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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD IN RANDBURG

IN CHAMBERS

DECIDED ON : 06 April 2010

CASE NUMBER : LCC55R/2009

In the matter between:

THUTHUKA FARMING Applicant

and

ANDRIES MOFOKENG AND OTHERS Respondent

JUDGEMENT

MIA A J:

[1] This matter is before me on automatic review in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997, as amended (here after referred to as “ESTA”). The order for eviction was granted in case number 173/07 by the Magistrate, Fouriesberg on 6 November 2008 against the first to eighth respondents.

[2] Upon perusing the record the Magistrate noted on page 2 of his judgement that the following questions needed to be determined before a decision could be made regarding an eviction:

“ 1. whether the respondents are occupiers in terms of s8(1) or 8(2) of ESTA.;

2. whether respondent 4 is an occupier in terms of s8(4) of ESTA;

3. whether the respondents right of residence could be terminated;

4 whether the applicant is obliged in terms of the Act to provide the respondents with alternative accommodation;

5. whether eviction of the respondents is just and equitable. “

[3] The judgement also reflects the findings of the magistrate that:

“ 1. Applicant is an owner as contemplated in sec 1(xiii) of the act;

2. Respondents except Respondent no.4, are occupiers as contemplated in section 8 (1); Respondent no 4 as contemplated in section 8(1) and 8(4);

1.27cm; margin-bottom: 0cm"> 3. Respondents were occupiers on 7/2/1997;

4. The eviction of respondents is just and equitable in terms of Section 10 of the act;

5. Alternative accommodation is available to all respondents, including Respondent no 4;

6. There are no outstanding wages of any related amounts due to respondents by applicant;

7. An appropriate amount for structures erected but which did not form part of an agreement with the applicant will be R30 000 ( thirty thousand rand);

8. A just and equitable date for eviction is 17/4/2009;

9. That an eviction order may be carried out on 30/04/2009, by the sheriff of the court, should the respondents not vacate the said farm voluntarily. “

[4] A perusal of the record reflects that the issues in dispute include also whether the respondents have a right to reside on the property and whether there has been overgrazing and pressure on the water supply which affects the other occupiers and owner detrimentally.

[5] The prerequisites for an eviction are set out in section 9 of “ESTA”. For an eviction to be granted there must be compliance with all the peremptory requirements specified at section 9(2) of “ESTA”. This section reads as follows:

Section [doja62y1997s9] 9     Limitation on eviction

(2) A court may make an order for the eviction of an occupier if-

       (a)     the occupier's right of residence has been 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 has, 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: 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.

Non compliance Section 9(2) (a)

[6] A court may only grant an order of eviction after the occupier’s right of residence is terminated in terms of section 8 of “ESTA”. Section 8 of “ESTA” provides 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 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.

[7] The record does not reflect a notice informing the respondents that their right of residence has been terminated. The judgement of the Magistrate refers to a notice of termination of the right of residence. This notice is not to be found in the record. In response to a query the Magistrate indicates that there was a verbal termination of the occupiers’ right of residence. The Magistrate refers to the oral evidence of the applicant and his wife regarding the various discussions relating to relocation of the respondents.

[8] A perusal of the transcript does not reflect any evidence indicating that the occupiers were informed that their right of residence was terminated. The transcript reflects that the applicant informed the third respondent that he was not welcome on the farm after the third respondent assaulted the applicant. The notice of motion has a notice marked “A” attached to it. This notice of the eviction states the reason the applicant applies for an eviction order. It reads as follows:

“Andries Mofokeng and/or all his family and respondents were never employed by the applicant and therefore had no right of residence. Right of residence has been terminated because of the aforesaid and due notice to vacate the premises has been given.”

[9] The papers do not reflect any evidence in support of a statement that notice of termination of the right of residence was given, or that notice was given to vacate the premises on or before a particular date. It appears that the applicant believed that the respondents did not have a right of residence. A perusal of the transcript record and the papers indicates there is no evidence of a termination of the right of residence in accordance with Section 8 of “ESTA”. The applicant believed that the respondents can only enjoy a right of residence if they were employed by him. However the applicant states in paragraph 7 of the founding affidavit that the respondents were employed by the previous owner of the farm. In this regard section 24 of “ESTA” states that:

24 Subsequent owners

(1) The rights of an occupier shall, subject to the provisions of this Act, be binding on a successor in title of an owner or person in charge of the land concerned.

Thus the respondents rights as occupiers are protected even though they have not been employed by the applicant. The applicant is thus required to have regard to these rights.

[10] According to section 8 of “ESTA” the termination of the right of residence must be on any lawful ground provided that such termination is just and equitable. Neither the affidavits filed nor the oral evidence indicate when and how the right of residence was terminated or the time frame for a notice to vacate. I am not satisfied that there has been compliance with the requirement of the termination of the right of residence per section 8 of “ESTA” and consequently there has been no compliance with section 9(2) (a) of “ESTA”.

Non compliance with section 9(2) (b)

[11] The applicant’s affidavit makes reference to negotiations to move the respondents to another location. From the record it appears that the negotiations were not complete or broke down. No notice is attached to the papers on which the applicant relies to prove that notice to vacate the premises was given after or with the termination of the right of residence. As indicated above there is no evidence in the records of a notice of termination of their right of residence. From the affidavits filed as well as a transcript of the oral evidence presented it is not clear that a notice was given to vacate the farm or the time frames which the applicant required the respondents to vacate by consequently, I am unable to find compliance with Section 9(2) (b) either.

Non Compliance with Section 9(2) (c)

[12] The respondents were occupiers on or before 04 February 1997, thus Section 10 of “ESTA” is applicable. Section 10 permits an eviction order under the following circumstances:

Order for eviction of person who was occupier on 4 Februarys 1997.

1. An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if:

a) the occupier has breached section 6 (3) and the court is satisfied

that the breach is material and that the occupier has not remedied

such breach;

b) 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 one calendar month’s notice in writing to

do so;

c) the occupier has committed such a fundamental breach of the

relationship between him or her and the owner or person in charge,

that it is not practically possible to remedy it, either at all or in a

manner which could reasonably restore the relationship; or

d) the occupier-

(i) is or was an employee whose right of residence arises solely

from that employment; and

(ii) has voluntarily resigned in circumstances that do not amount

to a constructive dismissal in terms of the Labour Relations

Act.

[13] The Magistrate had regard to the assault on the applicant by the third respondent and the theft of zinc plates from the applicant’s property. It is clear from the record as well as the judgement that the fourth respondent was not present. No evidence was led to indicate that the fourth respondent encouraged or instigated the assault on the applicant. The fourth respondent indicates in her evidence that she is the breadwinner, that she does not have the applicants contact details and that she was not aware of the attack until after it occurred when she returned from church. The fourth respondent denies having discussions to relocate or to reduce her cattle. She concedes having received offers of alternative property and a request to reduce the number of cattle she keeps. Her reasons for keeping a large number of cattle are that she is the breadwinner of the family. The fourth respondent indicated that the offer to build a house did not materialise.

The above do not appear to have been considered by the Magistrate.

The applicant could approach the court for an order regarding the reduction of cattle if this was a problem and does not warrant an eviction per se . There is no indication on the record that the applicant did so.

[14] Whilst the applicant’s relationship with the third respondent may have broken down it does not follow that the fourth respondent’s relationship with the applicant cannot be remedied with appropriate discussions mediation or the appropriate relief to reduce the number of cattle. The applicant found the occupier located at a certain place on the property,

close to the water supply. This does not constitute grounds for an eviction. There does not appear to have been discussion around the question of access to water. In the event that the occupiers location presents a problem for the applicant, this position may be addressed between the parties.

[15] The applicant indicates in his founding affidavit that the respondents were employed by the previous owner. It is evident from the papers and the Magistrate also concludes that the fourth respondent is a long term occupier as described in section 8(4) of ESTA whilst the remainder of the respondents are occupiers as described in section 8(1) of “ESTA”.

[16] The Magistrate relies on the missing zinc plates alleged to be stolen by the respondents. No evidence was presented implicating the respondents with the zinc plates are that they have zinc plates which look similar.

[17] The second aspect relates to the fourth respondents presumed approval of the assault on the applicant. I have already indicated my difficulty in making this assumption on the evidence placed before the court.

[18] The third aspect is the respondents position close to the water supply. No evidence was tendered that the respondents moved from a place previously allocated to the present position. No evidence was tendered of a breach against the owner in this regard or of an agreement with regard to access to the water supply.

[19] Section 10(1) (b) requires an occupier to be given one calendar month’s written notice to remedy a breach. No evidence appears from the record reflecting notice given with regard to the reduction of the number of cattle, the zinc plates or the access to the water supply.

[20] I am not able to find compliance with section 9(2) (c) with regard to the first, second, fourth, fifth, sixth, seventh, eighth respondents.

Non Compliance with Section 9(2) (d)

[21] The notices attached to the notice of motion marked A2, A3, B, C, D, E, F, G are all notices in terms of rule 8(4) of the Magistrates Court Rules as opposed to the required notice which is form E of the regulation number 1632 published on 18 December 1998, Extension of Security of Tenure Act, 1997 (Act 62 of 1997) Regulations. Section 17(4) of “ESTA” states:

“Until such time as rules of court for the magistrate’s courts are made in terms of

subsection (3), the rules of procedure applicable in civil actions and applications in a High Court shall apply mutatis mutandis in respect of any proceedings in a magistrate’s court in terms of this Act.”

[22] The manner of service as required per regulation 9 of “ESTA” is peremptory. In light hereof I am not able to find that there was substantial compliance with section 9(2) (d).

[23] Due to the non compliance with the mandatory requirements of section 9 as referred to above, I am unable to confirm the eviction order.

The following order is made:

[24] The order of the Magistrate in case number 173/07 is set aside.

SC Mia

___________________

Acting Judge

LAND CLAIMS COURT

Appearances:

Attorney for Applicant

Advocate JP Niemand

Instructed by Hattingh Marais Attorneys (Bethlehem)

Attorney for Respondents

Mr Mnyameni

Mnyameni Attorneys (Bloemfontein)

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