Van der Merwe and Others v Witbooi and Others (LCC29/2018, 03/2013) [2018] ZALCC 38 (7 September 2018)

Van der Merwe and Others v Witbooi and Others (LCC29/2018, 03/2013) [2018] ZALCC 38 (7 September 2018)

The appeal was dismissed because the termination of the first respondent's right of residence was not just and equitable as required by section 8(1) of ESTA. Although the first respondent's conduct justified dismissal from employment, the appellants failed to comply with procedural fairness by not granting him an effective opportunity to make representations before terminating his right of residence. The hardship to the first respondent, who had lived on the farm for approximately 40 years, outweighed that of the appellants. The second to sixth respondents were found to be occupiers in their own right under ESTA, and their rights of residence were not properly terminated, as they too were...

Citation
[2018] ZALCC 38
Parties
Appellant: Alwyn Johannes Van der Merwe; Appellant: Schalk Willem Van der Merwe; Appellant: Alwyn Johannes Van der Merwe N.O.; Appellant: Schalk Willem Van der Merwe N.O.; Appellant: Margaretha Van der Merwe N.O.; Respondent: Maxin Witbooi; Respondent: Margieta Witbooi; Respondent: Marco Joseph; Respondent: Jeffrey Joseph; Respondent: Deoreen Joseph; Respondent: Carlo Witbooi; Respondent: All other persons staying with or under the first to sixth respondents on Agterland Plaas; Respondent: Cederberg Municipality; Respondent: Department of Rural Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
7 September 2018
Case Number
LCC 29/2018
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Judgment Refusing Eviction Under ESTA
Outcome
Appeal dismissed; eviction application fails.
Judges
MP Canca, YS Meer
Legal Topics
Extension of Security of Tenure Act, Termination of Right of Residence, Procedural Fairness, Occupier Status, Just and Equitable Eviction
Land and Property Civil Procedure Extension of Security of Tenure Act Termination of Right of Residence Procedural Fairness Occupier Status Just and Equitable Eviction

Case Brief

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Parties

Alwyn Johannes Van der Merwe

Appellant

Schalk Willem Van der Merwe

Appellant

Alwyn Johannes Van der Merwe N.O.

Appellant

Schalk Willem Van der Merwe N.O.

Appellant

Margaretha Van der Merwe N.O.

Appellant

Maxin Witbooi

Respondent

Margieta Witbooi

Respondent

Marco Joseph

Respondent

Jeffrey Joseph

Respondent

Deoreen Joseph

Respondent

Carlo Witbooi

Respondent

All other persons staying with or under the first to sixth respondents on Agterland Plaas

Respondent

Cederberg Municipality

Respondent

Department of Rural Development and Land Reform

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Judgment Refusing Eviction Under ESTA

Legal Issues

  1. 1 Whether the termination of the first respondent's right of residence on the farm was just and equitable under section 8(1) of ESTA.
  2. 2 Whether the second to sixth respondents are occupiers in their own right under ESTA and entitled to independent protection.
  3. 3 Whether the disciplinary process and subsequent eviction proceedings complied with procedural fairness requirements.

Ratio Decidendi

The appeal was dismissed because the termination of the first respondent's right of residence was not just and equitable as required by section 8(1) of ESTA. Although the first respondent's conduct justified dismissal from employment, the appellants failed to comply with procedural fairness by not granting him an effective opportunity to make representations before terminating his right of residence. The hardship to the first respondent, who had lived on the farm for approximately 40 years, outweighed that of the appellants. The second to sixth respondents were found to be occupiers in their own right under ESTA, and their rights of residence were not properly terminated, as they too were...

Court Disposition

Appeal dismissed; eviction application fails.

Orders

  • The appeal is dismissed.
  • There is no order as to costs.