Thuthuka Farming v Andries Mofokeng and Others

Thuthuka Farming (the applicant) applied to evict Andries Mofokeng and seven other respondents from the farm. The Magistrate of Fouriesberg granted an eviction order on 6 November 2008 in case number 173/07. The respondents were employed by the previous owner of the farm and became occupiers when the applicant acquired the property. The applicant alleged grounds for eviction including: an assault on the applicant by the third respondent, alleged theft of zinc plates, overgrazing by the fourth respondent's cattle, and the respondents' proximity to the water supply. The fourth respondent was identified as a long-term occupier under section 8(4) of ESTA, while the other respondents were occupiers under section 8(1). The matter came before the Land Claims Court on automatic review under section 19(3) of ESTA.

• Whether the mandatory requirements of section 9(2) of ESTA were complied with for the eviction order
• Whether the occupiers' right of residence was lawfully terminated in terms of section 8 of ESTA
• Whether proper notice to vacate was given to the occupiers as required by section 9(2)(b)
• Whether the conditions for eviction under section 10 of ESTA were satisfied for occupiers who were on the land before 4 February 1997
• Whether the prescribed notice requirements under section 9(2)(d) and the ESTA Regulations were complied with
• Whether the procedural requirements for service were properly followed

The eviction order granted by the Magistrate in case number 173/07 was set aside.

An eviction order under ESTA can only be granted upon strict compliance with all the peremptory requirements of section 9(2). These include: (a) lawful termination of the occupier's right of residence in accordance with section 8; (b) failure by the occupier to vacate after proper notice; (c) compliance with the conditions for eviction under sections 10 or 11; and (d) service of the prescribed notices in the prescribed form (Form E) on the occupier, municipality, and Department of Land Affairs. Non-compliance with any of these mandatory requirements renders an eviction order invalid. The rights of occupiers under ESTA are binding on successors in title pursuant to section 24, regardless of whether the new owner employed the occupiers. Where alleged breaches are relied upon for eviction under section 10(1)(b), the owner must give one calendar month's written notice to remedy the breach.

The court observed that if the number of cattle kept by the fourth respondent was problematic, the applicant could approach the court for an appropriate order regarding reduction of cattle, which would not necessarily warrant eviction. The court noted that issues regarding the occupiers' location and access to water could potentially be addressed through appropriate discussions or mediation between the parties. The court commented that the applicant's belief that occupiers only have rights if employed by him was incorrect, demonstrating a misunderstanding of section 24 of ESTA which protects occupiers' rights against successors in title.

This case demonstrates the strict approach South African courts take to compliance with the mandatory procedural requirements of ESTA. It reinforces that eviction of occupiers requires meticulous adherence to all peremptory provisions of section 9, including proper termination of right of residence, appropriate notices, and compliance with prescribed forms and procedures. The judgment affirms the protection afforded to occupiers under ESTA, particularly that rights acquired under previous owners bind successors in title under section 24. It emphasizes that courts will not grant eviction orders where there is non-compliance with statutory procedures, even where there may be substantive grounds for eviction. The case highlights the constitutional protection of occupiers against arbitrary eviction and the importance of procedural fairness in land tenure disputes.