De Villiers and others v Pietersen and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Flatela J
• Judgment Date: 28 February 2023
• Citation: 2023 JDR 0688 (LCC)
• Hearing Date: 28 February 2023
• Docket Number: 06R2023
• Court: Land Claims Court

Flatela J:

Introduction:

[1]

This is an automatic review in terms of sec 19(3) [1] of the Extension of Security of Tenure Act 62 of 1997 (ESTA) emanating from the Magistrate Court, Paarl District, Western Cape. On 29 November 2022, the Paarl Magistrate's Court made a "settlement agreement" between the applicants and the respondents an

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order of court. In terms of the agreement, the respondents agreed to be relocated to an emergency accommodation structure to be erected by the sixth respondent.

[2]

The parties agreed that the respondents' right to occupy the dwelling on the property known as cottage 21 of Landskroon Farm, described as Portion 0(the remaining extent) of the farm Landskroon No 709, Drankeinstein Municipality, Division of Paarl, Province of the Western Cape, held under deed of transfer no T17690/1956 is lawfully terminated. The parties further agreed that it is just and equitable that the respondents and any persons occupying the house on the property with them, vacate the property voluntarily and permanently by no later than Friday, 3 February 2023 failing which, they be evicted by the Sheriff of the Court on, or after 17 February 2023 should they not vacate the house voluntarily.

[3]

The settlement agreement was subject to suspensive condition that the enforcement of the agreement is subject to this Court confirming it on automatic review in terms of sec 19(3) of the ESTA, and this is what I am called to do: to confirm, vary, or set aside the agreement.

[4]

This matter came before me on 14 February 2023.

The Parties:

[5]

The first applicant is Paul De Villiers as nomine officio of the Hugo De Villiers Family Trust (Registration number T3826/94) a trust property registered in terms of the laws of South Africa and registered address at Landskroon Farm, Paarl.

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[6]

The second applicant is Paul De Villiers as nomine officio of the Paul De Villiers Family Trust (Registration number: T3827/94) a trust property registered in terms of the laws of South Africa, and registered address at Landskroon Farm, Paarl.

[7]

The third applicants are Paul and Hugo De Villiers T/A Landskroon Wines, a partnership between the fifth Applicant and the first applicant. The third applicant is also the entity through which all farming activities are performed and is also the person in charge of the day to day activities on the farm who, through its authorised representatives, concludes employment and housing agreement with the occupiers of the farm,

[8]

The fourth applicant is Paul De Villiers an adult male farmer residing on Landskroon Farm cited herein in his personal activities

[9]

The fifth applicant is Hugo Myburgh De Villiers an adult, male, farmer residing on Landskroon Farm. He is cited herein in his personal capacity.

[10]

The third applicant conducts the farming operations on the property and enjoys beneficial occupation of the property and the improvement thereof.

[11]

The first respondent is Thomas Pietersen, a major male aged 35 residing in an employee cottage 21 on the property. The first respondent is a former employee of the applicants. He was employed as a general worker from 2009 -2019.

[12]

The second respondent is Cathleen Goeieman, a major female aged 55 residing in the dwelling. The second respondent is the first respondent's sister.

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She too is a former employee of the applicant. She was employed as a general worker from 11 July 2016 - 26 July 2019.

[13]

The third respondent is Felicity Goeieman, an adult female. The third respondent is the daughter of the second respondent. She is no longer residing on the farm.

[14]

The fourth respondent is Elrico Goeieman, an adult male residing in the house on the property. The fourth respondent enjoys occupation of the property by virtue of being the son of the second respondent.

[15]

The fifth respondents are all other persons residing with or under the first to the fourth respondents at employee cottage 21 on the property. The fifth respondents are described in the 1st respondent's answering affidavits as follows:

i.

Angelique Goeieman, the second respondent's daughter. She is 18 years old and in grade 9;

ii.

Sasciah Goeieman is the second respondent's granddaughter and daughter of the third respondent. She is 14 years old. She left school in 2021;

iii.

Keysha Goeieman is the second respondent's granddaughter and daughter of the third respondent. She is 10 years old and attends school at Bergendal Primary School and is in grade 5. She walks to and from school;

iv.

Tashwell Goeieman is the second respondent's grandson and son of the third respondent. He is 6 years old and attends school at Bergendal Primary School and is in grade 1; and

v.

Caden Goeieman, a 2-year-old son to the third respondent.

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[16]

The 1st, 2nd, 4th and 5th respondents occupy a three-roomed house compromising of a kitchen, one bathroom and a toilet/shower. There is electricity supply to the house. They have access to water.

[17]

The sixth respondent is the Drakenstein Municipality properly constituted as such with its main place of business at Berg River Boulevard, Paarl, Western Cape. The sixth 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 Municipal Structures Act 117 of 1998.

[18]

The seventh respondent is the Department of Agriculture, Rural Development and Land Reform properly constituted as such with its provincial head office at 14 Long Street, Cape Town, Western Cape. The fifth respondent is cited in terms of inter alia to give effect to section 9(2)(d) of ESTA. The probation officer as contemplated in Section 9(3) of ESTA will be required by this Honourable court to file a probation officers report.

Factual Background:

[19]

The facts of the matter are very brief and largely common cause. Eviction proceedings were launched against the first to the fifth respondents on 13 September 2021. The application was served to the respondents on 17 September 2021 and to the sixth respondent on 17 September 2021. All parties that were served filed their papers and their reports.

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The Settlement Agreement:

[20]

The Paarl Magistrate's Court made an order of court a "settlement agreement" in terms of which the parties agreed that the respondents' right to occupy the house on the property is lawfully terminated. The parties further agreed that it is just and equitable for the respondents and any persons occupying the house on the property with them, vacate the property voluntarily and permanently by no later than Friday, 3 February 2023 and that they be evicted by the Sheriff of the Court on, or after 17th February 2023 should they not vacate the house voluntarily.

[21]

Some salient terms of the relocation agreement under the heading "the first to fifth respondents' rights and obligations" state that it is agreed that:

a.

The respondents will vacate the house and property permanently on, or before, the vacation date, and further agree that it is just and equitable for them to vacate the property on, or before, the aforementioned date.

b.

The respondents undertake not to occupy the property after the settlement agreement has been given effect to, and will for a period of 24 months after the settlement agreement has been given effect to, not sleep over the property (as guests).

c.

The respondents confirm that should they fail and/or refuse to voluntarily vacate the property as set out in the terms of the agreement, such action will constitute a material breach of the trust relationship between the applicants and the respondents, of which relationship will not be capable of restoration.

[22]

The agreement provided for the transportation and costs thereof, of the relocation as it were, be borne by the applicants.

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[23]

Under a heading "Legal Advice" the respondents confirmed that they:

'Received legal advice from the Stellenbosch University Law Clinic in respect of [the] proceedings; that the content[s] of [the] settlement agreement was explained to them, and that they understand the consequences thereof; that they were informed of their rights in terms of [ESTA]; and that [the] settlement agreement is concluded freely and voluntarily, without duress or undue influence.'

[24]

The settlement agreement was subject to the suspensive condition that it is signed by the respondents and/or their authorized representatives and co-signed by the Municipality. The first respondent, Thomas Pietersen, signed in his own personal capacity and on behalf of the fifth respondents "who occupies the property under him". The second respondent, Cathleen Goeieman, signed in her personal capacity. The agreement was also co-signed by the Municipality. Notably, no legal representatives, if any were present, for the first to the fifth respondents co-signed the agreement.

Litigation History - Eviction Proceedings

[25]

The applicants contended that the respondent's occupation of the dwelling was derived from the occupation and was subject to a Housing agreement entered between the parties in 2011. The...