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Old Abland (Pty) Ltd v Hanekom and Others, Old Abland (Pty) Ltd v Jacobs and Others (LCC178/2016, LCC179/2016) [2017] ZALCC 27 (9 May 2017)

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REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CAPE TOWN

CASE NO: LCC 178/2016

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED: YES/NO

Before: Poswa-Lerotholi, AJ

Heard on: .............

Delivered  on: 09 May 2017

 

In the matter between

OLD ABLAND (PTY) LTD                                                                                       Appellant

And

ANTHEA HANEKOM                                                                                  First Respondent

STUURMAN HANEKOM                                                                       Second Respondent

THOSE OCCUPYING WITH, OR UNDER

FIRST RESPONDENT COTTAGE NO. 3

TOPSHELL PARK, BADEN POWELL ROAD,

LYNEDOCH, STELLENBOSCH UNLAWFUL OCCUPIER                       Third Respondent

STELLENBOSCH MUNICIPALITY                                                         Fourth Respondent

DEPARTMENT OF RURAL DEVELOPMENT AND LAND                        Fifth Respondent

CASE NO: LCC179/2016

OLD ABLAND (PTY) LTD                                                                                       Applicant

And

SUZIERANNIE JACOBS                                                                            First Respondent

THOSE OCCUPYING WITH, OR UNDER

FIRST RESPONDENT COTTAGE NO. 3

TOPSHELL PARK, BADEN POWELL ROAD,

LYNEDOCH, STELLENBOSCH UNLAWFUL OCCUPIER                   Second Respondent

STELLENBOSCH MUNICIPALITY                                                           Third Respondent

DEPARTMENT OF RURAL DEVELOPMENT AND LAND                     Fourth Respondent

Judgment

POSWA-LEROTHOLI, AJ

Introduction

[1] This appeal and cross appeal relate to 2 appeal case nos. 178/2016 and 179/2016 which were heard in the Magistrates Court for the District of Stellenbosch ("the Magistrates Court").  In the Magistrate's Court, the appellant sought to evict the families from the property commonly known as No. 8 Topshell Park, Baden Powell Road, Lynendoch, Stellenbosch ("the property").

[2] Save for the description of the respondents and their particular circumstances, the facts and legal issues raised in the appeals are the same.

Parties

[3] The appellant in both appeals is Old Abland (Pty) Ltd the registered owner of the property. In case no. 178/2016, the first respondent is Anthea Hanekom, the wife of the second respondent, Stuurman Hanekom (collectively "the Hanekom Family"). In the second appeal, case no. 179/2016, the first respondent is Suzie-Ann Jacobs (collectively "the Jacobs Family".) The fourth and fifth respondents are the Stellenbosch Municipality and Department of Rural Development and Land Reform respectively.

The proceedings in the Magistrate's Court

[4] The eviction proceedings were instituted on 26 March 2013. After the exchange of pleadings between the parties, on 5 July 2013, the Magistrate requested the probation officers report in terms of section 9(3). Anthea Hanekom, successfully launched an interlocutory application, directing the Stellenbosch Municipality to convene a meeting with the respondents  and the appellant in order to engage in a   process of meaningful engagement. The Stellenbosch Municipality filed a report on 17 June 2014, while the Department of Rural Development and Land Reform respondents filed the probation report on 1 April 2015.

[5] The magistrate granted the eviction applications with a caveat that the appellant pays to each of the respondents a sum of R80,000. The reasons advanced for the order granted were similar in each case:

5.1            There is no relationship or contractual obligation between the appellant and the respondents. In fact, the appellant had displayed a lot of patience, in complying with the legal processes in the process of securing alternative accommodation for the respondents.

5.2           The respondents had failed to vacate the property three years after being served with a notice of terminate their right of residence. The respondents had unduly benefitted from their continued occupation of the property: rent-free, and free use of water and electricity, to the detriment of the appellant who  cannot run the business as it used to operate.

5.3            The appellant requires the section that is currently occupied by the of respondents in order to restore the use thereof to Topshell its long-term lessee. Thus, the appellant will gain rental income from the extended property.

5.4             The  respondents  claim  the  sum  of  R80,000  offered  by   the appellant was insufficient to secure reasonable alternative accommodation one occupier accepted the offer of R80,000 and managed to secure alternative accommodation.

[6] In the final analysis, the magistrate concluded that:

6.1           The respondents' right of residence was terminated in accordance with section 9(2) read with section 8(1) of Extension of Security of Tenure Act 108 of 1997 ("ESTA").

6.2           The respondents have failed to vacate the property.

6.3            The appellant as the landowner has reasonable and immediate need to use the land in question.

6.4            The respondents' allegations that they would be rendered homeless in the event of an eviction constitute bald allegation as it is unsubstantiated by the evidence.

6.5            The respondents failed to demonstrate any endeavours  made  to seek alternative accommodation;

6.6           The sum of R80,000 would have secured the respondent reasonable alternative accommodation with better facilities than the dilapidated houses (on the respondents own version) in  which they currently reside.

6.7           The appellant had carried the respondents for many years, as   a result this infringed upon the owner's right to property. This also affected the development of the business.

6.8            Therefore, in balancing the respective interests and the hardship, it is the court's view that in the circumstances of this case, the granting of the eviction order is just and equitable.

[7] The magistrate went on to order that the appellant pays to each of the respondents the sum of R80,000 within 30 days and that the respondents must vacate the property within 90 days after the receipt of payment

[8] It is common cause that the respondents are all occupiers within the meaning of ESTA. In considering an order for the eviction of an occupier, this Court is enjoined to take into account the personal circumstances of the occupier enumerated in ESTA. The provisions relevant to these matters are the following:

8.1            Section 9(2)(c) of ESTA requires that the applicant complies with the provisions of section 10 and 11 whichever is applicable.

8.2            Section 11 applies to persons who only became occupiers after 4 February 1997. It is common cause that all the respondents became occupiers after this watershed date. Therefore, section 11 is applicable to the respondents' eviction.

Factual Background

[9] The appellant is the owner of the property, he purchased the property in 2008. The respondents are all former employees of the previous owner of the property and were allocated a section of the property for the purposes of accommodation. Currently, there are two families residing  on the property, which are the subject of these appeals.

[10] The Jacobs family have resided on the property since 2002 as a result of their employment by the previous owner, which was terminated in 2007. There is no dispute about the fairness of the dismissal and therefore I  will assume that the dismissal was in line with the prescripts  of the Labour Relations Act. The other occupiers who resided on the same property with Ms Jacobs derived their rights to reside from Ms Jacobs.

[11] According to the appellant, an attempt was made to enter into a lease agreement with Anthea and Stuurman Hanekom, who rejected the lease out of hand. To the contrary, the respondents contend that they did not see the said lease agreement.

[12] In respect of the Hanekom family. Anthea Hanekom began living and working on the farm in 2003 until she was retrenched in 2007. The rest  of the Hanekom family derive their right to reside on the property from Anthea Hanekom. She too did not challenge the dismissal.

[13] It is common cause that an amount of R80 000 was offered to each of the   respondents   by   the   appellant   towards   the  cost   of alternative accommodation. The appellant also offered to assist the with the relocation costs. This was rejected by the respondents as being insufficient to cover the cost of securing reasonable alternative accommodation or a house of similar in size and utilities as the current one. The appellant asserts that the offer has since expired due to the ensuing litigation costs for the eviction application and the appeal.

[14] The appellant argues that it served notices of termination  of residence  on the respondents, the respondents contend that the said notice was defective in that, contrary to section 9(2) it purported to be both and a notice of termination of residence as well as a notice of eviction

The appellant's case

[15] The appellant appeals against the decision of the lower courts on the following grounds: abandonment, alternative accommodation and meaningful engagement.

[16] The appellant objects to the respondents attempts to raise a new issue  at the appeal stage. The appellant contends that during the proceedings, in the lower courts the respondents neither challenged the legality after the notice to vacate nor the fairness of the procedure followed in the termination of the respondents right of residence. Consequently, this issue was never canvassed before  the lower  court and the magistrate did not adjudicate thereon. However, the appellant is surprised that the respondents now purports to challenge the validity of the eviction notice issued pursuant to section(2)(b) of  ESTA.

[17] In the heads of argument and during oral argument, the respondents claimed that, they had not been given the opportunity to make representations. The minimum threshold requirement applicable to the termination of residence is that it must be just and equitable. Thus, the appellants had failed to meet this standard, in contravention of section 9(2)(a) read with section 8(1)(e) of ESTA. This complaint had not been foreshadowed in the pleadings, being the opposing affidavit and the Notice of Cross-Appeal.

[18] As a result, the appellant's claim prejudice in that they did not know the case they were supposed to meet and therefore did not prepare for the new challenge.

[19] The appellant also contends that the termination of residence was within the relevant legislative framework.

[20] The appellant contends that there is  alternative  accommodation available to the respondents. The R80 000 was sufficient to rent a house for three years. The appellant had also offered the respondents a three-year timeline to finalise the relocation from the property.

[21] The thrust of the appellant's defence is that it has engaged in the various interventions with the respondents which have  been rebuffed.  Firstly, the appellant endeavoured to regularise the residents of the respondent by entering into a lease agreement. The respondents refused to agree to the terms of the lease agreement presented by the appellant. Secondly, the appellant's predecessor in title had engaged in discussions  with  the Department of Rural Development and Land Reform to pass on ownership of the partner property upon which is the respondents inside by means of subsidies provided by the department. The predecessor in title had rejected the offer by the department due to what the  respondents describe as low "subsidies offered by the Department were insufficient to cover the costs of reticulation and subdivision". Thirdly, the respondents were each offered R80,000 to locate and find alternative accommodation. This offer, according to the appellant was ignored by  the respondents. By the time the eviction application had been launched, the offer had expired. Fourthly, the attempts at meaningful engagement as directed by this court also failed.

[22] The appellant objects to the attempts by the court a  quo to resuscitate  an offer which has expired.

[23] The appellant asserts that it has applied the principles of  reasonableness and fairness in terminating the respondents' residence.

[24] Furthermore, all attempts were made to accommodate the respondents to the extent of agreeing to an arrangement with the Provincial Government that would facilitate the respondents' leaving the property over a period of three years, to no avail.

[25] The appellant seeks to justify the termination of the right of residence  and the eviction of the respondents on the following grounds:

25.1      It requires the land on which the respondents are housed, for   a commercially viable venture;

The respondents' case

[26] The respondents filed a cross appeal against the judgment of the Magistrates Court. The respondents maintain that termination of their right of residence was unlawful and invalid in that the magistrate's court failed to take into account salient factors. First, the potential homelessness of that of the respondents. Second, the availability of suitable alternative accommodation. Finally, the possibility of a meaningful engagement between the parties.

[27] They also contend that the Magistrates' Court erred in granting  an eviction order without having regard to the potential homelessness of the respondents and the availability of suitable alternative accommodation and the possibility of meaningful engagement between the parties.

[28] The grounds of the cross appeal are as follows:

28.1         The Magistrate failed to take into account the recommendations of the probation officer, which inter alia found that the respondents do not have alternative accommodation and that therefore they would be rendered homeless by the eviction. The probation officer had also expressed concern to the effect a proposed eviction would have on the children's right to receive basic education enshrined in section 29(1) of the Constitution and advised the parties to enter into meaningful engagement   as espoused in Diedericks v Univeg Operations South Africa (Pty) Ltd t/a Heldervue Estates (LCC 18/2011)

28.2        The Magistrate failed to take into consideration the evidence adduced by the First Respondent with regard to the unavailability of suitable accommodation.

28.2.1                Frist Respondent's attempts to seek alternative accommodation;

28.2.2                R80 000 could not find accommodation comparable to her current abode. Respondent led evidence to that effect-

(a)           Search for property in Macassar, Eerste Rivier, Croydon, Kuilsriver and Delft with estate agent yielded no results;

(b)           The respondents do not qualify for a homeloan;

(c)           The respondents do not qualify for an RDP house as the joint income of the family is above the threshold  to  qualify.

28.3         The right of residence was not terminated in accordance with section 9(2) read with section 8(1) of ESTA

28.3.1                The purported notice of eviction was irregular in that did not comply with section 9(2) of ESTA.

28.3.2               The notice constitutes a  duality it purports to be both a notice of termination and a notice to vacate. Whereas the procedure for termination is clearly outlined in the ESTA.

28.3.3                There was no evidence demonstrating compliance with section 9(2)(b) of ESTA.

The Law

[29] A party seeking to justify an eviction must place before the court information relevant to the requirements for an eviction in terms of the provisions of  ESTA.[1]  The requirements  are enumerated  in section  9(2)

of ESTA which stipulates as follows:

"(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, purposes, for information 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  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."

Compliance with section 8

[30] Section 9(2)(a) requires that the occupiers right of residence must have been terminated in terms of section 8. Section 8, in relevant part, reads as follows:

"8.  Termination of right of residence

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

(a)           the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person in charge relies;

(b)            the conduct of the  parties  giving rise  to the termination;

(c)            the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier concerned, and any other  occupier  if   the   right   of   residence  is or is not terminated;

(d)           the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of 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."

[31] At the outset, the inquiry is whether sections 8(2) and 8(3) are relevant  to this matter. As aforestated, the respondents who had been employed by the previous owner conceded that their rights of residence had arisen solely from their employment. Furthermore, the respondents had challenged their dismissal in the CCMA without success and therefore the  respondents'  employment  had  been  terminated  in  accordance with the provisions of the LRA.

[32]  Significantly, the termination of employment took place in 2007. The eviction proceedings were only launched in 2012, after the appellant had acquired the property. There is no evidence that the previous owner took any further steps to evict the respondents. In any event, even if the previous owner had made attempts to terminate the right of residence, the respondents continued to reside on the property without interference for four years prior to any further steps being taken towards their eviction.

[33] Section 3(4) of ESTA provides for a rebuttable presumption that  a  person who has resided continuously and openly on land for period of one year has the consent of the owner or manager of the property.

[34] The longer the person has continuously and openly resided on land the more entrenched the right. Section 3(5) of ESTA constitutes a deeming provision. It stipulates that a person that has continuously and openly resided on land for a period of three years shall be deemed  to  have done so with the knowledge of the owner or person in charge."

[35] The appellant did not adduce any evidence to refute the operation  of these presumptions and deeming provisions after 2007. It is common cause that the respondents continuously and openly resided on the land for a period of some four years after the termination of the employment  of those respondents who were employed by the previous owner. The claim that there was a lease between the respondents and the previous owner was not proved by the appellant.   In the circumstances, the   right

of residence of the respondents now derives, from the consent that must be presumed from the combined operation of sections 3(4) and 3(5) of section 3 in respect of the period from 2007 to 2012.

[36] Accordingly, sections 8(2) and 8(3) did not apply and a separate process of termination of the right of residence was triggered to comply the requirements of sections 3(1), 8 and 9(2)(a) of ESTA.[2]

[37] The appellant relied heavily on the various endeavours undertaken first towards the regularisation of the appellant's respondents' residence on the farm through the lease agreement followed by attempts to terminate their right of residence.

[38] In the process of termination, the appellant claims to have issued a notice of termination. However, the said notice failed to comply with the provision as the effect thereof was to notify the respondents of the proposed notification and simultaneously terminated the respondents' right of residence. The appellant had evidently omitted meaningful engagement, a crucial step in the process of termination. This is borne out by the fact that the respondents filed an interlocutory application compelling the appellant to engage in meaningful engagement.

[39] On this aspect, the magistrate found that the notice of termination relied on by the appellant was valid.

[40] The ensuing inquiry is whether the termination was just and equitable  as envisaged by section 8(1). With due consideration to all the relevant factors, with particular reference to those enumerated in section 8(1)(a) to (e). In Snyders and Others v De Jager and Others 2017 (3) SA 545 (CC) at para 56, the Constitutional Court spelt out the approach to be followed when conducting a section 8(1) inquiry:

Section 8(1) makes  it  clear  that  the  termination of  a right  of residence must be just and equitable both at a substantive level as well as at a procedural level. The requirement for the substantive fairness of the termination is captured by the introductory part that requires the termination of a right of residence to be just and equitable. The requirement for procedural fairness is captured in section 8(1)(e).”

[41] What constitutes a 'just and equitable eviction is now well established in our law. The main pieces of legislation, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE") and ESTA post the constitutional order, which  deal  with evictions  relating  to   the vulnerable sectors of the South African community require evictions to  be 'just and equitable'.

[42] Within the setting of both Acts, the Constitutional Court has described the approach the Courts should take in determining a 'just and equitable' eviction.

42.1          In Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC) at para 36  -

"The court is thus called upon to go beyond its normal functions, and to engage in active judicial management according to equitable principles of an ongoing, stressful and law-governed social process. This has major implications for the manner in which it must deal with the issues before it, how it should approach questions of evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it might make. The Constitution and PIE require that in  addition  to considering the lawfulness of the occupation the court must have regard to the interests and circumstances  of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result."

42.2         In Hattingh & Others v Juta 2013 (3) SA 275 (CC) at para 32 the Constitutional Court stated the following-

"In my view the part of section 6(2) that says: "balanced with the rights of the owner or person in charge" calls for the striking of a balance between the rights of the occupier, on the one side, and those of the owner of the land, on the other. This part enjoins that a just and equitable  balance  be  struck  between  the  rights  of  the occupier and those of the owner. The effect of this is to infuse justice and equity in the inquiry required by section 6(2)(d). Section 6(2)(d) is not the only provision in which ESTA seeks to infuse justice and equity or  fairness.  In this regard I draw  attention  to  the  requirement  in section 6(4) that the landowner's right to impose conditions for the exercise of the right by any person to visit and maintain his or her family graves must be exercised reasonably and the requirement in section 8(1) that the termination of an occupier's right of residence must not only be based on a lawful ground but also that it must be 'Just and equitable, having regard to all relevant factors". The factors set out in section 8(1) make it clear that fairness plays a very important role."

[43] The starting point is that sections 8(1)(a) and (b) are not applicable in  this instance. As regards paragraph (c), the hardship endured by the appellant due to the continued residence of the respondents. The appellant has complained that its ability to maximise the rental capacity  of the property is limited. I agree that the occupation of the property by  the respondents, without paying for the house and utilities means that it  is burdensome to the appellant.

[44] A principal consideration in the process of evictions in terms of ESTA is that the occupier must have alternative accommodation. Section 11(3)(c) of ESTA categorically directs a court determining an eviction to  consider whether suitable alternative accommodation is available to the occupier. In this regard, the Magistrate's Court had three reports before him, that  of the municipality, the probation report, an imperative of section 9(3) of ESTA and the social worker's report to assist the court in making a determination.

The report by the Stellenbosch Municipality

[45] In compliance with section of the ESTA, the Municipality furnished the dated Court a quo with the following information.

45.1         There is limited accommodation available for temporary, emergency situations in within Stellenbosch Municipality's housing projects;

45.2         The municipality can supply housing for a person rendered homeless and will supply and erect a pre-fabricated structure on site and provide the attendant communal utilities;

45.3         In the event of a need for transitional accommodation, the municipality reserves 10% of sites for formal housing in RDP housing.

The social workers' reports

[46] The first report concerns the occupiers at No. 8 Top Shell Park Baden Powell Drive, Lynedoch. The social worker records that she conducted extensive interviews  with the occupiers. The  household  is led by   a female. There are 6 occupiers; with 2 occupants over 60 years, one minor child, and only one person who is gainfully employed. One child attends school. An eviction would render the occupiers homeless.

The Probation Officer's Report

[47] The second report relates to the occupiers at -  The household consists  of 5 occupiers: consisting of three adults, one over the age of sixty and two minor children. Only one adult is gainfully employed on the farm as domestic worker and has resided on the farm for 13 years.

[48] The farm manager wants to evict the occupiers as none of them are employed on the farm. Furthermore, he needs the place where the occupiers reside to establish an economically viable unit.

[49] The probation officer's report dated 31 March 2015, concludes that the Respondents right to family life and education, taking into account the elderly aunt and the children who are at school, citing section 29(1) of  the Constitution the following recommendations are made:

49.1         The eviction order should not be granted;

49.2         The court takes into account the provisions of section 10(3)(c)(ii) and 10(3)(c)(iii) of ESTA;

49.3         The court order the parties to conduct meaningful engagement process as espoused in Herman Diederics v Univeg Operations South Africa (Pty) Ltd H/A Heldervue Estates LCC 18/2011.

[50] However, there is ample information to suggest that the termination of the respondents' rights of residence will result in significant hardships for them. The probation officer's report concludes that the proposed eviction will not be just and equitable as it will render the respondents homeless. The respondents face a real risk of finding themselves without shelter if they are evicted.

[51] The fact that another occupier whose right of residence was able to secure alternative accommodation does not assist the appellants in that the evidence in respect thereof is sketchy. There is no particularity as to the type of accommodation; how long it took them to find the accommodation; whether the particular circumstances are the same as the respondents; whether there were children of similar educational requirements who were affected by the move; if so, the proximity of the accommodation to schools. Without this information, the court cannot assess the plausibility of the respondents' chances of finding alternative accommodation against those of the former occupier.

[52] Furthermore, the respondents informed the court a quo of their own attempts to secure suitable alternative accommodation. I will not repeat the attempts made by the respondents to seek alternative accommodation as they are detailed above.

[53] Comparing the potential hardships, those of the respondents outweigh those of the appellant. It is clear that the appellant has no clear plan at this stage  for the development  of  the property. There is no   immediate, pressing need for the land. This is borne out by the fact that, initially, the appellant was willing to enter into a lease agreement with the respondents. Similarly, the claim that the land is required to increase the area of rental space for the tenant, Topshell is incongruent with the aborted lease agreement.

[54] Furthermore, there is no assertion that the land is required to accommodate the right if residence of the appellant's employees.

[55] There is a long list of decided authority to the effect that the obligation to satisfy the right to access to adequate housing, a constitutional imperative in section 26 of the Constitution rests with the state and not private entities such as the appellant.[3] However, section 26(4) of the Constitution protects occupiers from arbitrary evictions and eviction without a court order in the position of respondents. The courts in turn are enjoined to consider all the relevant circumstances before making an order of eviction.

[56] The remarks of, Wallis JA in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others at footnote 23 in a PIE application apply with equal force herein-

" If the landowner had no immediate or even medium-term need to  use  the  property  and  it  would  simply  be  sterilised  by  an eviction order,  the  court could legitimately  hold  the  view  that it was not just and equitable at that time to grant an eviction order.   That   would   be   reinforced   by   a    lack    of availability of alternative land."

[57] The attempts at meaningful engagement were clearly unsuccessful, however given the hardships the respondents may face, it would not be just and equitable to evict the respondents.

[58] Having decided that there was no compliance with section 8, there is no need for me to decide whether there was compliance with the rest of the provisions in section 9(2).

[59] The court accordingly makes the following order:

1.    The appeals in the   case  numbers LCC178/2016 and LCC179/2016 are dismissed.

2.    The cross appeal succeeds.

3.    The order of the Magistrate Court is amended to read as follows:

a.    The eviction application is dismissed.

4.    Each party is to bear its, his or her own costs in each of the appeals


________________

S SWA-LEROTHOLI

 

Acting Judge of the Land Claims Court

 

________________

PM  CANCA AJ

Acting Judge of the Land Claims Court


[1] De Kock v Juggels and Another 1999(4) SA 43 at para 13

[2]

[3] City of Johannesburg v Changing Tides 74 (Pty) Ltd and others (Socio-Economic Rights Institute of South Africa as amicus curiae) [2013] 1 All SA 8 (SCA) at para [18]; Odvest 182 Ply (Ltd) v Occupiers of Portion 26 (Portion of Portion 3) of Farm Klein Bottelary No 17, Botfontein Road ('The Property') and Others (19695/2012) [2016] ZAWCHC 133 (14 October 2016) para [79]