Yarona Game & Guest Farms (Pty) Ltd v Mashinini and Others (LCC 30R/2017) [2017] ZALCC 31 (30 November 2017)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

Case No.: LCC 30R/2017

Before: The Honourable Justice Meer

Delivered on: 30 November 2017

In the matter between:

YARONA GAME & GUEST FARMS (PTY) LTD Applicant

(Registration Number: 2008/001887/07)

and

KHEHLA MASHININI

First Respondent

KHEHLA MASHININI NO

Second Respondent

MMATSJETSI MASHININI

Third Respondent

MBAETJHA MASHININI

Fourth Respondent

TSIETSI MASHININI

Fifth Respondent

NJEMYANA MASHININI

Sixth Respondent

NOMPE MASHININI

Seventh Respondent

DIHLABENG LOCAL MUNICIPALITY

Eighth Respondent

DEPARTMENT OF RURAL DEVELOPMENT

Ninth Respondent

AND LAND REFORM

JUDGMENT: 30 NOVEMBER 2017

MEER J.

Introduction

[1] This matter comes before me on automatic review in terms of Section 19 (3) of the Extension of Security of Tenure Act No 62 of 1997 (“ESTA”). I am required to review the eviction of the Respondents, granted on 17 September 2017, by order of the Bethlehem Magistrate’s Court. The order granted the eviction of all the Respondents from the farm described as “Gedeelte 1 van die Plaas Uitvlugt 201 Restant van die Plaas Christiana 1798, Plaas Marietjie 1811, Distrik Bethlehem, Vrystaat Provinsie” (“the farm”), on the basis that their rights of residence flowed from the employment of the First Respondent, and that upon the termination of his employment in May 2010, by the previous owner,

their rights of residence were validly terminated.

[2] The Applicant is the registered owner of the farm. The First Respondent, aged 44, is a former employee on the farm. He is also cited as the Second Respondent in his capacity N.O., as the guardian of his minor children residing on the farm. The Third Respondent, aged 42, is his wife. The Fourth to Seventh Respondents are their children, aged 26, 20, 10 and 8 respectively. The current ages of the Respondents is derived from information in the Probation Officer’s Report, furnished in terms of Section 9 (3) of ESTA. The First Respondent currently works on a neighbouring farm, where, according to him, there is no accommodation for him and his family. The Respondents live in a 4 roomed brick house on the farm. The First Respondent built the house.

Background Facts

[3] The Applicant purchased the farm from Deon Blignaut and Sons CC (“the former owner”), and took transfer thereof on 31 August 2010. According to a member of the former owner, Mr Willem Blignaut, the First Respondent was employed by the former owner in 2000 and he was permitted to have his family, the other Respondents, reside with him. Up until 2000 the First Respondent and his family lived on the farm Christiana, also owned by the former owner. Mr Willem Blignaut, however, conceded in cross examination that it might be correct that the First Respondent started residing with his parents on Christiana in 1980 as contended by him. This contention by the First Respondent is backed up by the report of the Probation

Officer, which records a period of residence of 35 years. The version of the First Respondent was that he started working for the Blignaut’s in 1995. Mr Willem Blignaut stated this could have been for his father and uncle, but not for Blignaut and Sons. The First Respondent was dismissed by the former owner in 2009, on the latter’s version for diesel theft captured on CCTV camera, and for which he was convicted. There is no evidence that his right to reside on the farm was terminated upon his dismissal and he continued to stay on the farm.

[4] In 2010, prior to the sale of the farm, the former owner entered into an agreement with the occupiers on the farm to relocate them because, as explained by Blignaut, the new owners did not want anybody living on the farm. The agreement, which was signed on 7 May 2010 by the First Respondent, was preceded by a number of meetings at which representatives from the municipality and the Department of Rural Development and Land Reform were also present. The First Respondent testified a quo that one “Bongani” from Land Affairs and “Mosekidi” from the Municipality explained that they would look for sites for them to move to, and once these were found, they would vacate and be paid. The First Respondent said that he had signed the agreement to relocate because he heard he would receive money. The First Respondent did not leave following the 2010 agreement. Mr Blignaut had a few discussions with him and he promised every time to vacate. Mr Blignaut even

loaned the First Respondent R3750 at one stage to rent a truck for relocating.

[5] On 31 August 2010 the farm was registered in the name of the Applicant, and the Respondents continued to reside there. It is common cause that none of them worked for the Applicant. Some 2 years and 9 months later, on 9 May 2013, the Respondents were given a notice in terms of Section 9 (2) (b), terminating their rights of residence. The notice, clearly referring to the First Respondent only, states (in translation from the Afrikaans) “Your right of residence was linked to your employment, which was lawfully terminated and you are therefore no longer permitted to live on the farm”. The notice also refers to the agreement entered into with the previous owner to vacate, and gives 30 days’ notice to do so. On 10 June 2014 the Respondents were given notice in terms of Section 9 (2) (d) of eviction proceedings to be commenced. Thereafter, on 28 April 2015, the Applicant issued proceedings in the Bethlehem Magistrate’s Court for their eviction.

[6] The founding affidavit alleges that the Respondents were involved in stock theft of four calves in October/November 2013. The deponent to the founding affidavit, Ms Mbanyele, states that she noted that 4 calves had been loaded onto a vehicle next to the house where the Respondents reside, and she concluded from this that the Respondents must have known about the theft. She adds that the Respondents did not notify the Applicant and/or any other employee about the theft. Mr Moloi, the Applicant’s director, confirmed this in oral testimony. Mr Moloi testified that the Respondents leave gates open, as a result of which cattle have strayed onto the N5. He complained that there is a constant flow of visitors to the farm, who come to consult the Second Respondent who is a traditional healer. This, he said, poses a security risk. The Respondents also trespass on the farm, going where they like without his authority and have caused the fence to be cut. Moloi had gone personally to repair the fence and encountered only the Second Respondent. The First Respondent denied that the Respondents are guilty of any of these actions. He denied also that the Second Respondent is a traditional healer.

[7] Mr Moloi testified that the relationship with the Respondents was not a good one and could not be restored. He described the Respondents as openly defiant. The major problem, he said, was that the Respondents do not co-operate with him and do not respect his authority. The First Respondent in his testimony, when asked how true Moloi’s averment to a relationship problem was, said that Moloi had never talked to him.

[8] The First Respondent’s stance is that there is no suitable alternative accommodation for him and his family on the farm where he currently works, a fact which the Applicant’s director was not able to dispute. The First Respondent testified that he had tried unsuccessfully to obtain alternative accommodation at the Hlabeni and Clarens Municipalities and that his wife’s enquiries at Kestell were similarly unsuccessful. The Probation Officer’s Report adds that neither the Dihlabeng Local Municipality in Bethlehem, nor the Department of Rural Development and Land Reform, can assist.

[9] In granting the eviction order the Magistrate found that the First Respondent’s employment was lawfully terminated in terms of Section 8 (2) of ESTA, that a fundamental breach had been committed in terms of Section 10 (c) on the basis of the allegation by the Applicant that wires along the farms had been destroyed, stating that the Court had to take into account Section 11 (3) of ESTA.

[10] On 22 September 2017 I remitted the matter to the Magistrate’s Court, stating as follows:

“The matter is remitted to the Magistrate’s Court and the Magistrate and parties are required to make brief submissions by no later than 10 October 2017 on the following:

The Magistrate in the judgment at page 344 of the record states that documents were filed to show compliance with Section 8 (1) (e) of the Extension of Security of Tenure Act 62 of 1997. These documents do not appear from the record or evidence. Where are these documents? Absent proof that this section was complied with and all the factors as set out at Section 8 (1), can the eviction be confirmed?

The Respondents were never employed by the Applicant. The Applicant became the owner of the farm on 31 august 2010. The

Respondents continued to reside on the farm and a notice to vacate was served on them on 1 March 2014. In terms of Section 3(4) of the Act are they not presumed to have resided on the land with the Applicant’s consent after the Applicant became the owner? The evidence suggests that they openly resided on the land for a period of one year and there is no rebutting evidence. This being so, did their right of residence not flow from consent? Could the Applicant have relied on their right of residence flowing from the First Respondent’s employment and the agreement, (“Annexure B”) in terminating their right of residence? In considering this issue please refer to Ashanti Wine and Country Estate v Smith and others LCC245/2016 judgment by Dodson AJ paragraphs 21 to 25.

If their right of residence flowed from consent the requirements at Section 8 (1) and not 8 (2) and 8 (3) are applicable. Why

should the eviction not be set aside for the court failing to take into account the factors at Section 8 (1) (a) to (e)? See Snyders and others v De Jager 2016 ZACC 55 at paragraph 56

If each of the Respondents had consent to reside in terms of Section 3 (4), they were occupiers in their own right and should the circumstances of each of them not have been considered?”

[11] Submissions were received from the Magistrate only, and not by 10 October 2017 as requested, but on 16 November 2017. The delay, attributed to the Magistrate misplacing the file, is unfortunate. In response the Magistrate relied on the meetings between the former employee and the First Respondent as compliance with Section 8 (1) (e), contended that the Respondents’ right of residence under the Applicant did not flow from consent, and did not address the status of the Respondents in terms of Section 3(4) of ESTA.

Discussion

[12] The mandatory requirements for the granting of an eviction order are specified at Section 9 (2) of ESTA. The section provides as follows:

“(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 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.”

The Applicants must comply with the requirements of Section 9 (2) (a) to (d) in order to succeed in the eviction applications.

[13] Section 9 (2) (a) requires that the right of residence must have been terminated in terms of Section 8, which in relevant part reads as follows:

“(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.”

[14] It is common cause that the mandatory requirements of Sections 9 (2) (b) and (d) were complied with and that the requisite notices were furnished. I consider below whether the mandatory requirements of Sections 9 (2) (a) and (c) were complied with prior to the eviction order being granted in the court a quo.

Compliance with Section 9 (2) (a) of ESTA

The First Respondent

[15] For compliance with Section 9 (2) (a), the Court a quo relied on Section 8 (2) for the termination of the First Respondent’s employment. This section can, however, only be relied upon if his right of residence arose solely from his employment. The objective facts show that this was not the case.

The First Respondent’s evidence, that his residence dates back to 1980 and that he commenced employment in 1995, was not able to be disputed and must be accepted. Given that his right of residence long preceded his employment on the farm, it cannot be said that his right of residence stemmed solely from his employment. Moreover, when his employment was terminated in 2009, he continued to reside on the farm and there is nothing to suggest that he was not doing so openly until 2010, when the relocation agreement was signed and thereafter until 2013 when he received notice terminating his right of residence. His right of residence after the termination of his employment thus flowed from consent as did his right of residence preceding the commencement of his employment. It did not arise solely from his employment. His right of residence thus fell to be terminated in terms of Section 8 (1) of ESTA.

The Third to Seventh Respondents

[16] The stance of the Applicant and finding of the Court a quo, that the Third to Seventh Respondents’ rights of residence flowed from the employment of the First Respondent and that they did not have any independent right to occupy the property, cannot be sustained in the light of the Constitutional Court judgment of Klaase and Another v Van der Merwe NO and Others 2016 (6) SA 131 (CC). Klaase recognized that the rights of residence of persons like the Third to Seventh Respondents, derives from consent flowing from the combined operation of subsections (4) and (5) of Section 3 of ESTA. These sections provide as follows:

“3(4) For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved.

3(5) For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of three years shall be deemed to have done so with the knowledge of the owner or person in

charge.”

[17] Discussing these subsections, at paragraph 59, the Court acknowledged:

“…ESTA provides that for the purpose of civil proceedings in terms of ESTA, a person who has continuously and openly resided on land for a period of (a) one year shall be presumed to have consent to do so unless the contrary is proved and (b) three years shall be deemed to have done so with the knowledge of the owner or person in charge”

The Court went on to state that it was demeaning to subordinate the rights of Mrs Klaase, the person who had openly and continuously

resided on the farm in that case, to those of her husband. The Court found that she was an occupier in her own right entitled to the protection of ESTA.

[18] So too, in respect of the Third to Seventh Respondents who have been living openly and continuously on the farm for many years. Post Klaase they can no longer be regarded as mere residents who occupy under the householder. They are occupiers in terms of Sections 3 (4) and 3 (5) of ESTA, whose rights of residence stemmed from consent. Their rights of residence, like those of the First Respondent, thus also fell to be terminated in terms of Section 8 (1).

[19] The question then arises whether the termination of the Respondents’ residence was just and equitable, as required by that section. This requires me to consider all relevant factors and in particular, the specific criteria in subparagraphs (a) to (e) of Section 8 (1). The Constitutional Court in Snyders and Others v De Jager and Others 2017 (3) SA 545 (CC) held as follows, at paragraph 56:

“Section 8(1) makes it clear that the termination of a right of residence must be just and equitable both at a substantive level as well as at a procedural level. The requirement for the substantive fairness of the termination is captured by the introductory part that requires the termination of a right of residence to be just and equitable. The requirement for procedural fairness is captured in section 8(1)(e)."

19.1 As regards Section 8 (1) (a), the reasons given by the Applicant for terminating the First Respondent’s right of residence (and by implication that of the Third to Seventh Respondents), would appear to be based both on the termination of the First Respondent’s employment agreement and his non-compliance with the relocation agreement. The

difficulty for the Applicant, however, is that the First Respondent continued to reside openly on the farm after the termination of his employment and the conclusion of the relocation agreement, and for more than two years thereafter, before he received notice of termination of his right of residence from the Applicant. In fact it was only 2 years and 9 months after the Applicant took registration of the farm that the Respondents received notice terminating their residence. During that period he is presumed in terms of section 3 (4) to have resided there with consent and there is no evidence on the part of the Applicant to rebut this. Had the First Respondent’s right of residence been terminated within a year of his signing the relocation agreement, or had the Applicant adduced rebutting evidence, the situation would have been otherwise. In the circumstances neither the employment nor relocation agreements could have been relied upon. In any event it would not have been fair to rely on the termination of the employment agreement to terminate the First Respondent’s residence, given that his right of residence did not arise solely from his employment. In lieu of the relocation agreement it cannot be said that it was fair to deprive the Respondent of his home of forty years on the payment of R7500 and without there being alternative accommodation for him to relocate to.

19.2 As regards Section 8(1) (b) of ESTA, the conduct on the part of the Respondents that the Applicant relied on, are suspicions concerning their involvement in stock theft as well as the influx of visitors, trespassing on the farm, and the allegation of cutting a fence. These allegations were denied. I note that they are general and

do not specify which of the Respondents are responsible. I note also that no charges have been brought against any of the

Respondents. The impugned conduct on the part of the Respondents is, in the circumstances, unproven.

19.3 As regards Section 8(1) (c) of ESTA, the hardship to the Respondents is that they would be deprived of their home of some forty years, in respect of the First Respondent, of many years in respect of the Third Respondent, and their home since birth in respect of their children, the Fourth to Seventh Respondents. They have no alternative accommodation and they would be left without a roof over their heads. The inconvenience to the Applicant of their being on the farm, notwithstanding the complaints against them, pales in comparison.

19.4 Subparagraph (d) of Section 8 (1) does not seem to apply insofar as it contemplates an agreement from which the right of residence arises, that expires after a fixed period of time.

19.5 As regards Section 8 (1) (e) of ESTA, although there were meetings with the former owner before the relocation agreement was concluded, there is no evidence that the Applicant gave the Respondents an opportunity under this section to make representations before the decision was made to terminate their rights of residence. It is not open to

the Applicant to rely on meetings with the former owner in this regard, especially given my finding that the Respondents’

continued residence for over a year thereafter, and for 2 years and 8 months after the Applicant took transfer, flowed from consent. Before the Applicant gave them section 9(2) (b) notices terminating their residence, he ought to have complied with Section 8(1) (e) independently of any engagement the previous owner had with the Respondents, especially given that he intended evicting them from the home they had built and lived in for many years. The Constitutional Court in Snyders supra, at para 76, held as follows:

"ESTA requires the termination of the right of residence to also comply with the requirement of procedural fairness to enable this person to make representations why his or her right of residence should not be terminated. This is reflected in section 8(1)(e) of ESTA. A failure to afford a person that right will mean that there was no compliance with this requirement of ESTA. This would render the purported termination of the right of residence unlawful and invalid. It would also mean that there is no compliance with the requirement of ESTA that the eviction must be just and equitable.”

[20] Procedural fairness in the case of Respondents who had lived on the farm for many years, and who knew no other home, would at the very least have required the Applicant to convene a meeting with them and to have given them an opportunity to make representations as to why their residence should not be terminated. The question of where they would be housed, should they vacate the home they built, would have loomed large during such representations. The evidence suggests that the Applicant’s director in fact had not even communicated with the First Respondent from the time the Applicant took over the farm, let alone afforded him an opportunity to make representations prior to terminating his residence.

[21] In the circumstances, to have terminated the Respondents’ rights of residence and to have deprived them of their only home, without affording them an effective opportunity to make representations before the decision to terminate, was neither just nor equitable. This is so notwithstanding the Applicant’s suspicions and complaints against the Respondents, which, as I noted, remain unproven. The failure to comply with Section 8 (1) (e) has thus rendered the termination of their rights of residence unlawful and invalid. In view of all of the above, there has not been compliance with the mandatory requirement of Section 9 (1) (a) and the eviction of the Respondents ought not to have been granted for this reason alone.

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

[22] As the First Respondent has lived on the farm for forty years, and his adult children, the Fourth and Fifth Respondents, are aged 26 and 20 respectively, the four adult Respondents would have been occupiers in 1997. (Here I include the Third Respondent, their mother.) The Sixth and Seventh Respondents are minor children of the First and Third respondents, aged 10 and 8 respectively. The conditions for an order for eviction in terms of Section 10 thus had to be complied with. Section 10 of ESTA provides:

“10. Order for eviction of person who was occupier on 4 February 1997.

(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if-

(a) the occupier has breached section 6 (3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach;

(b) the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar month’s notice in writing to do so;

(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or

(d) the occupier-

(i) is or was an employee whose right of residence arises solely from that employment; and

(ii) has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour Relations Act.

(2) Subject to the provisions of subsection (3), if none of the circumstances referred to in subsection (1) applies, a court may grant an order for eviction if it is satisfied that suitable alternative accommodation is available to the occupier concerned.

(3) If-

(a) suitable alternative accommodation is not available to the occupier within a period of nine months after the date of termination of his or her right of residence in terms of section 8;

(b) the owner or person in charge provided the dwelling occupied by the occupier; and

(c) the efficient carrying on of any operation of the owner or person in charge will be seriously prejudiced unless the dwelling is available for occupation by another person employed or to be employed by the owner or person in charge,

a court may grant an order for eviction of the occupier and of any other occupier who lives in the same dwelling as him or her, and whose permission to reside there was wholly dependent on his or her right of residence if it is just and equitable to do so,

having regard to-

(i) the efforts which the owner or person in charge and the occupier have respectively made in order to secure suitable alternative

accommodation for the occupier; and

(ii) the interests of the respective parties, including the comparative hardship to which the owner or person in charge, the occupier and the remaining occupiers shall be exposed if an order for eviction is or is not granted.

[23] The Court a quo found, on the basis of the unproven and general allegation by the Applicant that the Respondents had cut the wire in the fence, that “the occupier had committed a fundamental breach as contemplated at Section 10 (1) (c) and that the conditions for an eviction under Section 10 had been complied with”. I cannot agree. There is simply no proof as to who precisely cut the fence. It is also not clear which of the seven Respondents are being blamed for this, and given the paucity of communication between the Applicant and the First and other Respondents, it is difficult to understand on what basis the court a quo concluded that the relationship between the parties could not be restored. The Applicant has also simply not addressed compliance with the conditions specified at Section 10, in relation to the other Respondents. Nor do the objective facts point to the existence of the other prerequisite conditions for an eviction, as specified at Section 10. There has thus not been compliance with Section 9 (2) (c) in relation to the Respondents, and the eviction order ought not to have been granted for this reason also.

[24] In view of all of the above, on the evidence before me, I am unable to confirm the order for the eviction of the Respondents, in the light of the failure of the Applicant to comply with the mandatory requirements of Sections 9 (2) (a) and 9 (2) (c) of ESTA. The order of the court a quo thus stands to be set aside. In keeping with the practice of this court not to order costs in matters such as these, being in the genre of social action litigation, there is no order as to costs in the order I grant below.

Order

1. The Order for the eviction of the Respondents, under Case No 1198/2015 in the Bethlehem Magistrate’s Court, is set aside and replaced with the following order:

1.1“The application is dismissed.

1.2 There is no order as to costs”

Y S MEER

Acting Judge President

Land Claims Court