IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Magistrate’s Case No: 3/2022
Court Online Case No: A2025-138009
Heard on: 16 September 2025 (further submissions 23 September 2025)
Delivered on: 23 April 2026
Reserved on: 3 March 2026
Revised on: 3 June 2026
In the matter between:
CHARMAINE JANTJIES First Appellant (deceased)
[1st Respondent in court a quo]
WILHELM JANTJIES Second Appellant
[2nd Respondent in court a quo]
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER
JUDGES: Yes☒ / No ☐
(3) REVISED: Yes ☒ / No ☐
Date: 03 June 2026
Signature:
2
JASON JANTJIES Third Appellant
[3rd Respondent in court a quo]
CHARNELLE JANTJIES Fourth Appellant
[4th Respondent in court a quo]
DENZIL JANTJIES Fifth Appellant
[5th Respondent in court a quo]
AND ALL OTHER PERSONS RESIDING WITH
OR UNDER THE FIRST TO FIFTH
RESPONDENTS IN THE PREMISES ON KROM
RIVIER FARM, GRABOUW
Sixth Appellant
[6th Respondent in court a quo]
and
JOSIAS SERFAAS STEPHANUS BEUKES N.O. First Respondent
[1st Applicant in court a quo]
JOSIAS STEPHANUS BEUKES N.O. Second Respondent
[2nd Applicant in court a quo]
ANTOINETTE CAROLINA BEUKES N.O. Third Respondent
[3rd Applicant in court a quo]
MARTINUS JOHANNNES STRYDOM N.O. Fourth Respondent
[4th Applicant in court a quo]
3
ELNA MOUTON N.O. Fifth Respondent
[5th Applicant in court a quo]
CAROLINA ELIZABETH VAN WYK N.O. Sixth Respondent
[6th Applicant in court a quo]
(The First to Sixth Respondents in their capacity as
trustees in the meantime of THE DENNEGEUR
TRUST (No: T591/87)
JS BEUKES (PTY) LTD t/a DENNEGEUR Seventh Respondent
[7th Applicant in court a quo]
JOSIAS STEPHANUS BEUKES Eighth Respondent
[8th Applicant in court a quo]
THEEWATERSKLOOF MUNICIPALITY Ninth Respondent
[7th Respondent in court a quo]
PROVINCIAL DIRECTOR OF THE
DEPARTMENT OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT
Tenth Respondent
[8th Respondent in court a quo]
Coram: Yacoob J, et Montzinger et Mabasa AJJ
ORDER
1. The appeal is upheld with costs.
4
2. The eviction order is set aside and substituted with the following
order:
“The application is dismissed with costs.”
JUDGMENT
Montzinger AJ:
Introduction
[1] This is an appeal against the judgment of Magistrate Vogt delivered on 17
March 2025 in the Magistrate's C ourt, Grabo uw evicting the first to sixth
Appellants, all ESTA1 occupiers, off the farm Krom Rivier, Caledon, in the Western
Cape Province.
[2] The A ppellants are Wilhelm, Jason, Charnelle and Denzil Jantjies, and
anybody residing with or under them as family members. Jason, Charnelle and
Denzil are the adult children of Wilhelm and the late Charmaine. Although the First
Appellant’s name still appears as party to the proceedings, she passed away since
the Magistrate’s Court judgment. For convenience, I will refer to the Appellants at
times collectively as “the Jantjies family” and where required their first names.
[3] The First to Sixth Respondents are the trustees of the Dennegeur Trust, the
registered owner of the Krom Rivier farm. The Seventh Respondent is JS Beukes
(Pty) Ltd t/a Dennegeur (the “Dennegeur Company”), and the Eighth Respondent
is Mr Josias Stephanus Beukes (“Beukes”), who acts in various capacities as
trustee of the Dennegeur Trust, director of the Dennegeur Company, and the
person in charge of the day -to-day farming operations on Krom Rivier. These
parties will all co llectively be referred to as the “R espondents” while the
1 The Extension of Security of Tenure Act 62 of 1997 (“ESTA”).
5
Theewaterskloof Municipality and the Provincial Director of the Department of
Agriculture, Land Reform and Rural Development, who were also joined to the
proceedings a quo, will be referred to as the “Municipality” and the “Department”,
respectively.
[4] In the court a quo, the Respondents sought the Jantjies’ family’s eviction on
the basis that the housing late Charmaine Jantjies received was tied to an
employment benefit. The late Charmaine was the only person employed on the
farm and when her employment was terminated following her dismissal in
November 2020, she lost the employment benefit of housing on the farm.
Consequently, since the Jantjies family’s rights to reside were dependent on the
late Charmaine’s continued employment it meant the end for all of them to continue
to reside in the house on the Krom Rivier farm. This was especially the case since
Wilhelm Jantjies, who also had a housing benefit tied to his employment,
voluntarily resigned from his employment during 2012.
[5] The Jantjies family opposed the eviction, but was ultimately unsuccessful in
doing so, as the court a quo granted the eviction. They therefore appealed to this
court seeking a reversal of the decision of the court a quo.
[6] The appeal was noted by the Jantjies family on 9 April 2025 but not
prosecuted within the prescribed time limits as per the Lan d Court and Uniform
Rules. The R espondents contend that the appeal has therefore lapsed. 2 The
Appellants have sought condonation for the non -compliance with the rules and
seek reinstatement of the appeal.
[7] In respect of the merits of the appeal the Jantjies family advance many
grounds of appeal. These grounds will be considered later in this judgment. First,
the factual context that permeate this matter is recorded.
2 See Rule 50 of the Uniform Rules of Court, which regulates appeals from Magistrate’s Courts to
this Court read with Rule 71 of the Land Court Rules.
6
The factual context
[8] Wilhelm Jantjies began working for the Dennegeur Company in 2003 on a
different farm, called Spioenkop which was adjacent to Krom Rivier. In 2005,
Wilhelm was promoted to assistant manager in the mechanical workshop and, due
to his new higher level of empl oyment, was allocated a manager's house on the
adjacent farm Krom Rivier. His family, the late Charmaine and their children also
received consent to reside with him in the manager’s house. Once on Krom Rivier
both Wilhelm and the late Charmaine worked on t he Krom Rivier farm in various
capacities over the years. The late Charmaine was also employed by the
Dennegeur Company.
[9] Wilhelm voluntarily resigned from his employment on the Krom Rivier farm
in 2012 to take up employment elsewhere. At that time, the late Charmaine was
still permanently employed by the Dennegeur Company as a general worker,
although the late Charmain e alleged in the answering affidavit that she was
employed as a domestic worker. There is no explanation on the papers of the
difference between a general or dom estic worker. In any event the A ppellant’s
case is that considering the employment position of the late Charmaine (not being
a manager) and because Wilhelm was no lo nger employed on the farm, the
Respondents informed the Jantjies family that they no longer qualified to occupy
the manager's house and should relocate to accommodation more appropriate to
the late Charmaine's level of employment (“ordinary house”).
[10] The Jantjies family initially refused to relocate from the manager to the
ordinary house. This led to litigation being instituted in 2018 in the Grabouw
Magistrate's Court seeking their relocation from the manager’s house to the
ordinary house they current ly occupy and to which the eviction order granted by
the Court a quo relate. The Grabouw Magistrate’s Court granted the relocation
7
order and the relocation from the manager’s house to the ordinary house was duly
executed by the Sheriff.3
[11] On 30 November 2020, following a disciplinary process, the late
Charmaine's employment was also terminated. According to the Respondents, she
was dismissed for continued absenteeism from work without reason or consent.
The dismissal was not challenged before the CCMA4 or any other forum. Following
the late Charmaine's dismissal, none of the Jantjies family were employed by the
respondents but some of the members were rather employed elsewhere or of
employable age but not employed on the farm.
[12] On 8 March 2021, the R espondents, through their attorneys Otto Theron
Attorneys Inc., served on each of the members of the Jantjies family a notice titled
Notice to Make Representations 5 in terms of section 8(1)(e) of ESTA. This notice
purported to invite them to make representations as to why their rights of residence
should not be terminated, or alternatively to discuss alternatives to eviction. On 8
December 2021, a further notice was served, this time terminating the Jantjies
family rights of residence and demanding that they vacate the house they occupy
on the Krom Rivier farm.
[13] The A ppellants did not vacate the premises. On 22 July 2022, the
Respondents launched the application in the Magistrate's Court seeking the
eviction of the Jantjies family.
Condonation and reinstatement of the appeal
[14] Being an appeal fr om the Magistrate’s Court, the A ppellants failed to
prosecute the appeal in accordance with the prescribed requirements as laid down
3 Except for the relocation order and warrant of relocation, the full details of the litigation concerning
the relocation did not form part of the appeal record.
4 Commission for Conciliation, Mediation and Arbitration.
5 The Afrikaans wording: "Kennisgewing om Vertoë te Rig".
8
by the Land Court Rules,6 the Uniform Rules7 and section 14(5)8 of the Land Court
Act 6 of 2023 (“LCA”). The joint effect of the af orementioned rules is that the
Appellants’ appeal in this instance was regulated by and had to be prosecuted in
accordance with Uniform Rule 50.
[15] The Magistrate’s Court judgment was delivered on 17 March 2025. The
notice of appeal was delivered in time on 9 April 20259. Thereafter, the appeal was
regulated by Uniform Rule 50 and had to be prosecuted within 60 days after the
noting of the appeal .10 In this instance that date was 9 July 2025. Unifo rm Rule
50(4) also requires an Appellant to apply within 40 days from noting the appeal to
apply to the registrar in writing for the assignment of a date for the hearing of th e
appeal. The Appellants were required to apply for a hearing date within 40 days of
9 April 2025, i.e., by 10 June 2025 and in terms of Uniform Rule 50(7)(a) two copies
of the record also had to be lodged with the registrar. Furthermore, Uniform Rule
7(2) requires the filing of a power of attorney when applying for a hearing date.
[16] The appeal record and an application for a hearing date, without a power of
attorney, was only filed on 26 August 2025. The appeal therefore automatically
lapsed on 10 July 2025 (being after 6 0 days from 9 April 2025). The A ppellants
were therefore two and a half months late in complying with the applicable Uniform
Rule. The Appellants filed a condonation application seeking condonation and the
reinstatement of the appeal.
[17] The legal principles that guide a court’s discretion in granting condonation
is well established and have been constantly ventilated by our courts, as
6 Land Court rule 71(1) provides: “…that any party that has ap pealed against a decision of a
Magistrate’s Court over which the Court enjoys appellate jurisdiction must prosecute such appeal
in the Court in the same manner as a civil appeal from a Magistrate’s Court to the Supreme Court
7 Uniform Rule 50.
7 Uniform Rule 50.
8 Section 14(5) of the LCA essentially provides for the same in respect of proceedings not regulated
by the Land Court Rules but for which provision is made in the Uniform Rules, with the necessary
changes required by the context.
9 According to Magistrate Court Rule 51(1) this was due within 20 days of the date of the judgment.
10 Uniform Rule 50(1).
9
condonation seems to be a regular feature of litigation. The foundational principle
is that condonation is not to be had merely for the asking.11 The Court exercises a
discretion in the interests of justice, considering (inter alia) the length of the delay,
the explanation covering the entire period, prospects of success, the importance
of the case, prejudice, and the need for finality .12 The explanation must be full,
detailed and accurate and cover every period of the delay .13 Ultimately, a court
evaluate condonation on whether the party seeking the indulgence has established
“good cause” .14 Although, with reference to proceedings in that court, the
Constitutional Court has also weighed in to suggest that the overall enquiry is
whether it is in the “interest of justice”15 to grant condonation.
[18] Where non-compliance with the rules or directions is because of the fault
of a litigant’s legal representative, certain additional considerations come into the
equation.16 In such a case, a court will be reluctant to penalise litigants for the
tardiness of their legal representative17 although there is a limit and where that limit
is reached the conduct and fault of a legal representative will be imputed to the
litigant.
[19] Ultimately both condonation and reinstatement of a lapsed appeal involve
the exercise of a judicial discretion having regard to whether good cause has been
established and if the interest of justice so demands. With the foreshadowed
principles in mind the reasons for the non -compliance and whether condonation
and reinstatement of the appeal should be ordered are now considered.
11 Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA)
at para 6.
12 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–F and other authorities.
13 Uitenhage TLC v SARS 2004 (1) SA 292 (SCA) para 6.
14 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 449G-H.
14 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 449G-H.
15 Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC) paras 23 and
25.
16 Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC) para 25.
17 Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) id at
140H-141B.
10
[20] The explanation for the delay, as paraphrased, is as follows. First, there
was initial confusion as to whether the matter would proceed by way of appeal or
automatic review in terms of section 19(3) of ESTA. The Clerk of the Court initially
indicated that the matter would be referred to this Court on automatic review. This
confusion was only clarified on 4 June 2025 when the office of the Judge President
confirmed that the matter would proceed as an appeal. Secondly, the Jantjies
family are assisted by Mr . Mohamed, who is in turn appointed by Legal -Aid and
approval from Legal Aid South Africa had to be obtained to prosecute the appeal.
That approval was only received by Mr Mohamed on 3 July 2025. The court file
then had to be obtained from the Magistrate's Court in order to prepare the appeal
record. The file was only received by the Magistrate's Court from the Acting Chief
Magistrate's office on 3 July 2025, and the A ppellants' attorney was only able to
uplift it on 13 August 2025. Thereafter Mr Mohamed fi led the required notice and
the appeal record, without a power of attorney, on 26 August 2025.
[21] The Respondents opposed the condonation application on several bases.
Ultimately, the proposition is that even accepting the explanations on behalf of the
Jantjies family, there were substantial unexplained gaps of several weeks at
various points where nothing was done to prosecute the appeal and that
consequently the appeal should be struck from the roll as having lapsed with costs.
[22] On consideration, I agree with the Respondents that the explanation for the
delay is not entirely satisfactory. However, there is at least a credible explanation.
First, the initial confusion regarding whether the matter would proceed as an
appeal or a review, while perhaps avoidable, was no t entirely unreasonable.
Section 19(3) of ESTA does provide for automatic review in certain circumstances.
The fact that the Clerk of the Magistrate’s Court initially indicated the matter would
The fact that the Clerk of the Magistrate’s Court initially indicated the matter would
proceed as a review, and t hat a review case number was actually allocated,
demonstrates that the confusion w as not merely a figment of the A ppellants'
attorney’s imagination. Secondly, the A ppellants are assisted by an attorney
appointed by Legal Aid. While this does not excuse all delays, it is a factor that
11
explains the time taken to obtain authorisation to continue the appeal. Thirdly, after
the review or appeal confusion was resolved and Mr Mahomed’s appointment was
confirmed the further delay was caused by the need to obtain the court file and
prepare the record. Fourth, the conduct that resulted in the non -compliance is
squarely at the feet of the attorney in this matter. Nothing in the record suggest
that the attorney’s conduct was so grievous that it reached a limit where the court
should punish the litigants for the attorney’s conduct.
[23] Ultimately, once the matter was allocated for a case management
conference the matter proceeded expeditiously. Directions were given at that
conference, and the parties complied with those directions. The appeal was heard
on 16 September 2025, less than six months after the judgment was delivered. In
the overall scheme of litigation, and particularly in the context of ESTA matters
which affect people's homes, this is not an inordin ate delay. Moreover, while the
Respondents correctly point out various respects in which the Appellants failed to
comply with the rules, I do not agree that the non-compliance warrant a refusal of
condonation and reinstatement of the appeal. Furthermore, except for a delay,
there was no prejudice to the Respondents' ability to prepare, participate and argue
the appeal.
[24] In considering condonation, we are required to consider whether there is
merit in the Appellants’ appeal. However, the case law requires us only to do so if
it is decisive of the issue of condonation. Having carefully reviewed the record and
the submissions, we are satisfied that whether there is merit in the grounds of
appeal is not decisive to determine whether condonation should be granted.
[25] Lastly, the interest s of justice certainly warrants that condonation be
granted, and the appeal be reinstated. The Appellants challenge an eviction order
that will result in their removal from a home they have occupied for over two
that will result in their removal from a home they have occupied for over two
decades. Whatever the merits of their grounds of appeal, they raise important
questions about the interpretatio n and application of ESTA. The A ppellants are
12
entitled to have the merits of their case heard not to be shut out on a procedural
basis where the explanation for delay, while imperfect, is not wholly lacking in
merit.
[26] With regard to the failure to file a power of attorney and considering the
effect and wording of Uniform Rule 7(2), non-compliance only prevents the appeal
from being allocated a hearing date. It does not have the same effect of causing
the appeal to lapse. After a request from the court, Mr Mahomed filed a power of
attorney.
[27] For these reasons condonation for the compliance with the rules regulating
the prosecution of an appeal is granted and the appeal is reinstated. We now turn
to first consider the criticism levelled at the notice of appeal and thereafter the
merits of the grounds of appeal.
The notice of appeal
[28] The notice of appeal sets out nineteen separate grounds of appeal a nd
covers multiple issues. The R espondents raised, as a preliminary point, that the
notice of appeal is either fatally defective as a whole or defective at least in respect
of certain of the grounds as it did not comply with rule 50(2) or with rule 51(7) of
the Magistrate’s Court Rules. Relying on the Scott-King judgment18 the argument
was that the notice of appeal was invalid as the requirements of the foreshadowed
rules are peremptory.19
[29] Particular criticism was directed at grounds 2, 3, 4, 8 and 12. It was
contended that these grounds are framed in broad and generic terms, do not
clearly differentiate between appeals on fact and appeals on law (or both), and do
18 Scott-King (Pty) Ltd v Cohen 1999 (1) SA 806 (W) at 810F.
19 Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA) 413D-E.
13
not identify with sufficient particularity the findings of fact or rulings of law said to
be wrong.
[30] There is certainly merit in the R espondents’ complaint. The grounds
identified by the criticism share a common deficiency. They are not drafted with
the concision and precision contemplated by the rules; they frequently employ the
criticism that the M agistrate “misdirected” herself “in fact and law”; and they tend
to conflate multiple complaints (sometimes at a level of generality) rather than pin-
pointing the particular factual finding(s) or legal ruling(s) said to be wrong.
[31] However, I am not persuaded that these defects, in the circumstances of
this appeal, justify the extreme consequence of dismissing the appeal without
regard to the entire merits of the appeal. First, the rest of the grounds in the notice
is fairly identif iable. Second, the notice makes plain that the appeal is directed
against the whole of the judgment and order. Third, although not artfully framed,
the impugned grounds are not unintelligible and, although with much effort, the
court can still extract the substance of the issue taken by the Appellants.
The test for appellate interference
[32] The question of whether and to what extent a court of appeal may interfere
with the findings of a court of first instance is one of the most well -ventilated and
established issues in our law. The starting point is the well -established principle
that a court of appeal has limited powers to interfere with the decision of a court of
first instance. As the Supreme Court of Appeal held in Malan:20
‘A court of appeal has limited powers to interfere with a decision of the court of first
instance. In relation to the first leg of the inquiry, which is factual, appeals are
subject to the general limitation that courts of appeal defer to the factual findi ngs
of courts of first instance (R v Dhlumayo 1948 (2) SA 677 (A)).’
of courts of first instance (R v Dhlumayo 1948 (2) SA 677 (A)).’
20 Malan and Another v Law Society of the Northern Provinces 2009 (1) SA 216 (SCA) para 12.
14
[33] However, the deference ordinarily accorded to a lower court's factual
findings in trial proceedings has a fundamentally different footing when the matter
on appeal was decided in motion proceedings, as is the case in this appeal. The
distinction is of central importance and was articulated with clarity, also in Malan21.
What the rule contemplates is that a court of appeal could interfere with a decision
of the court of first instance if that court decided the case on paper, i.e., application
proceedings, because in such a case the court of appeal is in as good a positio n
to judge the facts as was the court below.
[34] However, in respect of the circumstances when a court of appeal can
interfere with the exercise of a discretion by a lower court, the principle is that the
court of appeal is entitled to interfere depending on whether a ‘loose’ or “strict”
discretion was e xercised. A discretion in the ‘true’ or ‘strict’ sense allows for a
number of equally permissible courses open to the court of first instance. This may
be to grant or refuse a postponement or an order for costs. Whichever, option is
selected is entirely permissible as it requires a value-laden judgment informed by
all the relevant facts .22 In the case of that type of discretion, interference by the
appellate court is confined to narrow circumstances.
[35] A ‘loose’ discretion, by contrast, does not involve a choice between equally
permissible options. The court is simply at liberty to have regard to a number of
disparate and incommensurable features in coming to its decision. In the case of
this type of dis cretion, interference is permissible on a broader basis, whenever
the appellate court decides that its own outcome is more appropriate based on the
various factors it has considered.23 This is typically because the appellate court is
in an equally good position as the court of first instance to weigh the relevant
considerations.
21 Malan supra n20 para 12.
considerations.
21 Malan supra n20 para 12.
22Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and
Another 2015 (5) SA 245 (CC) para 85.
23 Trencon par 86 relying on Knox D’Arcy Ltd and Others v Jamieson and Others 1996 (4) SA
348 (A) at 361I.
15
[36] This appeal involves proceedings on motion in the Magistrate’s Court.
Accordingly, save to the extent that any finding turns on matters uniquely within
the Magistrate’s advantage, this Court is in as good a position as the court a quo
to evaluate the evidence on the papers and to decide the factual issues on the
record and to apply the Plascon-Evans24 approach to resolve genuine disputes of
fact. At the same time, where ESTA required the court a quo to exercise a
discretion, like whether the termination and the eviction are “just and equitable”,
that discretion would be one in the ‘loose’ sense that could warrant interference by
this court.
The grounds of the appeal
[37] While the notice of appeal consists of a multitude of grounds, on
consideration of the heads of arguments and oral argument, it is apparent that the
grounds substantially overlap. It is important to keep in mind that when the matter
concerns an eviction in terms of ESTA, section 9(2) sets four requirements. First,
the landowner must have terminated the occupiers’ right of residence in terms of
section 8. Second, the occupier must not have vacated the land after being given
notice by the landowner to do so. Third, the conditions for eviction in sections 10
or 11 of ESTA, where applicable, must be met. Fourth, the applicant must have
given the required notice in terms of section 9(2)(d) of ESTA. Once an eviction
order is granted the final issue for the court is to consider the date and conditions
for that eviction order.
[38] There are also other jurisdictional requirements that ESTA requires an
applicant, seeking the eviction of occupiers, to establish. That includes who may
institute an eviction application, whether ESTA applies to the type of land that is
the subject of the eviction and whether an occupier falls within the definition of an
occupier as defined in ESTA.
24 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
16
[39] It is apparent that the issues that were contentious in the court a quo were
the locus standi of some of the R espondents, whether the termination of the
consent was just and equitable and, lastly, whether it would be just and equitable
to grant an eviction order. Notwithstanding the difficulty in deciphering the notice
of appeal, those remained the core issues of substance that this court has to
determine when the court a quo’s judgment is considered.
Ground 1
[40] This ground is a procedural criticism and challenges the Magistrate’s
decision to proceed in the absence of the Ninth and Tenth R espondents, the
Municipality and Department respectively, and without them filing notices to abide.
In the heads of argument this ground was not treated as a separate ground but
rather discussed as a criticism that the court a quo failed to fairly balance the rights
and interests of the parties. Whether the eviction was just and equitable will be
considered later. It suffices for now to find that there is no merit in this ground.
[41] Section 9(2)(d) of ESTA only requires that notice of the application be
served on the Municipality and the Department and section 9(3) mandates the
Department to file a report dealing with the issues listed in section 9(3)(a )-(d). In
the case where a court is concerned that an eviction may result in homelessness
a Municipality is required to file a report dealing with such an eventuality. In this
matter both the Municipality and the Department ‘participated’ by filing reports. The
ground of appeal does not shed any further light on how the hearing of the matter
by the court a quo in the presence or absence of the Municipality and the
Department would have resulted in a different outcome in respect of the merits of
the matter.
17
Ground 2
[42] This ground appears in essence to propose that the court a quo did not
grant the eviction in due consideration of all the principles governing ESTA
evictions. The ground is not only vague but also generic and is probably an attempt
to group it also with the general attack that the court a quo did not consider whether
it was just and equitable to grant the eviction. The just and equitable attack on the
court a quo’s judgment will be considered later.
Grounds 3 and 4
[43] Both these grounds contemplate that there was a dispute of fa ct regarding
the income of the Appellants and that the court a quo should not have decided the
matter on the papers. It is correct that the Respondents challenged the Appellants
to make full disclosure regarding their income. The A ppellants never obliged and
the income of the A ppellants were only disclosed in the section 9(3) and
Municipality reports.
[44] In any event the issue of the Appellants’ income is not an issue that justifies
interference with the court a quo’s findings as the matter p roceeded on the basis
that the Appellants were occupiers as defined in ESTA. As per Stargrow,25 and the
judgments referred to in that judgment, the R espondents made th e minimum
allegations that the Appellants were ESTA occupiers and this was not disputed by
the Appellants.
[45] The danger with these gr ounds of appeal is that on the A ppellants’
proposition none of the A ppellants are ESTA occupiers if the s o-called dispute
regarding the A ppellants’ income as raised by the R espondents’ is upheld. This
means that the Appellants are indirectly suggesting that they either earn more than
25 Stargrow (Pty) Ltd v Ockhuis and Others 2018 (1) SA 298 (LCC) paras 47 – 55.
18
the prescribed amount of R 13 625,00 that would disqualify them as ESTA
occupiers or that the information about how much they exactly earn is in dispute.
[46] The further difficulty is that the knowledge of the Appellants’ income is within
their own knowledge and they had a duty to disclose it. These grounds raise a
contradiction and are without merit.
Grounds 5 and 6
[47] These grounds contemplate two issues. First that the A ppellants were not
properly served with the court application and second, relying on the authority of
Kayamandi,26 that it was not proper to include occupiers under the general citation
of ‘…all persons residing with or under…”.
[48] The criticism of non-service of the application papers has no foundation in
the record. The Second and Third A ppellants were personally served , while the
First and Fourth Appellants were served by servi ng a copy of the papers on the
Second A ppellant. The mann er of service on the First and Fourth Appellant is
permissible in terms of rule 9(3)(b) of the Magistrate Court Rules.
[49] Regarding the citation criticism of ‘…all persons residing with or under…’
as the Sixth Respondent. The first difficulty with this issue is that the full citation is
in fact: “..All other persons residing with or under the First to Fifth Respondents in
the premises on Krom Rivier Farm…” . Kayamandi, that the Appellant referred to,
and other judgments that followed all in substance take issue with the situation
where the Respondents are cited as an “unknown class” or “faceless” class of
people.27
26 Kayamandi Town Committee v Mkhwaso and Others 1991 (2) SA 630 at 634 (E-J).
27 City of Cape Town v Johannes Rooyen and Another (A23/2025) [2025] ZAWCHC 507.
19
[50] ESTA defines an “occupier” as a person residing on land belonging to
another who has, or on 4 February 1997 or thereafter had, consent or another right
in law to do so, subject to enumerated exclusions. ESTA further contemplates that
an occupier’s family o r dependants may reside with the occupier, and the case
law28 recognises that such persons may enjoy derivative or incidental protection
through the occupier’s status, without themselves meeting the statutory definition
of an occupier. The jurisprudence emphasises that the core protection of ESTA
attaches to the occupier.29 This means that while family members residing with the
occupier must be considered in a just -and-equitable analysis, they do not
automatically acquire independent occupier status merely by virtue of dependence
or co-residence. This has important consequences for joinder and the form of relief
in proceedings that target such dependants as opposed to proceedings dealing
with unknown land invaders.
[51] In ESTA cases, the persons against whom relief is sought are usually
clearly linked to an ESTA occupier (e.g. spouses, adult children or other
dependants residing in the occupier’s household) and who are either individually
cited by name and relationship, or described with a high degree of particularity as
was done in this case. Furthermore, the First to Fifth A ppellants were described
with sufficient particularity to identify them. They are not simply included under the
catch-all Sixth R espondent a quo . A lso, the A ppellants have not identified any
other person who should have been cited as an independent occupier in her/his
own right or such a person has not raised a criticism of non-joinder. Consequently,
those persons that resort under the Sixth Respondent a quo are not “faceless
Respondents” of the kind mentioned in Kayamandi (supra), and is there no merit
in these grounds of appeal.
28 Klaase and Another v van der Merwe N.O. and Others (2016 (6) SA 131 (CC) paras 63 – 64 read
28 Klaase and Another v van der Merwe N.O. and Others (2016 (6) SA 131 (CC) paras 63 – 64 read
with Hattingh and Others v Juta (; 2013 (3) SA 275 (CC).
29 Daniels v Scribante and Another 2017 (4) SA 341 (CC).
20
Ground 7.1.
[52] This ground takes issue with the applicants’ standing to institute the
application and while listed in the notice of appeal was not pressed in the heads of
argument. In paragraphs 8 – 17 of the founding affidavit the R espondents make
out the case for its locus standi. First, the Trust as the owner while in paragraph
15, JS Beukes (Pty) Ltd,30 the Dennegeur Company, is described. In paragraph 16
the Respondent described how the Dennegeur Company is in control of various
farm portions that is operated as one farming operation under the trading name
‘Dennegeur Boerdery’. Further that the Dennegeur Company has an oral lease
agreement with the Trust and is therefore in control of the farm. The allegations in
paragraphs 8 – 15 were not denied and only issue was taken with the allegations
is paragraphs 16 and 17.
[53] In paragraphs 18 – 19 of the founding affidavit the Respondents conclude
with the allegations in respect of locus standi. First, the Trust, as the owner, and
the Dennegeur Company as the person in charge. In paragraphs 17 and 19 the
allegations are also made that the deponent to the affidavit, Mr JS Beukes is
authorised to launch the eviction application and depose to affida vits. While the
allegations in paragraphs 16 and 17 of the founding affidavit were denied the rest
of these allegations were ‘noted’. Where an allegations is not expressly denied, it
is taken as being admitted.31
[54] So in actual fact the only real issue that is denied is whether Mr Beukes was
authorised on behalf of the Respondents to institute the proceedings and depose
to the affidavits. Therefore, it is an issue of authority and if the Appellants wanted
to challenge Mr Beukes’s authority it had to be done by employing the process in
Land Court rule 7(2), that requires a notice to dispute the authority of a person.
This was not done. The legal position is clear that the proper approach to challenge
This was not done. The legal position is clear that the proper approach to challenge
30 The Seventh Respondent in the appeal and seventh applicant in court a quo.
31 Moosa v Knox 1949 (3) SA 327 (N) at 331).
21
a person’s authority is by filing a notice32 in terms of the aforementioned rule. If no
notice, then the court can accept that the person acting on behalf of the party is so
authorised.
Ground 7.2
[55] This ground relates to the criticism that the court a quo incorrectly
determined that the late Charmaine was employed by the Seventh Respondent
and not the Sixth R espondent. Since this ground relates to issues involving the
late Charmaine they are no longer of any relevance as that defence would have
been open to the late Charmaine in her personal capacity.
Ground 8
[56] This ground essentially criticises the court a quo for having granted an
eviction order while the application did not comply with section 9(2) of ESTA. It will
be considered as part of those grounds that touch on court’s overall assessment
of whether ordering the eviction was just and equitable.
Ground 9
[57] This ground of appeal seems to suggest that the A ppellants denied in the
court a quo the basis on which the Appellants obtained consent, which the court a
quo found was by virtu e of the late Charmaine or the Second A ppellant having
been employed on Krom Rivier and by virtue of the operation of sec tion 3(4) and
(5) of ESTA. The Appellants seem to argue that they obtained consent by virtue of
the late Charmaine and the Second A ppellant’s employment contracts and their
32 Eskom v Soweto City Council 1992 (2) SA 703 (W); Cf Ganes v Telecom Namibia Ltd [2004] 2
All SA 609 para 19; Unlawful Occupiers, School Site v City of Johannesburg [2005] 2 All SA
108 (SCA),SMM Holdings (Pvt) Ltd v Southern Asbestos Sales (Pty) Ltd [2005] 4 All SA
584 (W); Creative Car Sound v Automobile Radio Dealers Association 1989 (Pty) Ltd 2007 (4) SA
546 (D); Umvoti Municipality v ANC Umvoti Council Caucus and Others 2010 (3) SA 31 (KZP) para
13.
22
right t o family life. Either way, the A ppellants all had consent which is a pre -
condition for a person to claim ESTA occupier status, whichever way, on the facts,
the court a quo may have determined the issue, it would not have af fected the
conclusion that the Appellants had consent.
Grounds 10, 11, 13, 14, 15 and 16
[58] These grounds all ultimately resolve themselves into the critici sm that the
termination of the A ppellants’ right to reside was not just and equitable. The
termination of an occupier’s right of residence is governed by section 8 of ESTA.
In particular section 8(1) which sets out the factors a court must consider in
deciding whether the termination of a right of residence is just and equitable. The
structure of section 8(1) requires the court to consider whether termination was
just and equitable both at a substantive and 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). 33 I first address
the substance of the decision to terminate and then the process.
[59] The Magistrate found that there was a general practice on the farm that
residence was linked to employment. This was a correct finding as the Appellants
admitted that their right of residence arose from their employment and therefore
tied to employment. Th is is also the position of the A ppellants if regard is had to
ground 9 of the notice of appeal. Section 8(1)(a) requires the court to consider the
fairness of the agreement or practice on which the owner or person in charge
relies. It does not require a fi nding that an employment -linked housing
arrangement is per se unfair. In the context of the agricultural sector the
arrangement is not uncommon that employment and provision of housing is linked.
Employees are often provided with housing as part of their e mployment package,
Employees are often provided with housing as part of their e mployment package,
and it is reasonable for employers or land owners to require that the housing be
33 Snyders and others v de Jager and Others 2017 (3) SA 545 (CC) para 56.
23
vacated when the employment ends, subject t o the protections in ESTA. The
Magistrate did not misdirect himself in finding that this arrangement was not
inherently unfair. There is thus no merit in ground 10 of the notice of appeal.
[60] In respect of ground 11 the court a quo found that the relationship between
the parties had deteriorated to such a stage that it was n ot possible to restore it.
The Respondents relied on the late Charmaine’ dismissal and Wilhem’s unilateral
resignation, the A ppellants’ refusal to relocate to alternative accommodation on
the farm, the criminal conduct and conviction of the Fifth A ppellant, and t he late
Charmaine allowing the Fifth A ppellant to occupy the house on the farm without
obtaining permission from the Respondents and disregarding the notice served on
the Fifth Appellant. The aforementioned incidents of conduct are all objectively
determinable and serious and can suffice as conduct that may convince a
landowner to make a substantive decision to terminate an occupier’s consent as
was done in this instance.
[61] A further difficulty with this ground of ap peal that it was argued on the
Appellants’ behalf that the Appellants relied on a legal relationship and not a social
relationship. That being the case it cannot be fair to suggest that the landowner
must continue to provide housing to the A ppellants in circumstances where the
legal relationship, i.e. employment, has seized and there is no other relationship in
existence between the parties.
[62] The issue raised in ground 13 of the notice of appeal has been discussed
earlier as it relates to the same issue of unknown group of people. I have already
found that in the context of this matter the notices were not served on unknown
people.
[63] Ground 14 in the notice of appeal also has some difficulty. The evidence on
the record is clear that R espondents invited each individua l Appellant to engage
the record is clear that R espondents invited each individua l Appellant to engage
with the Respondents more than once, and it is only when the Appellants’ erstwhile
24
attorney, Mr Boer, came on record that a meeting was facilitated. This meeting,
however, did not yield any fruit because the Appellants, through their then attorney,
and not the R espondents, failed to revert on the issue of alternative
accommodation for the Appellants so as to enable the R espondents to establish
how and to what extent they could assist the A ppellants. Neither Mr Boer nor the
Appellants personally reverted to the Respondents, despite a further request for a
response on 28 January 2022.
[64] With regard to the issue of mediation prior to institution of the application,
there is no support either in ESTA or the jur isprudence to suggest that the
Respondents were barred from instituting court proceedings to evict, only because
the parties did not pursue meaningful engagement. Meaningful engagement in
general developed as pre-litigation alternative dispute resolution mechanism in the
context of PIE evictions34 and where the landowner seeking eviction is the state.
Content to the concept of meaningful engagement was developed in the Olivia
Road case where the Court clarified that meaningful engagement is a salient
component of a reasonable state response to the housing programme. 35
Meaningful engagement means that the occupiers, owner and the relevant
municipality have to meaningfully engage on all aspects related to the eviction and
the provision of temporary shelter to those who require it.36 While the Municipality’s
engagement was not prior to the institution of the litigation, it did participate during
litigation and filed a report that was relevant to the court having to make its just
and equitable analysis.
[65] In respect of ground 1 5 in the notice of appeal, the A ppellants take issue
with the fact that notices terminating their consent was sent on behalf of Gemsbok
Boerdery (Pty) Ltd and the Dennegeur Company and the Beukes. It is apparent
that Gemsbok Boerdery is not a party to the present proceedings. It is peculiar that
that Gemsbok Boerdery is not a party to the present proceedings. It is peculiar that
34 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) paras 39-47.
35Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others 2008 (3) SA 208 (CC) (Olivia Road) para 17.
36 Olivia Road para 14.
25
the Trust is not mentioned in the invitation to make representations as well as the
termination notices. However, although unexplained, the fact that the Trust is not
mentioned in these notices does not mean that the Respondents were non-suited.
In any event, the Dennegeur Company as the person in charge of the Krom Rivier
farm certainly has locus standi to prosecute and litigate the Appellants’ eviction as
the application was not only premised on the basis that the Trust is the owner of
the farm.
[66] The fact that one notice was served on all members of the Jantjies family
also does not invalidate the process. As this court found in Belle Vallee 37 with
reference to Klaase:38
‘…when a landowner dismisses an employee and terminates his right to reside, it
cannot also terminate the right to reside of his family who have no other right to
reside on the farm. It can; as long as it takes a separate decision to do so, and that
decision is just and equitable . Often, but not inexorably, the termination of the
employee’s right of residence will justify terminating the right of other adult family
members who were given consent to reside because of his employment..’
[67] Furthermore, with regard to criticism leve lled in ground 16, each of the
Appellants were cited separately in the notices requesting representations and
also the termination and was also served individually on all the R espondents, as
provided for in the Magistrate Court rules and the regulations39 to ESTA in respect
of service.
37 Belle Vallee Vineyards (Pty) Ltd and Another v Lakey and Others (LanC15/2025) [2025] ZALCC
27 (24 June 2025) paras 90 – 91.
38 Klaase and Another v van der Merwe N.O. and Others 2016 (6) SA 131 (CC).
39 Regulations 9(4)(a – c).
26
Grounds 17, 18 and 19
[68] Ground 17 essentially takes issue with the court a quo’s conclusion that an
eviction would be just and equitable. There was no dispute that the Appellants are
section 11 occupiers and the just and equitableness of their eviction therefore had
to be assessed with due regard to the factors listed in section 11(3). These factors
are addressed i n turn. It is correct that the A ppellants had been residing on the
farm for more than 20 years since Wilhelm's initial employment in 2003 or even if
one dates it from their move from Spioenkop to Krom Rivier in 2005. The fact that
occupiers were on the property for a long time is an important factor that weighs in
favour of occupiers, but certainly not a determinative factor. In this case, while the
Appellants' long residence is a factor in their favour, it must be balanced against
the fact that their occupation was always conditional on employment, that the
employment relationship has ended, and that sufficient time has passed since the
end of employment for them to make alternative arrangements.
[69] On the evidence I cannot conclude that the Magistrate erred in finding that
the employment-linked housing arrangement was not unfair. At best this factor is
a neutral one or weighs slightly in favour of the Respondents.
[70] With regard to suitable alternative accommodation, the M agistrate found
that the Appellants had a number of years to seek alternative accommodation but
there is no evidence that they actively been looking. Furthermore, the
Municipality's report stated that the A ppellants' combined household income of
approximately R24,600 per month placed them above the threshold for emergency
municipal accommodation. The Municipality concluded that the household would
most probably not be rendered homeless in the event of an eviction given the
family's income level. The section 9(3) report took a more sympathetic view but did
not provide any objective evidence that suitable rental accommodation was
not provide any objective evidence that suitable rental accommodation was
unavailable in the area at a price the A ppellants could afford. There is also the
Respondents' evidence that they had offered to provide financial assistance (three
27
months' rent) to help the A ppellants secure alternative accommodation, but this
offer was refused.
[71] On the evidence before the M agistrate it was not so incomprehensible to
conclude that suitable alternative accommodation was available to the Appellants
or at least that they had the financial means to secure it. In any event should the
eviction of the A ppellants result in their homelessness, then the Municipality will
be obliged to make available emergency accommodation.
[72] Having considered all the factors in section 11(3) and the parties'
submissions, I conclude that the court a quo was not misdirect in finding that
eviction was just and equitable. While another court might have weighed some
factors differently, or reached a different conclusion, that is not the test on appeal.
The test is whether the M agistrate committed a reviewable error. I am not
persuaded that such error is present in this case, especially in light of the fact that
the court a quo exercised a discretion.
Order
[73] For all the reasons foreshadowed I would make an order in the following
terms:
1. The appeal is dismissed.
2. The Second to Fifth Appellants, and all other persons residing with or under
them (the Sixth Appellant) are ordered to vacate the farm dwelling on Marne
Farm, Portion 19 of the Farm Krom Rivier, number 317 (the “property”),
Caledon, Western Cape by 30 April 2026.
3. In the event that the Second to Fifth A ppellants, and all other persons
residing with or under them (the Sixth Appellant) fail to vacate the property
by 30 April 2026 the Sheriff is ordered and directed to evict them on any
weekday after 4 May 2026 on a day on which the weather is suitable (not
raining) for an eviction.
28
4. The South African Police Services are authorised to assist the Sheriff to
carry out this order.
5. The Ninth Respondent is ordered to provide emergency housing of a
dignified nature with access to services (which may be communal) to the
Appellants and all those occupying the property under them should the
Appellants’ eviction result in their homelessness.
6. There is no order as to costs.
Mabasa AJ (Yacoob J concurring):
Introduction
[74] I have had the benefit of considering the judgment penned by my colleague
Montzinger AJ. I agree with some of it, but I am unable to embrace and endorse
the whole judgment and order as it stands. In my view, the court a quo misdirected
itself in the following material respects:
ii) Failure to conduct an individualised “occupier” enquiry for each
Respondent a quo;
iii) Inadequate analysis of procedural fairness under section 8(1)(e) of
ESTA;
iv) Conflation of standing to litigate with statutory competence to terminate
rights of residence;
v) Inadequate consideration of s 11(3) and constitutional rights under
sections 25(6) and 26(3) of the Constitution;
vi) Failure to consider the material disputes of fact and the application of
the Plascon-Evans rule.
[75] Individually and cumulatively, these misdirections vitiate the eviction order.
29
[76] The factual background is fully set out in my colleague’s judgment and I am
grateful for its narrative. I will not repeat all of it but it is necessary to amplify some
of the facts relevant to my judgment here. I am in broad agreement with his findings
on condonation and reinstatement of the appeal. I only deal with our points of
divergence.
Are the Respondents a quo “occupiers” in their own right?
[77] In Klaase v Van der Merwe NO,40 the Constitutional Court recognised that
family members may acquire independent occupier status. Rights of residence do
not evaporate merely because they initially arose from empl oyment of a family
member. The A ppellants include adult children and other family members. The
court a quo was required to determine in respect of each Appellant:
a. Whether independent occupier status existed;
b. The basis of their consent;
c. Whether each right of residence was separately terminated; and
d. Whether termination in respect of each was just and equitable.
[78] The record does not demonstrate that such an individualised enquiry was
undertaken by the Magistrate. A collective approach to termination is inconsistent
with Klaase. The issue is whether the statutory precondition for eviction, i.e. lawful
termination, was met in respect of each occupier. No such finding was made . In
my view the failure to conduct an individualised enquiry constitutes a material
misdirection.
[79] The founding affidavit alleges that occupation derived solely from the First
Appellant’s employment.41 However in the answering affidavit it is alleged that all
Respondents are occupiers in their own right. This right accrued after the first year
40 Klaase and Another v van der Merwe N.O. and Others 2016 (6) SA 131 (CC) (Klaase).
41 Appeal volume 1index 29 at para35.
30
of residing on the farm42 not only through the First Appellant’s right to a family life,
but also through the assumption of tacit consent or the presumptions in ESTA.43
[80] Evidence regarding duration of the family’s occupation on the farm , and
composition of the family 44 is set out in the answering affidavit. 45 The family
consists of Wilhelm Jantjies, his three adult children Jason, Charnelle and Denzil
as well as two grandchildren Jayleze who is 4 years old and Amilio who is 8 years
old and in Dennegeur Primary School in grade 2.
[81] It is common cause that the Jantjies family have been residing on the farm
for 17 years and that they are occupiers under ESTA.
[82] Notwithstanding these facts the Magistrate’s judgment treats the Appellants
collectively and does not conduct an individualised enquiry. 46 No finding is made
on independent consent, individual termination or individualised fairness.
42 Appeal bundle vol2 -25 )at para67 and para 118.1
43 3. Consent to reside on land
(1) Consent to an occupier to reside on or use land shall only be terminated in accordance with
the provisions of section 8.
(2) If a person who resided on or used land on 4 February 1997 previously did so wit h 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 re sided
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 o f 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 effe ctive
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 continuo usly 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 continuo usly 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) The provisions of subsections (4) and (5) shall not be applicable to any land held by or
registered in the name of the State or an institution or functionary exercising powers on behalf of
the State.
44 Appeal bundle vol2 -12 at para 15.
45 Appeal bundle vol2 -31 at 112.
46 Vol 4 bundle-14 para 50.
31
[83] This omission is material because termination must be effected against
each occupier. Eviction cannot be granted against a person whose right was never
terminated. The failure to individualise constitutes a misdirection of law and fact.
Was there effective notice of termination of consent on each occupier?
[84] Section 8(1)(e) requires that termination be procedurally fair, including an
effective opportunity to make representations before the decision is taken.
[85] Identical notices were served on the Jantjies family but only the first
Respondent a quo received it. If a proper enquiry was done on the occupier status
of each respondent, it would have been clear that their rights of residence should
have been terminated separately and fairly, apart from the First Appellant’s
employment.
[86] I am not convinced that the single meeting with attorney Julian Boer
satisfied this requirement. 47 Procedural fairness requires genuine consideration
before a termination decision is finalised.
[87] The Magistrate’s judgment at paragraph 49 states “the court finds that the
applicants did comply with the requirements in section 8” . However, there is no
record of representations made and no evidence of consideration thereof. Further,
there is no indication that each occupier was afforded an opportunity to make
representations. The absence of such evidence renders the termination defective.
[88] In my view, the court a quo failed to determine whether the representation
opportunity was real, effective, and considered in good faith.
47 Founding affidavit at para 47.
32
“Owner versus person in charge” and the failure to resolve the competence
question
[89] ESTA distinguishes between “owner” and “person in charge.” A person in
charge is defined as one who has legal authority to grant consent to reside. It does
not automatically follow that such person may terminate residence rights in the
absence of proof of authority to do so.
[90] The termination notices were not clearly issued in the name of the
Dennegeur Trust as registered owner. This is not immaterial. In ESTA, lawful
termination is a condition for eviction. Any ambiguity regarding the competence of
the terminating actor cannot be dismissed as inconsequential. Proper statutory
interpretation requires attention to text, context and purpose, as set out in Natal
Joint Municipal Pension Fund v Endumeni Municipality.48
[91] The record reflects that the Trust is the registered owner. Resolutions
authorised the institution of eviction proceedings. The notices were issued through
Otto Theron attorneys referencing entities other than the Trust in its nomino officio
capacity.
[92] A resolution authorising eviction is not equivalent to authorising termination
under section 8 of ESTA . Termination is a prior and distinct act. Termination
extinguishes a right of residence; eviction enforces that extinguishment.
[93] No clear resolution authorising termination, nor evidence that the
termination notices were issued expressly on behalf of the Trust as owner, was
established.
[94] Where section 9(2)(a) of ESTA makes lawful termination a jurisdictional
fact, ambiguity or defect in that termination cannot be treated as immaterial.
48Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
33
[95] The reliance on the absence of a procedural authority challenge under Rule
7(2) conflates litigation authority with substantive statutory compliance. The latter
cannot be waived by procedural omission.
[96] In matters implicating fundamental rig hts, ambiguity regarding lawful
authority cannot be dismissed as trivial.
Was there proper termination of rights of residence?
[97] Section 9(2)(a) of ESTA requires that an occupier’s right of residence must
have been “terminated in terms of section 8” before eviction may be granted.
In Snyders v De Jager ,49 the Constitutional Court held that termination must be
both substantively and procedurally just and equitable. A defective termination
renders the eviction incompetent.
[98] The record reveals uncertainty regarding whether termination was effected
by, or on behalf of, the registered owner, the Dennegeur Trust, or whether the
authority relied upon extended beyond instituting eviction proceedings.
[99] Termination is not a formal step incidental to eviction. It is a substantive
jurisdictional prerequisite. Unless there is a lawful and just and equitable
termination under section 8, the court lacks competence to grant eviction.
[100] Standing to institute eviction proceedings does not cure a defective
termination. The enquiry under section 9(2)(a) remains whether termination
occurred lawfully and in compliance with section 8.
Section 9(2)(d): Notice to Municipality and Department
[101] Section 9(2)(d) requires not less than two months’ written notice to the
occupier, the municipality and the Department following termination. Although
municipal and probation reports were filed, participation during litigation does not
49 Snyders and Others v De Jager and Others (Appeal) 2017 (3) SA 545 (CC).
34
cure prior defects in termination or notice. It was stated in Blue Moonlight
Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue 50 meaningful municipal
involvement is central where eviction may result in homelessness. That obligation
presupposes compliance with statutory notice requirements.
[102] I cannot agree that the eventual filing of municipal and probation reports
constitute sufficient compliance. It confuses outcome with process. The statutory
requirement is not eventual participation but proper notice following lawful
termination. Where termination is defective or notices are not properly served on
each occupier, subsequent participation of the municipality and the Department
cannot cure jurisdictional non-compliance.
[103] If all the stakeholders were timeously engaged, it may have been possible
to explore options arranging suitable alternative accommodation for the Jantjies
family.
[104] There was no attempt to mediate the dispute. Even though mediation in this
case was not mandatory according to the recent Marais51 judgment, it remains a
valuable dispute resolution mechanism in ESTA evictions.
Section 11 (3): Inadequate constitutional balancing
[105] The M agistrate treated the A ppellants as section 11 occupiers . Section
11(3) requires a just and equitable determination, including consideration of:
a. The fairness of the agreement;
b. The conduct of the parties;
c. Comparative hardship;
50 Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue and Another [2010]
ZAGPJHC 3.
51 Marais NO and Another v Daniels and Others (LCC 130/2023; LCC 63/2023; LCC 98/2023;
LCC 27/2023; LCC 145/2022; LCC 163/2023; LCC 162/2023; LCC 105/2024) [2025] ZALCC 38 .
35
d. Availability of suitable alternative accommodation.
[106] The Magistrate relied heavily on joint household income of R24600, instead
of the individual income of each occupier. There is no detailed engagement or
finding on realistic access to alternative accommodation, the risk of homelessness,
or the proportionality of eviction to operational need.
[107] The comparative hardship enquiry also required a deeper examination of:
a. Duration of residence;
b. Family composition;
c. Dependency relationships;
d. Realistic relocation prospects;
e. The Respondents’ operational necessity.
[108] In my view that enquiry was not sufficiently undertaken. Eviction must be
just and equitable under section 26(3) of the Constitution. In Port Elizabeth
Municipality v Various Occupiers ,52 the Constitutional Court held that it is
necessary to balance competing rights contextually and proportionately. Undue
weight is placed on household income and municipal thresholds. Income alone,
however, does not establish availability of suitable alternative accommodation.
[109] The court a quo did not enquire whether the Appellants will be able to benefit
from a housing development in Grabouw, with monies potentially acquired from a
tenure grant in terms of section 4 of ESTA to purchase a home.53
Application of the Plascon-Evans rule
[110] It is clear from the record that several material disputes of fact existed
regarding housing policy, authority to terminate, individual consent and occupier
52 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
53 Vol 4 bundle -91 para 86.
36
status. Mr Mohamed, the counsel for the A ppellants, contends that the
Respondents failed to provide any evidence of a housing policy or agreement,
either oral or written. Instead, they mistakenly equate a purported employment
agreement with a housing agreement and c laim that all the A ppellants breached
it. He argues that there is no proof that termination of residence was communicated
to all the applicants, who are deemed occupiers, whose rights of residence derives
from the consent that must be presumed fr om the combined operation of ss3(4)
and (5) of ESTA.54
[111] Those disputes required careful resolution in favour of the Appellants unless
untenable. I cannot agree with the reasoning that resolves ambiguities against the
Appellants without demonstrating that their version was palpably implausible.
[112] Under Plascon-Evans the A ppellants’ version must prevail unless far -
fetched or untenable. Resolving disputes against the Appellants without
demonstrating inherent implausibility or referring to probabilities established by
objective evidence constitutes misapplication of the rule.
Cumulative effect of misdirections
[113] Even if I am wrong and each defect viewed in isolation might not be fatal,
their cumulative effect is decisive. ESTA is remedial legislation “umbilically linked
to the Constitution”.55 It must be interpreted purposively and in favour of security
of tenure. Where uncertainty exists regarding compliance with its protective
structure, eviction should not be granted.
Order
[114] In my view, the appeal should succeed. I make the following order:
54 Vol 4 bundle 81 para 48.
55Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC);
Klaase and Another v van der Merwe N.O. and Others 2016 (6) SA 131 (CC) para 51; Molusi and
others v Voges NO and others 2016(3) SA 370 (CC).
37
1. The appeal is upheld with costs.
2. The eviction order is set aside and substituted with the following
order:
“The application is dismissed with costs.”
________________________
S YACOOB
Acting Judge of the Land Court
________________________
A MONTZINGER
Acting Judge of the Land Court
________________________
D MABASA
Acting Judge of the Land Court
Appearances
Attorneys for the First to Sixth Appellants: Ashraf Mahomed Attorneys
Mr Mahomed
38
Attorneys for the First to Eighth Respondents: Otto Theron Attorneys
Counsel for the First to Eighth Respondents: Ms Oschman