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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NO: LCC 63r/04 & 50/04

Before: Bam JP

Decided on: 31 January 2007

In the case between:

WILSON SINGO First Applicant

TSAIKANI BRENDA MABASA Second Applicant

FRANS CHICO MASHAU Third Applicant

TSAKANI SOPHY MALULEBE Fourth Applicant

ROSSINA MASHIBA MKGANDI Fifth Applicant

ESTHER MANGANE Sixth Applicant

MTHAVANI ELSIA BALOYI MASHAO Seventh Applicant

and

CARRADALE ESTATES CC Respondent

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JUDGMENT

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BAM JP:

[1] On the 1^st April 2004 the Magistrate’s court at Britz granted an eviction order against the appellants from the farm Bokfontein. The eviction was in terms of the Extension of Security of Tenure Act 62 of 1997 (the Act) and the appellants were “occupiers” in terms of the definition of the word within the Act. This is an appeal against that eviction.

[2] In the course of argument it became common cause, as far as counsel were concerned, that the crux of the appeal was whether the evidence accepted by the magistrate satisfied the requirements of Section 10(1)(b) of the Act upon which the application for the eviction was primarily based. In the very brief judgment the magistrate also made a passing reference to Section 8 requirements dealing with termination of rights of residence. 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 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.

(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act.

(3) Any dispute over whether an occupier's employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act.

(4) The right of residence of an occupier who has 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 in charge,

may not be terminated unless that occupier 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.

(5) 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).

(6) Any termination of the right of residence of an occupier to prevent the occupier from acquiring rights in terms of this section, shall be void.

(7) 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)-

(a) the occupier and the owner or person in charge may agree that the terms and conditions under which the occupier resided on the land prior to such termination shall apply to any period between the date of termination and the date of the eviction of the occupier; or

(b) the owner or person in charge may institute proceedings in a court for a determination of reasonable terms and conditions of further residence, having regard to the income of all the occupiers in the household.

However, this was given no further consideration nor were any other of the crucial elements relevant to evictions in terms of the Act.

[3] It is regrettable that the magistrate made no findings in relation to these other requirements as set out in the legislation, however, I have had the benefit of studying the affidavits filed in the application and I am in as good a position as the magistrate to arriving at a correct decision.

[4] In the case of Land and Landbouontwikkelingsbank Van Suid Afrika and Pierre Conradie.¹ Mpati D P summarised the decisive question in a case concerning the eviction of an occupier in terms of the Act,

1. “The present matter concerns the application of the concept of ‘Just and equitable’ as those words appear in S 8(1) of the Act. It provides that an occupier’s right of residence may be terminated on any lawful ground, provided that such termination is just and equitable. In considering whether the termination of an occupier’s right of residence is just and equitable court must have regard to ‘all relevant factors’ and in particular those listed under items (a) to (e) of the subsection.”

[5] Section 10(1) deals generally with situations when orders of eviction may be granted of persons who were occupiers as on 4 February 1997 a category in which the respondents (now appellants) fell. The applicant’s case before the magistrate had been confined to section 10(1) (b) which states that such an order may be granted if:

1. the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given on calendar month’s notice in writing to do so;

[6] Once the parties had locked themselves (and the magistrate) into the clearly inept and pigeonholing formulation of the section, they all lost the wood for the trees. The section should not be used, on the one hand, as a single knock-out punch if proved or, on the other, as walk-over uncontested victory if not proved. In each case an eviction application, in terms of the Act, the court may not take legalistic and formalistic short cuts but must determine whether or not an eviction order was just and equitable in all the circumstances. This can only be done by a thorough holistic and sensitive approach to all the evidence².

[7] The court must determine whether an eviction is fair, just and equitable in all the circumstances as opposed to being legally correct or not in relation to one particular requirement. To determine what is just and equitable the factors enumerated in section 10(1) (b) must be considered together with all other relevant factors³.

[8] In this case, Mr Teessen for the applicant, upon a legalistic interpretation of the word agreement in section 10(1) (b), argues that no agreement of lease was ever entered into between the appellants and the respondent. There was only a request for the payment of rent from the owner/person in charge which was not heeded by the appellant. Indeed Mr Teessen goes further and submits the technical argument that even the request is hear-say on the part of the respondent since the owner of the farm had since died. This, inspite of the concession in affidavits by the appellants. According to him these factors alone should exclude the granting of an eviction order.

[9] Mr Beaton, for the applicant (now respondent), counters the appellants’ submission in a less formalistic way in his interpretations of the word agreement but is himself still beholden to the notion that compliance with 10(1) (b) is the only relevant criteria. It is not. The purport of the Act is not to place persons who were occupiers on 4 February 1997 beyond the pale of eviction altogether, but to subject the granting of eviction to such limitations as the interests of the respective parties can bear. This is encapsulated in the tail-end of sections 10(2) and (3) which read as follows

2. Subject to the provisions of subsection (3), if none of the circumstances referred to in subsection (1) applies, a court may grant an order for eviction if it is satisfied that suitable alternative accommodation is available to the occupier concerned.

3. If-

1. 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;

2. The owner or person in charge provided the dwelling occupied by the occupier; and

3. 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 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-

4. 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

5. 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 (my emphasis).

3. [10] Once the relevant facts in this case are approached from that broader perspective, what emerges is that the relations between the parties were normal for long periods before there was a slump in the business in which all made a living. Once the slump became a reality and hard times followed, hard measures had to be taken without apportionments of blame or adversarial litigation. One of the realistic decisions to be taken was for the appellants to seek alternative employments and accommodation and pay rent whether in terms of a formal agreement or voluntary. To stay free of charge on the property of another is not one of the rights the constitution confers but the state is enjoined to provide for housing.

5. [11] Since January 2000 the respondents have been staying on the property free of charge and without making offers to pay even meagre payments. It is accordingly my view that though the magistrate’s order was insufficiently motivated, it was nonetheless the correct order in all the circumstances. Even though both the parties were legally represented, the court still had a duty of ensuring that all the relevant aspects were properly considered. There was no need for the court to have confined itself only to the aspect of section 10(1) (b) which the parties considered to be relevant.

7. [12] It is now almost four years ago since the eviction proceedings in this matter were started and, quite clearly, the situations of the parties may have changed drastically in the interviewing time. In confirming the eviction orders of the magistrate’s court, as I have indicated, I wish to do so subject to the following conditions:

1. The magistrate is to order an up-date of the Probation Officers Report submitted during January 2004 setting out the present circumstances of the appellants and respondents particularly in respect of the availability of alternative accommodation.

2. In compiling the above report, the Probation Officer must solicit the views of the persons and institutions listed below and obtain their active participation and assistance:

3. All the appellants;

4. First and Second Respondents;

5. The Department of Land Affairs in the area;

6. The municipality in the area;

7. Any other governmental agency with the necessary resources to assist.

8. Upon receipt of the above information and input the magistrate is then to determine and order equitable dates on which the appellants shall vacate and on which the orders may be carried out in terms of section 12 of the Extension of Security of Tenure Act 62 of 1997.

[13] ORDER:

1. The appeal is dismissed;

2. The eviction orders of the magistrate are confirmed subject to the conditions listed in paragraph 12 above.

3. No order as to costs.

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JUDGE PRESIDENT F C BAM

For the appellants:

Adv J.J. Teessen instructed by Van Rensburg and Lombard attorneys

Fax (011) 787 3955

For the Respondent:

Adv R.G Beaten instructed by Lategan Viljoen and Pretorious attorneys

Fax (012) 252 5120

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