THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 797/2021

In the matter between:

ISEDOR SKOG N.O.
FIRST APPELLANT
REINETTE SKOG N.O.
SECOND APPELANT
HENDRIK COLLINS GERRYTS N.O.
THIRD APPELLANT
(In their capacity as Trustees for the time
being of the Rein Trust IT2778/99)

and

KOOS AGULLUS
FIRST RESPONDENT
MATILDA AGULLUS
SECOND RESPONDENT
HANO AGULLUS
THIRD RESPONDENT
MARTONIQUE AGULLUS
FOURTH RESPONDENT
RICHARD SYSTER
FIFTH RESPONDENT
WILHELMIEN SYSTER
SIXTH RESPONDENT
RICHWELL SYSTER
SEVENTH RESPONDENT
REGINA PIETERSEN
EIGHTH RESPONENT
JEFFREY PIETERSEN
NINTH RESPONDENT
CALVIN PIETERSEN
TENTH RESPONDENT
HENDRIK SEDRAS
ELEVENTH RESPONDENT
SOPHIE WAGNER
TWELFTH RESPONDENT

SHARON PAULSE
THIRTEENTH RESPONDENT
MINNA WITBOOV/ADAMS
FOURTEENTH RESPONDENT
WILMAN ADAMS
FIFTEENTH RESPONDENT
LORENZO WITBOOI
SIXTEENTH RESPONDENT
FENETIA ADAMS
SEVENTEENTH RESPONDENT
ELISEZA ELLIE KOORDOM
EIGHTEENTH RESPONDENT
PIETER SMALL
NINTEENTH RESPONDENT
MARIA KORDOM
TWENTIETH RESPONDENT
ELIZABETH KORDOM
TWENTY-FIRST RESPONDENT
SOLOMON MORRIS
TWENTY-SECOND RESPONDENT
ELENA MORRIS
TWENTY-THIRD RESPONDENT
ILONA MORRIS
TWENTY-FOURTH RESPONDENT
KOOS KOORDOM
TWENTY-FIFTH RESPONDENT
ALL THOSE HOLDING TITLE
THROUGH 1ST - 25TH RESPONDENTS
OR OCCUPYING COTTAGES 1, 3, 4, 5, 7,
8, 12, 13 AND THE SHED ON THE
REIN HILL ESTATE, REMAINDER FARM
NO 1458, DIVISION PAARL,
WESTERN CAPE
TWENTY-SIXTH RESPONDENT
DRAKENSTEIN MUNICIPALITY
TWENTY-SEVENTH RESPONDENT
HEAD: WESTERN CAPE PROVINCIAL
DEPARTMENT OF RURAL
DEVELOPMENT AND LAND REFORM
TWENTY-EIGHTH RESPONDENT

Neutral Citation:
Isedor Skog N.O. & Others v Koos Agullus & Others
(797/2021) [2023] ZASCA 15 (20 February 2023)
Coram:
PETSE AP, MOLEMELA and MAKGOKA JJA and
BASSON and GOOSEN AJJA
Heard:
07 November 2022
Delivered:
20 February 2023
Summary:
Land Reform – eviction under the Extension of Security of Tenure
Act 62 of 1997 – whether termination of the occupiers’ right of residence on a farm

just and equitable – whether judgment previously granted by a magistrate’s court
rendered the claim in the Land Claims Court res judicata.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: The Land Claims Court, Randburg (Ncube J sitting as court
of first instance):
1. The appeal succeeds and the cross-appeal is dismissed with no order
as to costs in each instance.
2. The order of the Land Claims Court is set aside and replaced with the
following order:
‘(a) An eviction order is granted in respect of all the occupier respondents,
with the exception of the eleventh and twelfth respondents.
(b) The first to tenth respondents and thirteenth to twenty-sixth respondents
must vacate the farm known as Rein Hill Estate, situated on the remainder
of farm number 1458 in the Drakenstein Municipality, Paarl Division,
Western Cape Province on or before 31 August 2023.
(c) Should the respondents mentioned in paragraph (a) and all those
occupying the farm under them fail to vacate it on or before 31 August 2023,
the sheriff of the court is authorised to evict them from the farm by 15
September 2023.
(d) The twenty-seventh respondent is ordered to provide emergency
housing suitable for human habitation with access to basic services (which
may be communal) to the respondents mentioned in paragraph (a) above
and all those occupying the farm under them, on or before 31 July 2023.
(e) There is no order as to costs.’

______________________________________________________________

JUDGMENT
______________________________________________________________

Molemela JA (Petse AP and Makgoka JA and Basson and Goosen AJJA
concurring):
Introduction:
[1] Central in this appeal is whether eight families residing on private
property owned by another ought to be evicted from that property on account
of conduct which purportedly caused an irretrievable breakdown of the
relationship between the former and the latter. In matters concerning eviction,
the point of departure is eloquently set out in the following text of two judgments
of the Constitutional Court:
‘Section 26(3) [of the Constitution] evinces special constitutional regard for a person’s
place of abode. It acknowledges that a home is more than just a shelter from the
elements. It is a zone of personal intimacy and family security. Often it will be the only
relatively secure space of privacy and tranquillity in what (for poor people in particular)
is a turbulent and hostile world. Forced removal is a shock for any family, the more so
for one that has established itself on a site that has become its familiar habitat.’1
A little more than a decade later, the same Court said the following pertaining
to the recurring challenge of evictions of farmworkers from private property:
‘[T]he Extension of Security of Tenure Act] requires that the two opposing interests of
the landowner and the occupier need to be taken into account before an order for
eviction is granted. On the one hand, there is the traditional real right inherent in
ownership reserving exclusive use and protection of property by the landowner. On
the other, there is the genuine despair of our people who are in dire need of
accommodation. Courts are obliged to balance these interests. A court making an
order for eviction must ensure that justice and equity prevail in relation to all
concerned.’2

1 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) 2004 (12) BCLR
1268 (CC) para 17.
2 Molusi and Others v Voges N O and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) para 39.

[2] This appeal is directed at the order of the Land Claims Court (LCC), per
Ncube J, dismissing an application brought by the first and second appellants
in their capacities as the trustees of the third appellant, the Rein Trust, for the
eviction of the 1st to the 26th respondents (jointly referred to as the occupiers)
from the Trust’s property, a farm known as Rein Estate Hill, situated on the
remainder of farm 1458, Drakenstein Municipality, Paarl Division, Western
Cape (the farm). An issue raised in the cross-appeal is whether the doctrine of
res judicata precluded the consideration of the dispute by the Land Claims
Court (the LCC) on account of another court having previously refused to evict
occupiers from the same property. The appeal is with the leave of the LCC.

Background facts
[3] The salient background facts are largely undisputed. The farm was
previously owned by Amen Trust and managed by a Mr Buckle from 1995. Rein
Trust (the Trust) purchased the farm in 2010. Several residential cottages were
constructed on the farm for the use of farm workers. The occupiers cited in the
proceedings resided in nine cottages on the farm, with each cottage being
occupied by a former employee and his or her family. Some cottages were
made of brick and mortar and had asbestos roofing, while others were made of
wood.

[4] The occupiers were former employees or the family members of the
former employees of the Trust or its predecessor in title. At the time of the
launching of the application in the LCC, the occupiers all resided in nine
cottages on the farm and had been living there before the Trust took ownership
thereof in 2010. Many households were made up of adults and minor children.
In total there were 24 adults and 18 minors at the time when the application
was launched. It was averred that the 17th respondent had been living on the
farm since 1995 but had never been employed by the Trust. As regards the
18th respondent, it is unclear whether she was ever employed by the Trust, but
she and her children have been living on the farm since 1995. Nothing turns on
this aspect, as the Trust has not disputed that before the occupants were
ordered to vacate the farm on 24 June 2011, they had all lived on the farm with

the Trust’s consent.3 According to the probation officer’s report, at the time of
the inspection of the farm, the 15th respondent and her dependant were no
longer resident on the farm. The 11th and 12th respondents, who were of
advanced age and had no children, passed away before the hearing of the
appeal.

[5] It is common cause that the employment relationship between the Trust
and those occupiers who were in its employ ended on 24 June 2011, on which
date they were also ordered to vacate the farm. None of them left the farm. A
further notice to vacate the farm was issued on 21 May 2012 but yielded no
results.

[6] Aggrieved by the occupiers’ refusal to vacate the farm, in 2013, the Trust
approached the Magistrates’ Court, Wellington (the magistrate court), and
sought an order for the eviction of the 1st, 2nd, 6th, 7th, 8th, 13th, 20th and 24th
respondents. The application for eviction was premised on the provisions of the
Extension of Security of Tenure Act 62 of 1997 (ESTA). The Trust averred that
the employment relationship between all the farm workers who were working
on the farm had always been regulated by an employment contract concluded
between the previous owner and the farmworkers concerned.

[7] According to the Trust, the occupiers were taken over as the Trust’s
workforce on the same terms and conditions prevailing at the time when they
were employed by the previous owner. On the Trust’s version, identical
employment contracts were subsequently concluded between it and the
respective employees. In addition, lease agreements were concluded, setting
out the terms and conditions applicable to the occupiers’ occupation of the
farm. Copies of specimen employment contracts and lease agreements were
attached to the Trust’s papers as Annexure C and D, respectively. Included in
the specimen lease agreement was a list of house rules applicable to
employees.

3 Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others [2012] ZASCA 77; 2012
(5) SA 392 (SCA) para 3.

[8] The Trust asserted that the lease agreements concluded with the
occupiers clearly stipulated that the occupiers’ tenure as residents in the Trust’s
cottages was subject to the employment relationship continuing to exist.
According to the Trust, the termination of the occupiers’ right of residence was
on the basis that their occupation of the farm was linked to their employment,
which the occupiers had terminated by refusing to render service to the Trust
pursuant to an unprotected strike.

[9] The Trust further averred that formal meetings were held in 2016 and all
the occupiers cited as respondents in the magistrate’s court proceedings were
offered jobs and accommodation, but none of them expressed interest in the
offer. Two further meetings were held early in 2017. This averment was denied
by the occupiers. According to the Trust, a further meeting was arranged in
September 2017 but none of the occupiers attended it. The Trust’s attorneys
contacted the attorney who had previously represented the occupiers in the
litigation conducted in the magistrate’s court. A meeting was arranged for 3
November 2017 but none of those respondents attended it.

[10] On 23 February 2017 the magistrate court handed down judgment
refusing the relief sought. In the judgment, the magistrate took issue with the
fact that the employment contracts and the lease agreements concluded
between the Trust and the occupiers were not attached to the application that
served before him. Instead, the contract of employment and lease agreement
furnished reflected Mr Buckle as the employer. The magistrate also recorded
that the Trust had conceded that the occupiers had refused to sign the
employment contracts and lease agreement that it had presented to them for
signature but had failed to attach the unsigned contracts as substantiation of
that assertion.

[11] It can be gleaned from the magistrate’s judgment that the deponent to
the answering affidavit had admitted that he had concluded an employment
contract and a lease agreement with the Trust, and merely indicated that the
contract and lease agreement attached to the application were not the ones he

had signed. The magistrate held that the Trust had failed to prove the existence
of the employment contract and lease agreement specifying the tenure of their
occupation of the Trust’s farm, that there were disputes of fact pertaining to
circumstances that had resulted in the termination of the occupiers’
employment and relating to complaints raised in respect of how the occupiers
conducted themselves on the property. The magistrate concluded that since
the Trust had not shown compliance with the provisions of s 8(1)(3) of ESTA,
it had failed to show that the occupiers’ right of residence had been lawfully
terminated. Accordingly, the court dismissed the application for eviction on the
basis that it was not just and equitable to do so. The Trust did not appeal that
order.

[12] In May 2018 notices were delivered to every household informing the
occupiers that the Trust was considering terminating their rights of occupation
and simultaneously calling upon them to make representations as to why they
should not be evicted. None of the occupiers responded. In July 2018, notices
were delivered to all the occupiers informing them that their rights of occupation
had been terminated and affording them thirty days within which to vacate the
farm. According to the Trust, it was specifically stated in those notices that the
Trust was once again prepared to discuss any reasonable way in which the
Trust could assist the respondents, including an offer of assistance in
relocating. None of the occupiers vacated the farm or made any approaches to
the Trust or to the Trust’s attorneys.

[13] On 19 June 2019 the Trust approached the LCC seeking the occupiers’
eviction from its farm. The foundation for the proposed eviction was the
unacceptable way the occupiers had allegedly conducted themselves on the
farm, which, on the Trust’s version, led to the breakdown of the relationship
between the Trust and the occupiers. In the answering affidavit deposed at the
LCC, the stance taken by the occupiers was that the Trust had not proven the
existence of written employment contracts and lease agreements regulating
the occupiers’ habitation of the farm, as the alleged agreements were not
annexed to the Trust’s application. It was also contended that the Trust had
failed to identify the individual occupiers who were guilty of the alleged

misconduct. The occupiers asked for the dismissal of the claim on the basis
that the Trust had not made out a proper case.

[14] In a judgment handed down on 18 February 2021, the LCC found that it
was wrong to paint all occupiers with the same brush and held that the Trust’s
house rules had been broken by unknown people. As regards the allegation
that the occupiers failed to observe the rules pertaining to reception of visitors
and that their visitors were rowdy, the LCC criticised the fact that it had not
been specified who, among the occupiers, had invited visitors to the farm. The
LCC also concluded that there was no proof that the dogs that were allegedly
roaming on the farm and damaging the vineyards belonged to the occupiers. It
said:
‘[T]he Land Claims Court is a court of justice and equity. It can never be just and
equitable to order a mass eviction of families, parents and children from the farm based
on a blanket, unfounded and unsubstantiated allegations of breach of a relationship
between the occupiers and the Trust. It must be clear who did what.
[T]he Trust must be in a position to say which of the 26 respondents is guilty of the
atrocities relied upon for the eviction to succeed.’

[15] On 11 March 2021, the Trust applied for leave to appeal the LCC’s
judgment. On 7 July 2021 the LCC granted it leave to appeal to this Court. On
2 September 2021, the occupiers applied for leave to appeal the LCC’s order
dismissing their defence of res judicata, which had been raised as a preliminary
point. On 11 November 2021, the LCC granted them leave to cross-appeal to
this Court. The filing of the notice to cross-appeal was not in accordance with
the rules of this Court, as it was delivered more than a month after the filing of
the Trust’s Notice of Appeal. Accordingly, an application for the condonation of
the late noting of the cross-appeal was filed on behalf of the occupiers.

[16] It is evident from the affidavit filed in support of that application that the
root cause of the delay in filing the cross-appeal was the fact that the application
for leave to cross-appeal was launched at the LCC only after the Trust had filed
its notice of appeal in this Court. The explanation for that delay was that the
mandate for the legal representatives who had represented the occupiers in

the LCC had not been automatically extended to the appeal processes. On the
other hand, the indigent occupiers were unable to fund the appeal processes
and thus had to re-apply to the 28th respondent for funding. The delay in
securing legal representation for the application for leave to appeal in turn
caused the delay in the filing of the notice to cross-appeal.

[17] Oral arguments in this Court were preceded by an application for
condonation of the late noting of the cross-appeal. The Trust’s counsel
indicated that he had no instructions to oppose the application for condonation.
Having considered all the circumstances of the case, this Court granted
condonation on the basis that a proper case had been made out. I consider
next the merits of the appeal.

Discussion
[18] It is trite that in motion proceedings, the affidavits filed in the application
constitute evidence. In such proceedings, the norm is that affidavits are limited
to three sets. For this reason, utmost care must be taken to fully set out the
case of a party on whose behalf an affidavit is filed. These being motion
proceedings, the application fell to be decided in accordance with the principle
laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd4 (the
Plascon Evans principle). In terms of that principle, an applicant who seeks final
relief in motion proceedings must, in the event of a dispute of fact, accept the
version set up by his or her opponent unless the latter’s allegations are, in the
opinion of the court, not such as to raise a real, genuine or bona fide dispute of
fact or are so far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers.5

[19] It is settled that ESTA requires two consecutive steps to be taken before
an eviction order may be granted by a court. Having conducted an overview of
various judgments, this Court in Aquarius Platinum (SA) (Pty) Ltd v Bonene and

4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984] 2 All SA
366 (A); 1984 (3) SA 623 (A) at 634E-635C.
5 Wightman t/a JW Construction v Headfour and Another [2008] ZASCA 6; 2008 (3) SA 371
(SCA); [2008] 2 All SA 512 (SCA) para 12.

Others (Aquarius)6 described the two-stage procedure mentioned in s 87 of
ESTA as follows:

6Aquarius Platinum (SA) (Pty) Ltd v Bonene and Others [2020] ZASCA 7; 2020 (5) SA 28
(SCA) para 13.
7Section 8 provides as follows:
‘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.
(4) The right of residence of an occupier who has resided on the land in question or any other
land belonging to the owner for 10 years and— (a) has reached the age of 60 years; or (b) is
an employee or former employee of the owner or person in charge, and as a result of ill health.
injury or disability is unable to supply Iabour to the owner 45 or person in charge, may not be
terminated unless that occupier has committed a breach contemplated in section 10( 1)(a), (b)
or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide
Iabour shall not constitute such a breach.

(5) On the death of an occupier contemplated in subsection (4), the right of residence 50 of an
occupier who was his or her spouse or dependant may be terminated only on 12 calendar
months’ written notice to leave the land, unless such a spouse or dependant has committed a
breach contemplated in section 10(1).

(6) Any termination of the right of residence of an occupier to prevent the occupier from
acquiring rights in terms of this section, shall be void.

(7) If an occupier’s right to residence has been terminated in terms of this section, or the
occupier is a person who has a right of residence in terms of section 8(5)— (a) the occupier
and the owner or person in charge may agree that the terms and conditions under which the
occupier resided on the land prior to such termination shall apply to any period between the
date of termination and the date of the eviction of the occupier; or (b) the owner or person in
charge may institute proceedings in a court for a determination of reasonable terms and

‘. . . [B]oth 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.’

[20] It is not disputed that the Trust sent separate notices to all the
occupiers, terminating their rights of residence and giving them notice of its
intention to evict them. That being the case, the pertinent question is whether
the termination of their right to reside on the farm was lawful and also whether
it was, given all the circumstances, just and equitable.

[21] Regarding the trigger for the termination of the right of residence, the
occupiers asserted that they were dismissed pursuant to their refusal to subject
themselves to the Trust’s more onerous conditions of employment, while the
Trust averred that the termination of the occupiers’ employment resulted from
their participation in an unprotected strike. According to the Trust, all the
occupiers were offered reinstatement into their former positions but only two
persons (who are not respondents in this matter) accepted the offer. Some of
the occupiers accepted employment elsewhere. It bears emphasising that in
terms of s 8(2) of the ESTA,8 the right of residence of an occupier who is an

conditions of further residence, having regard to the income of all the occupiers in the
household.’
8 In terms of s 1 of the Extension of Security of Tenure Act (ESTA), ‘occupier’ means ‘a person
residing on land which belongs to another person, and who has or on 4 February 1997 or
thereafter had consent or another right in law to do so, but excluding—
(a) . . .

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 66 of
1995.

[22] Regardless of each party’s version on how the employment relationship
ended, what is common cause is that it ended on 24 June 2011. Suffice it to
observe that more than a decade after the employment relationship between
the Trust and the occupiers ceased, the occupiers have not sought any legal
redress at the Commission for Conciliation Mediation and Arbitration or any
other forum.

[23] In its founding affidavit, the Trust highlighted serious breaches of the
relationship purportedly committed by the occupiers which, on the Trust’s
version, rendered the former’s continued occupation of the farm untenable. The
photographs depicting the damage resulting from non-compliance with house
rules substantiate the Trust’s assertions. It is of great significance that many
material allegations of inappropriate conduct attributed to the occupiers have
not been denied. In the main, the laconic affidavit filed on their behalf consisted
of bare denials in the face of detailed averments establishing a fundamental
breach of the parties’ relationship.

[24] Nowhere in the sparse responses in the answering affidavit is the
irretrievable breakdown of that relationship denied. Despite this, counsel for the
occupiers contended that the occupiers' denial of unruly conduct described in
the founding affidavit gave rise to several disputes of fact. He argued that in the
face of such factual disputes, the LCC was, in terms of the Plascon-Evans
principle, enjoined to decide the matter on the facts averred in the occupiers’
answering affidavit, as they were the respondents. In my opinion, one of the

(b) a person using or intending to use the land in question mainly for industrial, mining,
commercial or commercial farming purposes, but including a person who works the land himself
or herself and does not employ any person who is not a member of his or her family; and
(c) a person who has an income in excess of the prescribed amount.’

exceptions to the general rule laid down in Plascon-Evans does not support
counsel’s contention because the occupiers’ bald denials in the face of detailed
averments borne out by photographs did not amount to a genuine dispute of
facts. This exception was articulated as follows in Rail Commuters Action
Group v Transnet Limited t/a Metrorail:9
‘In assessing a dispute of fact on motion proceedings, the rules developed by our
courts to address such disputes will be applied by this Court in constitutional matters.
Ordinarily, the Court will consider those facts alleged by the applicant and admitted by
the respondent together with the facts as stated by the respondent to consider whether
relief should be granted. Where however a denial by a respondent is not real, genuine
or in good faith, the respondent has not sought that the dispute be referred to evidence,
and the Court is persuaded of the inherent credibility of the facts asserted by an
applicant, the Court may adjudicate the matter on the basis of the facts asserted by
the applicant. Given that it is the applicant who institutes proceedings, and who can
therefore choose whether to proceed on motion or by way of summons, this rule
restated and refined as it was in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd is a fair and equitable one.’
In my view, the LCC should have applied the principle set out in this passage
in order to reach its verdict. In failing to do so, it materially misdirected itself.

[25] It is of significance that the occupiers have rejected all the Trust’s
attempts at brokering an amicable resolution of the impasse. Section 8(7)(a) of
ESTA stipulates that ‘if an occupier’s right to residence has been terminated . .
. the occupier and the owner or person in charge may agree that the terms and
conditions under which the occupier resided on the land prior to such
termination shall apply to any period between the date of termination and the
date of the eviction of the occupier’. I have already alluded to the fact that the
Trust’s case was that the occupiers had flouted various house rules that had
been agreed upon in terms of the lease agreement. One of them, which the
occupiers admitted disregarding, was their liability for the payment of rental and
the fact that rental had not been paid since the employment relationship ended
in 2011. It is undisputed that the occupiers were invited to several meetings

9 Rail Commuters Action Group v Transnet Limited t/a Metrorail 2005 (2) SA 359 (CC); 2005
(4) BCLR 301 (CC) para 53.

where they were invited to make representations pertaining to their continued
occupation of the farm, but none of them attended such meetings.

[26] The answering affidavit made no attempt to respond to the following
averments set out in the founding affidavit:
‘During May 2018 notices were delivered at every one of the relevant premises by the
Sheriff. Essentially 2 separate notices were delivered, one to whichsoever member of
the household had previously had a direct right to occupy, and one delivered to each
member of his family. In this regard I attach hereto the notices delivered to the first
and second respondents marked as Annexures “FA 22(a)” and “FA22(b)” respectively,
in which notices, inter alia, the following was recorded.
53.1 The facts giving rise to the occupation of the property by the first and the second
respondents were reiterated.
53.2 It was recorded that in the event it was alleged by the second respondent that
she had in fact received tacit consent to occupy the property that this too would have
been subject to the same terms and conditions as the consent afforded to the first
respondent.
53.3 It was recorded that the relationship between the trust and the relevant
respondent had broken down.
53.4 It was recorded that the trust was considering cancelling the first and second
respondents’ right of occupation of the property for the reasons contained in the
notices.
53.5 The many instances of misconduct on the part of the occupiers leading to harm
to the trust and to the remaining persons on the property were listed.
53.6 It was recorded further that the entirety of the right of occupation afforded to them
was fair.
53.7 It was noted the relative interests of the parties justify the possible termination of
their rights of occupation.
53.8 The letter informed that the trust was considering terminating any such rights as
the first and second respondents might allege for the reasons as set out in the letter.
53.9 It was recorded that the consent that the respondents had to occupy the property
was fair and the circumstances and that the trust had need for the premises for the
conducting of the business of the property.
53.9.1 More correctly in this regard it should be noted that the trust in fact intends
using the land where the occupiers currently reside to erect new structures. . . .

53.10 The first and second respondents were afforded an opportunity to deliver, to
myself at the property or the trust’s legal representatives, representations as to why
they believed their consent to occupy property should not be terminated.
53.11 It was reiterated that in the event such representations were not received or in
the event same were not deemed compelling, that their rights to occupy could be
terminated.
53.12 An identical notice, mutatis mutandis, was delivered to every respondent.
53.13 None of the respondents took the opportunity afforded to them to make
representations, and indeed I can record that none of them even approached me in
order to discuss the content of these notices and calls for representations.’ (Own
emphasis.)

[27] The averments above, which have not been denied, are borne out by
the specimen notice attached to the Founding Affidavit. They unquestionably
attest to the occupiers’ apathy towards the restoration of a social relationship.
It is not surprising that the LCC, in its judgment, accepted that all the occupiers
were offered to an opportunity to make representations as envisaged in s
8(1)(e). This finding has not been attacked by the occupiers. Considering all
the circumstances set out above, I am of the view that the Trust’s compliance
with all the requirements set out in s 8(1) of ESTA is beyond reproach. The
termination of the occupiers’ right of residence was therefore lawful. In Snyders
and Others v de Jager and Others,10 the Constitutional Court emphasised that
the right of termination must also be just and equitable both at a procedural and
substantive level. The reason for the termination of the right of residence
remains a relevant consideration, in my view. Given the undisputed averments
pertaining to how the occupiers conducted themselves on the farm and the
gravity of the conduct upon which the right of termination is predicated, I am of
the view that the termination of the right of residence was just and equitable
both procedurally and substantively.

[28] It is well-established that once an occupier's right to reside has been
duly terminated, his refusal to vacate the property is unlawful.11 The occupiers

10 Snyders and others v de Jager and Others [2016] ZACC 55; 2017 (3) SA 545 (CC)
11 Mkangeli and Others v Joubert and Others [2002] ZASCA 13; [2002] 2 All SA 473 (A); 2002
(4) SA 36 (SCA) paras 12-13.

did not deny that they were, on more than one occasion, asked to vacate the
farm. In terms of s 9(2)(d), two months' notice of the intended eviction
application must have been given to the occupier following the termination of
the right to reside as envisaged in s 8.12 The Trust’s compliance with the service
requirements set out in s 9(2)(d) has not been challenged. What remains is to
consider whether the conditions for an order of eviction as laid down in s 10 or
s 11 have been met. Both s 10 and s 11 are applicable, as some of the
occupiers took occupation of the farm before 1997 (thus bringing them within
the purview of s 10), while others took occupation after 1997 (this bringing them
within the purview of s 11).

[29] As regards the occupiers whose occupation commenced before 1997,
the Trust relied on s 10(1)(c) and s 10(3) of ESTA. Section 10(1)(c) provide:
‘(1) An order for the eviction of a person who was an occupier on 4 February 1997
may be granted if –
. . .
(c) the occupier has committed such a fundamental breach of the relationship between
him or her and the owner or person in charge, that it is not practically possible to
remedy it, either at all or in a manner which could reasonably restore the relationship.’

Section 10(3) provides:
‘(3) If—
(a) suitable alternative accommodation is not available to the occupier within a period
of nine months after the date of termination of his or her right of residence in terms of
section 8;
(b) the owner or person in charge provided the dwelling occupied by the occupier; and
(c) the efficient carrying on of any operation of the owner or person in charge will be
seriously prejudiced unless the dwelling is available for occupation by another person
employed or to be employed by the owner or person in charge,
a court may grant an order for eviction of the occupier and of any other occupier who
lives in the same dwelling as him or her. and whose permission to reside there was
wholly dependent on his or her right of residence if it is just and equitable to do so,
having regard to—

12 Ibid.

(i)
the efforts which the owner or person in charge and the occupier have
respectively made in order to secure suitable alternative accommodation
for the occupier; and
(ii)
the interests of the respective parties, including the comparative hardship
to which the owner or person in charge, the occupier and the remaining
occupiers shall be exposed if an order for eviction is or is not granted.’

[30] In Nimble Investments (Pty) Ltd v Malan,13 this Court explained that the
factors that must be considered when determining whether an occupier has
committed a fundamental breach of the relationship envisaged in s 10(1)(c) of
ESTA, include the history of the relationship between the parties prior to the
conduct giving rise to the breach, the seriousness of the occupier’s conduct and
its effect on the relationship.

[31] In Ovenstone Farms (Pty) Ltd v Persent and Another,14 the LCC held
that a fundamental breach of the relationship between an owner and an
occupier contemplated in s 10(1)(c) ‘relates to a social rather than to a legal
relationship’ and that this requirement would be met if ‘it is practically impossible
for the relationship to continue due to a lack of mutual trust’. In the present
matter, it is worth noting that the conduct which constitutes a fundamental
breach of the parties’ relationship was attributed to all the occupiers. The
conduct in question was inter alia described as follows in the founding affidavit:
‘I in no way in this regard wish to imply that all the [occupiers] are careless as to their
treatment of the property, but by virtue of the fact that they are a large and diverse
group, there are persons in the group who treat the property with nothing but contempt.
. . . [S]ome of the [occupiers] have developed the practice of disposing of household
waste by the expedient of either simply disposing of it adjacent to the cottages or by
burning same. For obvious reasons the burning of household waste is strictly
prohibited as this can lead to conflagration destructive of the vineyards in the property.
There has in fact already been one case of the fire spreading to the vineyards albeit
this was caused by arson as opposed to the burning of household waste. A further
health concern is the matter of human waste and waste water.

13 Nimble Investments (Pty) Ltd v Malan [2021] ZASCA 129; [2021] 4 All SA 672 (SCA).
para 46-47.
14 Ovenstone Farms (Pty) Ltd v Persent and Another [2002] ZALCC 31.

. . .
As I have said the cottages were clearly designed and are suitable for small family
units. Such sanitation as exists is hopelessly inadequate for the inflated number of
persons currently resident at the cottages.
. . .
Also, it would appear that household waste water, as well as human waste, is disposed
of immediately below the cottages. The cottages are on the top of a slope leading down
into the vineyards. There is essentially a constant stream of water flowing from the
cottages through the vineyards. Also in the event of rains, accumulated waste simply
washes down from the cottages in the vineyard
. . .
For obvious reasons this is wholly unacceptable in the production of grapes.’ (Own
emphasis.)

[32] The Trust was candid enough to disclose that the only way in which it
could identify the culprits was by using cameras activated by means of motion
detectors. It asserted that one of the rules pertaining to the occupiers’
occupation of the farm clearly stipulated that they were not allowed to own dogs
on the farm. The presence of the dogs in the vineyards was substantiated by a
photograph. This prohibition was based on the dogs’ propensity to damage the
vineyards. The Trust asserted that CCTV cameras were not of much benefit
because the motion detectors were constantly being set off by dogs. This had
led to bulk footage that was impossible to review. For this reason, the Trust
asserted that it had to incur the cost of employing night security on the farm.

[33] The occupiers’ nonchalant retort was to accuse the Trust of having failed
to specifically disclose the identities of the individuals who had committed the
various acts of inappropriate conduct. The rationale for the prohibition on
keeping dogs (ie that they damage the vineyards) was not disputed. The
deponent to the answering affidavit inter alia stated as follows:
‘My silence on certain allegations must not be taken as [acquiescence] on my part or
on the part of the other [occupiers]. [The Trust’s] founding affidavit is voluminous and
contains unsubstantiated allegations of criminality on the property . . . [The deponent]
mentions CCTV footage as being ineffective as result of dogs roaming freely at the
property. He does not mention the owners of the dogs or the owner who lets the dogs

roam around freely. In fact, [the deponent] makes serious allegations about
unidentified persons to the exclusion of the employees of the [Trust].’

[34] The responses in the answering affidavit were generally sparse, as the
material allegations of misconduct were largely left unchallenged. Some of the
responses amounted to untenable rationalisations. For example, responding to
the allegation that there were persons defecating in the vineyards, the
occupiers stated that the ‘simple and acceptable explanation’ was that such
conduct could be attributed to the failure of the applicant to empty the septic
tank.

[35] The Trust’s version about the damage to the irrigation system and health
risks resulting from the unhygienic conditions prevailing on the farm on account
of littering, dysfunctional drainage and sewer systems and the fire risks to which
the property is exposed due to the occupiers’ refusal to co-operate, are
uncontroverted. It was alleged that the sewage system had been destroyed as
a result of baby nappies and newspapers, among other things, being flushed
down the toilet. These unhygienic conditions are borne out by the heaps of litter
close to the cottages as well as burnt household waste as depicted in the
photographs. Some of the photographs depicted the damage to the irrigation
systems and the damaged electrical systems.

[36] The occupiers did not dispute that they were previously subject to house
rules that were embodied in the lease agreement, and that these rules inter alia
required them to use specific access points to their homesteads, to maintain
the cottages in a clean state and prohibited them from keeping dogs on the
farm. They simply contended that the Trust had not shown that they were the
owners of the dogs roaming on the property. They also did not deny that the
Trust had, on occasions, had to intervene due to altercations among rowdy
visitors.

[37] The Trust attached a schedule prepared for the period December 2018
to 1 March 2019 setting out the amounts paid for private security on the farm
in an effort to curb theft of grapes and vandalism on the farm, which had a

negative effect on the business of the Trust and had caused the Trust to incur
a loss of R3 million in one financial year. This is undoubtedly a relevant factor
that serves as an indicator of the hardship that the Trust will be faced with if an
order of eviction is not granted.

[38] Tellingly, the occupiers did not deny the Trust’s assertion that it was quite
clear that the relationship between the parties had ‘wholly broken down’ due to
the manner in which the occupiers had conducted themselves. The Trust
averred that ‘for many years there has been nothing resembling a relationship
between the Trust and the [occupiers]; the [occupiers] essentially form a wholly
independent group living on the property which group does not abide by any of
the rules on the property’. The occupiers have not asserted otherwise and
seemed unperturbed by the Trust’s assertions concerning a breakdown of the
relationship.

[39] The occupiers seem indifferent to the Trust’s hardship of not being able
to accommodate its own employees on the farm. In this regard the Trust has
had to establish a tented compound in order to accommodate certain of its
employees during peak season when their presence on the property is
essential. Instead of addressing this hardship, the occupiers suggested that the
Trust’s own employees were responsible for cutting down fences on the farm.
The deponent said: ‘. . . t]he allegations of vandalism cutting of fences could be
caused by the [Trust’s] employees as the employees reside outside the
property and could be using short cuts on the property’.

[40] In my opinion, the inappropriate conduct complained of is of a serious
nature, regardless of whether the occupiers’ occupation commenced before or
after February 1997 as envisaged in s 10 and 11 of ESTA. To the extent that
the allegations were not specifically disavowed by the occupiers, and the
damage complained of is borne out by the photographs, it must be accepted
that the Trust’s assertions have a ring of truth.15 The damage to the Trust’s

15 Rail Commuters Action Group v Transnet Limited t/a Metrorail 2005 (2) SA 359 (CC) fn 5
above para 53.

property cannot be allowed to continue unabated simply because individual
culprits could not be identified on CCTV cameras. In my opinion, the Trust could
perhaps have alleviated the problems associated with health risks posed by the
unsanitary presence of human waste in the vicinity of the vineyards. However,
it must be borne in mind that the Trust had to expend money on constantly
mending broken fences, repairing the damaged irrigation system, and procuring
the services of security guards to prevent unauthorised access to the farm.

[41] What is plain from the record is that there was an unhealthy stalemate
following the cessation of the employment relationship. The photographs
depicting water flowing from an irrigation hose which was left unattended, litter
left lying around in the vicinity of the cottages and the presence of heaps of
burnt refuse despite the known risk of fires spreading to the vineyard are all
aspects that give credence to the Trust’s contention that its property was
treated with contempt. This kind of conduct is, in my view, irreconcilable with a
cordial social relationship. The blatant non-compliance with the applicable
house rules is an issue that could have been amicably resolved at the meetings
that were proposed by the Trust. Unfortunately, the occupiers chose not to
attend such meetings. The attitude of the occupiers in not showing interest in
the restoration of a harmonious relationship was also unhelpful. The founding
affidavit attests to the Trust’s numerous efforts to regularise the relationship,
but these were spurned. The occupiers’ uncompromising stance apparently
frustrated all efforts to restore the relationship and only served to ruin the social
relationship beyond repair.

[42] The circumstances of this case largely match those in Klaase and
Another v Van der Merwe NO and Others (Klaase),16 where the Constitutional
Court found that the relationship between the property owners and the
occupiers had broken down to such an extent that it could not be salvaged.
Notably, the averment that the relationship had irretrievably broken down was
not disputed. The fact that the relationship cannot be restored is a major

16 Klaase and Another v Van der Merwe NO and Others [2016] ZACC 17; 2016 (6) SA 131
(CC) para 43.

consideration in respect of those occupiers whose occupation of the farm
commenced before 1997.

[43] As alluded to, earlier, the 11th, 12th and 21st respondents were, at the
time of the hearing of the application in the LCC, occupiers as contemplated in
s 8(4) of ESTA as they had lived on the farm for more than ten years and had
reached the age of 60 years. In terms of that provision, their residence could
only be terminated if they had committed a breach contemplated in s 10(1)(a),
(b) or (c) of ESTA, the rider being that their mere failure or refusal to provide
labour could not be regarded as a breach. As mentioned earlier, the Trust’s
case was premised on s 10(1)(c).

[44] In Klaase,17 the Constitutional Court held that absconding from work
and absenteeism; a history of inappropriate conduct; failure to attend a
disciplinary hearing; failure to vacate premises as agreed; and continuing to live
on the premises rent-free while being gainfully employed elsewhere, constitutes
a fundamental breach for purposes of s 10(1)(c) of ESTA.

[45] As mentioned before, the 11th and 12th respondents passed on before
the hearing of the appeal. This means that the 21st respondent, who is 63 years
old, is the only respondent who is on a different footing than the rest of the
respondents and can, as such, only be evicted if she is shown to have
committed a fundamental breach envisaged in s 10(1)(c). It bears emphasising
that the fact that she had not shown any interest in accepting reinstatement is
an irrelevant consideration.

[46] According to the municipality’s report, she is healthy and ‘does not have
special need’. In this regard, I have already indicated that she did not distance
herself or members of her household from any of the inappropriate conduct
complained of concerning. She could at least have attended one of the
meetings to deny involvement in the conduct complained of and to reaffirm her
household’s commitment to compliance with the house rules. She did nothing

17 Ibid.

to indicate her interest in the preservation of a harmonious social relationship
with the Trust as the owner of the farm. On the contrary, all indications point to
her having made common cause with the other respondents. Under the
circumstances, the protection of being a long-term occupier as envisaged in
s 8(4) cannot avail her. In addition, she has not denied that the relationship
between her and the Trust can no longer be salvaged on account of the serious
allegations made against all the occupiers, which fall within the ambit of
s 10(1)(c). Since the requirements of this provision, have been met, it follows
that her eviction from the farm is inevitable.

[47] It is self-evident from the provisions of s 11(3)(d) that in circumstances
where the commission of a breach by occupiers is the reason for the proposed
eviction, such breach will be a relevant consideration even in respect of those
occupiers whose occupation commenced after February 1997. I have already
expressed the view that a fundamental breach of the relationship on account of
inappropriate conduct has been shown in respect of all the occupiers. The
strained relationship can, even in respect of the occupiers who occupied the
farm after 4 February 1997 (ie those falling within the ambit of s 11 of ESTA),
be described as a situation that is ‘beyond redemption’,18 given various
accusations and counter-accusations evident in the founding and answering
affidavits. What is patently clear is that basic house rules relating to the
respective occupiers’ conduct on the property were fragrantly disregarded. The
breach of these rules, which resulted in the financial loss set out in the
preceding paragraphs, is the main reason why the Trust seeks an order of
eviction.

[48] The pronounced lack of mutual trust between the parties is self-evident.
The Trust’s attempts to regularise the relationship have come to naught. It is
undisputed that the Trust is currently unable to provide its own workforce with
accommodation. In summary, the circumstances canvassed above when
considered cumulatively, lead me to conclude that the conditions set out in
s 9(2) of ESTA have been met. This paves the way for considering whether

18 Compare Labuschagne and Another v Ntshwane 2007 (5) SA 129 (LCC) para 22-23.

justice and equity would be served if an eviction order is granted. In deciding
whether it is just and equitable to grant an eviction order, this Court must
consider whether suitable alternative accommodation is available to the
occupiers (s 11(3)(c)) and balance the interests of the Trust vis-a-vis those of
the occupiers (s 11(3)(e)). It is to that question that I now turn.

[49] The LCC directed the 28th respondent, the Department of Rural
Development and Land Reform, to submit a probation officer’s report as
envisaged in s 9(3) of ESTA.19 In her report, the probation officer suggests that
the occupiers not be evicted from the property and requested the LCC to rather
order the affected parties to partake in a meaningful engagement process. She
fleetingly mentioned that one of the occupiers alluded to the fact that the
cottages are in a dilapidated state. Against the clear manifestation of a history
of mistrust and a deteriorating strained relationship which none of the occupiers
have been interested to mend over the years, coupled with the fact that several
of them are already employed elsewhere, I am of the view that any prospect of
mutual trust being rekindled is but a chimera. As it is practically impossible for
the relationship between the parties to be restored due to a lack of mutual trust,
I am of the respectful view that no purpose would be served by an order
proposed by the probation officer.20

Is an order of eviction warranted under the circumstances of this case?
[50] Section 9(3) forms part of ESTA provisions that impose limitations on
evictions and prescribe the circumstances in which an eviction order may be
made. The relevant considerations include the availability of suitable alternative
accommodation to the occupiers, the effect of an eviction on the constitutional
rights of any affected persons, including the rights of children to education, and
any hardship that an eviction may cause the occupiers. Another relevant

19 Section 9(3) makes provision for submission of a probation report upon request of a court
with regard to the following:
(a) the availability of suitable alternative accommodation;
(b) an indication of how the eviction will affect the occupier’s constitutional rights, including
the rights of children regarding their education;
(c) pointing out any undue hardships which an eviction would cause the occupier; and
(d)  reporting on any matter as may have been prescribed by the court.
20 Nimble Investments (Pty) Ltd v Johanna Malan and Others fn 13 above.

consideration in matters of this nature is the comparative hardship to the
occupiers and the owner of the property. As aptly stated in Molusi and Others
v Voges N O and Others (Molusi),21 ‘a court making an order for eviction must
ensure that justice and equity prevail in relation to all concerned. This it does
by heeding the considerations specified in s 8 read with s 9, as well as ss 10
and 11 of ESTA, which make it clear that fairness plays an important role.’

[51] On the conspectus of all the facts in this case, it would be unreasonable
to expect the Trust to continue to provide the occupiers with housing in the face
of undisputed evidence of an unsalvageable breakdown of the parties’
relationship. Sympathetic as one may be to the plight of the occupiers, who
have considered the farm as their place of abode for many years, the Trust
cannot, under the prevailing circumstances, be expected to continue to
accommodate the occupiers on its farm indefinitely.

[52] Moreover, the dilapidated cottages appear to be on the verge of being
uninhabitable due to their state of disrepair. The Trust’s averment that the
cottages occupied by the occupiers were in a dilapidated state and warranted
to be demolished was not disputed by the occupiers. It was averred that some
of the walls were collapsing, with gaps between the asbestos roofing and the
supporting wall. The extent of the dilapidation is borne out by the photographs
attached to the Trust’s founding affidavit. This, in my view, is an aspect which,
on its own, seriously militates against the refusal of the eviction order. It simply
cannot be in the interests of justice for this Court to sanction continued long-
term occupation of uninhabitable dwellings.

[53] Against the afore-stated background, to order the Trust to retain the
occupiers on the farm and to expect the occupiers to live indefinitely in
dilapidated cottages with asbestos roofing and in crooked wooden houses
indefinitely would border on being inhumane. In the same vein, to order the
Trust to renovate the cottages and to expect it to bear the costs of such
renovations in addition to the costs it has already incurred in managing the

21 Molusi and Others v Voges N O and Others fn 2 above para 39.

security risks would be to unfairly impose an additional hardship on the Trust.
All the more so because the Trust has had to tolerate the occupiers’ attitude in
circumstances where the occupiers have been staying in the cottages rent free
for more than a decade after the termination of the employment relationship.

[54] It is well-established that in the context of justice and equity, the
availability or otherwise of alternative accommodation is one of the factors that
a court must take into consideration. In Molusi,22 the Constitutional Court held
that a municipality is obliged not only in terms of ESTA, but also s 26(3) of the
Constitution to provide suitable alternative accommodation. In this matter, the
occupiers indicated that they would have no place of abode, should they be
evicted from the farm. Some of them had already applied to the 27th respondent
(the municipality) for assistance regarding their accommodation needs, but it
had been a fruitless exercise for some of them, while a few were put on a
waiting list.

[55] The municipality compiled a report on 8 October 2020. In respect of the
second respondent, who is the wife of the first respondent, the report
acknowledges that she applied for housing from the government in 2013 and
confirms that she was registered on the municipality’s housing database on 24
June 2013. It also records that the first respondent is suffering from a disability.
It states that even though he was dependent on a disability grant, the grant had
been suspended. The report also notes that the first respondent’s wife and the
couple’s two children are employed. Surprisingly, it records that ‘the housing
application has not been flagged as rural dwellers’ but does not explain why
that was not done. It concludes by mentioning that ‘due to the date of the
application, the applicant will not be considered for formal housing soon’ but
does not elaborate on why the application cannot be considered expeditiously.

[56] The municipality’s report also divulged that eligibility for emergency
housing was governed by the Municipality’s Temporary Housing Assistance

22 Molusi and Others v Vogel fn 2 para 43.

Policy (policy). In terms of that policy, only households earning R5 400 per
month and below qualified for ‘indigent and financial assistance subsidies’.

[57] Following a narration of the challenges the municipality was facing in
respect of allocation of housing to indigent communities, the report stated as
follows under the heading ‘Conclusion’:
‘Formal Housing
56. The Municipality faces a housing demand of 19 500 applicants which includes
unemployed and/or physically challenged persons.
57. Those Respondents who are not registered on the Formal Housing Demand
Waiting List Database should visit the Municipality’s Housing office to register. If they
fail to register, they can never be considered for a formal housing opportunity. All
respondents have been advised at the socio-economic inspections, that they need to
visit the Municipality offices to update their housing applications and/or to apply for
formal housing through the Municipality.
58. Selection for formal housing works on a 60/20/20 principle as set out in the Housing
Selection Policy of the Municipality. 20% of each housing project is allocated applicants
on the housing waiting list registered as dwellers of rural land, another 20% to special
needs persons and 60% to the rest of the registered applicants on the general waiting
list.
Emergency Housing
59. The most immediately-available site where emergency housing may be available,
is Schoongezicht. However, this presents a limited number of housing opportunities.
60. The Municipality’s finding, however, is that 7 households does not qualify for
emergency accommodation in terms the Municipality’s Temporary Housing Assistance
Policy, as none of the households will be rendered homeless in the event of an eviction
given their income levels.
61. In this regard, as a rule of thumb, and in applying section 5.1 of its temporary
Housing Assistance Policy, the Municipality generally utilises the current threshold
determined for household income’ in terms of its Indigent Support Policy, being R4500.
Naturally, other factors might have a bearing, and this threshold is not rigidly applied.
However, in the present instance, no such factors have been identified which would
indicate that this rule of thumb should be departed from, and none of the households
are at the level where their total income suggests they would qualify for assistance.’

[58] The municipality claimed that it would be unable to provide the occupiers
with alternative emergency accommodation if an order of eviction was granted.
It is, however, clear from its report that it has an emergency housing assistance
policy to accommodate homeless persons with accommodation close to their
homes. In terms of that policy, it would be obliged to provide the occupiers with
alternative accommodation, should they be rendered homeless.

[59] Under the heading ‘Steps Taken by the Municipality in an Attempt to
Meet Demand’, the municipality enumerated several challenges which stand as
obstacles in the provision of accommodation to the occupiers; these include
budgetary constraints and unavailability of land to which the occupiers can be
relocated. There is nothing in the report suggesting any real prospect of the
municipality providing the occupiers with accommodation. The municipality
cannot seek to shirk its constitutional responsibility to private citizens.

[60] It appears that the municipality has not considered the fact that the
cottages occupied by the occupiers are in a dilapidated state. If it has, it has
paid very little regard to that aspect, as no mention whatsoever is made of the
condition of the cottages. It has also paid insufficient regard to the fact that
several occupiers, including the disabled first respondent, had already formally
approached it for the provision of low-cost housing six years prior to the
preparation of the report and were placed on a waiting list. These are special
circumstances that warrant special consideration. Moreover, s 28(1)(c) of the
Constitution provides that children have the right to shelter. It is the
municipality’s responsibility to ensure that the occupiers’ children do not end up
homeless.

[61] Given the plight of the occupiers, the municipality is duty-bound to
provide them with alternative emergency accommodation. Considering the fact
that the eviction of the occupiers is linked to the provision of emergency
accommodation by the municipality, the eviction of the occupiers is just and

equitable.23 It follows that the LCC ought to have granted an order of eviction.
Counsel for the occupiers argued that, in dismissing the application, the LCC
had exercised a true discretion within the contemplation of s 10(1)(c) of ESTA.
Since the Trust had failed to demonstrate that the LCC did not act judicially in
refusing to grant an order of eviction, it was not open to this Court to interfere
with the LCC’s decision, so it was contended.
[62] It is well-established that where a lower court has exercised a discretion
in the true sense, an appellate court is ordinarily not entitled to interfere with the
decision of that court unless it is satisfied that its discretion was not exercised
judicially, or that it was influenced by wrong principles or wrong application of
the facts, or that the lower court had reached a decision which could not have
been made by a court properly directing itself to the relevant facts.24 The
question is whether it has been demonstrated, on appeal to this Court, that the
LCC did not act judicially, or that it acted on a misapprehension of the facts or
on wrong principles.25 Insofar as the LCC exercised its discretion not to grant
an order of eviction on the basis of a wrong application of the Plascon-Evans
principle, its discretion was influenced by wrong principles and was therefore
not properly exercised. This Court is therefore at large to interfere with the
LCC’s refusal to grant an eviction order. It follows that the appeal ought to
succeed. What remains for consideration is a decision on the cross-appeal.

Res judicata
[63] The occupiers’ cross appeal amounts to the invocation of a defence of
res judicata on the basis that the cause of action and the parties in the eviction
application launched in the LCC were the same as those in the litigation
previously determined in the magistrate’s court. Counsel for the occupiers
contended that the LCC should have upheld the defence of res judicata in
respect of the occupiers who were cited as respondents in the magistrate’s
court, because the addition of more respondents in the LCC proceedings did

23 See City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another 2012 (2) SA 104 (CC); 2012 (2) BCLR 150 (CC).
24 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd
[2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 88.
25 Systems Applications Consultants (Pty) Ltd t/a Securinfo v Systems Applications Products
AG and Others [2020] ZASCA 81 para 50.

not detract from the fact that all the respondents mentioned in the magistrate’s
court were the same persons mentioned in the LCC proceedings.

[64] It has been held that the doctrine of res judicata has ancient roots as an
implement of justice. Its purpose was to protect the litigants and the courts.26
The defence of res judicata was available at common law if it were shown that
the judgment in the earlier case was given in a dispute between the same
parties, for the same relief on the same ground or on the same cause.27 The
gist of the plea of res judicata is that the matter or question raised by the other
side had been finally adjudicated upon in proceedings between the parties and
can therefore not be raised again.28

[65] As far back as 1893, this Court in Bertram v Wood29 cautioned that,
unless carefully circumscribed, the defence of res judicata could produce great
hardship and positive injustice to individuals. With the passage of time, its
requirements were relaxed. The label ‘issue estoppel’ referred to instances
where the same cause of action requirement ‘was not rigorously enforced’ and
is thus an extension of res judicata.30 In Smith v Porritt and Others, this Court
explained the relaxation of res judicata as follows:
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the
exceptio rei judicata has over the years been extended by the relaxation in appropriate
cases of the common law requirements that the relief claimed and the cause of action
be the same . . . in both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements, those that remain are that
the parties must be the same . . . and that the same issue . . . must arise. Broadly
stated, the latter involves an inquiry whether an issue of fact or law was an essential
element of the judgment on which reliance is placed.’31

26 Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others [2019]
ZACC 41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC) para 111.
27 Prinsloo NO & Others v Goldex 15 Pty Ltd & another [2012] ZASCA 28; 2014 (5) SA 297
(SCA) para 10.
28 Ibid.
29 Bertram v Wood (1893) 10 SC 177.
30 Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others [2019]
note 18 above para 114.
31 Smith v Porritt and Others 2008 (6) SA 303 (SCA) para 10.

[66] Following Boshoff and a line of judgments of this Court, it is now well-
established that the requirements of res judicata should yield to the facts of
each case32. In dismissing the defence of res judicata, the LCC reasoned that
the parties cited in that court as respondents, who were occupying the farm,
were not the same parties as those who were cited as respondents at the
magistrate’s court, insofar as the children of those respondents were not cited
as parties in the magistrate’s court but were cited as parties at the LCC. It found
that the issues raised in the litigation in both courts were the same.

[67] It seems to me that even though only the heads of different households
were cited as parties in the magistrate’s court, the parties in both matters were
essentially the same. In Caesarstone Sdot-Yam Ltd v The World of Marble and
Granite 2000 CC and Others, this Court said:
‘As I have mentioned Caesarstone submitted that while the remaining family members
were not parties to the proceedings in Israel there was a sufficient commonality of
interest between them and WOMAG and Mr Oren Sachs to satisfy the requirements of
the
plea
of lis
pendens.
The
argument
commences
with
a
reference
to Voet 44.2.5, where Voet gives examples of what is meant by the ‘same person’ in
the context of a plea of res judicata. Whilst the rule is often stated as being that it
covers only those who are privies in the sense of having derived their rights from a
party to the original litigation, it is by no means clear that Voet confined it that narrowly..
. . .
It may be that the requirement of “the same persons” is not confined to cases where
there is an identity of persons, or where one of the litigants is a privy of a party to the
other litigation, deriving their rights from that other person. Subject to the person
concerned having had a fair opportunity to participate in the initial litigation, where the
relevant issue was litigated and decided, there seems to me to be something odd in
permitting that person to demand that the issue be litigated all over again with the same
witnesses and the same evidence in the hope of a different outcome, merely because
there is some difference in the identity of the other litigating party.’33

32 Royal Sechaba Holdings (Pty) Ltd v Coote and Another (366/2013) [2014] ZASCA 85;
[2014] 3 All SA 431 (SCA) para 19.
33 Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others [2013]
ZASCA 129; 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA) paras 42 & 43.

[68] Even though I align myself with the sentiments expressed in the passage
above, I do not have to make a finding on that aspect. In my opinion, an aspect
on which the res judicata defence can be conclusively decided upon in this
matter is whether the same issue of fact or law determined in the magistrate’s
court was determined in the LCC. If the same issue was not determined on the
merits by the magistrate’s court, the upshot would be that an essential
requirement for a plea of res judicata would not have been met. In order to
come to the result pronounced by the court, careful attention must always be
paid to what the court which handed down the earlier judgment was called upon
to determine and what must necessarily have been determined.34 The exercise
is not mere mechanical comparison of what the two cases were about and what
the court stated as its reasons for the order made.35

[69] While the issues that fell for determination in the magistrate’s court and
the LCC, at first blush, appear to be the same, ie whether an order of eviction
was just and equitable, the form and context in which that issue was raised in
each court was different. In the magistrate’s court the application for eviction
was predicated on the Trust’s operational reasons on the basis that the
employment relationship had ended and that in terms of the lease agreement,
the termination of employment in turn led to the termination of the right of
residence.

[70] In the LCC, the application was predicated on events post the judgment
handed down in 2017. As regards long term occupiers, the contention was that
they had committed such a fundamental breach of the relationship between
them and the Trust that it was not practically possible to remedy it. As explained
by this Court in United Enterprises Corporation v STX Pan Ocean Co Ltd,36 in
a slightly different context, the consideration as to whether the same issue
raised was previously determined in an earlier judgment depended not on the
import of the order granted but on answering the substantive question

34 Democratic Alliance v Brummer [2022] ZASCA 151 para 15.
35 Aon South Africa (Pty) Ltd v Van den Heever NO and Others [2017] ZASCA 66; 2018 (6) SA
38 (SCA); [2017] 3 All SA 365 (SCA) para 40.
36 United Enterprises Corporation v STX Pan Ocean Company Ltd [2008] ZASCA 21; 2008
(3) SA 585 (SCA); [2008] 3 All SA 111 (SCA) para 9.

pertaining to the nature of the issue of fact or law that was decided by the court
in the proceedings, and whether it was finally decided.

[71] To my mind, the circumstances raised in the LCC were of a different hue
to those determined by the magistrate. This is because the substantive question
of the breach of the relationship was not finally determined by the magistrate,
as the magistrate’s reasoning was that on the question of the conduct that
allegedly gave rise to the breach of the relationship, there was a dispute of fact
that was not resoluble on the papers. That this is so, is manifestly discernible
from the magistrate’s judgment. This view is fortified by the following exposition
in Mkhize NO v Premier of the Province of Kwazulu-Natal and Others (Mkhize):
‘The pertinent question is therefore whether an order can be considered final when it
is concerned with dismissal or discharge of interim or interlocutory orders. In Cohn, the
finality of a dismissed matter was considered and the Court stated:
“In dealing with the position where an action is dismissed, Spencer Bower says that
the answer to the question whether anything can be said to have been decided, so as
to conclude the parties, beyond the actual fact of the dismissal depends upon whether
. . . the dismissal itself is seen to have necessarily involved a determination of any
particular issue or question of facts or law, in which case there is an adjudication on
that question or issue; if otherwise, the dismissal decides nothing, except that in fact
the party has been refused the relief which he sought.”’37 (Own emphasis.)
The remarks above are equally apposite in this matter.

[72] It is well-established that the successful invocation of res judicata
requires the party raising that plea not only to show that there was an identity
of the parties and of the issues in the former and in the present litigation but
must also show that the earlier judgment relied upon was a final judgment.38
It is evident from the magistrate’s judgment that no final finding was made in
respect of the allegations of misconduct against the occupiers, as the
magistrate believed that there was a dispute of facts on that aspect. It is trite
that where a factual dispute exists, the judicial officer’s option is, depending on

37 Mkhize NO v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 50; 2019
(3) BCLR 360 (CC) para 41 & 42.
38 Transalloys (Pty) Ltd v Mineral-Loy (Pty) Ltd [2017] ZASCA 95 para 22.

the circumstances of the case, to dismiss the application (where the factual
dispute was foreseeable) or to refer the matter for the hearing of oral evidence.

[73] Where the application is dismissed because of the existence of a factual
dispute, it would result in untenable hardship for the applicant in a matter of this
nature if, in circumstances where an issue was raised but not finally determined,
the earlier judgment would entitle the respondent to successfully invoke the
plea of res judicata despite that specific issue not having been adjudicated
upon. In this matter, the magistrate dismissed the application without making
any firm finding on whether or not any misconduct on the part of the occupiers
had caused the parties’ social relationship to break down irretrievably as
contended for by the Trust. As the issue pertaining to the fundamental breach
and irretrievable breakdown of the relationship envisaged in s 10(1)(c) was not
finally determined by the magistrate, the defence of res judicata was therefore
not available for the occupiers in the litigation that was initiated in the LCC.

[74] Moreover, as can be gleaned from the founding affidavit, the Trust
predicated its claim mainly on circumstances that obtained after the date of the
judgment granted by the magistrate court in 2017. When the Trust sent out a
notice that it was considering terminating the occupiers’ rights of residence, a
period of more than a year had elapsed since the handing down of the
magistrate’s judgment. As correctly submitted by counsel for the Trust during
the exchange with the bench, the factual matrix that constitutes a manifestation
of the alleged breach of trust and irretrievable breakdown of the relationship
between the Trust and the occupiers are events that occurred after the date of
the handing down of the magistrate’s judgment and continued to fester.
Logically, issues that arose after the granting of the magistrate’s judgment could
not have been previously determined by the magistrate. Thus, nothing barred
the applicants from bringing a new application based on those new
developments. It follows that the LCC, in dismissing the defence of res judicata,
granted the correct order. The cross-appeal must therefore fail.

[75] To sum up, I am of the view that on the conspectus of all the
circumstances of this case, an order of eviction was inevitable, as all the

relevant provisions of ESTA had been complied with. Nothing precluded the
LCC from granting the eviction order.39 Insofar as the LCC refused to grant that
order on the basis that it was not just and equitable to do so, it erred.

[76] The next enquiry is to consider the date by which the occupiers should
have vacated the farm and the date on which the eviction order must, on their
failure to do so, be executed. In terms of s 12 of ESTA, a court that considers
it just and equitable to grant an eviction order shall determine a just and
equitable date on which the occupier shall vacate the land and determine the
date on which an eviction order may be carried out if the occupier has not
vacated the land on the date they were ordered to do so. In considering this
aspect, I have also considered whether the municipality would be in a position
to provide emergency accommodation within a short space of time, I can see
no reason why the municipality would not be in a position to, in compliance with
this Court’s order, provide emergency housing to all the occupiers in this matter
within a period of six months.

Costs
[77] The default position in the LCC is not to grant an order of costs of the
litigation instituted in that court. The circumstances of the case do not warrant

39 Section 9(1) and (2) of ESTA provide as follows:
‘(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.’

a deviation from that position. As regards the costs of appeal, it bears noting
that in this matter, the indigent occupiers were granted state funding both in the
LCC and in this Court. This Court stated as follows in Haakdoringbult Boerdery
CC & others v Mphela & others:40
‘That leaves the costs on appeal. This Court has not yet laid down any fixed rule and
there are judgments that have ordered costs to follow the result and others that have
made no orders. I believe that the time has come to be consistent and to hold that in
cases such as this there should not be any costs orders on appeal absent special
circumstances.’
I agree.
Notably, s 18(b) of ESTA clothes a court with the discretion to make such orders
as to costs as it deems just. Having considered all the circumstances of this
case, I am of the view that justice dictates that the occupiers not be mulcted
with a costs order on appeal.

Order:
[78] In the result, the following order is granted:

1. The appeal succeeds and the cross-appeal is dismissed with no order
as to costs in each instance.
2. The order of the Land Claims Court is set aside and replaced with the
following order:
‘(a) An eviction order is granted in respect of all the occupier respondents,
with the exception of the eleventh and twelfth respondents.
(b) The first to tenth respondents and thirteenth to twenty-sixth respondents
must vacate the farm known as Rein Hill Estate, situated on the remainder
of farm number 1458 in the Drakenstein Municipality, Paarl Division,
Western Cape Province on or before 31 August 2023.

40Haakdoringbult Boerdery CC & others v Mphela & others 2007 (5) SA 596 (SCA) para 76.

(c) Should the respondents mentioned in paragraph (a) and all those
occupying the farm under them fail to vacate it on or before 31 August 2023,
the sheriff of the court is authorised to evict them from the farm by 15
September 2023.
(d) The twenty-seventh respondent is ordered to provide emergency
housing suitable for human habitation with access to basic services (which
may be communal) to the respondents mentioned in paragraph (a) above
and all those occupying the farm under them, on or before 31 July 2023.
(e) There is no order as to costs.’

________________________
M B Molemela
Judge of Appeal

Appearances:

For first to third appellants:

L F Wilkin
Instructed by:

Meyer and Sarkas, Cape Town

Claude Reid Attorneys, Bloemfontein

For first to twenty-sixth respondents:
L X Dzai
Instructed by:

Wakaba & Partners Attorneys,
Johannesburg

Maduba Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
20 February 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Isedor Skog N.O & Others v Koos Agullus & Others (797/2021) [2022] ZASCA 15 (20
February 2023)
The Supreme Court of Appeal (SCA) today upheld an appeal from the Land Claims Court,
Randburg, (the LCC). The court’s order was set aside and replaced with an order evicting all
but the eleventh and twelfth occupier respondents. The order required the occupiers to evict
the property, a farm known as Rein Hill Estate (the farm), on or before 31 August 2023. The
Head of the Drakenstein Municipality (the Municipality) was ordered to ensure suitable
emergency housing was provided to the affected respondent occupiers (occupiers).
This appeal centred around the question whether eight families that were residing on private
property ought to be evicted on account of conduct that brought about an irretrievable
breakdown in the relationship between the occupiers and the appellants (the Trust). In the cross-
appeal, the issue of res judicata was raised on account of another court having already decided
previously that occupiers could not be evicted from the same property. The occupiers were
employees or family members of former employees of the Trust at the time when it took control
of the farm. The employment relationship between the occupiers and the Trust, which were
premised on substantially similar terms and conditions as the employment relationship between
the occupiers and the previous owner, ended on 24 June 2011, being the date they had been
ordered to vacate the farm. The occupiers refused to vacate the farm which prompted the Trust
to institute proceedings in the Magistrate’s Court, Wellington. However, the court refused the
relief sought.

In May 2018, the Trust informed the occupiers that their rights of occupation were to be
terminated and representations could be made as to why they ought not be evicted. No
representations were received and the rights were terminated, followed by a notice that the farm
ought to be vacated within 30 days. Upon failure by the occupiers to vacate the premises, the
Trust approached the LCC for an eviction order premised on the alleged unacceptable manner
in which the occupiers had conducted themselves, which had significantly contributed to the
breakdown of the relationship between the parties. On their part, the occupiers contended that
the Trust failed to prove that an actual employment contract existed or who the individuals
responsible for the alleged misconduct were; they sought to have the matter dismissed. In its
judgment, the LCC dismissed the matter, contending that the Trust was wrong in painting all
the occupiers with the same brush – the Trust’s house rules were broken by unknown
individuals as the Trust had failed to prove which occupiers were specifically responsible.
Upon appeal, the SCA reiterated two important steps with regards to eviction proceedings: the
eviction must have followed a fair procedure and must have been premised on lawful, just and
equitable grounds, and a notice of termination of a right of residence must have been terminated
in terms of s 8 of the Establishment of Security of Tenure Act 62 of 1997, with the occupier
not vacating the land, despite two-months written notice of intention to evict. This Court also
found that, regardless of each party’s version, the employment relationship between the
occupiers and the Trust ended on 24 June 2011. The Trust highlighted serious breaches of the
relationship as committed by the occupiers, and substantiated such claims with thorough
evidence. Furthermore, this Court discussed the significance of the fact that the occupiers
consistently rejected the Trust’s various attempts to have this impasse solved amicably and that
they never responded to any invitations to make representations as to why their continued
residence on the farm ought to be maintained. Furthermore, the vast majority of allegations
were hardly disputed by the respondents, if at all.
The SCA found that, based on the evidence provided by the Trust, the inappropriate conduct
complained of was of a serious nature and that the Trust’s assertions had a ring of truth. The
damage to the Trust’s property could not be allowed to continue unabated simply because
individual culprits could not be identified. The Court confirmed the Trust’s assertion that the
occupiers treated the property with utter contempt, which was irreconcilable with a cordial
social relationship and ultimately amounted to extreme hardship experienced by the Trust. The
Court found that the occupiers themselves frustrated, beyond repair, all efforts to restore the

relationship between themselves and the Trust, and the Trust’s attempts to regularise the
relationship had come to naught.
Section 9 of ESTA imposed limitations on evictions and prescribed circumstances that
authorised evictions. The SCA found that, on a conspectus of the facts, it would have been
unreasonable to expect the Trust to continue to provide the occupiers with residence in light of
the breakdown of the relationship between the parties. In addition, the dilapidated structures
which the occupiers had been occupying exacerbated the need to evict the occupiers,
particularly as the Trust indicated that the structures needed to be demolished. Therefore, the
Municipality was required to provide the occupiers with necessary shelter, but it indicated that
it was unable to do so. However, the SCA found that, in line with its constitutional obligations
and, despite its protestations, the Municipality adopted an emergency housing assistance
policy, in terms of which it would be obliged to provide the occupiers with alternative
accommodation in the event that they were rendered homeless.
Lastly, reliance in the cross-appeal on res judicata was misplaced. The SCA was not asked to
determine the same issues that were before the court a quo or the LCC. In the court a quo, the
application for eviction was predicated on the Trust’s operational reasons on the basis that the
employment relationship had ended and that, in terms of the lease agreement, the termination
of employment in turn led to the termination of the right of residence. Similarly, in the LCC
the application was predicated on events post the judgment handed down in 2017. Accordingly,
the considerations as to whether the same issue raised was previously determined in an earlier
judgment did not depend on the import of the order granted, but rather on having answered the
substantive question pertaining to the nature of the issue of fact or law that was decided by the
court in the proceedings, and whether it was finally decided.
The SCA determined that the LCC’s reasoning was influenced by wrong principles and its
discretion was accordingly not exercised properly. This Court deemed it prudent to interfere
with the LCC’s order and, in the result, upheld the appeal.

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