Goedverwachting Farm (Pty) Ltd v Roux and Others

Goedverwachting Farm (Pty) Ltd purchased portion 17 of the farm Goedverwachting in June 2021 from Barend Frederik Keet. Mr Roux and associated occupiers had been residing on the property since 2017, initially with consent from the previous owner Keet. The consent was granted on condition that Deneys Swiss Dairy (Pty) Ltd would purchase the property and run a dairy business. However, Deneys breached the purchase agreement and the sale was cancelled. Notices of termination of consent were served on Mr Roux in 2017 and 2019, but he refused to vacate. The property was then sold to Goedverwachting, which purchased it for cattle farming purposes. Deneys went into voluntary liquidation in November 2020 and ceased operations by December 2019. Goedverwachting launched an eviction application in September 2022 under ESTA, claiming the respondents were unlawful occupiers. The respondents defended on the basis of aboriginal title as members of the Gona-Hesse !Khwe Royal Kingdom, claiming indigenous ownership. They also alleged they had purchased the farm from Keet. A probation officer's report indicated Mr Roux farmed with 200 pigs and 18 cattle.

• Whether the respondents were 'occupiers' as defined in section 1 of ESTA
• Whether commercial farming was being conducted on the land at the time eviction was sought
• Whether the exclusion under section 1(b) of ESTA applied - namely whether the land was used mainly for commercial farming purposes
• Whether, if commercial farming occurred, the inclusionary exception applied - whether Mr Roux worked the land himself and employed only family members
• The proper role and evidentiary status of probation officer reports under section 9 of ESTA
• Whether a court may make factual findings on matters not raised in the pleadings based on a probation report
• Whether the eviction was just and equitable in terms of sections 11(2) and 11(3) of ESTA

1. The appeal was upheld. 2. The order of the Land Claims Court was set aside and substituted with an order that: (a) the first and second respondents are to be evicted from portion 17 of the farm Goedverwachting, number 442, Registration Division IR, Gauteng Province on or before 31 July 2024; (b) the Sheriff of the Court, together with the assistance of the South African Police Services if necessary, is authorized to execute eviction proceedings if the respondents fail to vacate by 1 August 2024. 3. No order as to costs.

1. Probation officer reports prepared under section 9 of ESTA are not evidence before the court as they are not made under oath. They serve a procedural purpose to provide information to enable courts to comply with constitutional obligations under section 26(3) of the Constitution when considering whether an eviction is just and equitable. 2. The purpose of probation reports is limited to assisting courts in determining matters such as availability of alternative accommodation, impact on constitutional rights including children's education, and undue hardship, as prescribed by section 9(3) of ESTA. 3. Probation reports cannot be used to establish jurisdictional facts or to usurp the court's discretion on substantive legal issues. 4. Courts must confine themselves to adjudicating issues properly raised and defined by the parties in their pleadings. It is impermissible for a court to make factual findings on matters not in dispute between the parties and not pleaded, particularly without hearing the parties on such issues. 5. To fall within the exclusion from 'occupier' status under section 1(b) of ESTA for using land mainly for commercial farming purposes, there must be evidence that such commercial farming was actually being conducted at the relevant time. 6. The requirements for a just and equitable eviction under section 11 of ESTA include consideration of the length of occupation, reasons for eviction, availability of alternative accommodation, and the balance of interests between owner and occupier.

The Court made several obiter observations: 1. While land claims typically involve vulnerable persons and costs orders are exceptional, ongoing unlawful occupation without rental payment alone does not constitute an exceptional circumstance warranting a costs order. 2. The Court noted that if a commercial farming enterprise were genuinely operating, one would expect financial information to be provided as evidence. 3. Where respondents have resided on property for a number of years, it is just and equitable to grant them a reasonable period (in this case, two months) to vacate rather than ordering immediate eviction, even where immediate eviction is technically permissible. 4. The Court observed that aerial photographs taken by drone and helicopter (necessitated by respondents refusing property access) did not reflect any functioning commercial enterprise but rather showed a decrepit farmhouse with animals freely roaming. 5. The Court noted inconsistencies and factual inaccuracies in the probation report itself, including regarding the duration of tenancy, identity of occupants, and the respondent's receipt of a state pension (which would be anomalous if the farm were truly a functioning commercial enterprise).

This case clarifies the proper role and evidentiary status of probation officer reports under ESTA. It establishes that such reports are procedural mechanisms to assist courts in complying with section 26(3) of the Constitution regarding the justness and equitableness of evictions - they are not evidence and cannot be used to establish jurisdictional facts or substantive legal issues. The judgment reinforces fundamental principles of civil procedure that courts must determine only those issues properly raised and defined by parties in their pleadings, and cannot sua sponte create factual disputes. The case provides important guidance on the interpretation of the definition of 'occupier' under ESTA, particularly the exclusion for commercial farming in section 1(b), emphasizing that the burden lies on respondents to raise and prove such exclusions. It also demonstrates the application of the test for whether an eviction is just and equitable under sections 11(2) and 11(3) of ESTA for post-1997 occupiers.