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[2016] ZACC 6
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Molusi and Others v Voges N.O. and Others (CCT96/15) [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) (1 March 2016)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 96/15
In the matter
between:
SOPHY
MOLUSI
First Applicant
DAVID
MAMONGALO
Second Applicant
ISAAC
SELOLWANE
Third Applicant
K L
THWARISANG
Fourth Applicant
JOSEPH
RAMOKANE
Fifth Applicant
FRANS
MOKANSI
Sixth Applicant
and
FRANCIS DANIEL
JAMES VOGES
N.O.
First Respondent
FREDERIKA MARIA
CHRISTINA VOGES N.O.
Second Respondent
HEAD OF THE NORTH
WEST PROVINCIAL OFFICE
Third Respondent
OF THE DEPARTMENT OF
RURAL DEVELOPMENT
AND LAND REFORM
RUSTENBURG LOCAL
MUNICIPALITY
Fourth Respondent
Neutral citation:
Molusi and Others v Voges N.O. and Others
[2016] ZACC 6
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Nkabinde J, Nugent AJ and Zondo J
Judgment:
Nkabinde J (unanimous)
Heard on:
12 November 2015
Decided on:
1 March 2016
Summary:
Extension of Security of Tenure Act 62
of 1997
— unfair eviction — termination of the right of
residence — breach of lease agreement
Section 26(3) of the Constitution — right to
access to housing — common law ground of termination —
trial by ambush
ORDER
On appeal from the Supreme
Court of Appeal:
1.
Leave to appeal is granted.
2.
Condonation for the late filing of the
opposing papers is granted.
3.
The appeal is upheld.
4.
The orders of the Land Claims Court and
Supreme Court of Appeal are set aside.
5.
The application for eviction in the Land
Claims Court is dismissed.
JUDGMENT
NKABINDE J
(Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga
J, Nugent AJ and Zondo J concurring)
Introduction
[1]
Many of our people do not have secure
tenure of their homes and the land that they use.  They are
susceptible to unfair evictions.
Parliament has thus enacted
the Extension of Security of Tenure Act (ESTA),
[1]
to promote the achievement of long term security of tenure and
regulate the eviction of vulnerable occupiers from land in a fair

manner, while recognising the rights of land owners.
[2]
[2]
This is an application for leave to appeal
the decision of the Supreme Court of Appeal
[3]
dismissing the applicants’ appeal against their eviction which
was ordered by the Land Claims Court.
[4]
The core issue is whether the termination of the right of
residence and eviction of the applicants were in compliance with
the
relevant provisions of ESTA.  The Supreme Court of Appeal held
that they were, hence this application.
Parties
[3]
The applicants
[5]
occupied homes on Boschfontein farm (farm).  The farm is located
in a peri-urban area outside Rustenburg.  The first
and second
respondents (respondents) are the trustees of the Voges Family Trust
(Trust), which owns the farm. They oppose the application.
Neither
the third respondent, the Head of the North West Provincial
Office of the Department of Rural Development and
Land Reform, nor
the fourth respondent, Rustenburg Local Municipality, are before us.
They were cited by virtue of section
9 of ESTA and were served
with the eviction application.  No relief is sought against
them.
Background
[4]
The applicants’ occupation of the
houses was in terms of leases concluded with the Trust.  It is
common cause that the
applicants are occupiers in terms of ESTA.
[6]
Most of the applicants have been in occupation since about
2001.
[7]
The first and second applicants had identical written leases.
These leases provided for payment of a monthly rental.
The
third to sixth applicants had oral leases.
[8]
[5]
On 19 May 2009, the sheriff allegedly
served the applicants with notices dated 14 May 2009 terminating
their rights of residence
on the farm.  The reason for
termination is stated as breach of the terms of the agreement by not
paying rent despite demand.
The uniform notice addressed to the
applicants read:
“
NOTICE
TO OCCUPIER OF TERMINATION OF RIGHT OF RESIDENCE NOTICE IN TERMS OF
SECTION 8(1) OF [ESTA]
. . .
.
THIS
IS A VERY IMPORTANT NOTICE.  THIS NOTICE IS GIVEN TO YOU IN
TERMS OF [ESTA]
TAKE
NOTICE that the owner hereby gives you notice that your right to
reside in a room (a portion of housing structure) on the premises

Bochfonteinplot, Oorsaak in the district of Rustenburg is hereby
terminated.
TAKE
FURTHER NOTICE that you
failed to
perform in terms of the lease agreement
between yourselves and the owner/s of the property,
in
that you failed to pay the agreed monthly rental
since May 2008,
which amounted to a
fundamental breach of the lease agreement
,
and/or failed to rectify the position after receiving due demand, in
terms of which agreement your right of residence is herewith

terminated.
TAKE
FURTHER NOTICE that you are hereby given 2 (two) month notice to
vacate the premises.  Should you fail to vacate the premises

within 2 (two) month of receiving this notice the owner or person in
charge of the plot will apply to the Court for
inter
alia
an eviction order.”
[9]
(Emphasis added.)
The applicants did
not vacate the premises.
The constitutional and
legislative framework
[6]
Since all law including the common law is
now subject to constitutional scrutiny, the Constitution is the
starting point.  The
preamble to the Constitution states that
one of the purposes for its adoption was to establish a society
based, not only on democratic
values and fundamental human rights,
but also on social justice.  Moreover, section 26(3) of the
Constitution protects everyone
from being “evicted from their
home, or hav[ing] their home demolished, without an order of court
made after considering
all the relevant circumstances” and
provides that “[n]o legislation may permit arbitrary
evictions”.
[7]
To ensure the realisation of this under
section 26(3), Parliament enacted ESTA.  Parliament sought to
limit homelessness by
respecting, protecting, promoting and
fulfilling
[10]
the right to access to housing.  The legislation was enacted,
amongst other things, to improve the conditions of occupiers
of
premises on farm land and to afford them substantive protections that
the common law remedies may not afford them.  Chapter
IV of
ESTA, covering sections 8 to 15, deals with the rights of residence,
and eviction.
[8]
Section 8 deals with circumstances under
which the right of residence may be terminated.  In terms of
this section, the termination
must be on “any lawful ground”.
The section further makes a proviso that the termination of the right
of residence
must be just and equitable, “having regard to all
relevant factors”.  These factors, set out in section
8(1),
make it clear that fairness plays an important role.
[11]
They are:
“
(a)
the fairness of any agreement, provision in an agreement, or
provision of law on which the owner
or person in charge relies;
(b)
the conduct of the parties giving rise to the termination;
(c)
the interests of the parties, including the comparative hardship to
the owner or person
in charge, the occupier concerned, and any other
occupier if the right of residence is or is not terminated;
(d)
the existence of a reasonable expectation of the renewal of the
agreement from which
the right of residence arises, after the
effluxion of its time; and
(e)
the fairness of the procedure followed by the owner or person in
charge, including
whether or not the occupier had or should have been
granted an effective opportunity to make representations before the
decision
was made to terminate the right of residence.”
[9]
Section 9 is entitled ‘Limitation on
eviction’.  It provides:
“
(1)
Notwithstanding the provisions of any
other law
, an occupier may be evicted
only
in
terms of an
order of court issued under
this Act
.
(2)
A court may make an order for the eviction of an occupier if—
(a)
the occupier’s right of residence has been terminated in terms
of section 8;
(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 sections 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 a court has, after the
termination of the right of residence, been given to the occupier,
the
municipality and the head of the relevant provincial office of
the Department of 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.”  (Emphasis added.)
[10]
Section 11 regulates the eviction of a
person who becomes an occupier after 4 February 1997.
It provides:
“
(1)
If it was an express, material and fair term of the consent granted
to an occupier to reside on
the land in question, that the consent
would terminate upon a fixed or determinable date, a court may on
termination of such consent
by effluxion of time grant an order for
eviction of any person who became an occupier of the land in question
after 4 February
1997, if it is just and equitable to do so.
(2)
In circumstances other than those contemplated in subsection (1), a
court may grant
an order for eviction in respect of any person who
became an occupier after 4 February 1997 if it is of the opinion that
it is
just and equitable to do so.
(3)
In deciding whether it is just and equitable to grant an order for
eviction in terms
of this section, the court shall have regard to—
(a)
the period that the occupier has resided on the land in question;
(b)
the fairness of the terms of any agreement between the parties;
(c)
whether suitable alternative accommodation is available to the
occupier;
(d)
the reason for the proposed eviction; and
(e)
the balance of the interests of the owner . . . the occupier . . . on
the land.”
Litigation history
Land Claims Cour
t
[11]
The litigation in the Land Claims Court was
a sequel to the termination of the applicants’ rights of
residence in May 2009.
[12]
The case of the respondents was that the applicants were in breach of
a material term of the lease in that they failed or
refused to pay
rental, hence the cancellation.
[13]
The applicants denied that they failed to pay monthly rental.
They alleged that they tendered payment of the rental
during May 2009
but the respondents refused to accept payment because they proposed
to demolish the structures the applicants occupied.
The
applicants further denied that they received notices of termination.
In argument the respondents changed tack more
than once.  They
did not pursue the reason for termination mentioned in the notice of
termination.  First, the respondents
changed from the original
case based on breach for failing to pay rental to an alleged need to
develop the property as the reason
for the eviction.
[14]
They then changed tack again and relied on ownership and that under
the common law a periodic lease can be terminated on
reasonable
notice.
[15]
[12]
The Land Claims Court held that, in
exercising its discretion whether to grant the eviction, it was bound
to consider whether “the
right of [residence]” had been
terminated in accordance with ESTA and whether the procedural
requirements were met.
[16]
The Court recognised that the granting of eviction would
ineluctably render the applicants homeless.
[17]
It accorded the respondents’ right of ownership greater
weight than the rights of the applicants as occupiers.
[18]
The Court held that, although the respondents did not comply
fully with the service directives, the applicants had become
aware of
the application and all the procedural requirements were met.
[19]
[13]
The Court considered whether sections 8 and
9 had been complied with, in particular whether the respondents had
shown that it was
just and equitable to terminate the applicants’
rights of residence and to evict them.  It accepted the
respondents’
argument that under the common law a periodic
lease may be terminated on reasonable notice by either the lessor or
the lessee.
The Court held that section 9(2) read with
section 8 had been complied with as the principal reason for
termination was that
the respondents needed the land for further
development.
[20]
It granted an order evicting the applicants from the premises.
[21]
Supreme Court of Appeal
[14]
The appeal before the Supreme Court of
Appeal was with the leave of the Land Claims Court.
[22]
The issues for determination were whether section 9 read with section
8 was complied with and whether the respondents, having
grounded
their termination of the applicants’ rights of residence on a
breach of a material term of each of the agreements
‒ being
failure to pay the agreed rentals ‒ were entitled at the
hearing before the Land Claims Court to rely on the
common law ground
of termination by reasonable notice.
[23]
[15]
The Supreme Court of Appeal accepted that
affidavits do not only constitute  evidence, but also fulfil the
purpose of pleading
and that they must set out the cause of action in
clear and unequivocal terms to enable the respondent to know what
case to meet.
[24]
The Court remarked:
“
[T]he
ground for the
termination of the lease
agreement
was not the cause of action.
The cause of action upon which the respondents relied in
seeking the eviction order
was
cancellation of the lease agreements
,
elaborated upon as follows: (1) that on 18 or 19 May 2009 the
respondents cancelled the lease agreements they had concluded with

each one of the occupiers; (2) that a notice of cancellation was
served on each occupier; (3) that each occupier’s right
to
occupy the property terminated on 19 May 2009; and (4) that
the occupiers have failed to vacate the property.
The
respondents’ case boiled down to this: their cancellation
resulted in the occupiers’ right of residence being terminated

and, on termination the occupiers, as lessees, were under a duty to
vacate the leased property.”
[25]
(Emphasis added and footnote omitted.)
[16]
The Court went on to say:
“
[C]ounsel
for the respondents was perfectly entitled to rely (as he did) on
such common law grounds as availed the respondents in
support of the
pleaded claim for eviction.  What mattered was whether a proper
foundation for such argument had been laid
in the founding
affidavit.  In my view, the answer is in the affirmative.
In this regard it is perhaps important to
distinguish between a
proper factual foundation in support of the relief sought, on the one
hand, and legal argument, on the other
and to appreciate that it is
ordinarily impermissible for legal argument to be raised in an
affidavit.  It thus seems to me
that the notion of a trial by
ambush is misplaced when, as happened here, a single cause of action
is relied upon, which finds
support in the pleaded case.
Properly understood, the respondents’ case was that the lease
agreement had come to an
end either because they had been validly
cancelled for non payment of rentals or alternatively, as the
respondents were entitled
to, at common law, they had given
reasonable notice of termination of the lease agreements to the
occupiers.  In either event
the result was termination of the
lease agreements, with the consequence that the occupiers were
obliged to vacate the leased property.”
[26]
[17]
The Supreme Court of Appeal concluded that
reliance on the common law ground of termination of the leases was
covered in the papers
and the applicants were neither misled, nor
ambushed at the trial.
[27]
The Court then said that the failure by the occupiers to pay rental
was an adequate ground for termination of the leases.
[28]
It remarked that the respondents did not abandon the ground of
termination as contained in the notice of termination but
“
counsel
. . . simply chose to argue the case on another basis which . . . he
was perfectly entitled to do.  That basis was
that it was not
necessary for the respondents to set out the ground they did in the
founding affidavit and, to the extent that
they did so, that was
simply surplus to their cause of action.”
[29]
[18]
The Supreme Court of Appeal held that
failure by the lessee to pay the agreed rental on the due date is a
lawful ground for the
termination of a right of residence.
[30]
It held that section 8(1)(d) was not relevant to this matter.
[31]
Regarding section 8(1)(e) the Court said that the procedure
followed in giving written notices of the termination of the
right of
residence and affording the occupiers two months to vacate the
premises was fair.  The Court agreed with the Land
Claims Court
that there was compliance with section 8(1) of ESTA.
[32]
The Court concluded that the termination of the right of
residence was just and equitable.
[33]
[19]
The Supreme Court of Appeal referred to
Brisley
[34]
regarding the circumstances a court is required to consider before
issuing an eviction order.  In that case the Court, with

reference to section 26(3) of the Constitution, held that the
circumstances a court is required to consider can only be relevant
if
they are “
legally
”
relevant.
[35]
The Supreme Court of Appeal correctly distinguished this case
from
Brisley
because, here, the “ejectment against an unlawful occupier [is]
limited by the provisions of ESTA”, and because “reliance

on the common law does not exonerate the owners from compliance with
the provisions of . . . ESTA”.
[36]
[20]
The minority in the Supreme Court of Appeal
would have upheld the appeal as the conduct of the respondents, in
changing tack so
often, was held to be “trial by ambush”.
[37]
In this Court
[21]
Apart from the preliminary issues relating
to condonation for the late filing of the opposing papers by the
respondents and whether
leave to appeal should be granted, the issues
are similar to those presented before the Supreme Court of Appeal.
Condonation
[22]
The respondents seek condonation for the
late filing of their opposing papers which were late by two days.
The application
is not opposed.  The delay is short and there is
no apparent prejudice.  The explanation given is acceptable.
I
would condone the belated filing of the opposing papers.
Leave to appeal
[23]
There can be no doubt that the matter
engages a constitutional issue of importance as the dispute relates
to the courts’ application
of ESTA, reform-driven legislation
giving effect to the Constitution, in particular, section 26(3).
The matter also raises
an issue regarding the interface between the
common law and that legislation.  The issues require
consideration by this Court.
There are prospects of success.
It is thus in the interests of justice to grant leave to appeal.
Was reliance on the
common law ground correct?
[24]
The issue for determination is whether the
Land Claims Court and Supreme Court of Appeal were correct in
deciding the matter on
the common law ground that was not pleaded.
I mention at the outset that a discussion of this question will,
unavoidably,
somewhat encapsulate certain aspects that form part of
the next question, particularly with regard to sections 9(2) and 8(1)
of
ESTA.
[25]
The respondents maintained that
cancellation of the periodic lease is not dependent on breach and
that the only prerequisite for
cancellation is reasonable notice.
They rely on pre-Constitution authority.
[38]
They submitted that the applicants’ “hysteria”
about the application of the common law by the Supreme Court
of
Appeal
is inappropriate.
[26]
The determination of this issue requires a
consideration of the notice in terms of section 9(2) of ESTA and the
pleadings.
The section requires that the written notice of
intention to obtain an order for eviction “shall . . . set out
the grounds
on which the eviction is based”.
[39]
The case for eviction that the applicants were confronted with,
in accordance with the notice and the pleadings, was based
on the
lawful ground for cancellation of the lease agreements because of
non-payment of rentals.
[27]
It is trite law that in application
proceedings the notice of motion and affidavits define the issues
between the parties and the
affidavits embody evidence.  As
correctly stated by the Supreme Court of Appeal in
Sunker
:
[40]
“
If
an issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it.  It is a fundamental
rule
of fair civil proceedings that parties . . . should be apprised
of the case which they are required to meet; one of the

manifestations of the rule is that he who [asserts] . . . must . . .
formulate his case sufficiently clearly so as to indicate
what he is
relying on.”
[41]
[28]
The purpose of pleadings is to define the
issues for the other party and the Court.  And it is for the
Court to adjudicate
upon the disputes and those disputes alone.
[42]
Of course, there are instances where the court may, of its own accord
(
mero motu
),
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case as long as its consideration

on appeal involves no unfairness to the other party against whom it
is directed.
[43]
In
Slabbert
[44]
the Supreme Court of Appeal held:
“
A
party has a duty to allege in the pleadings the material facts upon
which it relies.  It is impermissible for a plaintiff
to plead a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial
court to have recourse to
issues falling outside the pleadings when deciding a case.”
[45]
[29]
The section 9(2) notice makes no mention of
the reliance on ownership or common law reasonable notice.
These grounds were
impermissibly raised for the first time in
argument before the Land Claims Court.  This much was noted by
that Court and the
Supreme Court of Appeal.  I do not agree that
the respondents were “perfectly entitled to rely . . . on such
common
law grounds as availed [them] in support of the pleaded claim
for eviction as a single cause of action”.  Section 9(1)

is manifest that “notwithstanding the provisions of any other
law, an occupier may be evicted
only
in terms of an order of court under this Act.”
[46]
The phrase “any other law” includes the common law.
[30]
Had the Court paid due regard to the
constitutional imperatives in section 26(3) and the special
constitutional regard for the occupiers’
place of residence,
which they regarded as their home, it would have reached a different
decision.  It would not have granted
eviction on the mere ground
that the termination of the lease was lawful.  If that were the
case, the considerations in sections
8, 9 and 11, including those of
justice and equity, would be rendered redundant: that would make a
mockery of the constitutional
scheme regarding the regulation of
eviction of vulnerable occupiers from land to achieve long-term
security of land tenure in a
fair manner.
[31]
The emphasis on the phrase “just and
equitable” in sections 8 and 11 of ESTA, to borrow the words
used by Sachs J in
PE Municipality
,
[47]
“underlines the central philosophical and strategic objective
of [the Prevention of Illegal Eviction from and Unlawful Occupation

of Land Act 19 of 1998 (PIE)]”.
[48]
The Court said that the phrase makes it plain that the criteria to be
applied are not purely of a technical kind that flow
ordinarily from
the provisions of land law.  It remarked:
“
The
emphasis on justice and equity underlines the central philosophical
and strategic objective of PIE.  Rather than envisage
the
foundational values of the rule of law and the achievement of
equality as being distinct from and in tension with each other,
PIE
treats these values as interactive, complementary and mutually
reinforcing.  . . .
The
court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable

principles of an ongoing, stressful and law-governed social
process.”
[49]
These remarks were
made in a case relating to PIE but they are equally apposite in this
case.
[32]
The Supreme Court of Appeal said that
reliance on the common law ground of termination of the lease
agreements was “covered
in the papers” in that the
respondents averred in the founding affidavit before the Land Claims
Court that in their capacities
as trustees they are nominal owners of
the farm, had concluded lease agreements and terminated the
occupiers’ right of residence
and that the occupiers failed to
vacate the property.  The Supreme Court of Appeal decided the
matter on the alleged alternative
common law grounds and relied on
what that Court said in
Putco
:
[50]
“
Where
a party seeks to terminate an agreement and relies upon a wrong
reason to do so he is not bound thereby, but is entitled to
take
advantage of the existence of a justifiable reason for termination,
notwithstanding the wrong reason he may have given.”
[51]
[33]
That statement must be understood in the
context in which it was made.
[52]
It relates to substantive grounds justifying the termination of an
agreement.  It does not relate to formulation of
pleadings.
Moreover, the case did not concern the application of a statute, more
particularly ESTA.  The statement above
flies in the face of the
requirement in section 9(2) that is couched in peremptory language.
That section requires that the
written notice of intention to obtain
an order for eviction “shall . . . set out the grounds on which
the eviction is based”.
It is common cause that the
ground set out in the notice for the eviction as required by section
9(2) did not include the
said common law grounds on which the
eviction was allegedly based.  Reliance on
Putco
is misplaced.
[34]
Although the Supreme Court of Appeal was
correct that the “reliance on the common law does not exonerate
the owners from compliance
with the provisions of . . . ESTA”,
it nonetheless said no unfairness was suggested by the
applicants.
[53]
It concluded that the procedure the respondents followed
[54]
was fair and that, save for section 8(1)(d) which the Supreme Court
of Appeal held was irrelevant, section 9(2) was complied with.
[55]
But, as is evidenced by the circumstances of this case, the
unfairness was palpable.  The Land Claims Court noted that
the
probation officer’s report set out that there was no
alternative accommodation.  The existence of a reasonable
expectation of the renewal of the agreement from which the right of
residence arose could not be excluded on the basis of irrelevance.

This is so because the applicants asserted that they had not acted in
violation of their leases.  Although the respondents
initially
based the termination on non-payment, they did not pursue that
course.  They changed tack and relied instead on
the need to
develop the property as the ground for termination.
[35]
The Land Claims Court stated that the
respondents outlined details on which the premises were to be
utilised upon vacation by the
occupiers.  The respondents’
contentions and reliance on the proposition that it is not
unreasonable to terminate leases
when they are no longer reconcilable
with the long-term development of the land,
[56]
is telling.  In my view, the expectation of renewal, especially
when the respondents refused to accept payment of the rentals,
cannot
be said to have been unreasonable.  The respondents might have
extended the applicants’ right of residence for
them to seek
alternative accommodation, especially because the termination would
have rendered them homeless.  To that end,
I think that
section 8(1)(d) is relevant and should have been dealt with in
the courts below.  It was not.
[36]
What’s more, had they been given an
opportunity to make representations in terms of section 8, the
applicants may have explained
the unjustness of the cancellation of
the lease and termination of the right of residence.  This did
not happen.  In
these circumstances, given the differing reasons
for the termination provided by the respondents, the fact that no
opportunity
was given to the applicants to make representations
[57]
is telling.  In any event, the applicants said that they did not
deal with the fairness of the notice of termination and the
hardship
they could suffer, because they refuted the case as pleaded against
them in the Land Claims Court.  In the view I
take of the
matter, it is not necessary to consider the question of onus.
[37]
The
volte-face
regarding the basis on which the eviction was sought was unjust to
the applicants as they dealt only with the case that they were
called
to meet.  It follows that the respondents were not entitled to
rely, as they did, on the common law principles as bases
for eviction
when the grounds were not set out in the notice and properly pleaded.
The Supreme Court of Appeal may be correct
that, at common law,
the land owner would “have been entitled to the relief
sought”.
[58]
But that common law claim is now subject to the provisions of ESTA.
The provisions of sections 8, 9, 10 and 11 of ESTA
have the
result that the common law action based merely on ownership and
possession, as in
Graham v Ridley
,
[59]
is no longer applicable.
[38]
At the risk of repetition, reliance on the
common law does not exonerate owners from compliance with the
provisions of ESTA.
The fairness of the eviction would still
have to be considered having regard to all relevant factors.
All such relevant factors
were not considered.  It follows that
the reliance on the common law grounds was, in the circumstances of
this case, unfair
to the applicants and impermissible.
[60]
Was ESTA complied with?
[39]
The pre-reform-era land law reflected the
common-law based view that existing land rights should be entrenched
and protected against
unlawful intrusions.  The land reform
legislation – ESTA in this case – changed that view.
It highlights
the reformist view that the common law principles and
practices of land law, that entrench unfair patterns of social
domination
and marginalisation of vulnerable occupiers in eviction
cases, need to change.  ESTA requires that the two opposing
interests
of the landowner and the occupier need to be taken into
account before an order for eviction is granted.  On the one
hand,
there is the traditional real right inherent in ownership
reserving exclusive use and protection of property by the landowner.

On the other, there is the genuine despair of our people who are in
dire need of accommodation.  Courts are obliged to balance
these
interests.  A court making an order for eviction must ensure
that justice and equity prevail in relation to all concerned.
It
does so by having regard to the considerations specified in section 8
read with section 9 as well as sections 10
[61]
and 11 which make it clear that fairness plays an important role.
[40]
In
PE
Municipality
this Court remarked that
it is necessary “to infuse elements of grace and compassion
into the formal structure of the law”
and courts need “to
balance competing interests in a principled way and to promote the
constitutional vision of a caring
society based on good
neighbourliness and shared concern” because “we are not
islands unto ourselves”.
[62]
One immediately agrees that—
“
[t]he
Judiciary cannot, of itself, correct all the systemic unfairness to
be found in our society.  Yet it can, at least, soften
and
minimise the degree of injustice and inequity which the eviction of
the weaker parties in conditions of inequality of necessity

entails.”
[63]
[41]
But how do courts minimise inequality and
inequity in evictions?  ESTA allows eviction only when it is
just and equitable.
In
Hattingh,
Zondo J delineates how the balancing of
the rights of the owner or person in charge and that of the occupier
infuses justice and
equity into the inquiry.  This Court said:
“
[T]he
part of section 6(2) [of ESTA] that says: ‘balanced with the
rights of the owner or person in charge’ calls for
the striking
of a balance between the rights of the occupier, on the one side, and
those of the owner of the land, on the other.
This part enjoins
that a just and equitable balance be struck between the rights of the
occupier and those of the owner.
The effect of this is to
infuse justice and equity into the inquiry required by section
6(2)(d).  Section 6(2)(d) is not the
only provision into which
ESTA seeks to infuse justice and equity or fairness.  In this
regard I draw attention to the requirement
in section 6(4) that the
landowner’s rights to impose conditions . . . must be exercised
reasonably, and the requirement
in section 8(1) that the termination
of an occupier’s right of residence must not only be based on a
lawful ground but also
that it must be ‘just and equitable,
having regard to all relevant factors’.  These factors . .
. make it
clear that fairness plays a very important role.”
[64]
(Footnotes omitted.)
Section 9 read with
section 8 of ESTA, as well as sections 10 and 11, also enjoins the
courts when granting evictions to do so if
it is “just and
equitable”, having regard to certain factors.
[42]
The respondents submitted that the Land
Claims Court
and Supreme Court of Appeal
considered all the issues and correctly concluded
that it would be just and equitable to evict the applicants and that
the Supreme
Court of Appeal
struck a
balance between the respondents’ rights and those of the
occupiers.  They seek an order dismissing the appeal
on the
basis of lack of prospects of success.
[43]
The Supreme Court of Appeal found that ESTA
makes this case distinguishable from
Brisley
.
[65]
The Court held that failure by the lessee to pay the agreed
rental on the due date is a lawful ground for the termination
of the
right of residence.  I agree.  But that is not the end of
the enquiry.  The requirement of termination of
the right of
residence on a “lawful ground” is merely a portion of the
requirement of section 8(1).  The section
contains a proviso,
that the termination must be just and equitable, having regard to
certain factors set out in section 8(1)(a)-(e).
[44]
These include the fairness of the ground on
which the owner or person in charge relies; the conduct of the
parties giving rise to
the termination; the interests of the parties
including comparable hardship to the parties; and the fairness of the
procedure followed
by the owner or person in charge ‒ including
whether the occupiers were given an effective opportunity to make
representations
before the failure by the occupiers to pay rental.
[45]
I do not agree with the Supreme Court of
Appeal that section 8(1) was complied with for the purpose of
granting an order for eviction.
The Court relied on the common
law principle of
rei vindicatio
– the action for the protection of ownership – and the
reasonableness of the notice of termination.  The Court’s

attention was thus diverted from the interests of the occupiers.  In
other words, the Court did not strike a balance between
the interests
of the owner of the land and those of the occupiers so as to infuse
justice and equity or fairness into the enquiry.
The Supreme
Court of Appeal did not consider the fairness of the termination of
the applicants’ rights of residence.  Nor
did it give
sufficient weight to the hardship that would eventuate from the
termination of the rights of residence and eviction.
This was
despite the undisputed evidence that the eviction would render the
occupiers homeless as there was no suitable alternative

accommodation.  This does not mean that where the terms of ESTA
have been properly complied with an owner is not entitled
to an
eviction order.
[46]
The constitutional imperatives in section
26(3), given effect to by ESTA, must be borne in mind.  That
sub-provision demonstrates
special constitutional regard for a
person’s place of abode. As this Court said in
PE
Municipality
, the sub-provision—
“
acknowledges
that a home is more than just a shelter from the elements.  It
is a zone of personal intimacy and family security.
Often, it
will be the only relatively secure space of privacy and tranquillity
in what (for poor people, in particular) is a turbulent
and hostile
world.”
[66]
Conclusion
[47]
The eviction of the applicants without
compliance with ESTA will not only render the applicants homeless but
will also frustrate
their security of tenure and the aims of ESTA.
The Supreme Court of Appeal should not have dismissed the appeal.
It
erred in doing so.  The appeal must be upheld.  The
applicants have expressly stated that they do not seek costs.

The order reflects this.
Order
[48]
The following order is made:
1.
Leave to appeal is granted.
2.
Condonation for the late filing of the
opposing papers is granted.
3.
The appeal is upheld.
4.
The orders of the Land Claims Court and
Supreme Court of Appeal are set aside.
5.
The application for eviction in the Land
Claims Court is dismissed.
For the
Applicants:

C R Jansen SC and J J Botha instructed by Matshitse Attorneys
For the First and
Second Respondents:
A Vorster
and I Oschman instructed by Frese, Moll & Partners
[1]
62 of 1997.
[2]
See the preamble to ESTA.
[3]
Molusi v Voges NO
[2015] ZASCA 64
(Supreme Court of Appeal judgment).
[4]
Voges NO and Another v Molusi and Others
[2013] ZALCC 1
(Land Claims Court judgment).
[5]
It is to be noted that the second to sixth
applicants each filed a confirmatory affidavit which should have
confirmed the founding
affidavit of the first applicant.
However, the confirmatory affidavits incorrectly confirmed the
affidavit of the second
applicant, which itself was a confirmatory
affidavit.  This Court issued directions that the second to
sixth applicants
file affidavits confirming the first applicant’s
founding affidavit in so far as they confirmed its contents as
relating
to each of them.  The second to fifth applicants did
so.  The attorney for the applicants also filed an affidavit
explaining
the cause of the confusion.  The second applicant in
this Court was the lead applicant in the Land Claims Court.
This
changed to the first applicant in this Court but, due to an
administrative error the confirmatory affidavits that were used in

the Land Claims Court were submitted to this Court without
reflecting this change.  After this Court’s directions

were issued, the applicants’ attorney could no longer locate
the sixth applicant to depose to a further confirmatory affidavit.

These circumstances do not bear on the outcome of this case but are
noted for clarity and completeness.
[6]
ESTA defines an occupier as
“
a
person residing on land which belongs to another person, and who has
or on 4 February 1997 or thereafter had consent or another
right in
law to do so, but excluding
. . .
(b)
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
(c)
a person who has an income in excess of the
prescribed amount.”
[7]
The first applicant’s first lease with the
respondents was in 1999.  She had lived on the farm in a room
rented by
her mother before 1997.  See Supreme Court of Appeal
judgment above n 3 at para 24.
[8]
The terms of these oral leases remain unclear.
[9]
There is a dispute whether the respondents ever
issued a demand for payment of arrear rental but the issues for
determination
do not turn on this.
[10]
Section 7(2) of the Constitution enjoins the
“state to respect, protect, promote and fulfil the rights in
the Bill of Rights.”
[11]
Hattingh and Others v Juta
[2013] ZACC 5
;
2013 (3) SA 275
(CC);
2013 (5) BCLR 509
(CC)
(
Hattingh
)
at para 32.
[12]
Before this litigation, the applicants had
successfully approached the Land Claims Court on two previous
occasions: on 26 March
2009 under case number LCC 34/2009 on an
urgent basis as a result of allegations for constructive eviction of
the applicants
when the respondents removed corrugated iron roofs
from the rooms occupied by them.  The Land Claims Court ordered
the respondents
to rebuild the demolished structures with immediate
effect. On 14 July the respondents applied to the Land Claims Court
on an
ex parte basis seeking directives as to the service of the
eviction application on the first to the twelfth applicants.
The reason for the application was that service on the applicants
may be problematic, cost-prohibitive and ineffective.
[13]
Supreme Court of Appeal judgment above n 3 at
para 5.  The respondents relied on the notice mentioned in [5]
above for the
cancellation of the lease agreement.
[14]
Land Claims Court judgment above n 4 at para 12.
[15]
Id at para 8.  For this contention the
respondents relied on
Tiopaizi v
Bulawayo Municipality
1923 AD 317.
[16]
Land Claims Court judgment above n 4 at para 19.
[17]
Id at paras 19 and 21.
[18]
Id at para 21. See also the Supreme Court of
Appeal judgment above n 3 at para 7.
[19]
The Court relied on
Federated
Trust Ltd v Botha
1978 (3) SA 645
(A)
at 654D – to hold that courts should not encourage formalism
in the application of their rules and that the failure
to comply
fully with the substituted service order alone could not defeat the
application as the principle with regard to service
– to
ensure both parties are in court – was still met.
[20]
Land Claims Court judgment above n 4 at para 16.
[21]
The Land Claims Court’s order reads:
“
(a)
The first to twelfth
Respondents and all persons occupying under or through them
are
ordered to vacate portion 81 (a portion of portion 65) of the farm
Boschfontein 330 JQ, Rustenburg, at the instance
of the
applicants by 31 March 2013.
(b)
The Sheriff for the district of Rustenburg is authorised to remove

the first to twelfth Respondents, and all persons occupying under or
through them, from portion 81 (a portion of portion 65)
of the farm
Boschfontein 330-JQ, on or after 3 April 2013, if they have not
complied with the order in paragraph one above.
(c)
There is no order as to costs.”
[22]
The Land Claims Court granted leave to appeal in
terms of
section 37(1)
of the
Restitution of Land Rights Act 22 of
1994
and the Supreme Court of Appeal is the Court envisaged in
section 37(2)
of that Act.
[23]
Supreme Court of Appeal judgment above n 3 at
para 28.
[24]
Id at para 39.
[25]
Id at para 40.
[26]
Id at para 41.
[27]
Id at para 42.  The majority’s remarks
were directed at the minority judgment’s reasoning that the
respondents’
reliance on common law reasonable notice, as
opposed to the breach of contract set out in the notice of
termination, was “trial
by ambush” – see the
minority judgment per Shongwe JA (Bosielo JA concurring) at para 19.
[28]
Id at para 42.
[29]
Id at para 43.  The Supreme Court of Appeal
relied on
Graham v Ridley
1931 TPD 476
at 479, which the respondents correctly label in their
written submissions as the “old case”, where the owner’s

right of possession of the property was held to prevail in
pleadings.  This case does not help the respondents.
[30]
Id at para 34.
[31]
Id at para 38.
[32]
Id at para 38.
[33]
Id.
[34]
Brisley v Drotsky
[2002]
ZASCA 35
;
2002 (4) SA 1
(SCA) at para 42.
[35]
Id.  There, the Supreme Court of Appeal
remarked:
“
Ons
stem nie saam dat die bogenoemde omstandighede sonder meer relevante
omstandigehede sal wees nie.  Artikel 26(3) vereis
dat alle
relevante omstandighede in ag geneem moet word maar bepaal nie self
dat enige omstandihede relevant sal wees nie.
Daarvoor moet na
die algemeen geldende reg gekyk word.  Omstandighede kan slegs
relevant wees indien hulle
regtens
relevant is.  Indien die artikel aan ʼn hof ʼn
diskresie verleen het om ʼn uitsettingsbevel te weier onder
sekere omstandighede, soos byvoorbeeld indien die hof dit reg en
billik sou ag, sou alle omstandighede wat relevant is met betrekking

tot die vraag of dit in ʼn bepaalde geval reg en bilik sou wees
natuurlik relevant wees by die uitoefening van daardie diskresie.

Die artikel verleen egter geen diskresie aan die hof om onder sekere
omstandighede te weier om ʼn uitsettingsbevel toe te
staan aan ʼn
eienaar wat andersins op so ʼn uitsettingsbevel geretig sou
gewees het nie.”  (Emphasis in original.)
[36]
Supreme Court of Appeal judgment above n 3 at
para 43.
[37]
Id at paras 18-9 and 23.
[38]
Tiopaizi v Bulawayo Municipality
1923 AD 317.
They rely also on the decision by the Land Claims
Court in
Labuschagne and Another v
Ntshwane
2007 (5) SA 129
(LCC) for the
proposition that it is not unreasonable for leases to be terminated
when they were no longer reconcilable with
the long-term development
of the land.
[39]
Section 9(2)(d)(iii).
[40]
Naidoo and Another v Sunker and Others
[2011] ZASCA 216
;
[2012] JOL 28488
(SCA)
(
Sunker
).
[41]
Id at para 19.
[42]
Fischer and Another v Ramahlele and Others
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA)
(
Ramahlele
)
at para 13
.
[43]
See in this regard
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
[2012] ZACC 2
;
2012 (3) SA 531
(CC);
2012 (5) BCLR 449
(CC) at paras
109-114;
CUSA v Tao Ying Metal
Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para 68 and
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA
323
(CC);
2007 (7) BCLR 691
(CC) at para 39.
[44]
Minister of Safety & Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) (
Slabbert
).
[45]
Id at para 11.  This Court has, in the
context of constitutional challenges to legislation, acknowledged
the importance of
accuracy in pleadings; see
Phillips
and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at
paras 39-40 and
Shaik v Minister of
Justice and Constitutional Development
[2003]
ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC) at para 25.
Slabbert
dealt with pleadings in action proceedings; however, the principle
established in that case also applies to motion proceedings.

This is the general rule, to which there may be exceptions.
For the rule’s applicability in motion proceedings, see
Seal
v Van Rooyen NO and Others; Provincial Government, North West
Province v Van Rooyen NO and Others
[2008] ZASCA 28
;
2008 (4) SA 43
(SCA) at para 10 and
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
[2007] ZASCA 153
;
2008 (2)
SA 184
(SCA) at para 43.
[46]
Emphasis added..
[47]
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC)
2004 (12) BCLR 1268
(CC) (
PE
Municipality
).
[48]
Id at para 35.  The Court was dealing with
the consideration of “just and equitable” in respect of
the granting
of evictions in terms of section 4 of PIE.  This
legislation, as was ESTA, was enacted to give effect to
section 26(3)
of the Constitution.
[49]
Id at paras 35-6.
[50]
Putco Ltd v TV & Radio Guarantee Co (Pty)
Ltd
1985 (4) SA 809
(A) (
Putco
).
[51]
Id at 832C-D.
[52]
Putco
concerned
an interim contract granting sole and exclusive advertising rights
to one party with regard to the other party’s
buses, pending
the conclusion of a detailed agreement as a result of negotiations.
The interim contract required the parties
to have mutual trust and
confidence in each other and it was terminable on reasonable
notice.  The negotiations failed and
the contract was not
terminable on that failure.  The Court held that inclusion in
the contract of a specified ground for
termination did not exclude
termination on a reasonable ground.
[53]
Supreme Court of Appeal judgment above n 3 at
para 35.
[54]
Supposedly the procedure contemplated in section
9(2)(d) – of giving written notices of the termination of the
right of
residence and affording the occupiers two months to vacate
the premises.
[55]
Supreme Court of Appeal judgment above n 3 at
para 38.
[56]
The new development was said to necessitate the
termination of occupation.
[57]
A consideration specifically mentioned in section
8(1)(e) when determining whether the termination of the right of
residence is
just and equitable.
[58]
Supreme Court of Appeal judgment above n 3 at
para 44.
[59]
Above n 29.
[60]
Section 9(2)’s further requirement
regarding the service of the section 9(2) notice of intention to
obtain an order of eviction
on the Municipality and the Department
was not complied with but the non-compliance is of no consequence
because the application
for eviction was served on these
respondents.  To this end, this part of section 9 (2) is
“deemed to have been complied
with”.
[61]
This section deals with eviction orders of
persons who were occupiers on 4 February 1997.  It is not
quoted above because
none of the applicants were occupiers on or
before 4 February 1997.
[62]
PE Municipality
above n 47 at para 37.
[63]
Id at para 38.
[64]
Hattingh
above n
11 at para 32.
[65]
Supreme Court of Appeal judgment above n 3 at
para 43.
[66]
PE Municipality
above n 47 at para 17.