THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 556/2020

In the matter between:

NIMBLE
INVESTMENTS
(PTY)
LTD (FORMERLY KNOWN AS
TADVEST INDUSTRIAL (PTY) LTD
AND OLD ABLAND (PTY) LTD)

APPELLANT

and

JOHANNA (ELSIE) MALAN
FIRST RESPONDENT

DOROTHY MALAN

CHARMAINE MALAN

MOSES MALAN

JACOBUS MALAN

LIZA PLAATJIES

REDEWAAN BOTHA

ASHLEY MALAN

SECOND RESPONDENT

THIRD RESPONDENT

FOURTH RESPONDENT

FIFTH RESPONDENT

SIXTH RESPONDENT

SEVENTH RESPONDENT

EIGHTH RESPONDENT

THOSE PERSONS UNLAWFULLY
OCCUPYING COTTAGE NO. 5,
TOPSHELL PARK BADEN
POWELL ROAD, LYNEDODOCH,
STELLENBOSCH, WITH OR
UNDER, FIRST TO EIGHT
RESPONDENTS

STELLEBOSCH MUNICIPALITY

DEPARTMENT OF RURAL
DEVELOPMENT AND LAND
REFORM

NINTH RESPONDENT

TENTH RESPONDENT

ELEVENTH RESPONDENT

Neutral citation: Nimble Investments (Pty) Ltd v Johanna Malan and Others
(556/2020) [2021] ZASCA 129 (30 September 2021)

Coram:
DAMBUZA, SCHIPPERS AND MBATHA JJA AND CARELSE and
EKSTEEN AJJA

Heard:
14 May 2021

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 30 September 2021.

Summary: Land – land reform – Extension of Security of Tenure Act 62 of 1997
(ESTA) – whether eviction order just and equitable – fundamental breach of
relationship between occupier and owner under s 10(1)(c) – occupier unlawfully
removing building materials and erecting illegal structure on land – fundamental
breach of relationship justifying eviction – opportunity for representations under
s 8(1)(e) of ESTA – not required in the circumstances – appeal upheld.

ORDER

On appeal from: Land Claims Court of South Africa, Randburg (Ncube AJ sitting
as court of first instance):
The appeal succeeds.
The order of the Land Claims Court is set aside and replaced with the
following order:
‘(a) An eviction order is granted against the first to eighth respondents
and all those occupying the farm known as Topshell Park in
Stellenbosch, Western Cape (the farm) under them.
(b)
The first to eighth respondents and all those occupying the farm
under them must vacate the farm on or before 31 March 2022.
(c)
Should the respondents and all those occupying the farm under them
fail to vacate it on or before 31 March 2022, the sheriff of the court
is authorised to evict them from the farm by 14 April 2022.
(d)
The tenth respondent is ordered to provide emergency housing of a
dignified nature with access to services (which may be communal) to
the first to eighth respondents and all those occupying the farm under
them, on or before 31 March 2022.
(e)
There is no order as to costs.’

JUDGMENT

Carelse AJA (Mbatha JA concurring)

[1] This is an appeal against a judgment and order of the Land Claims Court
(LCC) which on automatic review under s 19(3)1 of the Extension of Security of
Tenure Act 62 of 1997 (ESTA) set aside an eviction order granted by the magistrate,
Stellenbosch for the eviction of the first to ninth respondents. The appellant, Nimble
Investments (Pty) Ltd is the registered owner of the farm known as Topshell Park,
Portion 128 of the farm Welmoed Estate, No 468 (the farm), in the district of
Stellenbosch, in the Western Cape. The appeal is with the leave of the LCC (Ncube
AJ).

Background facts
[2] At the outset the appellant submits that the appeal before this Court turns on
whether there was compliance with s 8(1)(e) of ESTA and if so, whether there was
a fundamental breach of the relationship between the appellant and the first
respondent in term of s 10(1)(c) of ESTA. The facts relevant to the determination of
the issues are largely common cause and arise mainly from the events that took place
on 28 November 2016.

1 ‘Any order for eviction by a magistrate’s court in terms of this Act, in respect of proceedings instituted on or before
a date to be determined by the Minister and published in the Gazette, shall be subject to automatic review by the Land
Claims Court, which may -
(a) confirm such order in whole or in part;
(b) set aside such order in whole or in part;
(c) substitute such order in whole or in part; or
(d) remit the case to the magistrate’s court with directions to deal with any matter in such manner as the Land Claims
Court may think fit.’

[3] The first respondent and her husband, the late Mr Malan (the deceased)
arrived on the farm in 1974. Mr Malan was employed on the farm until his death, on
4 October 2005. He was 61 years old at the time of his death. In terms of his
employment contract the deceased was given permission by Mr Le Roux, the
previous owner of the farm to occupy cottage 1 on the farm. The second, third, fourth
and fifth respondents are the adult children of the first respondent. The sixth
respondent is the daughter-in-law of the first respondent. The seventh respondent
and the eighth respondent respectively, are the minor and adult grandsons of the first
respondent. On 25 May 2006, the previous owner launched eviction proceedings
against the respondents. In 2006, assisted by the Stellenbosch University Law Clinic,
the first respondent entered into a lease agreement with the previous owner of the
farm in terms of which she would lease cottage 1 at a monthly rental of R500 which
settled the eviction application. At the same time, she demanded that the electricity
be restored to cottage 1. The first to ninth respondents lived together in cottage 1. In
April 2008, the appellant bought the farm and took over the lease agreement from
the previous owner.

[4] Initially when the appellant first purchased the farm in 2008, it wanted to
convert the farm from an agricultural farm to an Agri-Park and it was conditional
for rezoning purposes that the area where cottage 1 was located be vacated, if the
municipality was to give approval. Due to the extension of the Baden Powell
Highway in 2012, the appellant required the land, on which cottage 1 was located,
to relocate the business of its long-term tenant Topshell Park (Edms) Bpk in order
to meet its obligations. The purpose for the relocation was to facilitate the
expropriation process. During 2012 and 2013 there were negotiations with the first
respondent to vacate the farm, during which the first respondent was represented by
the Stellenbosch law Clinic and that the negotiations came to naught.

[5] On 30 June 2016, a meeting was held between the first respondent and the
appellant’s attorneys. At this meeting, and at a further meeting held on 11 August
2016, the first respondent agreed to relocate to cottage 5.  The first respondent was
not legally represented at these two meetings. The appellant launched a relocation
application in terms of s 8(7)2 and s 19(1)(b)(i)3 of ESTA which was heard on an
unopposed basis. The first to ninth respondents were ordered to vacate cottage 1 and
to take up occupation of cottage 5.

[6] On 28 November 2016, the first respondent and her family moved from
cottage 1 to cottage 5. During the relocation process the fourth respondent (the son
of the first respondent) and some unidentified members of the first respondent’s
household removed the roof tiles, roof sheets and trusses (building material) from
cottage 1. In the presence of police officers and the first respondent, Mr Van der
Merwe – the site manager and director of the farm, told the members of the first
respondent’s family that they were not entitled to do so. They refused to stop.  It is
not in dispute that the first respondent knowingly permitted an illegal structure to be
built with the appellant’s building material next to cottage 5, without the consent of
the appellant, and further that the first respondent swore and shouted at the farm
manager that cottage 1 belonged to her and that she could do as she wanted with the
building material.

2 Section 8(7) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) provides:
‘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 subsection (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 . . . .’
2 ‘19  Magistrate's courts
. . .
(b)   shall be competent-
(i)   to grant interdicts in terms of this Act. . . .’

[7] The fourth respondent who lived in cottage 5 was the only respondent that
was identified when the events of 28 November 2016 occurred and thus made
common cause with the first respondent’s actions. On 18 January 2017, the appellant
wrote to the first respondent demanding the return of the building material and told
her that if she did not remedy the breach by demolishing the illegal structures and
return the building material by 1 February 2017, the appellant would launch eviction
proceedings against her. The first respondent refused to return the building material
and to vacate cottage 5. On 1 February 2017, the first to fifth respondents received
notices to vacate cottage 5 and were told that their right to reside was terminated on
the ground that the first respondent committed a fundamental breach of trust as
contemplated in s 10(1)(c) of ESTA, as a result of her misconduct arising out of the
events of 28 November 2016. The first respondent was given one calendar months’
notice to vacate, on or before 28 February 2017. On 28 April 2017, the appellant
launched an application for the eviction of the respondents. At the launch of the
application the first respondent was 68 years’ old.

[8] 
In both the appellant’s heads of argument and in its application for leave
to appeal, the appellant concedes that the first respondent was not invited to make
representations before her right to reside was terminated. I imagine that the same
applies to the other respondents who reside in cottage 5. It is common cause that the
first respondent was not afforded an effective opportunity to make representations
before her right of residence was terminated as contemplated in terms of s 8(1)(e) of
ESTA.

[9] On 28 April 2017, the appellant applied for the eviction from the farm of the
first to ninth respondents. The application was opposed by the respondents. The tenth

respondent filed a report. There is no indication in the record if the tenth and eleventh
respondents opposed the application. After considering the affidavits and the various
reports and the hearing of oral evidence on 23 September 2019, the Stellenbosch
Magistrate’s Court, granted an eviction order against the first to ninth respondents.

[10] The eviction order came before the LCC on automatic review in terms of
s 19(3) of ESTA,4 Ncube AJ, after considering the matter, and in a written judgment
dated 7 November 2019, found that the first respondent was a long-term occupier
under s 8(4)5 of ESTA and stated that:
‘. . . the Applicant is basing the eviction on section 10(1)(c). In terms of that section, the right of
residence of Mrs. Malan may be terminated if she has committed such a fundamental breach of
the relationship between 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.
The Applicant contends that the removal of building material from cottage No 1 constitutes a
fundamental breach of relationship and it is not practically possible to restore such relationship. I
do not agree. The Applicant has the option of claiming compensation for his building material if
he so wishes. The other distinguishing feature in this case is that it does not appear on the papers
that Mrs. Malan was given the opportunity to make representations – notices of termination of

4 ‘. . . Any order for eviction by a magistrate's court in terms of this Act, in respect of proceedings instituted on or
before a date to be determined by the Minister and published in the Gazette, shall be subject to automatic review by
the Land Claims Court, which may-
(a)   confirm such order in whole or in part;
(b)   set aside such order in whole or in part;
(c)   substitute such order in whole or in part; or
(d)   remit the case to the magistrate's court with directions to deal with any matter in such manner as the Land Claims
Court may think fit.’
5 Section 8(4) of ESTA provides:
‘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–
. . .
(4) The right of residence of an occupier who had 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 labour to the owner 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 labour shall not constitute such a breach.’ (My emphasis.)

right of residence did not draw her attention to the fact that she can make representations in terms
of section 8 (1)(e) of the Act. Under these circumstances I am unable to confirm the eviction.’ (My
emphasis.)

[11] A long-term occupier is a protected class of occupiers under ESTA. The
appellant accepts that the first respondent is a long-term occupier6. The first
respondent was an occupier on the land on 4 February 1997 and her eviction is
governed by s 10 of ESTA.7 ESTA is regarded as social legislation, intended to
regulate the eviction of vulnerable occupiers under certain conditions and
circumstances, at the same time recognising the rights of landowners to seek eviction
orders under certain circumstances. The second to ninth respondents’ right of
residence was terminated but neither the Stellenbosch Magistrate’s Court nor the
LCC considered the right of residence of the second to ninth respondents. They may
well be occupiers in their own right. The appellant did not allege that any of the other

6 Klaase and Another v Van Der Merwe N O and Others [2016] ZACC 17; 2016 (6) SA 131 (CC): Matojane AJ held
the following at para 60:
‘It is undisputed that Mrs Klaase lived on the premises continuously for many years with the knowledge of the second
respondent and his father before him. By his own admission in the answering affidavit, the second respondent said
that Mrs Klaase came to live with her prospective husband in a house that had been made available to him on the
premises.  There is no evidence to rebut the presumption that the respondents consented to Mrs Klaase’s residing on
the farm. The respondents’ failure to object to Mrs Klaase’s residing on the farm for decades or taking steps to evict
her is telling. It implies that they consented to her occupancy.  But prior to the enactment of ESTA that was always
with the consent of the landowner or farmer.’
7 10  Order for eviction of person who was occupier on 4 February 1997
(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if-
(a)   the occupier has breached section 6 (3) and the court is satisfied that the breach is material and that the occupier
has not remedied such breach;
(b)   the owner or person in charge has complied with the terms of any agreement pertaining to the occupier's right to
reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material
and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach
despite being given one calendar month's notice in writing to do so;
(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; or
(d)   the occupier-
(i)   is or was an employee whose right of residence arises solely from that employment; and
(ii)   has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour
Relations Act.’

respondents were invited to make representations on why their right of residence
should not be terminated.

[12] Against this background two main issues arise in this appeal. The first is
whether the termination of the right of residence was just and equitable both in
substance and in procedure.8 The second is, if the termination was just and equitable,
would the eviction be just and equitable? ESTA envisages a two-stage eviction
procedure: first, a notice of termination of the right of residence in terms of s 8, and
second the notice of eviction in terms of s 9(2)(d).9 If it is found that the termination
of the right of residence was not just and equitable due to non-compliance with s
8(1)(e) then there is no need to determine the second issue.  Eviction proceedings
can only commence after the right of residence is terminated.10  For the purposes of

8 In Snyders and Others v De Jager and Others (Appeal) [2016] ZACC 55; 2017 (5) BCLR 614 (CC); 2017 (3) SA
545 (CC).
9 In Aquarius Platinum (SA) (Pty) Ltd v Bonene and Others [2019] ZASCA 7; [2020] 2 All SA 323 (SCA); 2020 (5)
SA 28 (SCA) the Supreme Court of Appeal at paras 10 and 11 held:
‘Approximately two decades ago, this Court found in Mkangeli and Others v Joubert and Others that there had to be
a proper termination of the right of residence. It stated:
“Once an occupier's right to reside has been duly terminated, his refusal to vacate the property is unlawful.
Nevertheless, it does not mean that the remedy of eviction will necessarily be available. This remedy is limited by
those provisions of ESTA to which I will presently return. On the other hand, ESTA places no limitation on the other
remedies attracted by unlawful occupation. It must therefore be accepted, I think, that the other remedies, such as the
owner's delictual claim for his patrimonial loss caused by the unlawful occupation of his land (see, for example, Hefer
v Van Greuning 1979 (4) SA 952 (A)) are still available to him. As to the remedy of eviction s 9(2) provides that a
court may only issue an eviction order if certain conditions are met. The first such condition is that the occupier's right
to residence must have been properly terminated under s 8. Other conditions prescribed by s 9(2) include the giving
of two months' notice of the intended eviction application after the right to reside has been terminated under s 8 (s
9(2)(d)). In a case such as the present, where the appellants took occupation of Itsoseng after 4 February 1997, s 11
also finds application. This section provides that a court may only grant an eviction order if it is of the opinion that it
is just and equitable to do so. In deciding whether it is just and equitable to grant an eviction order the court must have
regard to the considerations listed in s 11(3), but it is not limited to them. Included amongst these is the consideration
'whether suitable alternative accommodation is available to the occupier' (s 11(3)(c)) and 'the balance of the interests
of the owner . . . the occupier and the remaining occupiers on the land' (s 11(3)(e)).”
In Sterklewies this Court said the following:
“The Act contemplates two stages before an eviction order can be made. First the occupier's right of residence must
be terminated in terms of s 8 of the Act. The manner in which this is to be done is not specified. Once the right of
residence has been terminated then, before an eviction order can be sought, not less than two months' notice of the
intention to seek the occupier's eviction must be given to the occupier, the local municipality and the head of the
relevant provincial office of the Department of Land Affairs in terms of s 9(2)(d) of the Act. That notice is required
to be in a form prescribed by regulations made in terms of s 28 of the Act”.’
10 Cosmopolitan Projects Johannesburg (Pty) Ltd v Leoa & Others [2019] ZALCC 1 para 34, The LCC held:

this appeal the basis upon which the appellant terminated the first respondent’s right
of residence was on the ground that the first respondent committed a fundamental
breach of trust as contemplated in s 10(1)(c) of ESTA.

[13] I will now proceed to consider whether the termination of the right of
residence was just and equitable, both procedurally and in substance. Section 8(1)
of ESTA provides:
‘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.’ (My emphasis.)

[14] There are four requirements which must be met in order for an eviction
application to be granted under ESTA. These grounds are located in s 9(2) of ESTA.

‘What is immediately apparent is that this is a Notice in terms of section 9(2)(d) of ESTA which purports also to
terminate the first to fiftieth respondents’ rights of residence in terms of section 8 of ESTA. As Mr Botha who appeared
for the thirty fifth to fiftieth respondents correctly submitted, this sort of hybrid approach is impermissible. A section
9(2)(d) Notice is correctly and appropriately issued only after an ESTA occupier’s right of residence has been validly
and fairly terminated in terms of section 8.’

The first is whether the respondents right of residence had been terminated in
accordance with  s 8; second whether the respondents have vacated the farm within
the one calendar month as prescribed;  third whether the conditions under ss 10 or
11 were complied with; and fourth whether the requisite two months’ written notice
of the appellant’s intention to obtain an eviction order had been given to the
respondents, the relevant municipality and the head of the relevant provincial office
of the Department of Rural Development and Land Reform.11 The two month’s
written notice is subject to a proviso which, if applicable will render the notice
unnecessary.

[15] In determining whether the termination was just and equitable ‘all relevant
factors’ in particular, the criteria set out under s 8(1)(a) to (e) must be considered.
In Snyders and Others v De Jager and Others [2016] ZACC 55; 2017 (3) SA 545
(CC) para 56, the Constitutional Court held that:
‘Section 8(1) makes it clear that the termination of the right of residence must be just and equitable
both at a substantive level as well as at a procedural level. The requirement for the substantive
fairness of the termination is captured by the introductory part that requires the termination of a

11 ‘9. Limitation on eviction –
(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court
issued under this Act.
(2) A court may make an order for the eviction of an occupier if-
(a)   the occupier's right of residence has been terminated in terms of section 8;
(b)   the occupier has not vacated the land within the period of notice given by the owner or person in charge;
(c)   the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and
(d)   the owner or person in charge has, after the termination of the right of residence, given-
(i)   the occupier;
(ii)  the municipality in whose area of jurisdiction the land in question is situated; and
(iii) the head of the relevant provincial office of the Department of Rural Development and Land Reform, for
information purposes, not less than two calendar months' written notice of the intention to obtain an order for eviction,
which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided
that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier,
the municipality and the head of the relevant provincial office of the Department of Rural Development and Land
Reform not less than two months before the date of the commencement of the hearing of the application, this paragraph
shall be deemed to have been complied with.’

right of residence to be just and equitable. The requirement for procedural fairness is captured in
section 8(1)(e).’
The appellant accepts that what is required for procedural fairness as contemplated
in subparagraph (e) is set out in Snyders. The Constitutional Court held at paras 73
and 75 as follows:
‘In any event, even if it were to be accepted that Ms De Jager terminated Mr Snyders' right of
residence, she has failed to show, as is required by s 8(1) of ESTA, that there was a lawful ground
for that termination and that, in addition, the termination was just and equitable. At best for Ms De
Jager, she purported to show no more than that there was a lawful ground for the termination of
the right of residence. She did not go beyond that and place before the magistrates' court evidence
that showed that the termination of Mr Snyders' right of residence was just and equitable.
. . .
Counsel for the Snyders family also contended that the Magistrate’s Court should not have issued
an eviction order because the Snyders family had not been afforded any procedural fairness by
way of an opportunity to be heard before they were required to vacate the property.  It is common
cause that the Snyders family were never invited to make representations to Ms de Jager on why
they should not be required to vacate the house before they were actually required to vacate it.  In
my view, the submission by counsel for the Snyders family has merit. ESTA requires the
termination of the right of residence to also comply with the requirement of procedural fairness to
enable this person to make representations why his or her right of residence should not be
terminated.  This is reflected in section 8(1)(e) of ESTA. A failure to afford a person that right will
mean that there was no compliance with this requirement of ESTA. This would render the
purported termination of the right of residence unlawful and invalid.  It would also mean that there
is no compliance with the requirement of ESTA that the eviction must be just and equitable.’ (My
emphasis.)

[16] To determine whether the termination is just and equitable, a consideration of
all relevant factors and the specific criteria set out under subparagraphs (a) to (e)12
is required.  Subparagraph (a) is not applicable because the reasons given for seeking

12 See para 11 above.

the eviction of the respondents is not founded on ‘any agreement, provision of an
agreement, or provision of law’. In light of my findings in respect of subparagraph
(e), I express no view on subparagraphs (b), (c) and (d).

[17] According to Snyders, a mere failure to comply with the procedural fairness
that is required by subparagraph (e) would render the purported termination of the
right of residence unlawful and invalid.

[18] The appellant conceded that after the events of 28 November 2016 and prior
to the termination of the right of residence of the first to ninth respondents there were
no discussions and negotiations between the appellant and the first respondent.  The
first to ninth respondents were not legally represented before their right to reside was
terminated. To avoid the consequences of Snyders, the appellant submitted that the
first respondent had adequate opportunity before her occupation was terminated and
even after, but prior to being required to vacate, to approach the appellant.

[19] The appellant relies on the decision in Le Roux NO and Another v Louw and
Another [2017] ZALCC 10 paras 91-93. In that case the LCC referred to Snyders
and made the following remarks:
‘These comments must be read in the context of the particular factual situation in Snyders. Section
8(1)(e) does not contemplate that it will be appropriate in every case that an opportunity be given
to make representations before the decision to terminate the right of residence. This is clear from
the wording of section 8 (1)(e) which reads as follows: “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.”
In our view, in circumstances where, unlike in Snyders, the right of residence did derive solely
from the contract of employment, procedural fairness in relation to the possible loss of the right of

residence will have been a natural consequence of the procedural fairness afforded in the process
of terminating the contract in accordance with provisions of the Labour Relations Act as envisaged
in section 8(2) of ESTA. For that reason, it was not necessary for the third appellant to have
afforded Louw a distinct and separate opportunity to make representations before the decision was
made to terminate the right of residence. This appears to us to be one of the situations contemplated
in section 8 (1)(e) where the words “or not” and “should have been” apply.
Even if we are wrong in stating that as a general proposition, we are satisfied that in this particular
case, it was not necessary to afford Louw a distinct and separate opportunity to make
representations before his right of residence was terminated, as contemplated in section 8 (1)(e).
Procedural fairness was afforded through the disciplinary procedures followed in relation to
Louw’s employment and its eventual termination . . . if he had any compelling reason why the third
appellant should not terminate his right of residence, notwithstanding termination of his
employment, it was up to him to raise it at the disciplinary enquiry.” (My emphasis.)
In the case before this Court, there was no enquiry or procedure during which the
first respondent (or any of the other respondents who lived on the farm) could have
given reasons why their right of residence should not be terminated.

[20] In Timothy v Sibanyoni and Others [2020] ZALCC 8 para 56, the court held:
‘One of the factors which the court is expressly required to take into account when considering
this question is the fairness of the procedure followed by the owner in terminating a right of
residence. This is required by 10(1)(e), which in its terms accepts that the occupier need not
necessarily be afforded an opportunity to make representations. The wording of the subsection is
clear on this point: it provides that when considering the fairness of the procedure followed by the
owner a factor to be taken into account is “whether or not the occupier had or should have been
granted and effective opportunity to make representations before the decision was taken to
terminate the right of residence.” (Emphasis added.)
The first highlighted portion expressly acknowledges that it is not in every case that the affected
person needs to be invited to make representations. By way of illustration, an equivocal statement
or conduct by the resident in the owner’s presence may in appropriate circumstances obviate such
a requirement in which case the owner may stand or fall by his claim as to what transpired.’

In this case before me there was no equivocal statement or conduct by the first
respondent which could obviate an invitation to make representations. This,
however, may not apply to other respondents living on the farm who could be
occupiers in their own right.

[21] This Court is bound by Snyders. For the reasons stated above, the facts in Le
Roux and Sibanyoni are clearly distinguishable from the facts in this case. It is
common cause that the appellant did not invite the first to ninth respondents to make
representations before terminating the respondents’ right of residence.

[22] The appellant had previously attempted to persuade the first respondent and
her family members to leave the farm voluntarily against payment of R100 000
compensation, but through discussions and negotiations the first to ninth respondents
were relocated on the same land. There were no discussions or negotiations prior to
the termination of the first to ninth respondents’ right to reside. The first to ninth
respondents should have been granted an effective opportunity to make
representations before the date on which their right of residence was to be
terminated, in view of the hardship they would endure if evicted.

[23] As a result hereof, it is not necessary to decide whether there was a
fundamental breach of trust as contemplated in s 10(1)(c) of ESTA. Neither the first
respondent nor any of the other respondents living on the farm have been granted an
effective opportunity to make representations as required in terms of s 8(1)(e) of
ESTA.

[24] The President of this Court appointed an amicus curiae to make submissions
on the issues raised in this appeal. We are grateful for the heads of argument and
submissions that were prepared. No costs are sought by them.

___________________
Z CARELSE
JUDGE OF APPEAL

Schippers JA (Dambuza JA and Eksteen AJA concurring):

[26] I have read the judgment of my colleague Carelse AJA in which she has come
to the conclusion that the appeal should be dismissed as the respondents had not been
given an opportunity to make representations before their rights of residence were
terminated, as contemplated in s 8(1)(e) of the Extension of Security of Tenure Act
62 of 1997 (ESTA).  I take a different view. In my respectful opinion the issues
raised by this appeal are twofold.  The first is whether an order for the eviction of
the respondents from the relevant property was justified on the ground of a
fundamental breach of the relationship between the first respondent, Mrs Johanna
Malan and the person in charge, Mr Deon van der Merwe (the site and farm
manager), which was not practically possible to remedy as envisaged in s 10(1)(c)
of ESTA. The second is whether the eviction order was just and equitable in terms
of the provisions of ESTA.

The facts and proceedings below
[27] The facts are largely common ground. The appellant is the registered owner
of the farm Topshell Park in Stellenbosch, Western Cape (the farm). In September
2019 it obtained an order in the Stellenbosch Magistrates’ Court for the eviction of
the first to ninth respondents, in terms of ESTA. The case went on automatic review
to the Land Claims Court (LCC) under s 19(3) of ESTA.13 The LCC (Ncube AJ) set
aside the eviction order. The appeal is with its leave.

[28] Mrs Malan, is a widow and pensioner who lives on the farm, together with the
second to ninth respondents. The second to fifth respondents are Mrs Malan’s adult

13 Section 19(3) of Extension of Security of Tenure Act 62 of 1997 (ESTA) provides, inter alia, that any eviction  order
by a magistrate’s court shall be subject to automatic review by the Land Claims Court.

children. The sixth respondent is Mrs Malan’s daughter-in-law. The seventh and
eighth respondents are the minor and adult grandsons respectively, of Mrs Malan.

[29] Mrs Malan and her husband, the late Mr Moos Malan, moved to the farm in
1974 when Mr Malan was employed as a driver by the appellant’s predecessor in
title. In terms of his employment contract, he was provided with accommodation in
Cottage 1 on the farm where he lived until he passed away on 4 October 2005. Mrs
Malan continued to live on the farm and in 2006 concluded a lease agreement with
the appellant’s predecessor in title, in terms of which she leased Cottage 1 at a rental
of R500 per month.

[30] Neither Mrs Malan nor any of the respondents however paid any rent to the
appellant. This was not disputed. It appears from the founding papers that during the
tenure of the lease she was legally assisted regarding payment of arrear rental. Not
much turns on this, since before us the appellant contended that the ultimate reason
for the termination of the right of residence, was a fundamental breach of the
relationship between Mrs Malan and Mr Van Der Merwe.

[31] In 2012 the appellant was compelled to forgo a portion of the farm because of
the widening of the R310, a provincial road in Stellenbosch. As a result, the land
required by the appellant’s anchor tenant, Topshell (Pty) Limited (Topshell), under
a long-term lease was reduced and it was forced to provide Topshell with a portion
of land on which a number of cottages including Cottage 1, were located.

[32] The appellant then entered into negotiations with Mrs Malan and eight other
households whose cottages were on the same land as Cottage 1, with a view to their
voluntary relocation to other property with the appellant’s assistance, by way of a

cash amount and the provision of building materials. The negotiations with Mrs
Malan which took place over a period of one year, were unsuccessful.

[33] At a meeting with the appellant’s attorney on 11 August 2016, Mrs Malan
agreed to move to Cottage 5 and stated that she understood the process that had to
be followed under ESTA in that regard. On 2 September 2016 Mr Van Der Merwe
and Mrs Malan agreed upon the repairs, changes and improvements that had to be
effected to Cottage 5. These included removing a tree and an interior drywall;
installing a kitchen sink, wall plugs, and switches; and painting the roof, interior and
exterior of the cottage, Mrs Malan undertook to move to Cottage 5 as soon as the
repairs and improvements were completed.

[34] However, after the completion of the repairs Mrs Malan refused to move to
Cottage 5. The appellant then applied to the Stellenbosch Magistrate’s Court for the
relocation of the respondents. On 20 October 2016 that court issued an order in terms
of which Mrs Malan and all those occupying Cottage 1 under her, were directed to
vacate Cottage 1 and take occupation of Cottage 5 (the relocation order).

[35] On 28 November 2016 Mrs Malan moved to Cottage 5. What happened that
day was the subject of oral evidence before the magistrate. The fourth respondent
(Mrs Malan’s son) and other members of her household removed building materials
consisting of roof sheets and rafters (which the appellant had promised to its
employees), window frames and various fixtures from Cottage 1. This happened in
the presence of Mrs Malan, Mr Van der Merwe and police officers whom the latter
had called to the scene while the building materials were being removed.

[36] Photographs annexed to the founding papers showed that only the brick-and-
mortar shell of Cottage 1 remained. The building materials were then used to erect
an unlawful structure right next to Cottage 5, without the appellant’s consent. Mrs
Malan did nothing to stop the unlawful removal of the appellant’s building materials.
On the contrary, she swore at Mr Van Der Merwe and shouted at him that Cottage 1
was her house and she could do with it whatever she wanted. The illegal structure,
Mrs Malan testified, had been erected to store her things because Cottage 5 was too
small – it was in fact 9.4 square metres bigger than Cottage 1. That structure
however, was used to house persons who previously had not lived with Mrs Malan
on the farm.

[37] On 18 January 2017 the appellant’s attorneys sent Mrs Malan a notice that her
right of occupation had been terminated on the following grounds. The unlawful
removal and theft of the building materials (the appellant had laid a charge of theft
with the police) constituted a material breach of the relationship between the parties.
Mrs Malan had further breached the relationship by using the materials to erect an
unauthorised and unlawful structure on the farm in contravention of building
regulations as well as s 6(3)(d) of ESTA.14 That structure was being used to
accommodate members of her family who had not lived with her before. The
appellant demanded that Mrs Malan demolish the illegal structure and return the
building materials by 1 February 2017. She was also informed that she and members
of her family were required to vacate Cottage 5 and the illegal structure by 1
February 2017, failing which an application for their eviction would be brought.

14 Section 6(3) of ESTA provides:
‘An occupier may not-
. . .
(d) enable or assist unauthorised persons to establish new dwellings on the land in question.’

[38] The illegal structure was not demolished, neither were the building materials
returned. Consequently, on 1 February 2017 the sheriff served a notice on Mrs Malan
and the second to ninth respondents to vacate the farm by 28 February 2017. In that
notice it was recorded that the respondents’ residence had already been terminated
by a notice served by the sheriff on 20 January 2017 (on the basis of a breach of the
lease agreement). The notice stated that the unlawful removal of the building
materials constituted a serious breach of the relationship; that Mrs Malan had taken
no steps to prevent the removal; that she had made common cause with the members
of her family by stating that Cottage 1 was her house and that she could do with it
as she pleased; and that a complaint had been lodged with the police.

[39] The respondents did not vacate the farm and the appellant launched eviction
proceedings on 28 April 2017. In the founding papers it alleged that the termination
of Mrs Malan’s rights of residence was just and equitable on three alternative
grounds: (i) she had failed to pay the rental under the lease agreement; (ii) if she was
an occupier in terms of s 8(5) of ESTA, termination was justified under s 10(1); and
(iii) if she was an occupier contemplated in s 8(4), termination was warranted in
terms s 10(1)(a), (b) or (c) of ESTA.

[40] Mrs Malan opposed the application and was legally represented in the
magistrate’s court. None of the other respondents opposed the application or asserted
any independent right to reside on the farm. In the answering affidavit Mrs Malan
denied that she had concluded the lease agreement and said that the appellant had
never approached her for payment of rent, despite having made arrangements
through her attorneys to pay-off arrear rental. She opposed the application for
eviction on the basis that she was an occupier as envisaged in s 8(4) of ESTA: she
had resided on the farm for ten years and had reached the age of 60. Mrs Malan also

raised a special plea that in terms of s 8(5), her right of residence could be terminated
only on 12 calendar months’ written notice to leave the farm.15

[41] The magistrate found that the lease agreement was the source of Mrs Malan’s
right to reside on the farm. She was legally represented at the time and the lease
agreement had been concluded, presumably ‘to regulate and formalise her rights as
opposed to not being able to occupy the property further due to her husband’s
demise’. None of the other respondents had acquired any independent right to reside
on the farm. Further, Mrs Malan had conceded that her right of residence had been
lawfully terminated in accordance with s 8(1) of ESTA.

[42] The magistrate considered the factors set out in ss 11(3) and 9(2) of ESTA
and held that an order of eviction was just and equitable for the following reasons.
The eviction emanated from the widening of the R310 road. Mrs Malan conceded
that her right of residence had been lawfully terminated. The respondents had
committed a fundamental breach of the relationship contemplated in s 10(1)(c) of
ESTA. The unavailability of alternative accommodation came about as a result of
the respondents’ own conduct. The appellant had offered them the sum of R100 000
plus building materials, but the respondents wanted a minimum amount of
R400 000. Four of the five adult respondents were employed elsewhere, but never
paid any rent. The appellant had paid substantial amounts for water, sewerage and
waste removal on behalf of the respondents and could not be expected to continue
to do so. The respondents were guilty of misconduct which could not be condoned

15 Section 8(5) of ESTA reads:
‘On the death of an occupier contemplated in subsection (4), the right of residence of an occupier or 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).’

in the circumstances. The appellant had given timeous notice of the eviction
proceedings to the relevant authorities.

[43] The LCC, as stated, set aside the eviction order. It concluded that Mrs Malan
was an occupier in terms of s 8(4) of ESTA. As such, her right of residence could
not be terminated unless she had committed a breach contemplated in s 10(1)(a), (b)
or (c). The LCC found that s 10(1)(a) was inapplicable and s 10(1)(b) was no basis
for termination of the right of residence. It held that there was no breach as envisaged
in s 10(1)(c) of ESTA because the appellant had ‘the option of claiming
compensation’ for its building materials if it wished to do so. The LCC held that the
eviction order could also not be confirmed because Mrs Malan had not been
informed that she could make representations in terms of s 8(1)(e) of ESTA.

Was there a breach of the relationship as envisaged in s 10(1)(c) of ESTA?
[44] On the case made out in the founding affidavit, it may be accepted that Mrs
Malan is an occupier as envisaged in s 8(4) of ESTA. She has lived on the farm for
at least ten years and has reached the age of 60 years. Consequently, her right of
residence could not be terminated unless she committed a breach contemplated in
s 10(1)(c) of ESTA.16

[45] Section 10(1)(c) of ESTA provides:
‘An order for the eviction of a person who was an occupier on 4 February 1997 may be granted
if–

16 Section 8(4) of ESTA, in relevant part, reads:
‘The right of the residence of an occupier who has a 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; . . .
may not be terminated unless that occupier has committed a breach contemplated in section 10(1)(a), (b) or (c). . . .’

‘(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.’

[46] The plain wording of this provision makes it clear that what is contemplated
is an act of breaking the relationship on the part of the occupier that is essentially
impossible to restore. The LCC has 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 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’.17

[47] In determining whether an occupier has committed a fundamental breach of
the relationship envisaged in s 10(1)(c) of ESTA, it seems to me that the following
factors must be considered. 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. The present attitude of the parties to the relationship
as shown by the evidence.

[48] Klaase18 is a case in point. There, 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, was
misconduct for purposes of s 10(1)(c) of ESTA.19

17 Ovenstone Farms (Pty) Ltd v Persent and Another [2002] ZALCC 31.
18 Klaase and Another v Van Der Merwe and Others [2016] ZACC 17; 2016 (6) SA 131 (CC).
19 Klaase fn 6 para 43.

[49] Applying these principles to the present case, it was common ground that prior
to the incident on 28 November 2016, the relationship between Mrs Malan and Mr
Van der Merwe was one of mutual respect, trust and co-operation. Mr Van der
Merwe described their relationship prior to its breakdown, as follows:
‘I just also want to point out at this stage, when all this moving over and this process took place,
there was not a breakdown in trust between Tadvest, myself and Ms Malan. We were on good
speaking terms. So there were no malicious actions or reasons for us not to work together and
facilitate this process. You may recall that I said to you, Monday morning at what time (indistinct)
they should've been out by [then] but I said: let's give them a couple more hours so that they can
move (indistinct) go to the house again they started breaking it down. So the breakdown of the
trust relationship only happened after this whole moving over and the process where they started
breaking down the house it ended.’

[50] On 28 November 2016 the appellant’s employees who had been given the
rafters and roof sheeting went to remove these materials from of Cottage 1. They
returned and told Mr Van der Merwe that the materials were already being removed.
Mr Van der Merwe went to the site where he found that the appellant’s building
materials were being removed and stacked. He asked Mrs Malan’s son to stop but
was ignored. He then called the police who came to the scene. Their presence did
not deter the persons from continuing with the removal of the building materials. As
Mr Van der Merwe was speaking to the police, Mrs Malan came out of Cottage 5.
She was ‘very upset and emotional’. She shouted at Mr Van der Merwe that Cottage
1 was her house and she could do with the building materials whatever she wanted
and, using an expletive, told him to get off the property.

[51] On hearing this, which Mr Van der Merwe described as ‘really upsetting’, he
left the scene. The police remained there and did nothing to stop the wrongdoers.
Despite the appellant laying criminal charges of theft against them, a few days later

Mrs Malan caused the building materials to be used to erect the illegal structure
annexed to Cottage 5, without the appellant’s permission and contrary to building
regulations. She then allowed persons who had not lived on the farm before to
occupy the illegal structure. As stated in the founding affidavit, this conduct was a
breach of s 6(3)(d) of ESTA.

[52] The erection of the illegal structure continued, despite the fact that the
appellant’s attorneys had written to Mrs Malan and demanded that it be removed and
the building materials returned. She ignored this letter. When the matter was heard
in the magistrates’ court – more than two years later – the illegal structure had still
not been demolished. Mr Van der Merwe described Mrs Malan’s response, which
was unchallenged, as follows:
‘As far as I know she didn’t react at all. There was no reaction from their side, they just carried on
for the next two months, adding on to the structures around house number 1 and no building
material was returned and there was no communication from their side to Abland, Tadvest or
myself.’

[53] The unchallenged evidence was that it was not practically possible to restore
the relationship between Mrs Malan and the appellant. When asked about the effect
of her conduct on the relationship, Mr Van der Merwe said:
‘. . . as I said before we had a mutual respectful relationship . . . But after this incident, I mean
there are some things that you say to another person that can’t be undone and that can’t change.
So the relationship of mutual trust and goodwill was can I say, demolished, destroyed in this case.
So all direct communication came to a halt.’

[54] Indeed, it was common ground that the relationship of trust between Mrs
Malan and Mr Van der Merwe had been broken: they had no contact nor any
relationship after the incident on 28 November 2016. It was also common ground

that Mr Van der Merwe had objected to the removal of the building materials; that
he had called the police; that Mrs Malan had shouted; that she had been rude to him
(she admitted this and apologised during her evidence); and that she had erected the
illegal structure without permission.

[55] In the light of this evidence, Mrs Malan’s explanation for the fundamental
breach of trust – she had shouted at Mr Van der Merwe that he was a liar, because
he had given her permission to take what she needed for Cottage 5, but subsequently
withdrew it – may safely be rejected. This served only to exacerbate an already
broken-down relationship. Mrs Malan did not need any building materials for
Cottage 5. The appellant had already done the necessary repairs and improvements
to it – which she had approved and signed for after an inspection with Mr Van der
Merwe.

[56] Further, on Mrs Malan’s version, there was no reason for Mr Van der Merwe
to go to Cottage 1 where the building materials were being removed, call the police
or lay charges of theft. It is thus not surprising that at no stage did Mrs Malan inform
the police that she had been given permission to remove the building materials. What
is more, she continued with the removal of the building materials even after Mr Van
der Merwe had told her that he viewed her conduct as theft. She did this precisely
because she considered that she could do with the building materials as she pleased
and knew that they were going to be used to erect the illegal structure.

[57] In addition, Mr Van der Merwe testified that it was illegal to erect any
structure around Cottage 5 without approved building plans. It is thus inconceivable
that he would have allowed Mrs Malan to remove the building materials, or to erect
any illegal structure on the farm contrary to building regulations. Mrs Malan’s

attitude that she could do with Cottage 1 as she pleased, also explains why she
ignored the appellant’s demand to demolish the structure and return the building
materials.

[58]  In her evidence, Mrs Malan sought to justify the illegal structure as being
necessary to store her furniture because Cottage 5 was too small. This too, was false.
The undisputed evidence was that Cottage 5 was bigger than Cottage 1. So, there
would have been enough space for her furniture. Further, the illegal structure was
not erected immediately to protect Mrs Malan’s furniture. This merely underscores
the reason for the illegal structure – to house persons not previously resident on the
farm.

[59] For these reasons, the submission by counsel for Mrs Malan that it seemed
inevitable that the respondents were being evicted for business purposes, is
unsustainable on the evidence. So too, the contention that a fundamental breach of
the relationship was not established ‘over the use of building materials’. The reason
for the eviction initially was the non-payment of rent. However, it was ultimately
the events of 28 November 2016, Mrs Malan’s conduct in enabling unauthorised
persons to occupy the farm by erecting an illegal structure on it and her ongoing
refusal to demolish the structure and return the building materials, which culminated
in the breakdown of trust to the extent that the relationship could not be restored.
The misconduct was ongoing and deliberate and took place in the context of an
already deteriorating relationship due to the failure to pay rental and utilities, and the
refusal to relocate.

[60] The LCC thus erred in concluding that there was no fundamental breach of
the relationship between Mrs Malan and the appellant, and that the appellant could
simply claim compensation for its building materials. The LCC disregarded the

nature and seriousness of the respondents’ conduct and its effect on the relationship
between the parties. Apart from this, the LCC misconstrued the appellant’s case: its
conclusion was based solely on the respondents’ conduct in removing the building
materials from Cottage 1. On the evidence however, the lack of respect and mutual
trust in the relationship between the occupier and the owner or person in charge,
because of the occupier’s conduct, was beyond dispute.

Was the eviction order just and equitable?
[61] The requirements which an owner must meet to prove that termination of an
occupier’s right of residence was just and equitable depends on the facts of the
particular case.20 In this case the conduct of Mrs Malan and the respondents who
removed the building materials and subsequently erected the illegal structure, which
gave rise to the application for her eviction, is particularly relevant. So too, the
comparative hardship to the appellant and the respondents. In this regard, the dictum
by Nkabinde J in Molusi,21 bears repetition:
‘ESTA 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. It does so by having regard to the
considerations specified in s 8 read with s 9, as well as ss 10 and 11, which make it clear that
fairness plays an important role.’22

20 Land & Landbouontwikkelingsbank van SA v Conradie [2005] 4 All SA 509 (SCA) para 9.
21 Molusi and Others v Voges N O and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) para 39.
22 The conclusion by C P Smith Eviction and Rental Claims: A Practical Guide (2021) para 5.7, that it seems that a
court does not have to take all relevant factors into account when considering an eviction order, but rather the specific
factors in ss 10 of 11, whichever applicable; and that eviction in terms of s 10(1)(a) to (d) does not have to be just and
equitable in addition to the specific requirements in each instance, is thus incorrect.

[62] Section 8(1) of ESTA provides that 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 those listed in s 8(1)(a) to (e).23
These factors include the conduct of the parties giving rise to the termination; the
interests of the parties, including the comparative hardship to the owner and the
occupier; and the fairness of the procedure followed by the owner, including whether
the occupier had or should have been given an opportunity to make representations
before termination of the right of residence.

[63] While any eviction creates hardship for the persons evicted, the legislature has
expressly provided for eviction on the grounds of a fundamental breach of the
relationship between the occupier and the owner or person in charge. As stated, the
appellant reasonably required the land when the R310 road was widened, in order to
secure its anchor tenant under a long-term lease. It then sought to obtain Mrs Malan’s
consent to leave the farm through a series of negotiations, but to no avail. On
numerous occasions the appellant offered R100 000 and building materials as a
contribution to the respondents’ relocation and if that amount was insufficient, it was
willing to consider reasonable suggestions by them for additional assistance. The
appellant moreover offered to assist the respondents financially in purchasing
serviced plots in Klapmuts (of which Mrs Malan would have become a co-owner)

23 Section 8(1) of ESTA provides:
‘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.’

on which emergency housing structures could be erected by the tenth respondent,
Stellenbosch Municipality (the Municipality). This assistance too, the respondents
refused.

[64] As stated, the changes and upgrades to Cottage 5 were done with Mrs Malan’s
approval. Despite this, she refused to move and the appellant was forced to apply for
the relocation order. The events leading to the breakdown of the relationship
between Mrs Malan and Mr Van der Merwe have been described above. The eviction
came about solely as a result of her conduct. She told Mr Van der Merwe in crude
and insulting terms to get off the property when she misappropriated the building
materials. She erected an illegal structure with those materials and enabled
unauthorised persons to occupy it. She has no intention of returning the materials or
demolishing the structure. Since her refusal to voluntarily relocate to Cottage 5, her
conduct (and that of the respondents) has been audacious and defiant. In these
circumstances, the belated apology by Mrs Malan during her evidence for treating
Mr Van der Merwe rudely, rings hollow.

[65] As to the interests of the parties envisaged in s 8(1)(b), it must be emphasised
that it is only Mrs Malan who is an occupier in terms of s 8(4) of ESTA. The
remaining respondents hold title under her. Mrs Malan had been living on the farm
for some 45 years when the case was heard, of which she resided for 14 years after
her husband’s passing in 2005. In my opinion however, given that it is practically
impossible for the relationship between Mrs Malan and Mr Van der Merwe to be
restored due to a lack of mutual trust, her continued residence on the farm is
untenable. This is an inevitable consequence of an eviction under s 10(1)(c) of
ESTA. According to the papers, Mrs Malan receives a state pension and was
employed as a domestic worker for many years. She has family who own residential

property in Stellenbosch and Wesbank in the Western Cape. Her brother owns a
house in Stellenbosch in which Mrs Malan’s mother was living at the time of the
hearing. There seems to be no reason why the responsibility of accommodating Mrs
Malan or assisting her in finding accommodation, should not be borne by her
family.24

[66] The remaining respondents have been living on the farm, rent-free for many
years. This, despite the fact that five of the six adult respondents work elsewhere and
receive an income, and that the remaining adult respondent is of an employable age.
This in itself is a lawful ground for the termination of the right of residency under
ESTA, if the termination is just and equitable.25 What is more, for as long as they
have been living on the farm, the respondents have never paid for services such as
water, refuse removal or sewerage, the monthly costs of which are borne by the
appellant.

[67] The LCC failed to consider this evidence or the appellant’s interests in not
permitting unlawful conduct, the erection of an illegal structure on the farm, or its
continued occupation by unauthorised persons. Instead, it had regard only to the
fairness of the lease agreement, to a limited extent the conduct of Mrs Malan, and
the apparent lack of notice regarding representations under s 8(1)(e) of ESTA.

[68] This brings me to s 8(1)(e) of ESTA. It states that an occupier’s right of
residence may be terminated on any lawful ground, provided that such termination
is just and equitable, having regard to, inter alia:

24 Rashavha v Van Rensburg 2004 (2) SA 421 (SCA) para 19.
25 Molusi fn 9 para 43.

‘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.’26

[69] It is a settled principle that when interpreting a statutory provision, what must
be considered is the language, context and purpose of the statute and the material
known to those responsible for its drafting.27 Two points must be made about this
provision. First, it is clear from the language and syntax of s 8(1)(e) that Parliament
did not require an occupier to be given an opportunity to make representations in
every case.28 The language is clear and explicit and, in my view, must be given effect
to whatever the consequences. Second, on the plain language of s 8(1)(e), the
opportunity to make representations applies only in relation to a decision to
terminate the right of residence, and constitutes the procedural fairness requirement
of that provision.29

[70] In my opinion, this interpretation is consistent with the immediate context and
is illustrated by the facts of this very case. Thus, s 9(2) of ESTA draws a distinction
between the eviction of an occupier on the basis of termination of the right of
residence in terms of s 8,30 and the conditions for an order for eviction in terms of
s 10.31 Section 10(1)(c) authorises the eviction of an occupier on the grounds of a
fundamental breach of the relationship between him or her and the owner or person
in charge. It says nothing about representations on the part of the occupier. This is
hardly surprising as a relationship of mutual trust and respect is fundamental to co-

26 Emphasis added.
27 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) affirmed
in Airports Company South Africa SOC Ltd v Imperial Group Ltd and Others [2020] ZASCA 2; [2020] 2 All SA 1
(SCA); 2020 (4) SA 17 (SCA) para 22.
28 Le Roux NO and Another v Louw and Another [2017] ZALCC 10 para 91.
29 Snyders and Others v De Jager and Others [2016] ZACC 55; 2017 (3) SA 545 (CC) para 75.
30 Section 9(2)(a) of ESTA.
31 Section 9(2)(c) of ESTA.

residence. A construction that an owner is required to grant an occupier an
opportunity to make representations once it is found that the occupier has committed
a fundamental breach of their relationship which is practically impossible to
continue, is both insensible and intolerable. It would also render the provisions of
s 10(1)(c) nugatory: what is contemplated is whether objectively, the relationship is
at an end.

[71] Thus, in Klaase32 there was no suggestion of the occupier being granted an
opportunity to make representations. This was also the case in Wichmann,33 in which
it was held that there was a fundamental, irremediable breach of the relationship
between the landowner and an occupier in terms of s 10(1)(c) of ESTA, where the
occupier had erected a structure on a farm without permission and disregarded the
landowner’s instruction to stop building. The conduct of the other occupiers in
intimidating and assaulting farmworkers was held to be a breach of their duty under
s 6(3), which rendered them liable to eviction in terms of s 10(1)(a) and (c).34 In
terms of s 10(1)(a), an order of eviction may be granted if an occupier has committed
a material breach of s 6(3) which has not been remedied. Again, the language and
context exclude an opportunity to make representations.

[72] Applying the principles in Molusi referred to in paragraph 36 above, I do not
think it can be said that an order for the eviction of the respondents would be unjust,
inequitable or unfair. The appellant did not elect to use the portion of the farm on
which Cottage 1 was located. It was compelled to do so because of the widening of
a road, and in order to secure a long-term tenant necessary for its business. To force
the appellant to continue to provide Mrs Malan with housing in the face of

32 Klaase fn 6.
33 Wichmann N O and Another v Langa and Others 2006 (1) SA 102 (LCC).
34 Wichmann fn 21 para 43.

overwhelming evidence of a fundamental breakdown of their relationship as
contemplated in s 10(1)(c) of ESTA, would place it in an untenable position. The
appellant cannot be expected to continue to tolerate the respondents’ occupation of
an illegal dwelling on its land – proscribed by ESTA itself. Neither can it be expected
to continue to support them financially by providing free housing and utilities. As
was said in Labuschagne:35
‘The Act was not intended to promote the security of opportunistic occupiers at the expense and
exploitation of the rights and legitimate interests of the landowners.’

[73] The facts show that the appellant has repeatedly tried to assist the respondents
in securing alternative accommodation, which has unreasonably been refused. The
inference is inescapable that the appellant’s offers were refused because the
respondents have no intention of giving up the benefits of free accommodation and
utilities which the appellant currently provides. The appellant has indicated on oath
that it remains willing to negotiate with the respondents if they consider that the
relocation contribution of R100 000 is insufficient, and that it remains willing to
consider all reasonable suggestions from the respondents as to how it could assist
them. There is no apparent reason why the appellant would renege on this offer.

[74] The amicus curiae, for whose assistance we are grateful, submitted that Mrs
Malan had committed a fundamental breach of trust as envisaged in s 10(1)(c) of
ESTA. The amicus suggested that the matter be remitted to the magistrate because
the report by the Municipality concerning alternative accommodation was dated 7
March 2018 and the report in terms of s 9(3) of ESTA, 25 May 2018, and that
circumstances may have changed.

35 Labuschagne and Another v Ntshwane 2007 (5) SA 129 (LCC) para 23.

[75] In my view, no purpose would be served by remitting the matter to the
magistrate. First, the appellant remains willing to assist the respondents in finding
alternative accomodation. Second, the report by the Municipality makes it clear that
it has adopted an emergency housing assistance policy to accommodate homeless
persons. It is accordingly obliged to provide the respondents with alternative
accommodation should they be rendered homeless, despite its claim that it was
unable to provide accommodation when the case was heard, because of its policy to
provide accommodation close to their former homes. The Constitutional Court has
held that a municipality is obliged not only in terms of ESTA, but also s 26 of the
Constitution to provide suitable alternative accomodation.36 Third, according to the
s 9(2) report, the Municipality had negotiated with the appellant to contribute the
sum of R50 000 towards the relocation of Mrs Malan, provided that she agreed to
leave the farm. Finally, any further delay is not justified. The respondents will be
given an adequate opportunity to find alternative accommodation. The matter has
dragged on for nearly five years now and the intolerable position in which the
appellant finds itself, cannot be allowed to continue.

[76] In the result the following order is issued:
The appeal succeeds.
The order of the Land Claims Court is set aside and replaced with the
following order:
‘(a)     An eviction order is granted against the first to eighth respondents and all
those occupying the farm known as Topshell Park in Stellenbosch, Western Cape
(the farm) under them.

36 Baron and Others v Claytile (Pty) Ltd and Another [2017] ZACC 24;  2017 (10) BCLR 1225 (CC); 2017 (5) SA
329 (CC) para 46.

(b)     The first to eighth respondents and all those occupying the farm under them
must vacate the farm on or before 31 March 2022.
(c)     Should the respondents and all those occupying the farm under them fail to
vacate it on or before 31 March 2022, the sheriff of the court is authorised to evict
them from the farm by 14 April 2022.
(d)     The tenth respondent is ordered to provide emergency housing of a dignified
nature with access to services (which may be communal) to the first to eighth
respondents and all those occupying the farm under them, on or before 31 March
2022.
(e)     There is no order as to costs.’

___________________
A SCHIPPERS
JUDGE OF APPEAL

APPEARANCES:

For appellant:

J L Williams

Instructed by:

Cluver Markotter Inc., Stellenbosch
c/o McIntyre van der Post, Bloemfontein

For first to ninth respondents:
L Mfazi (with him L Tshigomana)
Instructed by:

S Morgan & Associates, Mitchell’s Plain

c/o Bekker 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:
30 September 2021
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

Nimble Investments (Pty) Ltd v Johanna Malan and Others (556/2020) [2021] ZASCA 129 (30
September 2021)
___________________________________________________________________________

Today a majority of the SCA upheld the appellant’s appeal against an order of the Land Claims
Court, Randburg, which set aside an order by the Stellenbosch Magistrate’s Court (the
magistrate’s court) that the respondents be evicted from a farm known as Topshell Park in
Stellenbosch, Western Cape (the farm), in terms of the Extension of Security of Tenure Act 62
of 1997 (ESTA). The ground for their eviction was essentially that the first respondent had
committed a fundamental breach of the relationship between her and the manager or owner of
the farm, that was practically impossible to restore as envisaged in s 10(1)(c) of ESTA.

The first respondent had been living on the farm since 2005 after her husband had passed away.
Part of the farm was expropriated for purposes of a road and the appellant needed the portion
of land on which the house of the first respondent (Cottage 1) and those occupied by other
farmworkers were located. The land was needed by the owner’s tenant under a long-term lease.
The owner obtained an order in the magistrate’s court to relocate the respondents from Cottage
1 to Cottage 5 on the farm. The first respondent breached the relationship when, without
permission, she removed the building materials from Cottage 1 and used them to erect an illegal
structure next to Cottage 5. When confronted about this, she told the manager that Cottage 1

was her house and she could do with the materials as she pleased. Using an expletive, she
shouted at him to go away. The appellant’s building materials were used to erect an illegal
structure to accommodate persons who had not previously lived on the farm. The first
respondent refused to demolish the structure or return the materials. The SCA held that this
conduct constituted a fundamental breach of the relationship between the occupier and the
landowner, justifying the eviction of the respondents.

The SCA held that the eviction was just and equitable as it was untenable to force a landowner
to continue with a relationship which, according to the evidence was practically impossible to
restore. For this reason and on a proper construction of s 10(1)(c) of ESTA it was unnecessary
to grant the respondents an opportunity to make representations as envisaged in s 8(1)(e). A
number of the respondents were employed elsewhere but paid no rent and made no contribution
to utilities. The SCA concluded that the landowner could not be expected to provide free
housing and utilities to the respondents as it had done for a number of years. ESTA was not
intended to promote the security of opportunistic occupiers at the expense and exploitation of
the rights of landowners. Moreover, the appellant was, and remained willing to assist the
respondents financially in finding alternative accommodation. This assistance was
unreasonably refused.

In a minority judgment it was held that the order of eviction was not just and equitable. The
respondents had not been given an opportunity to make representations as envisaged in
s 8(1)(e) of ESTA, why their rights of residence should not be terminated.