Crookes Brothers Limited and Another v Makhatha and Others

The applicants, Crookes Brothers Limited and Crookes Brothers South Africa (Pty) Ltd, sought to evict the respondents, Mr Thabo Makhatha and Ms Ntombi and their two minor children, from the Remainder of Portion 3 of the Farm Ou Werf No 21. The first respondent had lived on the property since 2000, with his right to reside linked to his employment. He was dismissed for misconduct in March 2014 for selling alcohol from the property. He referred the matter to the CCMA but his notice of referral was defective and his application for condonation was unsuccessful. The second respondent had resided on the property since 2013 and worked on a neighbouring farm, not for the applicants. The applicants gave notice to vacate on 24 May 2017. The eviction application was instituted in November 2019. The first respondent initially sought to oppose but ultimately did not deliver opposing papers or appear at the final hearing. The Magistrate of Caledon granted an eviction order on 15 June 2022. According to the probation officer's report from November 2019, the first respondent was unemployed and the respondents had two minor children (a daughter aged 13 and a son aged 1).

• Whether the eviction order complied with the requirements of section 9 of ESTA
• Whether the second respondent's right of residence was properly terminated in accordance with section 8 of ESTA, given she was an occupier in her own right having resided on the property since 2013
• Whether the Magistrate properly considered the availability of suitable alternative accommodation as required by section 11(3)(c) of ESTA
• Whether the Magistrate adequately considered whether the eviction might result in homelessness, particularly affecting the minor children
• Whether the Magistrate erred in failing to request a report from the Theewaterskloof Municipality as recommended by the probation officer

1. The order of the Magistrate of Caledon of 15 June 2022 is set aside and the application is remitted to the Magistrate's Court. 2. The order of the Magistrate is substituted with an order granting the applicants leave to supplement their founding affidavit in respect of the second respondent to address the issues relating to her status as an independent occupier and termination of her rights under section 8 of ESTA. 3. The Registrar of the Magistrates Court is directed to request the Theewaterskloof Municipality to deliver a report to address the concerns regarding suitable alternative accommodation.

1. An occupier who has resided on land openly for three years is deemed to have done so with the knowledge of the owner or person in charge, and the protections of sections 3(4) and 3(5) of ESTA apply to such occupier. 2. Where an occupier qualifies for protection under sections 3(4) and 3(5) of ESTA, their right of residence cannot be terminated without compliance with section 8 of ESTA, including the requirement to afford them an effective opportunity to make representations before a decision is made to terminate their right of residence (section 8(1)(e)). 3. Before granting an eviction order under ESTA, a court must properly consider the availability of suitable alternative accommodation to the occupiers as required by section 11(3)(c) and whether the eviction might result in homelessness. 4. Where a probation officer recommends that a municipality be involved to assess the availability of temporary shelter, particularly in circumstances where occupiers include unemployed persons and minor children, the court should request such a report from the municipality before determining whether to grant an eviction order. 5. On automatic review under section 19(3) of ESTA, the Land Claims Court has the power to set aside an eviction order and remit the matter to the magistrate's court with appropriate directions where the requirements of ESTA have not been properly complied with.

The judgment notes that the review only reached the Land Claims Court in mid-August 2023 (over a year after the eviction order was granted) and the record was initially incomplete, requiring a query from the Court to secure a complete record. This delay is noted without further comment but suggests concerns about the efficiency of the automatic review process under section 19(3) of ESTA. The Court also observed that given the lapse of time since the initial probation officer's report in November 2019, an updated probation officer's report would be necessary if the matter proceeds, along with the municipal report. The Court declined to make further specific directions regarding the conduct of the matter beyond those specified, leaving this to the parties and the Magistrate, noting that the respondents comprise a family unit.

This case reinforces the procedural safeguards required under ESTA before an eviction order can be granted. It emphasizes that: (1) courts must properly identify and distinguish between different categories of occupiers and ensure their rights are terminated in accordance with the appropriate provisions of section 8 of ESTA; (2) the protections of sections 3(4) and 3(5) apply to persons who have openly resided on land for three years, deeming them to have done so with the knowledge of the owner; (3) such occupiers are entitled to a fair procedure including a hearing before their right of residence is terminated; (4) courts must properly consider the availability of suitable alternative accommodation and the risk of homelessness when granting eviction orders; (5) recommendations by probation officers, particularly regarding municipal involvement to assess temporary shelter options, should be taken seriously and acted upon; and (6) the interests of children, including their access to education, must be properly considered in eviction proceedings. The case demonstrates the importance of balancing the rights of landowners with the protections afforded to vulnerable occupiers under ESTA.