Nimble Investments (Pty) Ltd (formerly known as Tadvest Industrial (Pty) Ltd and Old Abland (Pty) Ltd) v Johanna (Elsie) Malan and Others

The appellant is the registered owner of Topshell Park farm in Stellenbosch. The first respondent, Mrs Johanna Malan, and her late husband arrived on the farm in 1974 when he was employed there. After his death in 2005, Mrs Malan entered into a lease agreement for cottage 1 with the previous owner at R500 per month. The appellant purchased the farm in 2008. In 2012, the appellant needed the land where cottage 1 was located to meet obligations to a long-term tenant due to the widening of a provincial road. After negotiations, Mrs Malan agreed to relocate to cottage 5, and a relocation order was granted. On 28 November 2016, during the relocation, Mrs Malan and her family unlawfully removed building materials from cottage 1 and erected an illegal structure next to cottage 5 without permission. Mrs Malan told the farm manager cottage 1 belonged to her and she could do as she wanted. The appellant terminated the right of residence on 1 February 2017 based on fundamental breach of trust under section 10(1)(c) of ESTA. The respondents refused to vacate, and eviction proceedings were launched on 28 April 2017. The Stellenbosch Magistrate's Court granted the eviction order, but the Land Claims Court set it aside on automatic review, finding that Mrs Malan had not been given an opportunity to make representations under section 8(1)(e) of ESTA.

• Whether the termination of the right of residence was just and equitable both substantively and procedurally under section 8(1) of ESTA
• Whether there was a fundamental breach of the relationship between the occupier and the owner under section 10(1)(c) of ESTA justifying eviction
• Whether an occupier must be given an opportunity to make representations before termination of the right of residence in every case under section 8(1)(e) of ESTA
• Whether an eviction order would be just and equitable
• Whether the municipality is obliged to provide alternative emergency housing

The appeal succeeded. The order of the Land Claims Court was set aside. An eviction order was granted against the first to eighth respondents and all those occupying the farm under them. The respondents were ordered to vacate the farm by 31 March 2022, with the sheriff authorized to evict by 14 April 2022 if they failed to comply. The tenth respondent (Stellenbosch Municipality) was ordered to provide emergency housing of a dignified nature with access to services to the respondents by 31 March 2022. There was no order as to costs.

1. An occupier's right of residence may be terminated under section 10(1)(c) of ESTA where the occupier has committed a fundamental breach of the relationship with the owner or person in charge that is not practically possible to remedy. 2. A fundamental breach under section 10(1)(c) relates to a breakdown of the social relationship of mutual trust and respect between occupier and owner, determined objectively. 3. Section 8(1)(e) of ESTA does not require an opportunity for representations in every case - the plain language states "whether or not the occupier had or should have been granted" such opportunity. 4. Where there is an objectively established fundamental and irremediable breach of relationship under section 10(1)(c), an opportunity for representations on termination of the right of residence is not required, as the relationship is objectively at an end. 5. Unlawful removal of building materials, erection of illegal structures without permission, enabling unauthorized occupation, and contemptuous defiance of the landowner can constitute a fundamental breach under section 10(1)(c). 6. An eviction under ESTA must be just and equitable considering all relevant factors in sections 8(1), 9(2) and 10 or 11 as applicable, including the conduct of parties, comparative hardship, and procedural fairness. 7. Municipalities have constitutional and statutory obligations to provide suitable alternative emergency housing to evicted occupiers.

The majority noted that ESTA is social legislation intended to regulate eviction of vulnerable occupiers while recognizing landowners' rights to seek eviction under certain circumstances. The Court observed that forcing a landowner to continue housing an occupier after fundamental breakdown of the relationship would place the owner in an untenable position. The Court remarked that ESTA was not intended to promote security of opportunistic occupiers at the expense of landowners' legitimate interests. The majority also noted that long-term occupiers form a protected class under ESTA but this protection is not absolute. The dissenting judgment emphasized that according to Snyders v De Jager, mere failure to comply with procedural fairness under section 8(1)(e) renders the termination of right of residence unlawful and invalid, making it unnecessary to consider whether a substantive breach occurred. The dissent noted there was no enquiry or procedure during which the first respondent could have given reasons why her right of residence should not be terminated. The majority commented that the respondents appeared to have no intention of giving up the benefits of free accommodation and utilities, and that any further delay after nearly five years was not justified.

This case clarifies the interpretation of section 8(1)(e) of ESTA regarding the requirement to give occupiers an opportunity to make representations before terminating their right of residence. The majority held that such opportunity is not required in every case, particularly where there is an objectively proven fundamental and irremediable breach of the relationship under section 10(1)(c). The case illustrates the balancing act required under ESTA between protecting vulnerable occupiers and recognizing landowners' legitimate rights, particularly where occupiers engage in serious misconduct. It reaffirms that long-term occupiers' enhanced security of tenure under section 8(4) is not absolute and can be forfeited through fundamental breach of trust. The judgment also emphasizes municipalities' constitutional and statutory obligations to provide emergency housing in eviction cases. The dissenting judgment highlights the ongoing tension in the interpretation of procedural fairness requirements under ESTA.