Nimble Investments (Pty) Ltd v Johanna (Elsie) Malan and Others

Nimble Investments (Pty) Ltd, the owner of the farm Topshell Park near Stellenbosch, sought the eviction of Johanna Malan and other family members who had long resided on the farm. Mrs Malan and her late husband had lived on the farm since 1974, initially by virtue of his employment. After his death, Mrs Malan entered into a lease agreement in 2006 to occupy Cottage 1. In 2008 Nimble Investments purchased the farm and later required the land for redevelopment and relocation of a commercial tenant. In 2016 the parties agreed, pursuant to a court order, that the respondents would relocate from Cottage 1 to Cottage 5. During the relocation on 28 November 2016, members of the Malan household removed roof tiles, trusses and other building materials from Cottage 1 and used them to erect an illegal structure near Cottage 5 without the owner’s consent. Despite demands, the materials were not returned. Nimble Investments terminated Mrs Malan’s right of residence on the basis of a fundamental breach of the relationship under s 10(1)(c) of ESTA and applied for eviction. The Magistrate’s Court granted eviction, but the Land Claims Court set it aside on automatic review, finding no fundamental breach and procedural unfairness. Nimble Investments appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the Land Claims Court was set aside and replaced with an eviction order requiring the first to eighth respondents and all those occupying under them to vacate the farm by 31 March 2022, failing which the sheriff was authorised to evict them by 14 April 2022. The Stellenbosch Municipality was ordered to provide emergency housing. No order as to costs was made.

This case clarifies the application of s 10(1)(c) of ESTA by confirming that serious misconduct by a long-term occupier, such as unlawful appropriation of property and erection of illegal structures, can amount to a fundamental breach justifying eviction. It further explains that, in exceptional circumstances, strict compliance with the procedural requirement to invite representations under s 8(1)(e) may not be necessary. The judgment reinforces the balance ESTA seeks to strike between protecting vulnerable occupiers and safeguarding landowners’ rights.