Nomusa Ndaba v Tony Reginald Braithwaite NO and Others

The applicant and her family had resided on the farm Venters Lager No. 1291 since 1994 pursuant to an agreement between her husband and the previous owner. The applicant's husband worked on the farm until retirement due to ill health and died in 2010, after which he was buried on the farm. The applicant resided with four children, two nephews, one grandson, and kept 11 cattle, 9 goats, 8 sheep and 2 horses. After her husband's death, disputes arose with the respondents (trustees of Damview Trust which owned the farm) who sent invoices demanding payment for grazing fees for excess livestock. The respondents alleged an agreement existed with the deceased husband limiting cattle to 6 head, with rental payable on excess animals. The applicant disputed any such agreement and refused to pay. The respondents issued a section 8(5) ESTA notice giving 12 months to vacate. The applicant sought an interdict to prevent eviction and harassment, claiming status as a labour tenant or associate, or alternatively as an occupier under ESTA.

• Whether an enforceable agreement existed between the deceased husband and the trust regarding limitation of livestock and grazing fees
• Whether the applicant could be bound by any alleged agreement with her deceased husband
• Whether the applicant satisfied the requirements for a final interdict
• Whether the applicant had a clear right as an occupier under ESTA
• Whether there was actual injury or reasonably apprehended injury constituting threatened eviction
• Whether imposing grazing fees constituted deprivation of the right to use land amounting to eviction under ESTA

The application for an interdict was dismissed.

A landowner seeking to enforce an alleged agreement limiting an occupier's rights under ESTA bears the onus of proving the existence and terms of that agreement on a balance of probabilities. An occupier who was not a party to an alleged agreement cannot be bound by it under the doctrine of privity of contract, even if the agreement was allegedly made with a deceased family member. For purposes of ESTA, "eviction" requires actual deprivation of residence, use of land, or access to water against a person's will; the sending of invoices demanding payment for use of land, without actual interference with continued use and access, does not constitute eviction or threatened eviction. To obtain a final interdict against eviction, an applicant must prove: (1) a clear right, (2) injury actually committed or reasonably apprehended, and (3) absence of similar protection by other remedy. Courts must balance landowners' property rights with occupiers' constitutionally protected security of tenure.

The court noted that upon the death of the applicant's husband, the respondents ought to have entered into a new agreement with the applicant spelling out terms and conditions, or held the executor of the deceased's estate responsible, rather than attempting to enforce an alleged agreement against the widow. The court also observed that the respondents' rights as owners should not be arbitrarily deprived, and that despite their failure to prove the agreement, they had done nothing to indicate they surpassed their rights as property owners. The court emphasized the delicate balance required between owner's rights not to be arbitrarily deprived of property and occupier's rights to legally secure tenure, particularly in light of past racially discriminatory laws.

This case clarifies important principles regarding ESTA occupiers' rights and the requirements for interdicts against eviction. It establishes that: (1) landowners bear the onus of proving alleged agreements limiting occupiers' rights; (2) occupiers cannot be bound by agreements to which they were not privy, even if made with deceased family members; (3) the definition of "eviction" under ESTA requires actual deprivation of use of land, not merely demands for payment or threats to follow legal eviction procedures; (4) sending invoices for grazing fees, without more, does not constitute threatened eviction; and (5) courts must balance owners' property rights against occupiers' security of tenure rights. The judgment demonstrates the evidentiary standards required to establish limitations on ESTA occupiers' rights to use land.