First Realty (Krugersdorp)(PTY) LTD v. Gertjie Mitchell and Others (Farm Hammansdans)

Nature of the Case

The Land Claims Court of South Africa dismissed an application to evict several families from a farm in the Western Cape, finding that the Applicant failed to comply with the provisions of section 9(2) of the Extension of Security of Tenure Act, 62 of 1997 (“ESTA”) in that it impermissibly regarded only its current and former employees as occupiers of the property in their own right, the occupiers right of residence had not properly been terminated, and the property owner did not comply with the conditions for an order for eviction. In a landmark case credited for protecting the rights of children and the right to family life, the court held that the adult non-dependent children of the farmworkers were occupiers in their own right and therefore entitled to protection under the Act.

Enforcement of the Decision and Outcomes

In finding that the Applicant failed to comply with the conditions for eviction under the ESTA, the court dismissed its application to evict the Respondent families from the farm Hammansdans. The court found that (1) the Applicant neither formally terminated the rights of residence of the Respondents, nor would termination have been just or equitable, and (2) the Applicant improperly failed to afford the adult non-dependents the full scope of their rights under the ESTA. In effect, the court determined that adult non-dependent children of farmworkers living on farms are occupiers in their own right entitled to the full protection of the ESTA—a victory for the rights of children and to family life in South Africa.

Significance of the Case

A landmark decision for eviction proceedings, the finding that adult non-dependent children are occupiers in their own right set a precedent for protecting the rights to family life, children, and farmworkers in South Africa. Some activists hailed the decision as the beginning of the end of this “inhumane practice” of evicting family members from farms in the region (Daily Maverick). The ruling now presents a new barrier to the ability of farm owners to evict the children and other family members over the age of eighteen of their workers from their homes on the properties. There are currently a number of similar pending applications in the region that may benefit from this ruling.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

Groups Involved in the Case

For the 1^st to 26^th Respondents (except for 2^nd and 3^rd Respondents): Ashraf Mahomed Attorneys

For the 27^th and 28^th Respondents: Van der Spuy and Partners

For the Applicant: Oosthuizen & Co