First Realty (Krugersdorp) (Pty) Ltd v Gertjie Mitchell and Others

First Realty (Krugersdorp) (Pty) Ltd ('the Applicant') purchased the farm Hammansdans in Wellington, Western Cape in 2011. The 1st to 26th Respondents resided on the farm in seven cottages. The occupiers consisted of employees or former employees of the Applicant, their spouses, adult children, and minor children. The Applicant sought to evict all respondents on the basis that adult non-dependent children of employees were residing on the property in breach of the housing policy and employment agreements. The Applicant alleged the right to occupy was limited to employees, their spouses, and minor/dependent children only. Between 2012 and 2018, the Applicant held several meetings with employees and their spouses, issued various notices, and prepared written housing agreements to enforce this limitation. The Applicant claimed the adult non-dependent children occupied through their parents and had no independent right of residence. No adult non-dependent children were invited to make representations. The Applicant sought eviction under sections 10 and 11 of ESTA. The Respondents counterclaimed alleging the Applicant failed to comply with constitutional and statutory obligations, failed to engage meaningfully, and that the limitation on adult children was unreasonable and unjustifiable.

• Whether the Applicant complied with section 8(1) of ESTA regarding termination of occupiers' rights of residence
• Whether adult non-dependent children are occupiers in their own right under ESTA or occupy through their parents
• Whether the adult non-dependent children were granted an effective opportunity to make representations before termination of their right of residence as required by section 8(1)(e) of ESTA
• Whether the Applicant complied with the procedural requirements of sections 9, 10, and 11 of ESTA
• Whether the housing agreement limiting occupation to spouses and minor/dependent children only is fair and enforceable against adult non-dependent children who are independent occupiers
• Whether the special protections for occupiers over 60 years old under section 8(4) of ESTA were considered
• Whether the application to strike out certain paragraphs in the affidavits should be granted

1. The application for eviction is dismissed. 2. The application to strike out is dismissed. 3. No order for costs is made in line with the usual practice of the Land Claims Court.

Adult children who have resided openly and continuously on land for one year are independent occupiers in their own right under section 3(4) of ESTA, presumed to have consent to occupy. They are not mere derivative occupiers who occupy 'through' their parents. Each occupier, including adult children, must be afforded an effective opportunity to make representations before termination of their right of residence, as required by section 8(1)(e) of ESTA. This procedural protection cannot be satisfied by engaging only with their parents. An applicant in eviction proceedings must make out its case for termination of residence in the founding affidavit itself. A failure to properly allege termination in the founding affidavit cannot be cured by references in annexures or supplementary affidavits filed later. Terms of a housing agreement entered into only by parents cannot bind adult children who are independent occupiers with their own rights under ESTA. An applicant must comply with all procedural requirements of ESTA, including proper termination under section 8, and must distinguish between section 10 and section 11 occupiers and meet the specific eviction requirements for each category.

The Court noted that the Applicant's detailed accounts of multiple meetings and engagements were undermined by the fact that adult non-dependent children were largely excluded from these processes. The Court observed that the Applicant's approach of treating all occupiers as a homogenous group, without distinguishing between section 10 and section 11 occupiers or between different categories of occupiers, reflected a 'one-size-fits-all' approach that is impermissible under ESTA. The Court commented that because the eviction application failed on procedural grounds under section 9(2) of ESTA, it was not necessary to consider the counterclaim or the merits of the declaratory relief sought by the Respondents. The Court noted with concern that the Sheriff's return of service indicated that the 3rd and 4th Respondents had already vacated the property, yet the Applicant continued to seek their eviction. The Court also noted that notices of termination were not properly served on the 7th and 8th Respondents according to the Sheriff's return. The judgment reinforces the principle from Swissborough Diamond Mines that parties cannot merely annex documentation to affidavits and request the court to have regard to it without identifying the portions relied upon and indicating the case sought to be made.

This case establishes important principles regarding the protection of occupiers under ESTA, particularly concerning: (1) The independence of adult children as occupiers in their own right under section 3(4) of ESTA, not merely as persons occupying 'through' their parents. (2) The strict requirement that each occupier must be afforded an opportunity to make representations before termination of their right of residence, as required by section 8(1)(e). This procedural protection cannot be satisfied by engaging only with parents. (3) The principle that an applicant must make out its case for termination of residence in the founding affidavit itself, not merely in annexures or supplementary affidavits filed later. (4) The requirement to properly distinguish between section 10 and section 11 occupiers and meet the specific eviction requirements for each category. (5) The special protection afforded to elderly occupiers (over 60 years) under section 8(4) of ESTA. The case reinforces that ESTA's procedural requirements must be strictly complied with as they give effect to constitutional protections against arbitrary eviction under section 26(3) of the Constitution. It also demonstrates the courts' protective approach toward vulnerable occupiers, particularly in the context of farm evictions.