Lalibela Management Services Proprietary Limited v Zameka Payi and Others

The applicant (Lalibela Management Services) sought to evict the first respondent (Zameka Payi) and second respondent (Mzwabantu Magwadi), who are siblings, from Farm 300, Remaining Extant Portion 0, in the Eastern Cape Province. The applicant was not the owner but the person in charge of the farm. The respondents are descendants of the late Daniel and Linah Magwadi, who were employed on the farm for close to six decades. Both respondents were born and raised on the farm and were occupiers as of 4 February 1997. The Magistrate Court granted an eviction order against the first respondent on 6 November 2024 on an unopposed basis (the first respondent filed no affidavit), while dismissing the application against the second respondent who opposed the application. The applicant only issued a notice in terms of section 8(1)(e) of ESTA and did not give the respondents an opportunity to make representations before issuing the eviction notice.

• Whether the Magistrate Court properly granted an eviction order against the first respondent on an unopposed basis despite non-compliance with ESTA
• Whether the applicant complied with the procedural requirements of section 8 of ESTA before terminating the respondents' right of residence
• Whether the applicant satisfied the substantive requirements for eviction under section 10 of ESTA
• Whether a court may grant an order that is unlawful even when unopposed
• Whether the respondents were afforded procedural fairness in the termination process

The eviction application in respect of both the first and second respondents was dismissed. There was no order as to costs. The order of the Magistrate Court dated 6 November 2024 was set aside in part.

A court may not grant an eviction order under ESTA, even on an unopposed basis, where the applicant has failed to comply with the mandatory procedural and substantive requirements of sections 8 and 10 of ESTA. Section 8(1) requires that termination of a right of residence must be just and equitable both substantively and procedurally, including affording the occupier an opportunity to make representations before the decision to terminate is made. An eviction order may only be granted under section 9(2)(c) if the conditions in section 10 or 11 have been complied with. Courts are bound by the principle of legality in section 1(c) of the Constitution and the rule of law, and cannot grant orders that are contrary to the applicable legal framework. The failure to oppose an application does not clothe unlawful relief with lawfulness - a case for the relief sought must still be made out even in unopposed matters.

The Court observed that the second respondent alleged his paternal grandparents were also employed on the farm and his father was born there, and that both he and the first respondent were born, raised and worked on the farm, indicating multiple generations of connection to the land. The Court noted the incongruity of the Magistrate Court's order in treating identical deficiencies differently for the two respondents based solely on whether the application was opposed.

This case reinforces fundamental principles of ESTA and procedural fairness in eviction proceedings. It establishes that courts cannot grant eviction orders, even on an unopposed basis, where there is non-compliance with the mandatory procedural and substantive requirements of ESTA. The judgment emphasizes the constitutional principle of legality and the rule of law, confirming that courts themselves are bound by these principles and cannot grant unlawful orders. It protects the rights of vulnerable occupiers who have long historical connections to land, particularly descendants of farm workers. The case demonstrates the robust protection afforded to occupiers under ESTA and the strict compliance required from landowners/persons in charge seeking evictions. It also clarifies that a failure to oppose does not cure fundamental legal defects in an application.