James Robertson Smit NO of JR Family Trust and Others v Swart and Others (LCC02R/2024) [2024] ZALCC 30 (6 September 2024)

IN THE LAND COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 02R/2024

MAGISTRATE CASE NO: 876/2019

Before the Honourable Flatela J

In Chambers

06 September 2024

(1) REPORTABLE: YES/NO

(2) OF INTREST TO OTHER JUDGES: YES/NO

(3) REVISED: YES/NO

In the matter between:

JAMES ROBERTSON SMIT NO OF THE JR FAMILY TRUST First Applicant KEURVLEI BOEDERY BK Second Applicant JAMES ROBERTSON SMIT Third Applicant and ASHWELL CRAIG SWART First Respondent FRANSIEN ORANGE Second Respondent ALL UNKNOWN PERSONS RESIDING WITH OR UNDER THE 1st TO 2nd RESPONDENTS ON THE FARM KNOWN AS KEURVLEI FARM BARRYDALE Third Respondent SWELLENDAM MUNICIPALITY Fourth Respondent DEPARTMENT OF AGRICULTURE LAND REFORM AND RURAL DEVELOPMENT Fifth Respondent

ORDER

1. The order of the Magistrate Court, Overberg is set aside in its entirety and is substituted by the following order;

a. The First to Third Respondents are evicted from the Farm known as “Die Restant van gedeelte 1 van die paas weltervreden nr 67, afdeling Swellendam, Provinsie Wes-Kaap.

b. The First to Third Respondent are ordered to vacate the Farm on or before 31 December 2024;

c. The Swellendam Municipality is ordered to provide the First to the Third Respondents with temporary emergency accommodation on or

before 30 November 2024.

d. There is no order as to costs.

JUDGMENT

FLATELA J

Introduction

[1] This is an automatic review emanating from the Magistrate Court, Swellendam, Western Cape in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) [1]. The Magistrate dismissed an eviction application instituted against the First to the Third Respondents from the Farm known as “Die Restant van gedeelte 1 van die paas weltervreden nr 67, afdeling Swellendam, Provinsie Wes-Kaap (The Farm).

[2] The property is owned by JR Smit Family Trust (the Trust), a trust duly registered with the Master of the High Court, Western Cape Division. The Trust is represented by James Robinson Smit (The First and the Third Applicant) as its nominee officio and a person in charge of the Farm. The Trust leased the property to Keurvlei Boedery BK (the Second Applicant), a close corporation registered in terms of the laws of South Africa which conducts the farming business in the farm.

[3] The First Respondent is Ashwell Craig Swart a major male aged 34, former employee on the farm. The Second Respondent is Fransien Orange aged 46, a major female and former employee in the Farm and the First Respondent’s partner. The Third Respondents are the First and Second Respondents’ minor children. The respondents reside in a farm labourers house in the property with their minor children.

[4] The First and Second Respondents were former employees of the Applicant. They are a couple, and they have two minor children with whom they are residing with. In 2019, the First Respondent absconded from his employment and took occupation in the neighbouring farm, he is still working in the neighbouring farm since 2019. The Second Respondent was dismissed from her employment, and she entered into settlement agreement with the Applicant after she referred the matter to the CCMA. The First and Second Respondent were both dismissed from their employment 2019. None of the Respondents are working for the Applicants.

[5] The Magistrate held that no due process was followed to cancel the employment agreement of the First Respondent, therefore the application to evict the Respondents is fatally flawed and, on that basis, alone, the application was dismissed.

The Respondents’ Right of Residence

[6] The First and Second Respondents were employed on the farm from 02 June 2008 and on 01 March 2005 until their dismissal in 2019 respectively. Before the Second Respondent was employed on the farm, she lived with her parents who were employed on the farm until her parents retired and moved to their own home in Barrydale in 2007.

[7] The Second Respondent was employed on the farm from 1 March 2005 and 17 November 2014.The Second Respondent was then allocated a house as a result of her employment on the farm. The First Respondent moved in with the Second Respondent in 2007. After the First Respondent’s employment, a housing contract was entered into between the First and the Second Respondent on 25 November 2014 to regulate the respondents’ housing on the farm. The housing contract stipulated that the First and Second Respondents’ right of residence is derived exclusively from his contract of service with the Second Applicant.

Respondents’ termination of employment

[8] In January 2019, the First Respondent absconded from his work and the Applicant later found that he had obtained employment from a neighbouring farm. The First Respondent was dismissed following his abscondment. In their answering affidavit, the First Respondent admitted to deserting his job and he averred that he absconded because he was not happy at work because he was subjected to many disciplinary proceedings due to his outspokenness. It is common cause that the First Respondent did not have good employment relationship with the Applicants. He was issued with various warnings emanating from misconduct during his employment. He has not challenged his dismissal in terms of section 8(2) of ESTA.

[9] The Second Respondent’s relationship with the Applicants came to an end on 22 January 2019 when she was summarily dismissed following a disciplinary hearing after she was found guilty of gross dishonesty. The Second Respondent was caught selling the produce to others for her own benefit. She admitted to the charge. The Second Respondent was dismissed and was also given a notice to vacate. She refused to sign the letters. The Second Respondent referred her dismissal to the CCMA in terms of the Labour Relations Act. The matter was referred to Arbitration and the parties entered into a settlement agreement. The matter was finalised on 3 May 2019. Similarly, the Second Respondent also did not have good working relations at work she received several warnings during her employment for absenteeism from work, misconduct and aggressive behaviour towards her managers and co-workers.

Termination of Right to Residence

[10] On 16 May 2019, the Respondents were served personally with a letter via Sheriff requesting them to make representations as to why their right of occupation should not be terminated. The Respondents did not make any representations, and their right of residence was terminated. The First Respondent conceded that a letter was received from the Applicants’ attorneys but states that the deponent never invited him in person to make representations before he terminated his right of residence. The First Respondent averred that the procedure followed in terminating his right of residence did not comply with the provisions of section 8 of ESTA.

[11] In their answering affidavit, the First Respondent challenged the fairness of the Second Respondent’s dismissals. The First Respondent averred that the Applicants did not follow any legally fair valid procedure in dismissing her. In the case of the Second Respondent, it is averred that although the matter was referred to CCMA, she received no support from her Union’s representative as he did not arrive at the first meeting of the conciliation.

[12] The Applicants contended that the house is required to accommodate their employees who are in dire need of accommodation. At the time when the application was launched there were two permanent employees who needed accommodation namely, Mr Lesley Jumbo and his wife, and a child. Mr Jumbo was residing at a corrugated structure in Barrydale. The second employee Mr Jooste and his wife and a child, are currently living in a small house on the farm. When the application was argued, Mr Jumbo had resigned from the employment, however, the Applicant argued that the house was still needed to accommodate Mr Rabie and his wife and a child. Mr Rabie is permanently employed by the Applicant, but he is residing in the neighbouring farm due to the Applicant’s failure to provide him with accommodation.

[13] The Applicants contended that the First Respondent does not contribute to the growth and the development of their business. The First Respondent works on other farms and for other employers but expect to live rent and obligation free.

[14] Regarding the hardships that the parties will suffer, the Respondents averred that their eviction would lead to homelessness whilst the Applicants have not demonstrated any prejudice, they suffered due to the respondents’ occupation of the house. The First Respondent stated that there are three more empty houses on the farm which have been vacant for 10 years. In reply, the Applicants averred that the houses are used by seasonal workers and are occupied for 7 months in a year.

[15] The Applicants averred that the house that the respondents are occupying is needed for Mr Rabie and his family. Mr Rabie is employed on a permanent basis by the Applicants. He is currently residing on neighbouring farm.

Meaningful Engagement

[16] Meaningful engagement took place on 22 June 2020 between the legal representatives of the Applicants and the Respondents, the officials of the Department and the Swellendam Municipality. It was recorded that the First Respondent’s employer, Mr Nel had a house in Barrydale which was going to be vacant. It was suggested that the First Respondent should move with his family to his employers’ house when it becomes vacant to rent or to buy it.

[17] The First Respondent was advised to apply to the Department for housing funding in terms of which the Department would assist with subsidy towards purchasing the house, however, the Department would subsidies the First Respondent on condition that he secures a mortgage bond to secure the balance of the purchase price. The First Respondent was unsuccessful in obtaining a mortgage bond from a recognised financial institution. The house is no longer available.

[18] The Respondents are in the list of the Municipality.

Report in terms of Section 9(3) of ESTA

[19] Two reports were filed by the officers of the Department to the Magistrate in terms of Section 9(3) of ESTA. The report paid regard to the availability of suitable alternative accommodation to the Respondents, indication on how the constitutional rights of the Respondents may be affected by an eviction order, including the right to education of the child. Undue hardship which an eviction order would cause the respondents and recommendations.

[20] The latest report compiled by Ms Ayanda Jevu, a Project Co-ordinator recommended that a further meaningful engagement should be held between the parties and that an eviction order should not be granted before the engagement took place.

Municipal Report on availability of alternative accommodation

[21] The Court ordered Swellendam Municipality to file a report to address its current position in respect of alternative accommodation as well as providing emergency accommodation that might be made available in terms of section 9(2)(d)(ii).

[22] On 23 August 2023, the Municipality filed its report, it stated that at the time of filing of the report, the Municipality did not have any emergency housing or any rental housing stock available due to the financial constraints. The report also stated that the municipality has applied to Provincial Government for funding to enable the Municipality to provide temporary emergency housing. The Municipality indicated that it has a draft emergency housing policy, which the Respondents were invited to apply and to follow the procedure as set out in the policy in order to be considered. The draft policy was filed.

Issues before the Magistrate Court

[23] The learned magistrate identified the determinable issues as follows;

a. From where does the Respondents’ right of residence emanate from? Section 3(4) or section 3(5) of ESTA;

b. The court must determine whether there was lawful cancellation of employment;

c. Then the court must consider whether there was lawful cancellation of the right of occupation.;

d. Lastly, the court must consider whether the eviction order will be just an equitable in the circumstances.

Discussion

[24] The learned Magistrate found that the First and Second Respondents are occupiers in terms of section 3(5) of ESTA[2] .

Compliance with section 9(2)(a) of ESTA read with section 8 (1) ,8(2) and 8(3) of ESTA

[25] Section 9(1) of ESTA provides that notwithstanding the provisions of any other law, an occupier may only be evicted in terms of an order of court issued under ESTA. Section 9(2) provides:

‘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 Rural Development and Land Reform, for information purposes, 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.’

[26] Regarding compliance with the above mentioned sections, the Applicant contended as follows:

FIRST RESPONDENT

a. The First Respondent did not attend work in January 2019. The Applicants later found out the First Respondents obtained new employment on a neighboring farm in or around January 2019.

b. in or around 2012, the First Respondent was dismissed due to reckless driving on the farm, disrespectful attitude towards managers, and abuse of drugs. A month after the First Respondent was dismissed. He spoke to the Third Applicant and requested that he be reinstated as he promised he would adjust his behavior.

c. During the First Respondent’s employment with the applicants, the following letters were supplied to him, attached as an extra JRS 15.1 to 15.9.

i. On 22 February 2012, a final written warning, after the First Respondent displayed a constant disrespectful attitude towards his managers, as well as ignoring the orders as given to him by his managers. The First Respondent, furthermore, were found to be driving in a reckless manner on the farm and nearly caused an accident between two tractors carrying fruit.; on 22 February 2012, A Notice of Disciplinary hearing taking place on 23 February 2012;

ii. On 23 February 2012, the First Respondent attended a disciplinary hearing where he pleaded guilty to all charges against him. As the First Respondent pleaded charges; all charges, he was summarily dismissed.;

iii. On 5 March 2012 a charge sheet after he again were unable to attend to his duties due to being under the influence of drugs(dagga);

iv. On the 16 November 2017, a notice of Disciplinary hearing taking place on 17 November 2017. The First Respondent was charged with gross dishonesty on 10 November 2017 after he took some mood without permission of the Applicant., as well as after he negligently drove the tractor through the trees causing serious damage. The First Respondent only received an oral warning at the disciplinary hearing;

v. On 5 January 2018, a Verbal warning after he reported to work late;

vi. On 5 January 2018, a final written warning after the First Respondent displayed disrespectful and aggressive behavior towards his managers;

vii. On 30 October 2018, a verbal warning after the First Respondent on several occasions reported to work late;

viii. On 13 November 2018, a written warning after the Respondent left the workplace without permission.

d. In or around January 2019, the First Respondent absconded from work after he did not report for work. The Applicants later learned that the First Respondent obtained another employment imperative.

e. The First Respondent did not refer to his dismissal to the Commission for Conciliation, Mediation and Arbitration in terms of Labour Relations Act.

[27] In their answering affidavit the First Respondent testified as follows:

a. “I deny the allegations contained in this paragraph in as far as it is alleged that I drove recklessly and nearly caused an accident on the farm, was disrespectful towards managers and regularly used drugs. No evidence was ever submitted that I abused drugs. Managers perceived me to be disrespectful because I was not afraid to speak up, dared to voice my opinion on a matter and voice my unhappiness with the dangerous working conditions where I had to spray poisonous toxin in the orchards without any proper personal protective gear. I pleaded guilty at the time of my disciplinary hearing as I was convinced that I would not get a fair hearing and just wanted the matter to be dealt with. I do admit that I questioned my managers and on occasion, but nothing so serious as to warrant my dismissal. Because I was unhappy at work, I took up employment at another employer in the area.

The Fairness of the Procedure Followed by the owner or the person in charge [Section 9(2)(a) read with Section 8 (1)(e).

[28] The Applicant contended that the First and Second Respondent’s dismissal were substantially and procedurally fair. the First Respondent absconded from his work and obtained another employment in Montagu. The Second Respondent referred her dismissal to CCMA.

[29] Replying to this allegation, the First Respondent denied that the Second Respondent’s dismissal was fair in that the Applicants did not follow any legally fair valid procedure and could implement a sanction short of dismissal. The First Respondent denied that he was working in Montagu. The First Respondent averred that not all procedure followed by the Applicants were fair.

[30] The Court rejected the Respondents allegations that the termination of employment of Second Respondent’s was procedurally unfair. It held that the version of the Respondents is clearly untenable.

[31] Regarding the termination of the First Respondent’s employment contract, the court held that it was not cancelled lawfully in that the the applicant failed to inform to the First Respondent that his absenteeism might amount to desertion and that a disciplinary hearing will be held despite the fact that the Applicant knew where the First Respondent lived. The court held that after he was dismissed, the Applicant also failed to inform the First Respondent of his dismissal.

[32] The court also held that the Applicants had further failed to state how many days he was absent before he was considered dismissed. It was only submitted that the first respondent had voluntarily left his employment to which his right of residence was linked. As a result, the Court held that no due process was followed to cancel the employment agreement of the First Respondent, and therefore the application to evict the First Respondent was fatally flawed. The court further held that the First Respondent has a right in terms of section 6(2)(d) to family life, and therefore the Second and Third respondent cannot be evicted.

[33] A question that must be answered by this court is whether the Magistrate had jurisdiction deal with the lawfulness of the termination of employment of the First Respondent. Simply put, whether sections 8(2) or 8(3) are applicable in this matter.

[34] The First Respondents disputed that their rights to residence solely derived from their employment as he also paid rent which was 8%of his salary and that the Second Respondent had a right to reside on the farm as she received the consent from the previous employer. There are no merits in this allegation, it is clear that the Respondent’s right of residence derived solely from their employment.

[35] The First Respondent has not challenged his dismissal after he absconded from work and took employment from the neighbouring farm. In his answering affidavit, the First Respondent took an issue regarding the fairness of his dismissal when he was still employed by the Applicant. It is common cause that after his dismissal he negotiated with the Third Respondent for reinstatement which was granted. Even if it can be accepted that the First Respondent did challenge his dismissal after he took the occupation in the neighbouring farm, the First Respondent did not refer his dismissal to the CCMA, therefore there is no dispute over whether the First Applicant’s employment has been terminated as contemplated in accordance with subsection 2.

[36] Section 8(3) of ESTA provides that “Any disputes 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 determined in accordance with that Act.”

[37] The Magistrate Court had no jurisdiction to determine whether the First Respondent’s employment has been terminated in terms of section (8)(2) of ESTA.

Compliance with section 8, 9 and 11 of ESTA

[38] The Applicants contended that all the requirements of sections 8, 9 and 11 of ESTA were complied with. It is trite that for the Applicants to succeed in evicting an occupier before 4 February 1997, he must show that he has complied with the mandatory requirements of section 9.[3] Section 9 (2) requires that the right of residence must have been terminated in terms of Section 8.

[39] Section 8 requires that the termination of right to residence may be terminated on any lawful grounds provided that such termination is just and equitable having regard to all relevant factors. I deal with those below:

Section 8(1)(a)-The fairness of any agreement, on which the owner or person in charge relies

[40] The Applicant contended that both the employment and housing contracts complied with the provisions of the Basic Conditions of Employment Act[4] and Farmworkers Sectoral Determination. In their answering affidavit, the respondents challenged the fairness of both agreements

and averred that they were not fair as they were not given the opportunity to consider them. The Respondents worked for the Applicants for more than 10 years, but they never challenged the unfairness of contracts. The First Respondent deserted his job and took occupation in the neighboring farm.

[41] The First Respondent’s dismissal from work was as a result of the abscondment. The Second Respondent’s dismissal was referred to the CCMA. The matter was referred for arbitration and the parties settled before the arbitration could be finalised. The Magistrate correctly dismissed this version of the Respondents.

S8(1)(b): The conduct of the parties giving rise to the termination

[42] It is common cause that the Respondents were issued with various verbal and written warnings and disciplinary hearings during their employment with the Applicant. The First Respondent absconded from his employment. He took employment from the neighbouring farm. He did not refer his dismissal to the CCMA. The Second Respondent’s dismissal was settled between the parties.

[43] The Applicants have complied with all the procedural requirements specified at section 9 of ESTA. The Respondents have continuously refused to vacate the farm.

S8(1)(c): Interest of the parties including comparative hardship of the parties

[44] The Applicants indicated that the property is required for accommodation of other employees who are staying outside of the farm. The Respondents on the other hand contended that they have no alternative accommodation and the eviction if granted will lead to homelessness, the eviction in the absence of alternative accommodation will cause hardship to the Respondent’s family. They have two minor children, and the Second Respondent is not working. The First Respondent is not working, and the First Respondent is earning R4200 which is not enough to afford private rental.

[45] S8(1)(d): The existence of a reasonable expectation of renewal of the agreement

[46] There was no evidence placed before the court regarding the expectation of renewal of contracts. The First Respondent deserted his employment, and the Second Respondent settled her dismissal, there was no such expectation.

S8(1)(e): Fairness of the procedure followed by the owner and the opportunity to make representations

[47] The Respondents were invited to make representations, but none were received. The First Respondent averred that the Applicants never invited him in person to make representations.

Compliance with section 9(2)(b) of ESTA

[48] The Respondents have not vacated the property within the period of notice given by the Applicants.

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

[49] Section 11 is applicable to the Respondents given that they resumed their occupation in 2005 and 2008 respectively.

Compliance with section 9(2)(d) of ESTA

[50] The procedural requirements stipulated at section 9(2)(d) of ESTA have been complied with. The Respondents averred that there was no evidence that this section was complied with, however, the officer from the Department in her section 9(3) report stated that the section has been complied with.

Compliance with section 9(3) of ESTA

[51] The report in terms section 9(3) of ESTA was obtained.

Compliance with section 11

[52] Section 11(3) of ESTA stipulates that in deciding whether it is just and equitable to grant an order for their eviction, 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 parties,(c) whether the suitable alternative accommodation is available to the occupier(d) reasons for the proposed eviction, and (e ) the balance of interest of the owner or person in charge, the occupier and the remaining occupiers on the land.

[53] Some of the provisions of section 11 (3) of ESTA echoes those set out in section 8(1) of ESTA which I have already considered above. The only section which is independent is section 11 (3) of ESTA. I discuss this provision below.

Compliance with 11 (3) (c) - whether suitable alternative accommodation is available to the occupier.

[54] The Applicant submitted the Respondents made no effort to find an alternative accommodation, they are employed and are receiving state grant for the children, they can afford to rent alternative accommodation from their respective employees.

[55] The Respondents disputed the Applicant’s allegations and averred that the Respondents had approached the Swellendam Municipality for assistance with the alternative accommodation. They have been placed on the housing waiting list. The Respondents averred further that their family and friend are living in the farms and in Wendy houses in people’s yard. They are not in a position to accommodate them.

[56] The First Respondent’s employers had offered to sell one of the houses to him, but the First Respondent could not secure a mortgage bond in order to buy the property. The house is no longer available.

The Municipal Report

[57] The Municipality filed a report where it stated that it did not have any alternative, or emergency accommodation housing units. However, it was taking necessary steps to be in a position to provide such accommodation. The report stated further that the Municipality does not have any of its own funds available to allocate towards emergency housing, the Municipality suffered a severe financial setback when its main building was burnt down on the 16th of August 2023.

[58] It is trite that the Constitutional duty to provide alternative accommodation rest on the Municipality.

[59] The Applicants also relied on paragraphs 41, 42, 46 and 53 of Claytile. Those paragraphs summarized are to the effect that:

a. A property owner cannot be expected to provide free housing for the homeless on its property for an indefinite period.[5]

b. The duty regarding housing in section 26 of the Constitution lay to all three spheres of government - local, provincial and national, of which are obliged to cooperate.[6]

c. And that it is quite clear that the constitutional duty rests on the City where occupiers are legally evicted and rendered homeless to provide suitable alternative accommodation.[7]

[60] In Clayitile, the Applicants’ housing was also linked to their employment. They were still residing in the housing units on the farm, although they have not been employed by the First Respondent for some years. On 3 November 2012 the First Respondent gave them written eviction notices to vacate the farm on or before 8 December 2012. The Applicants failed to comply with the notices and continued residing on the farm. The First Respondent instituted eviction proceedings in the Magistrate’s Court in June 2013. The City, at the time, indicated to the Court that no suitable alternative accommodation was available due to a long waiting list. An eviction order was granted on 7 February 2014, which was found to be just and equitable in the circumstances. The Applicants were ordered to vacate the farm by 30 October 2014, some eight months after the eviction order had been granted.

[61] On 27 February 2017, the City made an offer of alternative accommodation. In the explanatory affidavit, the City indicated that it was in a position to secure suitable alternative accommodation for those Applicants who required it. The Applicants had to indicate by 17 March 2017 whether the offer was acceptable. On 20 March 2017, the Applicants rejected the offer. According to the Applicants, the accommodation at Wolwerivier was unacceptable due to the distance from Wolwerivier to the Applicants’ places of employment and the children’s school. They further submitted that the housing units at Wolwerivier were inadequate structures as the units had been constructed with corrugated cladding. The Applicants could not settle with having to move from brick houses to houses with corrugated cladding.

[62] The City revised its offer and offered the Applicants once more, another site of alternative accommodation with superior fittings and access to amenities. The applicants rejected this offer too. At the hearing of the matter, the City offered to transport the children being affected by the eviction of their parents, from their temporary housing at Wolwerivier to the school and back home again until the end of the 2017 school year.

[63] During the hearing, counsel for both parties conceded that the issues had narrowed down to the single issue of “suitable alternative accommodation”. Throughout the litigation the central thrust of the argument was homelessness.

[64] The Constitutional Court held that the Applicants’ concerns about the initial accommodation have been addressed by the City to the best of its abilities. The Court accepted that the housing units at Wolwerivier qualify as suitable alternative accommodation provided by the City within “its available resources”. Therefore, the Applicants cannot delay their eviction each time by stating that they find the alternative accommodation offered by the City unsuitable. Specifically, their remaining concerns regarding the schooling of the children have also been addressed by the offer of transport by the City.

[65] The facts of Claytile are clearly different from the present matter. In Claytile, the City, albeit at eleventh hour, came with an offer of suitable alternative accommodation and sensible solutions to the Applicants’ concerns. One of the concerns was that their children’s schooling was going to be disrupted. Transport was offered to take the children to and from school . In this matter, the same cannot be said. The Municipality has categorically stated that it has neither suitable alternative accommodation nor emergency housing for the respondents.

[66] Departing from Claytile, I accept that although the availability of alternative accommodation is a consideration that has to be considered in terms of section 11(3) it is but one factor a Court should consider when dealing with eviction. In Port Elizabeth Municipality it was emphasised that to elevate the factor of alternative accommodation to a pre-condition for an eviction order would have far-reaching and chaotic consequences which could never have been envisaged by the Legislature.[8] However, this statement has to be read with the qualification that ‘a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme.’[9]

[67] It is the Applicants’ case that it is the State, and in this case, the Municipality that bears the constitutional duty to provide suitable alternative accommodation, and that this obligation cannot be escaped by mere reports that it does not have temporary relocation accommodation units available.

Conclusion

[68] I am unable to confirm the order by the Magistrate. Consequently; the following order is set aside in whole and is replaced by the following order:

a. The First to Third Respondents are evicted from from the Farm known as “Die Restant van gedeelte 1 van die paas weltervreden nr 67, afdeling Swellendam, Provinsie Wes-Kaap.

Luleka Flatela

Judge of the Land Court

[1] Section 19(3) provides: “Any order for eviction by a magistrate’s court in terms of this Act, in respect of proceedings instituted on or before a date to be determined by the Minister and published in the Gazette, shall be subject to automatic review by the Land Claims Court, which may— (a) confirm such order in whole or in part; (b) set aside such order in whole or in part; (c) substitute such order in whole or in part; or (d) remit the case to the magistrate’s court with directions to deal with any matter in such manner as the Land Claims Court may think fit.”

[1] Section 19(3) provides:

“Any order for eviction by a magistrate’s court in terms of this Act, in respect of proceedings instituted on or before a date to be determined by the Minister and published in the Gazette, shall be subject to automatic review by the Land Claims Court, which may—

(a) confirm such order in whole or in part;

(b) set aside such order in whole or in part;

(c) substitute such order in whole or in part; or

(d) remit the case to the magistrate’s court with directions to deal with any matter in such manner as the Land Claims Court may think fit.”

[2] ‘Occupier’ means a person residing on land which belongs to another person. and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding— (a) a labour tenant in terms of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996); and (b) a person using or intending to use the land in question mainly for industrial. Mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and (c) a person who has an income in excess of the prescribed amount.

[2] ‘Occupier’ means a person residing on land which belongs to another person. and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding—

(a) a labour tenant in terms of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996); and

(b) a person using or intending to use the land in question mainly for industrial. Mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and

(c) a person who has an income in excess of the prescribed amount.

[3] Section 9 provides as follows: ‘(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued under this Act. (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 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 Land Affairs 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.’

[3] Section 9 provides as follows:

‘(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued under this Act.

(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 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 Land Affairs 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.’

[4] 75 of 1997

[5] Baron and Others v Claytile (Pty) Limited and Another [2017] ZACC 24.

[6] Ibid, para 42.

[7] Ibid, para 46.

[8] Ibid, para 17.

[9] Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC) para 28.