Salomon Wilhelm Bouwer N.O. and Others v Floors Linnerts and Others

The appellants were trustees of the Chormona Trust, which owned the farm Koggelmandershoek. The first respondent lived on the farm since approximately 1995, initially employed by a previous owner and later by E Bouwer & Seun CC, which was owned by the first appellant. The Chormona Trust acquired the property in December 2005 and took over the employment contract. In 2005, the farmhouse burned down, and the first appellant suspected the first respondent's involvement. After a polygraph test suggested involvement, the first respondent was dismissed but subsequently reinstated following legal advice that proper procedure was not followed. After reinstatement, the first respondent did not return to work. A disciplinary hearing was held on 30 December 2005, where he was found guilty of absence without leave and misconduct, resulting in dismissal with immediate effect. The appellants sought an eviction order under the Extension of Security of Tenure Act 62 of 1997 (ESTA).

• Whether the first respondent's right of residence was lawfully terminated under section 8(2) of ESTA
• Whether fairness considerations under section 8(1) apply when termination is based on section 8(2)
• Whether the appellants established a case under section 10(1)(c) of ESTA for eviction based on fundamental breach of the relationship
• What constitutes a 'fundamental breach of the relationship' under section 10(1)(c) of ESTA

The appeal was dismissed. No costs order was made in accordance with the general policy of the Land Claims Court.

1. Section 8(2) of ESTA operates independently from section 8(1), and when relying on section 8(2) for termination of a right of residence, the fairness considerations in section 8(1) are not relevant to the termination itself, though they may be considered when determining whether to grant an eviction order under sections 10 or 11. 2. Under section 10(1)(c) of ESTA, a 'fundamental breach of the relationship' refers to the social and emotional relationship between the parties, not merely the legal employment relationship. There must be a lack of mutual trust such that it is practically impossible for the relationship to continue. 3. An applicant for eviction must establish their case in the founding affidavit with sufficient detail and cannot rely on bare assertions (ipse dixit) or arguments raised only in heads of argument. 4. Dismissal for absence without leave, without more evidence explaining why the relationship cannot be restored and what steps were taken to attempt restoration, is insufficient to establish a fundamental breach under section 10(1)(c).

The court respectfully disagreed with the judgment of Bam P in Joubert v Hendricks & Another [LCC55/05, 19 March 2007] insofar as it found that section 8(1)(e) requirements must also be met when termination is based on section 8(2). The court noted this conflicted with previous decisions in Theewaterskloof Holdings (Edms) Bpk v Johnson, Mostert v Duiker and Pietersen v Van Deventer. The court observed that the conclusion reached did not mean the respondents could never be evicted from Koggelmandershoek. The appellants could bring a fresh application relying on sections 10(2) and 10(3), or if still relying on section 10(1)(c), must provide full motivation in their founding affidavit. The court noted that the first appellant's explanation for why the first respondent did not return to work after reinstatement was strange, particularly given that the first appellant (who did not live on the farm) never personally instructed the first respondent to return to work and claimed he could not get hold of him.

This case clarifies the interaction between sections 8(1), 8(2), and 10 of ESTA. It establishes that when an occupier's right of residence is terminated under section 8(2) (employment terminated in accordance with the Labour Relations Act), the fairness considerations in section 8(1) do not apply to the termination of the right of residence itself, though they remain relevant when considering whether to grant an eviction order. The judgment provides important guidance on what constitutes a 'fundamental breach of the relationship' under section 10(1)(c), emphasizing that it relates to the social and emotional relationship, not merely the legal employment relationship. It also reinforces the principle that applicants must properly plead and prove their case in founding affidavits and cannot rely on bare assertions or arguments raised only in heads of argument.