Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga (456/2011) [2012] ZASCA 77; 2012 (5) SA 392 (SCA); [2012] 3 All SA 655 (SCA) (25 May 2012) per Wallis JA.

The Supreme Court of Appeal allowed the appeal and declared that the former employees’ right to reside in a hostel on the farm had ended because they had been lawfully and fairly dismissed.  Despite their dismissal and proceedings under the LRA, the former employees continued to reside in the rooms in the hostel. On 16 January 2008 they were notified of the termination of their right of residence in the rooms. Between May and December 2008 the notices required by s 9(2)(d) of the Extension of Security of Tenure Act 62 of 1997 were served and published requiring the former employees to vacate, but they declined to do so.  The Magistrates’ Court at Harrismith granted an eviction order on 10 February 2010.  It was subject to automatic review by the Land Claims Court in terms of s 19(3) of the Act.  Mpshe AJ set aside the magistrate’s order on 25 November 2011.


[10]      There can be little doubt that s 8(2) of the Act was inserted to deal with a situation that had frequently arisen under the labour law dispensation in operation prior to the enactment of the LRA.  It commonly occurred that workers would be dismissed and a dispute would arise in regard to their dismissal.  That dispute would ultimately be referred, through the appropriate mechanisms under the then Labour Relations Act[1] to the Industrial Court for determination.  In the meantime the workers would continue to occupy the hostel or other accommodation provided to them by their employers.  Their presence could prevent the employer from hiring a new workforce and might be seen as a deterrent to the employment of temporary or replacement labour.  This proved frustrating to employers.  Their response was to seek the eviction of the workers even though the dispute between them was ongoing and unresolved.  Often this was an attempt to obtain an advantage in the dispute and as a means to put pressure on workers to reach a settlement before they were deprived of accommodation and shipped home to the TBVC states or the so-called homelands. 

[11]      Examples of such cases are to be found in the law reports.  In Coin Security (Cape)(Pty) Ltd v Vukani Guards and Allied Workers’ Union & others,[2] the employer alleged that the workers had engaged in a strike and that, as a result, they had been dismissed, thereby forfeiting their right to remain in the accommodation.  The court held that on the workers’ allegations the employer had been in breach of its contractual obligations to them and that this had occasioned the work stoppage.  This was a legitimate response to the employer’s breach of contract and did not constitute a strike.  Accordingly the purported termination of their contracts of employment was unlawful and they were entitled not to accept it but to decline to work further until the employer remedied its breach of contract.  In the result the application for their eviction failed.

[12]      That can be contrasted with Randfontein Estates Gold Mining Co (Witwatersrand) Ltd v Forbes,[3] where the employee alleged that he had been unfairly dismissed on notice and had referred a dispute concerning the unfairness of his dismissal to the Industrial Court.  On that ground he opposed an application for his eviction from the accommodation provided to him by his employer. 

Coetzee J held that, as he had been given notice in terms of his contract of employment, the termination of his employment was lawful and, because his continued occupation of the house provided by his employer depended upon the existence of a contract of employment, his right to occupy the house had also been lawfully terminated. 

He cited with apparent approval[4] an earlier dictum[5] to the effect that the contention that in a dispute between employer and employee labour law and not the common law should apply held within it ‘the seeds of a pernicious doctrine’.  His conclusion[6] was ‘that this case before me does not have anything to do with the provisions of the Labour Relations Act’ and that:

‘The mere fact of submission of a dispute such as the one alleged by the respondent to the industrial court for determination of an unfair labour practice in terms of that Act does not take away this Court’s jurisdiction to hear an application for, and grant, an eviction order.’

[13]      Once the LRA came into effect the problem became of less significance in most workplaces because the Labour Court was empowered to grant urgent interim relief in terms of s 158(1)(a) of the LRA and could therefore restrain employers from seeking to terminate rights to accommodation of workers whilst the parties were locked in industrial dispute.  However, it seems probable, in a statute dealing with the right to obtain eviction orders against occupiers of land, including workers, in rural and agricultural areas, that the protection of an urgent application before the Labour Court was not regarded as adequate. 

Accordingly ss 8(2) and 8(3) were included in the Act to ensure that eviction orders could not be obtained against dismissed workers in these areas until all disputes about the validity of the termination of their employment had been resolved through the mechanisms of the LRA.

[14]      That does not mean, however, that s 8(2) is necessarily a ground for terminating the former worker’s right of residence in isolation from the broad requirement of it being just and equitable under s 8(1).  It is capable of the construction that it is a possible specific instance of a just and equitable ground for termination, but that its prima facie weight as such is capable of being displaced by way of evidence that, notwithstanding the fact that the right of residence flowed from the employment agreement and that agreement had been both lawfully and fairly terminated, it would nonetheless not be just and equitable to terminate the former worker’s right of residence. 

I accept that this would probably require a strong case, such as one based on lengthy residence, old age, ill health, the absence of reasonably equivalent alternative accommodation and evidence showing that the continued presence of the former worker on the erstwhile employer’s property would not impose a burden on the latter.  That would be a difficult case to advance when one was, as in the present case, dealing with accommodation in a hostel, but the possibility remains that on appropriate facts it could be advanced.

[15]      On the other hand s 8(2) could also be construed as a special provision governing a particular situation that is to be applied to the exclusion of the general provisions of s 8(1).  The brocard generalia specialibus non derogant[7] comes to mind. 

This is a difficult question, made more difficult by the fact that the point was not raised in the pleadings or at the trial where, as I have said, the parties in very specific terms limited the issues and did not include any issue arising under s 8(1).  Nor was it raised in the heads of argument in this court and we have not had the advantage that full argument on the point would provide. 

It is accordingly undesirable to decide it as it falls outside the issues properly raised and in dispute between these litigants.  I need hardly add that it is an issue with constitutional ramifications and it remains a salutary rule, even if not always observed, that if a matter can be disposed of without reaching a constitutional issue that is the approach that the court should adopt.[8]

I will accordingly leave the point open and say no more than that, if it is to be raised, it must be raised by way of allegations in the plea of the former worker whose eviction is being sought and supported by evidence showing that it would, notwithstanding the termination of the former worker’s employment, not be just and equitable to evict him or her from the accommodation provided by the employer in terms of the employment agreement.

[16]      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.

[1] Act 28 of 1956.

[2] Coin Security (Cape)(Pty) Ltd v Vukani Guards and Allied Workers’ Union & others 1989 (4) SA 234 (C).

[3] Randfontein Estates Gold Mining Co (Witwatersrand) Ltd v Forbes 1992 (1) SA 649 (W).

[4] At 651 H-I.

[5] By Curlewis J in Egnep Ltd v Black Allied Mining and Construction Workers’ Union & others 1985 (2) SA 402 (T) at 404J-405A.

[6] At 651J-652A. This conclusion was followed by Mahomed J in Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T) at 310G-311E.

[7] Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) para 39. It is referred to without comment, but with apparent approval,  in Mankayi v Anglogold Ashanti 2011 (3) SA 237 (CC) para 61, fn 89.

[8] Zantsi v Council of State, Ciskei & others 1995 (4) SA 615 (CC) paras 2-7. The principle has been repeatedly affirmed, most recently in Nyathi v MEC for Department of Health, Gauteng & another 2008 (5) SA 94 (CC) para 149. See also Prince v President, Cape Law Society & others 2001 (2) SA 388 (CC) para 22 on the need for issues to be properly raised in the pleadings or affidavits in the court of first instance.