Kiepersol Poultry Farm (Pty) Ltd v Gideon Phasiya

The appellant, Kiepersol Poultry Farm (Pty) Ltd, leased the farm Zandspruit where it conducted poultry farming. The respondent Gideon Phasiya's father, Sam Phasiya, was employed by the appellant as a delivery van driver and occupied a house on the farm with his family. In February 2004, Sam allegedly informed the appellant's managing director that he and his wife were moving to live with their son Martin in Honeydew. Sam was involved in a motor vehicle accident in September 2004, after which he retired on pension. The respondent and his brother Lucas remained on the premises. The appellant gave notice to the respondent to vacate by January 2005, later extended to April 2005. When the respondent failed to vacate, the appellant instituted eviction proceedings under the Extension of Security of Tenure Act 62 of 1997 (ESTA). The respondent defended on the basis that he occupied under his father Sam, who was still an occupier with protected rights under s 8(4) of ESTA (former employee unable to work due to ill health). Sam passed away on 27 March 2007 during the course of the proceedings.

• Whether Sam Phasiya was still 'residing' on the premises as an 'occupier' within the meaning of ESTA at the time eviction proceedings were instituted
• The interpretation of the word 'reside' in the definition of 'occupier' under ESTA
• Whether the respondent himself was an occupier under ESTA
• Whether termination of the respondent's right of residence was just and equitable in terms of s 8(1) of ESTA
• Whether it was just and equitable to grant an eviction order in terms of s 11 of ESTA
• The relevance and effect of a s 9(3) report on eviction proceedings

The appeal succeeded. The order of the Land Claims Court was set aside and replaced with an order: (1) directing the respondent to vacate the house on the farm Zandspruit by no later than 31 January 2010; (2) authorizing the sheriff to remove the respondent and his dependants with their belongings and hand over vacant possession to the appellant if the respondent failed to vacate by the due date. No costs order was made against the respondent.

The binding legal principles established are: (1) Under ESTA, 'reside' means having one's permanent home at a place - it connotes permanent abode where one sleeps after the day's work, not merely visiting or occasional presence. (2) The term 'residing' in the definition of 'occupier' must be construed with ESTA's purpose of protecting vulnerable occupiers of land in mind. (3) The question of whether termination of an occupier's right of residence is 'just and equitable' under s 8(1) must be considered from the perspective of both the owner/person in charge and the occupier, balancing the relevant factors in s 8(1)(a)-(e). (4) For an eviction order to be granted under s 11 of ESTA, it must be 'just and equitable' having regard to the factors in s 11(3), including the period of residence, fairness of terms, availability of alternative accommodation, reason for eviction, and balance of interests. (5) The fact that a person leaves furniture on premises is not necessarily decisive of continued residence, particularly where alternative accommodation is already furnished. (6) Where an occupier agreed to vacate by a fixed date, failure to assert rights of another alleged occupier and instead seeking extensions to comply with the agreement may evidence knowledge that the other person was no longer residing on the land.

The Court made several non-binding observations: (1) It noted that the main purpose of ESTA is to regulate the eviction process of vulnerable occupiers of land and to protect a designated class of poor tenants occupying rural and peri-urban land against unfair eviction. (2) The Court observed that there will almost always be hardship experienced by a person who has to vacate land as a result of termination of residence rights, but this must be balanced against the hardship suffered by the owner or person in charge. (3) The Court commented that the respondent at age 40 was relatively young and should be able to adjust relatively easily to a new environment. (4) The Court noted it was appropriate to afford sufficient time to vacate to allow the respondent to secure alternative accommodation and not disrupt his children's schooling. (5) The Court rejected the suggestion that it should have inquired mero motu into whether the respondent's mother was an occupier in her own right, noting she was not a party and her rights were never at issue. (6) The Court indicated this was not a case where the respondent should be burdened with a costs order, though no detailed reasons were provided for this.

This case is significant for interpreting key concepts under the Extension of Security of Tenure Act 62 of 1997 (ESTA), particularly: (1) it provides authoritative guidance on the meaning of 'reside' in the definition of 'occupier' under ESTA, establishing that it requires a 'permanent home' and not merely occasional presence or visits; (2) it demonstrates the application of the 'just and equitable' test in ss 8(1) and 11 of ESTA when terminating rights of residence and granting eviction orders; (3) it illustrates how courts must balance the interests of landowners/persons in charge against occupiers in vulnerable positions; (4) it emphasizes the procedural requirements under ESTA including the s 9(3) report; (5) it shows that ownership of furniture and maintenance of some connection to land does not necessarily establish continued residence; (6) it demonstrates the proper application of ESTA's protective provisions in the context of agricultural employment relationships. The case contributes to the body of law on land reform and protection of vulnerable rural occupiers in South Africa.