Barnard v September and Others (LCC71R/2016) [2017] ZALCC 16 (7 March 2017)

Barnard v September and Others (LCC71R/2016) [2017] ZALCC 16 (7 March 2017)

The Land Claims Court held that the magistrate erred in finding that ESTA did not apply and that PIE governed the eviction application. ESTA applies to occupiers on agricultural land, even where a lease agreement exists, and PIE explicitly excludes such occupiers. The respondents' right of residence derived from longstanding consent and was not solely based on employment or the lease. The lease agreement constituted an impermissible waiver of ESTA rights and was unfair, as it bypassed the just and equitable termination requirements of section 8(1). The appellant failed to provide the respondents an opportunity to make representations before terminating their right of residence, and...

Citation
[2017] ZALCC 16
Parties
Appellant: Charles Barnard; Respondent: Nora September; Respondent: Norman September; Respondent: William September
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
7 March 2017
Case Number
LCC71R/2016
Procedural Posture
Civil Appeal / Appeal From Robertson Magistrate’s Court Judgment Refusing Eviction Application
Outcome
Appeal dismissed; eviction application refused.
Judges
Y S Meer, Poswa-Lerotholi
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Just and Equitable Termination, Comparative Hardship, Waiver of Rights
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Proceedings Just and Equitable Termination Comparative Hardship Waiver of Rights

Case Brief

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Parties

Charles Barnard

Appellant

Nora September

Respondent

Norman September

Respondent

William September

Respondent

Procedural Posture

Civil Appeal / Appeal From Robertson Magistrate’s Court Judgment Refusing Eviction Application

Legal Issues

  1. 1 Whether the Extension of Security of Tenure Act (ESTA) or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) applies to the eviction application.
  2. 2 Whether the termination of the respondents' right of residence was just and equitable under section 8(1) of ESTA.
  3. 3 Whether the requirements of section 9(2) of ESTA for eviction were satisfied.

Ratio Decidendi

The Land Claims Court held that the magistrate erred in finding that ESTA did not apply and that PIE governed the eviction application. ESTA applies to occupiers on agricultural land, even where a lease agreement exists, and PIE explicitly excludes such occupiers. The respondents' right of residence derived from longstanding consent and was not solely based on employment or the lease. The lease agreement constituted an impermissible waiver of ESTA rights and was unfair, as it bypassed the just and equitable termination requirements of section 8(1). The appellant failed to provide the respondents an opportunity to make representations before terminating their right of residence, and...

Court Disposition

Appeal dismissed; eviction application refused.

Orders

  • The appeal is dismissed.
  • The order of the court a quo is set aside and substituted with: 'The application is dismissed.'