The appellant (Land & Landbouontwikkelingsbank van Suid-Afrika) leased a house on the farm Klein Pruise, Ceres, to the respondent (Pierre Conradie) at a monthly rental of R3,500. The appellant wished to sell the property but prospective buyers were not prepared to purchase it if the respondent continued to occupy it. The magistrate of Ceres granted an eviction order on 19 March 2003 requiring the respondent to vacate by 31 May 2003. The Land Claims Court (Moloto J) set aside the eviction order on automatic review under s 19(3) of the Extension of Security of Tenure Act 62 of 1997, holding that the respondent's right of residence had not been terminated in accordance with s 8 of the Act. The respondent subsequently vacated the property before the appeal hearing.
The appeal succeeded with costs. The order of the Land Claims Court was set aside and replaced with an order confirming the magistrate's eviction order of 19 March 2003.
When determining whether termination of an occupier's right of residence is just and equitable under s 8(1) of the Extension of Security of Tenure Act 62 of 1997, a court must consider all the factors enumerated in s 8(1)(a)-(e) together with all other relevant factors. The fact that an owner wishes to sell the property and prospective purchasers demand vacant possession is not automatically an inequitable ground for termination; rather, it is one factor to be weighed alongside others, particularly the comparative hardship to both owner and occupier. Similarly, when deciding whether to grant an eviction order under s 11(3), the court must consider all factors listed in that subsection including availability of alternative accommodation, the reason for eviction, and the balance of interests between owner and occupier. Once an occupier's right of residence has been duly terminated in terms of s 8(1), and the requirements of s 9(2) are met, and it is just and equitable under s 11(3), an eviction order should be granted.
The court made several observations: (1) Section 21A(1) of the Supreme Court Act confers a discretion on courts, and where questions of law likely to arise frequently are at issue, a court may hear the merits even if the decision will have no practical effect between the parties. (2) It is not possible for a court to consider in the abstract the extent of averments and evidence required to make out a case for eviction, as each case depends on its own facts. (3) The purpose of s 19(3) of the Act (automatic review of magistrates' eviction orders) is to create a body of precedents to be followed by magistrates' courts. (4) Section 24 of the Act merely protects an occupier with a right of occupation from eviction by a new owner on grounds that occupation was without the new owner's consent; it allows the occupier to raise the defence that occupation was with consent of the previous owner and is therefore binding on the successor in title. (5) A person seeking eviction must make all necessary averments and adduce necessary evidence to make out a case in relation to every provision the court must consider (citing De Kock v Juggels). (6) Even where s 8(1) has been complied with, an eviction order will not necessarily be granted as the court must still consider whether it is just and equitable under s 11(3).
This case provides important guidance on the application of the Extension of Security of Tenure Act 62 of 1997, particularly regarding eviction proceedings. It clarifies that: (1) courts have discretion under s 21A(1) to hear appeals that have no practical effect between parties where questions of law are important and likely to arise frequently; (2) the determination of whether termination of a right of residence is just and equitable under s 8(1) requires consideration of all factors listed in s 8(1)(a)-(e) plus all other relevant factors on a case-by-case basis; (3) an owner's wish to sell property is not automatically an inequitable ground for terminating an occupier's right of residence; (4) all relevant factors, including comparative hardship, must be weighed; (5) s 24 of the Act protects occupiers from eviction by successors in title but does not prevent the original owner from terminating the right of residence in accordance with the Act. The judgment corrects an overly restrictive interpretation in Meyer NO v Tambani 2002 (5) SA 811 (LCC) and provides guidance to magistrates' courts dealing with eviction applications under the Act.