the Court to justify
a default judgment against Mr. Patrick de Jongh and Mr. Adam de Jongh. There was
no application for a default judgment , therefore, the Court cannot grant an order of
eviction in default. Further, Mr. Adam de Jongh resided in another house and left his
belongings there, the Applicants should have initiated his eviction from the house he
was allocated.
35 Spies v Lombard 1950 (3) SA 469 (A); see also Marschall v Schleyer and Others (32366/2020)
[2022] ZAGPJHC 743.
[2022] ZAGPJHC 743.
36 Business Aviation Corporation (Pty) Ltd v Rand Airport Holdings (Pty) Ltd [2007] 1 All SA 421
(SCA).
[62] Mr. Booysen conceded to receiving the house because of his employment in
the farm. The dismissal is fair in terms of the CCMA settlement agreement. In this
regard, section 8(2) has been complied with. The Applicants stated in detail how they
have complied with sections 8, 9 and 11 of ESTA , in this regard, the application
succeeds against Mr. Booysen.
[63] Due to failure of the Applicants to comply with the peremptory requirements of
section 8 of ESTA, with regard to the Second to Fifth Respondents, I am unable to
grant an order for their eviction.
[64] ESTA is specifically aimed at promoting the rights contained in sections 25(6)
and 26(3) of the Constitution, to ensure security of tenure for people with insecure
tenure. This right cannot be lost willy dilly, hence there is a strict requirement to
adhere to ESTA. In Hatting and Others v Juta ,37 Zondo J.38 said: “… The result is
that a court will not issue an eviction order against an unlawful occupier of land if it is
unable to find that the eviction will be just and equitable. The relationship of landlord
and tenant has also been infused with justice and equity. …”
[65] The Applicants must pay the balance of settlement amount, before Mr
Booysen vacates the farm, as provided for in section 13(3) as they have failed to
provide proof that they have in deed paid all the settlement amount agreed to.
Order
[66] Accordingly, I make the following order:
5. The application for an order for the eviction of the First Respondent is granted.
6. The date on which the First Respondent is to vacate the premises in terms of
section 12(1)(a) of ESTA (if he has not yet done so) is to be 4 November 2026
after he has been paid the outstanding agreed settlement amount owed to
him.
7. The application for an order for the eviction of the Second to Fifth
Respondents is dismissed.
37 Hatting and Others v Juta 2013 (3) SA 275 (CC) para 33.
38 As he then was referred to.
8. There is no order as to costs.
________________________
J MALULEKE
Acting Judge of the Land Court
APPEARANCES:
For the Applicants: MR MONTZINGER
Instructed by: OTTO THERON ATTORNEYS INC
For the First to Third Respondents: MS H JULIUS AND MS L MGEDEZI
Instructed by: LEGAL AID SOUTH AFRICA