Zimkhona John Skosana and Others v Ferreira Jose and Others

The applicants (members of the Skosana family) applied for restoration of residence under section 14(1) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The first respondent, Ferreira Jose, purchased a farm (Portion 206 of the Farm Mapochgronde 500, Middelburg, Mpumalanga) in 2019, registered in December 2021. The applicants' father, Elias, had lived on the farm with his family but left in 2016 due to illness and passed away in April 2021. On 17 April 2023, a magistrate granted a protection order against the applicants prohibiting them from entering the farm without prior arrangement. On 9 May 2023, Jose's attorney advised the applicants to remove their deceased parents' belongings by 30 June 2023 and demolish structures, failing which Jose would do so. After no response, Jose removed the belongings and demolished structures between January and March 2024. The applicants claimed they were unlawfully evicted and sought restoration of residence. Cell phone data and voter registration records showed the applicants had been residing at addresses in Kwa-Mhlanga and Mamelodi, not on the farm.

• Whether the applicants qualified as 'occupiers' under the Extension of Security of Tenure Act 62 of 1997
• Whether the applicants were 'residing' on the farm at the time of the alleged eviction
• Whether the applicants were unlawfully evicted contrary to ESTA
• Whether the applicants were entitled to restoration of residence under section 14 of ESTA
• How disputes of fact should be resolved in motion proceedings
• Whether the protection order granted by the magistrate was binding on the applicants

1. The application for condonation by the first respondent was granted. 2. The rule nisi granted against the first respondent on 20 March 2024 was discharged. 3. The application for restoration of residence was dismissed. 4. No order as to costs.

To qualify as an 'occupier' under ESTA, a person must prove actual residence on the land in question, meaning living at the place permanently. The onus rests on the person claiming occupier status to prove all components of the definition of 'occupier', including that their income does not exceed the prescribed amount. Section 14 of ESTA, which provides for restoration of residence, presupposes that the applicant was actually residing on the land at the time of the alleged eviction. A valid court order, including a protection order, remains binding under section 165(5) of the Constitution until set aside by a competent court. Where genuine disputes of fact arise in motion proceedings that cannot be resolved by applying the Plascon-Evans test, and where the respondent's version is not implausible or untenable, the application must fail unless the applicant seeks referral to oral evidence or trial.

The court observed that the practice in the Land Court is not to award costs unless there are special circumstances which warrant such an award. The court noted that the applicants should have challenged the magistrate's protection order first, as Part A of the application should have been the challenge to the protection order, while the review application (Part B) had been adjourned sine die. The court commented on the unhelpfulness of certain witness affidavits which contained contradictory evidence regarding when the family left the farm and when gates were locked. The judge noted that "one can only be thankful that the Applicants collected their belongings from where they had been dumped," suggesting sympathy for the applicants' situation despite the legal outcome.

This case clarifies the requirements for establishing 'occupier' status under ESTA, particularly the requirement of actual residence on the land in question. It emphasizes that applicants bear the onus of proving all elements of the definition, including income levels and actual residence. The judgment highlights the importance of the permanent residence requirement under ESTA and demonstrates that persons claiming to be occupiers must provide concrete evidence of residing on the land. The case also illustrates the interplay between protection orders and ESTA applications, confirming that valid court orders remain binding under section 165(5) of the Constitution until set aside by a competent court. It reinforces the Plascon-Evans principles regarding resolution of factual disputes in motion proceedings, requiring applicants to anticipate disputes and seek referral to oral evidence where genuine factual disputes exist.