Rock Farm (Pty) Ltd v Nkosi and Others (LCC 105/2008) [2009] ZALCC 4 (17 June 2009)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT RANDBURG)

CASE NUMBER: LCC 105/2008

Date of Hearing: 5 May 2009

Decided on : 17 June 2009

In the matter between:

ROCK FARM (PTY) LTD APPLICANT

versus

ERIC NKOSI RESPONDENTS

And

SIX OTHERS

______________________________________________________________________________

JUDGEMENT

MIA AJ:

CARESLE AJ:

[1] The applicant requests an order evicting the Respondents from Rock Farm registration no. 1966/01330/07 of Portion 29 of the Farm Nooitgedacht 471 JQ. The applicant seeks the eviction of the Respondents and all who occupy the premises under them in terms of section 11 of the Extension of Security of Tenure Act 1997 (ESTA) ( hereafter ESTA) and alleges in its founding affidavit that the parties were all dismissed by the Applicant for “disciplinary reasons”.

[2] The applicant conducts chicken farming operations on the property which is owned by the Sanders Family Trust (hereafter “the Trust"). Two of the trustees are also directors of the applicant. A deed of transfer dated 9 January 1998 in terms of which the property was transferred into the names of the trustees of the said trust is appended to the applicant’s founding affidavit. Applicant indicates in the founding affidavit that it leases the portion of the property on which it conducts the chicken farming operations from “the Trust”. There is no written lease agreement detailing the terms of the lease agreement.

[3] The seven Respondents in this matter all live on the farm. They are:

Solomon Maleka and dependants second respondent

Amos Kandibile third respondent

Jeremiah Mmolawa and dependants fourth respondent

Nicholas Mmolawa fifth respondent

Mokgethi Reuben Radifeisi sixth respondent

Joseph Motshwane seventh respondent

[4] The third to seventh respondents occupied the premises on the property since February 1997 and the remainder of the respondents began to occupy the property after this date. The exact dates are not specified.

[5] The applicant employed the respondents on the farm at various times with the earliest employment contract with seventh respondent Mr. Joseph Motshwane commencing in October 1985 and the latest contract of the third respondent, Amos Kandibile commencing in June 2006. Individual contracts of employment with the respondents were signed only in 1999 and all existing employees were required to sign the contract, a copy of which is attached to the applicant’s founding affidavit.

[6] Section 11 of ”ESTA”, reads as follows:

[doja62y1997s11 ] 11 Order for eviction of person who becomes occupier after 4 February 1997

(1) If it was an express, material and fair term of the consent granted to an occupier to reside on the land in question, that the consent would terminate upon a fixed or determinable date, a court may on termination of such consent by effluxion of time grant an order for eviction of any person who became an occupier of the land in question after 4 February 1997, if it is just and equitable to do so.

[Sub-s. (1) substituted by s. 25 (a) of Act 61 of 1998.]

(2) In circumstances other than those contemplated in subsection (1), a court may grant an order for eviction in respect of any person who became an occupier after 4 February 1997 if it is of the opinion that it is just and equitable to do so.

(3) In deciding whether it is just and equitable to grant an order for eviction in terms of this section, 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 suitable alternative accommodation is available to the occupier;

(d) the reason for the proposed eviction; and

[Para. (d) substituted by s. 25 (c) of Act 61 of 1998.]

the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land.

[7] From the applicant’s founding affidavit it appears that the third to seventh respondents occupied the premises before 4 February 1997 and the remainder began to occupy the premises after that date. Section 10 of ESTA applies to occupiers in occupation before 4 February 1997, whilst section 11 of ESTA applies to occupiers in occupation after 4 February 1997. With regard to the third to seventh respondents, section 10 allows eviction when an occupier commits a breach having regard to section 6 (3) of ESTA which is material and the occupier has not remedied such breach. An eviction is also is also permissible when the relationship has broken down between the occupier and the owner or person in charge and it is not possible to reconcile the relationship or where the occupier has resigned and his occupation is tied to his employment. The applicant has not placed before this court sufficient evidence to determine that an eviction is just and equitable, under section 10 of ESTA. There was no evidence of a material breach of the contract. No evidence was placed before this court regarding the “disciplinary reasons” and it is not possible to ascertain to what extent the relationship has broken down.

[8] With regard to the remainder of the occupiers section 11 is applicable. Again the legislation permits an eviction where it is just and equitable do to so having regard to various factors such as the period of occupation on the land, fairness of the terms between the parties, availability of suitable alternative accommodation, the reason for the eviction and the balance of interested parties. The Applicant appears to rely on the contracts of employment to prove the termination of the right of residence upon dismissal of the Respondents to seek their eviction. The contract states at paragraph 23.5

“23.5 The permission of residence in any dwelling or occupation of any part of the property of the employer or property occupied by the employer, by the employee, is expressly subject to the existence of a service agreement between the employer and the employee, at termination for which, such permission automatically lapses and the employee is obliged to vacate such dwelling together with his or her family and movable property, within 30 days from the date of termination of service,…..

23.6 […….]

23.7 Any notification of termination of service, by anyone of the parties, shall automatically serve as notification of vacation of the dwelling, occupied by the employee.”

[9] The employment contracts were terminated on various dates as follows:

First respondent Eric Nkosi 29 February 2008

Second respondent Solomon Maleka 4 February 2007

Third respondent Amos Kandibile 29 June 2007

Fourth respondent Jeremiah Mmolawa 18 January 2007

Fifth respondent Nicholas Mmolawa 9 May 2007

Six respondent Mokhgethi Reuben Radifeisi 19 February 2007

Seventh respondent Joseph Motshwane 2 September 2006

Was section 9 (2) complied with in particular?

[10] The questions which arise are thus whether s 9 (2) (a) and (b) o ”ESTA” were complied with. Connected thereto is the question whether the Applicant by requesting rentals for the periods after the dismissal had caused a lease to come into operation after the dismissal. Section 9(2) was not complied with in respect of those respondents

Was the occupiers’ right of residence duly terminated and notice to vacate duly given?

[11] An eviction of an occupier can only take place in terms of a court order, if the occupiers’ right of residence has been terminated. 1 The termination of the occupiers’ right of residence is dealt with in section 8(1) and (2) of”ESTA”. The relevant portion 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.

(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.

(5)[… ]

(6) […]

(7) If an occupier's right to residence has been terminated in terms of this section, or the occupier is a person who has a right of residence in terms of subsection (5)-

(a)

the occupier and the owner or person in charge may agree that the terms and conditions under which t he occupier resided on the land prior to such termination shall apply to any period between the date of termination and the date of the eviction of the occupier; or

(b)

the owner or person in charge may institute proceedings in a court for a determination of reasonable terms and conditions of further residence, having regard to the income of all the occupiers in the household.

[Sub-s. (7) substituted by s. 23 of Act 61 of 1998.]

[12] In Landbounavorsingsraad v Klaasen 2005 (3) SA 410 this court in the judgement of Gildenhuys J indicated at 417 C-E that

“a specific cancellation of an occupier’s ‘right of residence’ is required under section 9 (2) (a), even where the agreement from which the right is derived was cancelled or has expired by the effluxion of its time. Consent to an occupier to reside on the land may only be terminated in accordance with the provisions of s 8(1) or (2) of”ESTA”. If the underlying contract containing the consent expired or was cancelled but its termination does not comply with any of the norms of s 8 (1) or (2) ( for example where the clause allowing the cancellation was unfair), the consent to reside will continue by operation of law, even though the contract containing the consent came to an end”

[13] In the present matter there does not appear to have been notices served on the Respondents terminating their right of residence. Counsel for the Applicant relied on paragraph 23.5 of the employment contract to serve as termination of the right of residence. Further counsel relied on the letters dated, 27 April 2007, sent to the sixth and seventh respondents to vacate the premises by 27 May 2007. The reliance on the contract to serve as a termination of the right of residence is not compliance with s 9(2) (a). This requirement was specifically stated in the above matter decided in this court. Thus the Applicant was required to serve a notice of termination of residence on all of the Respondents upon dismissal in order to terminate their right of residence. Whilst the employment contract gives guidance and clarity on the rights and obligations of the parties and what they can expect within the contract of employment relationship, the parties are required to inform the other party when they seek to rely or act on a right or obligation contained within the contract. The notice of termination of residence thus ought to have been served on the

employees affected by dismissal.

[14] The Respondents continued residing on the premises after they were dismissed on the dates indicated above. The operations manager gave the sixth respondent and the seventh respondents notices to vacate the property which are dated 27 April 2007. The fourth, fifth, sixth and seventh respondents were also sent letters dated 24 August 2007 requesting outstanding rentals and payment of rental of R150 per month for the occupation of the property after the dismissal. The requests for rentals appear to have brought intro operation a lease between the parties outside the contract of employment.

[15] Upon perusing the papers it appears that no termination of residence was served on the Respondents upon their dismissal. Having regard to the letters referred to above, the Applicant requested the fourth, fifth, sixth and seventh respondents to pay rental of R150 for the accommodation. The deduction for accommodation on the respondents’ employment contract was an amount of R250 per month and the amount apparently charged for occupation of the premises after their dismissal was an amount R150 per month. This appears to suggest that a lease came into operation between the parties after the dismissal of the Respondents.

[16] It appears thus that thee was not compliance with section 9 (2) (a) and (b) of”ESTA” and the Applicant by requesting rentals for the periods after the dismissal had caused a lease to come into operation after the dismissal.

Compliance with regulation 9 (2) (a)

[17] Upon perusing the papers the First Respondent is Eric Nkosi and the citation refers to six others. The Annexure annexed to the notice of motion refers to the names of six Respondents and further to dependants of the second and fourth respondents. It appears from the returns of service that the documents were served as follows:

On the first respondent personally, on the second respondent via his daughter Letsigo by explaining in English and Afrikaans, upon the third respondent via a friend Bosa Motsisi by explaining in English and Afrikaans, upon the fourth respondent and dependants ( unnamed) via affixing a copy thereof upon the principal door. It is not clear from the document upon which principal door the document was affixed. It is also not clear what language the document was in and the court must infer that it was in English as the original document was in English. Upon the fifth respondent in the same manner by affixing it to the principal door and the same concerns about which door it was appended to are applicable. Upon the sixth respondent by serving it upon Sara his wife with the document explained in English and Afrikaans. Upon the seventh respondent by affixing it upon a principal door.

[18] In Landbounavorsingsraad v Klaasen 2005 (3) SA 410 this court in the judgement of Gildenhuys J indicated that it was not necessary to serve such a notice on all the persons occupying under the “occupier”.

[19] Having regard to the returns of service which have been filed herein, it is noted that the requirements for service have not been fully complied with. The manner of service is set out in regulation 9 (2) (a) and is peremptory. It requires the sheriff to read the highlighted portion of the notice (hereafter referred to as the form E notice) to the occupier in the official language he understands best and to deliver to the occupier a copy of the Form E notice in that language and another copy in another official language. The notices appear not to have been delivered in the language best understood by the parties. The contracts of employment attached to the papers bear a certificate of interpretation which reflects that the terms of the contract of employment were explained in Tswana. The notices served were explained in Afrikaans and is not the language which the parties best understand.

[20] The importance of ensuring that the occupier understands the rationale was indicated by Meer J in ABJ Boerdery v Mzamo and another [2001] JOL 8104 (LCC) at page 6 at paragraph 8:

“[ …] The Form E notice to an occupier informing him/her of the intention to obtain an eviction order is a complicated document at the best of times. Given that many occupiers are unsophisticated, it is crucial that the regulations, which are designed to make the important information contained in the document as accessible as possible, are complied with.”

[21] Initially the question of locus standi was raised by the court. The applicant applied to file an affidavit deposed to by one of the trustees, which indicates at paragraph 5 thereof that:

“The applicant has always had authority from the Trust to house and accommodate its employees on the property and to evict them.”

[22] The respondent did not object to the filing of the affidavit. However counsel for the respondent submitted that not much weight be attached to the affidavit and the authority reflected therein as it was attested to after this matter commenced. It is within this courts discretion to permit the affidavit, and I am of the view that the time of its filing ought not to detract from its proof and the requisite authority. The court is satisfied that the Applicant has the necessary authority to file this application for relief.

[23] The applicant alleges that termination of the employment of the respondents was due to disciplinary reasons. No further indication is given that this was in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995) (hereafter the LRA). There is an indication by the Respondents that an instruction was given to their union to refer the matter to the CCMA. This was not realized. The applicant alleges that the respondents’ employment was terminated for disciplinary reasons. The respondents’ referral of the matter appears to indicate that the dismissal may not have been in terms of the Labour Relations Act. The applicant has not placed evidence before this court to rebut this. Thus it appears that there is no proof of termination in accordance with Labour Relations Act.>

[24] Having regard to the probation officer’s report filed herein the probation officer points out that the relationship has soured between the parties. The probation officer points out that there appears to be prejudice to the families in the event they are evicted forthwith as there is no alternative accommodation available in the area and that this will impact negatively on a minor child of one of the respondents who attends school nearby. The probation officer is of the view that the respondents should be permitted to remain on the property until the sale of the portion of the farm is finalized. The probation officer is of the view that a premature eviction will cause hardship to the respondents.

[25] In view of the procedural and substantive requirements not having been met as set out

above it appears that the termination of the right of residence did not occur as stipulated in ”ESTA” as indicated above. The termination of residence is thus unjust and inequitable having regard to the factors set out in section 8 of “ESTA” and the evaluation of the respondents circumstances as per the evaluation by the probation officer.

ORDER:

[26] Having considered the papers and having heard counsel herein:

1 The Application is dismissed

2 No order is made with regard to costs.

Shanaaz Mia

Acting Judge of the Land Claims Court

I agree

Zeenat Carelse

Counsel for Applicant:

Erasmus Scheepers Attorneys

Counsel for the Respondents:

Thulo Attorneys

1 Section 9(2) (a) Extension of security of Tenure Act1997, Act 62 of 1997.

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