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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Before: Bam JP

Decided on: 13 May 2011

In the matter between

CORNELIUS NEL …................................................................................................1^st Applicant

CHRISTENE EUGINIE NEL ….............................................................................2^nd Applicant

AVAX 215 CC t/a RUSCO DAIRIES ….................................................................3^rd Applicant

And

JOSEPH MOTLABANE …...................................................................................1^st Respondent

BOOYSEN KHOLISILE MOGOJO …..............................................................2^nd Respondent

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JUDGMENT

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BAM JP

[1] The three applicants in this matter seek the eviction of the first and second respondents from the farm DePan ( near Randfontein) in terms of the Extension of Security of Tenure Act 62 of 1997 (‘the Act’).

[2] It is common cause that the first and second applicants are the owners of DePan where they conduct farming operations through the third applicant. It is also common cause that both first and second respondents are occupiers since 1974 as defined in ‘the Act’.

[3] In qualification of this status, it is mutually accepted that on the 30^th April 2003, almost 30 years later, the parties entered into certain written agreements setting out new boundaries and limits to the right to reside on the farm DePan on the part of the first and second respondents.

[4] It is the applicants’ contention that the rights of residence of both the respondents consequently arose solely from these employment agreements with the third applicant. Those employment and housing agreements, according to the applicants ‘replaced any previous consent agreements by the respondents and determined their rights and obligations regarding their rights of residence’¹. This drastic curtailment of the respondents’ original status as occupiers, was surprisingly not challenged notwithstanding section 25 of the Act.²

[5] Among the terms of these new agreements relevant to this application were that :

“13.1 Die werknemer sal voorsien word/nie voorsien word van akkomodasie solank as wat hy/sy in dien is van die Werkgewer, welke akkomodasie deel van die Wernemer se vergoedingspakket.

6. Die partye kom uitdruklik ooreen plaas op record, dat die werknemer, hoegnaamd, nie in tenne van hierdie diensooreenkoms, uitdruklik, stilswynend of by implikasie, enige reg tot permanenete verblyf of okkupasie op die endom waarvan die werkgewer eienaar is of eiendom wat deur die werkgewer okkuper word, verkry of vestig nie en is enige vergunning to bewoning of okkupasie, wat deur die werknemer opgeneem word, uitdruklik onderhewig aan die bestaan van ‘n diensverhouding tussen die werkgewer en die werknemer, by verstryking of beeindiging waarvan, sodanige bewoningsvergunning outomaties verval.”

[6] The purport of the agreements was to emphasize that, henceforth, the right to reside on the property was directly related to their employment thus limiting it and bringing it within the restricted category of section 8(2) of ‘the Act’ wherein a right of residence arising solely from an employment agreement may be terminated by resignation.

[7] It is a critical requirement in terms of ‘the Act’ that an applicant seeking an order of an order of eviction should, inter alia, have terminated the occupier’s right of residence on any lawful ground provided such is just and equitable.³

[8] In the case where the right of residence arose solely from an employment agreement, the ‘just and equitable’ provisos are met if the occupiers resign from their employment or are dismissed in accordance with the provisions of the Labour Relations Act.

[9] In the present instance the crucial part of the applicants’ case is that both respondents were employees whose right of residence arose solely from their employment agreements and that both have voluntarily resigned in circumstances that did not amount to constructive dismissal in terms of the Labour Relations Act. The implication is that the ‘termination’ of the respondents’ right of residence need not comply with the ‘just and equitable’ provisos which do not apply to occupiers who owe their status solely to their employment agreements and have resigned voluntarily.

[10] Whereas the lawfulness of the drastic curtailment of the respondents’ original right of residence in the written agreements of 30^th April 2003 was not challenged, either at the time or in the present proceedings, the factual allegation of their voluntary resignation was strenuously contested and has not been resolved. It is a material element in determining whether a proper termination of the respondents’ right of residence had been made in terms of section 8 as required by section 9(2)(a) of ‘the Act’. The version of the respondents is not intrinsically improbable in this regard and these are discrepancies in the documentation of their alleged resignation and inconsistencies. It appears the notion of the refusal was conflated with the notion of resignation.

[11] Since a proper termination of the respondents’ rights of residence is an important threshold requirement, I do not consider it useful or necessary to pronounce on other aspects of the application and am obliged to dismiss it with no order as to costs.

[12] The fact that an eviction order may not presently be afforded the applicants should not be interpreted to mean that the respondents are entitled to permanent occupational rights on DePan. It is crucial that they should assiduously engage in efforts, to find a new home together with assistance from the applicants and particularly from the state officials.

[13] Order:

1. The point taken in limine by the respondents relating to res judicata is dismissed;

2. The application for eviction is dismissed;

3. No order is made as to costs.

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JUDGE PRESIDENT BAM

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