Old Abland (Pty) Ltd v Hanekom and Others; Old Abland (Pty) Ltd v Jacobs and Others

Old Abland (Pty) Ltd purchased property in 2008 where two families (the Hanekom family and the Jacobs family) resided. The respondents were former employees of the previous owner who had been allocated accommodation on the property. Ms Jacobs had resided on the property since 2002 and was dismissed in 2007. Anthea Hanekom began working on the farm in 2003 and was retrenched in 2007. Neither challenged their dismissals. After their dismissals in 2007, the respondents continued to reside on the property without interference for four years before the appellant took eviction steps in 2012. The appellant attempted to enter into lease agreements with the occupiers, which were rejected. The appellant offered R80,000 to each family towards alternative accommodation, which was rejected as insufficient. The appellant instituted eviction proceedings in March 2013. The Magistrate's Court granted the eviction order conditional on the appellant paying R80,000 to each respondent, finding that the respondents' right of residence had been lawfully terminated and eviction was just and equitable.

• Whether the respondents' right of residence was validly terminated in accordance with section 8 of ESTA
• Whether the notice of termination complied with section 9(2) of ESTA
• Whether sections 8(2) and 8(3) of ESTA applied to the respondents given the time lapse between termination of employment and eviction proceedings
• Whether the eviction was just and equitable having regard to all relevant factors under section 8(1) of ESTA
• Whether suitable alternative accommodation was available to the respondents
• Whether meaningful engagement had taken place between the parties
• Whether the hardship to the respondents outweighed the hardship to the appellant

1. The appeals in case numbers LCC178/2016 and LCC179/2016 are dismissed. 2. The cross-appeal succeeds. 3. The order of the Magistrate's Court is amended to read: The eviction application is dismissed. 4. Each party is to bear its, his or her own costs in each of the appeals.

Where occupiers continue to reside openly and continuously on land for a period exceeding one year (and particularly three years) after termination of employment, sections 3(4) and 3(5) of ESTA create a rebuttable presumption and deeming provision that the occupiers reside with the consent of the owner or person in charge. This transforms the basis of their right of residence from employment to presumed consent. Consequently, sections 8(2) and 8(3) of ESTA (which provide for termination linked to employment) no longer apply, and a separate process of termination complying with sections 3(1), 8 and 9(2)(a) must be followed. The termination of a right of residence must be both substantively and procedurally fair and just and equitable, having regard to all relevant factors in section 8(1) of ESTA. A notice of termination that purports to simultaneously terminate the right of residence and serve as a notice to vacate, without providing for meaningful engagement, is defective and does not comply with ESTA. An eviction order should not be granted where the occupiers will be rendered homeless, there is no suitable alternative accommodation available, and the landowner has no immediate or pressing need for the land, as this would not be just and equitable.

The court noted that while the obligation to satisfy the right to access adequate housing in section 26 of the Constitution rests with the state and not private entities, section 26(4) protects occupiers from arbitrary evictions and eviction without a court order, and courts are enjoined to consider all relevant circumstances before making an eviction order. The court endorsed the principle from City of Johannesburg v Changing Tides 74 (Pty) Ltd that if a landowner has no immediate or medium-term need to use the property and it would simply be sterilized by an eviction order, reinforced by lack of availability of alternative land, the court could legitimately hold that it is not just and equitable to grant an eviction order. The court also observed that the evidence regarding another occupier who successfully secured alternative accommodation with R80,000 was sketchy and lacked particularity, making it impossible to assess whether the respondents' circumstances were comparable.

This case is significant in South African land law and ESTA jurisprudence because it clarifies the legal position where there is a substantial time lapse between termination of employment and eviction proceedings. The judgment establishes that where occupiers continue to reside openly and continuously on land for an extended period after employment termination (particularly beyond the three-year period in section 3(5)), their right of residence is transformed from one based on employment to one based on presumed consent, thereby requiring fresh compliance with the termination procedures in ESTA. The case reinforces the constitutional protection against arbitrary evictions and emphasizes that courts must conduct a substantive assessment of whether an eviction is just and equitable, particularly considering the hardship to vulnerable occupiers, availability of alternative accommodation, and the landowner's actual need for the property. It also confirms that meaningful engagement is a crucial step in the termination process and cannot be bypassed. The judgment demonstrates the courts' role in protecting occupiers' constitutional rights under section 26 of the Constitution while balancing property rights.