Visser and Another v Marthinus and Others (LCC 178/2022) [2023] ZALCC 10 (10 April 2023)

Visser and Another v Marthinus and Others (LCC 178/2022) [2023] ZALCC 10 (10 April 2023)

The Court found that the second to fourth respondents were occupiers in terms of sections 3(4) and 3(5) of ESTA, residing on the farm by virtue of consent and the housing agreement with the first respondent. Their right of residence, flowing from consent, could be terminated under section 8(1) if just and equitable. The respondents had enjoyed free accommodation for ten years after dismissal, were employed elsewhere, and had previously secured alternative accommodation. The appellants required the dwelling for other employees, and the relationship between the parties had irretrievably broken down. The procedural requirements of ESTA, including notice, opportunity to make representations,...

Citation
[2023] ZALCC 10
Parties
Appellant: Gerhardus Jacobus Visser; Respondent: Jan Marthinus; Respondent: Liezel Marthinus; Respondent: Chantelle Alkaster; Respondent: All other persons residing with or under the first to third respondents in the premises on Ongegund Farm, Wellington; Respondent: Drakenstein Municipality; Respondent: Provincial Director of the Department of Agriculture, Land Reform and Rural Development
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
10 April 2023
Case Number
LCC 178/2022
Procedural Posture
Civil Appeal / Appeal From Wellington Magistrate’s Court Judgment
Outcome
Appeal upheld; eviction order granted against second to fourth respondents; all respondents to vacate by 1 September 2023.
Judges
Y S Meer, B Spilg
Legal Topics
Extension of Security of Tenure Act, Eviction, Respective Hardships, Occupier Rights, Housing Agreement, Just and Equitable Termination
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Respective Hardships Occupier Rights Housing Agreement Just and Equitable Termination

Case Brief

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Parties

Gerhardus Jacobus Visser

Appellant

Jan Marthinus

Respondent

Liezel Marthinus

Respondent

Chantelle Alkaster

Respondent

All other persons residing with or under the first to third respondents in the premises on Ongegund Farm, Wellington

Respondent

Drakenstein Municipality

Respondent

Provincial Director of the Department of Agriculture, Land Reform and Rural Development

Respondent

Procedural Posture

Civil Appeal / Appeal From Wellington Magistrate’s Court Judgment

Legal Issues

  1. 1 Whether the second to fourth respondents are occupiers in terms of ESTA and subject to eviction.
  2. 2 Whether the requirements for eviction under section 9(2) read with section 8(1) of ESTA have been met.
  3. 3 Whether the respective hardships of the parties justify eviction.

Ratio Decidendi

The Court found that the second to fourth respondents were occupiers in terms of sections 3(4) and 3(5) of ESTA, residing on the farm by virtue of consent and the housing agreement with the first respondent. Their right of residence, flowing from consent, could be terminated under section 8(1) if just and equitable. The respondents had enjoyed free accommodation for ten years after dismissal, were employed elsewhere, and had previously secured alternative accommodation. The appellants required the dwelling for other employees, and the relationship between the parties had irretrievably broken down. The procedural requirements of ESTA, including notice, opportunity to make representations,...

Court Disposition

Appeal upheld; eviction order granted against second to fourth respondents; all respondents to vacate by 1 September 2023.

Orders

  • The first to fourth respondents shall vacate the farm dwelling on Ongegund Farm, remaining extent of farm number 1605, Division Paarl, Drakenstein Municipality, Western Cape Province, by 1 September 2023.
  • If the respondents fail to vacate by 1 September 2023, the Sheriff is authorised and directed to evict them on 4 September 2023.