Snyman and Others v Sehemo and Others

The first plaintiff was the previous owner of the farm 'Gelukshoop' in the Delareyville district. The second and third plaintiffs were trustees of the Mimosa Trust which purchased the farm from the first plaintiff and took transfer on 20 May 2008. The five defendants were occupiers of the farm in terms of ESTA who had been residing on the farm since before 4 February 1997, making section 10 of ESTA applicable. The defendants were employed by the first plaintiff until 2003 when they were dismissed after participating in a strike. The dismissal was confirmed by the CCMA. The first plaintiff terminated their right of residence on the farm after dismissal. Despite written notices of termination and notices in terms of section 9(2)(d)(i) of ESTA served on 29 January 2008, the defendants refused to vacate. Combined summons claiming eviction was issued on 22 July 2008 from the Delareyville Magistrate's Court. After trial on 9 February 2010, the magistrate granted an eviction order on 29 March 2009, requiring the defendants to vacate by 29 June 2009. The matter came before the Land Claims Court for automatic review in terms of section 19(3) of ESTA.

• Whether the defendants committed a fundamental breach of the relationship with the owner in terms of section 10(1)(c) of ESTA that was not practically possible to remedy
• Whether an eviction order under section 10 of ESTA can be granted where occupiers have been lawfully dismissed following a strike
• Whether bringing court applications to enforce ESTA rights constitutes a fundamental breach of the relationship between occupier and owner
• Whether the proper approach to costs in ESTA litigation was followed
• Whether summary judgment applications are appropriate in ESTA eviction actions

The eviction order granted by the magistrate was set aside. The order as to costs was also set aside. The matter was decided on 24 February 2011.

The binding legal principles established are: (1) Under section 10(1)(c) of ESTA, a court must examine what precisely constitutes a fundamental breach of the relationship between the owner and each individual occupier that is not possible to remedy; (2) Occupiers bringing court applications to enforce their rights under ESTA cannot be penalized by characterizing such actions as fundamental breach of the relationship, as this would effectively bar occupiers from accessing courts to enforce their ESTA rights; (3) Section 10(1)(c) requires proof of a fundamental breach of a social relationship characterized by lack of mutual trust, not merely a legal relationship; (4) Where a new owner deliberately avoids establishing a relationship with occupiers, there can be no fundamental breach of a non-existent relationship; (5) A lawful dismissal following a strike, even if confirmed by the CCMA, does not alone constitute sufficient grounds for eviction under section 10 of ESTA - additional proof of fundamental breach that cannot be remedied is required; (6) In ESTA litigation, the normal practice is to make no order as to costs, with costs awarded only where there is good reason to do so.

The court made several non-binding observations: (1) Summary judgment applications are generally not appropriate in ESTA actions, even though the rules of court technically allow them for eviction claims, because opposing affidavits will typically disclose a defence; (2) It is not advisable for parties to include undertakings for vacant possession in contracts of sale when there are occupiers protected by ESTA, as it may not be within the seller's power to fulfill such undertakings; (3) The court expressed concern about the long delay (from 29 March 2009 to 25 October 2010) in sending the matter on review and urged court managers to prioritize ESTA review matters; (4) The court noted that it is possible an eviction order could be granted under section 10(2) or 10(3) of ESTA, but the plaintiffs had not made out a case for such relief; (5) The court distinguished the case from Mpedi v Swanevelder where laying unsubstantiated theft charges was held to constitute fundamental breach, noting that in the present case the occupiers had successfully enforced their ESTA rights.

This case is significant in South African land law and ESTA jurisprudence for several reasons: (1) It clarifies that occupiers exercising their legal rights under ESTA by bringing court applications cannot be penalized by having such actions characterized as fundamental breach of the relationship with the owner; (2) It reinforces that section 10(1)(c) requires individual assessment of each occupier's conduct to determine whether they personally committed a fundamental breach; (3) It establishes that a lawful dismissal following a strike, confirmed by the CCMA, does not automatically constitute grounds for eviction under section 10 of ESTA - additional proof of fundamental breach is required; (4) It emphasizes that there must be an actual relationship between owner and occupier before that relationship can be fundamentally breached; (5) It confirms that summary judgment applications are generally inappropriate in ESTA eviction actions; (6) It reaffirms the settled practice in the Land Claims Court that the normal rule in ESTA litigation is to make no order as to costs, with costs only awarded where there is good reason to depart from this practice. The judgment provides important protection for farm occupiers' security of tenure rights under ESTA.