Summary
In this South African Land Claims Court case, the judge dismissed an application to evict several families from the property known as farm Hammansdans. The application was brought by First Realty (Krugersdorp) (Pty) Ltd. (“Applicant”), under the provisions of the Extension of Security of Tenure Act (“ESTA”), a law enacted to provide measures for state assistance to facilitate long-term security of land tenure, to protect the rights of property owners and persons who reside on the land with consent (i.e., “occupiers”), and to regulate the conditions on and circumstances under which persons may be evicted from their homes (see Extension of Security of Tenure Act, 62 of 1997 (S. Afr.)). Finding that the Applicant neither adequately averred that the respondents’ rights of residence were terminated under the ESTA, nor that it properly regarded the adult non-dependent children as occupiers of the property in their own right, and that it failed to comply with the conditions for an order for eviction, the court dismissed the application for eviction.
The twenty-six Respondents to the case had been divided across seven households (42 people) residing on the property, with each household allocated to a current or former employee of the Applicant or its predecessor. The current and former employees had lived with some combination of their spouses, adult children, and/or minor children on the premises for years before the Applicant purchased the farm.
This dispute regarding the rights of the respondent families to occupy the Hammansdans property dates back to October 2012. At that time, the Applicant entered into a written agreement with the employees, which expressly provided that they were “entitled to have relatives live on the premises.” In October 2015, the Applicant sought to conclude a new round of agreements with the occupiers that incorporated a new housing policy. The Applicant began requesting that each employee take necessary steps to comply with its purported housing policy and evict their own adult children. This meant that the children who reached the age of eighteen and/or became self-supporting were required to vacate the property. The Applicant called a series of meetings ostensibly to discuss this purported housing policy.
In April 2017, the Applicant sent notices to the Respondents requiring the adult non-dependent children to vacate within thirty days. Following further unsuccessful discussions, the Applicant delivered another round of these notices to each employee, ex-employee, and their spouses in March 2018. A final notice was sent on April 30, 2018, calling on all the Respondents to vacate the properties by the end of the following month, including the current and former employees and their spouses.
In its founding affidavit, the Applicant alleged that the right of each current and former employee to extend their rights of occupation was limited to their spouses and minor/dependent children. As such, the Applicant considered only the employees and ex-employees as occupiers in their own right within the meaning of the ESTA, and all other family members as receiving their rights of residence by proxy through them. For their part, the Respondents contended that this purported housing policy was an unreasonable and unjustifiable limitation on their right to family life under the ESTA.
The court relied on an analysis of the ESTA to make its determination, requiring, above all, that the Applicant prove that it had effectively and justly terminated the rights of residences of all occupiers of the property. At the outset, the court found that the Applicant made no allegation in its founding affidavit that it had formally terminated any of the Respondents’ rights of residence. Further, it found that the Applicant’s attempt to derive the adult non-dependent children’s rights of residence from their parents was impermissible. Rather, the adult non-dependent children were occupiers in their own right, entitled to the full protection of the ESTA.
Under section 8 of the ESTA, the right of residence may be terminated for a “just and equitable” cause, upon consideration of all relevant circumstances. In this case, the court particularly assessed (1) the fairness of the housing policy purportedly entered into with the employees and ex-employees, and (2) the fairness of the Applicant’s procedure in granting opportunities to the Respondents to make representations prior to termination of their rights of residence. The Applicant relied on the housing policy to argue that the employees and ex-employees were in breach of a contract, which prohibited adult non-dependent children from occupying the property. The adult non-dependents, however, were never party to that agreement, nor were they invited to the meetings held to discuss that arrangement. The court held that an agreement entered into solely by the current and former employees could not extend to the adult non-dependent children. Further, it noted that the adult non-dependents were not treated as occupiers in their own right and had little opportunity to make representations on their own behalf at meetings before the decision was made to terminate their rights of residence. As a result, termination of the Respondents’ rights of residence would not have been just or equitable.
In accordance with the foregoing, the court dismissed the application for eviction and all Respondents retained their rights of residency on the property.
