Dreyer & Dreyer CC v Masiteng and Others

The Applicant (Dreyer & Dreyer CC) was the lessee of a farm and sought to evict the First to Fifth Respondents. The First Respondent (Ntweng Johannes Masiteng) arrived on the farm in 1993 with his parents and had been residing there for approximately 30 years. His parents had permission to keep cattle on the farm. The First Respondent was employed by the Applicant as a cattle herder from 2012 and was dismissed in 2019. After his father's death in 2017, he inherited his father's cattle and kept them on the farm. His mother died in September 2020. The relationship between the parties deteriorated following the First Respondent's dismissal and his parents' deaths, with disputes arising over grazing areas and residence rights. The First Respondent resided on the farm with his wife (Third Respondent), children, and other family members. The Applicant argued the First Respondent only had a site at Thembalihle as alternative accommodation, but the site had no house or structure for dwelling. The Magistrate's Court granted an eviction order on 6 January 2025, finding the First Respondent was an occupier under section 8(2) of ESTA and that alternative accommodation was available.

• Whether the First Respondent is an occupier in terms of section 8(2) of the Extension of Security of Tenure Act (ESTA)
• Whether the First to Third Respondents have suitable alternative accommodation
• Whether the constitutional rights of the First to Third Respondents were properly considered
• Whether continued occupation would violate the Applicant's property rights under section 25(1) of the Constitution
• Whether the minor children's constitutional rights, particularly the right to education, were considered
• Whether the First Respondent's right of residence was validly terminated

1. The order of the Magistrate's Court under case number 140/2022 is set aside and replaced with the following order: (a) The application is dismissed. (b) There is no order as to costs. 2. There is no order as to costs.

1. An occupier who has been residing on land since before 4 February 1997 is not subject to section 8(2) of ESTA, even if subsequently employed on the land. 2. A vacant site without a house or dwelling structure does not constitute suitable alternative accommodation for purposes of determining whether an eviction is just and equitable. 3. The termination of an employment contract does not automatically terminate a separate right of residence - the right of residence must be independently and validly terminated in compliance with ESTA requirements. 4. Courts must substantively consider section 9(3) reports, particularly regarding constitutional rights and the impact of eviction on children's right to education, before granting eviction orders. 5. An eviction order that will result in homelessness cannot be just and equitable unless provision has been made for alternative or temporary accommodation. 6. Failure to properly consider a section 9(3) report constitutes a material misdirection warranting appellate interference.

The Court observed that the purpose of the section 9(3) report is not mere formality but to ensure constitutional rights of occupiers are not overlooked. The Court emphasized that courts dealing with eviction proceedings must be hesitant to grant eviction orders where homelessness, particularly of minor children, will result. The Court noted that the spirit of ubuntu combines individual rights with communitarian philosophy and serves as a unifying motif of the Bill of Rights. The Court commented that in eviction cases, courts are called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Court observed that ESTA is remedial legislation with its genesis in the Constitution, designed to protect those without secure tenure who are vulnerable to unfair evictions leading to hardship.

This case is significant in South African land law as it reinforces the protective nature of ESTA and the constitutional requirements for eviction proceedings. It clarifies that: (1) courts must carefully consider section 9(3) reports and cannot ignore their content; (2) a vacant site without a dwelling structure does not constitute suitable alternative accommodation; (3) the right of residence must be separately and properly terminated, not merely assumed to terminate with employment; (4) constitutional rights of occupiers, particularly children's rights to education and housing, must be substantively considered and balanced against landowner rights; (5) the spirit of ubuntu and the constitutional vision of a caring society must inform eviction proceedings; and (6) courts must conduct meaningful enquiries into whether eviction would result in homelessness. The judgment emphasizes that ESTA is remedial legislation rooted in the Constitution, designed to protect vulnerable occupiers from unfair evictions that cause hardship.