Skyline Investments (Pty) Ltd and others v Swarts and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Flatela J |
| Judgment Date | 08 May 2023 |
| Citation | 2023 JDR 1537 (LCC) |
| Hearing Date | 08 May 2023 |
| Docket Number | LCC 11R/2023 |
Flatela J:
Introduction:
This is an automatic review emanating from the Magistrate Court, Paarl, Western Cape in terms of section 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 farm Vigne D'Or Franschoek fully described in the title deed as the remaining extent of the Farm Moddervalley No.1417 situated in Stellenbosch Municipality, Paarl Division, Western Cape, Cape Province (the property).
The Parties:
The first applicant is Skyline Investments (PTY) LTD, a company registered in terms of the of the laws of South Africa with registered address at 10 Badger Street, Fourways, Gauteng, Province. The first applicant is a registered owner of the property.
The second applicant is Terre Paisible (PTY) LTD a private company with limited liability registered in terms of the laws of South Africa with registered address at Farm known as Vigne D'Or, Wemmershoek Road, Franschoek, Western Cape Province. The second applicant is currently renting the farm from the first applicant.
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The third applicant is a male farmer of farm Vigne D'Or, Franschoek, Western Cape Province. He is the person in charge of the daily activities of the farm as well as the person in charge of the human resources of the applicants. The third applicant is also responsible for concluding employment and housing agreements with the farm workers.
The first respondent is Pieter Swarts, an adult male occupier of 50 years of age and currently residing in a worker's dwelling on the farm.
The second respondent is Sarah Piedt, an adult female occupier of 42 years of age and currently residing in a worker's dwelling on the farm with the first respondent. The second respondent is the life partner of the first respondent.
The third respondent is Arend Swarts, an adult male occupier and currently residing in a worker's home on the farm with the first respondent and second respondent. The first and third respondents are siblings.
The fourth respondent is a minor, a 10-year-old son of the first and second respondent. At time of the Probation Officer's report in 2021, he was 8 years and in grade 2.
The fifth respondent is Stellenbosch Municipality, properly constituted as such with its main place of business at Plein Street, Stellenbosch, Western Cape. The fifth respondent is a Municipality contemplated in section 155 of the Constitution of the Republic of South Africa, 1996, established by the Provincial Minister of Local Government under section 12 and 14 of the Local Government, Municipality Structures Act 117 of 1998.
The sixth respondent is the Department of Agriculture, Rural Development and Land Reform.
Factual Background:
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The first applicant is the registered owner of the property having purchased it from the previous owner around 30th March 2017. The second applicant is currently farming olives and grapes and produces wine and olive oil.
It was a term or condition of the purchase agreement that the first applicant will take over the workers from the previous owner. The first to the third respondents were never employed by the applicants.
The first respondent came to live on the farm with his father, Piet Samson who worked for the previous owner as a general worker and resided on the farm from 1987 until his death in 2019. A house was allocated to the first respondent's father as a result of his employment by the previous owner. The applicants never concluded a housing contract with the respondents and their father. The applicants are not aware if the previous owner concluded a housing contract with the respondent's father.
The applicants contend that the respondent's right to reside on the property is derived from their late father's right to family life in terms of section 6(2)(d) of ESTA. It is further contended that the respondents have been residing on the farm since or around 2010 with their father. The first and third respondents father retired from his employment and continued to stay on the farm until April 2019 when he passed away.
On 2 July 2019 a notice in terms of section 8(1)(e) of ESTA was sent to the respondents inviting them to make representations on why their right of residence should not be terminated. There was no response from the respondents, and on 25th July 2019 a letter of termination of residence was served upon the respondents.
It is alleged by the third applicant that the second respondent is stealing fruits from the neighbouring farms and selling it at the road in front of the farm.
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The applicants state that the respondents do not contribute to the growth and the development of the applicant's business. The respondents work on other farms and for other employers and expect to live rent and obligation free on the farm. Also, none of them have ever been employed by the applicants. However, the first and second respondents averred that they offered their services to the applicants but were refused work. In their reply, the applicants averred that the respondents were refused work because they bring bad elements to the farm.
The applicants require more land to expand their operations. They need to demolish the property that the respondents are currently residing in.
The applicants aver that they have complied with the requirements of section 8, 9 and 11 of ESTA.
The respondents' submissions
The respondents 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) [1] of ESTA. Secondly, the first respondent contended that the
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requirements of section 9(2) [2] read with section 10 [3] of ESTA have not been complied with. Therefore, the application ought to be dismissed.
The first respondent avers that he has been granted consent to reside on the farm since 1987 when came to stay with his father as a child. The first respondent states that he worked on the farm as a seasonal worker when he was 18 years old up until 2005 when he was denied seasonal work.
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The second respondent was born on the farm. The second respondent's parents were general workers on the farm and after her parents passed away during 1997 and 1999 respectively, she continued to reside on the farm. The first and second respondent met at the farm and entered into a romantic relationship. They moved in together about 20 (twenty) years ago. A son was born out of their relationship. He is still a minor. The second respondent was previously employed on the farm as a seasonal worker for more than 5 (five) years. She is now employed as a seasonal worker on different farms in the area where she earns an income of R150 per day of which she works on average two days per week. She further receives R450.00 per month as a state grant for the minor child, the fourth respondent.
The second respondent has been living on the property since birth. She was born in 1978 and she regards the farm as her home; other than the seasonal work she takes up in different farms, she effectively has no stable employment.
The third respondent is the younger brother of the first respondent. The third respondent has never been employed and suffers from tuberculosis and is currently under treatment from the farms clinic. The third respondent does not have an identity number. However, attempts were made to the Department of Home Affairs with no success. As a result, he has no birth certificate and therefore receives no social grant. The minor child attends Wemmershoek Primary school which is approximately 15 minutes away. He walks to and from school.
It is averred that the respondents would be homeless and destitute should the eviction order be granted against them.
The Probation Officer's report
On 12 May 2021 the Probation Officer's Report (the "Report") was provided to the Magistrate in terms of Section 9(3) of ESTA. The report paid regard to the following:
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The availability of suitable alternative accommodation to the respondents.
Indication on how the constitutional rights of the respondents will be affected by an eviction order, including the right to education of the child.
Undue hardship which an eviction order would cause the respondents.
Recommendations.
The Probation Officers report made the following findings on the strength of the information given by the respondents.
The first respondent came to stay and work on the farm with his parents, now deceased, at the age of either 9 or 10. The officer concluded the age on the strength of the information that the first respondent was in sub B (grade 2) and supposed to have progressed to grade 3 at the time he came to stay with this father. It therefore concluded that the first respondent derived his right of residence by virtue of association with his father.
The second and third respondent's derived their right of residence by virtue of being born on the farm.
The first and third respondents worked for the previous owners of the farm but never for the applicants. After their father passed away in April 2019, they (and the second respondent) received notices to vacate in July 2019.
The third respondent suffers from tuberculosis.
The fourth respondent, being the minor child, has been...
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