The SCA allowed the appeal and held that a notice of eviction given in terms of s 8 of Extension of Security of Tenure Act 62 of 1997 (ESTA) before the CCMA has determined a claim for unfair dismissal was premature and invalid.  Although a valid notice was given to the spouse her right to family life in terms of s 6(2)(d) of ESTA prevented her eviction.

Snyers v Mgro Properties (Pty) Ltd (20816/2014) [2016] ZASCA 151 (30 September 2016) per Mathopo JA (Mhlantla, Leach, Willis and Zondi JJA concurring):

SCA summary

Land – Extension of Security of Tenure Act 62 of 1997 (ESTA) – notice given of eviction in terms of s 8 of ESTA not valid if given before CCMA makes determination on labour dispute – failure to satisfy the requirements for a valid notice of eviction in respect of an occupier previously employed by landowner – notice properly given to spouse – right to family life in terms of s 6(2)(d) of ESTA prevents eviction of one spouse while the other remains.

Excerpts without footnotes

[13]      Before us, it was contended on behalf of the appellants that the Land Claims Court (LCC) erred when it granted the order evicting Snyers because the notices to vacate which had been served on him in terms of s 9(2)(b) of ESTA were invalid as they preceded the termination of his right of residence in terms of s 8.  The latter would only take effect, so it was argued, when his labour dispute against the respondents was determined by the CCMA on 1 June 2011.

In support of his argument, counsel urged upon us to accept that the referral was sent to the CCMA on 13 January 2011.  Once again, it was contended that the LCC erred when it held that the application was out of time.  We were urged to accept that, prior to determination of the condonation application, any notice served during that period is defective and invalid and further that no fault could be laid at the door of Snyers if the CCMA misplaced his original referral form, which had been sent timeously to them.

[14]      The nub of the appellant’s case is that he was forced to resign under the pretext that he would receive his pension money.  As a result of that pressure or promise he contends that he was constructively dismissed by the respondents and that as the dispute was still pending before the CCMA, the respondents’ notices of 7 March 2011 and May 2011 were invalid in terms of s 9(2)(b) of ESTA.

. . . . .

The validity of the notices to vacate

[18]      In my view, when the respondents served the notice to vacate on Snyers, his labour dispute in the CCMA had not yet been determined.  That contravened the provisions of s 8(3) requiring that where there is a labour dispute relating to the termination of the occupier’s right of residence, the termination only takes effect when such dispute is determined in accordance with the LRA.  In Karabo & others v Kok & others 1998 (4) SA 1014 (LCC) para 14, the LCC, in a judgment by Gildenhuys J (Moloto J concurring), correctly held that:

‘The right of residence of a person which arises solely from an employment agreement, may be terminated if the person resigns from his or her employment or is dismissed in accordance with the provisions of the Labour Relations Act.   Any dispute over whether a person’s employment has been lawfully terminated must be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect only when that dispute has been determined in accordance with that Act.’ (Footnotes omitted.)

. . . . .

[19]      Determination of the disputed labour matter is thus clearly a pre-condition for terminating the occupier’s right of residence under ESTA.  Given the objects of ESTA stated in the above dicta of the Constitutional Court, it necessarily follows where an occupier’s tenancy is subsidiary to his or her employment on a farm, that where a dismissal is disputed, the dispute over its fairness must be finally determined before the subsidiary tenancy is terminated.  Accordingly, ESTA does not countenance notice given in terms of s 8 while a labour dispute remains undetermined.  The validity of the notice so given is vitiated by the lack of determination of the labour matter.  For these reasons, and as s 9(2)(a) of ESTA makes the granting by a court of an eviction order subject to the prior termination of the right of residence in terms of s 8,[1] the notices given by the respondents to Snyers were invalid and consequently vitiated the entire eviction proceedings against him.

. . . . .

Mrs Snyers’ right to reside on the farm

[23]      In relation to Mrs Snyers’ situation it should be noted that the Constitutional Court in Klaase referred with approval to its earlier decision in Hattingh & others v Juta [2013] ZACC; 2013 (3) SA 275 (CC)[1] in which it affirmed the right to family life under s 6(2)(d) of ESTA and held it to be undesirable to separate families. . . .

In view of the authority of Hattingh, despite Mrs Snyers’ notice of termination of her right to reside on the farm having been validly given, it would infringe on Snyers’ right to family life and it would be undesirable to allow her eviction while Snyers remains on the farm pending the determination of his labour dispute.