Ashanti Wine and Country Estate (Pty) Limited v Paulse and Others (LCC247/2016, LCC248/2016, LCC249/2016, LCC250/2016, LCC254/2016) [2017] ZALCC 4 (20 March 2017)

REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

APPEAL CASE NOS: LCC247/2016

LCC248/2016

LCC249/2016

LCC250/2016

LCC254/2016

Before: The Honourable Poswa-Lerotholi AJ

Heard on: 21 February 2017

Delivered on: ………………

In the six appeals between -

ASHANTI WINE & COUNTRY ESTATE (PTY) LIMITED

Appellant

and the respondents in LCC247/2016, being -

DIRK PAULSE

First Respondent

JAKOBA MAGDELENA PAULSE

Second Respondent

ELMARIE PAULSE

Third Respondent

FILLIPINE PAULSE

Fourth Respondent

DRAKENSTEIN MUNICIPALITY

Fifth Respondent

and

THE RESPONDENTS IN LCC247/2016; LCC248/2016; LCC249/2016; 250/2016 and LCC254/2016

JUDGMENT

POSWA-LEROTHOLI, AJ

Introduction

[1] This judgment pertains to five appeals under case numbers LCC 247/2016; 248/2016; 249/2016; 250/2016 and 254/2016, against judgments and orders granted in the Magistrate’s Court, Paarl on 19 August 2016 which refused applications for the eviction of the Respondents. The appellant, applied in terms of the Extension of Security of Tenure Act No 62 of 1997 (“ESTA”) for their eviction from the farm known as Farm 1731, Drakenstein (“the farm”), owned by it.

[2] The issues before us in these appeals are exactly the same as the issues that were before this Court in the appeals in cases LCC245/2016,

LCC251/2016, LCC246/2016, LCC252/2016, LCC236/2016 and LCC2253/2016. Those appeals too were brought by the appellant in respect of orders in the Paarl Magistrates Court on 26 August 2016, which dismissed applications for the eviction of other respondents on the farm. Those appeals are on all fours with the appeals before us. The judgement of Dodson, AJ in the aforementioned cases is attached hereto. I am in agreement with the findings in the judgment. They apply equally in respect of the Respondents before us. I attach hereto, the said judgment to be read concomitantly with this one.

Factual Background

[3] The factual background to the application for eviction set out at paragraphs 18-20 of Dodson, AJ’s judgment is on all fours with the appeals before us.

Compliance with section 9 (2) of ESTA

[4] It is trite that in order to succeed in an application for eviction there has to be compliance with all the mandatory requirements as set out at section 9(2) of ESTA. I set out below the extent of non-compliance in the appeals before me.

Non- Compliance with section 9(2)(a)

[5] The finding by Dodson AJ that the `terminations of the rights of residence of the respondents in the appeal cases before him were not just and equitable as required by section 8(1) of ESTA, applies equally in respect of the respondents before us. I agree with the reasons for such finding as set out in paragraphs 32-46 of his judgment. I accordingly conclude that the appellant failed to show that the right of residence has been terminated in terms of section 8 as required by section 9(2)(a) of ESTA.

Non- Compliance with section 9(2)(c) of ESTA

[6] The finding by Dodson AJ that section 10(3) is applicable in respect of the respondents in the cases before him applies equally in respect of the respondents before us. I agree with the reasons for such finding as set out in paragraphs 51 to 61 of his judgment. In respect of the respondents before us too, the requirements of section 10(3) are not satisfied.

[7] In those circumstances the appellant failed to show that it satisfied the requirements of section 9(2)(c) of ESTA. As the requirements of section 9(2) are cumulative, failure to comply with sections 9(2)(a) and (c) did not entitle the appellant to an order for eviction.

Personal Circumstances of the Respondents

LCC 248/2016

[8] Prins Plaatjies is the first respondent. He is 51 years old, and lived on the farm with his parents who also lived and worked on the farm. He worked on the farm from 1992 until he was retrenched in 2007. Currently he has no permanent employment. He also resides on the property with his children, Petrolene Thomas, a minor who is 14 years old and Rosaline Thomas a major who is 19 years old who was not cited in these proceedings.

[9] Maria Van Rooy, the second respondent is 67 years old. Her parents lived and worked on the farm. She commenced living with the first respondent on 21 November 2002. She worked on the farm from 2007 to 2009. The appellant very properly abandoned the appeal against the second respondent, on the basis that she was protected from eviction by section 8(4)(a) of ESTA, being a long term occupier who is over 60. Maria van Rooy is married to Prins Plaatjies, the first respondent. Consequently, Prins Plaatjies derives the right to remain on the land by virtue of section 6(2)(d) of ESTA, which inter alia confers on Maria Van Rooy as the occupier, the right to family life. The appellant also properly abandoned the appeal against the first respondent.

Disputes of Fact

[10] There are disputes of fact as to whether the following respondents are unable to work due to ill-health and are thus protected from eviction by section 8(4)(b). First respondent in LCC 249/2016 claims she suffers from arthritis, high blood pressure and asthma, was medically boarded and cannot work. In support of her claim she submitted a South African Social Security Agency (SASSA) card. First respondent in LCC254/2016 claimed she was medically boarded for diabetes and high blood pressure. Second respondent in LCC 247/2016 claimed she suffered from arthritis in the spinal column, and cannot supply effective labour. Nevertheless, her application for medical boarding was unsuccessful. Given my finding that the respondents cannot be evicted due to non-compliance with sections 9(2)(a) and (c), it is not necessary for me to consider these disputes of fact.

[11] In view of all of the above the appeals cannot succeed.

[12] I grant the following order:

(1) The appeals in case numbers LCC 247/2016; LCC 248/2016; LCC 249/2016; LCC 250/2016; and LCC 254/2016 are dismissed.

(2) Each party shall pay its or his/her own costs in each of the appeals.

___________________________________

S POSWA-LEROTHOLI

Acting Judge

Land Claims Court

I agree and it is so ordered.

Y S MEER

Acting Judge President