Aquarius Platinum (South Africa) (Pty) Ltd v Bonene Sebajoa and Others

The appellant, Aquarius Platinum, contracted Murray & Roberts Cementation (Pty) Ltd (MRC) to perform mining operations. The occupiers (1st to 167th respondents) were MRC employees who resided in hostels on the farm. During 2009, the occupiers participated in an unprotected strike and were dismissed. The appellant obtained an eviction order from the High Court on 8 September 2009, and the occupiers were evicted. However, the Land Claims Court (LCC) successfully challenged this eviction on 20 September 2009, ordering restoration of the occupiers' rights of residence under ESTA. The occupiers resumed residence in reconstructed hostels. In 2012, the appellant became their employer through section 197 of the LRA. Labour litigation continued, with employment termination finalized between 2014-2016 for different groups of occupiers. The appellant served section 9(2)(d)(i) ESTA eviction notices on 24-25 February 2015 and 3 June 2016, some before final employment termination, and launched the eviction application on 20 September 2016. Critically, the appellant never served notices terminating the occupiers' rights of residence under section 8 of ESTA.

• Whether termination of employment automatically terminates an occupier's right of residence under ESTA
• Whether compliance with section 8 of ESTA (termination of right of residence) is a prerequisite for an eviction order under section 9
• Whether a two-stage procedure is required under ESTA before an eviction order may be granted
• Whether the appellant's failure to allege and prove termination of the right of residence was fatal to its eviction application

The appeal was dismissed with costs.

ESTA requires compliance with two consecutive procedural stages before an eviction order may be granted: (1) termination of the occupier's right of residence in terms of section 8, which must be on lawful ground and just and equitable, and communicated to the occupier; and (2) service of not less than two months' written notice of intention to obtain an eviction order in terms of section 9(2)(d) after termination of the right of residence. Termination of employment does not automatically terminate an occupier's right of residence under ESTA. Section 8(2) confers discretion on the owner ("may be terminated"), and a separate, specific notice terminating the right of residence is required. Failure to allege and prove termination of the right of residence in compliance with section 8 is fatal to an eviction application, even where employment has been lawfully terminated. Section 8 must be read with section 9, and both substantive (just and equitable grounds) and procedural fairness requirements must be satisfied.

The Court noted that section 8(1) requires termination of a right of residence to be just and equitable both at a substantive level (captured by the introductory requirement) and at a procedural level (captured in section 8(1)(e) requiring an effective opportunity for the occupier to make representations before termination). The Court observed that while ESTA places limitations on eviction remedies, it does not limit other remedies such as delictual claims for patrimonial loss caused by unlawful occupation. The Court also commented on the context and purpose of ESTA being the protection of rights of residence of vulnerable persons. The Court noted that in respect of some occupiers, eviction notices under section 9(2)(d)(i) were served even before their employment was finally terminated, highlighting the procedural irregularities in the appellant's approach.

This case authoritatively confirms the two-stage procedural requirement under ESTA for eviction of occupiers. It establishes that termination of employment does not automatically terminate rights of residence under ESTA, and that landowners must comply with the specific procedural requirements of section 8 (termination of right of residence) before seeking eviction under section 9. The judgment reinforces the protective purpose of ESTA for vulnerable occupiers and ensures that their security of tenure cannot be circumvented by conflating employment termination with termination of residence rights. It provides important clarity on the interpretation of sections 8 and 9 of ESTA, building on prior jurisprudence from Mkangeli v Joubert, Sterklewies v Msimanga, and the Constitutional Court's decision in Snyders v De Jager. The case emphasizes both substantive and procedural fairness requirements in terminating rights of residence.