Van Wyk JD v Evelyn Mokoena and Others

The respondent, Evelyn Mokoena, aged 59, resided on the farm Kleinvlei in the district of Vrede, Orange Free State for approximately 15 years. She held occupation under her deceased husband who was employed on the farm owned by the applicant, Van Wyk JD. After her husband's death, the applicant sought to terminate her occupation rights under section 8 of ESTA. A settlement agreement was concluded on 7 August 2009 before the Magistrate, Vrede, providing for the respondent and anyone holding under her to vacate the premises by 1 November 2009. The Magistrate made the settlement agreement an order of court and referred it for automatic review under section 19(3) of ESTA. Critical information was missing from the papers regarding the age of the deceased husband at the time of his death and whether he qualified as an occupier under section 8(4) of ESTA.

• Whether Mr. Selane Martiens Mokoena (the deceased husband) qualified as an occupier as described in section 8(4) of ESTA
• Whether section 8(5) of ESTA applies to the respondent as the surviving spouse
• Whether the notice period provided in the settlement agreement (vacating by 1 November 2009) complied with section 8(5) of ESTA, which requires 12 months' notice to a surviving spouse
• Whether the respondent has suitable alternative accommodation
• Whether the settlement agreement is just and equitable under the circumstances

The matter was referred back to the Magistrate, Vrede to determine: (1) the age of Mr. Selane Martiens Mokoena; (2) whether he qualified as an occupier as described in section 8(4) of ESTA; (3) whether section 8(5) of ESTA applies to the respondent; (4) whether the respondent has suitable alternative accommodation; and (5) upon finalization, the matter is to be referred back to the Land Claims Court per section 19(3) of ESTA with reasons why the settlement is just and equitable having regard to the evidence.

In automatic reviews under section 19(3) of ESTA, the Land Claims Court has a duty to ensure that settlement agreements comply with the statutory requirements of ESTA before confirmation. Where a deceased occupier may have qualified under section 8(4) of ESTA, the court must determine whether section 8(5) applies to the surviving spouse, which mandates a 12-month notice period before termination of residence rights. A settlement agreement that does not comply with the mandatory notice periods under ESTA cannot be confirmed as just and equitable. Before confirming any eviction order or settlement, the court must be satisfied that the occupier has suitable alternative accommodation and that the agreement is just and equitable in all the circumstances.

The court noted that paragraph 11 of the settlement agreement stated that the parties' rights under ESTA had been explained to them by their legal representatives and that they understood and accepted those rights, and agreed the settlement was reached in terms of those rights. However, this acknowledgment alone was insufficient for the court to confirm the order without proper evidence that the statutory protections were in fact complied with. The court's approach suggests that parties cannot simply waive statutory protections through agreement without the court being satisfied that the agreement is substantively just and equitable and compliant with ESTA's mandatory provisions.

This case demonstrates the Land Claims Court's supervisory role in the automatic review process under section 19(3) of ESTA. It emphasizes the court's duty to scrutinize settlement agreements in eviction matters to ensure compliance with ESTA's protective provisions, particularly those relating to vulnerable occupiers such as surviving spouses. The case illustrates that the court will not confirm a settlement agreement, even if agreed to by both parties, without ensuring that all statutory protections have been properly considered and that the agreement is just and equitable. It highlights the special protections afforded to surviving spouses under section 8(5) of ESTA, including the mandatory 12-month notice period.