Aquarius Platinum (SA) (Pty) v Bonene

Supreme Court of Appeal held that purported eviction fatally defective in that the land owner failed to prove that the right to residence had been terminated after employment was terminated.

“It is common cause that the appellant did not terminate the right of residence of any of the occupiers. It is clear from the papers that the appellant failed to appreciate the need to comply with this legal requirement. In its founding affidavit the appellant, on the one hand, erroneously equated the termination of employment with termination of the right of residence, and on the other, stated that the occupiers’ right of residence had to be terminated by the court. In their answering affidavit the occupiers admitted the termination of their employment, but pertinently denied that their rights of residence had been terminated.
This elicited the quite untenable response in the replying affidavit that in the light of the admission of the termination of their employment, the occupiers ‘. . . have failed to provide reasons why they still have rights in terms of ESTA or in terms of any other law to continue to occupy the hostel’.
As we have said, it was for the appellant to allege and prove, in addition to the termination of the employment of the occupiers, that their rights of residence had been terminated.” [para 14]

Essence

Eviction fatally defective because land owner failed to prove the two essential requirements for granting of eviction order namely termination of employment and residence right.

Decision

(SCA 1177/2018) [2020] ZASCA 7 (16 March 2020)

Order:

Disallowed appeal with costs.

Judges

Coram: Maya P, Salduker, Van der Merwe and Mocumie JJA and Dolamo AJA.

Heard: 5 November 2019
Delivered: 16 March 2020

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2019)

Van Niekerk and Smit (Managing editors) et al [email protected] 4ed 612 pages (LexisNexis 2018) at

CG van der Merwe  Sectional Titles, Share Blocks and Time-sharing (LexisNexis service issue 26 – November 2019) at 

Reasons

‘Thus, both the clear meaning of the language of these sections and their context (the need to protect the rights of residence of vulnerable persons) indicate a two-stage procedure. Section 8 provides for the termination of the right of residence of an occupier, which must be on lawful ground and just and equitable, taking into account, inter alia, the fairness of the procedure followed before the decision was made to terminate the right of residence. Section 8 at least requires that a decision to terminate the right of residence must be communicated to the occupier. Section 9(2) then provides for the power to order eviction if, inter alia, the occupier’s right of residence has been terminated in terms of s 8, the occupier nevertheless did not vacate the land and the owner or person in charge has, after the termination of the right of residence, given two months’ written notice of the intention to obtain an eviction order. Section 8(2) must of course be read with s 8(1) and provides for a specific instance of what may constitute a just and equitable ground for the termination of a right of residence.” [para 13]

Quotations from judgment

Note: Footnotes omitted and emphasis added

The Court:

[1] This is an appeal against an order of the Land Claims Court (the LCC) dismissing an application by the appellant, Aquarius Platinum (South Africa) (Pty) Ltd, for the eviction of the 1st to the 167th respondents (the occupiers) under the Extension of Security of Tenure Act 62 of 1997 (ESTA). The 171st respondent, Mr Otto Johan Wenhold, is the owner of two portions of the farm Kroondal 304, Rustenburg, North West Province (collectively referred to as ‘the farm’). Mr Wenhold did not participate in the appeal. Neither did the 168th respondent, the Rustenburg Local Municipality, the 169th respondent, the Provincial Director of the Department of Rural Development and Land Affairs and the 170th respondent, Circle Catering and Accommodation (Pty) Ltd (Circle Catering). The appeal is with the leave of the LCC (Ncube AJ).

[2] The material background facts are not in dispute. The appellant contracted Murray & Roberts Cementation (Pty) Ltd (MRC) to perform mining operations at the Kroondal Platinum Mine on the farm as well as the Marikana Platinum Mine. The occupiers were employed by MRC and resided in hostels situated on the farm and at Marikana Platinum Mine. During 2009 the occupiers and thousands of their co-workers participated in an unprotected strike.

At the conclusion of internal disciplinary proceedings, the occupiers were all dismissed from that employment. They, however, challenged their dismissals through the processes provided under the Labour Relations Act 66 of 1995 (the LRA).

[3] However, on 2 September 2009, the appellant approached the North West Division of the High Court, Mahikeng (the high court) for an order evicting the occupiers from the various hostels. On 8 September 2009 the high court granted the eviction order. Pursuant thereto, the occupiers were evicted from the hostels. After the eviction of the occupiers, these hostels were demolished. The occupiers, however, successfully challenged the high court’s order in the LCC. On 20 September 2009, Bam JP ordered the restoration of the occupiers’ rights of residence in terms of ESTA. As a result, the occupiers resumed residence in reconstructed hostel facilities on the farm. Circle Catering manages this hostel on behalf of Mr Wenhold.

[4] During 2012 the appellant became the employer of the occupiers by virtue of the provisions of s 197 of the LRA, after determination of the agreement between the applicant and MRC. In continued compliance with Bam JP’s order, the appellant entered into a lease agreement in respect of the hostel on the farm with Circle Catering acting on behalf of Mr Wenhold. Thus, the occupiers continued to exercise their rights of residence in terms of ESTA on the farm.

[5] Protracted labour litigation ensued in the meantime. By 2 December 2014, the litigation in respect of the 1st to 113th respondents had been concluded. Their employment with the appellant had therefore been terminated by 2 December 2014. The litigation in respect of the 114th to 161st respondents was similarly concluded on 13 November 2015 and as of that date they were no more employed by the appellant. The final determination of the litigation in respect of the 162nd respondent, resulting in the termination of his employment with the appellant, took place on 14 April 2016. In respect of the 163rd to 167th respondents, this took place on 26 April 2016.

[6] On 24 and 25 February 2015, the appellant served notices of the intention to obtain an eviction order in terms of s 9(2)(d)(i) of ESTA on the 1st to 161st, the 164th and the 166th to 167th respondents. Similar notices were served on the remaining occupiers (the 162nd, 163rd and 165th respondents) on 3 June 2016.

It appears therefore that eviction notices were served on the 114th to 161st, the 164th and the 166th to 167th respondents before the final termination of their employment.

The appellant launched its application for the eviction of the occupiers on 20 September 2016.

[7] The LCC decided the matter in favour of the respondents, and dismissed the application for the eviction of the occupiers. It found, after considering both ss 8 and 9 of ESTA, that:

‘[T]ermination of employment does not necessarily and automatically lead to the termination of the occupier’s right of residence. The Act envisages a two-stage procedure before an order of eviction may be granted. The first stage is the giving of a notice of termination of the right of residence in terms of s 8. The manner in which this kind of notice is to be given is not prescribed. The second stage is the giving of a notice of eviction in terms of s 9(2)(d). The manner in which this second notice is to be given, is prescribed in accordance with s 28(i)(b) of the Act ’

[8] The LCC also held that:

‘[17] [T]he use of the phrase “may be terminated” in section 8(2) postulates a situation where the owner or person in charge has a discretion. In other words, there will be cases where, despite the fact that employment has been terminated, but the owner still in his or her discretion decides to permit the former employee to continue to reside on the premises. Therefore, termination of employment does not automatically lead to termination of the occupier’s right of residence. A separate and specific notice of termination of right of residence is required.’

Thus, the LCC found that the appellant failed to satisfy the first statutory requirement for the granting of an order of eviction. In our view, for the reasons mentioned below, the LCC correctly dismissed the appellant’s application for the eviction of the first to the 167th respondents (the occupiers) for failure to comply with the provisions of s 8 of ESTA.

[9] It is convenient to set out the relevant provisions of ESTA:

‘8 Termination of right of residence
(1) Subject to the provisions of this section, an occupier’s right of residence may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular to-
(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person in charge relies;
(b) the conduct of the parties giving rise to the termination;
(c) the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier concerned, and any other occupier if the right of residence is or is not terminated;
(d) the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of its time; and
(e) the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence.
(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act.
(3) Any dispute over whether an occupier’s employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act.
. . .
9 Limitation on eviction
(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued under this Act.
(2) A court may make an order for the eviction of an occupier if-
(a) the occupier’s right of residence has been terminated in terms of section 8;
(b) the occupier has not vacated the land within the period of notice given by the owner or person in charge;
(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and
(d) the owner or person in charge has, after the termination of the right of residence, given-
(i) the occupier;
(ii) the municipality in whose area of jurisdiction the land in question is situated; and
(iii) the head of the relevant provincial office of the Department of Rural Development and Land Reform, for information purposes,
not less than two calendar months’ written notice of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier, the municipality and the head of the relevant provincial office of the Department of Rural Development and Land Reform not less than two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to have been complied with.’

[10] Both this Court and the Constitutional Court have authoritatively interpreted these provisions.

Approximately two decades ago, this Court found in Mkangeli and Others v Joubert and Others that there had to be a proper termination of the right of residence. It stated:

‘Once an occupier’s right to reside has been duly terminated, his refusal to vacate the property is unlawful. Nevertheless, it does not mean that the remedy of eviction will necessarily be available. This remedy is limited by those provisions of ESTA to which I will presently return. On the other hand, ESTA places no limitation on the other remedies attracted by unlawful occupation. It must therefore be accepted, I think, that the other remedies, such as the owner’s delictual claim for his patrimonial loss caused by the unlawful occupation of his land (see, for example, Hefer v Van Greuning 1979 (4) SA 952 (A)) are still available to him.

As to the remedy of eviction s 9(2) provides that a court may only issue an eviction order if certain conditions are met. The first such condition is that the occupier’s right to residence must have been properly terminated under s 8. Other conditions prescribed by s 9(2) include the giving of two months’ notice of the intended eviction application after the right to reside has been terminated under s 8 (s 9(2)(d)). In a case such as the present, where the appellants took occupation of Itsoseng after 4 February 1997, s 11 also finds application. This section provides that a court may only grant an eviction order if it is of the opinion that it is just and equitable to do so. In deciding whether it is just and equitable to grant an eviction order the court must have regard to the considerations listed in s 11(3), but it is not limited to them. Included amongst these is the consideration ‘whether suitable alternative accommodation is available to the occupier’ (s 11(3)(c)) and ‘the balance of the interests of the owner . . . the occupier and the remaining occupiers on the land’ (s 11(3)(e)).’

[11] In Sterklewies this Court said the following:

‘The Act contemplates two stages before an eviction order can be made. First the occupier’s right of residence must be terminated in terms of s 8 of the Act. The manner in which this is to be done is not specified. Once the right of residence has been terminated then, before an eviction order can be sought, not less than two months’ notice of the intention to seek the occupier’s eviction must be given to the occupier, the local municipality and the head of the relevant provincial office of the Department of Land Affairs in terms of s 9(2)(d) of the Act. That notice is required to be in a form prescribed by regulations made in terms of s 28 of the Act.’

[12] The Constitutional Court said the following in Snyders:

‘If a person has a right of residence on someone else’s land under ESTA, that person may not be evicted from that land before that right has been terminated. In other words, the owner of land must terminate the person’s right of residence first before he or she can seek an order to evict the person. However, it must be borne in mind that the termination of a right of residence is required to be just and equitable in terms of section 8(1) of ESTA.

Section 8(2) deals with the right of residence of an occupier who is an employee of the owner of the land or of the person in charge and whose right of residence arises solely from an employment agreement. It provides that such a right of residence may be terminated “if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act.’

And at para 56:

‘Section 8(1) makes it clear that the termination of a right of residence must be just and equitable both at a substantive level as well as at a procedural level. The requirement for the substantive fairness of the termination is captured by the introductory part that requires the termination of a right of residence to be just and equitable. The requirement for procedural fairness is captured in section 8(1)(e).’

And further at para 73:

‘In any event, even if it were to be accepted that Ms de Jager terminated Mr Snyders’ right of residence, she has failed to show, as is required by section 8(1) of ESTA, that there was a lawful ground for that termination and that, in addition, the termination was just and equitable.

At best for Ms de Jager, she purported to show no more than that there was a lawful ground for the termination of the right of residence. She did not go beyond that and place before the Magistrate’s Court evidence that showed that the termination of Mr Snyders’ right of residence was just and equitable.’

[13] Thus, both the clear meaning of the language of these sections and their context (the need to protect the rights of residence of vulnerable persons) indicate a two-stage procedure.

Section 8 provides for the termination of the right of residence of an occupier, which must be on lawful ground and just and equitable, taking into account, inter alia, the fairness of the procedure followed before the decision was made to terminate the right of residence.

Section 8 at least requires that a decision to terminate the right of residence must be communicated to the occupier.

Section 9(2) then provides for the power to order eviction if, inter alia, the occupier’s right of residence has been terminated in terms of s 8, the occupier nevertheless did not vacate the land and the owner or person in charge has, after the termination of the right of residence, given two months’ written notice of the intention to obtain an eviction order.

Section 8(2) must of course be read with s 8(1) and provides for a specific instance of what may constitute a just and equitable ground for the termination of a right of residence.

[14] It is common cause that the appellant did not terminate the right of residence of any of the occupiers. It is clear from the papers that the appellant failed to appreciate the need to comply with this legal requirement.

In its founding affidavit the appellant,

  • on the one hand, erroneously equated the termination of employment with termination of the right of residence, and
  • on the other, stated that the occupiers’ right of residence had to be terminated by the court.

In their answering affidavit the occupiers admitted the termination of their employment, but pertinently denied that their rights of residence had been terminated.

This elicited the quite untenable response in the replying affidavit that in the light of the admission of the termination of their employment, the occupiers ‘. . . have failed to provide reasons why they still have rights in terms of ESTA or in terms of any other law to continue to occupy the hostel’.

As we have said, it was for the appellant to allege and prove, in addition to the termination of the employment of the occupiers, that their rights of residence had been terminated.

[15] The appellant only served notices in terms of s 9(2)(d)(i) on the occupiers. And in respect of a substantial number of them (the 114th – 161st, 164th, 166th and 167th respondents), this took place even before their employment was finally terminated.

[16] It follows that the appellant’s case for eviction of the occupiers suffered from a fatal defect and therefore the appeal must fail.

[17] In the result we make the following order:

The appeal is dismissed with costs.

Court summary

“Land – eviction under Extension of Security of Tenure Act 62 of 1997 (ESTA) – ESTA requires two consecutive steps to be taken before an eviction order may be granted –

  • first, the right of residence of an occupier must be terminated in terms of s 8 –
  • thereafter, a notice of intention to obtain eviction order must be given to the occupier in terms of s 9 –

failure to allege and prove termination of right of residence fatal to application for eviction.”