JAD Properties Trust v Elias Mathoto Tshabalala and Others

The applicant purchased a farm ('Delta', No 358, District Fouriesburg, Orange Free State) and found the respondents living on the property. The first and fourth respondents had been employed by the previous owner. The applicant offered the first respondent employment at R800 per month and a bag of mealie meal (though the first respondent's version was R700 with negotiation at month end). According to the applicant, the first respondent absconded after working for only 5 days and was employed on the Rand. The applicant then allegedly inquired when the respondents would vacate the premises. The Magistrate of Fouriesburg granted an eviction order on 6 November 2008. This judgment concerns the automatic review of that order under section 19(3) of ESTA.

• Whether the respondents qualified as 'occupiers' under ESTA
• Whether there was compliance with the peremptory requirements of section 9(2)(a) of ESTA regarding notice to occupiers
• Whether there was compliance with section 9(2)(b) of ESTA requiring written notice to vacate
• Whether the termination of the right of residence was properly effected, particularly regarding the fourth respondent whose age was unclear and who may have had protection under section 8(4) of ESTA
• Whether the eviction order was just and equitable having regard to all relevant factors

The eviction order made by the Magistrate Fouriesburg under Case Number 31/2008 was set aside.

An eviction order under ESTA cannot stand where there has been non-compliance with the peremptory requirements of section 9(2)(a) and (b). Section 9(2)(a) requires that before proceedings are instituted, the owner must discuss the relevant circumstances with the occupier. Section 9(2)(b) requires written notice to vacate the land. Oral discussions alone, without proper written notice of termination and notice to vacate, do not satisfy these requirements. Additionally, when determining whether an occupier's right of residence may be terminated, courts must properly consider whether the occupier falls within the enhanced protection provisions of section 8(4) of ESTA (occupiers over 60 or former employees unable to work due to ill health/injury/disability who have resided on the land for 10 years), whose rights of residence may only be terminated in limited circumstances.

The court noted that the respondents' right to receive visitors is dealt with in section 6(2)(a) of ESTA, addressing the applicant's concern about visitors. The court also observed that while the magistrate found all respondents to be occupiers under section 8(1), the fourth respondent's status should have been examined more carefully given that she was a former employee and her age was unclear from the record, potentially bringing her within section 8(4)'s protection. The court commented that the mere reference in the founding affidavit to 'due notice to vacate' having been given, without attaching any written notice of termination, was insufficient.

This case reinforces the strict procedural requirements under ESTA for evicting occupiers from land. It demonstrates that courts will set aside eviction orders on automatic review where there is non-compliance with the peremptory provisions of section 9(2) of ESTA. The judgment emphasizes that proper written notice and compliance with termination procedures are essential, and oral discussions alone are insufficient. It also highlights the need for courts to properly consider the status of all occupiers, particularly those who may qualify for enhanced protection under section 8(4) due to age or disability. The case illustrates the protective nature of ESTA and the court's willingness to scrutinize eviction orders to ensure vulnerable occupiers' rights are safeguarded.