John Mathe and Others v Lanseria Commercial Crossing (Pty) Ltd and Others

Nine applicants lived in a house on farm 535 Nietgedacht in Lanseria. The second applicant, Frans Kamela, had entered into a lease agreement with the previous owner in 1989 for monthly rent of R1,800, with permission to recruit co-tenants. All applicants took up residence between 1989 and 1993, each occupying rooms and contributing R300 monthly toward rent and electricity. After the original owner (Komkom) left in 1996, rent was paid to successive collectors until 2008, when no one came to collect. A separate informal settlement known as the Mzala settlement with about 600 families developed on another portion of the farm. The first respondent, Lanseria Commercial Crossing (Pty) Ltd, acquired ownership and in 2009 brought eviction proceedings (LCC 31/2009) against 'unlawful occupiers'. A settlement agreement was reached on 3 June 2010 to relocate the Mzala settlement residents to Lion Park, with only one applicant (John Mathe) listed as a long-term ESTA occupier. On 1 October 2010, the Sheriff executed a warrant of eviction and demolished the applicants' house, except for one room left for the first applicant. The applicants claimed they were ESTA occupiers unlawfully evicted without proper court orders.

• Whether the applicants were 'occupiers' as defined in section 1 of the Extension of Security of Tenure Act 62 of 1997 (ESTA)
• Whether the applicants were bound by the settlement agreement made an order of court on 3 June 2010 in case LCC 31/2009
• Whether the eviction of the applicants on 1 October 2010 was lawful
• Whether the Land Claims Court has jurisdiction to declare unlawful an eviction of persons who do not qualify as ESTA occupiers due to income exceeding the prescribed threshold but whose eviction would otherwise breach section 26(3) of the Constitution
• Whether applicants earning more than R5,000 per month are excluded from ESTA protection

The court declared the eviction of all applicants on 1 October 2010 unlawful. All respondents were ordered to immediately enter into bona fide negotiations with the applicants who were found to be ESTA occupiers regarding alternative accommodation. The MEC for Housing of the City of Johannesburg was ordered to file a written report within 60 days on the outcome of negotiations. If no solution was found within 60 days, the ESTA occupiers could apply for an order requiring respondents to provide alternative accommodation. The first respondent was ordered to pay the applicants' costs, including costs of the interim relief application.

An eviction of occupiers from agricultural land without a court order granted after considering all relevant circumstances is unlawful and unconstitutional, whether the occupiers are protected by ESTA or by section 26(3) of the Constitution read with PIE. The Land Claims Court has jurisdiction to declare such evictions unlawful even in respect of occupiers who do not qualify under ESTA's income threshold, where the dispute arises from legislation within the court's jurisdiction and the eviction was purportedly authorized by an order of the Land Claims Court. A settlement agreement made an order of court does not authorize eviction of persons who were not represented in the settlement negotiations and to whom the agreement was not intended to apply. To qualify as an ESTA occupier, a person must reside on land as defined with consent as defined, and earn less than the prescribed income threshold (R5,000 per month as of the regulations in 1998). The court cannot exercise discretion to disregard the statutory income threshold even where it may produce unfair results for long-term occupiers whose income has increased beyond the threshold due to inflation and the Minister's failure to adjust it.

The court made several important observations: (1) Parliament likely intended the income threshold in ESTA to be regularly reviewed, otherwise it would have been set in the Act rather than by ministerial regulation. The failure to adjust the R5,000 threshold since 1998 creates unfairness for long-term occupiers. (2) The jurisdictional division between the Land Claims Court (for ESTA) and High Court (for PIE) creates an untenable situation requiring legislative rectification. A landowner wanting to evict both ESTA and PIE occupiers must institute separate proceedings in different courts, and a landowner uncertain which category applies does not know which court has jurisdiction. (3) Municipalities have constitutional and statutory duties to play a constructive role in resolving security of tenure disputes under both ESTA and PIE, not merely to assist with relocations. (4) Courts should not be overawed by practical problems and should mould orders that provide effective relief for constitutional breaches. (5) Where carefully crafted rules and structures exist for dispute resolution in a particular area of law, it is preferable to use that system rather than require parties to commence fresh proceedings elsewhere.

This case is significant in South African land reform and constitutional law for several reasons: (1) It clarifies the interaction between ESTA and PIE in eviction proceedings, highlighting the problematic situation where occupiers protected by different legislation may be involved in the same dispute. (2) It establishes that the Land Claims Court has jurisdiction to declare evictions unconstitutional under section 26(3) even for occupiers who do not qualify under ESTA due to income thresholds but whose eviction would breach constitutional protections. (3) It demonstrates the court's willingness to adopt a holistic approach to avoid multiplicity of proceedings and conflicting interpretations. (4) It emphasizes the constitutional duties of municipalities to play a constructive role in eviction proceedings under both ESTA and PIE. (5) It highlights the problematic nature of the static R5,000 income threshold that has not been adjusted since 1998, potentially excluding long-term occupiers from protection. (6) It demonstrates that settlement agreements purporting to limit occupiers' rights are not absolutely binding on courts.