Cornelius Nel and Others v Joseph Motlabane and Another

The applicants (first and second applicants as farm owners, third applicant as farming operation entity) sought eviction of two respondents from the farm DePan near Randfontein. Both respondents had been occupiers on the farm since 1974 in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA). On 30 April 2003, approximately 30 years after the respondents began residing on the farm, the parties entered into written employment and housing agreements that purported to curtail the respondents' original status as occupiers. These agreements stipulated that the right to reside arose solely from employment and would automatically terminate upon cessation of employment. The applicants alleged that both respondents had voluntarily resigned from employment, which would allow eviction without compliance with the 'just and equitable' requirements under ESTA. The respondents disputed the allegation of voluntary resignation.

• Whether the written agreements of 30 April 2003 validly curtailed the respondents' original status as occupiers under ESTA
• Whether the respondents' right of residence arose solely from their employment agreements as contemplated in section 8(2) of ESTA
• Whether the respondents voluntarily resigned from employment
• Whether the requirements for lawful termination of the right of residence under section 8 of ESTA had been met
• Whether the eviction would be just and equitable

i) The point in limine relating to res judicata raised by the respondents was dismissed; ii) The application for eviction was dismissed; iii) No order was made as to costs.

Proper termination of an occupier's right of residence is a critical threshold requirement for eviction under ESTA. Where an applicant alleges that the right of residence arose solely from an employment agreement and seeks to rely on section 8(2) of ESTA (which permits termination upon resignation or dismissal in accordance with the Labour Relations Act), the applicant must prove on the facts that the occupier voluntarily resigned. Where this material factual allegation is strenuously contested, discrepancies exist in documentation, and the occupier's version is not intrinsically improbable, an eviction order cannot be granted as the requirements of section 8 read with section 9(2)(a) have not been satisfied.

The court observed that the drastic curtailment of the respondents' original status as occupiers through the 2003 agreements was 'surprisingly not challenged notwithstanding section 25 of the Act', suggesting some concern about the validity of such agreements. The court also remarked that dismissal of the eviction application should not be interpreted to mean the respondents are entitled to permanent occupational rights on the farm, and emphasized that both parties should engage in efforts to find the respondents a new home, with assistance from the applicants and particularly from state officials. This reflects the court's recognition of the broader social and housing issues underlying such disputes.

This case illustrates the protective nature of ESTA and the strict requirements for eviction of occupiers. It demonstrates that courts will carefully scrutinize attempts to convert long-standing occupier rights into mere employment-based residence rights, and that applicants must prove all threshold requirements, including proper termination of the right of residence. The case also highlights the importance of section 25 of ESTA, which renders void any waiver of occupier rights unless permitted by the Act or incorporated in a court order, and provides that courts are not bound by agreements that seek to limit occupiers' rights under ESTA.