Jozia Johannes van der Merwe (N.O. of the Noordhoek Trust) and Another v Jan Klaase

The first applicant was trustee of the Noordhoek Trust which owned a farm in Citrusdal. The second applicant leased the farm and managed operations. The respondent, Jan Klaase, had worked on the farm since at least 1972 and qualified as an occupier. The applicants instituted eviction proceedings in the Clanwilliam Magistrate's Court on 4 August 2011 under ESTA. The Magistrate's Court granted an eviction order on 14 January 2014, ordering the respondent and all persons occupying through him to vacate the premises. The eviction order was confirmed on review by the Land Claims Court on 28 March 2014, with an amended eviction date. Three applications then arose: (1) the respondent's application for leave to appeal to the Supreme Court of Appeal against the review judgment; (2) Elsie Klaase (the respondent's wife) sought joinder, suspension of proceedings and consolidation, claiming independent ESTA rights; and (3) the respondent sought suspension of the eviction order pending determination of his wife's rights. Mrs Klaase claimed she was born on the farm in 1965, worked there as a permanent employee, and had independent occupation rights separate from her husband.

• Whether Elsie Klaase was an 'occupier in her own right' under ESTA entitled to independent protection
• Whether Elsie Klaase should be joined as a party and whether proceedings should be stayed
• Whether consent to occupy land under ESTA had been granted to Elsie Klaase independently
• The distinction between 'occupiers in their own right' and 'residents' under ESTA
• Whether an appeal from a review judgment confirming a Magistrate's eviction order lies to the Supreme Court of Appeal or to the Land Claims Court
• The proper procedure for appeals in ESTA review matters

1. Mrs Klaase's application to be joined as second respondent was refused. 2. Mrs Klaase's application to suspend proceedings pending determination of her ESTA rights was refused. 3. The respondent's application to suspend execution of the eviction order was refused. 4. The respondent's application for leave to appeal was refused. 5. The date for vacating the premises was changed to 14 November 2014. 6. The date for executing the eviction order was changed to 17 November 2014. 7. No order as to costs.

A person claiming to be an 'occupier in their own right' under ESTA must demonstrate independent consent from the landowner or person in charge to occupy the land, or another right in law to do so. Mere residence on property with the owner's knowledge, where that residence derives from a family relationship with an established occupier, does not create independent ESTA occupation rights. Such persons are 'residents' protected by the right to family life under ESTA section 6(2)(d) and the Constitution, but they are not occupiers entitled to the full eviction protections of ESTA. An appeal from a Magistrate's Court eviction order that has been confirmed on review by the Land Claims Court lies to the Land Claims Court sitting as a Court of Appeal, not to the Supreme Court of Appeal, as the confirmed order remains the Magistrate's order. Only where the Land Claims Court overturns the Magistrate's order and substitutes its own judgment does an appeal lie to the Supreme Court of Appeal.

The court commented that it appeared counsel had misconstrued the judgment in Sterklewies (Pty) Ltd v Msimanga 2012 (5) SA 392 (SCA) by arguing that a person residing on property with consent ipso facto becomes an ESTA occupier. The court clarified that while ESTA does not require consent to be a strictly construed agreement or contract, a person claiming ESTA occupation must be residing on property without any other right to do so and with apparent consent of the owner. The court noted that the practice in the Land Claims Court is not to make costs orders save in instances where there are special circumstances, and found no special circumstances in this matter. The court also observed that the presumption in section 3(4) of ESTA (that a person who has continuously and openly resided on land for one year or more is presumed to have consent unless the contrary is proved) could be rebutted where evidence shows residence derives from other sources such as family relationships.

This case clarifies important distinctions in ESTA jurisprudence between 'occupiers in their own right' who have independent consent or legal right to occupy land, and 'residents' who derive occupation rights through family relationships with occupiers. It affirms that mere residence on property with knowledge of the owner does not automatically create ESTA occupation rights. The judgment also settles procedural uncertainty regarding appeals in ESTA review matters, confirming that appeals from Magistrate's Court eviction orders confirmed on review lie to the Land Claims Court, not the Supreme Court of Appeal, while appeals from review judgments that overturn and substitute Magistrate's orders lie to the Supreme Court of Appeal. The case demonstrates the application of section 3(4) of ESTA's presumption of consent and how it can be rebutted by evidence showing occupation derives from other sources such as family relationships.