Jacobs and others v Bester and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Flatela J
• Judgment Date: 07 February 2023
• Docket Number: LCC 02R/2023
• Court: Land Claims Court

Flatela J:

Introduction:

[1]

This is an automatic review emanating from the Magistrate Court, Worcester, Western Cape in terms of sec 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The Magistrate granted an eviction order against the first to the fourth respondents from the dwelling which is situated on the Remainder of the Farm Risjei Vallei No.553, Breede Valley Municipality, Division of Worcester in the Province of the Western Cape (the property) on the basis that the first respondent's right of occupation arose solely from the employment contract between him and the former owners of the property. None of the respondents are employed by the applicants. The dwelling is needed for the employees of the Risjies Vallei Boedery (Pty)Ltd (the fifth applicant).

[2]

I am required to review the eviction of the respondents, granted on 20 October 2022, by order of the Worcester Magistrate's Court. The application served before me on 10 January 2023.

[3]

The property is owned by Kanaan Trust (the Trust), a trust duly registered with the Master of the High Court, Western Cape Division under registration number: IT 000673/2017. The Trust leased the property to Risjies Vallei Boedery (Pty)Ltd (the fifth applicant) which conducts the farming business in the farm. The Trust is represented by its trustees, the second to fourth applicants.

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The Parties:

[4]

The first applicant is Johannes Nicolaas Jacobs a major male director of the fifth applicant and a person in charge of the property. The second to fourth applicants are the trustees of the Trust, acting in their official capacity.

[5]

The first respondent is Chritiaan Bester a major male aged 47, who lives in the property. He is a former employee on the farm. The second respondent is Maria Bester aged 62, the first respondent's wife. Mrs Bester has been living in the property since 1993.

[6]

The third respondent is Christopher Bester, a major male aged 28. The third respondent is the first and second respondent's son. He was born in 1994 in the property. He regards the property as his home.

[7]

The fourth respondent is Rivaldo Minnaar, a minor male learner aged 17. In 2022 he was a grade 11 learner at Breeivier High School. Rivaldo is the first and second respondents was born in 2005 and has been living with the respondents since birth.

[8]

The respondents reside in a three-bedroom house in the property. The first and second respondents were given right of occupation of the dwelling by Mr Paul Potgieter, the previous owner of the property. The first and second respondents were both employed by the former owner from 1994 to 2018.

[9]

On 10 February 2021 the first to the third respondents were served personally with a notice to terminate their right of occupation. The said notice, dated 21 January 202, also gave them 30 (thirty days) to vacate the property.

Factual Background:

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[10]

The facts are largely common cause. The applicants took ownership of the farm in 2018. The fifth applicant took over farming activities in the property. Mr Jacobs avers that when the 5th respondent took over of the farming activities, he approached the first respondent and offered him employment contract but the first respondent declined the offer. He contends that the first respondent's rights to occupy the dwelling arose from the employment in the farm.

[11]

The applicants contended that the dwelling is needed to accommodate their employees as the occupation of the dwelling is subject to the condition that the respondents are employees of the applicants.

[12]

The applicants also state that there was never an employment relationship between themselves and respondents, they have no control over the respondents and they do as they please as their relationship cannot be reasonable restored as the applicants simply cannot trust the respondents anymore.

[13]

The applicants state that the first respondent does not contribute to the growth and the development of the applicants business. He works on other farms and for other employers and expect to live rent and obligation free.

[14]

The first respondent was first given notice to vacate in 2018. The respondents failed to vacate. The applicants launched eviction proceedings of which eviction order was granted by the Magistrate. On review Ncube J set the eviction order aside on the basis of non-compliance with section 8(1)(e) of ESTA.

[15]

The applicants aver that he has complied with the requirements of section 8,9 and 10 of ESTA.

The respondents' submissions

[16]

The first respondent opposed the application on the basis that the termination of their right to residence was not just and equitable in terms of section 9(2)(a), read with section 8(1) of ESTA. Secondly, the second respondent contended that the

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requirements of section 9(2) read with section 10 of ESTA have not been complied with, therefore the application ought to be dismissed.

[17]

The first respondent avers that he has been residing in the farm for 28 years from 1994 whilst the second respondent has been residing in the farm for 29 years since 1993. The first respondent worked in the farm for Mr Paul Potgieter, the previous owner of the property from 1994-2018 as a maintenance worker and second respondent was employed at the creche.

[18]

The second respondent was first to arrive in the property in 1993. She came to live in the property with her sister. She was offered employment by the former owner to attend to creche. She resided on the farm in her own right with the consent of the previous owner.

[19]

The first and second respondent met in the farm and got married in 1994. In 1994 the third respondent was born in the property. Initially the Besters were granted permission to live in a two-room house. In 1999 they were granted permission to occupy the dwelling.

[20]

The first respondent contends that their employment was terminated when the applicants took over the farm. He confirms that he declined the offer of employment from the applicants but states that the reason for declining the offer was because the applicants offered him less rates than what the previous owner offered him. This allegation was disputed by the applicants who showed that the rates were actually higher than the rates from the previous owner. The first respondent exaggerated the rates he was offered by the previous owner. I accept the applicant's version.

[21]

The second respondent was not re-employed by the applicant in the same position because there were not enough children to attend the creche. The applicant offered her employment as a general worker to work in the vineyard and to perform related duties. She declined the offer due to her health challenges. The second respondent suffers from chronic back pain and arthritis. She receives medical treatment for her condition.

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[22]

The first respondent earns a stipend from the profits of a spaza shop that they are operating from the property in the amount of R 2 500 plus the pension grant from the government. The third respondent is not working. Rivaldo receives state grant in the amount of R450 per month which is used to take care of his needs.

[23]

The third respondent has been living on the property for 28 years since birth. He regards the property as his home. He is unemployed. It is not clear from the papers if he was offered any employment by the applicants.

[24]

Rivaldo, is a grade 11 learner attending school at Breeivier High School and uses the bus to and from the school. She has been living in the property for 17 years.

[25]

The first respondent confirmed that they received a pension pay out in 2018 from the previous owner and they used the money for their daily needs. They also settled their debts and bought a car. The He states that currently they cannot afford to rent a property as they have no means to afford rental. There is no available alternative accommodation for them. They have been on the waiting list of the Municipality for government housing subsidy. They also do not have relatives that can accommodate them.

[26]

The first respondent disputed that the dwelling is needed for the employees of the applicant, He states that the applicant has an empty compound that can accommodated 60 people in the farm. The applicants did not deny this allegation.

[27]

The first respondent denies that the eviction is just and equitable.

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Discussion:

[28]

It is a common cause that the respondents are occupiers in terms of ESTA. [1] The first to the third respondent have lived in the property before 4 February 1997. [2] The third and fourth respondent were born in the property.

[29]

The applicants contended that all the requirements of sections 8,9 and 10 of ESTA were complied with.

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[30]

For the applicants to succeed in evicting an occupier before 4 February 1997, he must show that he has complied with the mandatory requirements of...