Crookes Brothers Limited and Another v Mkololo and Others

The First Applicant (Crookes Brothers Limited) employed the First Respondent (Mr Mkololo) from January 2010, with accommodation provided on Ou Werf Farm near Caledon as part of the employment relationship. The Second Respondent (Ms O'Reiley) resided with Mr Mkololo as his partner. In February 2014, police discovered 62.25 litres of beer in Mr Mkololo's home during a raid. He was charged with trafficking in alcohol and paid an admission of guilt fine of R5000. Following a disciplinary enquiry on 18 February 2014, Mr Mkololo was dismissed on 10 March 2014 for selling alcohol from his room, with a notice requiring him to vacate within one month. Despite this, the Applicants did not bring eviction proceedings until October 2019, after sending various notices in May 2015, August 2016 (to Mr Mkololo), and May 2017 (to Ms O'Reiley). Ms O'Reiley and Mr Mkololo have two children together (Lumkani, 17, with a heart condition, and Olwethu, 14) and Ms O'Reiley has a daughter from another relationship (Nolubabalo, 21, with two minor children). The eviction application was unopposed as the Respondents were not referred to lawyers. A section 9(3) ESTA report in October 2020 recommended postponing eviction until the end of the school year. The Magistrate granted the eviction order on 15 June 2022, set for execution on 15 December 2022. By the time of the automatic review, Mr Mkololo was living in a shack in Worcester for work, and Ms O'Reiley in Grabouw, while their children remained on the farm.

• Whether the landowner properly terminated the occupier's right of residence separately from terminating the employment relationship
• Whether occupiers must be afforded an opportunity to make representations before their right of residence is terminated
• Whether the right of residence of a partner of an employee terminates automatically upon termination of the employee's employment
• Whether persons who have moved elsewhere but maintain children on the property still 'reside' on the land for purposes of ESTA
• Whether the eviction order was just and equitable in the circumstances

1. The eviction order granted by the Magistrate is reviewed and set aside. 2. There is no order as to costs.

The binding legal principle is that under ESTA, termination of employment does not automatically terminate a right of residence that was granted in connection with that employment. A landowner must take a separate, considered decision to terminate the right of residence. Before making such a decision, the landowner should ordinarily afford the occupier an opportunity to make representations on whether the right should be terminated, as required by section 8(1)(e) of ESTA which lists the fairness of procedure as a factor in determining whether termination is just and equitable. Where a landowner has wrongly assumed automatic termination and merely repeated that position in subsequent notices without genuinely inviting representations or reconsidering the decision, there has been no valid separate decision to terminate the right of residence. Further, where an occupier's right of residence flows from their relationship with an employee, the landowner must make a separate determination about that occupier's right of residence; it does not automatically terminate when the employee's right terminates. An eviction application is premature if brought before the right of residence has been properly terminated.

The court made several non-binding observations: (1) The significant delays throughout the proceedings (5+ years from dismissal to eviction application, nearly 3 years for automatic review) were unsatisfactory and contrary to the spirit of Rule 35A which contemplates a speedy review process. (2) The court noted it is 'always difficult to assess applications where only one side of the story is presented' and that 'where the result is a potential eviction this Court should always take steps to obtain legal representation for occupiers' as 'without, the risk of accidental injustice rises exponentially.' (3) The court observed that it remained 'an open question' whether Mr Mkololo and Ms O'Reiley still 'reside' permanently on Ou Werf given they now live and work elsewhere, noting that 'reside' under ESTA means 'to live at a place permanently' and requires it to be one's 'permanent home'. (4) The court emphasized that its decision does not grant the Respondents a permanent right of residence, only that the eviction application was premature, and that 'it remains open to the Applicants to take whatever steps they deem appropriate, including terminating any existing rights of residence, and bringing any new applications for eviction.' (5) While Mr Mkololo and Ms O'Reiley may no longer be occupiers, their children and grandchildren who permanently reside on the farm may well be, though this would require separate determination.

This case reinforces critical procedural protections under ESTA for farm occupiers facing eviction. It emphasizes that landowners cannot assume that termination of employment automatically terminates a right of residence - a separate decision with proper consideration is required. The judgment clarifies that occupiers should ordinarily be given a meaningful opportunity to make representations before their right of residence is terminated (per section 8(1)(e) of ESTA), and that this opportunity must be genuine, not merely formal. The case extends the principles in Snyders and Klaase by clarifying that partners and family members of employees have independent rights that must be separately considered. It also demonstrates the Land Court's active case management powers under Rule 35A(2) in automatic reviews, including obtaining updated information and securing legal representation for unrepresented occupiers to prevent injustice. The judgment highlights the importance of timely processing of ESTA evictions, as delays can render factual circumstances outdated and complicate proper adjudication. It provides guidance on the meaning of 'reside' under ESTA, noting it requires a permanent home rather than temporary accommodation for work purposes.