Molusi and Others v Voges NO and Others

The first and second respondents, as trustees of the Voges Family Trust, were nominal owners of Portion 81 of the farm Boschfontein 330-JQ, Rustenburg. In or about October 2001, they concluded lease agreements (some written, some oral) with the appellants and other occupiers for monthly rental of rooms on the property. The first appellant had resided there since 1995; the other appellants took occupation after 4 February 1997. None of the appellants were employed by the respondents or their predecessors in title. The respondents alleged that the appellants failed to pay rental since May 2008, constituting a material breach of the lease agreements. The appellants disputed this, claiming they tendered payment in May 2008 but the respondents refused to accept it, stating they intended to demolish the structures. On 18-19 May 2009, the respondents served notices of termination on the occupiers. The appellants denied receiving proper service of the notices. The respondents then launched an eviction application in the Land Claims Court, seeking to evict all occupiers.

• Whether the occupiers received proper notice of termination of their lease agreements as required by section 8 of ESTA
• Whether the respondents could rely at trial on the common law right to terminate a periodic lease by reasonable notice when the founding papers alleged termination based on breach of contract (non-payment of rent)
• Whether reliance on the common law ground of termination constituted a new cause of action not pleaded in the founding papers
• Whether the termination of the right of residence was just and equitable having regard to the factors in section 8(1) of ESTA
• Whether it was just and equitable to grant an eviction order under sections 9 and 11 of ESTA

Appeal dismissed by majority judgment (3-2). The appellants and all persons occupying under or through them were ordered to vacate the property on or before 7 June 2015. Failing compliance, the Sheriff for the district of Rustenburg was authorized to evict them 10 days after that date. The majority modified the dates from the court a quo's order to give the appellants a further reasonable period to vacate (one month from the date of the Supreme Court of Appeal's order).

The binding legal principles established by the majority judgment are: (1) In eviction proceedings under ESTA, the cause of action is the termination of the lease/right of occupation and the consequent unlawful occupation, not the specific ground for termination. (2) A landowner who has properly pleaded the factual basis for termination of a lease (ownership, existence of lease, termination, failure to vacate) may rely on any available common law ground in support of the eviction claim, even if different from grounds initially stated, provided this does not constitute a new cause of action. (3) Reliance on the common law right to terminate a periodic lease by reasonable notice is not a new cause of action where the factual basis for termination has been pleaded; it is merely a legal argument in support of the relief sought. (4) A party who terminates an agreement on a wrong reason is not bound thereby and may rely on a justifiable reason for termination at trial. (5) Even where ESTA applies, landowners retain their common law rights to terminate periodic leases by reasonable notice, subject to compliance with ESTA's procedural and substantive requirements (particularly sections 8 and 9). (6) Under section 8(1) of ESTA, termination of an occupier's right of residence must be: (a) on a lawful ground; and (b) just and equitable having regard to all relevant factors, particularly those enumerated in section 8(1)(a)-(e). (7) A notice of termination need not be in writing under ESTA, but the termination must be communicated to the occupier. (8) Where a lessee fails to pay rent or tender payment over an extended period after an initial refused tender, this constitutes relevant conduct under section 8(1)(b) in assessing whether termination is just and equitable. (9) A return of service by a sheriff or deputy sheriff constitutes prima facie proof of service, which can be rebutted, but where the return is not properly disputed the court may rely on it.

The majority judgment made several significant obiter observations: (1) The judgment noted with concern that the court a quo's judgment was silent on any engagement with the third and fourth respondents (government departments) who have constitutional obligations under section 26(1) of the Constitution to ensure access to adequate housing, and section 25(1) which prohibits arbitrary deprivation of property. (2) The majority observed that these government departments were parties to the proceedings but it was unclear why they were before court if not to be engaged to ensure evictees would not be rendered homeless. (3) The majority noted that the probation officer's report mentioned there was no suitable alternative accommodation available to the appellants, but this report was not included in the record before the Supreme Court of Appeal. (4) The majority indicated that circumstances a court must consider before issuing an eviction order can only be relevant if they are legally relevant (citing Brisley v Drotsky). The minority judgment made extensive obiter observations about ESTA's purpose and philosophy: (1) Shongwe JA provided a detailed discussion of the historical context of land dispossession under apartheid, including the Group Areas Act and Prevention of Illegal Squatting Act (PISA). (2) He emphasized that ESTA was introduced to put a stop to arbitrary evictions and ensure that justified evictions are conducted with "compassion and dignity – Ubuntu – Botho." (3) He stressed that ESTA seeks to ensure evictions "must be done humanely and not with a sledgehammer." (4) He noted that the list of factors in section 8(1) of ESTA is not exhaustive. (5) He observed that affidavits in motion proceedings "serve not only to place evidence before the Court but also to define the issues between the parties" primarily for the benefit of the parties themselves. (6) He emphasized that section 9(2)(d) of ESTA's requirement that the notice "shall contain the prescribed particulars and set out the grounds on which the eviction is based" would be meaningless if owners could change grounds at trial.

This case is significant in South African land law and ESTA jurisprudence because: (1) It clarifies the distinction between a cause of action (termination of lease/eviction) and the grounds for termination when applying ESTA. (2) It confirms that landowners may rely on common law rights (such as reasonable termination of periodic leases) in ESTA proceedings, provided the factual foundation is properly pleaded and ESTA's requirements are satisfied. (3) It demonstrates the tension between protecting occupiers from arbitrary eviction (a key purpose of ESTA) and recognizing landowners' property rights. (4) The split decision reflects the difficulty of balancing these competing interests and interpreting ESTA's procedural requirements. (5) It addresses the interplay between ESTA's requirements and common law property rights post-Constitution. (6) It illustrates procedural issues around service of notices, disputes of fact in motion proceedings, and when legal arguments constitute impermissible "new causes of action." (7) The minority judgment emphasizes ESTA's protective purpose and strict compliance with its notice requirements, reflecting the Act's roots in addressing apartheid-era arbitrary evictions. (8) The case highlights the importance of government departments fulfilling their constitutional obligations regarding alternative accommodation in eviction proceedings.