Barend Jakobus Du Randt v Keke Khaka and Others

The applicant, Du Randt, is the owner of the farm Marinus 1043 District Elliot, Eastern Cape Province. The first respondent occupied the property since 1980 when he was employed by the applicant's late father. The third to seventh respondents are children and grandchildren of the first respondent residing on the property through family relationship. The first respondent was retrenched from employment in September 2003. The applicant alleged the respondents became illegal occupiers and contravened section 6(3) of ESTA by causing harm to persons, material damage to property, threatening other occupiers, and allowing unauthorized persons to erect structures. The respondents denied these allegations and claimed the retrenchment did not comply with section 189 of the Labour Relations Act. The parties reached a settlement agreement whereby the applicant undertook to build an alternative house for the respondents in exchange for their agreement to vacate the property, and to provide transport on the appointed date of vacation. The Magistrate's Court made the settlement agreement an order of court, which was then referred to the Land Claims Court for automatic review under section 19(3) of ESTA.

• Whether the settlement agreement satisfies the requirements to be made an order of court as established in Eke v Parsons
• Whether the settlement agreement relates to an issue in dispute between the parties
• Whether the settlement agreement accords with the Constitution, the law, and public policy
• Whether the settlement agreement holds some practical and legitimate advantage
• Whether the consent of the occupiers to the eviction was properly obtained
• Whether the settlement agreement complies with section 12(1)(a) and (b) of ESTA regarding the date for eviction

1. The settlement agreement and the order of the Magistrate's Court granted on 6 August 2015 are confirmed, subject to variation. 2. In the event that the respondents do not vacate the land, the Sheriff is hereby authorised to effect their eviction within 7 days of the lapse of the period referred to in clauses 2.3 and 8 of the settlement agreement.

A settlement agreement in an eviction matter under ESTA must satisfy three requirements to be made an order of court: (1) it must relate to an issue in dispute between the parties; (2) it must accord with both the Constitution and the law and not be at odds with public policy; and (3) it must hold some practical and legitimate advantage. Courts must conduct a qualitative examination of settlement agreements because: (1) courts are the ultimate custodians of the rule of law; (2) once made an order of court, an agreement becomes an enforceable instrument with consequences such as execution or contempt; and (3) the order becomes res judicata, incapable of reconsideration. In eviction matters under ESTA, consent to eviction must be properly obtained, with the occupiers legally represented and affirming their consent. Where a landowner assumes responsibility for providing alternative accommodation at their own expense and the occupiers' right of residence remains undisturbed during construction, a settlement agreement for eviction by consent is not contrary to public policy or the Constitution. Courts reviewing eviction orders under section 19(3) of ESTA have the power to vary orders to ensure compliance with section 12(1) regarding the specification of dates for eviction and when eviction may be carried out.

The court made several non-binding observations: (1) While a court must not be mechanical in its approach to examining settlement agreements, it should not be a rubber stamp. (2) The court noted it was not necessary to consider whether the applicant had proven the case for eviction, as it was sufficient that the founding affidavit contained averments which, if proven, would constitute justification for eviction. (3) The court observed that practical difficulties might arise in implementation, including that the site for the new property had not been identified and no mechanism was built into the agreement to resolve disputes regarding whether the property satisfied the agreed specifications. The court noted it was foreseeable that occupiers might refuse to vacate if they believed the property fell short of agreed standards. (4) The court stated these reservations were not sufficiently weighty to prevent the agreement from being made an order of court. (5) The court presumed that both parties knew and understood the location and availability of the site for the new property despite it not being identified in the agreement.

This case demonstrates the application of the constitutional principles established in Eke v Parsons regarding settlement agreements in eviction matters under ESTA. It confirms that courts must conduct a qualitative examination of settlement agreements presented for approval, even in cases of mutual consent, to ensure compliance with the rule of law, the Constitution, and public policy. The case illustrates how courts balance the interests of landowners and occupiers under ESTA, particularly where a landowner assumes responsibility for providing alternative accommodation rather than shifting that burden to the state. It also demonstrates the court's supervisory role in automatic reviews under section 19(3) of ESTA, including the power to vary orders to ensure compliance with statutory requirements such as section 12(1) regarding dates for eviction.