Case name:
Nederburg Wine Farms v Bester and Others [2011] ZAWCHC 305;A777/2010

Area of Law:
Property Re: Eviction

“Occupier” (as defined by ESTA) v “Unlawful Occupier” (as defined by PIE).

Relevant Legislation:
1. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998, herein referred to as “PIE”; and

2.    Extension of Security of Tenure Act 62 of 1997, herein referred to as “ESTA”

Brief Facts / Summary:
This case is an appeal against the dismissal of an eviction application brought by the Appellant.

The Respondents occupied a house on the Appellant’s farm since the age of 10 by virtue of the right of occupation of their now deceased parents. After their mother’s death in 2006, the Respondents received three (3) months notice to vacate the premises.

The Respondents refused to vacate the premises and the matter was brought before a Magistrate.

The court a quo:
The Respondents argued that they should be considered as “occupiers” as defined under ESTA and not as “unlawful occupiers” as defined by s1 PIE, hence they are protected as “dependants” under ESTA. The eviction notices should have been served in accordance with ESTA, which would allow for a twelve (12) month notice period to vacate the premises.

The Appellant argued that the Respondents are “unlawful occupiers”, and if the wish to rely on the protection afforded under ESTA, they should prove they fall within the definition of “dependants” as defined by s8(4) and (5) of ESTA.

The eviction application was dismissed because the court found that the Respondents were “dependants” and not “unlawful occupiers. The case was brought on appeal.

The Appeal:
The Appellant argued that it served the eviction notices in terms of the common law, therefore the Respondents could not argue the twelve (12) month notice period provided for by ESTA.

Judgment:
AJ Mantame agreed with the court a quo and stated that it was irregular for the Appellant to start eviction proceedings using the common law, and then continue with the proceedings in terms of PIE.

Furthermore, he notes that if one were to look at the definition of “unlawful occupiers” in terms of s1 of PIE, one will observe that this definition does not apply to the Respondents.  

The Judge held that the Respondents fall within the ambit of the definition of “dependants” as provided for by ESTA, therefore they are entitled to the twelve (12) month notice period under ESTA.

Importance / Value:
This case deals with the status of the “occupier” when instituting legal eviction proceedings, as well the consequences of not applying the relevant legislation in said proceedings.

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