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IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
REPORTABLE: YES
OF INTERESTTO OTHER JUDGES: YES 

BEFORE: CANCA AJ & DODSON AJ
CASE NO: LCC 223/2016
MAGISTRATE'S COURT CASE NO: 2828/2015
DATE: 12-06-2017
In the matter between:

JAN FREDERICK LE ROUX NO                                                                                                                                        First Appellant
DUDLEY ALAN DAVIES NO                                                                                                                                         Second Appellant
JF LE ROUX h/a JF LE ROUX BOERDERY                                                                                                 Third Appellant
and
PAUL ALBERTUS LOUW                                                                                                                                                   First Respondent
DRAKENSTEIN   MUNICIPALITY                                                                                                                 Second Respondent
  
Date of Hearing: 02 February 2017.
Date written submissions received: 16 February 2017 
Date judgment delivered: 12 June 2017
JUDGMENT
CANCAAJ and DODSON AJ
Introduction
[1] This is an appeal against a judgment granted on 10 August 2016 in the Paarl Magistrate's Court. The appellants sought to evict the first respondent, Mr PA Louw ("Louw'') from the property known as Joubertsdal ("the   farm").   The farm was owned by the Normandie Trust ("the Trust") and leased by the third appellant.     The Magistrate dismissed the eviction application with costs.
[2] The application, was stated in the founding affidavit to be brought "in terme van die PIE Wet,[1] altematiewelik in terme van die ESTA Wet." However, for reasons that are explained below, the matter falls to be decided under the Extension of Security of Tenure Act No. 62 of 1997 ("ESTA").
[3] The appellants contend that Louw's right of residence on the farm had arisen solely from his contract of employment. His right to the premises was however regulated by a separate written "behuisingskontrak''. It obliged the occupants of the house to vacate it within 3 months of the termination of Louw's employment for any reason. The appellants contend that they complied with both the requirements of ESTA and with the terms of that agreement in seeking his eviction.
[4] Louw opposed the eviction application, raising various defences including a preliminary objection that the appellants lacked locus standi (legal standing) to institute the eviction proceedings against him. He also attacked the application on its merits, contending that his right to reside on the farm had not been lawfully terminated.
[5] The Trust is represented by the first and second appellants in their   respective capacities as trustees of the Trust. The third appellant, who avers that he leases the farm from the Trust, was Louw's employer until he terminated Louw's contract of employment. The founding   affidavit   is deposed to by a Mr de Beer.   He is the general manager of the farm.
The Law
[6] An eviction of an occupier under ESTA must comply with the provisions of section 9(2) of that Act before a court can order the eviction. Section 9(2)provides, that -
"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 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 Rural Development and Land Reform 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."
[7] Absent compliance with these threshold requirements, an application for the eviction of the occupier will fail.
[8] As is apparent from section 9(2)(a), quoted above, compliance with the provisions of section 8 of ESTA is essential for a successful eviction application.   Section 8 provides in relevant part that:
"(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 hardships to the owner or the 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."
Background facts
[9] Louw's employment with the appellant commenced in early 2003 and took the form of a series of short-term employment contracts between 2003 and 2008.   From 2008 he entered into a permanent contract of employment.
[10] The short-term contracts were in standard form and each included the following clause:
"2.5.9 Akkomodasie:           In     sekere     gevalle     word     tydelike huisvesting   in woonstelle op die plaasAandgoed verskaf vir die duur van die kontrak.”[2]
[11] The contract signed on 17 November 2008 appears to be based on the same standard form, but must have formed the basis of his permanent employment contract. The second page is missing. On   the   probabilities   it   included clause 2.5.9 on the second page.
[12] In July 2011, the third appellant and Louw concluded the "behuisingskontrak”:[3] ("the housing agreement"). Clause 1.1 provided as follows:
"Die huis sal slegs deur die Huishoof, sy eggenote en hul wettige skoolgaande kinders bewoon word.
Die volgende persone mag die huis bewoon: Mariaan Malitie
Eathen Louw.”[4]
[13] Clause 8.1 provided that -
''[i]n geval van Beeindiging van die Huishoof se diens,   om watter   rede ookal, sal die inwoners verplig wees om die huis binne (3) maande vanaf die datum waarop kennnis gegee is te verlaat.”[5]
[14] Clause 8.3 provided that -
''[m]et kontrakbreuk deur die Huishoof wat lei tot diensbeeindiging, sal alle voordele   verbonde   aan   die   bewoning   van die   eenheid   verval,   asook all
regte van die gesin omskryf in die Behuisingsbeleid van die plaas in hierdie kontrak.”[6]
[15] Pursuant to these agreements, accommodation on the farm was furnished to Louw, his partner and, ultimately, two children during the term of his temporary and permanent employment contracts, initially in single quarters and later in a bigger residence.
[16] During May 2013, the third appellant sought to conclude a new housing agreement with Louw but he refused to sign it. The reason for the refusal is not apparent from the record. Therefore, it is the July 2011 agreement which regulated his right to reside in the bigger residence.
[17] The employment relationship was a turbulent one. Louw was subject to seven separate disciplinary enquiries, the last one resulting in the termination of his employment on 15 August 2014. The disciplinary hearing that ultimately resulted in his dismissal was preceded by numerous infractions for which he was found guilty. These related mostly to him being absent from duty without permission. At his final disciplinary enquiry he faced charges of being absent without leave and falsification of a medical certificate.
[18] Louw admits the various disciplinary enquiries but disputes the fairness of their outcomes. He says he did not refer an unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration because he was unaware of his rights in this regard.
[19] Following on his dismissal, on 15 September 2014, the third appellant addressed a letter to the respondent as follows:
"Hiermee gee JF Le Roux Boerdery vir Paul Louw ... een kalender maand kennis vanaf 15 September 2014 om sy woonstel te ontruim te Joubertsdal Plaas.
Mnr P Louw moet voor of op die laatste 15 Oktober 2014 die woonstel ontruim he."
[20] Louw disputes having received the letter, but his assertions in this regard are unconvincing. It is recorded in handwriting at the bottom of the letter as follows:
"Weier om te teken 15-09-2014"
[21] The employees who delivered the letter provided affidavits in support of the replying affidavit confirming this.   Applying the method for resolving disputes
of fact in motion proceedings laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,[7]   Louw's version is   “clearly untenable"[8]   and he did receive the letter.
[22] On 28 December 2014, Louw was involved in an incident in which he killed the child of one of the employees of the third appellant residing on the     farm.
On the appellant's version, Louw kicked the child to death. On Louw's version, he and the child had a “woordeverwisseling"[9], following which the
child threw a stone at him. He then chased the child. During the chase, the child “het a baie skerp draai gevat, wat veroorsaak het dat hy struikel en teen my been val".[10] Louw says that he thought the child was not badly injured and went home, not realising the seriousness of the situation.
[23] On 12 June 2015, Louw pleaded guilty to culpable homicide and was sentenced to three years' imprisonment. At the time of the launch of the eviction application and at the time of deposing to his answering affidavit, he was serving his prison sentence. On Louw's version as set out in the preceding paragraph, there would have been no reason for him to plead guilty   to     culpable     homicide. That     version     is   "clearly   untenable".[11]
Considering the competing versions, including Louw's guilty plea to culpable homicide, and applying Plascon-Evans, [12]   Louw most probably assaulted   the child in circumstances where he did not foresee that the assault would kill him, whereas a reasonable person would have done so. Hence the plea of guilty in respect of culpable homicide.
[24] Louw places in issue the allegation that he also assaulted a farmworker on the farm by the name of Ben Baron. In reply, the appellants put up a confirmatory affidavit by Baron in which he confirms that he was assaulted by Louw during January 2015. This would have been when Louw returned to   the farm when he was released on bail. On Louw's version, upon his release on bail, he was well-received by the fellow occupiers on the farm who had sympathy and understanding for him. He also claims that he reconciled with the dead   child's   parents.     Again,   his version is   "clearly untenable"   and the
matter falls to be decided on the basis that he did assault Baron.[13]
[25] At the time of the launch of the application, his partner, Malitie, and their two children were living on another fann. However, Louw's movable   property was still in the accommodation. The third appellant said that he required the accommodation for other employees. He was also facing resentment from other occupiers at the prospect of Louw's return to the property in view of the events of 28 December 2014.
Proceedings in the Magistrate's Court
[26] The eviction application was launched on 17 August 2015. The appellants sought the eviction of Louw and any persons holding under him.
[27] By the time the appellants filed the replying affidavit on 5 April 2016, Louw had been released from prison on parole. The appellants averred that Louw was living with his partner, Malitie, on the farm Koopmanskraal and therefore had access to alternative accommodation.
[28] Prior to the commencement of the hearing of the eviction application, Louw launched an interlocutory application in which he sought the admission of a further affidavit. In that affidavit, Louw avers, inter alia, that he had been released from jail on 18 December 2015, was living on another farm, Koopmanskraal only temporarily, and was employed as a truck driver by     a company in   Paarl.       He   said that the temporary   arrangement   was     made   
through his partner's mother who resided on Koopmanskraal. He had been forced to make the arrangement because he needed proof of an address where he would be living in order to qualify for release on parole. Burger, the estate manager at Joubertsdal, had refused to cooperate in agreeing to Louw's return to his accommodation. His partner and children had, he said, also relocated to Koopmanskraal only on a temporary basis while he was in jail. He averred that he and his family were living in uncomfortable conditions. As they were not guaranteed a long term stay there, he and his family would be rendered homeless in the event of the eviction application succeeding. Because he did not have guaranteed alternative accommodation, an eviction from the farm under those circumstances would be unjust and inequitable, so the submission continued.
[29] In addition to the interlocutory application, Louw also launched an application in which he sought, among other things, the restoration of his right to reside on the farm and an order compelling the appellants to sign certain documents for the Department of Correctional Services which would have facilitated his return to the farm while on parole. Both applications were opposed and were argued at the hearing of the eviction application on 26   July 2016.
The Magistrate's decision
[30] Following argument; the Magistrate refused the application to compel the appellants to sign the documents required for Louw's parole, his reason being that such an application could not be brought under ESTA.   The decision does not feature in this appeal. A ruling on Louw's prayer for restoration of residence on the farm and on the merits of his application for the admission of a further affidavit appears to have escaped the Magistrate's attention. However, it has not been taken up in this appeal.
[31] A preliminary point was also taken in relation to the bringing of the   application on alternative bases, firstly in terms of PIE and alternatively in terms of ESTA. On this point the magistrate criticised   the appellants   and held as follows:
"4.1. Die eerste punt in limine, naamlik die bring van die aansoek in terme van PIE, maar in die alternatief in terme van ESTA word gehandhaaf maar argumentshalwe in hierdie geval kondoneer in terme van Reel 60(9), gelees met Reel 1(3) van die reels van toepassing in landdroshowe."
[32] In other words he upheld the objection, but purported through condonation to treat the application as having been made under ESTA alone. This aspect was not pursued further on appeal.     It is therefore unnecessary to reach any decision in this regard on appeal. Arguably, and in view of the fact that following his imprisonment, Louw no longer lives on the property, he does   not qualify as an occupier under the definition of that term in section 1 of ESTA. That definition contemplates a person "residing on land belonging to another person". It is open to question whether a person sentenced to a   three year term of imprisonment   qualifies.     However, the appellants do   not
dispute Louw's   status as occupier,   and instead treat it as common     cause.
Given this, we leave the question open.[14]
[33] The Magistrate dismissed the eviction application on the basis that there was merit in the preliminary objection raised by Louw, to the effect that the appellants lacked standing. It is this decision that forms the subject matter of the appeal.
[34] The Magistrate's reasons for upholding the contention that the appellants lacked the standing to bring the eviction application are these:
[34.1] Burger, the estate manager, was not authorised to terminate Louw's right of residence on the farm.
[34.2] Purportedly relying on Red Stripe Trading 68 CC v Khumalo,[15] the Magistrate held that the notice terminating Louw's right of residence was issued prematurely.
[34.3] De Beer, who brought the application on behalf of the   appellants,   was not properly authorised to do   so. Reliance   for this finding   was placed on the dictum of Gildenhuys AJ, as he then was, in Theewaterskloof Holdings (EDMS) BPK, Glaser Afdeling v Jacobs en Andere 2002 (3) SA   401 at   406H   where   the   learned Judge states-
"Waar die applikant in 'n uitsettingsaansoek 'n regspersoon is, moet die individu wat die aansoek namens die applicant bring, sy magtiging bewys. Die blote bewering van die plaasbestuurder (mnr Van As) dat hy behoorlik gemagtig en bevoeg is om die funderende eedsverklaaring te maak, is onvoldoende... Daar is geen aanduiding dat dit normaa/weg een van die funksies van 'n plaasbestuurder is om litigasie te voer nie." [16]
[34.4] The papers did not identify the owner of the farm or how many trustees or directors there are or how many persons are required to form a quorum at a meeting of the trustees or directors.
[34.5] The resolution authorising De Beer to launch eviction proceedings against several, unidentified occupiers on the farm was vague as it did not specifically name Louw as one of the persons to be evicted.
[34.6] The third appellant's interest in the matter was not supported by documentation, such as a lease.
[34.7] There was no proof of ownership of the farm. A bald assertion of ownership or that one is a lessee without documentary proof was not sufficient, the Magistrate found.Point in Limine - The appellants' lack of locus standi
[35] We will endeavour to follow this sequence of the Magistrate's reasoning in determining whether his findings are on a firm legal footing.
No authorisation to tenninate right of residence
[36] The basis for the Magistrate's finding that the estate manager, Burger, was not properly authorised to terminate Louw's right of residence appears to have been this. The resolutions put up by the appellants as proof of authorisation of the legal proceedings gave the necessary authority to the general manager, De Beer and not to Burger.
[37] The first difficulty with this finding is that Burger's authority to terminate   Louw's right of residence on the farm was not challenged in the answering affidavit. The appellants therefore had no opportunity to reply to it. The answering   affidavit contests the lawfulness of the termination   of the right   of residence on the basis that the letter of 15 September 2014, quoted above, was never delivered to Louw;[17] did not say in express terms that the right of residence was being terminated;[18] and did not comply with the housing agreement.[19]       Nowhere was it suggested that Burger, who signed the   letter,
had not been authorised to do so.
[38] The letter of 15 September 2014 is on the third appellant's letterhead. There is no reason why its content could not legitimately be communicated on behalf of the third appellant by its senior employee, the estate manager.
[39] Moreover, in Ashanti Wine & Country Estate (Pty) Limited v Sofia (Sofie) Smith and Others,[20] this Court held that ESTA does not require a resolution authorising eviction proceedings to precede the termination of the right of residence of an occupier.
[40] The Magistrate's finding that Burger was not authorised to send the letter of 15 September 2014 is therefore untenable.
Premature notice of termination of right of residence
[41] The notice terminating Louw's right of residence,[21] which was handed to him on 15 September 2014, some 11 months prior to the launch of the eviction proceedings, was found by the Magistrate to have been issued prematurely. It is not clear what the magistrate meant in this regard.
[42] The Magistrate relied on Red Stripe Trading 68 CC v Khumalo,[22] to support this finding. However, Red Stripe Trading was based on the principle that a purchaser of a property does not have standing to sue for vacant occupation of the property until after he or she has received registration of transfer. Red Stripe also deals with PIE rather than ESTA.   Neither Red Stripe nor   ESTA prescribes any period before which the right of residence of an occupier may be terminated.[23] The Magistrate misdirected himself in this regard.
Lack of authority to launch the eviction proceedings
[43] The Magistrate's finding that De Beer was not properly authorised to launch the eviction proceedings is also erroneous.   His reliance on Theewaterskloof[24] to justify that finding was misplaced. Attached to the founding   affidavit   are   two   resolutions,   one   by the Trust,   in its capacity as owner of the farm, and the other by the third appellant, as the lessee of the farm, authorising De Beer to launch eviction proceedings against several occupiers on land owned by the Trust. Given that the third appellant is in truth an individual, a resolution was not strictly speaking appropriate. But it is more than sufficient proof that he authorised De Beer to take the requisite steps in the conduct of the litigation on his behalf.
[44] In Theewaterskloof, the deponent only made a bald averment that he was authorised to bring the application on behalf of the company. There was no
resolution in any of the papers in that case to support that averment. This is not so in the present matter. Kanhym (Pty) Ltd v Simon Botha Mashiloane,[25] which confirmed the need for proof that someone is authorised to bring legal
proceedings on behalf of an artificial person, also does not support the Magistrate's finding.   There the relevant resolution was defective because     it was a resolution of entities other than the applicant. Again, that is not the case here.
[45] Mr Montzinger, for the appellants, also submitted that the challenge to De Beer's authority was incorrectly raised. Louw had failed to follow the procedure out in rule 52 of the Magistrate's Courts Rules ("rule 52"). Rule 52 provides in relevant part as follows:
"52   Representation of patties
(1)   (a) A party may institute or defend and may carry to completion any legal proceedings either in person or by a practitioner.
(b)   A local authority, company or other incorporated body in doing so may act through an officer thereof nominated by it for that purpose.
(c)   A partnership or group of persons associated for a common purpose in doing so may act through a member thereof nominated by it for that purpose.
(d)   No person acting under paragraphs (a), (b) or (c) other than a practitioner shall be entitled to recover therefor any costs other than necessary disbursements.
(2)   It shall not be necessary for any person to file a power of attorney to act, but the authority of any person acting for a party may be challenged by the other party within 10 days after he or she has noticed that such person is so acting or with the leave of the court for good cause shown at any time before judgment and thereupon such person may not, without the leave of the court, so act further until he or she has satisfied the court that he or she has authority so to act and the court may adjourn the hearing of the action or application to enable him or her to do so: Provided that no power of attorney shall be required to be filed by the State Attorney, any deputy state attorney or any professional assistant to the State Attorney or to a deputy state attorney or any attorney instructed in writing by or on behalf of the State Attorney or a deputy state attorney in any matter in which the State Attorney or a deputy state attorney is acting in his or her capacity as such."
[46] A challenge to the authority of the attorneys acting for a party is required in terms of the rule to be made within 10 days of the challenging party learning that the attorneys concerned purport to act for a party.
[47] Given the appellants' reliance on rule 52 to attack the manner in which Louw had challenged their authority to launch the eviction proceedings, we enquired from counsel whether they had considered the relevance, if any, of the judgment by Loots AJ in Nkagisang Communal Property Association v Motshwane   Manese   Marcus   and   Others.[26]           The   parties   were   given   the opportunity of filing supplementary submissions in this regard.
[48] In his supplementary submissions, Mr Montzinger for the appellants submitted that Nkagisang confirmed the legal position that a challenge to someone's authority to institute legal proceedings in the Magistrate's Court was through the use of rule 52, including a challenge of the kind contemplated in this case.
[49] Mr Bhoopchand, for Louw, on the other hand, argued that Nkagisang is not applicable, as ownership there, unlike in this matter, was not in issue. He contended, inter alia, that the court there had the benefit of perusing the applicant's constitution to satisfy itself that the applicant had the requisite authority to litigate. As the Trust in this matter had failed to annex a deed of trust to the papers, it was not possible to discern whether the first and second appellants had the right to institute the eviction proceedings on the Trust's behalf, so the argument went.
[50] The attempt to distinguish Nkagisang cannot be sustained on the basis of the absence of   the   trust   deed.     Absent   evidence to the contrary,   a   resolution which, ex facie, appears valid and which is not properly put in issue in the pleadings is sufficient proof that the resolution was taken at a properly constituted meeting of trustees.
[51] In Nkagisang, Loots AJ pointed out[27] that in Ganes & Another v Telkom Nambia Ltd,[28] and in Unlawful Occupiers, School Site V City of Johannesburg [29],the   Supreme Court   of   Appeal   approved   the   decision   of Flemming DJP in Eskom v Soweto City Council[30] that the correct way to challenge authority in High Court proceedings was through the use Uniform rule 7(1), which is the equivalent of rule 52 in the magistrates' courts. The resultant position was correctly summarised in ANC Umvoti Council Caucus and Others v Umvoti Municipality[31]   as follows:
"The position now is that, absent a specific challenge by way of rule 7(1), 'the mere signature of a notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant' is sufficient ...There was no challenge in terms of rule 7(1) in the application which is the subject of this appeal. The appropriate procedure was therefore not used by the appellants...."
[52] Mr Bhoopchand also sought to rely on the dictum of Moloto J in Kanhym (Pty) Ltd v Shabangu[32]   to support the Magistrate's finding that the resolution was vague, because it did not specifically name Louw as the person to be evicted.     This judgment precedes the Supreme   Court of Appeal   judgments referred   to   regarding   rule   7   of   the   High   Court   rules.       In   any   event,     in Shabangu, the learned Judge, states as follows:[33]
"The purported resolution does not authorise Mr Eybers to prosecute this case, neither does it authorise him to depose to affidavits in this case. It reads:
'That George Von Wuldfluge Eybers in his capacity as Human Resources Manager of Kanhym Estates be and he is hereby empowered to sign all eviction orders and related documents for the removal of people from Thokoza Township on behalf of the company.'
Of importance is that the resolution does not authorise Mr Eybers to do anything connected with the prosecution of this case, because it was not passed by the applicant i.e. Kanhym (Pty) Ltd."
[53] It is clear from the above that the facts in Shabangu are distinguishable from those in this matter. The impugned resolution in casu is headed "Normandie Trust", is signed by the trustees who are the first and second appellants and reads as follows:
"... Gerrit Wagenaar De Beer is duly authorised to depose to any Affidavits and Statements and to sign any documents and to take any necessary steps and to appoint VAN WYK FOUCHE INC in several applications for the evictions of occupiers on the farm/s belonging to the Normandie Trust."
Therefore, unlike in Kanhym and Shabangu, the resolution was passed by the entity that brought the application and De Beer is clearly authorised to depose to affidavits and to instruct the appellants' attorneys to institute eviction proceedings against the occupiers on the Trust's farms.
[54] The Magistrate erred in finding that the resolutions were vague because Louw was not specifically identified. His reliance on Kanhym to justify that finding was misplaced. There was no need, in my view, to name Louw in   the resolutions. It is sufficient that the resolution authorised proceedings against occupiers on the Trust's farm.
[55] In the light of the above, the Magistrate's finding that the proceedings were not properly authorised, was based on an improper reading of the facts and the law.   This finding also stands to be rejected.
Proof of ownership and lease
[56] Although the Trust's ownership of the farm was disputed by Louw, due to the absence of documentary proof confirming ownership in the founding affidavit, the appellants cured this by attaching a Deeds Office print-out to their replying affidavit. The contents of that document show that the farm   is indeed owned by the Trust.
[57] Louw also disputed the third appellant's assertion that he was in charge of the farm on the basis that he leased it. It was argued that, because a lease agreement was not attached to the papers, the third appellant had failed to prove that he was a lessee. There is also no merit in this contention. Whilst it would probably have been helpful for the lease agreement to have been annexed to De Beer's founding or replying affidavits, on a conspectus of all the facts, we are satisfied that the third appellant was the person in charge of the farm. We are fortified in this view by the fact that the parties to the housing agreement above are the third appellant and Louw. Also, his written employment agreements from 2003, 2004, 2007 and 2008 (when his employment became   permanent)   were   concluded   with the third appellant. These constitute further proof that the third appellant was the person in charge of the farm.
[58] In the light of all of the above, the Magistrate's dismissal of the application on the basis that the appellants lacked the requisite standing to launch these proceedings must be set aside.
[59] Finally, the Magistrate ordered the appellants to pay Louw's costs. It is well established that, given the nature of the proceedings, courts in ESTA matters
only award the successful party costs where special circumstances have been proved.[34] There is nothing in the record to justify a departure from that general rule in this case.   Nor did the Magistrate give reasons for his decision on costs.
[60] Mr Montzinger also urged us, in the event of a finding for the appellants on the preliminary point, to determine the merits of the matter and not to remit it to the Magistrate's Court. In support of that submission, Mr Montzinger, among other things, argued that the matter had already suffered a long delay and   that   a   remittal   would   be   costly.   He referred   us to National   Union   of Metalworkers   of South   Africa obo Sinuko v Powertech Transformers[35]   and Snyders and Others v De Jager and Others[36] to support his argument.
[61] In view of the fact that Louw's employment ended as far back as August 2014 and although the eviction application was launched nearly a year   later, the dispute is effectively three years old. Remittal of the matter to the court a quo for the determination of the merits will entail a further delay and more costs for the parties.[37] It is in the interests of both parties and the administration of justice that this dispute be brought to finality as speedily as possible.   Given that the issues are fully canvassed in the papers, we are in   a position to adjudicate the merits of the eviction application. In our view, it would be convenient that we determine the merits.
The Merits
[62] The issues that remain for determination are twofold. They are dictated by the requirements for an eviction set out in section 9(2) and (3) of ESTA. The only ones in issue are those contemplated by section 9(2)(a) and (c). Firstly, we have to determine whether Louw's right of residence was terminated in accordance with section 8 of ESTA Secondly, if we find that the termination was just and equitable, then we have to decide whether an eviction would be just and equitable as envisaged by section 11(2) and (3) of ESTA
Termination of the right of residence
[63] It is clear that Louw's right of residence arose solely from his employment agreement with the third appellant.
[64] It was contended on behalf of Louw that the termination of his employment was in not in accordance with the Labour Relations   Act No. 66 of 1995     and that the onus rested on the appellants to prove this. In support of this contention, he avers, among other things, that he was not allowed representation at the disciplinary enquiry and that the nature, scope and implications of the sanction were not explained to him.
[65] The main difficulty with this argument is that section 8(3) provides that any dispute over whether or not the termination of employment was in accordance with the Labour Relations Act must be dealt with in accordance with that Act. Louw concedes that he did not refer any unfair   dismissal dispute to the Commission for Conciliation, Mediation and Arbitration. That, in our view, requires this court to accept that the termination of employment was in accordance with the Labour Relations Act.
[66] In any event, Louw's complaints about the termination of his employment are not borne out by the contents of the notice which informed him to attend the disciplinary enquiry. The notice sets out a number of rights Louw has in respect of the disciplinary hearing, including the right to be represented by a fellow employee. It also shows that Louw acknowledged that his rights were explained to him and that he understood same. The charges are also not complicated as they merely relate to him being absent from work without permission and falsifying a sick note.
[67] Louw's claim that he did not receive the letter dated 15 September 2014, informing him that he was required to vacate the premises on the farm, has already been rejected above.
[68] Louw's main grounds for contending that his right of residence had not been lawfully terminated were -
[68.1] the letter gave him a month's notice to vacate the premises, whereas clause 8.1 of the housing agreement gave him three months   to vacate from the time of notice;
[68.2] the letter of 15 September 2014 was defective in that it does not, in specific terms, state that his right of residence was being     terminated
- it simply   gives   him   a   month's   notice to vacate   the premises   by 15 October 2014;
[68.3] he was not given an effective opportunity to make representations before the decision was made to terminate the right of residence.
[69] Clauses 8.1 and 8.3 of the housing contract are quoted above. Our translation of clause 8.1 is as follows:
"In the event of termination of the head of household's service, for whatsoever reason, the occupants will be obliged to vacate the house within three months of the date on which notice is given."
[70] Our translation of clause 8.3 is:
"In the event of a breach of contract by the head of the household which leads to the termination of service, all benefits   relating to the occupation of the unit expire, along with the rights of the family described in the housing policy of the farm in this contract."
[71] Reading clause 8.1 in context together with clause 8.3, the notice referred to in clause 8.1 seems to us to be the notice of termination of service. On that basis, from a purely contractual perspective, the three month period after which the obligation to vacate arises, would run automatically   from the   time of notice of termination of service of the head of household. No separate notice to vacate is contractually required on the part of the owner or person in charge. This is an instance of mora ex re which is described in Christie's Law of Contract in South Africa[38]   as follows:
"When the contract fixes the time for performance, mora is said to arise from the contract itself (mora ex re) and no demand (interpellatio) is necessary to place the debtor in mora because, figuratively, the fixed time makes the demand that would otherwise have to be made by the creditor (dies interpellat pro homine)."
[72] On this basis, Louw and his family would have been contractually entitled to remain in the house for three months from the time of notice of termination of service and contractually obliged to vacate it at the end of the three months, regardless of any notice to vacate purportedly given by any of the appellants. On this basis, the written notice to vacate given on 15 September 2014 was, from a contractual perspective, superfluous. Its function was, rather, a statutory one.
[73] No attempt was in fact made to evict Louw or his family within three months of notice of termination of his service on 15 August 2014. In those circumstances, there was, in our view, no contractual breach of clause 8.1 on the part of the third appellant, notwithstanding that the letter of 15 September 2014 called upon Louw to vacate prematurely under the contract.
[74] Even if clause 8.1 is to be interpreted as referring to notice to vacate (as distinct from notice of termination of employment) and requiring three months notice   to   vacate to   be given, the fact of the short notice   in the letter of 15 September 2014 becomes irrelevant, firstly because the contractual provision for three months within which to vacate superseded the single month given in the letter and, secondly, because the third appellant allowed the three month period to run (and longer) without seeking to evict Louw and his family.
[75] Further, even if the letter of 15 September 2014 was not compliant with the housing agreement, the nature of the enquiry contemplated by section 8 of ESTA renders the question of whether or not termination of the right of residence was just and equitable a substantially broader one than mere contractual compliance. If justice and equity is achieved notwithstanding contractual noncompliance, the termination of the right of residence will still be lawful with reference to section 8. Contractual compliance is simply one   of the factors to be considered.
[76] The third appellant's position in this regard is fortified by the   fact   that   section 8(2) applies because the right of residence arose solely from Louw's employment. This permitted the third appellant to terminate the right of residence     on     the     basis   of   the   termination     of     Louw's     employment   in accordance with the provisions of the Labour Relations Act.[39]
[77] The remaining two grounds on which the lawfulness of the termination of Louw's right of residence was challenged are based on the judgment of the Constitutional Court in Snyders.[40]       These were the facts.   Mr Snyders took up employment   on   a   farm   belonging   to   Mr   de Klerk.     He and   his wife were granted the right to occupy a labourer's house on the farm. Two years later de Klerk sold the farm to Mr Stassen Snr. Snyders' occupation and employment continued on the same terms and conditions with Stassen Snr. In 2000 Stassen Snr died and ownership of the farm was passed to Stassen Jnr. After some years, Stassen Jnr employed a Ms de Jager as the farm manager. The relationship between Snyders and de Jager was not a harmonious one. The upshot was that Snyders was dismissed after a disciplinary enquiry, within less than a year of her assumption of her position. This after Snyders had worked on the farm for some 16 years. It was not clear from the record what charges he faced and what misconduct he was found guilty of. He was informed of his dismissal by way of a letter dated 18 April 2008. The dismissal letter also gave Snyders a month's notice for him and his family to vacate the house he was occupying. Snyders sought to   refer a dispute in terms of the Labour Relations Act to the Commission for Conciliation, Mediation and Arbitration regarding his alleged unfair dismissal, but did so late and was unable to secure condonation.
[78] Approximately a year after his dismissal, an application was launched by de Jager for Snyders' eviction, along with the eviction of his wife and children. An order for eviction was granted in the Magistrate's Court. The matter ultimately reached the Constitutional Court on appeal. The Constitutional Court was faced inter alia with the question whether Snyders' right of residence has been terminated justly and equitably in accordance with section 8(1) of ESTA.
[79] For compliance with section 8, Ms de Jager sought to rely on the fact that his right of residence had arisen solely from his contract of employment and because his employment had been terminated in accordance with the provisions of the Labour Relations   Act as contemplated   in section 8(2)   and (3)   of ESTA, termination of his right of residence flowed automatically from termination of his employment.
[80] The Constitutional Court rejected these contentions holding as follows:
"[68] It may well be that Mr Snyders' right of residence had arisen solely from an employment agreement. We do not know that. In her founding affidavit in the Magistrate's Court   Ms de Jager did not aver that Mr Snyders' right of residence arose solely from a contract of employment. Nor did she give oral evidence to that effect when she testified in Court. When Mr Snyders started working on the farm, the farm was owned by a Mr de Klerk. Mr Snyders said that his contract of employment was transferred as it was from Mr de Klerk to Mr Stassen Snr. Ms de Jager did not dispute this. Nor could she, seeing that she was not working on the Stassen Farm in 1992. Therefore, this matter cannot be dealt with on the basis that Mr Snyders' right of residence arose solely from his employment.
[69] In any event Ms de Jager did not terminate Mr Snyders' right of residence. She assumed that, once she had terminated his contract of employment, that automatically terminated his right of residence as well. She said that the part of the letter of dismissal that told Mr Snyders that he was to vacate the house in a month's time was the part that informed Mr Snyders of the termination of his right of residence. A copy of that letter was attached to Ms de Jagers founding affidavit in the Magistrate's     Court.
[70]   There are two difficulties with Ms de Jagers reliance upon the contents of that letter. The first is that Mr Snyders is illiterate and would not have been able to read the letter. In this regard Mr Snyders said that, when Ms de Jager gave him that letter, she told him that he was being dismissed but never told him that his right   of residence was also being terminated. Ms de Jager has not said anything different on this aspect. Since Mr Snyders was a respondent in those motion court proceedings, his version is the one that prevails. There was an obligation on Ms de Jager   to have either read the letter to Mr Snyders or to have told him specifically that she was terminating his right of residence if that is what she sought to do.   Whether or not it would have been proper or just and equitable for Ms de Jager to terminate Mr Snyders' right of residence at that time and in that manner is another question. However, Ms de Jager would have been obliged to comply with the requirements of ESTA before she could terminate Mr Snyders' right of residence.
[71]     The second difficulty is that no part of the letter said that Mr Snyders' right of residence was being terminated. The part on which Ms de Jager relies simply said that Mr Snyders was   required to vacate the house. The basis for the requirement that Mr Snyders should vacate the house must have been that his right of residence had automatically terminated when his contract of employment was terminated. That was not necessarily the position. The right of residence needed to be   terminated   on its own in addition to the   termination   of   the   contract   of employment. Until Mr Snyders' right of residence had been terminated, he could not be required to vacate the house. In this case   Ms de Jager has   failed to show that   Mr Snyders'   right       of residence had been terminated. Therefore, Ms de Jager had no right to require Mr Snyders to vacate the house or to seek an eviction order against Mr Snyders. The Magistrate's Court was wrong to find differently. The Land Claims Court was equally wrong to confirm the Magistrate's Court eviction order.”
[81] Mr Bhoopchand relies on these paragraphs of the judgment to contend that the letter of 15 September 2014 similarly failed to have the effect of terminating the right of residence. In our view, however, the judgment in Snyders is distinguishable in a number of respects, which are set out in the paragraphs that follow.
[82] In the present matter, it is clear from his successive employment contracts and the housing agreement that Louw's right of residence and that of his family members, indeed arose solely from his contract of employment;
[83] Here there was no blurring of the document recording the termination of Louw's employment, on the one hand, and the letter of 15 September 2014 requiring him to vacate, on the other. The document recording   the termination of Louw's employment reads as follows:
"Naam van aangeklaagdes:           Paul Louw
Datum van verhoor:                                         15 Augustus 2014
Klagte:                                                                                     Afwesig     verlof.   Op   6/8/14   laat aangemeld. 6 en 7 Augustus 2014 afwesig - vervalste sertifikaaat. Verander 6 in 8 dae.
Pleidooi:                                                                               Pleil skuldig
Datum van oortreding:                               28 Julie 2014
Aanklaer:                                                                             Mnr Burger - Bestuur
Verteenwoordiger:                                             Geen 
Lid van werkerskomitee:                             Geen Tolk:   NVT
Getuie(s):                                                                           Geen
Waamemer(s):                                                         Geen Kort vers/ag:
Se sy seuntjie van 8 het dit verander. Uits/ag: Skuldig
VersagtendNerswarend:             Verswarend onaanvaarbaar en kriminee/ van aard
Voorgestelde sanksie: Onmiddelike ontslag."
- sy optrede is
[84] That document is dated 15 August 2014. The letter of 15 September 2014 did not purport in any way to deal with the termination   of   Louw's employment. It was sent a month later. It was, on its own terms, not based   on any assumption that the right of residence ha terminated automatically. Our translation of the letter reads as follows:
"Dear Mr P Louw
JF Le Roux Boerdery hereby gives Paul Louw one calendar month's notice from 15 September 2014 to vacate his residence at Joubertsdal farm.
Mr P Louw must before or, at the latest, on 15 October 2014 vacate the residence."
[85] Although the letter of 15 September 2014 did not expressly refer to the act of termination of the right of residence, in context, that was the only meaning that could reasonably have been attributed to it. There was no room for any of the ambiguity surrounding the purported termination of the right of residence that there was in Snyders. Moreover, there was no evidence to suggest that Louw is illiterate.
[86] It was alleged in the founding affidavit by De Beer that the right of residence was terminated both orally and in written form (in the letter of 15 September 2014). Louw's focus in disputing termination of his right of residence is on   the alleged inadequacy of the letter of 15 September 2014. His denial in relation to the oral termination of employment is a bare one.
[87] The issue of the oral termination of the right of residence was taken up further by De Beer in the replying affidavit as follows:
"...Ek submenteer aan hierdie Agbare Hof dat Wynand Hendrik Viljoen (‘Viljoen’), Applikante se deeltydse personeelbestuurder, asook Burger die Eerste Respondent tydens die   disiplinere verhoor waarby hy ontslaan is attent daarop gemaak het dat sy dienskontrak tesame met sy verblyfreg beeindig is. 'n Ondersteunende       Eedsverklaring       deur       Viljoen       word     hierby
aangeheg, gemerk aanhangsel 'GDB5.”[41]
[88] In our view, that does not reflect an assumption that the termination of the right of residence was automatic, but rather a distinct decision, and communication of the decision, to effect termination of the right of residence. Significantly, this was not disputed in Louw's supplementary affidavit which was deposed to after the replying affidavit.
[89] In the circumstances, we are satisfied that Louw's right of residence was terminated both orally and by way of the letter of 15 September 2014.
[90] Mr Bhoopchand further argued that the termination of the right of residence was not just and equitable as required by section 8 insofar as Louw was not afforded an effective opportunity to make representations before the decision to terminate his right of residence. In this regard he relied on Snyders where the Constitutional Court said:
''[75] Counsel for the Snyders family also contended that the Magistrate's Court should not have issued an eviction order because the Snyders family had not been afforded any procedural fairness by way of an opportunity to be heard before they were required to vacate the property. It is common cause that the Snyders family were never invited to make representations to Ms de Jager on why they should not be required to vacate the house before they were actually required to vacate it. In my view, the submission by counsel for the Snyders family has merit. ESTA requires the termination of the right of residence to also comply with the requirement of procedural fairness to enable this person   to make representations why his or her right of residence should not be terminated. This is reflected in section 8(1)(e) of ESTA. A failure to afford a person that right will mean that there was no compliance with this requirement of ESTA. This would render the purported termination of the right of residence unlawful and   invalid. It would also mean that there is no compliance with the requirement of ESTA that the eviction must be just and equitable."
[91] These comments must be read in the context of the particular factual situation in Snyders. Section 8(1)(e) does not contemplate that it will be appropriate in every case that an opportunity be given to make representations before the decision to terminate the right of residence. This   is clear from the wording of section 8(1)(e) which reads as follows:
'T he 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."
(emphasis added)
[92] In our view, in circumstances where, unlike in Snyders, it is clear that the   right of residence did derive solely from the contract of employment, procedural fairness in relation to the possible loss of the right of residence, will have been a natural consequence   of the procedural fairness afforded   in
the process of terminating the contract of employment in accordance with the provisions of the Labour Relations Act,[42] as envisaged in section 8(2) of ESTA.       For that reason, it was not necessary for the third appellant to   have
afforded Louw a distinct and separate opportunity to make representations before the decision was made to terminate the right of residence. This appears to us to be one of the situations contemplated in section 8(1)(e) where the words "or not" and "should have been" apply.
[93] Even if we are wrong in stating that as a general proposition, we are satisfied that in this particular case, it was not necessary to afford Louw a distinct and separate opportunity to make representations before his right of residence was terminated, as contemplated in section 8(1)(e). Procedural fairness was afforded through the disciplinary procedures followed in relation to Louw's employment and its eventual termination. As pointed out above, the documentary evidence put up by the appellants shows that Louw received a fair hearing prior to his dismissal. Moreover, he must have appreciated from clauses 8.1 and 8.3 of the housing contract that his right of residence was at risk during the final disciplinary enquiry as well as the numerous prior disciplinary   hearings where he was found guilty of misconduct. If   he   had any compelling reason why the third appellant should not terminate his right of residence, notwithstanding termination of his employment, it was up to him to raise it at the final disciplinary enquiry.
[94] In the circumstances, we are satisfied that Louw's right of residence was indeed terminated and that such termination was just and equitable as contemplated in section 8(1), (2) and (3) of ESTA.
Compliance with section 11
[95] It was common cause that the justice and equity of the eviction of Mr Louw was to be determined in accordance with section 11 rather than section 10 of ESTA.   Section 11 reads, in relevant part, as follows:
"11. Order for eviction of person who becomes occupier after 4 February 1997
(1) ...
(2) ... A court may grant an order for eviction in respect of any person who became an occupier after 4 February 1997 if it is   of the opinion that it is just and equitable to do so.
(3) In deciding whether it is just and equitable to grant an order for eviction in terms of this section, the court shall have regard to-
(a)                       the period that the occupier has resided on the land in question;
(b)                     the fairness of the terms of any agreement between the patties;
(c)                       whether suitable alternative accommodation is available to the occupier;
(d)                       the reason for the proposed eviction; and
(e)                       the balance of the interests of the owner or person in charge, occupier and the remaining occupiers on the land."
[96] Applying these considerations, we have taken account of the fact that Louw and his family   resided   on the land in question for a considerable   period     of time. The housing agreement has also been taken into consideration.   Even if some of its terms might be considered to be strict, there is no evidence of its unfair application in the circumstances of this matter.
[97] We accept that the accommodation at Koopmanskraal may not qualify as suitable alternative accommodation in terms of the definition of that term in section 1 of ESTA.[43] The absence of suitable alternative accommodation is not, in the context of section 11,   an automatic bar to the grant of a just     and equitable order of eviction.     It is a factor that we must consider.[44]       We   have done so.
[98] The reason given by the appellants for the proposed eviction is a legitimate one. The accommodation is required for other employees. Moreover, the third appellant faces potential resentment from other occupiers if a person who was jailed for killing one of their children is allowed to return to the farm as an occupier, particularly where there will be no employment relationship between the third appellant and Louw or any members of his family.
[99] Finally, we have performed the required balancing of the interests of the appellants, Louw and the remaining occupiers on the land. Particularly having regard to the   history of Louw's unfortunate conduct on the land     and the potential impact that it has on the remaining occupiers, we are satisfied that this factor weighs strongly in favour of Louw's eviction being just and equitable.
Conclusion
[100] The appellants have made out a case for Louw's eviction. No order for eviction can be made as against Louw's partner or his children. This is because his partner, Malitie, was not joined as a respondent. This follows from   the   judgment   of   the Constitutional Court   in   Klaase   & Ano   v   Van der
Merwe NO and others.[45] This should not however be interpreted as a finding
by this court that Louw's partner or her children have a right to return to the property.
[101] In the result, the following is ordered:
(1) The appeal is upheld.
(2)   No order is made as to the costs of the appeal.
(3)   The whole of the judgment and order of the magistrate's court for the district of Paarl dated 10 August 2016 is set aside, including the order as to costs.
(4)   The following order is made in substitution for the order of the Magistrate's Court for the District of Paarl:
(a)   The first respondent must vacate Portion 22 of Portion 20 of the Farm Mooikelder No. […] in the Drakenstein Municipality, Division of Paarl, Western Cape Province, together with all his movable property, by   no later than 28 July 2017.
(b)   In the event of the first respondent failing to vacate the farm by 28 July 2017, an eviction order may be carried out against the first respondent on or after 31 July 2017.
(c)   To the extent necessary, the South African Police are directed to assist the Sheriff in the execution of this order in the event that they are requested to do so by him or her.
(d)     No order is made as to costs.
___________________________
MP CANCA

Acting Judge of the Land Claims Court

  ___________________________
AC DODSON

Acting Judge of the Land Claims Court

Appearances:

For the Appellants: Adv. A Montzinger 
Instructed by: Van Wyk Fouchee Jnc. Paarl

For the First Respondent Adv. A Bhoopchand
Instructed by: The University of Stellenbosch Legal Aid Clinic

[1] A   reference to   the   Prevention   of Illegal Eviction from and UnlawfuI Occupation of Land Act No. 19   of   1998.

[2] Our translation is -
"2.5.9 Accommodation: in certain instances temporary housing is provided in apartments on   the farm/estate for the duration   of the contract."

[3] Housing contract.

[4] Our translation is -
"The house shall only be inhabited by the head of household, his spouse and their lawful schoolgoing children.
The following persons may inhabit the house. . .. "

[5] The translation   appears below.

[6] The   translation appears below.

[7] 1984 (3) SA 623 (A) at 634D-635C.

[8] At 635C.

[9] Verbal exchange.

[10] Our translation is-
"took a very sharp tum and stumbled against my leg".

[11] Plascon-Evans above at 635C.

[12] See above at 634D-635C.

[13] His conduct discussed in this and the preceding paragraph is relevant to the enquiry in terms of section 11 of ESTA, discussed below.

[14] There may be support for the bringing of the application on alternative bases in the judgment   of   Gildenhuys J in Van Der Walt and Others v Lang and Others (LCC102/98) [1998) ZALCC 10 (17 September 1998). That was, however, decided in the context of the Land Reform (Labour Tenants) Act   No. 3 of 1996.

[15] [2005] ZAGPHC 31 at paras 12 and 13.

[16] See also the dictum of Dodson J in Kanhym (Ply) Ltd v Simon Botha Mashiloane 1999 (2) SA 55 (LCC) at para 6 where the learned Judge states, inter alia, that"... it is trite that where an application is brought by an artificial person, the agent who brings that application on the company's behalf must show that he or she is duly authorised to do so...."

[17] This contention is not sustainable for the reasons given above.

[18] This aspect is dealt with below.

[19] This, too, is dealt with below.

[20] (245/2015} LCC (28 February2017) para 27.

[21] Whether it qualified as a proper notice terminating the right of residence is dealt with below.

[22] (31039/04} ZAGPHC [2005] (31 March 2005) paragraphs 12 and 13.

[23] To the extent that this might refer to me requirement in section 8(1){e) of ESTA that, in certain circumstances, an occupier be granted an opportunity to make representations before termination of the rights of residence, this is dealt with below. There is no indication that this is what the Magistrate was referring to when he found that the notice was issued prematurely.

[24] See above.

[25]   (LCC 17R/98) [17 January 1999].

[26] (LCC 92/2012) [12 September 2013). We are of the view that the law on this aspect is correctly   summarised in Nkagisang. We do not, however, comment on whether the law was appropriately applied   to the facts in Nkagisang, where a party put up facts which in themselves cast serious doubt on whether the proceedings had been properly authorised.

[27] At paragraph 14.

[28] 2004 (3) SA 615 (SCA) at para 19 at 624H.

[29] 2005 (4) SA 199 (SCA) at para 14 at 206 G-K.

[30] 1992 (2) SA 703 (YV) at 705C-706D.

[31] 2010 (3) SA 31 (KZP) at paras 28E-29H. This is subject to the possible exception identified in footnote 16 above.

[32] LCC 16R/98 (10 December 1998) cited by Dodson J in   Kanhym above.

[33] At paragraph 6.

[34] See City Council of Springs v Occupants of the farm Kwa-Themba 210 [1998] 4 All SA     155 (LCC); 2000 (1) SA 476 (LCC) at para 24; Sero/e and Another v Pienaar [1999] 1 All SA 562 (LCC); 2000 (1) SA 328 (LCC) at para 19.

[35] [2014] BLLR 133 (LAC) para 45.

[36] (CCT 186/15) [2015] ZACC 55 paras 50 and 51.

[37] See, for example, NUMSA obo Sinuko v Powertech Transformers [2014] 2 BLLR 133 (LAC) para 43 and Snyders and Others v De Jager and Others [2016] ZACC 55 para 51.

[38] Bradfield Christie's Law of Contract in South Africa Juta 7th ed   p590     .

[39] See, for example, Mpedi and Others v Swanevelder and Another [2003) ZASCA 131 para 9.

[40] Above at paras 67-76

[41] Our translation is: "I submit to this Honourable Court that Wynand Hendrik Viljoen ('Viljoen’) applicant’s part-time personnel manager, as well as Burger made it clear to the First Respondent at the time of his disciplinary enquiry where he was dismissed that his employment contract together with his right of residence were terminated. A supporting affidavit by Viljoen is attached marked annexure 'GD85'."

[42] See item 4(1) of the “Code of Good Practice: Dismissal" forming Schedule 8 to the Labour Relations Act.

[43] '"Suitable alternative accommodation' means alternative accommodation which is safe and overall not less favourable than the occupiers' previous situation, having regard to the residential accommodation   and land for agricultural use available to them prior to eviction, and suitable having regard to-
(a)         the reasonable needs and requirements of all of the occupiers in the household in question for residential accommodation, land for agricultural use, and services;
(b)         their joint earning abilities; and
(c)         the need to reside in proximity to opportunities for employment or other economic activities if they intend to be economically active.":

[44] De Kock v Juggels and Another 1999 (4) SA 43 (LCC) at paras 24 and 25.

[45] 2016 (6) SA 131 (CC).