Pieterse v Drumearn (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Flatela J
• Judgment Date: 19 April 2023
• Citation: 2023 JDR 1526 (LCC)
• Hearing Date: 16 January 2023
• Docket Number: LCC 135/2022

Flatela J:

Introduction:

[1]

At issue in this matter is whether a relocation of a long-term occupier from one house to another house which is situated on land belonging to a different entity with distinct cadastral identifications constitutes an eviction as contemplated by the Extension of Security of Tenure Act 62 of 1997 ("ESTA").

[2]

This is an appeal against the whole judgement and orders of the Magistrates Court, Grabouw dated 26 July 2022. The Magistrate granted an application by the respondents for a mandatory interdict in terms of Section 19 (1)(b)(i) [1] of the Extension of Security of Tenure Act 62 of 1997 ("ESTA") to relocate the appellant from a production manager's house in Blauwkrans farm to a labourers' house on Helderfontein farm.

[3]

In granting the relocation order, the court a quo held that the farms are owned by the same shareholders even though the registered owners are different entities and for that reason, the relocation was not an eviction. The court a quo further held that the relocation would not impair the appellant's human dignity, and lastly that the appellant's entitlement to the house the appellant currently occupies was contractually linked to her deceased spouse's employment as a manager which employment came to an end when he passed on.

[4]

The appellants are appealing the decision on grounds that are more fully set out in the Notice of Appeal. However, during the hearing both counsel crystallised the issue that this court must determine to whether the relocation of the appellant from a house on Blauwkrans Farm on the land belonging to the first respondent to another

2023 JDR 1526 p3

Flatela J

house on Farm Helderfontein in the land of the second respondent with distinct cadastral identifications amounts to eviction as contemplated by ESTA. The first and second respondent have common shareholders.

The Parties:

[5]

The appellant is Christina Pieterse ("Mrs P"), a 61 year old pensioner who resides at house No. 4 on the first respondent's Drumearn farm. Mrs P and her late husband Mr P were granted the right of occupation of the house by virtue of Mr. P's employment as a Production Manager of the first respondent prior to his death on 20th August 2016. Mrs P was formerly employed as a helper in the household of the shareholder of the first and second respondent. She was discharged from duty due to ill health.

[6]

Mrs P has since acquired a status of being long-term occupier as described in Section 8(4) of ESTA. She has been residing on the first respondent's farm for 21 years and has reached the age of 60.

[7]

The first respondent is Drumearn (Pty) Ltd, a company with limited liability duly registered in terms of the company laws of South Africa ("Drumearn") with registration number 1962/00367/07. Its registration address is Helderfontein farm, Elgin, Grabouw. Drumearn is the registered owner of the farm Blauwkrans more fully described as Portion 84 of the farm Palmiet River No. 319, Division of Caledon (Blauwkrans Farm).

[8]

The second respondent is Helderfontein Farm (Pty) LTD, a company with limited liability and registered in terms of the company laws of South Africa ("Helderfontein") with registration number 1965/0017817/07 and with registration address at Helderfontein farm, Elgin, Grabouw. The second respondent is the registered owner of Helderfontein farm more fully described as portion 64 of the farm Palmiet River No. 319, Division of Caledon (Helderfontein Farm). The labourers' house to which the respondents wish to relocate the appellants is situated on Helderfontein farm.

2023 JDR 1526 p4

Flatela J

[9]

The third respondent is Brandon Craig Myburgh. Mr Myburgh is employed by Drumearn as its Operational Farm Manager and is a person in charge of the 1st respondent.

[10]

The shareholding in both farms is wholly held by the JE Rawbone-Viljoen Trust and JE Rawbone Viljoen respectively. The shareholders are not joined in these proceedings .

Factual Background:

[11]

The facts are largely common cause. The appellant has been residing on Farm Blauwkrans since 2000 when she and her late husband Mr Pieterse were employed by the first respondent as foreman and domestic worker respectively for James Raubown–Viljoen and his wife. In 2003 the appellant was diagnosed with acute arthritis on her hips and she was relieved from her duties due to this disability. She has since undergone two hip replacement operations during 2015. She is permanently disabled and she has been receiving a disability grant since 2004. In July 2016 Mr P was diagnosed with lung cancer and he passed away on 20 August 2016.

[12]

On 12th October 2016 the third respondent convened a meeting with the appellant and her daughter to discuss their occupation of the house. The appellant was informed that the property was required for the accomodation of the new production foreman that was to be employed to replace Mr P. Therefore they must look for alternative accomodation. Several follow up meetings were convened to establish the progress in finding alternative accomodation by the appelant. There was no progress and the applellant refused to leave the property. A notice in terms of section 8(5) [2] of ESTA was served upon the appellant. On 23 May 2017, the appellant was informed that she could stay in the property up to 31 July 2017 and thereafter she

2023 JDR 1526 p5

Flatela J

would be moved to Helderfontein Farm for the remainder period of her year notice ending on 1 September 2017.

[13]

The appellant refused to move voluntarilly to the farm Heldefontein Farm and then negotiations collapsed. The first respondent then started litigation against the appellant on 20th August 2017. In order to put this matter into context a brief litigation history is unavoidable.

Litigation History:

First Relocation Application

[14]

On 20th August 2017 the first respondent launched an application for a mandatory interdict in terms of section 19(1)(b)(i) [3] of the Extension of Security of Tenure Act 62 of 1997 ("ESTA") to relocate the appellant and her daughter from a manager's house in Blauwkrans farm to a labourers' house on Helderfontein Farm. In June 2018, the second respondent was joined to the proceedings. On 28th September 2018 the respondents withdrew the mandatory interdict application and launched eviction proceedings.

The Eviction Application

[15]

On 23 November 2018 the respondents launched eviction proceedings against the appellant and her daughter in the same court and the eviction application was dismissed by the Magistrate.The respondents appealed the judgement and the order of the Magistrate to this court. On appeal, the respondents argued that the eviction

2023 JDR 1526 p6

Flatela J

was just and equitable as they have given the respondents twelve months' notice in terms of section 8(5) of ESTA and by refusing to be relocated to the house in the neighbouring farm the appellant has breached the provisions of section 10(1) [4] of ESTA. On whether the appellants have made out a case for eviction the court in Drumearn Pty Ltd and Others v CP and Others [5] said the following:

'It is common cause that Mrs. P is on the authority of Klaase and Another v Van der Merwe NO and Others 2016 (9) BCLR 1187 (CC) at paras [60] – [66], an occupier in her own right, having worked for the employer for approximately 3 years and having lived the farm continuously for close to 19 years with the consent of the land owner. Issuing the notice of termination under section 8(5), instead of section 8(4)(b) was, accordingly, in my view, erroneous. [6]

Also, on the facts of this matter, no case is made out for a breach which can be classified as satisfying the criteria envisaged in section 10(1)(c). The most egregious acts, according to the appellants, committed by Mrs. P, as I understand them, was her unwillingness to be relocated to a house on a neighboring farm owned by them, refusing to use her husband's provident fund pay-out to purchase a house in Grabouw, her uncooperative attitude and, alleged sub-letting of the premises, which is denied by Mrs. P.' [7]

[16]

On 30th July 2020 the respondents filed a leave to appeal to the Land Claims Court. The respondents were informed that this court does not have jurisdiction to hear an appeal from its own judgement. The registrar referred the respondents to Tadvest

2023 JDR 1526 p7

Flatela J

Industrial (Pty) Ltd formerly known as Old Abland (Pty) Ltd v Hanekom and Others 1 judgement. They were informed they will have to approach the Supreme Court of Appeal. The respondents did not appeal to the Supreme Court of Appeal. Instead, they launched the second relocation application.

The second relocation application

[17]

The respondents re-launched an application for a mandatory interdict in terms of Section 19(1)(b) to relocate the appellants from a manager's house in Blauwkrans farm to a labourers' house on Helderfontein farm. The respondents argued still that Section 8(5) of ESTA was applicable. Mrs P's right of residence could be terminated with 12 months' written notice after the death of Mr P.

[18]

The respondents argued that although the farms are owned by different companies, the shareholding in both companies is the same, therefore both farms are effectively owned by one shareholder. And by reason of the fact that shareholder is farming the farms as one-unit, the farms must be treated as a single unit for the purpose of the relocation. Furthermore, the relocation of the appellant will not impair on the appellant's dignity.

Court a quo

[19]

The court a quo held that the respondent's farms are effectively owned by the same shareholder and the "land" although registered in different companies is operated as same unit by the respondents, therefore the relocation of the appellant will not amount to eviction. The court relied on the cases of Chagi v Singisi...