Napier Grunstucks GMBH and others v Fredericks and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cowen J
• Judgment Date: 23 December 2022
• Citation: 2023 JDR 0124 (LCC)
• Court: Land Claims Court
• Hearing Date: 08 August 2022
• Docket Number: LCC68/2022

Cowen J:

1.

On 4 April 2022, Magistrate Saptoe of the Wellington Magistrates Court dismissed an application to evict the first and second respondents from a farm known as Napier Vineyards in Wellington (the farm). The application was instituted in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). [1] An appeal against the decision was argued in this Court on 8 August 2022. Mr Montzinger appeared for the appellants. There was no appearance for the respondents.

2.

The appellants are Napier Grundstucks GMBH, [2] the owner of the farm, Napier Vineyards (Pty) Ltd, [3] the lessee of the farm and Coenraad Leon Bester. Mr Bester, the deponent to the founding affidavit, is the person in charge of day to day farming operations, human resources, employment and housing matters on the farm.

3.

The respondents are residing on the farm together with their mother and step father (Mrs Maria Fredericks and Mr Koos Fontein), who are both ESTA occupiers. Mr Fontein is a long-term occupier as contemplated by section 8(4) of ESTA, having lived on the farm since about 1998. He retired some years back, before the first applicant

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purchased the farm. Mrs Fredericks arrived on the farm in about 2010 with the respondents, who are twins and who were then both about 14 years old. Mrs Fredericks and Mr Fontein currently live in a unit known as Flat 8B on the farm which is in a section used for retired employees. Flat 8B is a three roomed unit, with one bedroom. Mrs Fredericks is about 50 years old. At present, the respondents live with them in Flat 8B. According to the appellants, the respondents were employed by the appellants but are no longer so employed. The appellants contend that the respondents both derived their consent to reside on the farm through their employment.

4.

The first respondent was employed from 19 May 2017 as a general farmworker, although a written contract of employment was signed only in April 2019. A housing contract was signed at the same time. Clause 6 of the written contract of employment regulates housing in the following terms:

'6. Behuising

Indien daar behuising aan die werknemer beskikbaar gestel word is dit onderhewig aan die diskresie van die wekgewer en die reëls en regulasies soos uiteengesit in Aanhangsel 3.

Huur is weekliks betaalbaar en sal van die werknemer se weeklikse loon verhaal word.

Die werknemer se reg op behuising word uitdruklik gekoppel aan die werknemer se werkreg. Die werknemer het slegs die reg om die huis te bewoon en te huur terwyl hy / sy in diens is van die werkgewer. Die werknemer moet ook volgens Artikel 28(2) van die Sektorale Vasstelling 13, die behuising ontruim (een) maand na diensbeëindiging.'

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5.

The housing contract records that house number 7 is allocated to the first respondent. It records further that Mrs Fredericks, Mr Fontein, the second respondent and the third respondent may reside in the house as family members.

6.

According to the appellants, the first respondent's employment was terminated during 2019 in circumstances where he was allegedly abusing drugs and the appellants have a zero tolerance policy on illegal substances. The appellants set out the disciplinary process followed over several months, which they say, culminated in the conclusion of a settlement agreement on 13 June 2019. However, that agreement records, amongst other things, that the first respondent's services are voluntarily terminated by mutual agreement and neither party made any admissions on related conduct.

7.

The second respondent commenced employment in February 2017 and allegedly absconded the following month. The second respondent did not refer any dispute in that regard to the appropriate body for resolution in accordance with the Labour Relations Act 66 of 1995. [4] There was no written contract concluded in respect of second respondent's employment. The appellants contend that his right of residence was dependant on his employment.

8.

The appellants say that they terminated the respondents' respective rights to reside on the farm after they followed a process requesting

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representations. They served a letter requesting representations on 31 October 2019. The letter refers specifically to house number 7 and the recorded reason for the termination is 'operasionele benodighede en vooruitgang van die plaas/besigheid.' Neither the first nor the second respondent made any representations and on 7 November 2019, the appellants terminated their rights of residence in respect of house number 7. The appellants instituted the eviction application some ten months later, in August 2020. The founding affidavit focuses on the first respondents' history of drug use, which allegedly led to the disciplinary process and ultimately the termination of his employment. The appellants supply evidence of positive drug tests from 2019. It is alleged that the circumstances that led to the termination of rights included complaints from other occupiers about both respondents' drug use and resultant aggressive behaviour. Concerns about the impact on minor children living on the farm are raised.

9.

The respondents opposed the application. They were represented by the Stellenbosch Law Clinic but only during the process in the Magistrates Court. The second respondent deposed to an answering affidavit in April 2021, which is confirmed by the first respondent. The second respondent explains that he and the first respondent are twins. In April 2021, they were 24 years old and they are both employed as gardeners earning a salary of R2600 each per month.

10.

As indicated, they live in Flat 8B together with their mother and stepfather, Mrs Fredericks and Mr Fontein. Mrs Fredericks works as a

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general worker at Groenberg Wassery earning a salary of R3 600. Mr Fontein is now about 67 years old. He worked on the farm for about 26 years and retired at the age of 60. He has lived...