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- Section 8(1)(b) of ESTA states that the court must take into account “the conduct of the parties giving rise to the termination”.
- However, Sections 8(2) and 8(3) clarify that only labour forums, which were established to handle labour disputes, have the jurisdiction to determine the fairness of a dismissal.
- Importantly, the dismissal of an employee who resides on a farm does not automatically end their right of tenure.
- Disputes over dismissal must first be resolved in terms of the Labour Relations Act, 1995 (Act 66 of 1995) (LRA).
- If no dispute is referred to the CCMA, the court presumes the dismissal was lawful and fair.
In a previous article, we explored the legal implications when a farm dweller’s right of tenure is tied to his/her employment, and the landowner seeks to evict the individual following dismissal.
We explained that where a farm dweller disputes the fairness of his/her dismissal, the labour dispute must first be resolved before the landowner may legally terminate the farm dweller’s tenure under the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) (ESTA).
Although the legal position was recently reaffirmed, a recurring question is whether a court – be it the Land Court or a magistrate’s court – should assess the fairness of the dismissal when deciding on eviction under ESTA.
Can an occupier stay on the farm?
Section 8(1)(b) of ESTA states that the court must take into account “the conduct of the parties giving rise to the termination”. This includes the behaviour of both the occupier (leading to dismissal) and the landowner at the time of dismissal.
However, Sections 8(2) and 8(3) clarify that only labour forums such as the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court, which were established to handle labour disputes, have the jurisdiction to determine the fairness of a dismissal.
Importantly, the dismissal of an employee who resides on a farm does not automatically end their right of tenure. Under ESTA, two distinct decisions are required:
- The decision to terminate employment.
- The decision to terminate the right of tenure.
Disputes over dismissal must first be resolved in terms of the Labour Relations Act, 1995 (Act 66 of 1995) (LRA). Only thereafter may a landowner proceed to terminate the occupier’s tenure.
The role of the CCMA
If no dispute is referred to the CCMA, the court presumes the dismissal was lawful and fair. If the landowner decides to terminate the farm dweller’s tenure, he/she only needs to demonstrate:
- That the dismissal was upheld by the CCMA or Labour Court; or
- That the occupier failed to pursue available dispute resolution channels.
Courts do not require landowners to prove dismissal fairness under ESTA. Allegations of unfairness raised by the occupier generally carry little weight, unless exceptional circumstances apply.
How courts consider the dismissal
Under Section 8, a court may consider the context of the dismissal in the following ways:
- The reason for dismissal. For example, if the dismissal is related to reasons such as incapacity rather than misconduct, it may be considered unfair to terminate tenure.
- Conversely, even a long-term occupier (for example, over ten years on the land and aged 60 or older) may justifiably lose tenure if dismissed for serious offences such as violence or dishonesty. In such cases, the court must accept the stated reason for dismissal.
If the dispute has not been heard by a labour dispute forum, the court may still consider the fairness or not of terminating tenure, but only if the landowner admits to an unfair dismissal or this is evident from their own account.
No burden of proof on landowner
When assessing whether an eviction is fair under Section 10 or 11 of ESTA, the court may also consider the reason for dismissal. However, it is not empowered to review or rule on the fairness of the dismissal itself.
Therefore, the landowner does not need to prove that the termination of employment complied with the LRA. The Land Court or Magistrate’s Court must accept that the employment relationship was lawfully terminated. – Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, send an email to Clarissa Pienaar at clarissap@mmlaw.co.za or call the Pietermaritzburg office at 033 032 0241 or the Potchefstroom office at 018 297 8799.
