SUMMARY
| In Snyders & others v De Jager & others 2017 (3) SA 545 (CC), the Constitutional Court held that an eviction order granted under the provisions of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”), and confirmed on automatic review, should be appealed to the Supreme Court of Appeal (“SCA”). Accordingly, the Appellant, (“Monde”), appealed to the SCA with the central issue being whether the first and second respondents (“the Viljoens”) satisfied the requirements for an eviction order in terms of s 9(2) of ESTA. |
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Monde
was appointed as a general farm worker since 6 January 1995 and
given a room to occupy on the farm. On 4
November 2011 he concluded a written employment contract with the Viljoens.
One of the essential terms of the contract was that he would have
accommodation for as long as he was employed by the Viljoens. On 25 March 2013 Monde was dismissed
from his employment after he was found absent from work without permission or
leave. He did not appeal his dismissal, and his right of tenure automatically
terminated simultaneously. By letter dated 22 October 2013, Monde was informed that his right of residence
came to an end upon his dismissal, and he was given notice to vacate his room
within thirty days.
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The
Viljoens argued that Monde’s poor employment record, inter alia, led to a fundamental breach of the relationship
between him and the farm manager. The Viljoens also argued that the room is
needed for other workers whose interests carry greater weight, as they were living
in overcrowded conditions.
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Monde
in turn alleged that he was employed in 1988
and given a single room on the farm in 1992,
which he still occupied. He alleged that he always worked on the farm in
terms of an oral contract; and that he did not waive or limit his right of
residence. He furthermore admitted that his employment gave rise to his right
of residence but denied that it was the only source of that right: he had
been given permission to live on the farm and enjoyed a right of residence on
the ground of his family connection to his mother, who was also an occupier
with a right of residence. Therefore, arguing that his right of residents had
not been lawfully terminated.
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Monde
in turn alleged that he was employed in 1988
and given a single room on the farm in 1992,
which he still occupied. He alleged that he always worked on the farm in
terms of an oral contract; and that he did not waive or limit his right of
residence. He furthermore admitted that his employment gave rise to his right
of residence but denied that it was the only source of that right: he had
been given permission to live on the farm and enjoyed a right of residence on
the ground of his family connection to his mother, who was also an occupier
with a right of residence. Therefore, arguing that his right of residents had
not been lawfully terminated.
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The
Court a quo upheld the Viljoens’ contentions
and found that family members could never be ‘occupiers’ because there was no
legal nexus between them and the owner of the land. The SCA however held this
finding was incorrect.
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Turning
to the merits of the matter, the SCA confirmed that ESTA contains clear
provisions that must be complied with before an eviction order can be granted.
The Viljoens were required to prove that the termination of Monde’s right of
residence was both lawful, and just and equitable (section 8 of ESTA).
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Viljoens’s
case was that the Monde’s right of residence ended automatically upon
termination of the employment contract, as he was dismissed in accordance
with the provisions of the Labour Relations Act 66 of 1995 (“the LRA”), asserting that only subsections
8(2) and 8(3) of the LRA found application in this matter.
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Citing
the case of Snyders, the SCA emphasized that an owner of land who
relies on section 8(2) of ESTA to justify the termination of an occupier’s
right of residence, bears the onus to prove the occupier’s employment was
terminated for a fair reason related to the occupier’s conduct and that it
was effected as required by the LRA. Although
the SCA found that the termination of Monde’s employment was undoubtedly fair,
it also found that in interpreting the applicable clauses of the employment
contract, Monde’s right of residence did not wholly flow from same.
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Turning
to the provisions of ESTA, sections 3(4) and 3(5) provides:
“(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.
(5) For 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/person in charge.
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Hence,
the SCA confirmed that where persons claim protection under ESTA, it suffices
to show that the owner has consented to their occupation, regardless of
whether that occupation arises from an agreement or elsewhere. In this regard, the SCA confirmed that the Viljoens
did not establish that the Monde’s right of residence flowed exclusively from
the employment contract, this is clear as clause 1.3 of the contract stipulates
Monde’s pre-existing rights (which includes the right of residence) were not
negated by the employment contract. The Viljoens did not make out a case that
Monde’s right of residence had been terminated independently of the
employment contract, consequently failing to make out a case for his eviction.
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The
SCA concluded that there is not sufficient evidence to contradict Monde’s
claim that prior to the conclusion of the contract, he had consent to reside
on the farm. Neither is there evidence to rebut the presumptions in sections 3(4)
and 3(5) that he resided with the respondents’ consent and knowledge. The SCA
held that on these grounds alone, the appeal must succeed.
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A
final point which the SCA addressed, was the challenge to the eviction order
on the basis that it was granted without a probation officer’s report, as required
in terms of section 9(3) of ESTA, which provides that a court may make an eviction
order if the conditions for an order for eviction in terms of s 10 or s 11
have been met. The Viljoens however relied on the condition in section10(1)(c)
of ESTA: an order for the Monde’s eviction was appropriate because he had
committed a fundamental breach of the relationship, that was not practically
possible to remedy.
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Referring to the judgment in Cillie NO & others v Volmoer & others [2016] ZALCC, the SCA confirmed that a probation officer’s report was not a mere formality. It found that the factors in s 9(3) of ESTA that had to be addressed in the report were necessary to assist a court in deciding whether an eviction was just and equitable; that the importance of the report in an eviction could not be overemphasised; and that it ensured that the constitutional rights of those affected by eviction were not overlooked, the rights being especially important since ESTA is a remedial legislation with its genesis in the Constitution to, inter alia, protect vulnerable persons from unfair evictions causing prejudice.
HELD
1. The appeal was upheld.
2. Paragraph 2 of the order of the Land Claims Court is set aside and replaced with: |
‘The order of the Worcester Magistrate’s Court for the eviction of the first respondent from Millhurst Farm in De Doorns, Western Cape, is set aside and replaced with the following: ‘The application is dismissed. There is no order as to costs.’
VALUE
The court confirmed that the requirements of the Extension of Security of Tenure Act 62 of 1997 are crucial in eviction proceedings and should you argue that right of tenure arose solely from a contract, there should be no preceding rights to tenure before the conclusion of the contract.
Written by Danmari Bouwer and supervised by Jasvir Sewnarain , 15 March 2019
