Timothy Maluleke N.O. (in his capacity as trustee of the Hlaniki Trust) v Daniel Phellimon Sibanyoni and Others

The Hlaniki Trust (appellant) bought a farm in 2015 from the previous owner without knowledge of the first respondent, Mr Daniel Sibanyoni's occupation. Mr Sibanyoni, aged 56, resided in a labourer's cottage on the farm with his wife, niece, nephew and mother. He was born and raised on the farm, where his parents had resided. According to Mr Sibanyoni, his late father had a verbal agreement with the previous owner granting rights to a portion of the farm for cropping and grazing as part payment for labour. Mr Sibanyoni had 30 cows and several goats and chickens, and worked as a seasonal worker, though never employed by the Trust. The Trust only became aware of Mr Sibanyoni's occupation in 2017 when the sheriff attempted to serve documents. The Trust initially alleged Mr Sibanyoni moved onto the farm after 4 February 1997 without consent, but later conceded he was an occupier who arrived before that date. On 12 February 2018, the Trust sent Mr Sibanyoni a letter terminating his right to reside. When he refused to vacate, the Trust launched an eviction application on 5 April 2018.

• Whether the termination of the first respondent's right of residence was just and equitable in terms of section 8(1) of ESTA
• Whether the occupier was given an effective opportunity to make representations before termination of the right of residence in terms of section 8(1)(e) of ESTA
• Whether sections 10 or 11 of ESTA applied to the eviction, given the occupier's date of arrival on the farm
• Whether the Trust complied with the procedural and substantive fairness requirements for terminating a right of residence under ESTA

The appeal was dismissed. No order as to costs was made.

The ratio decidendi is that: (1) Termination of an occupier's right of residence under ESTA must be just and equitable both substantively and procedurally; (2) Section 8(1)(e) of ESTA requires that an occupier be given an effective opportunity to make representations before the decision to terminate the right of residence is made, not merely during subsequent court proceedings; (3) Failure to provide such an opportunity renders the termination procedurally unfair and therefore not just and equitable as required by section 8(1) of ESTA; (4) The weight to be given to procedural fairness under section 8(1)(e) is case-specific and must be assessed relative to other factors, including comparative hardship, the occupier's history on the land, and the substantive reasons for eviction; (5) An owner seeking eviction must provide concrete evidence (not mere assertions) of hardship and operational needs, particularly where the occupier faces devastating consequences from eviction.

The Court made obiter observations that: (1) The phrase "just and equitable" in ESTA (as in PIE) requires courts to go beyond technical land law considerations and engage in active judicial management according to equitable principles, considering the Constitution and broader values of fairness; (2) The Trust's attitude regarding alternative accommodation - suggesting Mr Sibanyoni relocate to a nearby township despite his undisputed ownership of livestock requiring grazing land - "cannot be countenanced by any court"; (3) Had the Trust engaged with Mr Sibanyoni before terminating his right of residence, it would have appreciated the history of his and his family's occupation on the farm; (4) The Court noted that the Trust was only prepared to engage with the erstwhile owner of the farm and not the occupier, for which there was no plausible reason.

This case reinforces the strict procedural requirements under ESTA for terminating an occupier's right of residence, particularly the requirement in section 8(1)(e) that occupiers must be given an effective opportunity to make representations before (not merely during court proceedings) the decision to terminate is made. The judgment clarifies that the opportunity to make representations in court does not satisfy the requirement of procedural fairness under section 8(1)(e). The case emphasizes that ESTA demands fairness and equity in all dealings with occupiers, requiring both substantive and procedural fairness. It confirms that the enquiry into whether termination is just and equitable is context-specific and requires consideration of all five factors in section 8(1), with particular weight given to comparative hardship and the occupier's history on the land. The judgment underscores that landowners seeking eviction must provide concrete evidence of hardship and development plans, not mere assertions. The case is significant in the development of land reform jurisprudence as it protects the rights of long-term occupiers, particularly those who were on land before the critical date of 4 February 1997, and ensures meaningful engagement before eviction processes commence.