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Landowners must recognise that the days where dismissal means eviction are over. The termination of tenure must be treated as a separate step.
Hierdie artikel is ook in Afrikaans beskikbaar in Veeplaas.
In previous articles we analysed the legal options and eviction procedures applicable when an occupier’s right of residence arises directly from an employment agreement. It was explained, inter alia, that the termination of a farm dweller’s right of residence is the first step in the prescribed process that follows once an occupier has resigned from employment or has been dismissed in terms of the Labour Relations Act, 1995 (Act 66 of 1995) (LRA), provided no further labour dispute is pending.
This position was upheld by acting judge Bishop in Crookes Brothers Limited and Others vs Zola Erik Mkololo (LCC22R/2023). In this matter, the Land Court emphasised the strict two-stage procedural requirements established by the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA), highlighting that the termination of an employment relationship constitutes but the first step in a more complex legal process. This may then be followed by the formal termination of an occupier’s tenure under ESTA.
The Crookes Brothers case
In January 2010, the first applicant entered into an employment agreement with the occupier. Although accommodation was not an express part of the remuneration, it stipulated that the provision of accommodation was conditional upon employment with the company and that the right to accommodation would lapse upon termination of the employment agreement.
There was no indication as to exactly when the occupier assumed that right, although it was presumed to have been after January 2010. The occupier’s partner resided with him on the farm.
On 1 February 2014, the police raided the occupier’s residence and discovered 62,25 litres of beer on the premises. The occupier was charged with illegal liquor selling and paid an admission of guilt fine of R5 000. The employer subsequently instituted disciplinary proceedings, found the occupier guilty, and dismissed him on 10 March 2014.
The notice of dismissal required the occupier to vacate the premises within one month. However, no separate decision was taken regarding the termination of his right of residence. The occupier was also not afforded an opportunity to make representations as to why his right of residence should not be terminated following his dismissal.
The applicants only instituted eviction proceedings in October 2019, five years after the dismissal. According to the court, no explanation was provided for this delay. In the affidavit supporting the application, the applicants alleged that the occupier’s right of residence had been terminated automatically as a result of the termination of his employment.
The magistrate granted the eviction order on 15 June 2022. The matter was referred to the Land Court for review in terms of section 19(3) of ESTA.
Land Court findings
The Land Court identified several procedural shortcomings:
- The matter was unreasonably delayed, and delays by the landowner, the state (in relation to the probation officer’s report), and the court system undermined the fairness and equity of the eviction process.
- No separate decision was taken to terminate the right of residence of the occupier and his partner. Instead, the applicant assumed that the termination of the employment relationship automatically terminated the right of residence.
- There was no evidence that the landowner invited the occupier, as required by section 8(1)(e) of ESTA, to make representations as to why his right of residence should not be terminated.
- The owner attempted to combine the termination of the right of residence with the eviction process. However, the court confirmed that a two-stage process is required: first, the termination of employment under the LRA, and thereafter, following an opportunity for representations, the termination of the occupier’s right of residence under section 8 of ESTA. Thereafter, the process as set out in section 9 of ESTA can be followed.
- The applicant treated the occupier’s partner merely as an ‘accessory’. The court found that she was an occupier in her own right, and that her tenure had to be considered and addressed separately.
- The eviction application was premature, as the occupier’s tenure had never been properly terminated.
- The eviction order was therefore set aside, and the process must begin anew.
Landowners must recognise that the days where dismissal means eviction are over. The termination of tenure must be treated as a separate step. Landowners seeking eviction under ESTA must ensure that the procedures they follow are legally sound and procedurally compliant to avoid the risk of long and costly litigation.
Click here to read more about mandatory mediation prior to eviction.
Even where an occupier’s dismissal has been upheld in a labour forum, the landowner must still follow an independent process to terminate the occupier’s tenure, including affording the occupier an opportunity to make representations. – Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, contact Clarissa Pienaar at clarissap@mmlaw.co.za or phone the Pietermaritzburg office at 033 032 0241 or the Potchefstroom office at 018 297 8799.
