AJB Trust and AJ Behrens v Solomon Sello Boiyane and Johannes Segone

The appellants, AJB Trust and AJ Behrens, instituted eviction proceedings under the Extension of Security of Tenure Act 62 of 1997 (ESTA) against several occupiers residing on their farm in the Rustenburg district. Two occupiers, Solomon Sello Boiyane and Johannes Segone, successfully resisted eviction in the Magistrate’s Court, leading to these appeals. Boiyane had lived on the property since 1988 through his father and later became employed by the appellants in 2002, resigning in 2008. Segone had been employed since 2001 and was retrenched in 2008. The Magistrate dismissed the eviction applications on the basis of non-compliance with ESTA requirements, including termination of the right of residence and service of statutory notices.

Appeal LCC102/2011 (Boiyane) was dismissed. Appeal LCC103/2011 (Segone) was upheld. Segone was ordered to vacate the premises by 30 April 2012, failing which the sheriff was authorised to evict him from 2 May 2012. No order as to costs.

The judgment clarifies the application of ESTA in eviction proceedings, particularly the distinction between occupiers whose right of residence arises solely from employment and those with independent residence rights. It also affirms that non‑personal service of eviction notices may be valid if Regulation 9(4) is complied with, and that absence of a section 9(3) probation officer’s report is not automatically fatal where reasonable steps were taken to obtain it.