Ashanti Wine and Country Estate (Pty) Limited v Smith and Others (LCC245/2016, LCC251/2016, LCC246/2016, LCC252/2016, LCC236/2016, LCC253/2016) [2017] ZALCC 8; [2017] 3 All SA 709 (LCC) (28 February 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

APPEAL CASE NOS: LCC245/2016

LCC251/2016

LCC246/2016

LCC252/2016

LCC236/2016

LCC253/2016

DATE: 28/2/17

In the six appeals between -

ASHANTI WINE & COUNTRY ESTATE (PTY) LIMITED Appellant

and the respondents in LCC245/2016, being -

SOFIA (SOFIE) SMITH First Respondent

JACOB FORTUIN Second Respondent

JACOBUS JOHANNES SMITH Third Respondent

JEROME GERSHWIN SMITH

Fourth Respondent

DRAKENSTEIN MUNICIPALITY Fifth Respondent

and

THE RESPONDENTS IN LCC251/2016; LCC246/2016; LCC252/2016; LCC236/2016 and LCC253/2016

JUDGMENT

DODSON, AJ

Introduction

[1] This judgment deals with six appeals from the Magistrate's Court, Paarl.

The appeals emanate from six judgments of the magistrate dismissing the appellant's applications under the Extension of Security of Tenure Act No. 62 of 1997 ("ESTA") for the eviction of the respondents from its property.

[2] Apart from the particular circumstances of the various respondents in the six appeals, the facts and the legal issues raised by the appeals are identical in each case.

[3] Indeed, save where the respondents are described and their particular circumstances dealt with in the founding affidavits, the founding affidavits are in all other respects identical. The same applies to the answering affidavits, the replying affidavits and the magistrate's judgment.

Factual background

[4] The appellant is the owner of the property Remaining Extent of Farm No.

[...] in the Drakenstein Municipality, Western Cape ("the property"). The appellant purchased the property at a public auction during April 2010 and transfer was registered in its name during July 2010. The property is some 42 hectares in extent. Previously it formed part of a larger farm of some 162 hectares in extent. That farm was subdivided into a number of portions, which were then sold off. The property was the last of the portions to be sold.

[5] All of the former employees of the previous owner of the larger farm, Nederburg, are housed in workers' cottages on the property. It is the only one of the subdivided portions that has such accommodation on it. There are some 20 families living there, made up of more than 100 adults and children. Many of the respondents have lived on the property for their entire lives.

[6] Amongst each group of respondents in the six appeals, Nederburg previously employed one or more of them. Nederburg apparently ceased its farming activities on the larger farm during 2006 and, pursuant to that, terminated the employment of all the employees working on the farm. It is not in dispute that Nederburg followed the procedures required under the Labour Relations Act[1] ("LRA") in terminating their employment. No disputes were referred to the Commission for Conciliation, Mediation and

Arbitration ("CCMA"). It is admitted by the respondents employed by the previous owner, that their rights to occupy the

workers' cottages arose solely from their employment.

[7] The appellant alleges that the previous owner also terminated all the respondents' rights of residence of the property. The respondents dispute this. What is not in dispute is that an amount of R80 000 was offered by the previous owner to each of the 20 households on the property to support their relocation. This amount was, however, not accepted by them on account of the substantially greater expense of acquiring alternative accommodation.

[8] The appellant asserts that after it purchased the property, it sent fresh notices of termination of the right of residence to the various respondents. The respondents were allegedly given until 30 October 2010 to vacate the workers' cottages and leave the farm. No copy of any written notice is attached to the founding affidavit and the respondents deny that any such notice was given.

[9] The appellant also asserts that it terminated the respondents' rights of residence orally. The supporting affidavit of the appellant's labour consultant, Mr Andre Bloem, includes the following averments:

"4. Gedurende Augustus 2010, het ek verskeie gesprekke gehad met die kommittee wat al die okkupeerders op die plaas en spesifiek die broodwinners en gesinshoofde verteenwoordig.

5. Tydens hierdie vergadering, het ek aan al die okkupeerders bevestig dat hulle verblyfreg, in soven-e dit moontlik nog kon bestaan, in fig van die feit dat dit reeds deur die vorige eienaar van die grand beeindig is, weereens deur die Applikant beeindig word. Ek het ook die okkupeerders meegedeel dat hulle die plaas moet verlaat teen 30 Oktober 2010, wat op daardie tydstip bykans twee 'n maande (sic) kennis periode was.”[2]

[10] On 4 August 2010, the appellant addressed a letter to the heads of the various households offering on behalf of the appellant payment of R20 000 to each household provided that the workers' cottages were vacated by 30 October 2010. The letter also required that in the intervening period, from 1 August 2010, an amount of R750 per month be paid as a contribution towards sewerage, water and electricity per household. The respondents admit the various discussions referred to in the affidavit of Mr Bloem as well as the offer of R20 000 but deny that he terminated their rights of occupation or gave them notice to vacate.

[11] As far as the demand for payment of R750 per month is concerned, the respondents complained that by declining to recommence farming operations, the appellant was preventing the respondents from earning a living from which they could pay any such contribution.

[12] The appellant seeks to justify its alleged termination of the right of residence and the eviction of the respondents on the following grounds-

12.1 given the small area of the property, it is no longer able to operate the farm on a sustainable basis and to provide any employment to any of the respondents;

12.2 this will be the position on an on-going basis;

12.3 there is no adequate sewerage system for the workers' cottages - the system previously installed does not cope with the volume so that sewerage flows into the dam which is also the source of drinking water for the respondents;

12.4 the appellant has had to arrange for a private contractor to empty the sewerage tank at a monthly cost of some R27 000;

12.5 the appellant inherited an unpaid electricity bill from the previous owners with the result that the electricity supply to the property was disconnected and the appellant is not in a position to afford the cost of repaying the previous owner's debt and having the electricity supply reconnected;

12.6 without an electricity supply, it is not possible to pump drinking water for the respondents; and

12.7 a rumpus allegedly caused by some of the respondents under the influence of alcohol caused the daughter of the deponent to the founding affidavit to close down a restaurant which she was previously operating on the property.

[13] These contentions on the part of the appellant are mostly strongly disputed by the respondents. They deny that sewerage is overflowing into the dam. This is evidenced, they say, by appellant's holding of swimming competitions at the dam. They aver that the municipality has offered to provide the sewerage removal service at a much lower price. They contend that the recommencement of farming operations is viable.

[14] In justifying its conduct towards the respondents, the appellant put up evidence of extensive steps taken by it to engage the municipality with a view to finding a permanent solution to the problem of the workers' on-going occupation of the cottages. These included a proposal whereby the appellant would build new housing units for the respondents on a different section of the property, as well as a new sewerage system, and the respondents would be expected to pay occupational rent in return. Seemingly, however, the municipality had objections to all the proposals put up by the appellant.

The decision of the magistrate

[15] The applications for eviction were launched in December 2010. The replying affidavit was filed at the end of January 2013. The matter only came before the magistrate in the course of 2016, with judgment having been handed down on 18 August 2016. The reasons for the delays are not clear.

[16] When the matter was argued, application was made by the appellant to lead the oral evidence of Mr Bloem to deal with the question whether or not he had indeed terminated the respondents' rights of residence at the meeting in August 2010 and given notice to vacate. The magistrate refused the application.

[17] The magistrate also dismissed the eviction applications. His reasons were essentially identical in each case. They were as follows:

17.1 the eviction applications were not properly authorised;

17.2 the appellant failed adequately to prove its ownership of the property;

17.3 Mr Bloem lacked authority to give notice of termination and the persons to whom he addressed the notice lacked authority to receive it on behalf of all the respondents;

17.4 the notice of termination of the right of residence was defective;

17.5 there was no indication of where the respondents were to go in the event that eviction was ordered.

Legal background

[18] In De Kock v Juggels & Another,[3] this court held that:

“A person who seeks the eviction of an occupier under ... ESTA must make all the necessary averments and adduce the necessary evidence to make out a case in relation to every provision to which the court must apply its mind in deciding whether an eviction order is justified.”

[19] The requirements before a court may order the eviction of an occupier under the Extension of Security of Tenure Act, No. 62 of 1997 ("ESTA") are collected in section 9(2) of that Act. Section 9(2) provides 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, for information purposes,

not Jess 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."

[20] In assessing the correctness or otherwise of the magistrate's dismissal of the application for eviction, one must ask whether the appellant complied with the requirements of section 9(2)(a) to (d). I deal with each of the requirements in turn.

Termination of the right of residence

[21] 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.

[22] A preliminary question in relation to section 8 is whether section 8(2) and (3) apply here. As pointed out above, those respondents who had been employed by the previous owner conceded that their rights of residence had arisen solely from their employment by Nederburg, that the procedures required by the LRA had been followed and that no disputes as to whether any of the respondents employment had been terminated in accordance with the provisions of the LRA had been referred to the CCMA.

[23] However, Nederburg's termination process took place in 2006. The eviction proceedings were launched in 2010, after the previous owner had sold the property without taking any further steps to evict the respondents, save for the hearsay allegation that Nederburg had terminated the respondents' right of residence. Appellant's attorney conceded that this allegation could not be relied on. Even if Nederburg had terminated the right of residence, the passage of four years without it having taken any further steps places the matter on a different footing. In this regard section 3 of ESTA includes the following relevant subsections:

"(4) For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved.

(5) For the purposes of civil proceedings in terms of this Act, a person who 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."

[24] The appellant put up no evidence to rebut the operation of these presumptions and deeming provisions after 2006. 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 Nederburg. In these circumstances, it must be accepted that the right of residence of the respondents now derives, not from their former employment contracts, but rather from the consent that must be presumed from the combined operation of subsections

(4) and (5) of section 3 in respect of the period from 2006 to 2010.

[25] In those circumstances, subsections (2) and (3) of section 8 did not apply and a distinct termination of the right of residence that came into being during the period 2006 to 2010 was required to satisfy the requirements of sections 3(1), 8 and 9(2)(a) of ESTA.[4]

[26] For that termination, the appellant relied squarely on the above quoted evidence of Mr Bloem, its labour consultant. In this regard, the magistrate found that the notice of termination relied on by the appellant was deficient because-

26.1 no such termination was annexed to the appellant's founding or supporting affidavits;

26.2 it was not proven who the termination was communicated to;

26.3 it was not proven on what basis the persons to whom Mr Bloem allegedly communicated the termination of the right of residence represented

all of the respondents;

26.4 the termination of the right of residence was premature in that the resolutions to bring eviction proceedings were taken three months after the notice of termination was allegedly given.

[27] The latter criticism by the magistrate is without merit. There is no need for a resolution to bring eviction proceedings to precede the termination of the right of residence.

[28] Further, this court agrees with the appellant that ESTA does not require written notice of termination and accordingly the failure to attach written notice of termination to the application was not in itself a defect, provided oral termination was properly proven.[5]

[29] Further, it is significant that in response to the above-quoted paragraph 4 of the affidavit of Mr Bloem,[6] the respondents in their answering affidavits said "Ek erken dat daar gesprekke was" and nothing more. This must be taken as an admission that discussions were held with a committee and that the committee was

representative of all the occupiers on the farm. The magistrate was wrong on this score too.

[30] The more difficult question is what to make of the respondents' denial that Bloem, acting on behalf of the appellant, terminated their rights of residence and gave notice to vacate at the meeting in August 2010. The appellant contends that any deficiency in the papers in this regard is offset by the fact that the appellant's application to lead the oral evidence of Mr Bloem on these issues was refused by the magistrate. It was also argued that the respondents' denial of the assertions in paragraph 5 of Mr Bloem's affidavit was a bare one.

[31] The main difficulty with these contentions is that the appellant's letter of 4 August 2010, which seems to have followed the meeting, suggests that at that time the appellant was attempting to secure the consensual vacation of the property by the respondents. The threat of unilateral action was mentioned only as something that might happen in the future if consensus could not be achieved. Nevertheless, on account of the magistrate's refusal to refer the matter to oral evidence, I will assume in favour of the appellant that Mr Bloem orally terminated the respondents' right of residence.

[32] The question that then arises is whether that termination was just and equitable as required by section 8(1). This requires me to consider "a// relevant factors" and, in particular, the specific criteria in subparagraphs (a) to (e). The nature of the enquiry was described by the Constitutional Court in Snyders[7] as follows:

“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)."

[33] As regards subparagraph (a) of section 8(1), the reasons given by the appellant for seeking the respondents' eviction are not based on "any agreement, provision of an agreement, or provision of law" as envisaged in that subparagraph. As regards subparagraph (b), there has not been any conduct on the part of either the appellant or the respondents that justifies particular consideration. The rumpus that took place in the vicinity of the restaurant seems to have been a once-off incident and the perpetrators were not identified. Generally speaking, one has understanding for the positions and interests on both sides of the dispute.

[34] As regards paragraph (c), not terminating the respondents' rights of residence creates hardship for the appellant. Its ability to develop the property to the best of its potential is affected. The presence of the respondents has significant cost implications, which he is required to bear without anything in return. This is to some extent countered by the fact that the appellant knew or ought reasonably to have known what the position was in relation to the respondents, when he acquired the property.

[35] On the other hand, terminating the respondents' rights of residence meant hardships for them on a significant scale. The municipality appears to have adopted an unhelpful approach when the appellant raised various options with it for finding a long-term housing solution for the occupiers. They face a real risk of finding themselves without shelter if they are evicted. The fact that they would be a large group of poor people looking for accommodation at the same time in a rural area makes it that much more difficult.

[36] 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. It is not a situation where the workers' cottages are required to accommodate other employees. There is no immediate, pressing need for the land or the cottages on it. Albeit that they were made in the context of a different statute, [8] the following remarks of Wallis JA in City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others[9] apply to the circumstances of this matter:

" 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."

[37] As far as the on-going sewerage removal costs are concerned, there seems to me to be merit in the respondents' contention that a cheaper option should be available from the municipality. Section 3 of the Water Services Act No. 108 of 1997 ("the WSA") provides as follows:

"(1) Everyone has a right of access to basic water supply and basic sanitation.

(2) Every water services institution must take reasonable measures to realise these rights.

(3) Every water services authority must, in its water services development plan, provide for measures to realise these rights.

(4) The rights mentioned in this section are subject to the limitations contained in this Act."

[38] A municipality falls within the definition of both "water services institution" and "water services authority". This provision therefore imposes obligations on the municipality in relation to the provision of basic sanitation.

[39] The definition of "basic sanitation" in section 1 of that Act is as follows:

"'basic sanitation' means the prescribed minimum standard of services necessary for the safe, hygienic and adequate collection, removal, disposal or purification of human excreta, domestic waste-water and sewage from households, including informal households"

[40] The minimum standard for basic sanitation has been prescribed as follows:

"The minimum standard for basic sanitation services is -

(a) …

(b) a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests.”[10]

[41] Accordingly there is scope for the appellant to reduce its costs burden by insisting on the municipality complying with its statutory obligations in relation to the provision of basic sanitation.

[42] Subparagraph (d) of section 8(1) does not seem to apply insofar as it contemplates an agreement from which the right of residence arises, that expires after a fixed period of time.

[43] As regards subparagraph (e), the Constitutional Court in Snyders held as follows:

"ESTA requires the termination of the right of residence to a/so 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.n

[44] The appellant contends that the discussions held by Bloem with the committee representing the occupiers, satisfied the requirement of a fair procedure. Bloem mentions discussions during August 2010 (although it is not clear from paragraphs 4 and 5 of his affidavit whether this was a single discussion or more than one) and during October and November 2010.

[45] Given the particular hardships for the respondents that would flow from an eviction, to which I have referred earlier, this was clearly a case where there ought to have been "an effective opportunity to make representations before the decision was made to terminate the right of residence" as envisaged in section 8(1)(e). Bloem's averments do not provide nearly enough information for this court to be in a position to assess whether there was an effective opportunity to make representations in the course of the discussions referred to. Moreover, it is clear from his affidavit, if it is assumed to be correct, that the decision to terminate the right of residence was taken during or before August 2010. Section 8(1)(e) envisages an opportunity to make representations before the decision is taken to terminate the right of residence. As a consequence, any discussions that took place in October or November 2010 do not avail the appellant. Accordingly, this court is not satisfied that the appellant has proven that a fair procedure was followed in terminating the right of residence.

[46] In the circumstances, the appellant failed to show that the termination of the respondents' rights of residence was just and equitable as required by section 8.

[47] Therefore the appellant failed to show that "the occupier's right of residence has been terminated in terms of section B" as required by section 9(2)(a). On this basis alone, the appellant failed to make out a case for eviction. However, for the sake of completeness, I consider the appellant's compliance or otherwise with the remaining subparagraphs of section 9(2).

[48] I then come back to the question whether, in respect of certain respondents, they were further protected from eviction by the provisions of section 8(4) of ESTA

Failure to vacate within the notice period

[49] In terms of section 9(2)(b) the applicant for eviction must prove that the occupier has not vacated the land within the period of notice given by the owner or person in charge. For there to be compliance with this requirement, there must be proof of notice to vacate the property.

[50] Here too, the appellant relies on the verbal notice to vacate allegedly given by Bloem. For the same reasons as those given in relation to the notice to terminate the rights of residence, I will assume in favour of the appellant that this requirement is satisfied. In doing so, I leave open the question whether verbal notice to vacate suffices.

Compliance with section 10 or 11 of ESTA

[51] Section 9(2)(c) requires that "the conditions for an order for eviction in terms of section 10 or 11 have been complied with".

[52] In this case it was common cause that the more stringent requirements of section 1o had to be satisfied.

[53] Broadly speaking there are, for present purposes, four bases upon which an order for eviction of an occupier might be justified under section 10 of ESTA.

[54] The first is where the occupier has breached -

54.1 section 6(3) (identifying forms of proscribed conduct on the part of occupiers); or

54.2 an agreement between an occupier and owner; or

54.3 the relationship between the occupier and the owner.

These are dealt with in section 10(1)(a), (b) and (c).

[55] The second basis is where the occupier is or was an employee and his right of residence arose solely from the employment contract and the occupier has voluntarily resigned. This is dealt with in section 10(1)(d).

[56] The third basis is where there has been no breach or resignation but the court is satisfied that suitable alternative accommodation is available to the occupier. This is dealt with in section 10(2).

[57] The fourth basis is where suitable alternative accommodation has not become available within nine months of the termination of the right of residence. but 'the efficient carrying on of any operation of the owner or person in charge will be seriously prejudiced unless the dwelling is available for occupation by another person employed or to be employed by the owner or the person in charge". There are also other criteria pertaining to this fourth basis, which are not relevant for present purposes. This is dealt with in section 10(3).

[58] In this matter, no reliance is placed on any breach as contemplated in section 10(1)(a) to (c). Nor have there been any voluntary resignations that might justify eviction, as contemplated in section 10(1)(d).

[59] As far as section 10(2) is concerned, the appellant alleged, somewhat vaguely, that housing was available in residential areas in Paarl and Wellington for persons with funds and because some of the respondents have employment elsewhere, this housing was available to the respondents. It was also suggested that a subsidy was available from the Department of Rural Development and Land Reform. These averments were strenuously and convincingly disputed by the respondents. In reply the appellant relied on the proposals, referred to under the factual background above, put to the municipality to carry out a residential development for the respondents. However as pointed out, the municipality has, to date, ruled out any such development. In those circumstances, no case is made out for the availability of suitable alternative accommodation. Accordingly, the requirements of section 10(2) are not satisfied.

[60] As far as the fourth basis is concerned, no case has been made out to suggest that any operation of the appellant will be seriously prejudiced unless the workers' cottages are made available for occupation by other employees or persons to be employed. This much was conceded

by the attorney for the appellant during argument. Accordingly, the requirements of section 10(3) are also not satisfied.

[61] In those circumstances, the appellant failed also to show that it satisfied the requirements of section 9(2)(c) of ESTA

[62] The appellant did satisfy the requirements of section 9(2)(d) and is assumed to satisfy the requirements of section 9(2)(b). However this does not avail it. The requirements of section 9(2) are cumulative. Failure to comply with any one of subparagraphs (a), (b), (c) or (d) of section 9(2) is fatal to an application for eviction. Compliance with section 9(2)(a) and (c) was not proven.

Protection afforded by section 8(4)

[63] Section 8(4) provides as follows:

"(4) The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and -

(a) has reached the age of 60 years; or

(b) is an employee or former employee of the owner or person in charge, and as a result of ill health, injury or disability is unable to supply labour to the owner or person in charge, may not be terminated unless that occupier has committed a breach contemplated in section 10(1)(a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach."

[64] It is not strictly necessary, in order to decide the appeal, to enquire into the further question whether any of the respondents enjoy the protection of section 8(4). However, it will be of assistance to the parties in further attempts to find solutions to the current problems to know the status of the persons concerned.

[65] In appeal no. LCC245/2016, the first respondent, Sophia Smith, is deaf and unable to speak. On this basis and on the basis that she suffers high blood pressure and receives a disability grant, it is contended that she satisfies the requirements of section 8(4)(b). The difficulty with the respondents' argument in this appeal is that she already had this disability when she worked for the previous owner from 1994 to 2006. Clearly her disability did not prevent her from being able to supply labour to the owner then. Insufficient detail is given as to why the position is now different. There is no information as to why her blood pressure is not capable of control through medication. It may well be that if the issue of her disability is properly explored in subsequent proceedings, the first respondent will be able to prove that she qualifies for the protection against eviction conferred by section 8(4) and is entitled in terms of her right to family life in section 6(2)(d) to have her children, the third and fourth respondents, live there with her.[11] However, the court is not in a position to make such a finding now.

[66] In appeal no. LCC252/2016, the second respondent, Magdalena Williams, is the wife of the first respondent, Phillip Williams. Magdalena is 50 years old (or was at the time that the opposing affidavits were filed - she is now 57). She is alleged to be chronically ill, unable to work and to have received a disability grant from September 2010 on account of medical incapacity. She too used to work on the farm. It is implicit in the averments in the answering affidavit that she has lived on the farm all her life. Although her averments regarding her disability are somewhat thin, they are barely denied by the appellant in reply, and therefore stand to be accepted. She accordingly qualifies for protection against eviction in terms of section 8(4)(b).

[67] Living with her are her husband, the first respondent, who will reach the age of 60 in 2018, the third respondent, Lidene Pietersen, her adopted daughter, who is disabled, and a minor grandson, C. P.. On an application of the balancing exercise required by the Constitutional Court in Hattingh,[12] this court is satisfied that the second respondent's right to family life would entitle the first and third respondents to live with her, along with her grandson, C. P..

[68] In appeal no. LCC253/2016, the first respondent, Lena Arends, whilst not having reached the age of 60 when she deposed to her answering affidavit, had reached the age of 62 by the time the magistrate handed down judgment in 2016. She has lived on the farm for 32 years. She worked for the previous owner from 1981 to 2007. She is entitled to the protection afforded by section 8(4)(a). The second respondent,

Charles Fortuin, is her 34 year-old disabled son. He worked on the farm from 1997 until 2000, when he had an accident on duty resulting

in a serious head injury. He is mentally disabled as a result and unable to work. He is entitled to the protection afforded by section 8(4)(b).

[69] Also living in the house with Lena Arends and Charles Fortuin is the fourth respondent, Jacob Fortuin, together with his partner, Fransina Smit, her three adult children and two grandchildren. Although Jacob is at the present time 67 years old, he does not qualify in terms of section 8(4) as he has only lived on the property since 2011. It is open to question whether the right to family life of the first and second respondents allows Jacob Fortuin and his family to reside on the property. Because no case has in any event been made out for their eviction for the reasons applicable to all the respondents, it is not necessary for this court to decide the question.

Conclusion

[70] Neither sub-paragraphs (a) nor (c) of section 9(2) having been satisfied, the magistrate was correct in dismissing the application for eviction.

[71] Moreover, the particular respondents and their family members identified above enjoy the protection against eviction afforded by section 8(4) of ESTA, either directly or as family members of someone who enjoys such protection.

[72] It is so that the magistrate's reasoning was flawed in several respects. But the order dismissing the application for eviction was correctly made.

[73] It was argued by the respondents that the appellant should be ordered to pay the respondents' costs (save in respect of counsel's services which were provided pro bono). However the court is inclined to follow its usual approach in matters of this nature in not awarding costs in favour of the successful party and allowing each party to bear its own costs.

[74] Finally, the court encourages the parties, along with the municipality and the Department of Rural Development and Land Reform, actively to continue to seek a long-term solution to the problem of the respondents' accommodation as well as the problem relating to sanitation. Section 4(1) of ESTA obliges ("shall" is the word used) the Minister of Rural Development and Land Reform to grant subsidies -

"(a) to facilitate the planning and implementation of on-site and off-site developments;

(b) to enable occupiers, former occupiers and other persons who need long-term security of tenure to acquire land or rights in land; and

(c) for the development of land occupied or to be occupied in terms of on-site or off-site developments."

[75] An "on-site development" is defined in section 1 of ESTA as "a development which provides the occupants thereof with an independent tenure right on land on which they reside or previously resided". From the papers it appears that the appellant, commendably, is quite willing to make a portion of the property available for this purpose. Effort, co-ordination and a "can do" attitude on the part of the authorities will likely provide an outcome in everyone's best interests.

[76] The court accordingly makes the following order:

(1) The appeals in the case numbers LCC245/2016, LCC251/2016, LCC246/2016, LCC252/2016, LCC236/2016 and LCC253/2016 are dismissed.

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

_____________

AC DODSONAJ

Acting Judge of the Land Claims Court I agree,

PM CANCA AJ

Acting Judge of the Land Claims Court

Heard on: 31 January 2017

Judgment delivered on: 28 February 2017

Appearances:

Attorney for the appellant: FH Cronje

Cronje's Incorporated Attorneys

11 Hoheizen Crescent, Bellville

Counsel for the respondents: AA Brink

Instructed by:

Legal Aid Clinic

University of Stellenbosch

44 Banhoek Way

Stellenbosch

[1] Labour Relations Act No. 66 of 1995.

[2] My translation is as follows: 4. During August 2010, I had various discussions with the committee that represented all the occupiers on the farm and specifically the breadwinners and heads of the families. 5. At the time of this meeting (sic), I confirmed to all of the occupiers that their right of residence, to the extent that it might still exist, in light of the fact that it was already terminated by the previous owner of the property, was again terminated by the Applicant. I also informed the occupiers that they must leave the farm by 30 October 2010, which at that time was almost two months notice."

[2] My translation is as follows:

4. During August 2010, I had various discussions with the committee that represented all the occupiers on the farm and specifically the breadwinners and heads of the families.

5. At the time of this meeting (sic), I confirmed to all of the occupiers that their right of residence, to the extent that it might still exist, in light of the fact that it was already terminated by the previous owner of the property, was again terminated by the Applicant. I also informed the occupiers that they must leave the farm by 30 October 2010, which at that time was almost two months notice."

[3] De Kock v Juggels & Another 1999 (4) SA 43 (LCC) at para 13.

[4] Section 3(1) of ESTA provides as follows: "Consent to an occupier to reside on or use land shall only be terminated in accordance with the provisions of section 8."

[4] Section 3(1) of ESTA provides as follows:

"Consent to an occupier to reside on or use land shall only be terminated in accordance with the provisions of section 8."

[5] That oral termination of the right of residence is permissible appears from Snyders and Others v De Jager and Others (Appeal) (CCT186/15) [2016] ZACC 55 (21 December2016) at para 70 where the court was of the view that verbal notice of termination to an illiterate occupier was more appropriate than handing him a written notice of termination.

[6] I repeat my translation of the relevant part of Bloem's affidavit for ease of reference: “4. During August 2010, I had various discussions with the committee that represented all the occupiers on the farm and specifically the breadwinners and heads of the families. 5. At the time of this meeting (sic), I confirmed to all of the occupiers that their right of residence, to the extent that it might still exist, in light of the fact that it was already terminated by the previous owner of the property, was again terminated by the Applicant. I also informed the occupiers that they must leave the farm by 30 October 2010, which at that time was almost two months notice."

[6] I repeat my translation of the relevant part of Bloem's affidavit for ease of reference:

“4. During August 2010, I had various discussions with the committee that represented all the occupiers on the farm and specifically the breadwinners and heads of the families.

5. At the time of this meeting (sic), I confirmed to all of the occupiers that their right of residence, to the extent that it might still exist, in light of the fact that it was already terminated by the previous owner of the property, was again terminated by the Applicant. I also informed the occupiers that they must leave the farm by 30 October 2010, which at that time was almost two months notice."

[7] Above at para 56.

[8] The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998.

[9] City of Johannesburg v Changing Tides 74 (Ply) Ltd 2012 (6) SA 294 (SCA) at footnote 23.

[10] Regulations relating to Compulsory National Standards and Measures to Conserve Water Government Notice R509 contained in Government Gazette No. 22355 dated 8 June 2001.

[11] See in this regard Hattingh and Others v Juta (CCT 50/12) [2013] ZACC 5; 2013 (3) SA 275 (CC); 2013 (5) BCLR 509 (CC) (14 March 2013).

[12] See above.