Eugene De Vos du Plessis and Another v Alexander Floris Kriel N.O. and Others

The appellants, Mr and Mrs du Plessis (both over 70 years old, retired and dependent on state pensions), were residing in a house on the farm Uitvlugt pursuant to an oral lease agreement with the previous owner. The property was transferred to the PG Kriel Werkers Trust in 2014, which became the lessor. The appellants fell into rental arrears in early 2017. The Trust served notice in September 2019 requesting the appellants to vacate the house they occupied (which the Trust regarded as a manager's house) and relocate to a smaller house on the same property, as the Trust wished to provide the larger house to their farm manager. The appellants did not respond. The Trust instituted relocation proceedings in January 2020. The appellants opposed the application contending they were long-term occupiers protected by section 8(4) of ESTA. By the time of the hearing, the farm manager who was to occupy the house had left and a new manager had taken up residence in a different house on the property.

• Whether relocation from one house to another on the same property constitutes an eviction under ESTA
• Whether section 8 of ESTA applies to relocations or only to evictions
• Whether the appellants qualified as long-term occupiers protected by section 8(4) of ESTA
• Whether the Magistrate erred in granting a mandatory interdict for relocation
• Whether the appellants could raise new grounds on appeal regarding non-compliance with section 8 of ESTA
• Whether the relocation infringed the appellants' rights under sections 5 and 6 of ESTA

The appeal was dismissed. The date for implementation of the Magistrate's relocation order was substituted to 29 February 2024. No order as to costs was made.

Section 8 of ESTA applies to termination of rights of residence in a particular house on land, even where the right to reside on the land generally is not terminated. Therefore, section 8 protections (including substantive and procedural fairness requirements) apply to relocations within the same property, not only to evictions. This interpretation promotes the spirit, purport and objects of the Bill of Rights and the security of tenure of people whose land rights were eroded by South Africa's past. However, long-term occupiers protected by section 8(4) can still be relocated if suitable alternative accommodation is provided on the same land. The determination of whether an occupier qualifies for section 8(4) protection requires evidence of both the duration of residence (10 years) and financial circumstances over that period.

The Court made important observations about racism in legal proceedings, particularly in the context of ESTA which addresses the ravages of insecure tenure resulting from South Africa's discriminatory past. The Court censured the appellants' suggestion in their affidavit that they could not live among black farm employees due to safety concerns, noting this was unsupported, offensive, and undermining of the dignity of farm workers. The Court emphasized there is no place for racism in legal proceedings and that race-based resistance to efforts to promote racial justice on farms warrants censure. The Court also noted that most persons subject to relocation under ESTA are historically disadvantaged persons, predominantly African, who remain vulnerable - unlike the appellants in this case - and that hard cases should not make bad law affecting all ESTA occupiers.

This judgment addresses the important and contested issue of the scope of ESTA occupiers' rights when subject to relocation within the same property. The majority's interpretation extends section 8 protections to relocations, requiring owners to comply with procedural and substantive fairness requirements before relocating occupiers to different houses on the same land. This provides greater security of tenure to vulnerable rural occupiers who might otherwise be relocated arbitrarily. The judgment also clarifies that long-term occupiers under section 8(4) can still be relocated if suitable alternative accommodation is provided. It demonstrates the court's purposive approach to interpreting ESTA in light of South Africa's history of land dispossession. The judgment also addresses the inappropriate injection of racial considerations into ESTA proceedings.