LAND TENURE

Facts: The claim for payment arises from legal work the firm (applicant) alleges it has performed and disbursements for which it is liable, including counsel’s fees, on behalf of the Kwalindile Community in three consolidated cases. These cases involve Kwalindile’s claim for restitution of large tracts of land in and around Mthatha. The claim is opposed by the King Sabata Dalindyebo Municipality and other alleged interested parties including the Zimbane Community which had lodged a competing land claim in respect of a portion of the land claimed by the Kwalindile. The legal firm is M Magigaba Inc Attorneys and Mr Magigaba is a practicing attorney and the sole director.

Application: The application was brought because Legal Aid refused to pay for the fees and disbursements claimed by the applicant since 1 January 2022 pursuant to its continued representation of the Kwalindile in the on-going court hearings that had commenced prior to Legal Aid taking over the management of legal assistance to litigants in these land claims cases. The crisp issues are whether the applicant is entitled to charge fees or incur disbursements for any work performed prior to being accredited and, if it is still not accredited, whether Legal Aid is entitled to withhold accreditation.

Discussion: Section 29(3) of the Restitution of Land Rights Act 22 of 1994 recognises a right to legal representation. Legal Aid took a number of legal points which included that this court lacks jurisdiction because the claim is one sounding in money and that the same case number was used as allocated to the main land restitution proceedings. The points in limine are without merit and are dismissed with costs. The applicant has represented the Kwalindile since 2007 pursuant to its appointment by the Land Claims Commissioner. The applicant has been paid for all fees and disbursements incurred up to the end of December 2021 through the various legal assistance regimes responsible for its management. Legal Aid took over the managing of legal assistance on behalf of the commissioner on 1 January 2022. Legal Aid said that the applicant was never given a mandate by it to continue representing the Kwalindile and that all other legal practitioners who continue to represent the claimants were accredited and are compliant.

Findings: On examining the correspondence between the parties the court is satisfied that there was no termination of the applicant’s mandate. Once the mandate was not revoked then the issue of accreditation which was solely for the purposes of the Kwalindile matter was a regulatory requirement to regularise the payment for fees and disbursements incurred. Since payment can only be effected once accreditation occurs, the amount only becomes due and payable on accreditation. Nor can there be a concern about wasteful or unauthorised expenditure. The expenditure had been authorised when the Commissioner exercised the power under section 29(4) to provide legal assistance to the Kwalindile. The only issue is whether the amounts claimed are within the fees parameters. Both the proper administration of justice and the interests of justice, involving as it does provisions in the Bill of Rights, required the applicant to continue representing the Kwalindile, for which Legal Aid is liable by reason of the invocation of negotiorum gestor.

* See in particular paras [86]-[96].

Order: Legal Aid is ordered to pay the applicant such fees and disbursements as are assessed by it or duly taxed in accordance with its procedures in respect of work done and disbursements incurred in representing the Kwalindile Community during the period from 1 January 2022 to 8 September 2023. Legal Aid shall pay the applicant the party and party costs of the application.

SPILG J

Facts and issue: The applicants have applied, on an urgent basis, for interim relief relocating the respondents, so as to enable their open cast coal mining activities to continue. The respondents are occupiers as defined in the Extension of Security of Tenure Act 62 of 1997. Mining activities have ground to a halt primarily because under the applicable regulations, blasting activities may not be undertaken within a horizontal distance of 500 metres of occupiers’ homes. 

Discussion: In order for mining to continue, it is necessary for blasting to take place within a radius which includes the homes of the respondent’s families, but which will in the next few months extend to a radius that includes the homes of the other affected respondent families. Unless blasting continues in the near future, the applicants will be unable to meet their contractual commitments, and the mine will close. This will result in a loss of numerous jobs, livelihoods and social benefits emanating from the mine. The applicants should succeed in obtaining such relief as will enable them to continue mining activities safely and lawfully while simultaneously ensuring that the legitimate concerns of the respondent families, their dignity and security of tenure are duly protected. The applicants are without alternative remedy. The respondent families have agreed to relocate to the permanent accommodation once built. It is just and equitable that the applicants obtain temporary and interim relief.

Findings and order: The respondents and all persons claiming rights of residence through them are ordered, by 16h00 on 23 February 2024, to vacate their existing homes on the farm and relocate to the temporary housing made available for them by the applicants. 

Facts and issue: The applicants seek an order for the eviction of the respondents from the property.   The applicants are joint trustees of the Trust. The Trust is the owner of the property. It is not in dispute that the respondents are in occupation of the property. Prior to the first respondent taking occupation of the property, the property was under the occupation and control of one Meyer. Meyer was murdered on the property. The existence of the first respondent’s claim rests on the nature of her occupancy, and in turn whether she has a valid lien over the property.

Discussion: The essence of the applicants’ contention is that having occupied the property without their consent, the first respondent and her family are refusing to vacate the property, or pay any consideration for municipal services, despite the fact that they are expropriating rental income which previously used to be paid to the Trust, and despite the fact that they are running a ‘pet shop’ business from the property. A conclusion that the property falls within the scope of the ESTA is inescapable. With the exclusion of Papu, who occupied the property under Meyer during his lifetime until his demise, all the other respondents do not have the consent of the owner of the land and are in unlawful occupation of the property. Unlawful occupiers in the circumstances of the first respondent, and all those who claim occupation under her are not covered by the ESTA. The respondents’ rights in the circumstances  of section 4(7) do not extend to the right of occupation of the property, but their right to dignity, the right not to be treated in a cruel, inhumane and degrading way. It would be just and equitable that the respondents are evicted from the property.

Findings and order: The respondents are ordered to forthwith deliver to the applicants, the property. In the event that the respondents fail to deliver the property to the applicants, and remain in occupation for a period of fourteen days of this order, the Sheriff of the court is authorised to eject the applicants from the property. 

Facts and issue: The appellants appeal against the whole  judgment and order which refused an application for the eviction of the respondents. The farm is owned by the trust. The existing employees’ contracts, including those of the respondents, were not taken over by the trust. The respondents were employed by the previous owner and have been residents on the farm as a result of their employment with the previous owner.

Discussion: The respondents refused an offer of employment from the trust when it became owner of the farm. As the respondents were occupiers by consent, the factors set out at section 8(1) of ESTA, have relevance and ought to have been considered by the court a quo. With regard to section 8(1)(a), there was no agreement between the owner and the respondents for the latter’s continued residence on the farm. The respondents were given an opportunity to be employed on the farm, an opportunity they declined. Given that the circumstances on the farm had changed, the respondents were not entitled to insist on the terms and conditions of their employment. There was no employment relationship between the appellants and the respondents. Nor was there any agreement in terms of which the respondents could claim continued security of tenure on the property. The owner sought to engage with the respondents to offer them employment and to make representations before terminating their right of residence. The respondents declined both offers.

Findings: The respondents have lived rent free for four years at the appellant’s expense and there is no indication that the respondents who are employed, have attempted to find alternative accommodation themselves. The requirements as set out at section 9 read with section 8(1) of ESTA have been met and that the respondents’ eviction is warranted. Their eviction will be rendered just and equitable if it is linked to the provision of emergency accommodation by the Municipality.

Order: The respondents shall vacate the premises by no later than 30 July 2024. The Municipality must provide the respondents with emergency accommodation on or before 15 July 2024 provided they are still on the farm and have not vacated it.

Facts and issue: The judgment considers two appeals which were heard together as they pertain to the eviction of the respondents in both matters from the same farm owned by the same owner. The respondents came to reside on the farm with their parents. Both respondents were employed by the previous owner of the farm. The applicant purchased the farm in and upon doing so provided all occupiers residing on the farm, including the respondents with an opportunity to apply for employment. The respondents did not apply for employment.

Discussion: With regard to section 8(1)(a) there was no agreement for the respondents’ continued residence on the farm. The respondents were given the option to continue residing on the farm if they were to be employed by the Appellants, an option which they rejected. Given the policy of the appellants to provide accommodation for employees only, they required the respondents to vacate the dwellings they occupied so that these could be available to other employees. It would be just and equitable to grant an order for the eviction of the respondents who have been living at the appellants’ expense on the premises since 2014, who have rejected the offer of employment, who work elsewhere, and for whom emergency accommodation is available. 

Findings and order: The appeal succeeds. The respondents shall vacate the dwellings by no later than 28 February 2025. The Municipalities must provide the respondents with accommodation provided the respondents are still on the farm and have not vacated it.

Facts and issue: This matter is an automatic review in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997. It concerns the review of an order for the eviction of the first to fourth respondents from the house they occupy on a farm owned by the applicants. The eviction of the respondents was granted pursuant to dismissal and termination of the right of residence of the first respondent, an employee, whose right of residence arose solely from his employment agreement.

Discussion: The first respondent’s dismissal was for gross misconduct, a charge to which he pleaded guilty at an internal investigation and which dismissal was subsequently confirmed by the CCMA. The order for the eviction of the first respondent occurred in accordance with the provisions of sections 8(2) and (3) of the Act read together with section 9(2)(a). The eviction of the first respondent thus stands to be confirmed. The court is, however, unable to confirm the eviction orders granted in respect of the further respondents. It is undisputed that the further respondents have lived on the premises continuously since 2007 with the knowledge of the applicants. Section 3(4) of the Act provides that for the purpose of civil proceedings 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. The further respondents are thus occupiers whose rights to occupy flow from consent. This being so, an eviction order could only have been granted if each of their rights of residence had been terminated in terms of section 9(2)(a) read with section 8(1) of the Act. Section 8(1) is applicable to persons like these respondents whose rights of residence flow from consent.

Findings: Not only was Section 8 (1) not considered in relation to each of them, but the first two notices relied upon by the applicants for the termination of the rights of residence of all the respondents make no mention of the second to fourth respondents, and the third notice refers to them as occupants whose rights to reside are held insofar as the first respondent continues to have rights of occupation. This is clearly wrong in law and is contrary to the findings of the Constitutional Court in the well-known judgment of Klaase & another v Van der Merwe N.O and & others [2016] ZACC 17.

Order: The order for the eviction of the first respondent is confirmed. The order for the eviction of the second to fourth respondents is set aside.

Facts: The respondents live on a farm which is owned by the appellant. They derive their right of residence from their late parent, who was permanently employed on the farm by the previous owner. Such right to residence had terminated upon the deceased’s death, however, his wife and children continued their occupation on the farm. The magistrate’s court handed down judgment and the eviction application was dismissed. The court a quo held that section 10 of Extension of Security of Tenure Act 62 of 1997 (ESTA) applies. The court a quo further held that the applicants failed to comply with the provisions of section 8(1) of ESTA and failed to prove on a balance of probabilities that the application for eviction is procedurally fair, just and equitable.

Appeal: Against the order of the magistrates court which dismissed the appellants eviction application. At issue is whether there has been compliance with relevant sections of ESTA and whether the appellants have shown that it would be just and equitable to terminate the occupiers’ right of residence and for an order of the occupiers’ eviction to be granted.

Discussion: The appellants submit that the respondents occupy the farm dwelling without any form of consent nor any right in law to do so. Further, that the procedural steps required by law and ESTA for granting of an eviction order were complied with. They contend that they are being acutely prejudiced by the continued residence of the respondents as housing cannot be allocated to the deserving permanent employees of the farm. The appellants initially made an offer of R10,000 to the respondents as a financial contribution to assist them with their relocation from the farm. The offer was conditional upon the respondents first vacating the dwelling on the farm. Counter proposals were made by the respondents to the effect that an amount of R30,000 would be acceptable to secure a Wendy house to be erected on their relative’s premises. The appellant increased the offer to R15,000. The parties failed to agree on the terms and conditions of the appellants’ offer and the amount offered.

Findings: The court a quo erred in its findings that section 10 of ESTA and not section 11 of ESTA finds application in respect of the first and second respondents. Section 11 of ESTA is applicable to all the respondents. The procedure followed by the appellants was fair. The opportunity given to the respondents to make their representations was an effective opportunity as envisaged by section 8(1)(e) and in accordance with the principles of procedural fairness as envisaged in section 8 of ESTA. In the circumstances, the termination of the respondents' rights of residence was just and equitable. Accordingly, the magistrate erred in finding that it would not be just and equitable to grant the eviction. The requirements specified at section 9(2) read with section 8(1) of ESTA have been complied with and an order for the eviction of the respondents ought to have been granted by the court a quo.

Order: The appeal succeeds. The respondents shall vacate the farm dwelling on the specified date.

FLATELA J

Facts and issue: The applicant sought an order permitting him to bury his son, the deceased, on the farm. The previous owners of the farm had allowed the applicant and other families residing on the farm to bury their departed members of the family on the farm. The applicant reported the death of the deceased to the owner and requested for permission to bury him on the farm. No response was forth-coming from the respondent. The applicant, as he was anticipating the refusal from the respondents, approached court for a mandamus.

Discussion: The starting point of exercise is section 6(2)(dA) which provides that the occupier shall have the right to bury a deceased member of his or her family who at the time of that person’s death was residing on the land on which the occupier is residing in accordance with their religion or cultural belief, if an established practice in respect of the land exists. The problem which the applicant is facing is to prove that the deceased died whilst resident on this particular farm. The applicant left the farm with his family members in 1979 which is 45 years ago. The deceased was not residing on the farm at the time of his death. He had left the farm 45 years ago. The applicant also was not residing on the farm with the deceased when the deceased passed away.

Findings: The Act requires that the rights of the occupiers must be weighed and balanced against the rights of land owners. There can be no justification for the applicant, to continue to bury more members of his family on a farm where he does not reside and where for 45 years has not stayed there.

Order: The application is dismissed.

Facts and issue: The applicant applies to evict the respondents from property in terms of the Extension of Security of Tenure Act 62 of 1997. The property is farm and the respondents right to occupation derives from employment. The main issues are whether the occupiers’ rights were terminated in accordance with section 8 of ESTA, and whether the conditions for an order for eviction in terms of section 11 have been complied with.

Discussion: The formal process of termination of rights of residence under section 8 of ESTA ensued by way of a letter the applicants sent the respondents. The applicant offered various assistance regarding relocation, indicating flexibility about the date of vacation, arranging a bank consultant to obtain finance, assisting with viewing properties, liaising with the Municipality and providing vehicles and labour to relocate. The applicants provided a substantial period for engagement and sought to assist the respondents prior to the termination of rights. The applicants persistently demonstrated a willingness to assist. the applicants reasons for the termination of the respondents’ occupation rights were fair, and it was just and equitable to terminate them. 

Findings: The termination of the respondents’ rights was procedurally fair. The applicants complied with section 8 of ESTA. There will be suitable alternative accommodation available to the respondents. Justice and equity demand that the respondents be afforded adequate time to find suitable alternative accommodation in the rental market.

Order: The respondents are ordered to vacate the property on or before 30 June 2024.

Facts and issue: Automatic review of an eviction order granted by the Magistrate. The Magistrate granted an eviction order authorizing the respondents’ eviction from the first applicant’s property. The eviction order was granted in circumstances where the first respondent’s right to reside on the property was linked to his employment, which had been terminated.  It was terminated by dismissal for misconduct, relating to his sale of alcohol from the property. An eviction order may only be granted in terms of ESTA if the requirements of section 9 are complied with.

Discussion: There are two reasons that the order cannot be confirmed.  The first is that on the information before the Magistrate provided by the probation officer, the second respondent was an occupier in her own right when the applicants sought to terminate her residence only on 24 May 2017. She had resided on the property since 2013, and had done so openly. The protections of section 3(4) and 3(5) of ESTA accordingly apply. In those circumstances, the conclusion could not be reached that her rights had been terminated in accordance with section 8 of ESTA. This is because the applicants gave her a notice to vacate without any hearing and without considering her status as an occupier. The second reason concerns the duty on the court to consider whether there is suitable alternative accommodation available to the respondents and whether an eviction might lead to homelessness. The probation officer specifically recommended that the court involve the Municipality to ascertain if there is temporary shelter available for the respondents. There is no suggestion that the court considered this and no report was procured from the Municipality. The court erred in failing to consider this recommendation and to request a report from the Municipality because, without it, the court was disabled from duly assessing the impact of the eviction on the family, including whether they could be accommodated in temporary emergency accommodation.

Findings and order: The order is set aside and the application is remitted to the Magistrate’s Court.   The Registrar of the Magistrates Court is directed to request the Theewaterskloof Municipality to deliver a report to address the concerns raised in paragraph 9 of the judgment.

Facts and issue: The applicants are and have always been occupiers of the farm. Thier right of occupation of the cottages was linked to their employment relationship with the Trust. The applicants took part in unprotected strike. They were then dismissed from work. Their employment relationship with the Trust formally came to an end and they were ordered to vacate the farm. They did not vacate. Trust approached this court, seeking the eviction of the occupiers. The application was dismissed. The Trust appealed to the Supreme Court of Appeal. The SCA upheld the appeal, set aside this court’s order, granted the eviction of the occupiers and ordered them to vacate the farm. The municipality was ordered to provide to the applicants emergency housing suitable for human habitation, with access to basic services, which may be communal. 

Discussion: Section 35(11) of the Restitution of Land Rights Act makes it clear that this court has no jurisdiction to interfere with orders of the SCA. Let alone adding an order directing the municipality to negotiate with other State Departments to purchases a piece of land for the applicants. Rule 65(3) provides that the court may suspend an order of the court for a given period or until the happening of a particular event. In terms of this Rule, court can only suspend the order which was made by the Land Claims Court and only for a specified period. In casu, the applicants seek the order to suspend the SCA order for an indefinite period or pending the success of negotiations to purchase a piece of land to be used for the settlement of the applicants.

Findings and order: The application is dismissed.

Facts: Mr and Mrs Du Plessis (appellants) were residing on the farm when the trust purchased it in 2013 and it appears that they had been doing so for some time. They stayed in a house on the farm pursuant to an oral lease agreement concluded with the erstwhile owner. The appellants are both over 70 years old and are retirees who now depend for their survival on a state pension of R1,860 each per month. The trust became the lessor but the appellants fell into arrears with their rent. The trust required the house for the farm manager and his family. It did not wish to evict the appellants from the property, but would make a smaller house available to them, contending that it could easily accommodate them.

Appeal: Against the relocation order granted by the magistrate in terms of section 19(1)(b)(i) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The relocation order was granted in the form of a mandatory interdict. It directed the appellants to vacate the three-bedroomed house and move to the smaller house on the farm.

Discussion: The Supreme Court of Appeal has confirmed that a relocation of an ESTA occupier to a different house on the same registered property is not an eviction under ESTA. Nevertheless, the scope of the rights of persons, when subject to relocation processes, remains contested. The trust, the magistrate found, has the right to determine how to manage its own assets. Conversely, the appellants do not have the right to dictate to the trust how it must manage its assets including on matters such as which house it should use for its management. The trust explained that the then farm manager was a black South African and an extremely competent farm manager. It was increasingly problematic for two individuals who do not pay any rental and do not contribute to farming operations and never have, and who are white and thus not previously disadvantaged, to be allowed to reside in a house of considerable higher status to that of the farm manager.

Findings: Properly interpreted, section 8 of ESTA is invoked where an occupier’s right of residence is terminated, whether or not that termination is intended to lead to an eviction either at the time it is terminated or at any time thereafter. An interpretation of section 8 that entails its application even where a person’s right to reside on land is not being terminated will promote and advance the spirit, purport and object of the bill of rights and the security of tenure of people whose land rights were eroded as a result of South Africa’s past. There is no evidence upon which the court can conclude that the appellants are long-term occupiers. The court is unable to fault the magistrate’s reasoning in concluding that the trust had established a case for an interdict. No ground of appeal is advanced that can upset her factual findings, which are justified on the evidence, or her conclusions.

Order: The appeal is dismissed. There is no order for costs.

COWEN J (NCUBE J concurring)

FLATELA J agreeing from para [54], except on the issue is whether the provisions of section 8 of ESTA apply to all relocations or apply only to evictions.