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Rand Water v Tshabalala and Others (LCC50/05) [2007] ZALCC 3 (16 February 2007)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC50/05

Pienaar A J

Heard on 15 February 2007

Decided on 16 February 2007

In case between:

RAND WATER Applicant

and

PA TSHABALALA AND OTHERS Respondent

JUDGEMENT

PIENAAR AJ

[1] This is an application for an eviction order under the Extension of Security of Tenure Act 62 of 1997. The plaintiff is Rand Water, a body corporate established in terms of section 84 of the Rand Water Services Act 108 of 1997 and owner of the farm Zwartkopjes. The first defendant is Paulus Alexander Tshabalala who resides at House Number 15, Zwartkopjes Farm. The second defendant is Anna Tshabalala, the first defendant’s wife. The third defendant is Letta, the first and second defendants’ adult child. The application was initially unopposed and the hearing was scheduled for 15 November 2006. However, when the first defendant appeared in court on that date the hearing was postponed to 15 February 2007 in order for the respondent to secure legal representation. On 15 February 2007, however, the defendant indicated that he was unable to find legal representation, but that he would be appearing in person. It was decided to continue with the proceedings.

Background to the eviction application.

[2] The farm Zwartkopjes is a farm on which inter alia dairy farming and irrigation cropping are conducted. The plaintiff employs a number of farm workers on the farm. As part of their contacts of employment, free accommodation on the farm is offered. The defendant has been employed by the plaintiff since 1 April 1993 as a farm worker, more particularly a tractor driver. Express terms of his contract of employment included amongst other, that his right to accommodation arose solely from his employment and that his right of accommodation would terminate in the event that his employment with the plaintiff terminated. The first defendant occupied a five (5) roomed house on the farm and was equipped with water and electricity provided free of charge.

[3] The first defendant was found guilty of theft and his employment was terminated in accordance with the Labour Relations Act 66 of 1995 on 9 November 2004. During or about November 2004 the first defendant referred a dispute of unfair dismissal to the Commission for Conciliation Mediation and Arbitration (“CCMA”). On 25 April 2005 the CCMA found that the dismissal of the first defendant had been both procedurally and substantively fair and the application was dismissed.

[4] His right of accommodation was terminated when he was dismissed in November 2004. On 9 December 2004 he was requested to vacate the property at the latest on 9 January 2005 which he failed to do. These termination notices preceded the CCMA finding in April 2005, probably because the plaintiff was at that stage still unaware that a dispute had been referred to the CCMA. However, the final notice that his employment and right of occupation had been terminated as well as notice to vacate the property was served on the first defendant on 5 August 2005, thus after the labour dispute had been resolved.

Probation report

[5] A probation report was duly requested and submitted under section 9(3) of ESTA. The probation report indicated that, apart from the first and second defendants residing on the property, some of their grand children were also occupying the property. The first and second defendants were both unemployed, but the first defendant has been able to do informal, casual labour in order to provide for his family. With regard to suitable alternative accommodation, it was confirmed that there are no housing projects in the relevant area. One of the minor grand children residing with the first and second plaintiff is, furthermore, still attending school in the vicinity.

Determining the status of the first defendant

[6] Section 8(2) provides that a court may grant an eviction order relating to an occupier who is an employee and whose right of residence arose solely from his employment in cases where the occupier resigned or where he was dismissed in accordance with the provisions of the Labour Relations Act. It is furthermore stated that any dispute concerning the termination of employment of such an occupier as referred to in section 8(2) shall be in accordance with the Labour Relations Act and the termination shall take effect when the dispute had been determined in accordance with that Act. It is clear that the first defendant falls within the section 8(2)-category of occupiers. For purposes of this application the right of employment and, concomitantly, the right of accommodation was thus ultimately terminated in April 2005.

Termination of right of residence

[7] Section 8(1) of ESTA 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 all relevant factors and in particular to the following:

1. the fairness of the agreement, provision in the agreement, or provision of law on which the owner of person in charge relies;

2. the conduct of the parties giving rise to the termination;

3. 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;

4. the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arose, after effluxion of its time; and

5. 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.

[8] In this instance the conduct of the first defendant led to the termination of his employment. Theft at the workplace is a justified ground for dismissal. The provision that employment is linked with accommodation is a fair provision and generally incorporated into farm worker employment agreements. The first defendant got the opportunity to state his side of the case during the CCMA meeting in April 2005. It was also placed before the court that the owner is in dire need of the housing currently being occupied by the fist defendant and his family for other families employed by the applicant. The continued occupation by the first defendant is hampering the farming operations. The court is satisfied that the termination of the right of residence, as linked with the employment in these circumstances was just and equitable.

[9] Meeting the requirements of section 9

Section 9(2) provides that a court may grant an eviction order if-

1. The occupier’s right of residence has been terminated in terms of section 8;

2. The occupier has not vacated the land in question within the period of notice given by the owner in charge;

3. The conditions of an order for eviction in terms of section 10 or 11 have been complied with; and

4. The owner or person in charge has, after the termination of the right of residence, given –

   1. the occupier;

   2. the municipality in whose area of jurisdiction the land in question is situated; and

   3. 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 contain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier, the municipality and the head of the relevant provincial office of the Department of Land Affairs not less than two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to have been complied with.

[10] In view of the facts, the right of residence had been terminated in terms of section 8 of ESTA, namely section 8(2) and (3). The occupier had been given notice to vacate the property which had not been done and the section 9(2)(d) notices had been served on the occupier (5 August 2005), the municipality (12 August 2005) and the Department of Land Affairs (11 August 2005) within the prescribed time framework.

[11] Due to the fact that the first defendant had been an occupier on 4 February 1997 section 10 was the relevant section to be considered further. The theft of the first defendant constituted a breach of section 6(3) of ESTA which places a prohibition on an occupier not to intentionally and unlawfully cause material damage to the property of the owner or person in charge. For this contravention he was dismissed which dismissal was confirmed by the CCMA. This constitutes compliance with section 10(1)(a). The documents before the court also indicate that the conduct of the occupier has resulted in a fundamental breach of the relationship between him and the owner and that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship. There are also averments on the paper that the first defendant often becomes intoxicated and acts disorderly. This has also impacted negatively on the relationship with the occupier and land owner. The court is satisfied that Section 10(1)(d) has also been complied with.

Outstanding moneys or wages

[12] Under Section 13 of ESTA the court considering the granting of an eviction order also has to determine whether there are outstanding moneys to be paid to the occupier, be it in the form of wages or compensation for improvements. The papers before the court were silent on this matter. When questioned about this issue the first defendant indicated that he received some money, but that he was not convinced that all outstanding moneys had in fact been paid to him. Counsel for the applicant contended that the issue had been dealt with during the CCMA session. The report of the CCMA Report is, however, silent on this matter. For this reason the order granted by this Court also includes a reference to the payment of outstanding money or wages, if relevant.

Just and equitable

[13] Since the procedural requirements have been met, the next question to attend to, is to determine whether it would be just and equitable within these circumstances to grant and eviction order. In his presentation Mr Tshabalala emphasized that he was elderly (a copy of his identity document indicates that he was born on 31 July 1955 which makes him 51 years of age) and that he and his wife were unemployed and that they were taking care of some their grand children. On the other hand counsel for the applicant underlined that it was Mr Tshabalala’s own actions that led to his dismissal, that the procedure followed was found to be in order, that he had been occupying the house since November 2004 without rendering any service to the land owner and without paying any rent or fees covering the water and electricity usage. It was also pointed out that the first and second defendants’ daughter is an adult and that she could contribute to household expenses. There were furthermore 11 families of whom members were employed by the applicant and who are waiting to be housed on the land in question. Continued occupation of the house by the defendants was hampering the efficient carrying on of farming activities on the property and was taking accommodation away from other occupiers.

[14] This Court has to consider all relevant factors, including the interests of both parties. On the one hand the applicant has a farming enterprise that has to continue which enterprise provides employment and income to many families. The continued occupation by the first defendant is preventing another family, employed by the applicant, from taking occupation of the house. This occupation has also been going on for more than 2 years, without the occupiers paying any rent or contributing to water and electricity usage. On the other hand, the occupiers are elderly persons who take care of some of their grand children and do not have alternative accommodation waiting for them. This court has found in the past that it cannot be expected from land owners to provide housing indefinitely to occupiers.¹ In the present circumstances this Court finds that accommodating the first defendant and his family for more than two years for free is more than fair, especially in view of the fact that the defendants had not made any effort to try and find accommodation themselves.

[15] The court is satisfied that all the formal requirements have been met and that it is just and equitable in the circumstances to grant and eviction order. The original date for the hearing was 15 November 2006. Since then 3 months have lapsed. An eviction date of 15 May 2007 seems fair since that leaves the defendant three months to find alternative accommodation. It is still early in the school term (from the date the eviction order was granted – 15 February 2007) so that the necessary arrangements for transfer of the school children, if necessary, may be made. The eviction order may be carried out on 31 May 2007.

[16] Order:

1. The eviction order is granted.

2. The respondent and everyone who derive occupation from him are ordered to vacate the house currently being occupied by them on or before 15 May 2007. The eviction order is to be carried out on 31 May 2007 if the respondent failed to vacate the property on 15 May 2007.

3. In terms of section 13(1)(b) of the Act the Plaintiff is ordered to pay the first defendant any outstanding wages and/or related amounts that are due to him under the Basic Conditions of Employment Act 3 of 1983 and/or the Labour Relations Act 66 of 1995.

4. There is no order as to costs.

ACTING JUDGE JM PIENAAR

Appearances:

For the applicant:

Ms N Lombard of Cliffe Dekker Inc, Johannesburg

For the respondent:

In person.