Klaase and Another v Van der Merwe NO and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Madlanga J, Matojame AJ, Nkabinde J, Van Der Westhuizen J, Wallis AJ and Zondo J
• Judgment Date: 14 July 2016
• Citation: 2016 (6) SA 131 (CC)
• Docket Number: CCT 23/15
• Hearing Date: 03 September 2015
• Counsel: P Hathorn SC (with C de Villiers) for the applicants A Breitenbach SC (with L Wilkin and M Adhikari) for the first and second respondents. K Pillay SC (with J Williams) for the amicus curiae, the Women on Farms Project.
• Court: Constitutional Court

Matojane AJ (Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J and Wallis AJ concurring): F

Introduction

[1] The applicants seek leave to appeal against certain decisions of the Land Claims Court. The appeal by the first applicant relates to that court's confirmation of his eviction on automatic review. [1] The appeal by G the second applicant is against the decision of that court [2] dismissing her applications for joinder, suspension of the further proceedings and consolidation of her application with the eviction application against the first applicant. Her appeal principally concerns the decision of the Land Claims Court that she is not an 'occupier' as defined in terms of H the Extension of Security of Tenure Act [3] (ESTA). At their core, the issues involve the interpretation and application of the protections under ESTA.

[2] Most people who are occupiers of farmland are a vulnerable group in our society. These include female occupiers who are frequently not

Matojane AJ (Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J and Wallis AJ concurring)

joined in eviction proceedings instituted against their spouses or partners. A This makes that class of occupiers susceptible to arbitrary evictions as a consequence of the actions of their spouses or partners. As a result, no substantive grounds for their evictions are made and properly considered by a court before they are evicted with their spouses or partners. The upshot of this is hardship, conflict and social instability. B ESTA seeks, among other things, to regulate the eviction of vulnerable occupiers from land while recognising the right of landowners to apply to court for eviction in appropriate circumstances, to promote the achievement of security of tenure for occupiers of land and to extend the rights of occupiers while giving due recognition to the rights, duties and legitimate interests of owners. [4] C

Parties

[3] The first applicant (Mr Klaase) is a farmworker. His wife, the second applicant (Mrs Klaase), was not a party to the proceedings before the magistrates' court and Land Claims Court. The first respondent, D Jozia Johannes van der Merwe, is cited in his capacity as a trustee of the Noordhoek Trust which owns Noordhoek farm (farm). He is also cited as the second respondent in his personal capacity as the lessee of the farm on which he conducts a citrus-farming operation. They are collectively referred to as the respondents. The third respondent is the Cederberg Municipality (municipality). It was joined to the proceedings. E [5] The Women on Farms Project was admitted as a friend of the court (amicus curiae).

Background

[4] Mr Klaase started working on the farm in 1972. He worked as a F general labourer and lived in the same house with his father. [6] Mr Klaase and Mrs Klaase entered into a romantic relationship. [7] Mrs Klaase fell pregnant with the couple's first child. After the child was born, Mrs Klaase moved onto the farm and resided with Mr Klaase, in his father's house. At the instance of Mr Klaase's father, the second respondent's father built a small cottage on the premises, to accommodate G Mr Klaase, Mrs Klaase and their child. When the cottage was completed they took occupation. The couple later married, on 31 January 1988. They have lived on the farm for 30 years or more. Their three children and three grandchildren live with them.

[5] Mr Klaase was evicted on 14 January 2014. The relationship H between him and the respondents came to an end on 19 January 2010 when a disciplinary hearing was initiated against Mr Klaase after a

Matojane AJ (Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J and Wallis AJ concurring)

A charge of absconding and absence from work. Mr Klaase, duly represented by the Building and Allied Workers Union of South Africa (Union), referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the matter was referred for arbitration. Mr Klaase alleged constructive dismissal due to abusive B conduct by the management of the farm.

[6] The dispute between the parties was settled before the arbitration could be finalised. In terms of the settlement agreement, Mr Klaase agreed to a monetary settlement of R15 000 and undertook to vacate the premises by not later than 30 June 2010. He did not vacate the premises. C On 22 October 2010 the respondents informed Mr Klaase in writing that his right to occupy the premises was terminated as it was dependent on his continued employment. The letter demanded that he vacate the farm within 30 days, failing which an application for eviction would be brought against him.

Litigation history D

Magistrates' court

[7] The respondents launched eviction proceedings about eight months later in the Clanwilliam Magistrates' Court (magistrates' court). Only E Mr Klaase was cited as a respondent, but the order sought prayed for his eviction and that of all persons occupying through him. A probation officer's report was requested. [8] The report recommended that Mr Klaase and his family remain on the farm until alternative accommodation was available. According to the report, Mr Klaase was prepared to pay rent in the amount of approximately R60 per week. Mr Klaase continued F residing on the farm at no cost whilst working elsewhere.

[8] Subsequent to a pre-trial conference held in 2012, a meaningful engagement meeting was held under the auspices of the municipality to discuss the possibility of alternative accommodation. The parties agreed that there was no possibility of Mr Klaase getting alternative accommodation G in the foreseeable future due to the housing shortage in the district.

[9] On 14 January 2014 the magistrates' court granted the order evicting Mr Klaase and all those occupying through him, including Mrs Klaase, H from the farm. The court held that Mr Klaase's right of occupation arose from his employment on the farm. It found that there had been an irretrievable breakdown in the employment relationship between the parties as contemplated in s 10(1)(c) of ESTA. The court further found I that the formal requirements of s 9(2)(a) of ESTA [9] had been complied

Matojane AJ (Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J and Wallis AJ concurring)

with and that it was not necessary to provide Mr Klaase with alternative A accommodation as no alternative accommodation was available.

Land Claims Court

Automatic review

[10] The order of the magistrate was automatically subject to review by B the Land Claims Court in terms of s 19(3) of ESTA. [10] Mr Klaase claimed that, before he died, Mr Van der Merwe's father gave him a right to occupy the premises for life. In a judgment delivered on 28 March 2014, confirming the eviction order by the magistrate, [11] the Land Claims Court found that there was no evidence to support the claim and that, absent his employment, Mr Klaase did not have any other right to reside C on the farm. The court held that Mr Klaase's employment was terminated when the parties entered into a settlement agreement. Therefore,

Matojane AJ (Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J and Wallis AJ concurring)

A the requirements in s 8(2) of ESTA had been complied with and his right of occupancy had been terminated.

[11] The court held that s 9(2)(a) and (b) of ESTA had been complied with because Mr Klaase, the municipality and the provincial office of the Department of Land Affairs (Department) were served with the B application. [12] Regarding Mr Klaase's contention that the service was not in compliance with the regulations, [13] the Land Claims Court said there was substantial compliance with the regulations — form E. It held that the Union and the legal representatives must have informed Mr Klaase of the information contained in form E and he must have been aware that C the eviction application was brought by a certain date. [14]

[12] It would appear from the review decision that the respondents relied on Mr Klaase's non-attendance at his disciplinary hearing, absconding from work, bad temper, rudeness and disrespect for authority as reasons for the irreparable breakdown of the relationship in an attempt to meet D the requirements in s 10(1)(c). [15]

[13] Contrary to the grounds pleaded by the respondents for the breakdown of the relationship, the Land Claims Court found that Mr Klaase's breach of the settlement agreement as well as his continued E residence on the premises for a period of four years while working elsewhere constituted a fundamental breach of the relationship. Thus the s 10(1)(c) requirement was fulfilled.

[14] The Land Claims Court found that the respondents had adduced sufficient evidence to comply substantially with the test for the just and F equitable termination of a former worker's right of residence. [16] This was the test the Supreme Court of Appeal set out in Sterklewies. [17] The Land Claims Court held that the requirements in s 9(2)(d) had been met. [18] Save for the dates of eviction, the court confirmed the eviction order of the magistrates' court. During April 2014 Mr Klaase applied for leave to G appeal the decision of the Land Claims Court to the Supreme Court of

Matojane AJ (Moseneke DCJ, Cameron J, Madlanga J, Nkabinde J and Wallis AJ concurring)

Appeal. [19] The Land Claims Court dismissed Mr Klaase's application for A leave to appeal on 7 October 2014. [20]

Mrs Klaase's joinder application

[15] Following the review decision by the Land Claims Court, Mrs Klaase launched an application, referred to as the joinder application, in the Land Claims Court. She sought an order (a) to be joined as B the second respondent in the eviction application; (b) for the suspension of the further proceedings, including the execution of the eviction order, pending the determination of her rights in terms of ESTA; and (c) for the...