Visser and another v Marthinus and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Meer AJP and Spilg J
• Judgment Date: 10 March 2023
• Citation: 2023 JDR 1068 (LCC)
• Hearing Date: 10 March 2023
• Docket Number: LCC 178/2022
• Court: Land Claims Court

Meer AJP:

1.

The appellants appeal against a judgment of the Wellington Magistrate's Court granted on 27 September 2022 which ordered the eviction of the first respondent from Ongegund Farm, Drakenstein Municipality, Western Cape in terms of the Extension od Security of Tenure Act No 62 of 1997 ("ESTA") and dismissed an application for the eviction of the second, third and fourth respondents. The eviction order against the first respondent was suspended pending the ability of the fifth and sixth respondents to provide him with alternative and/or emergency accommodation. In appealing against the order the appellants contend that an order for eviction of the second to fourth respondents ought also to have been granted.

2023 JDR 1068 p3

Meer AJP

2.

The first appellant is the owner of the farm and the second appellant is in charge of the day to day farming activities. The first and second respondents are a married couple who were employed on the farm and provided accommodation thereon from 2008 until their dismissal on 9 September 2013. They originally started residing on the farm in June 1999, resigned and relocated, were re-employed for the period January 2001 to December 2007, relocated and again returned in 2008.

3.

The third respondent is the daughter of the first and second respondent and lives with them. Her minor child as well as a minor child of the first and second respondents also resides with them.

4.

On 2 July 2008 employment contracts were entered into between the appellant and the first and second respondent, respectively.

5.

A housing agreement was entered into on 22 March 2012 between the appellant and the first respondent. The second to fourth respondent are listed in Clause 5 of the housing agreement as having permission to reside on the farm with or under the first respondent. The second respondent's employment agreement does have a discretionary provision for housing for her.

6.

Even accepting the magistrate's finding that the employment agreement made provision for housing, it is not relevant given that the issues concerned events post 2013 when occupation was by consent.

2023 JDR 1068 p4

Meer AJP

7.

The housing agreement makes clear that the second to fourth respondents reside on the farm by virtue of the housing agreement concluded with the first respondent. This being so, although the second to fourth respondents were employed and resided on the farm, their rights of residence flow from their relationship with the first respondent and from consent. In this regard they were clearly occupiers in terms of sections 3(4) and 3(5) of ESTA in that they resided openly on the farm with the knowledge of the appellants from at least 2008 and are still so residing.

8.

The first and second respondents' employment relationship with the appellants was terminated on 9 September 2013 when they were...