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[2018] ZASCA 119
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Nederburg Wines (Pty) Ltd v Nero and Others (1084/17) [2018] ZASCA 119 (20 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1084/17
In
the matter between:
NEDERBURG
WINES (PTY)
LTD
APPELLANT
and
FRANS
NERO
FIRST
RESPONDENT
FRANSOIWA
BAADJIES
SECOND
RESPONDENT
JERAET
NERO
THIRD
RESPONDENT
GERALDINE
DU TOIT
FOURTH
RESPONDENT
VERONICA
DU TOIT
FIFTH
RESPONDENT
ALL
OTHER PERSONS RESIDING
AT
THE PROPERTY AT HOUSE
NUMBER
4 ON THE NEDERBURG
ESTATE,
THE REMAINDER OF
FARM
604, IN THE MUNICIPAL
AREA
OF THE WINELANDS
DISTRICT
COUNCIL AND
REGISTRATION
DIVISION OF
PAARL
SIXTH
RESPONDENT
DRAKENSTEIN
MUNICIPALITY
SEVENTH
RESPONDENT
DEPARTMENT
OF RURAL
DEVELOPMENT
AND LAND
REFORM
EIGHT
RESPONDENT
Neutral
citation:
Nederburg
Wines (Pty) Ltd v Nero & others
(1084/17)
[2018]
ZASCA 119
(20 September 2018)
Coram:
Shongwe
ADP and Majiedt, Mbha, Mocumie and Makgoka JJA
Heard:
27
August 2018
Delivered:
20
September 2018
Summary:
Land
– eviction under
Extension of Security of Tenure Act 62 of 1997
– appeal against order in unopposed application –
application dismissed without benefit of probation officer’s
report – such report mandatory and valuable – execution
of eviction order suspended – municipality ordered to
provide
temporary emergency accommodation.
ORDER
On appeal from:
Land Claims Court of
South Africa, Randburg (Ngcukaitobi AJ sitting as court of first
instance):
1 The appeal is
upheld with no order as to costs.
2 The order of the
court a quo is set aside and replaced with the following:
‘
2.1 The first
to fifth respondents are evicted from the property as described in
paragraph 1 of this judgment.
2.2 The execution of
the order is suspended for a period of 90 days from date of this
order.
2.3 To the extent
necessary, the Drakenstein Municipality (the seventh respondent in
the court a quo) is ordered to provide the
first to the fifth
respondents with temporary emergency accommodation within 60 days of
the date of this order.
2.4 The Drakenstein
Municipality is ordered to file a report on whether temporary
emergency accommodation has been provided to the
respondents to the
Registrar of the Land Claims Court within 20 days from the date of
expiry of the 90 days referred to in paragraph
2.2 above.’
JUDGMENT
Shongwe
ADP (Majiedt, Mbha, Mocumie and Makgoka JJA concurring)
[1]
This appeal is against the order of Ngcukaitobi AJ dismissing an
unopposed eviction application against the first to fifth respondents
in the Land Claims Court (Randburg). The eviction was from the
Remainder of Farm No 604 in the municipal area of the Winelands
District Council, and Registration Division Paarl, Province of the
Western Cape, held under the Title Deed No. T12268/1965, commonly
known as Nederburg Estate (the property).
[2]
It is not in dispute that the appellant is the registered owner of
the property. The appellant alleged that the first to fifth
respondents are in unlawful occupation of the property in that it
terminated, on lawful grounds, the residence of the first respondent.
The first respondent was employed by the appellant as an irrigator
from 26 July 1993 until his employment was terminated on 19
December
2011. The second to fifth respondents are the adult children of the
first respondent under whom they claim residency on
the property. The
papers in this application were duly served on the Drakenstein
Municipality, a local municipality as envisaged
in s 2 of the
Municipal Systems Act 32 of 2000, as well as on the Department of
Rural Development and Land Reform and they both
failed to respond.
[3]
The background facts are that the appellant is a wine producing
company which took the first respondent into its employment
in July
1993, although a contract of employment was concluded only in
December 2005. One of the conditions of employment was that
the first
respondent may reside on the property together with his family,
inclusive of his children. It was a term of the contract
of
employment, read with the house rules that the first respondent and
his family shall vacate the premises upon termination of
employment
or within one month of a notice to vacate. In terms of the farm rules
which form part of the contract of employment,
the employer reserved
the right to exclude any employee from the premises who is found to
be under the influence of alcohol or
drugs, as well as removing such
employee from the premises.
[4]
It appears that the first respondent had a drinking problem. He had
an alcohol dependency condition, as a result of which he
voluntarily
submitted himself to a rehabilitation treatment centre in October
2008, paid for by the appellant. Prior to his admission
and at the
appellant’s insistence, the first respondent signed a Distell
Assessment and Rehabilitation Agreement to be subjected
to a random
alcohol test before and after the treatment, to establish whether
there was any alcohol present in his bloodstream.
On Monday 18
December 2011 he tested positive to such test. As a result a
disciplinary hearing was conducted. He pleaded guilty
and was
accordingly found guilty and his employment was terminated on 19
December 2011. He appealed internally, which appeal was
dismissed. He
referred the matter to the Commission for Conciliation, Mediation and
Arbitration (CCMA) for unfair dismissal, however,
he was advised by
his union representative to withdraw the complaint. A settlement
agreement was concluded incorporating the withdrawal.
The first
respondent was informed of the termination of his right of residence
on 31 July 2013 and was notified to vacate the premises
by 30
September 2013. The first respondent failed to vacate the premises,
hence the application for eviction in terms of s 10(1)
(c)
,
alternatively s10(3), read with s 8 and 9 of the Extension of
Security of Tenure Act 62 of 1997 (ESTA).
[5]
The court a quo dismissed the application on the basis that the
appellant failed to demonstrate that the respondent had committed
a
fundamental breach of the relationship with the owner, which cannot
be reasonably and practically restored. The court a quo went
on to
say ‘unsubstantiated averments such as those contained in the
founding affidavit cannot possibly justify an eviction
based on s
10(3) of ESTA’. The appellant attacked the judgment of the
court a quo on the basis that, it failed to properly
consider the
facts of this case and should have waited for the probation officer’s
report before deciding the matter. The
appellant contended further
that a strong case was made out against the first respondent’s
adult children but the court a
quo overlooked that. It also argued
that the court a quo interpreted ESTA too restrictively.
[6]
It is significant to note that the appellant’s grounds of
eviction were not only limited to the loss of employment of
the first
respondent. It also averred that the first respondent as well as his
children’s behaviour on the property had become
increasingly
intolerable. The appellant alleged that they harassed, abused and
insulted the other innocent employees on the farm.
They placed the
other employees’ safety at risk by threatening them with
violence. Warning letters had been addressed to
these children. Some
of the lawful occupiers had lodged complaints with the farm manager.
It is alleged that these children abused
drugs and are forever under
the influence of alcohol. Further, that the farm manager had been
threatened with rape and violence
(section 6(3)(
c
)
of ESTA). One of the security guards had reported a
crimen
injuria
case with the South African Police Services and is in possession of a
MAS No: 685/11/2013. It was also recorded that one of the
lawful
occupiers is in possession of an interdict against the fifth
respondent. The appellant averred that all these complaints
have made
life unbearable on the property. Some of the complainants deposed to
affidavits in support of the application. The papers
paint a grim
picture of the unacceptable conduct of the second to fifth
respondents. There are also allegations that the first
respondent
does not regularly reside on the farm anymore, but resides with what
was referred to as his life partner on a neighbouring
farm.
[7]
As a result of its eviction application the appellant requested the
court a quo to issue a notice requesting a probation officer’s
report in terms of s 9(3) read with s 9(2)(
e
)
of ESTA. The report had to deal with issues of suitable alternative
accommodation, how an eviction will affect the constitutional
rights
of any affected person and also to point out any undue hardship which
an eviction may cause the first respondent and his
children. It is
common cause that a probation officer’s report was indeed
requested, but was not before the court a quo when
the matter was
heard and considered. The report was apparently inadvertently sent to
the magistrates’ court, instead of the
LCC.
[8]
The appellant contended that the probation officer’s report
would have been of great assistance to the court a quo. It
would have
cleared the question of whether or not the first respondent still
resided on the property. It was further submitted
that the court a
quo overlooked the confirmatory affidavit of the farm manager, Mr
Faure, who specifically confirmed that at certain
times the first
respondent did not stay on the premises, but stayed with his life
partner on a neighbouring farm. The appellant
requested this court to
admit the probation officer’s report, which was admitted
without demur. I must at this stage mention
that the registrar of
this court, at the request of the presiding Judge, wrote to the
respondents to enquire if they had legal
representation. As there was
no response from them, the registrar engaged the Free State Bar
Council which appointed Advocate Hendriks
who prepared heads of
argument for the respondents in a very short space of time. Advocate
Hendriks’ able efforts are commendable.
This court found the
report extremely useful and decisive, on the issue of whether the
respondents had alternative accommodation
upon eviction.
[9]
There are conflicting decisions of the LCC on the question of whether
or not a probation officer’s report is mandatory
in cases where
ESTA is applicable. Gildenhuys J in
Westminster
Produce (Pty) Ltd t/a Elgin Orchards v Simon & another
[2000] 3 ALL SA 279
(LCC) was of the view that where an occupier
voluntarily resigns in terms of s 10(1)(
d
)
of the Act, the report is not necessary. Moloto AJ in
Valley
Packers Co-operative Ltd v Dietloft & another
[2001] 2 ALL SA 30
(LCC) was of the view that
Westminster
was wrongly decided – he opined that the report must be
requested in all eviction applications where s 9(2)(
c
)
of ESTA is relied upon. I agree with the latter decision. Section
9(3) of ESTA makes it mandatory for the court to request a probation
officer contemplated in s 1 of the Probation Services Act 116 of 1991
to submit a report within a reasonable period.
[10]
In this case the probation officer’s report confirmed that the
first respondent ‘is currently not employed and
he is not
staying on the farm as [he] is married to second wife. His first wife
died six years ago. Only three of his children
are staying on the
farm, together occupying 4 roomed house on this farm’. The
report further confirmed that neither the first
respondent nor his
children pay rent for the house, nor are they paying for electricity.
He could not pay rent as he was unemployed
and that none of his
children are employed. It would appear that one of the children has
moved out of the property. It seems from
the report that the first
respondent is more worried about his children than himself. In my
view, had the court a quo had the benefit
of the contents of the
probation officer’s report it would have decided to grant the
eviction order, since the report is
decisive.
[11]
Consideration was given by this court to remit the matter to the
court a quo to take into account the probation officer’s
report. We decided against remittal, as this court is in the same
position as the court a quo would have been. This matter commenced
in
2014 already and finality is required. It is in the interests of
justice that the matter be finalised to avoid incurring more
costs.
This
court in
Magubane
& another v Twin City Developers (Pty) Ltd & others
(891/16 [2017] 65 (30 May 2017) held that: ‘As stated by
authors D E Loggenrensberg and E Bertelsman
Erasmus
:
Superior
Courts Practice
2 ed vol 2 (loose-leaf) at A1-58, a court of appeal should in each
case have regard to consideration of convenience. See also
Simaan
v South African Pharmacy Board
1982 (4) SA 62
(A) at 81A, where Viljoen JA stated: “The
balance of convenience requires, that the present litigation should
end in this
court”.
The
court, in
Magubane
, went further to hold that:
‘
It
should also be borne in mind that s 19 of the Superior Court Act 10
of 2013 endows this court with wide powers on the hearing
of an
appeal, including the power to “confirm, amend or set aside the
decision which is the subject of the appeal and render
any decision
which the circumstances may require.”’
[12]
On the facts of this case, it is clear that granting an eviction
order accommodates the rights, duties and legitimate interest
of the
appellant as owner together with a consideration of the protection of
vulnerable occupiers, (first respondent), as provided
for in ESTA.
The first respondent will not be rendered homeless as he stays with
his second wife (who had been referred to in the
papers as ‘life
partner’). As for the adult, irresponsible and delinquent
children they have no legal right to occupy
the premises –
their right existed while their father was still employed on the
farm. They are a nuisance to the appellant
and the lawful inhabitants
on the property. Such behaviour cannot and should not be countenanced
at all. Their behaviour resulted
in the irretrievable break down of
the relationship between the appellant and the first respondent.
[13]
In the view that I take of this case, the factual discrepancy of the
LCC of dealing with the matter without considering the
probation
officer’s report, it is unnecessary to deal with the
interpretation of the legal threshold prescribed in s 10(1)(
c
)
of ESTA. It is clear that the first respondent is not interested to
remedy any fundamental breach which might have been committed
and
also not interested to restore any relationship with the appellant.
Hence no effort was made by him to oppose the eviction
application.
He voluntarily withdrew, after advice, the complaint at the CCMA and
settled the matter amicably. It follows that
the eviction order
should be granted. However, to the extent that the eviction may
result in homelessness, certain suitable conditions
need to be
incorporated in the order.
[14]
The following order is made.
1 The appeal is
upheld with no order as to costs.
2 The order of the
court a quo is set aside and replaced with the following:
‘
2.1
The first to fifth respondents are evicted from the property as
described in paragraph 1 of this judgment.
2.2 The execution of
the order is suspended for a period of 90 days from date of this
order.
2.3 To the extent
necessary, the Drakenstein Municipality (the seventh respondent in
the court a quo) is ordered to provide the
first to the fifth
respondents with temporary emergency accommodation within 60 days of
the date of this order.
2.4 The Drakenstein
Municipality is ordered to file a report on whether temporary
emergency accommodation has been provided to the
respondents to the
Registrar of the Land Claims Court within 20 days from the date of
the expiry of the 90 days referred to in
paragraph 2.2 above.’
_______________________
J
B Z Shongwe
Acting Deputy
President Supreme Court of Appeal
Appearances
For
the Appellant: H S Havenga SC
Instructed
by:
Cluver
Markotter Incorporated, Stellenbosch;
McIntyre
& Van Der Post Attorneys, Bloemfontein
For
the Respondent: C J Hendriks
Instructed
by:
The
Registrar of the Supreme Court of Appeal, Bloemfontein