Klaase and Another v van der Merwe N.O. and Others (CCT 23/15) [2016] ZACC 17; 2016 (9) BCLR 1187 (CC); 2016 (6) SA 131 (CC) (14 July 2016)

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Klaase and Another v van der Merwe N.O. and Others (CCT 23/15) [2016] ZACC 17; 2016 (9) BCLR 1187 (CC); 2016 (6) SA 131 (CC) (14 July 2016)

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
23/15
In the matter
between:
JAN
KLAASE
First

Applicant
ELSIE
KLAASE
Second

Applicant
and
JOZIA JOHANNES
VAN DER MERWE N.O.
(ON BEHALF OF THE
NOORDHOEK
TRUST)
First

Respondent
JOZIA JOHANNES
VAN DER
MERWE
Second

Respondent
CEDERBERG
MUNICIPALITY
Third

Respondent
and
WOMEN ON FARMS
PROJECT
Amicus

Curiae
Neutral
citation:
Klaase and Another v van der
Merwe N.O. and Others
[2016] ZACC 17
Coram:
Mogoeng CJ, Moseneke
DCJ, Cameron J, Jafta J, Madlanga J, Matojane
AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J
Judgments:
Matojane AJ (majority): [1] to [68]
Zondo J (minority): [69] to [154]
Jafta J (concurring): [155] to [161]
Heard
on:
3 September 2015
Decided
on:
14 July 2016
Summary:
Extension of Security of Tenure Act 62 of 1997
— Definition
of “occupier” — Express and Tacit Consent —
Rights of Occupiers — Occupiers’
protections under
ESTA — Right to Family Life — Joinder in Eviction
Proceedings — variation of eviction order
ORDER
On appeal from the
Land Claims Court (hearing an automatic review from the Clanwilliam
Magistrates’ Court):
1. Leave to appeal is granted to Mr and Mrs Klaase.
2. Condonation for the late filing of additional documents by the
amicus curiae is refused.
3.
The applications for the admission of new
evidence by Mrs Klaase and the amicus curiae are dismissed.
4. The appeal by Mr Klaase is dismissed.
5. The appeal by Mrs Klaase succeeds.
6. The decision of the Land Claims Court confirming the Clanwilliam
Magistrates’ Court order for the eviction of Mrs Klaase
is set
aside.
7. The application by Mr Klaase for suspension of the execution of
the eviction order against him pending the determination of
the
rights of Mrs Klaase in terms of the
Extension of Security of Tenure
Act 62 of 1997
is refused.
8. There is no order as to costs.
JUDGMENT
MATOJANE AJ
(Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J, Wallis AJ
concurring):
Introduction
[1] The applicants
seek leave to appeal against certain decisions of the Land Claims
Court.  The appeal by the first applicant
relates to that
Court’s confirmation of his eviction on automatic review.
[1]
The appeal by the second applicant is against the decision of that
Court
[2]
dismissing her applications for joinder, suspension of the further
proceedings and consolidation of her application with the eviction

application against the first applicant.  Her appeal principally
concerns the decision of the Land Claims Court that
she is not
an “occupier” as defined in terms of the Extension of
Security of Tenure Act
[3]
(ESTA).  At their core, the issues involve the interpretation
and application of the protections under ESTA.
[2] Most people
who are occupiers of farm land are
a vulnerable group in our society.  These include female
occupiers who are
frequently not joined in eviction
proceedings instituted against their spouses or partners.  This
makes that class of occupiers
susceptible to arbitrary evictions as a
consequence of the actions of their spouses or partners.  As a
result, no substantive
grounds for their evictions are made and
properly considered by a court before they are evicted with their
spouses or partners.
The upshot of this is hardship, conflict
and social instability.  ESTA seeks, among other things, to
regulate the eviction
of vulnerable occupiers from land while
recognising the right of land owners to apply to court for eviction
in appropriate circumstances,
to promote the achievement of security
of tenure for occupiers of land and to extend the rights of occupiers
while giving due recognition
to the rights, duties and legitimate
interests of owners.
[4]
Parties
[3] The first
applicant (Mr Klaase) is a farm worker.  His wife,
t
he
second applicant (Mrs Klaase), was not a party to the proceedings
before the Magistrates’ Court and Land Claims Court.
The
first respondent, Jozia Johannes van der Merwe, is cited in his
capacity as a trustee of the Noordhoek Trust which owns
Noordhoek
farm (farm).  He is also cited as the second respondent in his
personal capacity as the lessee of the farm on which
he conducts a
citrus farming operation.  They are collectively referred to as
the respondents.  The third respondent
is the Cederberg
Municipality (Municipality).  It was joined to the
proceedings.
[5]
The Women on Farms Project was admitted as a friend of the Court
(amicus curiae).
Background
[4] Mr Klaase
started working on the farm in 1972.  He worked as a general
labourer and lived in the same house with his father.
[6]
Mr Klaase and Mrs Klaase entered into a romantic relationship.
[7]
Mrs Klaase fell pregnant with the couple’s first child.
After the child was born, Mrs Klaase moved onto the farm
and resided
with Mr Klaase, in his father’s house.  At the
instance of Mr Klaase’s father, the second respondent’s

father built a small cottage on the premises, to accommodate Mr
Klaase, Mrs Klaase and their child.  When the cottage was

completed they took occupation.  The couple later married, on
31 January 1988.  They have lived on the farm for
30 years
or more.  Their three children and three grandchildren live with
them.
[5] Mr Klaase was
evicted on 14 January 2014.  The relationship between him and
the respondents came to an end on 19 January
2010 when a disciplinary
hearing was initiated against Mr Klaase after a charge of absconding
and absence from work.  Mr Klaase,
duly represented by the
Building and Allied Workers Union of South Africa
(Union),
referred the dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA) and the matter was
referred for arbitration.
Mr Klaase alleged constructive
dismissal due to abusive conduct by the management of the farm.
[6] The dispute
between the parties was settled before the arbitration could be
finalised.  In terms of the settlement agreement,
Mr Klaase
agreed to a monetary settlement of R15 000 and undertook to vacate
the premises by not later than 30 June 2010.
He did
not vacate the premises.  On 22 October 2010
the
respondents informed Mr Klaase in writing that his right to
occupy the premises was terminated as it was dependent on his
continued
employment.  The letter demanded that he vacate the
farm within 30 days, failing which
an
application for eviction would be brought against him.
Litigation history
Magistrates’
Court
[7] The respondents
launched eviction proceedings about eight months later in the
Clanwilliam Magistrates’ Court (Magistrates’
Court).
Only Mr Klaase was cited as a respondent, but the order sought
prayed for his eviction and that of all persons occupying
through
him.  A probation officer’s report was requested.
[8]
The report recommended that Mr Klaase and his family remain on the
farm until alternative accommodation was available.
According
to the report, Mr Klaase was prepared to pay rent in the amount of
approximately R60 per week.  Mr Klaase continued
residing on the
farm at no cost whilst working elsewhere.
[8] Subsequent to a
pre-trial conference held in 2012, a meaningful engagement meeting
was held under the auspices of the Municipality
to discuss the
possibility of alternative accommodation.  The parties agreed
that there was no possibility of Mr Klaase
getting alternative
accommodation in the foreseeable future due to the housing shortage
in the district.
[9] On 14 January
2014 the Magistrates’ Court granted the order evicting Mr
Klaase and all those occupying through him, including
Mrs Klaase,
from the farm.  The Court held that Mr Klaase’s right of
occupation arose from his employment on the
farm.  It found that
there had been an irretrievable breakdown in the employment
relationship between the parties as contemplated
in section 10(1)(c)
of ESTA.  The Court further found that the formal requirements
of section 9(2)(a) of ESTA
[9]
had been complied with and that it was not necessary to provide Mr
Klaase with alternative accommodation as no alternative accommodation

was available.
Land Claims Court
Automatic
review
[10]
The order of the Magistrate was
automatically subject to review by the Land Claims Court in
terms of section 19(3) of ESTA.
[10]
Mr Klaase claimed that, before he died, Mr Van
der Merwe’s father gave him a right to occupy the premises for
life.
In a judgment delivered on 28 March 2014, confirming the
eviction order by the Magistrate,
[11]
the Land Claims Court found that there was no
evidence to support the claim and that, absent his employment, Mr
Klaase did not have
any other right to reside on the farm.  The
Court held that Mr Klaase’s employment was terminated when the
parties entered
into a settlement agreement.  Therefore, the
requirements in section 8(2) of ESTA had been complied with and his
right of
occupancy had been terminated.
[11]
The Court held that section 9(2)(a) and (b)
of ESTA had been complied with because Mr Klaase, the Municipality
and the provincial
office of the Department of Land Affairs
(Department) were served with the application.
[12]
Regarding Mr Klaase’s contention that
the service was not in compliance with the regulations,
[13]
the Land Claims Court said there was substantial
compliance with the regulations ‒ Form E.  It held that
the Union and
the legal representatives must have informed Mr Klaase
of the information contained in Form E and he must have been aware
that the eviction application was brought by a certain date.
[14]
[12] It would appear
from the review decision that the respondents relied on Mr Klaase’s
non-attendance at his disciplinary
hearing, absconding from work, bad
temper, rudeness and disrespect for authority as reasons for the
irreparable breakdown of the
relationship in an attempt to meet the
requirements in section 10(1)(c).
[15]
[13] Contrary to the
grounds pleaded by the respondents for the breakdown of the
relationship, the Land Claims Court found that
Mr Klaase’s
breach of the settlement agreement as well as his continued residence
on the premises for a period of four years
while working elsewhere
constituted a fundamental breach of the relationship.  Thus the
section 10(1)(c) requirement was fulfilled.
[14] The Land Claims
Court found that the respondents had adduced sufficient evidence to
comply substantially with the test for
the just and equitable
termination of a former worker’s right of residence.
[16]
This was the test the Supreme Court of Appeal set out in
Sterklewies
.
[17]
The Land Claims Court held that the requirements in section 9(2)(d)
had been met.
[18]
Save for the dates of eviction, the Court confirmed the eviction
order of the Magistrates’ Court.  During April 2014

Mr Klaase applied for leave to appeal the decision of the Land Claims
Court to the Supreme Court of Appeal.
[19]
The Land Claims Court dismissed Mr Klaase’s application for
leave to appeal on 7 October 2014.
[20]
Mrs
Klaase’s joinder application
[15] Following the
review decision by the Land Claims Court, Mrs Klaase launched an
application, referred to as the joinder application,
in the Land
Claims Court.  She sought an order (a) to be joined as the
second respondent in the eviction application; (b)
for the suspension
of the further proceedings, including the execution of the eviction
order, pending the determination of her
rights in terms of ESTA; and
(c) for the consolidation of the application with the eviction
application.  Mr Klaase also applied
for an order suspending the
eviction order pending the determination of Mrs Klaase’s
rights in terms of ESTA.
[21]
All these applications were opposed by the respondents.
[16]
Mrs Klaase asserted that she continuously resided on the farm
for many years in her own right as a general farm employee and with

the consent of the owner.  She contended that it was an
essential term of her oral employment contract that she be entitled

to housing on the farm.  Mrs Klaase relied on
Mkangeli
[22]
and argued that she was protected by the provisions of ESTA, as an
ESTA occupier, because she lived on the premises with the knowledge

of the second respondent, for at least 30 years.  She submitted
that the presumption set out in section 3(4)
[23]
of ESTA was thus applicable.
[24]
Mrs Klaase argued that the presumption placed the onus on the
respondents to disprove that she did not have the requisite
consent.
She relied on
Sterklewies
for the argument that once a person
has shown that she has occupied land with consent, she will be an
ESTA occupier.  Mrs
Klaase argued that the respondents failed to
discharge that onus and that she is consequently entitled to the
protections ESTA
affords to occupiers.
[17] Although the
respondents contended that Mrs Klaase never asked for, nor was she
given, an independent right to occupy the farm,
they accepted that
she came to live on the farm with Mr Klaase as her “prospective
husband” in the house that had been
made available to him in
his capacity as a permanent employee.  They maintained that
seasonal employees were never given a
right of occupation and that
Mrs Klaase was never given an independent right to occupy the
premises.
[25]
[18] The respondents
said that Mrs Klaase, like many of the spouses and other family
members of permanent employees on the farm,
worked on a seasonal
basis.  They maintained that her right of residence on the farm
derived from her marriage to Mr Klaase,
and that it continued
only until his right of residence was lawfully terminated in terms of
section 8
of ESTA
.  The respondents
contended that they needed the premises to be vacated to make it
available to permanent employees who needed
accommodation.
[26]
The respondents argued that Mrs Klaase’s alleged rights under
ESTA were based on bald and vague allegations that did
not attract an
onus to rebut.
[27]
[19] In dismissing
Mrs Klaase’s joinder application the Land Claims Court held,
among other things, that there was no evidence
to support Mrs
Klaase’
s
allegations.  It held
that she did not “[make] out a case to be joined” and so
effectively found that she did
not have a direct and substantial
interest in the matter.
[28]
As to whether Mrs Klaase is an ESTA occupier, it held that there
are different classes of persons who can occupy the
premises of
another in terms of ESTA.  First, “those who are granted
consent to occupy the property and thus enjoy protections
under ESTA
as occupiers”.  Second, those persons who, in terms of
section 6(2)(d) of ESTA, although not occupiers, are
entitled to
reside on the premises by virtue of being entitled to family life in
accordance with the culture of that family.
[29]
[20] The Court
relied on
Klaasen
[30]
to conclude that Mrs Klaase is a “resident” and not an
“occupier in her own right”.
[31]
It remarked:
“The term ‘occupier’ in ESTA is used in a narrow
and wide sense.  The narrow one being applicable only to
persons
who have the consent of the owner or person in charge of the property
or have another right in law to reside thereon.
The wide sense
refers to those who derive their right of residence through or under
occupiers in the narrow sense.  The persons
falling within the
latter group are not occupiers in terms of ESTA.  It is probably
easier to distinguish between the two
classes of ‘occupiers’
by using the term ‘occupiers in their own right’ for
persons to whom the eviction
procedures of ESTA apply, and to the
others as ‘residents’.  The right of an ‘occupier
in his own right’
to stay on a farm derives from consent given
by the owner or person in charge of the farm, whilst the right given
to a ‘resident’
to stay on the farm derives from a
different source, usually a family relationship with an ‘occupier
in his or her own right’.”
[32]
[21] The Court went
further to say that Mrs Klaase misconstrued
Sterklewies
by
arguing that a person residing on premises with consent without more
becomes an ESTA occupier.  It said:
“Wallis JA in
Sterklewies
found that ESTA does not
require consent to be an agreement or contract strictly construed.
I consequently agree with [the
respondents] that a person claiming
ESTA occupation must be residing on the property without any other
right to do so and with
the apparent consent of the owner thereof or
the person in charge of the land.  Mrs Klaase’s presence
on the property
was due, initially, to her living there with her
mother and subsequently as a result of her marriage to [Mr Klaase].

ESTA and the Constitution barred the [respondents] from denying her
access to the property by virtue of [Mrs Klaase’s] right
to
family life.”
[33]
[22] The Court
concluded that Mrs Klaase had not made out a case to be joined as a
party.  It held that her prospects of being
found to be an
“occupier” by another court were remote.  The Court
thus held that no useful purpose would be served
by staying the
proceedings.
[34]
In respect of Mr Klaase’s application for a stay of the
execution of the eviction order the Court concluded that, as
there
was no merit in Mrs Klaase’s application for a stay, Mr
Klaase’s application “also stands to be dismissed”.
[35]
[23] As regards Mr
Klaase’s application for leave to appeal the Land Claims Court
held that
Magodi
[36]
made it clear that a confirmed order of a Magistrate, following a
review process by the Land Claims Court, remains the Magistrate’s

order.  The Land Claims Court concluded that the
application for leave to appeal was therefore defective.  It
dismissed
the joinder application and made the following order:
“1. The application by Mrs Klaase to be joined as the second
respondent in Case No LCC 09/2014 is refused.
2. The application by Mrs Klaase that further proceedings in Case No
LCC 09/2014, including the execution of the eviction
granted
against the respondent be suspended pending the determination of her
rights in terms of [ESTA] is refused.
3. The application by the respondent for suspension of the execution
of the eviction order granted against him in Case No LCC 09/2014,

pending the determination of the rights of Mrs Klaase in terms of
[ESTA] is refused.
4. The application by the respondent for leave to appeal to the
Supreme Court of Appeal or to this Court is refused.
5. The date on which the respondent and all persons who occupy
through him must vacate the premises on the farm, Noordhoek,
Citrusdal
(“GEDEELTE VAN GEDEELTE 4) VAN DIE PLAAS MISGUNT
NR.499, AFDELING CLANWILLIAM, PROVINCE WES-KAAP) is changed to 14
November
2014.
6. The date on which the eviction order against the respondent may be
carried out if the premises have not been vacated, is changed
to 17
November 2014.
7. There is no order as to costs.”
Supreme Court of Appeal
[24] Aggrieved by
the Land Claims Court’s decisions Mr and Mrs Klaase petitioned
the Supreme Court of Appeal.
[37]
Mr Klaase sought to appeal the confirmation of the eviction
order and Mrs Klaase sought leave to appeal the refusal of the

joinder application.  On 26 January 2015 the Supreme Court of
Appeal dismissed the
petition
with costs.
In this Court
[25] Both Mr and Mrs
Klaase sought leave to appeal the decisions of the Land Claims
Court.  They also sought to tender
new evidence.  In
addition, Mrs Klaase asked that her failure to apply to the Land
Claims Court for leave to appeal against
the dismissal of her joinder
application be condoned.  Both Mr and Mrs Klaase sought an
order setting aside the decisions
of the Land Claims Court.  The
respondents opposed the application.  They submitted that the
matter does not raise a
constitutional issue merely because it
relates to ESTA which was “purportedly enacted to give effect
to section 25(6) of
the Constitution”.  For this
proposition they relied on
Loureiro
.
[38]
They urged this Court to dismiss the applications on this ground
alone.  On the section 10 of ESTA inquiry the
respondents
argued that Mr Klaase’s appeal should fail.
[26]
The
Chief Justice issued directions that written argument, including
argument on the merits of the appeal, must be lodged before
10 April
2015.  In further directions the parties were asked to make
submissions on Mrs Klaase’s right under ESTA and
the
potential
prejudice to women who, under ESTA, find themselves in a similar
position to Mrs Klaase
.
[39]
I deal with the submissions below.
[27] Mrs Klaase
contended that she qualified as an occupier under ESTA in her own
right.  The respondents argued that she did
not allege that
express or tacit consent was given to her and that contrary to the
rule that a case must be properly presented
and pleaded, her case has
since segued between three differing and mutually exclusive
versions.  They maintained that spouses,
dependants or family
members of a person who have been granted consent do not themselves
qualify as occupiers in terms of ESTA
but are rather persons holding
under that occupier.  The respondents submitted that, as this
Court said in
Thubelisha
,
[40]
consent, express or tacit, “must be actual”.
[41]
They argued that Mrs Klaase is not an ESTA occupier in her own right.
[28] The amicus
curiae submitted that section 39(2) of the Constitution requires that
the provisions of ESTA should be interpreted
generously so as to
afford protection to women who would otherwise not be regarded as
occupiers for the purposes of ESTA.
It contended that the
dignity of women, who are seasonal workers, is negatively impacted
when the provisions of ESTA are interpreted
in a way that does not
respect their equal worth.  The amicus curiae argued that the
effect of insecure tenure is to impose
dependency on women
notwithstanding the fact that ESTA, properly interpreted, affords
them protection as occupiers.
Issues
[29] The issues are
whether—
(a) leave to appeal should be granted to Mr Klaase and Mrs Klaase;
(b) Mrs Klaase’s failure to seek leave to appeal in the Land
Claims Court should be condoned;
(c) the new evidence should be admitted;
(d) the confirmation of the eviction order by the Land Claims Court
should be set aside;
(e) the Land Claims Court’s order dismissing Mrs Klaase’s
joinder application should be set aside;
(f) Mrs Klaase is an “occupier” under ESTA.  If so,
whether her eviction is just and equitable;
(g) the execution of the eviction order should be suspended in
respect of Mrs Klaase pending the determination of her rights in

terms of ESTA; and
(h) Mrs Klaase’s application should be consolidated with the
eviction application against Mr Klaase.
Leave to appeal
[30] The question
that arises is whether the Land Claims Court erred in its approach to
section 10(1)(c) of ESTA and whether, on
the evidence before it, the
requirements for Mr Klaase’s eviction had been met.  ESTA
is the legislation that was enacted
to give effect to section 26(3)
of the Constitution and to provide security of tenure to people
living on farm land whose tenure
was insecure as a result of past
racially discriminatory legislation.  This matter raises a
constitutional issue.  It
is in the interests of justice to
grant Mr Klaase leave to appeal.
[31] In her
application for joinder before the Land Claims Court, Mrs Klaase
contended that she resided on the farm for many years
and is an
“occupier” entitled to the protection conferred by ESTA.
Her application not only raises constitutional
issues of public
importance regarding the interpretation and application of and
protections under ESTA, but also implicates her
constitutional rights
to equality and human dignity.
[32] The eviction of
an individual on the basis of the conduct of a spouse or partner
alone has a significant impact on tenure security,
not only for Mrs
Klaase but also other similarly situated persons.  The decision
of this Court regarding who qualifies as
an “occupier”
and what protections such an occupier is entitled to in terms of
ESTA, will provide legal certainty.
In my view, her application
has prospects of success.  It is in the interests of justice to
grant Mrs Klaase leave to appeal.
Condonation
[33] Mrs Klaase
applied for condonation of her failure to apply to the Land Claims
Court for leave to appeal against the dismissal
of her application to
be joined in the review proceedings.  Ordinarily, she would have
been required to approach that Court
for leave to appeal.  This
is so because section 16 of the Superior Courts Act
[42]
prescribes the sequence of appeals.  It stipulates that “an
appeal against any decision of a Division as a Court of
first
instance lies, upon leave having been granted”.
[34] The
Constitution requires this Court to allow litigants direct access if
it is in the interests of justice to do so.
[43]
Even if leave has not been sought or granted by another court, it is
open to this Court to hear an application for leave
to appeal.
The interests of justice must be determined by reference to all
relevant factors, including the nature of the
relief sought, the
extent and cause of the delay, the nature and cause of any other
defect in respect of which condonation is sought,
prejudice and
reasonableness of the applicant’s explanation for the delay or
defect.
[44]
[35] Both Mr and Mrs
Klaase brought interlocutory applications for the suspension of the
eviction order granted against Mr Klaase
pending the determination of
Mrs Klaase’s rights based essentially on the same
grounds.  The application for leave
to appeal, joinder and the
suspension applications were heard at the same time by the Land
Claims Court.  It dealt with them
in a single judgment under one
case number, even though in the joinder application that Court was
sitting as a court of first instance.
The Court found that the
prospects of another court finding Mrs Klaase to be an occupier in
terms of ESTA were remote.
[36] In my view, to
require Mrs Klaase to bring a separate application for leave to
appeal would be a mere formality with no practical
effect.  In
any event, section 38 of the Constitution empowers a competent court
to grant appropriate relief where the rights
in the Bill of Rights
have been infringed or threatened.  Given the importance of the
issues and that there is no prejudice
as a result of failure to apply
to the Land Claims Court for leave to appeal, it is in the interests
of justice to grant condonation.
New evidence
[37] The amicus
curiae sought to introduce new evidence in terms of rule 31 of the
Rules of this Court.
[45]
It asked this Court to condone its late filing of additional
documents.  The respondents opposed the application to
tender
new evidence.
[38] In
Certain
Amicus Curiae Applications
, it was stated that rule 31—
“permits a duly admitted amicus ‘to canvass factual
material which is relevant to the determination of the issues before

the Court and which do not specifically appear on the record’.
However, this is subject to the condition that such
facts ‘are
common cause or otherwise incontrovertible’ or ‘are of an
official, scientific, technical or statistical
nature, capable of
easy verification.’  This rule has no application where
the facts sought to be canvassed are disputed.
A dispute as to
the facts may and, if genuine, usually will demonstrate that they are
not ‘incontrovertible’
or ‘capable of easy
verification.’  Where this is so, the material will be
inadmissible.”
[46]
[39] The evidence
sought to be introduced contains various reports and studies.
These are:
(a) A study providing statistics on farm evictions done by Social
Surveys and the Nkunzi Development Association in 2005, titled
Still
searching for security: the reality of farm dweller evictions in
South Africa
(the Nkuzi study).  This study sought to
determine the number of people evicted from farms in South Africa
during the 21 year
period from 1984 to 2004.  It included
evictions that took place prior to the enactment of ESTA in 1998 and
cannot provide
conclusive evidence of prejudice to women on farms.
(b)
A study by the Centre for Rural Legal Studies
that resulted in a report by Du Toit and Ally
The
Externalisation and Casualization of Farm Labour in Western Cape
Horticulture
Research Report no.16
(2003) (the CRLS report).  It is so that the information
presented in the report is not common cause
or otherwise
incontrovertible nor is it official, scientific, technical or
statistical in nature.  Most importantly, the study
on which the
report is based took place in 2003.
(c) A
study on
The Position of Women
Workers in Wine and Deciduous Fruit Value Chains
(2008) (the
SANPERI study).  This study represents a follow-up to an earlier
study commissioned in 2003.  The information
and findings
presented in the study are not capable of easy verification,
especially about 12 years after the study.
(d) The inquiry conducted on behalf of the South African Human Rights
Commission
National Inquiry into Human Rights Violations in
Farming Communities
(2003) (the SAHRC Inquiry).  The report,
according to the respondents, does not provide the nature and extent
of the research
and how it was conducted and by whom.
(e) The report by the Women on Farms Project, titled
Behind the
Label II
, (2005).  The conclusions on this report, according
to the respondents, are based on a combination of qualitative and
quantitative
data and do not provide indication of how the
information gleaned from various sources was analysed to reach the
conclusions presented
in the study.
[40] The application
to introduce new evidence was filed shortly before the hearing.
The evidence sought to be introduced
canvassed statistical and
factual material that was not capable of easy verification by the
respondents.  The respondents
raised valid concerns about
the
methods used to gather and collate information and qualifiers
of the statistical methods that are taken as indicators of accuracy.

Besides, the belated application brought unwarranted pressure on the
other parties when preparing for the hearing of the matter.
I
would refuse condonation and dismiss the application to tender new
evidence.
[41] Mrs Klaase also
brought an application for the admission of further evidence in the
form of a report.
[47]
This application was also brought at the eleventh hour.  The
pressure on the other parties in preparation for the hearing
that
this new evidence produces was pronounced.  The application
should be refused.
Confirmation of Mr Klaase’s eviction
[42] Mr Klaase
challenged the Land Claims Court’s confirmation of his eviction
on review.  He submitted
that
the
Court misdirected itself in finding firstly that he committed a
fundamental breach of the relationship between himself and the
owners
and secondly, that it is not practically possible to remedy the
breach.
I do not agree.
It is
not in dispute that any and all of the circumstances giving rise to
the termination of the employment and accommodation agreement
were
settled by agreement after Mr Klaase had referred a dispute to
the CCMA.
[43] Mr Klaase did
not deny that he (a) absconded from work and remained absent; (b) had
a long history of inappropriate conduct;
(c) failed to attend his
disciplinary hearing; (d) failed to vacate the premises as agreed;
and (e) continued to live on the premises
rent-free whilst being
gainfully employed elsewhere.  In my view, there is no
possibility that the relationship between the
parties can be
salvaged.  The Land Claims Court was correct in concluding that
section 9(1) and (2)(a), (b) and (d) were complied
with.
[44] The decision of
the Land Claims Court confirming the eviction order cannot be
faulted.  His appeal must fail.
Mrs Klaase’s joinder application
[45] The test for
joinder is that a party must have a direct and substantial legal
interest that may be affected prejudicially by
the judgment of the
court in the proceedings concerned.
[48]
In
ITAC
,
[49]
this Court confirmed the test and said that a party seeking joinder
must have a direct and substantial interest in the subject
matter.
The Court held that the overriding consideration is whether it is in
the interests of justice for a party to intervene
in litigation.
[46]
Mrs Klaase has a direct and substantial
interest in the relief sought against Mr Klaase.  It is
undisputed that she has
lived on the farm, continuously and openly
for at least 30 years, with the knowledge of the respondents.
Her right to housing
will be affected negatively if the eviction
order is executed.  It is apparent from the probation officer’s
report that
Mrs Klaase, together with her children and grandchildren,
will be rendered homeless because of the unavailability of
alternative
accommodation if evicted.  The Land Claims Court did
not have regard to these relevant circumstances when determining the
joinder application.  Neither did it consider the provisions of
section 3(4) and (5) of ESTA,
[50]
in terms of which a person in the position of Mrs Klaase would be
presumed and deemed to have consent of the owner if she has
continuously and openly resided on land with the knowledge of the
owner.
[47]
Mrs Klaase should have been cited as a
party or joined in the eviction proceedings against Mr Klaase.
Separate substantive
grounds for her eviction should have been
alleged and eviction should have been sought specifically against
her.  That did
not happen.
[48]
The Land Claims Court erred in dismissing
Mrs Klaase’s application for joinder.  That order should
be set aside.
In my view, the Land Claims Court should have
joined Mrs Klaase and varied the terms of the eviction order in so
far as it pertained
to her.
[51]
The order I make will reflect this.  Next for determination is
whether Mrs Klaase is an “occupier” under ESTA.
Is Mrs Klaase an “occupier”?
[49]
ESTA defines “occupier” in
section 1(1) as meaning “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”.
[52]
“Consent” means—
“
express or tacit consent of the owner or a
person in charge of the land in question, and in relation to a
proposed termination of
the right of residence or eviction by a
holder or eviction by a holder of mineral rights, includes the
express or tacit consent
of such holder.”
[50]
In
determining the meaning of “occupier” as defined in
section 1(1) of ESTA, the starting point is the Constitution.

Section 39(2) of the Constitution enjoins courts, “when
interpreting legislation . . . [to] promote the spirit, purport and

objects of the Bill of Rights”.  In line with a purposive
approach to statutory interpretation, a meaning that places
the
definition within constitutional bounds should be preferred.
[53]
Because we are concerned with the meaning of “occupier”
as defined, the definition must be read not only in light
of the
purpose of ESTA but also in the context of the legislation, as a
whole.
[54]
It is thus necessary to read the meaning of “occupier” in
conjunction with the purpose set out in the preamble
[55]
and other relevant provisions of ESTA, for example, sections 3, 6, 8,
and 9.
[51] As this Court
said in
Goedgelegen
, ESTA is “remedial legislation
umbilically linked to the Constitution”.
[56]
It seeks to protect people, like Mrs Klaase, whose tenure to
land is insecure.
[57]
In construing the provisions of ESTA a “blinkered peering”
[58]
at the language in the legislation must be avoided.  An approach
that will “afford [occupiers] the fullest possible
protection
of their constitutional guarantees” must be adopted.  This
Court, in
Goedgelegen
, per Moseneke DCJ, remarked:
“[W]e must seek to promote the spirit, purport and objects of
the Bill of Rights.  We must prefer a generous construction
over
a merely textual or legalistic one in order to afford claimants the
fullest protection of their constitutional guarantees.
In
searching for the purpose, it is legitimate to seek to identify the
mischief to be remedied.  In part, that is why it is
helpful,
where appropriate, to pay due attention to the social and historical
background of the legislation.  We must understand
the provision
within the context of the grid, if any, of related provisions and of
the statute as a whole, including its underlying
values.”
[59]
[52]
The
rights implicated here include Mrs Klaase’s
right to
have access to adequate housing,
[60]
and not to be evicted from her home without an order of court made
after considering all relevant circumstances,
[61]
to equality
[62]
and to have her human dignity respected and protected.
[63]
[53]
The definition of “consent” is
broad.  It encompasses both “express” and “tacit”
consent.
The word “tacit” means “understood
or implied without being stated”.
[64]
The respondents argued that “consent” must be actual.
They relied on
Thubelisha
.
[65]
In my view,
Thubelisha
does not assist them.  Consent is no less “actual”
because it is given tacitly.  The question is whether
there was
consent.
[54]
The Land Claims Court’s
reliance
on the narrow construction in
Klaasen
[66]
for the conclusion that Mrs Klaase is a “resident” and
not an “occupier”
is, in the
circumstances of this case, misconceived.  It impermissibly
construed the definition of “occupier” narrowly
and
without regard to the mischief ESTA sought to remedy.  The
narrow meaning does not take into account instances, like those
in
this case, where an occupier has lived for more than the prescribed
period
[67]
on the premises with the knowledge of an owner who sits back and does
not seek the occupier’s eviction.  There the ESTA

presumption and deeming provision favour the occupier.  If the
construction of “occupier” adopted by the Land
Claims
Court is – in the circumstance of this case – correct,
occupiers like Mrs Klaase will be evicted arbitrarily
from farms
without being afforded their constitutional guarantees and their
protection under ESTA.
[55]
On the meaning of “consent”,
the Land Claims Court in
Klaasen
held that its primary meaning is “voluntary agreement to”
[68]
and that “the person concerned must be or must have been a
party to a consent agreement with the owner of the land”.
[69]
The Land Claims Court held that a “person claiming ESTA
occupation must be residing on the property without any other
right
to do so and with the apparent consent of the owner thereof or the
person in charge of the land”.
[70]
It restricted, impermissibly, the meaning of “consent” in
a manner that ignores the significance of “tacit”

consent.  The corollary of this limitation would be that many
people who would otherwise qualify as occupiers would be excluded

from the protection of ESTA.
[56]
The observations by the Supreme Court of
Appeal in
Sterklewies
are correct.  The Court, per Wallis JA, remarked:
“
The Act does not describe an occupier as a
person occupying land in terms of an agreement or contract, but a
person occupying with
the consent of the owner.  One can readily
imagine circumstances in which in the rural areas of South Africa
people may come
to reside on the land of another and the owner, for
one or other reason, takes no steps to prevent them from doing so, or
to evict
them.  That situation will ordinarily mean that they
are occupying with the tacit consent of the owner and will be
occupiers
for the purpose of [ESTA].  Accordingly, when in
[
Klaasen
]
it was said that ‘consent must originate from an agreement, or
exist by operation of law’, I think that an unnecessarily

restrictive view of the provisions of [ESTA] arose.  It suffices
that persons claiming [ESTA’s] protection show that
the owner
of the land has consented to their being in occupation, irrespective
of whether that occupation flows from an agreement
or has its source
elsewhere.  Whatever its origins it is the right of residence
flowing from that consent that must be terminated
in terms of section
8 before an eviction order can be obtained.”
[57]
The Land Claims Court’s finding that
the ESTA occupier must be residing with “apparent consent”
and “without
any other right to do so” is not supported
by the wording of ESTA which requires only that an occupier must
reside with “consent
or another right in law to do so”.
The restricted meaning of consent is not justified.  The breadth
of the concept
“consent” in section 3 of ESTA is not
insignificant.  This section deals with the concept of consent,
in greater
detail.  In terms of section 3(1), the consent of an
“occupier” to reside on or use land shall “only”

be terminated in accordance with the provisions of section 8 of ESTA.
[58]
Section 8 falls under Chapter IV of ESTA
that deals with “termination of right of residence and
eviction”.  It
provides that an occupier’s right of
residence may be terminated on any lawful ground, provided that the
termination is just
and equitable having regard to certain relevant
factors.  These factors include: the fairness of any agreement
or provision
of law on which the owner or person in charge relies;
the conduct of the parties giving rise to the termination; the
interest of
the parties, including the comparative hardship to the
owner or occupier concerned and 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 representation before the decision was made to terminate the
right of residence.
[59]
Section 3(3) focuses on the substance
rather than the form of consent by providing that consent shall be
effective regardless of
whether the occupier has to obtain some other
official authorisation required by law for the occupier’s
residence.
Additionally, ESTA provides that for the purpose of
civil proceedings in terms of ESTA, a person who has continuously and
openly
resided on land for a period of (a) one year shall be
presumed to have consent to do so unless the contrary is proved
[71]
and (b) three years shall be deemed to have done so with the
knowledge of the owner or person in charge.
[72]
[60]
It is undisputed that Mrs Klaase lived on
the premises continuously for many years with the knowledge of the
second respondent and
his father before him.
[73]
By his own admission in the answering affidavit, the second
respondent said that Mrs Klaase came to live with her
prospective
husband in a house that had been made available to him on
the premises.  There is no evidence to rebut the presumption
that
the respondents consented to Mrs Klaase’s residing on the
farm.  The respondents’ failure to object to Mrs Klaase’s

residing on the farm for decades or taking steps to evict her is
telling.  It implies that they consented to her occupancy.

But prior to the enactment of ESTA that was always with the consent
of the landowner or farmer.
[61]
The respondents submitted that the phrase
“another right in law to do so” in the definition of
“occupier”,
despite its wide ambit, does not encompass
the right of a spouse of an ESTA occupier to live with the ESTA
occupier as a result
of the duty of spouses to live together
.
They argued that the same applies to the right of a family member
dependent on an ESTA occupier to live with him.  As
I understand
the submission, a family member like Mrs Klaase is only a resident
and not an occupier.  According to the respondents,
this is so
because ESTA deals, separately in section 6(2)(d),
[74]
with the right to cohabitation between spouses and family members,
under the rubric of an ESTA occupier’s right to family
life in
accordance with the culture of that family.
[62]
In
Hattingh
[75]
this Court had to decide whether an occupier’s right to family
life as provided for in section 6(2)(d) of ESTA encompassed
two of
her adult sons and her daughter-in-law whom she had given consent to
reside on the premises with her.  That section
provides that an
occupier shall have the right to family life in accordance with the
culture of that family.  Mrs Hattingh’s
self-reliant adult
children contended that, as an occupier, Mrs Hattingh had a right to
family life as provided for in section
6(2)(d) and that in terms of
that right, she could live with them on the farm.
[63]
The Court held that reference to “family
life” meant that, despite living on somebody else’s land,
the occupiers
were entitled to enjoy “as normal a family life
as possible, having regard to the landowners’ rights”.
[76]
It concluded that the occupier may not reside on the landowners’
property with more family members than is justified
by considerations
of justice and equity when the occupier’s right to family life
is balanced with the rights of the landowner.
It follows that
an occupier exercising his or her right to family life can live with
members of his or her family on the farm even
without the consent of
the owner provided this is just and equitable.  Section 6(2)(d)
requires consent of the occupier
and not that of the owner for a
family member to reside with an occupier on the property of another
but, once again, this is limited
by what is just and equitable on a
proper balancing of the rights of the occupier and owner.
[64]
Hattingh
is
distinguishable.  Mrs Klaase does not rely on the rights
provided for in section 6(2)(d) to resist her eviction.
Instead, she relies on being an “occupier” and being
entitled to the protection in terms of ESTA when she, as an occupier,

is evicted from the land.  Her case is that Mr Van der Merwe
senior consented to her occupation of the cottage with her husband

and is accordingly an occupier as defined.  It is not possible
that she could have moved into the cottage without the consent,

actual or presumptive, of Mr Van der Merwe senior.
[65]
In my view, Mrs Klaase has made out a case
that she is an occupier in terms of ESTA.  As an occupier, Mrs
Klaase is entitled
to the protections set out in ESTA. An eviction
order may be granted against her only if certain conditions are met.
The
first is that her right of residence must have terminated on
lawful grounds, provided that the termination is just and equitable,

having regard to certain listed factors.
[77]
So, for as long as the right of residence of an occupier like Mrs
Klaase has not been terminated in terms of section 8, the
occupier
may stay.  Obviously, section 8 has not been complied with and
there was no suggestion that it was.  It follows
that
Mrs Klaase’s right of residence was not lawfully
terminated.  It is accordingly unnecessary for us to consider

whether her consent to reside on the property was subject to any
conditions, such as the continuation of her marriage or Mr Klaase’s

continued employment.  It is also unnecessary to consider
whether, if proper notice had been given, her eviction would have

been just and equitable.
[66]
The Land Claims Court’s finding that
Mrs Klaase occupied the premises “under her husband”
subordinates her rights
to those of Mr Klaase.  The phrase is
demeaning and is not what is contemplated by section 10(3) of ESTA.
It demeans
Mrs Klaase’s rights of equality and human dignity to
describe her occupation in those terms.  She is an occupier
entitled
to the protection of ESTA.  The construction by the
Land Claims Court would perpetuate the indignity suffered by many
women
similarly placed, whose rights as occupiers ought to be
secured.
Suspension of execution of eviction and consolidation
[67] The Land Claims
Court held that Mrs Klaase’s prospect of being found to be an
“occupier” by another court
were remote.  For this
reason, the Court found that no useful purpose would be served by
staying the proceedings.  I
have concluded that Mrs Klaase
should have been joined in the eviction proceedings, as an “occupier”
and is entitled
to the protections under ESTA.  In my view,
the
Land Claims Court should have varied the terms of the eviction order
in so far as it pertained to her.  In the view I take
of the
matter, it is not necessary to deal with the issue regarding
consolidation.
Order
[68] The following
order is made:
1. Leave to appeal is granted to Mr and Mrs Klaase.
2. Condonation for the late filing of additional documents by the
amicus curiae is refused.
3.
The applications for the admission of new
evidence by Mrs Klaase and the amicus curiae are dismissed.
4. The appeal by Mr Klaase is dismissed.
5. The appeal by Mrs Klaase succeeds.
6. The decision of the Land Claims Court confirming the Clanwilliam
Magistrates’ Court order for the eviction of Mrs Klaase
is set
aside.
7. The application by Mr Klaase for suspension of the execution of
the eviction order against him pending the determination of
the
rights of Mrs Klaase in terms of the
Extension of Security of Tenure
Act 62 of 1997
is refused.
8. There is no order as to costs.
ZONDO J (Mogoeng CJ,
Van der Westhuizen J concurring)
Introduction
[69] I have had the
opportunity of reading the judgment prepared by my Colleague,
Matojane AJ (first judgment).  The first
judgment entails that
this Court has jurisdiction in respect of this matter.  I
agree.  The matter raises the interpretation
and application of
the Extension of Security of Tenure Act
[78]
(ESTA).  That is a constitutional matter.
[79]
Indeed, this Court would also have jurisdiction on the basis that the
matter raises a question of law of general public importance
that
should be considered by this Court.
[80]
That question would be: how or when does a family member of an
occupier
[81]
as defined in ESTA cease to be a section 6(2)(d) resident family
member
[82]
and become an occupier as defined in ESTA?  Another question
that this matter raises is: what is the nature of the consent
to
reside on the land contemplated by the definition of “occupier”
in ESTA?  In this judgment I shall consider
whether the consent
is qualified or unqualified.
Leave to appeal
[70] I also agree
with the first judgment that both the first applicant to whom I shall
refer as Mr Klaase Jr and the second applicant
to whom I shall refer
as Mrs Klaase should be granted leave to appeal.  Mrs Klaase
should be granted leave on the basis of
her own case which is
reasonably arguable and can, therefore, be said to have reasonable
prospects of success and raises important
issues of interpretation
for determination by this Court.  Mr Klaase Jr should be granted
leave to appeal because, if it is
found that Mrs Klaase is an
occupier as defined, the eviction order should not have been granted
against Mr Klaase Jr.  This
would be so because Mr Klaase
Jr would be entitled to continue to reside on the farm by reason of
Mrs Klaase’s
exercise of her right to family life in terms
of section 6(2)(d) of ESTA.
[71] Even if Mrs
Klaase is found not to have been an occupier as defined, she would
have had to be joined in the eviction proceedings
between Mr Klaase
Jr and the respondents if it was found that she had a direct and
substantial interest in the eviction order sought
by the
respondents.  If Mrs Klaase should have been joined in those
proceedings but was not joined, that may have vitiated
the eviction
order granted by the Magistrates’ Court.  It is reasonably
arguable that the Court should have had all
the parties before it
before it could make the eviction order.
[72] The eviction
order in issue was granted against Mr Klaase Jr and all those
occupying the house through or under him.  Mrs
Klaase’s
appeal is against a decision of the Land Claims Court dismissing her
application for her to be joined in the automatic
review proceedings
in which the Land Claims Court had already handed down a judgment in
the matter between Mr Klaase Jr and the
respondents.  The
respondents had opposed the application and delivered an answering
affidavit by the second respondent.
I shall refer to the second
respondent as Mr Van der Merwe Jr.  Mr Klaase Jr’s appeal
is in essence against the decision
of the Land Claims Court in the
automatic review proceedings confirming the Magistrates’ Court
judgment to be correct.
Background
[73] The first
judgment has sufficiently set out the factual background to this
matter.  I, therefore, do not propose to set
out the
background.  I shall only refer to certain aspects of that
background as and when I deal with the various issues that
need to be
decided.
The appeal
[74] The main
question in this case is whether on the farm Mrs Klaase is an
occupier as defined in section 1 of ESTA or whether
she is what, for
convenience, I call a section 6(2)(d) resident family member of an
occupier as defined.  I explain below
what a section 6(2)(d)
resident family member is.
[83]
If Mrs Klaase was an occupier as defined, Mr Klaase Jr would be
entitled to live with her on the farm as a member of her
family.
There can be no doubt that, in that event, Mrs Klaase would have had
to be joined in the eviction proceedings between
Mr Klaase Jr and the
respondents because she would have had a direct and substantial
interest in that matter.  Indeed, this
would mean that the
eviction order was wrongly granted and should be set aside.
Even if Mrs Klaase was not an occupier as
defined but was a
section 6(2)(d) resident family member of Mr Klaase, it would
mean that the eviction proceedings in the
Magistrates’ Court
should not have proceeded to the stage of the grant of an eviction
order against her without her having
been joined in the proceedings.
[75] Mrs Klaase’s
case before the Land Claims Court and before us was that on the farm
she was an occupier as defined.
In written and oral argument
Counsel for Mrs Klaase referred to Mrs Klaase as an occupier in
her own right.  The reference
to Mrs Klaase as an occupier in
her own right may have been influenced by the Land Claims Court
in
Klaasen.
[84]
In
Klaasen
[85]
Gildenhuys AJ used this phrase to distinguish an occupier as defined
from an occupier falling outside the definition of “occupier”.

Being an occupier in her own right would make her an occupier as
defined.
[76] The
respondents’ case, both before the Land Claims Court
and this Court, was that Mrs Klaase was not an occupier
in her own
right or an occupier as defined but that she resided on the farm
solely as a result of her relationship with Mr Klaase
Jr.
In his answering affidavit in the Land Claims Court, Mr Van der Merwe
Jr said that Mrs Klaase “came to occupy
the property by
virtue of her relationship with [Mr Klaase Jr].”
Later on Mr Van der Merwe Jr said: “[Mrs
Klaase] came to live
with her prospective husband in a house that had been made available
to him in his capacity as a permanent
employee on the property”.
In the Land Claims Court Mrs Klaase did not deliver any replying
affidavit that contradicted
these two statements.  What Mr Van
der Merwe Jr said is another way of saying that Mrs Klaase resided on
the farm through
or under Mr Klaase Jr.  That would have been
the case both before ESTA and after the commencement of ESTA.
Since she
is a member of Mr Klaase Jr’s family, this is another
way of saying she was a section 6(2)(d) resident family member once

ESTA had come into operation.
[77] After the
commencement of ESTA, section 6(2)(d) applied to Mrs Klaase’s
residence on the farm.  Consequently,
under ESTA Mrs Klaase
would be what I call a section 6(2)(d) resident.  The fact that,
before ESTA, there would have been
no section 6(2)(d) right
would not change anything because, even then, the respondents’
point that Mrs Klaase resided
on the farm through or under Mr Klaase
Jr would still have been applicable.
[78] The first
judgment concludes that Mrs Klaase was an occupier, as defined, on
the farm.  Two reasons are advanced in support
of this
conclusion.  The first is that Mrs Klaase resided on the farm
over many years with the knowledge of the owners of
the farm without
any objection from them and without them taking any steps to evict
her.  The first judgment says that this
failure by the farm
owners to object implies that they consented to Mrs Klaase residing
on the farm and that, consequently, she
acquired the status of an
occupier as defined.
[86]
[79] The second
reason is given as being that “Mr Van der Merwe senior
consented to [Mrs Klaase’s] occupation of the
cottage with
[her] husband and [she] is accordingly an occupier as defined”.
[87]
It then says in the next sentence: “It is not possible that she
could have moved into the cottage without the consent,
actual or
presumptive, of Mr Van der Merwe senior”.
[88]
These reasons make it necessary to consider the concept of one person
occupying a house or land through or under another
and to also
consider the nature of the consent that the definition of the word
“occupier” in ESTA requires for a person
to acquire the
status of an occupier as defined.
[80] In my view the
first judgment’s conclusion is a result, with respect, of a
literal construction of the word “consent”
in the
definition of “occupier”.  It is an approach that
says: the definition of “occupier” has two
requirements,
namely, that the person must (a) reside on the land and (b) do so
with the consent of the land owner or person in
charge and, if those
two requirements are met, nothing else matters and the person is an
occupier as defined.  On the approach
of the first judgment, a
spouse or partner and every child of the occupier whom he or she
brings to the farm to live with him or
her in the exercise of his or
her right to family life “graduates” into an occupier as
defined after residing on the
farm for some time without the owner of
the farm or person in charge objecting to their residence or without
them taking any steps
to evict him or her despite knowing that he or
she resides on the farm.
[81] On the basis of
the first judgment’s approach to, and, construction of, the
statute, even when an occupier as defined
brings to the farm an
employee, for example, a domestic worker, to live with him or her
while employed by him or her, after residing
on the farm for some
time, the domestic worker also becomes an occupier as defined.
This means that the domestic worker may,
from that stage onwards,
also bring his or her spouse or partner and children to live on the
farm in the exercise of his or her
right to family life.  This
is the result one gets if one approaches the word “consent”
in the definition of “occupier”
on the basis that it
refers to unqualified consent to reside on the land.  As will be
seen below, my view is that the word
“consent” in that
definition refers to qualified consent.
[82] It may be
thought that it would be unusual for a farm worker to employ anybody
and that, therefore, the scenario to which I
refer above is unlikely
to happen in reality.  To this I offer a few answers.  The
one is that there are occupiers who
are not employed on the land or
farm where they are occupiers.  In terms of the definition of
“occupier”, employment
by the land owner or person in
charge is not a requirement.  Therefore, one may have occupiers
who reside on land or farm
without being employed by the farm owner.
Another is that even with an occupier who is employed by the farm
owner or person
in charge of the land or farm there certainly will be
cases where a family that works on someone else’s farm employs
a nanny
to look after their small children.  Yet another one
will be where the relationship of such a person may not be that of
employment
but someone who is not a family member but lives with the
family and “helps” out in the household.  It may
also
be a friend of the occupier that the occupier brings to the farm
to live with him or her for a certain period with the consent of
the
farm owner.  A supervisor on the farm or farm manager may employ
a domestic worker.  On the approach and construction
of the
first judgment all these people graduate to being occupiers in
their own rights after living on the farm with an occupier
as defined
for a long time without the farm owner or person in charge objecting
or taking steps to have them evicted.
[83] I am unable to
agree with the conclusion of the first judgment that Mrs Klaase is an
occupier as defined in section 1 of ESTA.
Nor am I able to
agree with its approach to the matter and its construction of the
word “consent” in the definition
of the word “occupier”.
In my view Mrs Klaase resides on the farm through or under Mr Klaase
Jr and is a
section 6(2)(d) resident.  A purposive approach to
the construction of the word “consent” in the definition
of
“occupier” is required.  The meaning I give to
this word in this judgment is a result of that approach.  I
set
out below my approach to the matter, my construction of the word
“consent” and, generally, my reasons for my conclusion.

My approach begins with the concept in our law that one person may
occupy property under or through another person.  I later

conclude that, prior to ESTA, Mrs Klaase resided on the farm through
or under Mr Klaase Jr and that, when ESTA came into operation,

this continued to be the case but now under section 6(2)(d) of ESTA
when she became a section 6(2)(d) resident which she continues
to be.
Occupation by one person through or under another person
[84] At common law
we have the concept that a person may live in a house or occupy a
house or property “under” or “through”

someone else.
[89]
In regard to this concept, I shall consider certain of its effects in
law for such a person and for the owner of the house
or property.
One example of a case in which one person occupies or lives in a
house or on property through or under another
person is a
sub-lessee.  If a lessor concludes with a lessee a lease which
does not preclude the lessee from sub letting
the property or a
portion thereof to someone else, the lessee may conclude a sub-lease
with another person, the sub-lessee, in
respect of either the whole
property or a portion thereof.  One example will suffice.
[85] Let us say Mrs
A, the lessor, concludes a lease with Mr B, the lessee.  In such
a case Mr B may conclude a sub-lease with
Mr C.  In the
relationship between Mrs A and Mr B, Mr B is the lessee and Mrs A is
the lessor.  However, in the relationship
between Mr B and Mr C
the former is the sub-lessor and the latter the sub-lessee.
Mr C occupies the property under or
through Mr B.  There is
no nexus or agreement between Mrs A and Mr C.  Mr C’s
right of occupation of the property
is wholly dependent upon Mr B’s
right of occupation of the property.  If Mr B’s right to
occupy the property in
terms of the lease between himself and Mrs A
is validly terminated, Mr C’s right to occupy the property
also comes to
an end.
[86] The same
principles apply to a family situation.  If a wife or a partner
acquires a right to live in a property, unless
the instrument giving
her that right – whether it be legislation or a lease –
provides otherwise or unless there is
not enough space, she has a
right to occupy it with her husband or partner and children.  In
that situation the husband’s
right to occupy the house or
property is dependent on the wife’s.  The same applies to
the children’s right.
The husband or partner and the
children occupy the house or property through or under the
wife/mother.  If her right is lawfully
or validly terminated,
the husband’s and the children’s rights to occupy also
come to an end.  What I have said
above accords with case law on
the subject.
[90]
[87] ESTA did not
change the above legal position.  On the contrary, there are
indications that under it as well the concept
of a person occupying
property through or under another lives on.  A good example
thereof is a family member of an occupier
as defined who lives with
the occupier on the land or farm pursuant to the exercise by the
occupier of his or her right to family
life in terms of
section 6(2)(d).  Such a family member lives or resides on
the farm or land under or through the occupier
as defined.
[88] Another example
is to be found in section 8.  Section 8 deals with the
termination of the right of residence.
Subsection (1)
provides for the termination of the right of residence of an occupier
as defined “on any lawful ground, provided
that such
termination is just and equitable, having regard to all relevant
factors and in particular” certain factors listed
in paragraphs
(a) to (e).  The first reference to an “occupier” in
section 8(1) is a reference to an occupier
as defined.
Paragraph (c) refers to “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”.
[91]
The reference to “any other occupier” is obviously not a
reference to the occupier as defined.  It is a
reference to any
other occupant.
[89] Section 8(4)
precludes the owner or person in charge from terminating the right of
residence of an occupier as defined who
meets one of two prescribed
conditions unless he or she has “committed a breach
contemplated in section 10(1)(a), (b) or
(c): Provided that for the
purposes of this subsection, the mere refusal or failure to provide
labour shall not constitute such
a breach”.  The two
conditions are that the occupier must have resided on the land in
question or any other land belonging
to the owner for 10 years and—
“(a) has reached the age of 60 years; or
(b) is an employee or former employee of the owner or person in
charge, and as a result of ill health, injury or disability is
unable
to supply labour to the owner or person is charge.”
[90] Section 8(5)
reads:
“On the death of an occupier contemplated in subsection (4),
the right of residence of an occupier who was his or her spouse or
dependant may be terminated only on 12 calendar months’
written
notice to leave the land,
unless such a spouse or dependant has
committed a breach contemplated in section 10(1).”
(Emphasis added.)
[91] The first
reference to an “occupier” is a reference to an occupier
as defined but the second reference is not a
reference to an occupier
as defined.  The second reference is a reference to an
occupant.  Whereas the right of residence
of an occupier as
defined may only be terminated in terms of section 8(1) and (2),
the right of residence of an occupier who
was his or her spouse or
dependent may be terminated in terms of section 8(5).  Whereas
section 8(1) and (2) does not provide
for the termination of the
right of residence merely by giving 12 months’ notice of
termination in the absence of any
lawful ground, section 8(5) makes
it clear that in the case of an “occupier” who was the
spouse of or dependent of
the occupier as defined, his or her right
of residence after the death of the occupier as defined may be
terminated merely by giving
12 months’ notice.
[92] Part of the
effect of section 8(5) is that the right of residence of the spouse
or partner or dependent of an occupier as defined
depends on that of
the occupier as defined.  That this is so is made plain by the
ease with which that right of residence
may be terminated after the
death of the occupier as defined.  The owner of the farm or
person in charge is only required
to give a 12 months’ notice
of its termination and that is enough to terminate the spouse’s
or dependent’s right
of residence and this even if the spouse,
partner or dependent had done nothing wrong.  This means that
such a person resided
on the land through or under the occupier as
defined.  That is why, after the death of the occupier as
defined, those persons
cannot reside on the land for too long unless
that is the wish of the owner or person in charge.  Section 8(7)
reinforces
the notion that an occupant who was the spouse or
dependent of an occupier as defined is not an occupier as defined.
It reads
in part “if an occupier’s right to residence has
been terminated in terms of this section, or
the occupier is a
person who has a right of residence in terms of subsection (5)
.
.
.
”
[92]
[93] Yet another
example is to be found in section 10(3)(c).  That provision
refers to the grant by a court of–
“an order for eviction of the occupier and
of any other
occupier who lives in the same dwelling as him or her and whose
permission to reside there was wholly dependent on
his or her right
of residence
if it is just and equitable to do so, having regard
to  [various factors set out in the provision]”.
(Emphasis
added.)
The reference in
this provision to the grant of an order for eviction “of any
other occupier who lives in the same dwelling
as [the occupier as
defined] and whose permission to reside there is wholly dependent”
on the right of residence of the occupier
as defined denotes the
concept of one person residing on land through or under another.
[94] Section 10
deals with an eviction order in respect of a person “who was an
occupier on 4 February 1997”.
In the present case Mr
Klaase Jr was an occupier as defined on 4 February 1997.
Therefore, section 10 is relevant.
Mrs Klaase also contends
that she was an occupier as defined on that date.  Subsection
(1) sets out the circumstances under
which an order for the eviction
of a person who was an occupier as defined on 4 February 1997 may be
granted.  Subsection
(2) deals with the situation where a court
may grant an eviction order against such an occupier even when none
of the circumstances
set out in subsection (1) apply.
[95] Section 10(3)
reads:
“(3) If—
(a)
suitable alternative accommodation is not available to the occupier
within a period of nine months after the date of termination
of his
or her right of residence in terms of section 8;
(b)
the owner or person in charge provided the dwelling occupied by the
occupier; and
(c)
the efficient carrying on of any operation of the owner or person in
charge will be seriously prejudiced unless the dwelling
is available
for occupation by another person employed or to be employed by the
owner or person in charge,
a court may grant an order for eviction
of the occupier and of
any other occupier who lives in the same dwelling as him or her,
and
whose permission to reside there was wholly dependent on his or her
right of residence if it is just and equitable to do so,
having
regard to—
(i)
the efforts which the owner or person in charge and the occupier have
respectively made in order to secure suitable alternative

accommodation for the occupier; and
(ii)
the interests of the respective parties, including the comparative
hardship to which the owner or person in charge, the occupier
and the
remaining occupiers shall be exposed if an order for eviction is or
is not granted.”  (Emphasis added.)
[96] Where the word
“occupier” is mentioned for the first time in section
10(3)(c), it refers to an occupier as defined
but the second
reference to “occupier” cannot be a reference to an
occupier as defined.  It is simply a reference
to an occupant.
Although there is a presumption that, where a word appears in
different parts of a statute, it carries the
same meaning, this
presumption may be rebutted by the context in which the word is used
in a particular part of the statute.
As with most, if not all,
statutes, ESTA opens its definition section with the phrase: “In
this Act, unless the context indicates
otherwise. . .”.
Thereafter, the terms and their respective definitions are given.
They include the meaning of
the word “occupier”.
The context in which the word “occupier” is used in
section 10(3)(c) where it
is mentioned for the second time makes it
clear that it does not carry the same meaning as where it is
mentioned for the first
time.
[97] The thrust of
my approach to the question whether Mrs Klaase is an occupier as
defined is that there is a difference between
a person whose right to
reside on a land or property or to occupy land or property is
dependent upon someone else’s right
of residence or right of
occupation of that land or property and someone whose right of
residence or occupation is not dependent
upon anyone else’s
right of residence.  I have said that not only did ESTA not
abolish or alter this principle when
it came into operation but it in
fact embraced it.  No provision in ESTA demonstrates ESTA’s
embrace of this principle
more clearly than does section 10(3)(c)
where it envisages a court granting “an order for eviction of
the occupier
and of any other occupier who lives in the same
dwelling as him or her, and whose permission to reside there was
wholly dependent
on his or her right of residence . . .
”.
[93]
The reference to “his or her right of residence” is a
reference to the right of residence of the occupier as
defined.
It is clear from section 10(3)(c) that two categories of occupiers
are contemplated.  The one is the occupier
as defined and the
other is one whose permission to reside “there” –
which is a reference to the dwelling
– was wholly dependent on
the right of residence of the occupier as defined.
[98] What this
provision makes plain is that, when an order for the eviction of an
occupier as defined is granted, “an order
for eviction . . . of
any other occupier” may also be granted.  This is a
reference to any other occupant who lives
in the same dwelling as the
occupier as defined and whose permission to reside “there”
is wholly dependent on the right
of residence of the occupier as
defined.  It is to be noted that section 10(3)(c)(ii) also
makes reference to both categories
of “occupiers”.
Indeed, sections 11(3)(e)
[94]
and 12(4)
[95]
do the same.
[99] The next
question is whether a section 6(2)(d) resident family member of an
occupier as defined falls under the second occupier
referred to in
section 10(3)(c).  A resident family member of an occupier as
defined who resides on the land by virtue of
the exercise by an
occupier as defined of his or her right to family life is a person
“whose permission to reside there was
wholly dependent on [the
right of residence]” of the occupier, as defined, as
contemplated in section 10(3)(c).  Therefore,
such a person
falls under section 10(3)(c).
[100] Another
question that arises from section 10(3)(c) is whether the second
reference to an occupier in section 10(3)(c) is confined
to a section
6(2)(d) resident family member of an occupier as defined.  It
seems to me that it is not so confined.  In
regard to the second
reference to an occupier in section 10(3)(c), it must be highlighted
that the right of residence of such an
“occupier” is not
said to have been “wholly dependent” upon the permission
of the occupier as defined.
It is the permission of that
occupant to reside “there” that is wholly dependent upon
the right of residence of the
occupier as defined.
[101] Section
10(3)(c) does not specify who the grantor of the “permission”
contemplated therein would be.  Textually,
there is no basis for
confining that permission to one granted only by the occupier as
defined.  Nor is there a basis for
confining the permission to
only one granted by the owner or person in charge.  It can be
permission granted by the occupier
as defined or by both the occupier
as defined and the owner of the land.  Where an occupier as
defined brings his or her family
member to reside with him or her on
the land in the exercise of his or her right to family life, his or
her permission suffices
and can fall under the permission referred to
in section 10(3)(c).  However, where, for example, an occupier
as defined brings
an employee on to the land to live with him and
work for him, he would need the consent of the farm owner or person
in charge to
do so.  If the owner or person in charge gives his
or her consent, that consent would constitute the permission that
would
be “wholly dependent on” the right of residence of
the occupier as defined.  It, therefore, seems to me that the

second reference to “occupier” in section 10(3)(c)
includes both a family member of an occupier as defined who resides

on the land pursuant to the occupier as defined exercising his or her
right to family life as well as a person who is not a family
member
but whose permission to reside “there” is wholly
dependent on the right of residence of the occupier as defined

irrespective of whether that permission is given by the occupier only
or the occupier and the owner or person in charge.
[102] The advantage
of this construction of section 10(3)(c) is that an employee or even
a family friend of any occupier as defined
who temporarily resides on
the farm together with the occupier with the permission of the farm
owner fits into ESTA.  If one
construes section 10(3)(c) so as
to exclude such a person and say that section 10(3)(c) only
caters for a section 6(2)(d)
resident family member of an occupier as
defined, then there is no provision in ESTA for the eviction of such
a person.  If
one includes him or her in section 10(3)(c), then
that person may be evicted under section 10(3)(c).  Another
significance
of this construction of section 10(3)(c) is that it
reinforces the construction of the word “consent” in that
definition
of “occupier” excludes consent to reside on
the land through or under someone else.  The word “consent”

must be construed so as to mean consent to reside on the land
independently of anyone else’s right of residence on the land

or farm.
[103] On this
construction a section 6(2)(d) resident, an employee and a friend of
an occupier as defined are all not occupiers
as defined because the
consent or permission that they all have been given individually
[96]
to reside on the land does not confer upon them the right to reside
on the farm independently of the right of residence of the
occupier
as defined.  What is common among all three of them is that
their right of residence depends on that of the occupier
as defined.
This is so despite the fact that the one (section 6(2)(d) resident)
only requires the consent of the occupier
as defined to reside on the
farm whereas the others (those are a friend and an employee of the
occupier as defined) require the
consent of both the occupier as
defined and the owner of the farm or person in charge.  Their
rights of residence differ from
that of the occupier as defined
simply in the sense that an occupier’s right of residence
exists independently of anyone
else’s right of residence
whereas theirs are dependent upon his or hers.  Another
difference is that an occupier as
defined may only be evicted from
the dwelling and from the farm or land by the owner or person in
charge whereas others they may
be evicted by the occupier as defined
and by the owner of the land.
[104] In
Klaasen
the Land Claims Court expressed the view that section 10(3) is one of
the provisions in ESTA in which the word “occupier”
is
not used in the same sense throughout the section.  I agree.
The first reference to an “occupier” in
section 10(3) is
an occupier as defined.  However, the reference to “
any
occupier who lives in the same dwelling as him or her and whose
permission to reside there was wholly dependent on his or her
right
of residence
”
[97]
reflects the concept of a person residing in the same house but
through or under the occupier as defined.  It seems to me
that
the second reference to an “occupier” is a reference to
simply any other occupant in the house such as an employee
of the
occupier.
[105] In
Klaasen
the Land Claims Court said that the conclusion is inevitable that in
ESTA the word “occupier” is used in two senses.
The
Court said that the first is a narrow sense.  It said that this
sense is where the word means “persons who are or
were parties
to a consent agreement with the owner or person in charge of the land
or who are the bearers of another right in law
to reside.”
[98]
For the reasons given by Wallis JA in
Sterklewies,
[99]
consent should not be tied to an agreement.  I would simply say
that the one sense is where it refers to a person whom the
owner of
the land or the person in charge has given consent to reside on the
land or farm
in his or her own right and not through or under
anyone else or the bearer of another right in law to reside on the
land
.
[106] The Court said
that the second sense in which the word “occupier” is
used is “a wide sense”.
It said that “in
the wide sense” the word “occupier” refers to
“residents who derive their rights
to reside
through or
under occupiers
in the narrow sense”.  The latter
group falls outside the statutory definition of “occupier”.
[100]
In my view this category would include a category of residents on the
farm or land who do not have the consent of the farm
owner or person
in charge to reside on the farm but have the consent of an occupier
as defined to reside with him as family members.
Those would be
section 6(2)(d) residents.  An employee of an occupier as
defined who resides on the farm with the occupier
with the consent of
the farm owner would fall under residents who derive their rights to
reside through or under an occupier as
defined.  A friend of the
occupier who, for example, is in need of accommodation who is brought
by the occupier to the farm
to live with him with the permission of
the farm owner would also reside on the farm through or under him if
the permission of
the farm owner was not given on the basis that he
or she may reside independently of the occupier’s right of
residence.
[107] Family members
of an occupier reside on the land through or under him or her when
they reside there pursuant to the exercise
by him or her of his or
her right to family life in terms of section 6(2)(d).  When ESTA
came into operation, Mrs Klaase lived
in the cottage through or under
Mr Klaase Jr within the meaning of that concept as understood in our
law.  Once ESTA had come
into operation, she lived there by
reason of Mr Klaase Jr’s exercise of his right to family life
as provided for in section 6(2)(d).
For that, only Mr
Klaase Jr’s consent was required.  The consent of the
owner of the farm was not required.
The meaning of “consent” in the definition of occupier
[108] The relevant
part of the definition of “occupier” in section 1 of ESTA
is—
“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 . . .”.
[109] The “consent”
that is an essential element of the definition of an occupier may be
express or tacit.  This
is reflected in the definition of the
word consent in section 1.  The definition of “occupier”
refers to “consent
to do so”.  This refers to
consent to reside on land which belongs to another.  While the
definition of “occupier”
does not expressly state who
must give the consent contemplated in that definition, it expressly
states that the contemplated “consent”
is that of the
owner or person in charge of the land.
[110] On the face of
the definition of “occupier”, a person who seeks to be an
occupier as defined in section 1 must
ask the owner of the land or
the person in charge of the land for consent to reside on the land.
If the owner or person in
charge gives such a person consent to
reside on the land, on the face of the definition, that should bestow
on the person the status
of an occupier as defined in ESTA.
That would be a case where consent has been given expressly.  A
case where consent
may have been given tacitly would be where a
person comes on to a piece of land and, without any express consent
from the owner
of the land, starts building a house and lives in it
and the owner fails over a long time to object to this or to take
steps to
have the person evicted from the farm despite knowing that
he or she lives on the farm without his or her consent.  In that

case the owner or person in charge will be said to have tacitly
consented that that person reside on the farm.
[111] I have
discussed above the situation where a person occupies property
through or under another person.  It is possible
that the owner
of land would give a person, for example, a man, consent to reside on
the land on the clear understanding that the
man would live on the
farm with his family but that the family members’ right to
reside on the land is dependent on the man’s
right.  In
other words, the family members would reside on the land through or
under the man.
[112] In that case
the owner could not object to the man’s wife and children
residing on the land because the understanding
between him and the
man would have been that the man’s wife and children may live
on the land through or under him.
On the reasoning of the first
judgment, the fact that the owner did not object to the man’s
wife and children residing on
the farm for many years and did not
take steps to have them evicted would imply that he would have given
them tacit consent contemplated
in the definition of “occupier”
to reside on the farm and, thereby, made them occupiers as defined in
ESTA.  The
question that arises is this: can it be said that
simply because the owner did not object over a long time, he tacitly
gave them
the type of consent contemplated in the definition of
“occupier” and that the wife and children later become
occupiers
as defined?
[113] Another
scenario is where the owner of the land gives a person, for example,
a woman, consent to reside on the land without
any discussion about
family members also coming to live with her on the land but later on
the woman brings her husband and children
and they all live on the
land together as a family.  The owner becomes aware that the
woman lives with a man and children
as a family in the house but, as
far as he is concerned, the man and children live on the farm through
or under the woman and will
leave when she leaves or when she no
longer has a right to continue living on the farm.  The owner,
therefore, does not object
to the man and children living on the farm
with the woman and over many years does not take any steps to evict
them because either
he has no problem with this since the man’s
and children’s rights to reside on the farm stand or fall with
that of
the woman or because he appreciates that the woman is
exercising her right to family life and he has no basis in law for
objecting.
The question that arises is: can it be said that
merely because the owner did not object to the man and children
living with the
woman over many years, he tacitly gave them the type
of consent contemplated in “occupier” to reside on the
farm and
that, therefore, the man and the children have become
occupiers in their own right themselves?
[114] On the
reasoning of the first judgment, the answer to the questions in both
cases would be: yes, it is the type of consent
contemplated in the
definition of “occupier” and in both cases the wife or
man, as the case may be, and the children
would become occupiers as
defined after they have resided on the farm or land over a long
period without the owner objecting or
taking steps to evict them.
This would be the answer that the first judgment gives to the
question in each of the above cases
because this answer accords with
the basis upon which the first judgment concludes that Mrs Klaase
is an occupier as defined
in ESTA.
[115] In terms of
the first judgment all a person needs in order to become an occupier
as defined in ESTA is to reside on the land
or farm for some time
with the knowledge of the owner or person in charge who fails to
object or to take steps to evict such a
person and the owner is then
taken to have tacitly given that person the contemplated consent to
reside on the farm.  In my
view, this construction of “consent”
to reside on the land is untenable.  It makes no distinction
between a person
who resides on the land or farm under or through
someone else like a spouse or a child of an occupier as defined and a
person who
resides on the land or farm not through or under anybody
but in his or her own right and is given consent to reside on the
land
or farm independently of anyone else’s right of residence
on the land or farm.
[116] This
construction produces untenable results.  On this approach every
family member of an occupier’s family who
resides with him or
her on a farm or land, pursuant to his or her exercise of the right
to family life “graduates”
at some undefined stage from
being a section 6(2)(d) resident to being an occupier as defined.
This means that, if a man
were given consent by a farm owner to
reside on the land and he later brought his wife and children to the
farm to live with him,
in due course they would all become occupiers
as defined.  The construction adopted by the first judgment
has the result
that, if the occupier has an employee who resides with
him or her and whose right to reside on the farm is through or under
him
and, therefore, dependent on his, he or she, too, becomes an
occupier in his or her own right in due course.  That is if he

or she lives with the occupier for a long time without the farm owner
objecting or taking steps to evict him or her.
[117] In such a case
each child and employee of the occupier would qualify to then
exercise his or her right to family life in terms
of section 6(2)(d)
and bring his or her spouse or partner and children to live with him
or her on the farm as well.  When
their children also get
married, they can also bring their spouses or partners and children
to live with them on the farm.
This process could go on and on
for some time.  Where would all these people live?  Would
they be limited to the house
given to the first occupier or would the
other “occupiers” be entitled to build their own houses
on the farm away from
and independently of the original house given
to the first occupier?  If they have no right to build other
houses on the farm
and they must all live together in the house
occupied by the first occupier, the house would soon burst at its
seams.  If
they may build their own houses on the farm, soon the
farm would be overpopulated and there would be no space for the
farmer to
conduct his or her farming operations.
[118] The approach
of the first judgment does not inquire into the reason why the farm
owner did not object.  Nor does it inquire
into whether in law
he had a right to object or had a right to evict the person.
Indeed, this construction ignores the fact
that the person may have
resided on the farm for a long time without any objection from the
owner because that person is a family
member of the occupier or she
is an employee whose residence on the farm is necessitated by
employment by the occupier and nothing
else.  In my view, the
consent referred to in the definition of the word “occupier”
is not an unqualified consent
but a qualified one.  The better
construction of the word “consent” in the definition of
“occupier”
is that it is consent that the owner or person
in charge gives to a person to reside on the land independently of
anyone else’s
right of residence on the land.  This is not
in line with the “occupier” referred to in the second
reference to
the word “occupier” in section 10(3)(c) as
discussed elsewhere in this judgment.
[119] The “occupier”
referred to in the second reference to “occupier” in
section 10(3)(c)  is
an occupier whose permission to reside
on the land is wholly dependent on the right of residence of the
occupier as defined.
In that provision that person, though
referred to as an “occupier”, is not recognised as an
occupier as defined but
is in effect simply an occupant.  My
construction of the word “consent” excludes consent that
the owner or person
in charge may give to a person or for a person to
reside on the farm or land through or under someone else.
[120] On this
construction, family members of occupiers only become occupiers as
defined where the consent that they have been given
– either
expressly or tacitly– is consent for them to reside on the land
or farm independently of the right of the
family member who is an
occupier as defined.  In other words, the consent is consent
given with the intention that the person
will not occupy or reside on
the land, farm or house through or under someone else or that his or
her right to reside on the land
will not be dependent upon anybody
else’s right of residence.
[121] This
construction of “consent” ensures that, if the owner of
land gives a person consent to reside on the farm
or land, the spouse
or partner or child or family member that the person may bring to
live with him or her on the farm through
or under him or her is a
section 6(2)(d) resident if he or she is a family member.  Such
person’s status would not at
some stage suddenly change and
become that of an occupier as defined without the knowledge of the
owner or person in charge.
In terms of this construction an
occupier’s employee does not become an occupier as defined.
This construction is in
line with the status that this Court
acknowledged for Mrs Hattingh’s children in
Hattingh
[101]
whereas the construction in the first judgment is inconsistent with
Hattingh
.  I say it is inconsistent with
Hattingh
because in
Hattingh
[102]
this Court held Mrs Hattingh’s children to have been in effect
section 6(2)(d) residents on Mr Juta’s farm despite
the fact
that they had resided there for many years without any objection from
Mr Juta and without him taking any steps to evict
them prior to the
time of the litigation that brought the matter to this Court.
[122] The first
judgment says that Mrs Klaase, who indisputably came to live on the
farm as a result of her relationship with the
Klaase family and lived
with Mr Klaase Jr, as his wife, became an occupier as defined in ESTA
just because the owners of the farm
did not object to her staying on
the farm.  Failure to object cannot be relied upon to draw the
inference sought to be drawn
when there is a plausible explanation
for the failure to object.  The question is whether on the facts
on record before us
it can be said that such consent as she may have
been given by the owners of the farm was consent for her to reside on
the farm
independently of Mr Klaase Jr’s right of residence.
In my view the answer is an unequivocal no.
[123] Out of the two
reasons relied upon by the first judgment for its conclusion that Mrs
Klaase is an occupier as defined, I have
dealt with one.  That
is that, since Mrs Klaase resided on the farm for a long time
with the knowledge of the farm owners
and they did not object or take
steps to evict her, they tacitly consented to her residing on the
farm and that changed her status
to that of an occupier as defined.
The other is given as being that—
“Mr Van der Merwe senior consented to [Mrs Klaase’s]
occupation of the cottage with her husband and is accordingly
an
occupier as defined.  It is not possible that she could have
moved into the cottage without the consent, actual or presumptive,
of
Mr Van der Merwe senior.”
[103]
[124] The second
reason is related to the first reason.  It is based on the fact
that, even on the respondents’ version,
although Mr Van der
Merwe Sr may have built the cottage for Mr Klaase Jr, he must have
known that Mr Klaase Jr would probably occupy
it with Mrs Klaase, as
Mr Klaase Jr in fact did, and Mr Van der Merwe Sr did not object to
this and did not take any steps to have
Mrs Klaase evicted.  The
idea is that Mr Van der Merwe Sr’s failure to object and to
take steps to evict Mrs Klaase
constituted tacit consent for Mrs
Klaase to reside on the farm and that that is enough to have made her
an occupier as defined.
[125] That when Mr
Van der Merwe Sr built the cottage for Mr Klaase Jr, he must have
known that in all probability Mr Klaase Jr
would occupy it with Mrs
Klaase and that he did not object then nor did he object thereafter
when he must have known that Mr Klaase
Jr was living with Mrs Klaase
in the cottage is all very well and cannot be disputed.
However, the real question is this:
to the extent that it may be said
that Mr Van der Merwe Sr tacitly consented to Mrs Klaase
residing on the farm, would
his tacit consent have been for Mrs
Klaase to reside on the farm under or through Mr Klaase Jr or
would it have been for her
to reside on the farm independently of and
irrespective of Mr Klaase Jr’s right of residence?
[126] On my
approach, that question is critical to a determination whether or not
a person is an occupier as defined.  On the
approach of the
first judgment, that question is irrelevant. On the approach of
the first judgment, the terms in which consent
is given or the
understanding underlying the consent or the conditions attached
to the consent do not matter.  In
my view, it is on this
aspect of the case where the first judgment errs fundamentally.
If the position is that the consent
that Mr Van  der Merwe
Sr may be said to have tacitly given for Mrs Klaase to reside on the
farm was for her to
reside independently of Mr Klaase Jr’s
right of residence, she would be an occupier as defined.  If,
however, the consent
was one that conferred upon her a right to
reside on the farm that was dependent on the right of residence of
Mr Klaase Jr,
then she would not be an occupier as defined.
[127] There is not a
shred of evidence to support any suggestion that Mr Van der Merwe
Sr’s consent would have
been for Mrs Klaase to reside in the
cottage or on the farm independently of and irrespective of Mr Klaase
Jr’s right of
residence.  I have no doubt that, if anybody
had asked Mr Van der Merwe Sr whether Mrs Klaase’s right of
residence on
the farm was independent of Mr Klaase Jr’s right
of residence, his answer would have been “of course not!”.

I am sure that, even Mr Klaase Jr would have given the same
answer if asked.  Indeed, even Mrs Klaase would have given
the
same answer to the question if she was asked at the time.
[128] All the
evidence overwhelmingly points to the conclusion that, to the extent
that Mr Van der Merwe Sr
may have given his
consent for Mrs Klaase to reside on the farm, that consent was for
her to reside on the farm through or under
Mr Klaase Jr.  That
consent is not the type of consent contemplated in the definition of
“occupier” and does not
turn a person who is not an
occupier as defined into an occupier as defined.
[129] Mr Van der
Merwe Sr built a cottage for Mr Klaase Jr but, when Mr Klaase Jr
started occupying the cottage, he took his wife-to-be
along.  In
Klaasen
the Land Claims Court gave a similar example in
considering the scope of the term “occupier”.  It
said:
“The scope of the term ‘occupier’ can best be
illustrated with reference to particular examples.  I will
use
the example of a farm owner
who employs a labourer to work on his
farm and,
as a term of his employment contract,
allows
him to occupy a house on the farm.
If the labourer moves
into the house with his wife and children, the occupation by the wife
and children would be lawful
by virtue of the labourer’s right
to family life in terms of [ESTA], but the wife and children would
not become ‘occupiers’
in their own right.”
[104]
(Emphasis added and footnotes omitted.)
[130] Later on, the
Court said in regard to the position of the wife, the children and a
friend that the occupier may have brought
into the house to live with
him:
“The person who holds the consent is the labourer himself, and
the wife’s, children’s or friend’s right
of
residence is
under or through the labourer
.  The labourer
may allow them to reside in the house by virtue of the consent given
to him by the owner or person in charge.
If the labourer wants
to evict the friend, the friend will not be entitled to any
protection under [ESTA].”
[105]
What was said by the
Land Claims Court as quoted above supports the construction of
“consent” adopted in this judgment
and the conclusion
that Mrs Klaase is not an “occupier” as defined.
Section 6(2)(d) residents
[131] Section
6(2)(d) reads:
“(2) Without prejudice to the generality of the provisions of
section 5 and subsection (1), and balanced with the rights
of the
owner or person in charge, an occupier shall have the right -
. . .
(d) to family life in accordance with the culture of that family.”
[132] In
Hattingh
Mrs Hattingh lived on Mr Juta’s farm with the consent of Mr
Juta.  I would add that Mr Juta’s consent was for
Mrs
Hattingh to reside on the farm independently of anyone else’s
right to reside on the farm.  She was, therefore,
an occupier as
defined.  I pause here to highlight the point that the
definition of “occupier” in ESTA does not
restrict
occupiers to the male gender.  Women, too, may be occupiers and
Hattingh
reveals that there are women occupiers even in real
life under ESTA.  Therefore, there is no warrant for the
approach adopted
in the first judgment that creates the
impression that ESTA is somehow anti-women.  Mrs Hattingh’s
adult children,
her daughter-in-law and grandchildren lived with her
in a cottage on Mr Juta’s farm.  Mr Juta sought to
have some
of Mrs Hattingh’s adult children evicted from the
farm as he needed to give that part of the cottage which they
occupied
to his new farm manager to occupy.  Mrs Hattingh’s
children were not employed by Mr Juta.
[133] Mrs Hattingh’s
children contended that, as an occupier, Mrs Hattingh had a right to
family life as provided for in section
6(2)(d) and that that right
entailed that she could live on Mr Juta’s property with members
of her family.  Although
Mr Juta acknowledged that Mrs
Hattingh’s right to family life entailed that she could live
with members of her family on
the farm, he contended that that did
not include living with self-reliant family members.  The
question for determination
in that case was, therefore, whether an
occupier’s right to family life under ESTA entailed that the
occupier could live
with adult and self-reliant family members on the
farm.  This Court said:
“The matter raises the interpretation of section 6(2)(d) which
relates to a right that is important and affects a vulnerable
and yet
significant section of our society, namely, people who live on other
people’s land.”
[106]
[134] In
Hattingh
the meaning and ambit of the right to family life provided for in
section 6(2)(d) arose pertinently for decision.  This Court

interpreted the provisions of section 6(2)(d) to mean that an
occupier may live on the property of another with one or more members

of his or her family if to do so would not be unjust and inequitable
to the property owner when the interests of the occupier and
those of
the property owner are balanced.
[107]
This interpretation followed upon this Court’s conclusion that
the purpose of the right to family life that section
6(2)(d) confers
upon an occupier is to enable the occupier to lead as normal a family
life on another’s property as is possible,
with due regard to
the interests of both the occupier and the property owner.
[135] This Court
also said in
Hattingh
:
“It would be difficult to define with any degree of certainty
the occupier’s ‘right to family life in accordance
with
the culture of that family’ for which provision is made in
section 6(2)(d).  However, it seems to me that the reference
to
‘family life’ in section 6(2)(d) suggests that the
purpose of the conferment of this right on occupiers was to ensure

that, despite living on other people’s land, persons falling
within this vulnerable section of our society would be able
to live a
life that is as close as possible to the kind of life that they would
lead if they lived on their own land.  This
means as normal a
family life as possible, having regard to the landowner’s
rights.”
[108]
[136] Later on this
Court further said:
“Living a family life may mean the occupier living with his or
her spouse or partner only, or living with one or more of
his or her
children or with one or more members of his or her extended family,
depending upon what the result is when one balances
the occupier’s
living with any one or more of those persons, with what the owner of
the land is also entitled to.  If,
in a particular case, the
balancing produces a result that is unjust and inequitable to the
owner of the land, the occupier’s
right to family life may be
appropriately limited.  If, however, the occupier were to live
with his or her spouse or partner
and with one, two or more of his
children or other members of the extended family and this would not
result in any injustice or
unfairness and inequity to the owner of
the land, the occupier would be entitled to live with those members
of his or her family.”
[109]
[137] It is clear
from
Hattingh
that for purposes of an occupier bringing onto
the property a family member or family members to reside with him or
her, the consent
of the property owner is not required.  Only
the occupier’s consent is required.  If the consent of the
property
owner were required, such a family member would become an
occupier as defined upon the grant of the property owner’s
consent
if that consent enabled that family member to reside on the
farm independently of the occupier’s right of residence.

This would be so because, in that event, the family member would fit
into the definition of “occupier”.
[138] A section
6(2)(d) resident resides on the property with the consent of the
occupier as defined.  The only requirements
for this category of
residents are that he or she must be a member of the family of the
occupier, must reside with him or her on
the property with his or her
consent and their living on the property should not be unjust and
inequitable to the property owner
when the interests of the occupier
and those of the property owner are balanced.  Although this
Court did not use the term
“section 6(2)(d) resident” in
Hattingh
, Mrs Hattingh’s adult family members who
resided with her on Mr Juta’s farm were section 6(2)(d)
residents on that
farm.
[139] The first
judgment takes the view that our decision in
Hattingh
is
distinguishable.  It says that this is so because Mrs Klaase
does not rely on the right to family life in section 6(2)(d)
whereas
Mrs Hattingh relied on that right.  With respect that is not a
basis to distinguish
Hattingh
because in this case the
respondents rely on the existence of Mr Klaase’s right to
family life to say Mrs Klaase was a section 6(2)(d)
resident and
not an occupier as defined.  In the present case the main
question for determination is whether or not Mrs Klaase
is an
occupier as defined on the first respondent’s farm.
She contends that she was.  The respondents contend
that she is
not and her residence on the farm is through or under her husband who
allowed her, initially, to stay with him and
Mr Klaase Sr and, later,
with him and their children in the cottage which he did in the
exercise of his right to family life.
Accordingly, the
distinction relied upon by the first judgment is no distinction at
all.
[140] Another
category of residents would be people that an occupier may bring onto
the farm to live with him or her but who are
not family members.
A good example would be an employee employed by an occupier such as a
nanny.  Such a person would
not be a section 6(2)(d) resident.
Nor could she or he be said to be an occupier as defined because her
or his right of residence
on the farm would not be independent of
anybody else.  His or her right of residence would be dependent
on that of the occupier
employing him or her.  The consent of
the owner or person in charge would be for that person to reside on
the farm or land
through or under the occupier as defined.  It
would be absurd to suggest that, in so far as the owner may have
given consent
for such a person to live with the occupier, the
consent was of the type that would enable that person to continue to
reside on
the farm even after the occupier’s right of residence
has been validly, justly and fairly terminated.  That is an
example
of a person who could reside on the farm with the owner’s
consent in circumstances where the consent would not mean that he
or
she resides on the farm or land independently of the right of
residence of the occupier as defined.
[141] Coming back to
the present case, therefore, the position has to be that, even if it
could be said that Mrs Klaase resided
on the farm with the tacit
consent of the owners of the farm, that is not on its own enough to
make her an occupier as defined
in ESTA.  It is only enough to
make her a lawful occupant of the cottage or farm.  In my view
Mrs Klaase has failed to
show that such consent to reside on the farm
as she may have been given by the owners of the farm, either
expressly or tacitly,
was consent to reside on the farm independently
of Mr Klaase Jr’s right of residence.  Accordingly, her
right to reside
on the farm was dependent upon his and she lived on
the farm through or under him.  Her right could not survive
beyond the
termination of his right.
[142] I return to
the question: is Mrs Klaase an occupier as defined in ESTA or is she
a section 6(2)(d) resident?  I say that
she is a section 6(2)(d)
resident.  The features of this case which support this
conclusion are:
(a) Mr Van der Merwe’s evidence that Mrs Klaase came to live on
the farm as a result of her relationship with Mr Klaase Jr
is
undisputed;
(b) when Mrs Klaase came to live on the farm, she already had a child
with Mr Klaase Jr;
(c) initially, Mrs Klaase lived on the farm with both Mr Klaase Sr
and Mr Klaase Jr;
(d) when Mr Van der Merwe Sr gave Mr Klaase Jr the cottage to occupy,
Mrs Klaase occupied it with him and later with their children
as
well;
(e) Mr and Mrs Klaase are married and have been married since about
1988;
(f) Mr and Mrs Klaase have at all times material to this case lived
together in the cottage as husband and wife and with their
children
as a family;
(g) Mr Klaase Jr became an occupier as defined at the latest when
Mr Van der Merwe Sr gave him the cottage;
(h) there is no evidence that any of the successive owners of the
farm or persons in charge of the farm ever spoke to Mrs Klaase
about
residing on the farm or giving her any consent directly to reside on
the farm;
(i) Mrs Klaase’s assertion in her affidavit in the Land Claims
Court that it was an essential term of her oral contract of

employment that she would have housing or accommodation on the farm
falls to be rejected; it is lacking in necessary details and
is a
benefit that Mr Van der Merwe Jr says has never been given to any
seasonal worker in all the time he has lived in the area
and he says
he has lived in the area all his life.  All his life must be
decades; there is no reason why such a benefit would
have been given
to Mrs Klaase who was a seasonal worker; and
(j) although Mrs Klaase has lived on the farm for about 26 years, she
has never done anything to assert any right to reside on
the farm
independently of Mr Klaase Jr’s right of residence; on the
contrary, she has conducted herself all these years
in a way
consistent with the way a section 6(2)(d) resident would conduct
herself.
[143] All these
features point overwhelmingly to Mrs Klaase being a
section 6(2)(d) resident.  Are there features
that
point to her being an occupier as defined?  The answer is: NO,
none can be advanced.  In conclusion Mrs Klaase is
a section
6(2)(d) resident and not an occupier as defined.
[144] In dealing
with the question whether Mrs Klaase is an occupier as defined or a
section 6(2)(d) resident, I was dealing with
the basis upon which Mrs
Klaase claimed to have been entitled to be joined in the automatic
review proceedings in the Land Claims
Court.  Her averments
should have been assumed to be true for purposes of the Land Claims
Court deciding whether she had a
direct and substantial interest in
the outcome of the matter between her husband and the respondents.
That is the approach
that is adopted in deciding whether a party has
legal standing.
[110]
I think that the same approach applies to applications for
joinder.  However, in this case the Land Claims Court

decided the joinder application on the basis of examining the
validity of the contention made by Mrs Klaase that she was an
occupier
as defined.
[145] In this Court
the matter could have been decided only on joinder on the assumption
that Mrs Klaase’s averments were
true or correct and without
pronouncing on their validity.  However, the interests of
justice dictated that we pronounce on
whether or not the Land Claims
Court was correct in its conclusion that Mrs Klaase was not an
occupier as defined.  The interests
of justice dictated so
because:
(a) the Land Claims Court had pronounced on the issue and its
decision to dismiss Mrs Klaase’s joinder application was based

on its conclusion that she was not an occupier as defined;
(b) the parties themselves appear to have argued the joinder
application in the Land Claims Court on the basis of whether or not

Mrs Klaase was an occupier as defined;
(c) in this Court, directions were issued to the parties to the
effect that the only issue on which they would be heard was whether

Mrs Klaase was an occupier as defined;
(d) this Court heard full argument on whether Mrs Klaase is an
occupier as defined; and
(e) not deciding this issue would mean that the parties are likely to
return to this Court later to have the same issue decided
and this
would unduly delay finality on the dispute and would result in
unnecessary costs.
[146] Since, for
purposes of determining Mrs Klaase’s application for joinder,
the Land Claims Court should have assumed her
averments relating to
her interest in support thereof to be true, that Court should have
concluded that Mrs Klaase had a direct
and substantial interest in
the order sought by the respondent against her husband.  That
the Court should have assumed Mrs
Klaase’s averments to be true
relates to her factual averments and not the conclusions she may have
sought to draw from those
averments. Having assumed the factual
averments to be true, the Court could then consider whether it could
be said that Mrs Klaase
had a direct and substantial interest in the
matter. By reason of the approach it adopted to the joinder
application and the conclusion
it reached that Mrs Klaase was not an
occupier as defined, the Land Claims Court dismissed her application
for joinder.
[147] The next
question that arises is what the Land Claims Court would have done if
it had concluded that Mrs Klaase had a direct
and substantial
interest in the matter between her husband and the respondents.
Mrs Klaase had a direct and substantial interest
because, firstly,
the eviction order that was sought was for her own eviction and the
eviction of her children.  Secondly,
in so far as it was an
eviction order against her husband, it was an order that would
deprive her of her right to live with her
husband on the farm.
She would have a right to continue to live on the farm with her
husband if she was an occupier as defined,
as she contended she was,
and she would allow him to live with her as a family member in the
exercise of her right to family life
provided for in section
6(2)(d).  The conclusion that Mrs Klaase had a direct and
substantial interest in that matter means
that the respondents should
have cited Mrs Klaase as one of the respondents in the eviction
application in the Magistrates’
Court.  The respondents
failed to do so and those proceedings resulted in an eviction order
being granted against Mr Klaase
Jr and all those occupying the
property through him.  This included Mrs Klaase and her
children.  That eviction order
was made without her being joined
and without her being given an opportunity to be heard.
[148] What is the
effect in law of the fact that the eviction order against Mr Klaase
Jr and Mrs Klaase was granted in the absence
of Mrs Klaase even
though she had a direct and substantial interest in the outcome of
the proceedings?  Since the order was
made without Mrs Klaase
being heard, it was in breach of the
audi alteram partem
rule
– a fundamental principle of our law which both courts and
administrative tribunals and functionaries are generally required
to
observe before they may make a decision adverse to anybody.  In
this judgment I take the view that Mrs Klaase is a section
6(2)(d)
resident and that her permission or consent to reside on the farm
with Mr Klaase Jr was wholly dependent upon Mr Klaase
Jr’s
right of residence on the farm.  As such, section 10(3)(c)
applies to her.  Section 10(3)(c) authorises a
court to grant an
eviction order against her.  That provision does not expressly
exclude the
audi alteram partem
rule.  It must,
therefore, be construed to include the
audi
principle.
Indeed, interpreting it in that way is interpreting it consistently
with section 26(3) of the Constitution.
Section 26(3)
reads:
“No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all
the
relevant circumstances.  No legislation may permit arbitrary
evictions.”
[149] The normal
consequence for a decision taken by an administrative tribunal or
functionary or a court adversely affecting the
rights or interests of
a person without compliance with the
audi alteram partem
rule
is that such a decision is invalid and should be set aside.  I
can see no reason why there should be a departure from
this general
rule in the case of the eviction order of the Magistrate’s
Court and the decision of the Land Claims Court confirming
the
eviction order to be correct.  Therefore, both should be set
aside.
[150] The purpose of
setting the eviction order aside is to rectify what was done wrong or
to rectify an irregularity that occurred
in the proceedings where
that court issued an order in a matter without all interested parties
being before it.  It is also
to afford Mrs Klaase an opportunity
to be heard on whether the grant of the eviction order would be just
and equitable in all circumstances
– an opportunity she should
have been granted before the eviction order could be granted against
her, her husband and her
children.
[151] If Mrs Klaase
had been joined in the eviction proceedings in the
Magistrates’ Court, she could have delivered affidavits
or
an affidavit setting out her case as to why that Court should not
grant an eviction order against her, her husband and their
children.
Setting aside the eviction order (as opposed to setting aside the
entire eviction proceedings) will enable her to deliver
her
affidavits in that Court whereafter the respondent will be entitled
to file a replying affidavit and the Court will then adjudicate
the
matter afresh.
[152] If Mrs Klaase
had been joined in the eviction proceedings and had been given an
opportunity to be heard, she could have argued
that, if she was an
occupier as defined, Mr Klaase Jr had a right of residence on the
farm as a family member and the respondent
was not entitled to any
eviction order.  She may have said that the respondent may be
entitled to an order evicting Mr Klaase
Jr in his capacity as an
occupier but not in his capacity as a section 6(2)(d) resident.
Mr Klaase Jr has only one physical
body.  If he had a right to
reside on the farm irrespective of the source from which that right
sprang – be it from
the status of being an occupier as defined
or from being a section 6(2)(d) resident – that physical body
would be entitled
to be on the farm.  The respondent would have
had no right to evict it.  Mr Klaase Jr does not have two
physical
bodies – one attached to the status of occupier and
the other attached to the status of being a section 6(2)(d)
resident.
Therefore, if Mrs Klaase were to have been able to
show that she is an occupier as defined, she could have successfully
opposed
the respondents’ eviction application even against her
husband.  However, my conclusion is that she is not an occupier

as defined but is a section 6(2)(d) resident.  Therefore,
on my approach she will not be able to present that argument.
[153] I am,
therefore, of the view that the non-joinder of Mrs Klaase in the
eviction proceedings in the Magistrates Court between
Mr Klaase Jr
and the respondents, despite the fact that she had a direct and
substantial interest, vitiated the eviction order.
That order
should be set aside and the matter be adjudicated afresh after
Mrs Klaase has been joined and has had the opportunity
of
delivering affidavits in the matter.  I agree with the first
judgment that the application for the admission of further
evidence
falls to be dismissed for the reasons given in that judgment.
[154] In the
premises I would make the following order:
1. Leave to appeal is granted to both applicants.
2. The application for leave for the admission for further evidence
is dismissed with costs.
3. The appeals are upheld with costs, such costs to be paid by the
respondents jointly and severally, the one paying the others
to be
absolved.
4. The orders by the Land Claims Court relating to the joinder
application and to the automatic review proceedings and the eviction

order issued by the Magistrate’s Court are set aside.
5. The eviction order granted by the Magistrate’s Court is
replaced with the following order:
“(a) Mrs Elsie Klaase is joined as the second respondent in
these proceedings.
(b) The second respondent (Mrs Elsie Klaase) must, if so advised,
deliver to the clerk of this Court and serve on the applicant
on or
before the expiry of 10 court days from the date of this order such
affidavits as she may wish to deliver in opposition to
the
applicant’s application.
(c) The applicant must, if so advised, on or before the expiry of
10 court days after the expiry of the period in (b) above

deliver a replying affidavit to the clerk of the Court and serve a
copy thereof on each respondent.
(d) Once the affidavits referred to in (b) and (c) have been
delivered and served or once the period referred to in (c) has
expired,
the applicant shall take the necessary steps to have the
matter set down for hearing.”
JAFTA J
Introduction
[155] I have had the
benefit of reading the judgment of Matojane AJ (first judgment)
and the judgment of Zondo J (second
judgment).  I agree that
leave must be granted and that Mrs Klaase’s appeal must
succeed.  While I agree with much
said in both judgments, there
are aspects with which I am unable to agree.
[156] I do not agree
with the conclusion in the second judgment to the effect that
Mrs Klaase’s non-joinder vitiated
the entire eviction
order.  I think the vitiation is limited to the extent that the
order in question referred to Mrs Klaase
who was not a party before
the Magistrate, at the time the order was made.  Insofar as Mr
Klaase was concerned, the landowner
had complied fully with the
requirements of ESTA.  Consequently there can be no legal basis
for overturning the Magistrate’s
order with regard to Mr
Klaase.  Accordingly it would not have been competent for the
Land Claims Court to set aside the order
on review in relation to Mr
Klaase because no error of law was committed by the Magistrate.
[157] The allegation
that Mrs Klaase could have asserted her right or entitlement to live
with her husband, had she been joined,
remains just an allegation.
It was not an established fact before the Magistrate.  Nor was
it proved before the Land
Claims Court where Mrs Klaase made the
application to be joined.  It does not appear to me that in her
papers before the Land
Claims Court, she makes this allegation.
In my view, it is incorrect to set aside the Magistrate’s order
pertaining
to Mr Klaase in the present circumstances.
[158] With regard to
the first judgment, once it is accepted that Mrs Klaase should have
been joined, I think it is not necessary
for present purposes to
determine whether she was an occupier as defined in ESTA or an
occupier described in section 10(3)
of ESTA.  This section
provides:
“If . . . a court may grant an order for eviction of  the
occupier and of any other occupier who lives in the same dwelling
as
him or her, and whose permission to reside there was wholly dependent
on his or her right of residence if it is just and equitable
to do
so.”
[159] It seems to me
that ESTA contemplates two types of occupiers.  The occupiers as
defined and those referred to in section
10(3) who may be evicted
together with the occupier as defined, provided they live with her in
the same house and their “permission
to reside there was wholly
dependent” on her right of residence.  In addition, the
granting of an eviction order in
those circumstances must also be
just and equitable.
[160] Therefore I
accept that Mrs Klaase was an occupier but I do not find it necessary
here to determine whether she was an occupier
as defined or as
described in section 10(3) of ESTA.  Her non-joinder justifies
the setting aside of the eviction order to
the extent that it
referred to her.
[161] For these
reasons I support the order proposed in the first judgment.
For the Applicants:
P
Hathorn and C De Villiers
instructed by JD Van Der Merwe
Attorneys
For the First and
Second Respondents:
A
M Breitenbach SC, L Wilkin and M Adhikari
instructed by
Terblanche Attorneys
For the Amicus
Curiae:
K
Pillay SC and J Williams instructed by Women’s Legal Centre
[1]
Van der Merwe NO and Another v Klaase
,
unreported judgment of the Land Claims Court, Case No LCC 09R/2014
(28 March 2014)
(Land Claims Court review judgment).
[2]
Van der Merwe and Another v Klaase; In re:
Klaase v Van Der Merwe and Others
[2014]
ZALCC 15
(7 October 2014)
(Land Claims Court joinder
judgment).
[3]
62 of 1997.
[4]
The preamble to ESTA is set out in full at n 55 below.
[5]
The Municipality was joined by way of an order of this Court dated
12 August 2015.
[6]
Mr Klaase’s father was a pensioner and was entitled to reside
on the farm for as long as he deemed fit.
[7]
Mrs Klaase was born on a neighbouring farm where she lived with her
mother before she moved onto the farm.
[8]
Section 9(3) of ESTA requires reports to be
prepared by a probation officer to assess whether the requirements
of section 10 and
11 of ESTA are met.
[9]
Section 9(2) sets out the peremptory requirements for an eviction
order under the Act, which are amongst others—
“
(a) the occupier’s right of
residence must be terminated in terms of section 8;
(b) the occupier has not vacated the land within the period of
notice given by the owner or person in charge;
(c) the conditions for an order for eviction in terms of section 10
or 11 have been complied with; and
(d) the owner or person in charge must, 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 Land Affairs, 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.”
[10]
Section 19(3) provides:
“Any order for eviction by a magistrate’s court in terms
of this Act, in respect of proceedings instituted on or
before a
date to be determined by the Minister and published in the Gazette,
shall be subject to automatic review by the Land
Claims Court, which
may—
(a) confirm such order in whole or in part;
(b) set aside such order in whole or in part;
(c) substitute such order in whole or in part; or
(d) remit the case to the magistrate’s court with directions
to deal with any matter in such manner as the Land Claims
Court may
think fit.”
[11]
The Land Claims Court’s confirmation order reads:
“The Magistrate’s order dated 14 January 2014 is hereby
confirmed save that the dates of eviction are amended as
follows:
29.1 The respondent and all persons who occupy through him shall
vacate the premises they occupy on the farm known as Noordhoek

Citrusdal (“GEDEELTE 15” (GEDEELTE VAN GEDEELTE 4) VAN
DIE PLAAS MISGUNT NR. 499, AFDELING CLANWILLIAM, PROVINSIE
WES KAAP)
by no later than 31 May 2014.
29.2 In the event of the respondent failing to vacate the premises
on 31 May 2014, the Sheriff, for the area, is authorised

to evict him and all persons who occupy through him on 02 June
2014.”
[12]
Land Claims Court review judgment above n 1 at para 16.
[13]
Regulation 6 provides:
“A notice to an occupier, municipality, or head of a
provincial office of the Department of Land Affairs in terms of

section 9(2)(d) of the Act must be completed on Form E or F or must
conform substantially to Form E or F in the Annexure as the
case may
be.”
Form E is a notice
in terms of section 9(2)(d)(i) of ESTA which sets out the
requirements to be fulfilled in order for an eviction
of an occupier
to be effected lawfully, with court approval.  See above n 9
for section 9(2)(d)(i) of ESTA.
[14]
Land Claims Court review judgment above n 1 at paras 27-8.
[15]
Id at para 18.
[16]
Id at para 24.
[17]
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga &
Others
[2012] ZASCA 77
;
2012 (5) SA 392
(SCA) (
Sterklewies
)
at para 3.
[18]
Land Claims Court review judgment above n 1 at para 28.
[19]
See Land Claims Court joinder judgment above n 2.
[20]
Id at para 4 of the order.
[21]
The facts in support of this application were similar to those in
Mrs Klaase’s application for the suspension of the eviction

order.
[22]
Mkangeli and Others v Joubert and Others
[2002] ZASCA 13
;
2002 (4) SA 36
(SCA) at para 19.  In this case the appellants
were evicted from land by a Community Trust that sought eviction on
two causes
of action, namely, that the appellants occupied the land
contrary to provisions of the applicable town-planning scheme and
that
the appellants caused nuisance that could only be abated by the
eviction.  The respondent had conceded that the appellants
did
qualify as occupiers as defined in section 1(1) of ESTA.  The
appellants’ main argument was that they were protected
against
eviction by the provisions of ESTA.  The Court held, among
other things, that ESTA protected a particular class
of impecunious
tenants on rural and semi-rural land against eviction from that
land.  It said that the underlying basis
for the protection was
that they acquired their tenancy with the consent of the owner.
[23]
In terms of section 3(4), “a person who has continuously and
openly resided on land for a period of one year shall be presumed
to
have consent unless the contrary is proved.”
[24]
Land Claims Court joinder judgment above n 2 at para 16.
[25]
Id at para 15.
[26]
From the statements attached to the respondents’ opposing
papers, certain Messrs Patrick Owies and Brendon Engelbrecht
were
the said permanent employees who were entitled to be accommodated on
the premises.
[27]
As authority for this argument, the respondent relied on
Syntheta
(Pty) Ltd (formerly Delta G Scientific (Pty) Ltd) v Janssen
Pharmaceutica NV and Another
[1998] ZASCA 74
;
1999 (1) SA 85
(SCA) at 91C.
[28]
Land Claims Court joinder judgment above n 2 at para 26.
[29]
Id at para 22.
[30]
Landbounavorsingsraad v Klaasen
[2001] ZALCC 43
2005 (3) SA
410
(LCC) (
Klaasen
) at para 33.  See also
Simonsig
Landgoed (Edms) Bpk v Vers and Others
[2007] ZAWCHC 20
;
2007 (5)
SA 103
(C) (
Simonsig
) at para 18.
[31]
Land Claims Court joinder judgment above n 2 at para 24.
[32]
Id at para 23.
[33]
Id at para 25.
[34]
Id at para 26.
[35]
Id.
[36]
Magodi and Others v Van Rensburg
[2002] ZALCC 5
;
2002 (2) SA
738
(LCC) at paras 5-6.  The Court also relied on
Rashavha v
Van Rensburg
[2003] ZASCA 132
;
2004 (2) SA 421
(SCA) at para 5.
[37]
Mrs Klaase did not apply to the Land Claims Court for leave to
appeal against the dismissal of her application to be joined in
the
eviction application.
[38]
Loureiro v Umvula Quality Protection (Pty) Ltd
[2014] ZACC 4
;
2014 (3) SA 394
(CC); 2014 (5) BCLR 511 (CC) at para 33, where
this Court said:
“[T]he mere fact that a matter is located in an area of the
common law that can give effect to fundamental rights does
not
necessarily raise a constitutional issue.”
[39]
The directions read in relevant part:
“2. Consideration of the application will be limited to the
determination of the following issues only:
a) the second applicant’s rights under the Extension of
Security of Tenure Act 62 of 1997 (ESTA); and
b) the potential prejudice to women who, under ESTA, find themselves
in similar positions to the second applicant.”
[40]
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
[2009] ZACC 16
;
2010 (3) SA 454
(CC);
2009 (9) BCLR 847
(CC)
(
Thubelisha
) at para 50
.
[41]
In that case, the Court was dealing with ostensible consent.
[42]
10 of 2013.
[43]
Section 167(6).
[44]
MM v MN and Another
[2013]
ZACC 14
;
2013 (4) SA 415
(CC);
2013 (8) BCLR 918
(CC) at para 16.
[45]
Rule 31 reads:
“(1) Any party to any proceedings before the Court and an
amicus curiae
properly admitted by the Court in any
proceedings shall be entitled, in documents lodged with the
Registrar in terms of these
rules, to canvass factual material that
is relevant to the determination of the issues before the Court and
that does not specifically
appear on the record: Provided that such
facts—
(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature
capable of easy verification.
(2) All other parties shall be entitled, within the time allowed by
these rules for responding to such document, to admit, deny,

controvert or elaborate upon such facts to the extent necessary and
appropriate for a proper decision by the Court.”
[46]
In re: Certain Amicus Curiae Applications: Minister of Health and
Others v Treatment Action Campaign and Others
[2002] ZACC 13
;
2002 (5) SA 713
(CC);
2002 (10) BCLR 1023
(CC) (
Certain Amicus
Curiae Applications
) para 8.
[47]
The report is titled
Farm Workers’ Living and Working
Conditions in South Africa: Key Trends, Emergent Issues and
Underlying and Structural Problems
and was prepared by Margareet
Visser of the University of Cape Town and Stuart Ferrer of the
University of Kwa-Zulu Natal.
[48]
See
Judicial Service Commission v Cape Bar Council
[2012]
ZASCA 115
;
2013 (1) SA 170
(SCA); at paras 11-2; and
Bowring
NO v Vrededorp Properties CC
[2007] ZASCA 80
;
2007
(5) SA 391
(SCA)
at para 21.
[49]
International Trade
Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC)
(
ITAC
)
at paras 11-2.
[50]
In relevant parts, section 3 of ESTA provides:
“(4) For the purpose of civil proceedings in terms of this
Act, a person who has continuously and openly resided on land
for a
period of one year or more
shall be presumed
to have consent
unless the contrary is proved.
(5) For the purpose of civil proceedings in terms of this Act, a
person who has continuously and openly resided on and for a
period
of one year shall be deemed to have done so with the knowledge of
the owner or person in charge.” (Emphasis added.)
[51]
Section 12(5) of ESTA provides:
“A court may, on good cause shown, vary any term or condition
of an order for eviction made by it.”
[52]
Emphasis added.
[53]
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re: Hyundai
Motor Distributors (Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1097
(CC) at para 26.
[54]
See
Bertie van Zyl v Minister for Safety and Security
[2009]
ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) at para 31-2.
[55]
The preamble to ESTA reads:
“WHEREAS many South Africans do not have secure tenure of
their homes and the land which they use and are therefore vulnerable

to unfair eviction;
WHEREAS unfair evictions lead to great hardship, conflict and social
instability;
WHEREAS this situation is in part the result of past discriminatory
laws and practices;
AND WHEREAS it is desirable—
that the law should promote the achievement of long-term security of
tenure for occupiers of land, where possible through the
joint
efforts of occupiers, landowners
, a
nd
government bodies;
that the law should extend the rights of occupiers, while giving due
recognition to the rights
,
duties and
legitimate interests of owners;
that the law should regulate the eviction of vulnerable occupiers
from land in a fair manner, while recogni
s
ing
the right of land owners to apply to court for an eviction order
in
appropriate circumstances;
to ensure that occupiers are not further prejudiced.”
[56]
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty)
Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) (
Goedgelegen
).
[57]
Section 25(6) of the Constitution provides:
“A person or community whose tenure of land is legally
insecure as a result of past racially discriminatory laws or
practices
is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to
comparable redress.”
See also the
preamble to ESTA, above n 55.
[58]
Goedgelegen
above n 56 at para 52.
[59]
Id at para 53.  This approach has been endorsed in subsequent
decisions of this Court, for example
Bakgatla-Ba-Kgafela Communal
Property Association v Bakgatla-Ba-Kgafela Tribal Authority and
Others
[2015] ZACC 25
;
2015 (6) SA 32
(CC);
2015 (10) BCLR 1139
(CC) at para 35 and
Minister of Mineral Resources and Others v
Sishen Iron Ore Company (Pty) Ltd and Another
[2013] ZACC 45
;
2014 (2) SA 603
(CC);
2014 (2) BCLR 212
(CC) at para 47.  The
Supreme Court of Appeal has also endorsed this approach in
Brown
v Mbhense
[2008] ZASCA 57
;
2008 (5) SA 489
(SCA) at paras 23-5.
[60]
Section 26(1) of the Constitution.
[61]
Section 26(3) of the Constitution.
[62]
Section 9 of the Constitution.
[63]
Section 10 of the Constitution.
[64]
See the Soanes and Stevenson
Concise Oxford English Dictionary
,
11th Ed Revised (OUP, Oxford 2009) at 1464.
[65]
Thubelisha
above n 40.
[66]
Klaasen
above n 30 and
Simonsig
above n 30 at para 18.
[67]
See above n 50.
[68]
Klaasen
above n 30 at para 20.
[69]
Id at para 21.
[70]
Land Claims Court joinder judgment above n 2 at para 25.
[71]
Section 3(4).
[72]
Section 3(5).
[73]
This is borne out by the parties’
agreed
statement of facts prepared in accordance with the Chief Justice’s
directions. There, it is recorded that Mrs Klaase
had resided
continuously and openly on the farm for many years.
[74]
Section 6(2)(d) provides, in relevant part:
“[B]alanced with the rights of the owner or person in charge,
an occupier shall have the right—
. . .
(d) to family life in accordance with the culture of that family:
Provided that this right shall not apply in respect of single
sex
accommodation provided in hostels erected before 4 February 1997.”
[75]
Hattingh and Others v Juta
[2013] ZACC 5;
2013
(3) SA 275 (CC); 2013 (5) BCLR 509 (CC).
[76]
Id at para 35.
[77]
Those factors are listed at section 8(1) and are—
“(a) the fairness of any agreement, provision in an agreement,
or provision of law on which the owner or person in charge
relies;
(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship
to the owner or person in charge, the occupier concerned,
and any
other occupier if the right of residence is or is not terminated;
(d) the existence of a reasonable expectation of the renewal of the
agreement from which the right of residence arises, after
the
effluxion of its time; and
(e) the fairness of the procedure followed by the owner or person in
charge, including whether or not the occupier had or should
have
been granted an effective opportunity to make representations before
the decision was made to terminate the right of residence.”
[78]
62 of 1997.
[79]
See
Hattingh
above n 75.
[80]
Section 167(3)(b)(ii) of the Constitution provides that the
Constitutional Court may decide—
“any other matter, if the Constitutional Court grants leave to
appeal on the grounds that the matter raises an arguable
point of
law of general public importance which ought to be considered by
that Court.”
[81]
The definition of “occupier” in ESTA is in [104] below.
[82]
See [74] and [82] below.
[83]
See [76] and [82] below.
[84]
See
Klaasen
above n 30.
[85]
Id at para 24.
[86]
See [60] of first judgment.
[87]
See [64] of first judgment.
[88]
Id.
[89]
See n 89 below.
[90]
Ellerine Brothers (Pty) Ltd v McCarthy Ltd
[2014] ZASCA 46
;
2014 (4) SA 22
(SCA) at 24D-F;
Floral Displays (Pty) Ltd v Bassa
Land and Estate Co (Pty) Ltd
1965 (4) SA 99
(D) at 100F-101A;
Gajraj v Hoosen
1958 (2) SA 630
(D) at 631E-G;
Ntai &
Others v Vereeniging Town Council & Another
1953 (4) SA 579
(A) at 589E, 589G-H, 590D-F and 590G.
[91]
Emphasis added.
[92]
Emphasis added.
[93]
Emphasis added.
[94]
Section 11(3)(e) reads—
“(e) the balance of the interests of the owner or person in
charge, the occupier and the remaining occupiers on the land.”
[95]
Section 12(4) reads:
“Any order for eviction of an occupier in terms of section 10
or 11 shall be determined by the court, having regard to
the income
of all of the occupiers in the household.”
[96]
By the occupier in the case of a section 6(2)(d) resident and by the
occupier and the owner of the land in the case of the employee
and
the friend.
[97]
Section 10(3)(c) of ESTA (Emphasis added).
[98]
Klaasen
above n 30 at para 33.
[99]
See
Sterklewies
above n 17.
[100]
Klaasen
above n 30 at para 33.
[101]
See
Hattingh
above n 75.
[102]
Id at para 34.
[103]
See [64] of first judgment.
[104]
Klaasen
above n 30 at para 24.
[105]
Id.
[106]
Hattingh
above n 75 at para 25.
[107]
Id at para 37.
[108]
Id at para 35.
[109]
Id at para 37.
[110]
Giant Concerts
CC v Rinaldo Investments (Pty) Ltd and Others
[2012] ZACC 28
;
2013 (3) BCLR 251
(CC).