Nel and Others v Motlabane and Another

The applicants, Cornelius Nel, Christene Eugienie Nel and Avax 215 CC trading as Rusco Dairies, sought the eviction of the respondents, Joseph Motlabane and Booysen Kholisile Mogojo, from the farm DePan near Randfontein under the Extension of Security of Tenure Act 62 of 1997 (ESTA). It was common cause that the first and second applicants owned the farm and that the respondents had resided there since 1974, qualifying them as occupiers under ESTA. In April 2003, the parties entered into written employment and housing agreements which purported to limit the respondents’ rights of residence to the duration of their employment with the third applicant. The applicants contended that these agreements replaced any prior consent and that the respondents’ rights of residence arose solely from employment. The applicants further alleged that the respondents voluntarily resigned, thereby lawfully terminating their right of residence. The respondents disputed that they had resigned, contending that their employment had not lawfully ended.

The application for eviction was dismissed. The respondents’ point in limine relating to res judicata was dismissed. No order as to costs was made.

The case underscores the strict statutory protection afforded to occupiers under ESTA and confirms that proof of lawful termination of the right of residence is a prerequisite for eviction. It illustrates the evidentiary burden on landowners to establish voluntary resignation where reliance is placed on section 8(2) of ESTA, and highlights the court’s reluctance to permit eviction where employment termination is disputed or inadequately proven.