Jacobus Abraham Pepler N.O. and Others v Sophie Lombaard and Others

The Kotie Pepler Children's Trust (fourth applicant), through its trustees (first to third applicants), applied to evict the Lombaard family (first to fifth respondents) from property known as 'In die Wingerd' farm near Somerset West and Stellenbosch, Western Cape. The respondents commenced residing on the property in the mid-2000s when the now deceased Mr David May was employed as a gardener by the Trust. The family consisted of Mrs Sophie Lombaard (first respondent), her three adult children (second to fourth respondents), and minor grandchildren. Mrs Lombaard was employed on the property as a helper, cook and childminder from 2007 to 2017, and was dismissed in early 2018 in disputed circumstances. Written lease agreements were concluded in March 2013, terminating in April 2014 and continuing month-to-month thereafter. After Mrs Lombaard's dismissal, she made no payments, but the adult children consistently paid approximately R3,800 per month. The Trust formally terminated the respondents' occupation rights on 17 September 2019 after extended engagement. The property has several buildings including a Wellness Centre, 10 cottages leased to tenants, and generates income for the Trust. Cottage No 7, occupied by the respondents, could generate over R8,000 per month at market rental.

• Whether the occupiers' rights of residence were terminated in accordance with section 8 of ESTA
• Whether the termination of occupation rights was just and equitable having regard to the factors in section 8(1) of ESTA
• Whether the conditions for an order for eviction in terms of section 11 of ESTA were complied with
• Whether it was just and equitable to grant an eviction order having regard to the factors in section 11(3) of ESTA
• Whether suitable alternative accommodation was available to the occupiers
• What would be a just and equitable date for vacation and eviction in terms of section 12 of ESTA

The Court ordered: (1) The first to fifth respondents to vacate Cottage 7 (including 7A and B) on or before 30 June 2024; (2) Should the respondents fail to vacate, the sheriff is authorized to evict them on 15 July 2024; (3) No order as to costs.

The binding legal principles established are: (1) Under section 8 of ESTA, termination of occupation rights is just and equitable where the landowner has made extended efforts to formalize tenure arrangements on reasonable terms, provided opportunities for representations, offered assistance with relocation, and the occupiers have refused to engage constructively or accept reasonable alternatives, even where occupiers face greater hardship than the landowner. (2) Under section 11 of ESTA, an eviction order may be just and equitable even after a long period of residence where: (a) occupiers have earning capacity and disposable income to access private rental accommodation; (b) suitable alternative accommodation is available in the private rental market in reasonable proximity to employment and schools; (c) emergency municipal housing is available as a safety net; and (d) the landowner cannot reasonably be expected to accommodate occupiers indefinitely without formal arrangements or rental payments. (3) Under section 12 of ESTA, a just and equitable date for vacation must afford adequate time to secure alternative accommodation without undue disruption to employment or children's education, taking into account the need to protect occupiers' dignity and enable smooth transition. (4) Courts will apply Plascon Evans principles to resolve factual disputes in ESTA motion proceedings, and parties who fail to engage seriously with opposing versions or provide complete information about income and circumstances will not be favored on disputed issues.

The Court made several observations: (1) The case serves as a reminder that the road to land justice and achieving equality in South Africa remains long, particularly given the historical relationship of service by landless to landed people rooted in South Africa's colonial and apartheid past; (2) Landlessness exacerbates the vulnerable position of domestic workers and farm workers, referencing the Constitutional Court's analysis in Mahlangu v Minister of Labour; (3) This case "cried out for effective mediation" which, if pursued at an earlier stage, may well have resulted in amicable resolution; (4) Parties to ESTA proceedings must cooperate fully with State functionaries preparing section 9(3) reports to enable the Court to perform its constitutional and statutory functions; (5) The failure of occupiers to provide complete and accurate information about income and circumstances limits the value of probation officer and municipal reports; (6) The Court costs jurisdiction in ESTA matters is exercised restrictively - costs are only ordered in special circumstances.

This judgment provides guidance on the application of ESTA's termination and eviction provisions in cases involving former employees and their families who transitioned to lease-based occupation. It demonstrates the Court's approach to balancing property rights of landowners against security of tenure rights of occupiers in circumstances where the property has been repurposed for income generation. The case illustrates the detailed consideration required of all relevant factors under sections 8, 11 and 12 of ESTA, including the assessment of suitable alternative accommodation in contexts where occupiers have some financial means but face challenges accessing the property market. The judgment emphasizes the importance of procedural fairness in termination processes and the need for parties to cooperate fully with State functionaries preparing probation officer and municipal reports. It also highlights the value of mediation in ESTA disputes and the Court's discretion to afford adequate time for orderly relocation to protect dignity and minimize disruption to employment and education.