Molusi and Others v Voges N.O. and Others

The applicants were long-term occupiers of residential dwellings on Boschfontein farm near Rustenburg, occupying in terms of written and oral lease agreements with the Voges Family Trust. They qualified as ‘occupiers’ under the Extension of Security of Tenure Act 62 of 1997 (ESTA). In May 2009 the respondents served uniform notices purporting to terminate the applicants’ rights of residence on the basis of alleged non-payment of rent and gave two months’ notice to vacate. The applicants disputed both the alleged breach and receipt of the notices, contending that rental had been tendered and refused. When eviction proceedings were instituted in the Land Claims Court, the respondents shifted their case: from breach of lease for non-payment, to a need to develop the land, and ultimately to reliance on a common-law right to terminate a periodic lease on reasonable notice. The Land Claims Court granted eviction, finding compliance with ESTA, and this was upheld by the Supreme Court of Appeal. The applicants sought leave to appeal to the Constitutional Court.

Leave to appeal was granted; condonation for late filing was granted; the appeal was upheld; the orders of the Land Claims Court and the Supreme Court of Appeal were set aside; and the eviction application was dismissed.

The case is a leading authority on the relationship between ESTA and the common law. It affirms that landowners must strictly comply with ESTA when terminating occupiers’ rights of residence and cannot rely on shifting or alternative common-law grounds not fairly raised in the termination notice. The judgment strengthens procedural fairness protections for vulnerable occupiers and reinforces section 26(3) of the Constitution against arbitrary evictions.