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IN THE LAND COURT OF SOUTH AFRICA

HELD AT RANDBURG

 

CASE NO: LCC18R2024

MAGISTRATE CASE NO:205/2023

 

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES:  NO

(3) REVISED.

7 October 2024

 

In the matter between:

 

PIKETBERG SUNRISE FARM (PTY) LTD	First Applicant
DIEDERICK ARNOLDUS LANDMAN	Second Applicant
and
NIKLAAS MENAS	First Respondent
CAROLINE MENAS	Second Respondent
NIKAYLA MENAS	Third Respondent
OTHER PERSONS RESIDING UNDER THE FIRST TO THIRD RESPONDENTS IN THE PREMISES UNDER KLIPHEUWEL FARM PIKETBERG WESTERN CAPE	Fourth Respondent
BERGRIVIER MUNICIPALITY	Fifth Respondent
DEPARTMENT OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT	Sixth Respondent

ORDER

 

The case is remitted to the magistrate’s court to:

1.  Reconsider the compliance with the just and equitable requirements of ESTA.

2.  Consider ordering mediation or further settlement discussions between the parties to avoid a harsh outcome such as homelessness

 

JUDGMENT

 

MABASA AJ

 

Introduction

 

[1]  This automatic review concerns whether it was just and equitable for the magistrate to grant an eviction order in terms of section 11 of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The eviction follows the termination of the occupier’s employment, which is tied to the family’s right of residence. This review is conducted in terms of section 19(3) of ESTA.[1]

 

The parties

 

[2]  The applicants, Piketberg Sunrise Farms (PTY) LTD (the owner) and the person in charge Diederik Arnoldus Landman (Mr. Landman) seek the eviction of the First to Fourth Respondents, Niklaas Menas (Mr Menas) his wife Caroline Menas, his daughter Nikayla Menas and all other persons residing with or under them from Klipheuwel Farm (the farm) in Piketberg. The Fifth Respondent is the Bergrivier Municipality. The Sixth Respondent is the Department of Agriculture, Land Reform and Rural Development.

 

Background

 

[3]  It is common cause that the Menas family were ESTA occupiers. They arrived on the farm on 5 September 2011 when Mr Menas commenced employment as a general worker. Since they became ESTA occupiers after 4 February 1997, the provisions of section 11 in terms of ESTA apply.^[2]

 

[4]  It is also common cause that the right to residence on the farm was an employment benefit under the previous owner of the farm.

 

[5]  What is in dispute are the circumstances surrounding the termination of his employment, and whether Mr Menas forfeited his right to residence when he agreed to medical boarding.

 

The facts

 

[6]  Mr Menas signed an employment agreement on 12 October 2018, seven years after he started working on the farm. His employment was terminated on 1 July 2020 as a result of a shoulder injury sustained whilst on duty. This was accepted by the Piketberg magistrate after applying the test in Plascon- Evans^[3]. He alleges that there was an agreement that his contract will terminate because he could no longer do physical labour and that another position will be secured for him. This new position never materialized.

 

[7]  Mr Menas contends that he did not enter into any valid housing agreement and was not informed that his residence on the farm was dependent on his employment. He signed the employment contract in 2018, under the mistaken belief that the residence benefit was part of a severance package concluded with the previous owner, in lieu of pension benefits.

 

[8]  He also argues that the housing agreement signed on 17 March 2020 contains unfair terms and violates section 25 of ESTA.^[4] He was not given a copy of the employment contract or housing agreement. He was told to sign the contract, with no questions asked.

 

[9]  Disputing this, Mr Landman asserts that the housing benefit was explicitly connected to the duration of Mr Menas’s employment on the farm. He argues that Mr. Menas’s right of residence ended when his employment was terminated, as formalized by notices served under section 8(1) of ESTA.

 

[10]  A notice to make representations in terms of section 8(1)(e) of ESTA was served on 8 February 2022. This was followed by a notice of termination of right of residence and a demand to vacate the premises on 29 March 2022. A meeting was held on the farm between the legal representatives of the applicants and an unrepresented Mr Menas. It yielded no results. A further meeting was conducted on 14 November 2022. This was followed by a proposal of R7200 to assist the Menas family with voluntary relocation from the dwelling on the farm.

 

[11]  A final cancellation notice and demand to vacate the property was served on the Menas family on 1 June 2023.

 

[12]  There are also various allegations of misconduct on the part of Mr Menas which resulted in a deterioration of the trust relationship between the parties. This is disputed.

 

Issue

 

[13]  The key issue is whether the termination of Mr. Menas’s right of residence was just and equitable under the provisions of section 11 of ESTA, both substantively and procedurally.

 

Legal Framework

 

[14]  Our courts, in a long line of cases have confirmed the principle that ESTA envisages a two-stage eviction procedure.^[5] The first is a notice terminating the occupier’s right to reside in terms of section 8 of ESTA. The second is a notice of eviction in terms of section 9(2)(d) of ESTA.

 

[15]  In Timothy Maluleke[6] the Supreme Court of Appeal as per Carelse J stated that:

 

‘Section 9(2)(a) of ESTA requires that the occupier’s right of residence must have been terminated in terms of section 8 of ESTA, which in the relevant part reads as follows:

‘8. Termination of right of residence. –

(1) Subject to the provisions of this section, an occupier’s right of residence may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular to –

(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 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.’[7] (Emphasis added.)

 

[16]  The fairness of the agreements between the parties in terms of section 11(3) (b) of ESTA is a critical factor which the Piketberg magistrate failed to consider in its entirety. It is telling that the housing agreement was signed in March 2020 and his employment was terminated in July 2020. The circumstances under which Mr. Menas signed the agreements, without full understanding or a copy for his records, suggest a lack of fairness and transparency, raising serious concerns about the substantive justice of the eviction.

 

[17]  In Snyders v De Jager[8], the Constitutional Court held that section 8(1) requires that the termination of a right of residence must be just and equitable both at a substantive level and a procedural level.[9]

 

[18]  The question that arises is whether the termination of Mr Menas’ rights of residence was just and equitable? In Timothy Maluleke^[10] the court examined the phrase “just and equitable” and relies on the reasoning by Sachs J in PE Municipality^[11] which confirms :

 

“…just and equitable” makes it plain that the criterion to be applied are not purely of a technical kind that flow ordinarily from the provisions of land law. The emphasis on justice and equity underlines the central philosophical and strategic objective of PIE. Rather than envisage the foundational values of the rule of law and the achievement of equality as being distinct from and in tension with each other, PIE treats these values as interactive, complementary and mutually reinforcing. The necessary reconciliation can only be admitted by close analysis of the factual specifics of each case. The court is thus called upon to go beyond its normal functions and to engage in active judicial management according to equitable principles of an ongoing stressful and law -governed social process. This has major implications for the manner in which the court must deal with the issues before it, how it could approach questions of evidence, the procedure it may adopt, the way in which it exercises its powers and the orders it makes. The Constitution and PIE require that in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupiers and pay due regard to... broader considerations of fairness and other constitutional values, so as to produce a just and equitable result. These remarks apply with equal force to ESTA.^[12]

 

[19]  It is accepted that there was compliance with procedural fairness required by section 8(1)(e) of ESTA. However, more is required. An analysis of all the interests and circumstances of the occupiers through the lens of constitutional values as explained in Maluleke.

 

[20]  Under Section 11(3) of ESTA, a court may grant an eviction order if it is just and equitable, taking into account:

 

(a)  The period the occupier has lived on the land.

(b)  The fairness of any agreements between the parties.

(c)  Whether suitable alternative accommodation is available.

(d)  The reason for the proposed eviction.

(e)  The balance of interests between the owner and the occupier.

 

[21]  The Piketberg magistrate notes that the family have lived on the farm for about 13 years. They are all unemployed and there is a young minor child that lives with them. They have no alternative accommodation. The Bergrivier Municipality confirmed that they do not have any available housing opportunity for the Menas family. A probation officer submitted a report in terms of section 9 (3) of ESTA stating that there is no suitable alternative accommodation available for the family and an eviction will render them homeless. Mediation was recommended.

 

[22]  The magistrate concludes that the main issue in this matter is the fact that the Menas family do not have alternative accommodation. In his view the municipality can be compelled by means of a court order to provide emergency housing for them. This is the duty of the municipality, not the landowner, and therefore it is just and equitable to grant the eviction. I disagree.

 

[23]  The issue of substantive fairness is not addressed. Section 11(3)(b) of ESTA is ignored by the Piketberg magistrate in its entirety. The reason provided by Mr. Landman for the eviction is that Mr. Menas’ right of residence ended with his employment. However, the context of the dismissal after an injury on duty raises questions about the fairness of this termination. Further, the link between his employment and his right of residence was not clearly communicated or understood.

 

[24]  The balance of interests must consider not only the landowner’s rights but also the significant consequences for the occupiers. Mr Landman claims that his interests in regaining full possession of his property outweigh the Menas family’s interests in remaining on the farm. He emphasizes the need for the farm to operate efficiently without the presence of people who are not employed there but residing on the land, which he argues disrupts the farm’s operations.

 

[25]  The fact that the Menas family are unemployed and have no suitable alternative accommodation means that the eviction would result in severe hardship.

 

[26]  The Menas family is at a profound economic disadvantage and an eviction would likely lead to homelessness. The magistrate’s decision did not adequately weigh these considerations, focusing instead on procedural formalities rather than the broader equitable implications.

 

[27]  The magistrate’s argument is overly formalistic and fails to engage with the broader principles of equity and social justice that underlie ESTA. ESTA is designed to protect vulnerable individuals from being unfairly evicted, especially when their residence is linked to historical injustices and socio-economic disadvantages.

 

[28]  By focusing narrowly on procedural formalities and contractual obligations, the magistrate ignores the requirement that the court must also consider the broader social and economic context. This Court must ensure that any decision to terminate the respondents’ right of residence is both substantively and procedurally just and equitable, in line with the overarching principles of ESTA.

 

[29]  Accordingly, the eviction order is set aside, and the matter is remitted for further consideration, with an emphasis on ensuring substantive fairness and possible mediation.

 

Order

 

[30]  The case is remitted to the magistrate’s court to;

1.  Reconsider compliance with the just and equitable requirements of ESTA.

2.  Consider ordering mediation or further settlement discussions.

 

MABASA D

Acting Judge of the Land Court

 

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