Kudus Kloof Trust v J Teni and Others

The applicant, Kudus Kloof Trust, purchased Kilarney Farm No 415 on 3 August 2006. Before registration, Mr Trollip on behalf of the Trust advised the eleven respondents (who resided and some worked on the farm) of the Trust's intentions to develop the farm into a game farm and wished to relocate them to another portion of the farm outside the game-fenced area. The Trust offered alternative accommodation. The respondents refused to relocate, citing that: the alternative land was used for cultivation and might be wet during rainy season; it was presently used for grazing their livestock; they had been staying on their current land for a long time; and they preferred their current location. The Magistrate of Komga granted an eviction order on 6 March 2008 in case number 22/07 in the respondents' absence. The respondents unsuccessfully applied for rescission of the eviction order. The matter came before the Land Claims Court on automatic review in terms of section 19(3) of ESTA.

• Whether the magistrate properly complied with the requirements of section 9(2) of ESTA before granting the eviction order
• Whether the occupiers' right of residence had been properly terminated in terms of section 8 of ESTA
• Whether proper notice to vacate was given to the respondents
• Whether the magistrate correctly applied section 10 or 11 of ESTA regarding long-term or post-4 February 1997 occupiers
• Whether the refusal to relocate constituted a fundamental breach of relationship under section 10(1)(c) of ESTA
• Whether the magistrate and probation officer adequately balanced the interests of the applicant and respondents and considered the occupiers' right to security of tenure

The order of the magistrate in case number 22/07, Komga was set aside in its entirety.

For an eviction order to be granted under ESTA, there must be strict compliance with all the peremptory requirements of section 9(2), including: (a) proper termination of the occupier's right of residence in terms of section 8; (b) notice to vacate given to the occupier; (c) compliance with the conditions for eviction in terms of section 10 or 11; and (d) the prescribed notices to the occupier, municipality, and Department of Land Affairs. A court considering an eviction application must balance the interests of the land owner and the occupier, and must give adequate consideration to the occupier's right to security of tenure as provided in section 6(2)(a) of ESTA and the legislative intention reflected in the Preamble. An occupier's refusal to accept alternative accommodation, without more, does not constitute a fundamental breach of relationship under section 10(1)(c) of ESTA sufficient to justify eviction.

The court observed that while the applicant's offer of alternative accommodation was a relevant factor, it should not be the only deciding factor in an eviction application. All other statutory requirements must still be complied with before an eviction order can be granted. The court also noted that the probation officer's recommendation that respondents move to alternative accommodation was made without adequately indicating what caused her to be satisfied that the alternative accommodation was better, and despite the respondents' concerns about the condition of the alternative accommodation during the rainy season. This suggests that probation officers' reports under section 9(3) of ESTA must provide substantive analysis of the impact of eviction and adequately address occupiers' concerns, rather than merely endorsing the land owner's proposals.

This case reinforces the strict procedural requirements that must be followed before an eviction order can be granted under ESTA. It emphasizes that courts must balance the rights and interests of both land owners and occupiers, and cannot grant eviction orders merely because occupiers refuse to accept alternative accommodation. The case demonstrates the Land Claims Court's review function under section 19(3) of ESTA and its willingness to set aside eviction orders where magistrates fail to properly apply the legislative framework designed to protect vulnerable occupiers. It affirms that the right to security of tenure must be given substantive consideration and that the social justice objectives reflected in ESTA's Preamble must inform judicial decision-making in eviction matters.