LAND TENURE

Facts and issue: Two actions were instituted for the restitution of rights in land in terms of the Restitution of Rights in Land Act 22 of 1994. The deceased were disposed of their rights in land in respect of the property due to racially discriminatory laws or practices applicable at the time of dispossession. The parties signed a statement of agreed facts and facts in dispute. The defendants admitted the claims and their validity and conceded that the plaintiffs are entitled to restitution in the form of equitable redress. What is in issue, is the appropriate amount which should be paid to the Shah family. The second issue is whether solatium should be paid to the claimants and if so in what amount. The last issue is whether the plaintiffs are entitled to costs.

Discussion: There are two expert witnesses who testified. The plaintiff called Mr Stephenson  who is a professional valuer. Mr Stepheson conducted a historical valuation of the property and compiled a report, and he also issued many updated valuations. The defendants led the evidence of Mr. Serfontein who is also a professional valuer. Mr Serfontein compiled four reports based on the investigation which he had conducted. There are few differences between these two experts. The difference is in the calculation method and whether direct financial loss and solatium should be included. Whilst Mr. Serfontein believed the plaintiffs were not entitled to direct financial loss and solatium, Mr. Stephenson opined that the plaintiffs had suffered great hardship as a result of the dispossession, and he calculated the compensation by adding direct financial loss and solatium to the amount to which the plaintiffs are entitled. The valuation method applied by Mr. Stephenson is more reliable than that of Mr. Serfontein. Mr. Serfontein was unwilling even to testify, which might have been an indication that he had no confidence in the integrity of his investigations.

Findings: Mr Serfontein’s calculations can be safely rejected. The plaintiffs have asked for solatium to be included as a form of financial loss. Mr Setephenson has calculated solatium based on different scenarios. Solatium is compensation awarded for injury to the feelings. Counsel for the plaintiffs submitted that no solatium was paid to the plaintiffs during expropriation. Expropriation of someone’s property, by its very nature causes emotional trauma for which the owner of the expropriated property should be compensated. The Expropriation Act prescribes a fixed formula in terms of which solatium should be determined. According to that formula solatium should be 10% of the first R100,000 plus 5% of the amount by which it exceeds R100,000. Mr Stephenson did the calculations based on market value including land and improvements at R5,500 per m2 plus solatium at 10% as prescribed by the Expropriation Act.

Order: The defendants are ordered to pay the amount of R13,666,035 to the plaintiffs’ attorney of record within 30 days from date of the order. The defendants are ordered, jointly and severally, to pay the costs incurred by the plaintiffs.

Facts: The claimed land relates to some portions of the two farms, namely farm Mooiplaats No 1315, which was granted to Mr Cornelius J Laas in March 1853, and the farm Spitzkop No 1129, which was granted to Mr Cornelius J G Vermaak in May 1851. The farms were granted to them by the British government following its annexation of the then Natal in 1842. The farms underwent certain sub-divisions and changed ownership over the years, in particular, prior to 1913 and thereafter. The land claim was lodged on behalf of the community claimants in 1998 by Mr Sipho Cebekhulu. He was authorized to do so by the community claimants in terms of a resolution. During the hearing in the Land Claims Court, at the close of the community claimants’ case (and that of the State respondents), the judge ordered the separation of issues in terms of Rule 57(1)(c) of the Land Claims Court Rules. He directed that the issue whether Mavundulu is a community, as envisaged in the Restitution of Land Rights Act 22 of 1994, be determined separately before any other issues.

Appeal: Against the judgment dismissing the Mavundulu Community appellants’ claim for the restitution of rights in land on the grounds that they were not a “community” as defined in the Act. In dismissing the claim, the judge disallowed, in full, the first to third appellants’ fees in the entire matter and ordered them to repay the fees that had already been paid to them by the relevant entity that funded the litigation on behalf of the State. Dissatisfied with the costs order against them, the first to third appellants (the legal practitioner appellants) applied for leave to appeal against it. Before the application for leave was argued, the legal practitioner appellants brought an application for the recusal of the judge. He dismissed the application for his recusal and ordered the legal practitioner appellants to pay the third to twenty seventh respondents’ (landowner respondents) costs.

The “community”: The judge was entitled to invoke the provisions of Rule 57(1)(c) in determining whether the community claimants had made out a case on the evidence at that stage of the hearing. The question whether or not the community claimants were a “community” as defined in the Restitution Act is a discrete legal point that is capable of being disposed of separately from other issues. The question is whether the members of the Mavundulu community derived their possession and use of the land from common rules. What the evidence establishes in this case is that whatever rights individual occupiers may have enjoyed as labour tenants and later as farm workers, they were no longer derived from shared rules determining access to land held in common by a group in 1913. The Community claimants failed to prove that they constituted a “community” as envisaged in the Restitution Act.

Recusal and the costs: The application for the judge’s recusal was brought by the legal practitioner appellants. It sprang from the costs order depriving the legal practitioner appellants of their fees (both already earned and those still to be paid). The judge considered the application for his recusal. He determined that it had no legal basis, and he dismissed it with costs. There is therefore no merit in the contention that the judge erred in awarding costs against the legal practitioner appellants. In awarding costs against the legal practitioner appellants, he was exercising his discretion and there is no suggestion that he had in any way misdirected himself in the manner in which he did so. That being the case, there is no basis for this court to interfere with his costs order.

Fees: The court misdirected itself in depriving the legal practitioner appellants of their fees and in directing them to repay the fees they had already received from the State. The conclusion that the legal practitioner appellants had pursued a hopeless case in circumstances where they should not have done so, is wrong for the simple reason that it is the State respondents who accept and refer the claim after investigation. It is therefore unfair to punish the legal practitioner appellants by depriving them of their fees and ordering them to repay the fees they had received simply because the land claim was at the end of trial found to have no merit. The appeal against the order directing the legal practitioner appellants to pay the landowner respondents’ costs of opposing the recusal application should fail.

Order: The appeal against the order of the Land Claims Court dismissing the Mavundulu Community’s land claim is dismissed with no order as to costs. The appeal against the order disallowing the fees of the first to third appellants in the matter and directing them to repay the fees they had already received from the State is upheld with no order as to costs. The appeal against the costs order in respect of the recusal application is dismissed with costs.

ZONDI JA (HUGHES JA, MATOJANE JA, SEEGOBIN AJA and KEIGHTLEY AJA concurring)

Facts and issue: This automatic review concerns the validity of an eviction order in terms of section 10 of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The applicants launched eviction proceedings in terms of ESTA against the Hendriks family. The applicants argue that Ms. Hendriks’ resignation ended their relationship and her right to housing. Since her brothers occupied the premises under her, their rights were cancelled simultaneously. Housing was an employment benefit provided to permanent employees or protected occupiers and their family members.

Discussion: The central argument of the Hendriks family is that they are dependants of their late father, a long-term occupier under section 8(4) of ESTA, and not merely occupants by virtue of Ms. Hendriks’ employment. Section 8(5) protects the rights of dependants of long-term occupiers, requiring 12 months' written notice before eviction can proceed. The Hendriks siblings argue that they were born and raised on the farm, having resided there since 1979 with their parents, both of whom were employed by the previous farm owner. The Witzenberg Municipality confirmed that it lacks available land or housing to provide immediate alternative accommodation for the Hendriks family. The probation officer's report provided in terms of section 9(3) of ESTA concluded that the family would be rendered homeless by an eviction, as they do not have alternative accommodation. Their report recommends that eviction be reconsidered, and the parties engage in further discussions. The Hendriks family aver that the heart of the dispute lies in the fact that they were not given the 12 months’ notice as required by section 8(5).

Findings: It is undisputed that the Hendriks family are dependents of a long-term occupier, the late Mr. Hendriks, who had rights under section 8(4) of ESTA. Accordingly, the applicants' argument that Ms. Hendriks’s resignation automatically terminated the family’s right to reside on the farm is unsustainable. The fact that eviction proceedings were only launched after the death of their mother in October 2021 supports the contention that they derived their right of residence from their parents’ right of tenure rather than Ms. Hendriks’s employment.  Accordingly, their rights of residence should have been terminated in accordance with section 8(5). An eviction order would not only affect the Hendriks siblings but also their minor children, putting them at risk of destitution. The applicants failed to comply with the procedural requirements for an eviction in terms of section 8(5) of ESTA. Mediation is recommended to explore suitable housing alternatives.

Order: The order of the court a quo is set aside. The application is remitted to the Magistrate’s Court for reconsideration of the matter.

Facts: The State alleged that the appellant (Mr Thys) unlawfully and without permission entered a house on the farm Olifants-kop, Western Cape, without the permission of Mr Van der Spey who was the owner or person in charge of the land and building on the farm. The appellant, who was legally represented during the proceedings, was charged in the Atlantis Magistrate’s Court for contravening the provisions of the Trespass Act 6 of 1959 read with section 250(1)(d) of the Criminal Procedure Act 51 of 1977. The appellant was convicted and thereafter sentenced.

Special review: The magistrate was asked to send the matter to this court for special review. There was an issue raised with the sentence imposed, however, this court was of the view that the appellant’s conviction was not in accordance with justice as it should have been apparent to the magistrate that the provisions of the Trespass Act were used to constructively eject the appellant from the Olifants-kop farm.

Discussion: Where an accused is charged with a contravention in terms of section 1(1) of the Trespass Act the State must prove, in addition to the other elements mentioned in section 1(1), that the accused is not an occupier under ESTA (Extension of Security of Tenure Act 62 of 1997). If it suffices that the accused is in fact an ESTA occupier, the deeming provision of section 1(1A) will be activated and a criminal conviction cannot follow. The presiding magistrate should perform an inquisitional function, where an accused pleads guilty, whether represented or unrepresented, to determine whether an accused potentially falls within the definition of an occupier as defined in ESTA. If it is found that the accused raised issues that brings him under the purview of the protection of ESTA, the magistrate must rather record a plea of not guilty and allow the proceedings to continue on that basis.

Findings: In the present case the exchanges between the magistrate, the prosecutor and the appellant’s legal representative during the sentencing proceedings should have raised doubt over the appellant’s unlawful occupation of the house on Olifants-kop farm. Based on this, the court should have entered a plea of not guilty and allowed the trial to continue on that basis. On consideration of the record, it is evident that neither the magistrate, prosecutor, nor the appellant’s legal representative had an appreciation that the Trespass Act expressly refers to ESTA. Rather than using the Trespass Act to remove an occupier, the correct legal procedure to follow was the eviction process prescribed by ESTA. Although the Trespass Act criminalises unauthorised entry onto land, magistrates and prosecutors should guard against the provisions of the Trespass Act being used to evict and should always undertake an inquiry to determine whether the accused’s presence was lawful under ESTA.

Order: The conviction and sentence in respect of the provisions of the Trespass Act are set aside. It is left within the discretion of the DPP or the senior prosecutor of the lower court to decide whether to institute the proceedings against the appellant de novo.

MONTZINGER AJ (HENNEY J concurring)

Facts and issue: This automatic review concerns whether it was just and equitable for the magistrate to grant an eviction order in terms of section 11 of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The eviction follows the termination of the occupier’s employment, which is tied to the family’s right of residence. The right to residence on the farm was an employment benefit under the previous owner of the farm. The key issue is whether the termination of Mr. Menas’s right of residence was just and equitable under the provisions of section 11 of ESTA, both substantively and procedurally.

Discussion: What is in dispute are the circumstances surrounding the termination of his employment, and whether Mr Menas forfeited his right to residence when he agreed to medical boarding. It is accepted that there was compliance with procedural fairness required by section 8(1)(e) of ESTA. However, more is required. An analysis of all the interests and circumstances of the occupiers through the lens of constitutional values. The family have lived on the farm for about 13 years. They are all unemployed and there is a young minor child that lives with them. They have no alternative accommodation. The Bergrivier Municipality confirmed that they do not have any available housing opportunity for the Menas family. A probation officer submitted a report in terms of section 9 (3) of ESTA stating that there is no suitable alternative accommodation available for the family and an eviction will render them homeless. Mediation was recommended.

Findings: The balance of interests must consider not only the landowner’s rights but also the significant consequences for the occupiers. The fact that the Menas family are unemployed and have no suitable alternative accommodation means that the eviction would result in severe hardship. The Menas family is at a profound economic disadvantage and an eviction would likely lead to homelessness. The magistrate’s decision did not adequately weigh these considerations, focusing instead on procedural formalities rather than the broader equitable implications. By focusing narrowly on procedural formalities and contractual obligations, the magistrate ignores the requirement that the court must also consider the broader social and economic context. The eviction order is set aside, and the matter is remitted for further consideration, with an emphasis on ensuring substantive fairness and possible mediation.

Order: The case is remitted to the magistrate’s court to reconsider compliance with the just and equitable requirements of ESTA and consider ordering mediation or further settlement discussions.

Facts and issue: Two plaintiffs seek an order declaring them to be labour tenants in terms of section 33(2A) of the Land Reform (Labour Tenants) Act 3 of 1996. The affected land is a farm. The defendant defends the action on the basis that the first plaintiff (Mr Mkhize) was a farmworker as defined in the Act and the second plaintiff (Mrs Mkhize) was a former employee and a wife of Mr Mkhize, she is therefore an occupier in term of the Extension of Security of Tenure Act.

Discussion: The plaintiffs must satisfy the requirements to be considered labour tenants. Paragraph (a) of the definition of a labour tenant provides that for a person to be a labour tenant, he or she must reside or must have the right to reside on the farm. Mr. Mkhize was born on the farm, and he has resided there since he was born and is residing there till today. He, together with his family were given the right by Mr. Comrie and other successive landowners to reside on that farm. It is equally not in dispute that the second plaintiff, Gladys, before she got married to Mr. Mkhize, was staying on a farm commonly known as Dwangaza. She got married to stay to Mr. Mkhize and came to stay with Mr. Mkhize on Kincairn farm and they are both staying there even today. Both plaintiffs therefore satisfy the requirement of paragraph (a) of the definition of a labour tenant. In terms of paragraph (b) for the person to be a labour tenant, he or she must have had the right to use cropping or grazing land on the farm on which he or she reside or another farm of the owner and inconsideration for such a right, the person must provide or must have provided labour to the owner or lessee.

Findings: It is not in dispute that Mr. Mkhize had a right to use grazing land on the farm. Mr. Mkhize had both grazing and cropping rights in the farm. Mr. Mkhize was alternating working 6 months off in Mr. Comrie’s kitchen with his father. That is exactly the characteristic of labour tenancy. The evidence given by Mr. Mkhize that his great grandparents, grandparents and parents resided on Kincairin farm is undisputed. Mr. Mkhize testified about the graves of Cothovana, Sikhohlisi and Bhekindlela which are on the farm. Mr. Peddle and Clowes agreed that there are Mkhize graves on the farm. Mr. Mkhize has satisfied the requirement of paragraph (c) as well. The position of Gladys is somewhat different from that of Mr. Mkhize. The court has not been persuaded to believe that Gladys satisfies paragraphs (b) and (c) of the definition of a labour tenant. Whilst Gladys resides and has resided on the farm, there is no evidence that she had a right, independent from that of Mr. Mkhize to use grazing or cropping land on that farm.

Order: In terms of section 33 (2A) of the Land Reform (labour Tenants) Act 3 of 1996, it is declared that the first plaintiff Muzongafi Mkhize is a labour tenant.

Facts and issue: Automatic review emanating from the Magistrate Court, in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The magistrate dismissed an eviction application instituted against the respondents from the farm. The magistrate held that no due process was followed to cancel the employment agreement of the first respondent, therefore the application to evict the respondents is fatally flawed and, on that basis, alone, the application was dismissed.

Discussion: The first respondent absconded from his work and the applicant later found that he had obtained employment from a neighbouring farm. The first respondent was dismissed following his abscondment. The first respondent did not have good employment relationship with the applicants. He was issued with various warnings emanating from misconduct during his employment. The second respondent’s relationship with the applicants came to an end when she was summarily dismissed following a disciplinary hearing after she was found guilty of   gross dishonesty. The second respondent was caught selling the produce to others for her own benefit. She admitted to the charge. The second respondent was dismissed and was also given a notice to vacate. She refused to sign the letters. The respondents were served personally with a letter via Sheriff requesting them to make representations as to why their right of occupation should not be terminated. The respondents did not make any representations, and their right of residence was terminated.

Findings: The Magistrate Court had no jurisdiction to determine whether the first respondent’s employment has been terminated in terms of section (8)(2) of ESTA. The applicants have complied with all the procedural requirements specified at section 9 of ESTA. The respondents have continuously refused to vacate the farm. The property is required for accommodation of other employees who are staying outside of the farm. The respondents have not vacated the property within the period of notice given by the applicants.

Order: The respondents are evicted from the farm. The respondents are ordered to vacate the farm on or before 31 December 2024. The Swellendam Municipality is ordered to provide the respondents with temporary emergency accommodation on or before 30 November 2024.

Facts and issue: Automatic review emanating from the Magistrate Court, in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). In the Court a quo, the Applicants contended that they were entitled to the eviction order against the respondents because the respondent's right of residence had been terminated in accordance with the provisions of section 8 of ESTA. The respondents had not vacated within the two months given and that the provisions of section 11 of ESTA had been complied with.

Discussion: The respondents disputed that the termination of their right to residence was just and equitable in terms of section 8(1) read with section 9 (2)(a)[4] and section 11, therefore, the eviction order would not be just and equitable. The respondent averred that the notice of termination of rights, which summarily cancelled their oral agreement to reside in the house, was unfair in that they were not given sufficient notice. They expected to continue to occupy the house as the applicant, on previous occasions, threatened with eviction, which later allowed them to continue residing in the house. In the notice purportedly given in terms of section 8 read with sections 9(2)(d)(i) and 11, the applicant seeks to cancel the right of residence in terms of section 8. In the same document, he gives the respondents a notice to vacate and his intention to obtain an eviction order. The hybrid approach of terminating the right of residence and giving notice of intention to obtain an eviction order in the same notice is not acceptable.

Findings: The learned Magistrate did not pay any regard the two-stage procedure that must be followed. Instead, the Magistrate paid much attention to the fact that the respondents admitted that they were unlawful occupiers and occupied the property without the applicant’s consent. Except to mention that the provisions of section 11 had been complied with, the applicant did not expand on how these provisions were complied with. The Magistrate failed to address the non-compliance with sections 8 and 11 of ESTA, so the eviction order was not just and equitable.

Order: The order of the Magistrate is set aside in its entirety.

Facts and issue: The matter comes on automatic review in terms section 19(3) of the Extension of Security of Tenure Act 62 of 1997. The Magistrate, George, granted an eviction order against the respondents who occupied the property when the farm's caretaker gave consent to the respondents' parents to reside on the farm as a security measure. Both parents of the respondents are deceased. The respondents' occupation was based on a rental agreement.

Discussion: The respondents did not appear unwilling to pay but feared they were paying the wrong person. It is inexplicable how the court arrived at the conclusion that the termination of residence was valid when the failure to pay was not wilful. The occupier was not afforded an opportunity to remedy the breach, and they were willing to do so. To the extent there was a breach in terms of section 6(3) of ESTA there was no written notice affording thirty days to remedy such breach and no indication what the nature of the breach was, and the steps required to remedy the breach. There is no indication that the Municipality was engaged or the Department of Land Affairs. Section 12(2) of ESTA enables a court to determine a just and equitable date having regard to relevant factors including the fairness of an agreement between the parties. In considering whether it is just and equitable to grant an eviction the Court must consider the availability of suitable alternative accommodation.

Findings: The eviction according to the Probation Officer will negatively affect the respondents. They are not on a waiting list of the Municipality and have been unsuccessful in securing rental accommodation as it exceeded their means. The date does not consider that the children are required to vacate in the middle of a school year, which will be disruptive and emotionally detrimental, as indicated by the Probation Officer. Commercial interests cannot surpass the wellbeing and the dignity the occupiers and their children are afforded by allowing sufficient time to transition to alternative accommodation.

Order: The order made by the Magistrate C Daniels on 29 July 2024 is confirmed with the following amendments. The respondents will continue to occupy the property until they have to vacate the property on 31 January 2025.

Facts and issue: Eviction application instituted by the applicant in terms of the Extension of Security of Tenure Act 62 of 1997 for the eviction of the respondents on the farm. The applicant is the registered owner of the farm. The applicant contends that the respondents erected a structure on the farm without the applicant’s consent. The respondent, Ms. Julies, failed to remedy the breaches. The respondent denies any breach of any policy or agreement regulating her stay on the property.

Discussion: Ms. Julies contends that when the applicant took over the farm as a new owner, she was informed that the house they were residing in was needed for the erection of the office space. The office space has still not been built. The applicant offered her a two-bedroom house, but she rejected the property because it was not safe due to the high crime rate, and it was far from schools and medical facilities. Ms. Julies contends further that the identified property was not suitable for her as she is suffering from chronic illness and has lived on the farm for 44 years, and the farm has sentimental value to her. Ms. Julies disputes that she did not look for alternative accommodation. On the erection of the unlawful structure, Ms. Julies contends that the Applicant’s action of relocating them necessitated the erection of the structure. The respondents’ version raised various disputes of facts. The applicant's position regarding the disputes of facts apparent from the respondents' answering affidavits was that they were not real disputes of facts; thus, there was no application to refer the matter to oral evidence.

Findings: When the respondent’s version raises bona fide factual and material disputes, the matter must be decided on the respondent version unless it is so farfetched or clearly untenable that it can be rejected on papers. The respondents’ version is not so farfetched that it can be dismissed on paper. It cannot be said that it contains sweeping unsubstantiated allegations by any stretch of the imagination, as the applicant contends. Ms. Julies’ version is supported by documents and confirmatory affidavits. The applicant should have foreseen that genuine disputes of fact were likely to arise in the application, but it elected to proceed by way of motion proceeding. The applicant has failed to make out a case for the relief sought.

Order: The application is dismissed.

Facts: Mr Roux and all those occupying through him (respondents) have been residing on the farm since 2017, initially with the consent of Mr Keet, the previous owner. Goedverwachting Farm (applicant) states that the respondents had a limited consent to occupy the property afforded to them by Mr Keet, which was properly terminated. According to Mr Keet, prior to the property being sold to Goedverwachting, he was approached by members of Deneys Swiss Dairy who expressed an intention to purchase the property and run a dairy business on the land. Pursuant to the proposed purchase the respondents were afforded a conditional right of tenancy on condition that the agreed purchase price was paid on the agreed terms. Deneys, according to Mr Keet, breached the purchase agreement and any right to the tenancy of the property was terminated. The agreement of sale was cancelled and the property thereafter sold to Goedverwachting.

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Appeal: Against a decision of the Land Claims Court (LCC) which dismissed an application for eviction in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The issue in this appeal is one of jurisdiction, namely whether Mr Roux falls within the definition of an “occupier” in terms of ESTA. If not, the LCC does not have the necessary jurisdiction. It is not disputed that the farm in question is agricultural land and that at some stage Mr Roux had consent to occupy the farm. The narrow question for determination is whether commercial farming was conducted on the farm, and if so, whether there were persons other than Mr Roux and his family members employed on the farm.

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Discussion: The only defence put up by the respondents is that the land in question belonged to them by virtue of their aboriginal title and because they had purchased the farm. No evidence was provided to support this defence. It was contended that the land was stolen from the Gona-Hesse !Khwe people who are the real landowners and the true indigenous aboriginal people of South Africa. The finding of the LCC that the respondents did not fall within the purview of ESTA was based solely on the probation officer’s report provided by the Department of Agriculture. In terms of section 9(2)(c) of ESTA a court is compelled to obtain a report to ensure the “conditions for an order for eviction in terms of section 10 or 11 have been complied with.” Section 1 excludes from the definition of an occupier a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes. The LCC mentioned that the Probation Report noted that the first respondent operates a farming business which consists of 200 pigs and 18 cattle, a commercial business, and then found that the respondents are simply excluded by section 1 by reason of the commercial enterprise.

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Findings: The probation officer’s report cannot usurp the court’s discretion as to whether an eviction should be granted. The report is not made under oath and is not evidence before the court. Even on Mr Roux’s own version, it contained factual inaccuracies. There is no evidence of any commercial activity at the time the eviction application was launched. The aerial photographs do not reflect this. If indeed a business enterprise were operating on the farm, one would have expected some financial information to be provided. But more importantly, this was not the version put up by the respondents. This court has repeatedly emphasised that the function of judicial officers is to determine the issues before them and to confine themselves to such issues. The probation officer’s report cannot be used as a substitute for evidence. It was incumbent upon the respondents to raise the issue that they did not fall within the definition of an occupier in terms of ESTA and to set out the reasons therefor. The LCC impermissibly took it upon itself to make a finding on an issue that was not in dispute between the parties, without hearing either party on the issue. In doing so, the LCC erred in finding that the respondents were excluded from the definition of “occupier” under section 1 of ESTA and dismissing the application for eviction on this basis. Taking into consideration that the requirements of section 11 of ESTA have been complied with, it is just and equitable to grant an order for eviction against Mr Roux and all those occupying through him.

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Order: The appeal is upheld. The order of the LCC is set aside and substituted with an order that the respondents be evicted from the farm. There is no order as to costs.

NICHOLLS JA (MEYER JA, MATOJANE JA, COPPIN AJA and MBHELE AJA concurring)

Facts and issue: The trust launched an application in the Land Claims Court seeking that the respondents, who are ESTA occupiers, be ordered to forthwith remove all their grazing animals from the applicant’s farm. The LCC held that a tacit agreement had been concluded and tacit consent had been granted by the trust to the respondents to keep livestock and exercise grazing rights on the farm. As the trust had not invoked the provisions of section 8 of ESTA, the termination of the grazing rights by the trust could not be upheld. This appeal is with the leave of the LCC.

Discussion: The LCC took it upon itself to consider whether there could have been a tacit agreement or tacit consent pursuant to which the Mereki children had been grazing their livestock on the farm. This, the LCC did in circumstances where no such case had been advanced by the Mereki children. The finding of the LCC that tacit consent to graze livestock had been granted and that there was a tacit agreement with the trust to that effect was thus not based on any proper factual foundation. the conclusion reached by the LCC rested on a foundation that was purely conjectural, not foreshadowed in the papers and of which the trust had not been forewarned. It follows that neither the approach, nor the conclusion reached by the LCC can be supported on appeal.

Findings and order: The appeal is upheld. The order of the Land Claims Court is set aside and replaced. The respondents are ordered to forthwith remove all their livestock from the applicant’s farm.