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

The appellants (AJB Trust and AJ Behrens) initiated eviction applications in the Magistrate's Court Rustenburg against six occupiers on their farm, including the two respondents. Solomon Sello Boiyane (LCC102/2011) started residing on the property in 1988 through his father, occupying a house allocated to his father. He only took up employment with the appellants in August 2002 and resigned in June 2008. Johannes Segone (LCC103/2011) was employed by the appellants from 13 August 2001 until 31 July 2008 when he was retrenched. The Magistrate granted eviction orders against four other respondents but dismissed the applications against Boiyane and Segone. The appellants appealed to the Land Claims Court.

• Whether the appellants complied with section 8 of the Extension of Security of Tenure Act 62 of 1997 regarding termination of right of residence
• Whether the appellants complied with section 9 of the Act regarding requirements for eviction orders
• Whether the right of residence arose solely from the employment contract
• Whether service of the section 9(2)(d) notice was valid
• Whether a probation officer's report under section 9(3) is mandatory for eviction proceedings
• Whether the appellants had locus standi to bring the eviction applications

Appeal LCC102/2011 dismissed. Appeal LCC103/2011 granted. Johannes Segone ordered to vacate the premises by 30 April 2012, failing which the sheriff is authorized to evict him on 2 May 2012 or thereafter. No order as to costs.

An occupier's right of residence can only be terminated automatically upon resignation or dismissal under section 8(2) of ESTA if that right arose solely from the employment agreement. Where residence predates employment or arises from independent grounds, section 8(2) does not apply and formal termination of the right of residence is required before eviction proceedings can succeed under section 9(2)(a). Service of the section 9(2)(d) notice may be effected in accordance with Regulation 9(4) by leaving a copy with a person apparently over 16 years at the occupier's residence in two official languages where personal service is not possible, and such service constitutes valid compliance with the statutory notice requirements.

The court noted that the section 9(3) probation officer's report is important particularly in cases involving families, as it enables the magistrate to assess availability of alternative accommodation, impact on constitutional rights including children's education, and undue hardship. However, where occupiers themselves have not raised these issues or placed evidence of their personal circumstances on record, the absence of such a report may not be fatal to the proceedings. The court also observed that issues conceded in the court a quo should not be raised for the first time on appeal absent a showing of misdirection by the presiding officer.

This case clarifies important procedural requirements under the Extension of Security of Tenure Act 62 of 1997 (ESTA). It establishes that where an occupier's residence predates their employment and arises independently of the employment contract, section 8(2) does not apply and a formal termination of right of residence is required before eviction can be sought. The case also confirms that while a probation officer's report under section 9(3) is generally required, its absence may not be fatal where occupiers have not placed evidence of their circumstances before the court. The judgment provides guidance on substitute service under Regulation 9(4), confirming that service on a person apparently over 16 at the occupier's residence in two official languages satisfies the statutory requirements where personal service is not possible.