THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1177/2018

In the matter between:

AQUARIUS PLATINUM (SOUTH AFRICA) (PTY) LTD
APPELLANT

and

BONENE SEBAJOA
1ST RESPONDENT
CHITUMBO. FERNANDO M
2ND RESPONDENT
CUNA, ALCIDO X

3RD RESPONDENT
FEKO, STEPHEN L

4TH RESPONDENT
HENENG JOHN Q

5TH RESPONDENT
HLOAI. MABOBOSANE M

6TH RESPONDENT
KHABO, ALBERT

7TH RESPONDENT
KHOASE, RANTHLOISI

8TH RESPONDENT
KHOBAI, DANIEL S

9TH RESPONDENT
KOTELI, BERINARD M

10TH RESPONDENT
LLTSOANE, KETHANG A

11TH RESPONDENT
MABOTE, THAE30

12TH RESPONDENT
MAGULE, BERNARDO M

13TH RESPONDENT
MAHASE, MAKOMENG P

14TH RESPONDENT
MAKHABENG L

15TH RESPONDENT
MALIBA, STEPHEN M

16TH RESPONDENT
MATELA, MATELA B

17TH RESPONDENT

MATHUNYE, KOSTINA B

18TH RESPONDENT
MATSOAPE, ALPHONCE T

19TH RESPONDENT
MOHALE, TLOHANG J

20TH RESPONDENT
MOHOANG, ZAKARIA M

21ST RESPONDENT
MOIMA, SEABATA E

22ND RESPONDENT
MOKHAHLANE. MONTINYANE A

23RD RESPONDENT
MOKHALI. TSOKELO

24TH RESPONDENT
MOKOENA, MOLEBATSI M

25TH RESPONDENT
MOLOMO, NKHETHELENG

26TH RESPONDENT
MOMOANE, MAPHALE A

27TH RESPONDENT
MOSHOESHOE, LELINGOANA

28TH RESPONDENT
MOTABO, MOTLALEPULA

29TH RESPONDENT
NKHASI, NTJA I

30TH RESPONDENT
NKOE, NKOEJ

31ST RESPONDENT
NQHAI, SIMON M

32ND RESPONDENT
PHAMOTSE, ALFRED B

33RD RESPONDENT
PHAROE, SIMON T

34TH RESPONDENT
RAMABELE M

35TH RESPONDENT
RAMBO, LETEKETOA A

36TH RESPONDENT
RAPOSO, MANUEL B

37TH RESPONDENT
SEJELAMPENG, MOHLALEFI

38TH RESPONDENT
SEKETE, THABISO A

39TH RESPONDENT
SEKOAI, MPHO J

40TH RESPONDENT
SEKOTOLANE, TIEHO J

41ST RESPONDENT
SETHELA, PETROSE T

42ND RESPONDENT
SONDI, SAMUEL S

43RD RESPONDENT
TEBOHO, L

44th RESPONDENT
THAABE, EDWIN L

45TH RESPONDENT
TSOANE, ISHMAEL T

46TH RESPONDENT
TSOANE, THABO A

47TH RESPONDENT
BILA, JOSE

48TH RESPONDENT
BRANTI, TANDEKILEW

49TH RESPONDENT

CAKATA, BEKIMBEKO

50TH RESPONDENT
CHAMBALE, JOAO

51ST RESPONDENT
DLELAPHANTSI, BUYELEKA YA

52ND RESPONDENT
GAONWE, TSHIRELETSO

53RD RESPONDENT
GAUDA, REENTSENG

54TH RESPONDENT
GWENTSHE, PASCALIS R

55TH RESPONDENT
KOASHE, THAPELO V

56TH RESPONDENT
LESHOBORO, NAMANE

57TH RESPONDENT
MACHOBANE, SEKHONYANA W

58TH RESPONDENT
MADLONGO, MZOLISI A

59TH RESPONDENT
MAGABAVANA, XOLILE L

60TH RESPONDENT
MAKHELE, LEJONE P

61ST RESPONDENT
MALAM BE, ABSALOM A

62ND RESPONDENT
MASOETSA, S

63RD RESPONDENT
MAYILA. MAKABONGWE

64TH RESPONDENT
MKHIZE, JABULANE S

65TH RESPONDENT
MOHALE, LEBUAJOANG P

66TH RESPONDENT
MOSHAPANE, THABANG B

67TH RESPONDENT
MOSOEU, THABISO

68TH RESPONDENT
MOTSEWABANGWE. BALEKANE E

69TH RESPONDENT
MSENA, MOTLATSI

70TH RESPONDENT
NAPE, MOHATO P

71ST RESPONDENT
NDONGENI, RICHARD D

72ND RESPONDENT
NTSINYI. TSIETSI

73RD RESPONDENT
PEDRO, FERNANDO A

74TH RESPONDENT
PETLANE, PETRUS M

75TH RESPONDENT
PHOLO, THASO A

76TH RESPONDENT
RAMAKOA, MASEBO 0
77TH RESPONDENT
RAMBO, KGOPOTSO E
78TH RESPONDENT
SETWABA, PINKIE G
79TH RESPONDENT
SIPOMPO, FEZEKILE
80TH RESPONDENT
TINENTE, VICTOR
81ST RESPONDENT

TSENASE, LEKHOOA E
82ND RESPONDENT
TSOANA, MOJALETA
83RD RESPONDENT
BELE, THABANG A
84TH RESPONDENT
KHOSA, SHOKWANA S

85TH RESPONDENT
LETJEBA, NICHOLAS L
86TH RESPONDENT
MABOKA, WRENFORD M
87TH RESPONDENT
MABUZA, JOHANES
88TH RESPONDENT
MACHOCHOKO, JOHANNES L
89TH RESPONDENT
MAHLOMAHOLO, MAULE
90TH RESPONDENT
MALULEKE; BEN R
91ST RESPONDENT
MASSANGO, JOSE 0
92ND RESPONDENT
MBHELE, SIPHO C
93RD RESPONDENT
MOKOENANYANE, LOBIEANE I
94TH RESPONDENT
MOLEKO, TANKISO M
95TH RESPONDENT
MONESA, KOPE S
96TH RESPONDENT
MOSO, TSELISO
97TH RESPONDENT
MOTSELEKATSI, MOSIMANEWAKGANG J
98TH RESPONDENT
NGOBENI, MBUSO A
99TH RESPONDENT
NTSIHLELE, SELLO L
100TH RESPONDENT
QHOAI, LEPHOI F
101ST RESPONDENT
SIGAUQUE, MANUEL J
102ND RESPONDENT
TEKANE, THAKAMANG
103RD RESPONDENT
THABANE THABO E
104TH RESPONDENT
KAO, MOTHEOLANE C
105TH RESPONDENT
LENYATSA, NTSAPI
106TH RESPONDENT
LETSOKA, MAKHA THA
107TH RESPONDENT
MONYAKE, RAPU/...E A
108TH RESPONDENT
MOTSEKI, RATAELM
109TH RESPONDENT
MUSSUMBE, BENEDITO A
110TH RESPONDENT
SEMPE, SAMUEL K
111TH RESPONDENT
SETLHAKO, ISAAC M
112TH RESPONDENT
SHANGE, MOSALA
113TH RESPONDENT

DIKILOKHWE, GATERS
114TH RESPONDENT
FOSA, SIDWELL T
115TH RESPONDENT
JAKOBO MANGALISO
116TH RESPONDENT
KOELE, SECHABA E
117TH RESPONDENT
KUNENE, MOTLATSIE
118TH RESPONDENT
KWENYELA, DIKOKO
119 RESPONDENT
LEKOMOLA, THABO A
120TH RESPONDENT
LENYETA, MAIWE
121ST RESPONDENT
LETHIBELANE, EL YUS K
122ND RESPONDENT
LIKOTSI, BETHUEL
123RD RESPONDENT
LUSISI, DAVID V
124TH RESPONDENT
MAHAO, TEBOHO J
125TH RESPONDENT
MALISE. FRANCIS M
126TH RESPONDENT
MASOKA, ANTHONY P
127TH RESPONDENT
MASWELE. EDWARD
128TH RESPONDENT
MAZIKWANA, AUBERTSON S
129TH RESPONDENT
MEMANI, BATHATHU A
130TH RESPONDENT
MKA TSHANE, SIMPHlWE S
131ST RESPONDENT
MOETA, TEFO S
132ND RESPONDENT
MOHLOMi, ELIAS P
133RD RESPONDENT
MOKGARA, JULIUS M
134TH RESPONDENT
MOKHALI, RAMABANTA J
135TH RESPONDENT
MOKOENA, LEHLOHONOLO P
136TH RESPONDENT
MOLELEKOA, LETSOKO
137TH RESPONDENT
MONESA, LEBOHANG S
138TH RESPONDENT
MOSESANE, DANIEL S
139TH RESPONDENT
MOSHE, T
140TH RESPONDENT
MOTAUNG, MOITHERI E
141ST RESPONDENT
MPASI, PABALLO
142ND RESPONDENT
MPHAHLELE, KOKETSO T
143RD RESPONDENT
NGADA, ROBERT M
144TH RESPONDENT
NGANGEZWE, MLANGABEZI
145TH RESPONDENT

NTLAETOA, MOMO
146TH RESPONDENT
NTSOHI, TSEK1S0 E
147TH RESPONDENT
PEYANA, MNTUWOMZI
148TH RESPONDENT
PHAMOTSE. PHILLIP L
149TH RESPONDENT
PHATSISI, TSEBO
150TH RESPONDENT
RABIRI, PTROSE P
151ST RESPONDENT
RAMABELE, SIPHA J
152ND RESPONDENT
RASMENI, LARENG W
153RD RESPONDENT
SEPEAME, EMANUEL M
154TH RESPONDENT
SIMELANE, GERAME A
155TH RESPONDENT
SINDANE, TSIDISO P
156TH RESPONDENT
SITOE, ALCIDIO S
157TH RESPONDENT
SITGE, FILJMAO M
158TH RESPONDENT
TAU, ISAAC M
159TH RESPONDENT
THABO, JOEL
160TH RESPONDENT
TSOLA, PETROS N
161ST RESPONDENT
MOSEBI, SETHASAKELE MATHEWS
162ND RESPONDENT
KOOMA, LEFU
163RD RESPONDENT
MOLOPJ; THABO
164TH RESPONDENT
NTHO, ROBERT
165TH RESPONDENT
NTHOFE: ELA, M
166TH RESPONDENT
SIBIYA, JOSEPH L

167TH RESPONDENT
RUSTENBURG LOCAL MUNICIPALITY
168TH RESPONDENT
THE PROVINCIAL DIRECTOR, DEPARTMENT OF
RURAL DEVELOPMENT AND LAND AFFAIRS
169TH RESPONDENT
CIRCLE CATERING AND ACCOMMODATION
(PTY) LTD

170TH RESPONDENT
OTTO JOHAN WENHOLD

171ST RESPONDENT

Neutral citation:  Aquarius Platinum (SA) (Pty) v Bonene & others (1177/2018) [2019]
ZASCA 07 (16 March 2020)
Coram:
MAYA P, SALDULKER, VAN DER MERWE and MOCUMIE JJA and
DOLAMO AJA

Heard:

5 November 2019
Delivered:

16 March 2020

Summary:  Land – eviction under Extension of Security of Tenure Act 62 of 1997
(ESTA) – ESTA requires two consecutive steps to be taken before an eviction order may
be granted – first, the right of residence of an occupier must be terminated in terms of s
8 – thereafter, a notice of intention to obtain eviction order must be given to the occupier
in terms of s 9 – failure to allege and prove termination of right of residence fatal to
application for eviction.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Land Claims Court, Johannesburg (Ncube AJ sitting as court of first
instance):
The appeal is dismissed with costs.
______________________________________________________________________

JUDGMENT
______________________________________________________________________
The Court:

[1] This is an appeal against an order of the Land Claims Court (the LCC) dismissing
an application by the appellant, Aquarius Platinum (South Africa) (Pty) Ltd, for the eviction
of the 1st to the 167th respondents (the occupiers) under the Extension of Security of
Tenure Act 62 of 1997 (ESTA). The 171st respondent, Mr Otto Johan Wenhold, is the
owner of two portions of the farm Kroondal 304, Rustenburg, North West Province
(collectively referred to as ‘the farm’). Mr Wenhold did not participate in the appeal.
Neither did the 168th respondent, the Rustenburg Local Municipality, the 169th
respondent, the Provincial Director of the Department of Rural Development and Land
Affairs and the 170th respondent, Circle Catering and Accommodation (Pty) Ltd (Circle
Catering). The appeal is with the leave of the LCC (Ncube AJ).

[2] The material background facts are not in dispute. The appellant contracted Murray
& Roberts Cementation (Pty) Ltd (MRC) to perform mining operations at the Kroondal
Platinum Mine on the farm as well as the Marikana Platinum Mine. The occupiers were
employed by MRC and resided in hostels situated on the farm and at Marikana Platinum

Mine. During 2009 the occupiers and thousands of their co-workers participated in an
unprotected strike. At the conclusion of internal disciplinary proceedings, the occupiers
were all dismissed from that employment. They, however, challenged their dismissals
through the processes provided under the Labour Relations Act 66 of 1995 (the LRA).

[3] However, on 2 September 2009, the appellant approached the North West Division
of the High Court, Mahikeng (the high court) for an order evicting the occupiers from the
various hostels. On 8 September 2009 the high court granted the eviction order. Pursuant
thereto, the occupiers were evicted from the hostels. After the eviction of the occupiers,
these hostels were demolished. The occupiers, however, successfully challenged the
high court’s order in the LCC. On 20 September 2009, Bam JP ordered the restoration of
the occupiers’ rights of residence in terms of ESTA. As a result, the occupiers resumed
residence in reconstructed hostel facilities on the farm. Circle Catering manages this
hostel on behalf of Mr Wenhold.

[4] During 2012 the appellant became the employer of the occupiers by virtue of the
provisions of s 197 of the LRA, after determination of the agreement between the
applicant and MRC. In continued compliance with Bam JP’s order, the appellant entered
into a lease agreement in respect of the hostel on the farm with Circle Catering acting on
behalf of Mr Wenhold. Thus, the occupiers continued to exercise their rights of residence
in terms of ESTA on the farm.

[5] Protracted labour litigation ensued in the meantime. By 2 December 2014, the
litigation in respect of the 1st to 113th respondents had been concluded. Their employment

with the appellant had therefore been terminated by 2 December 2014. The litigation in
respect of the 114th to 161st respondents was similarly concluded on 13 November 2015
and as of that date they were no more employed by the appellant. The final determination
of the litigation in respect of the 162nd respondent, resulting in the termination of his
employment with the appellant, took place on 14 April 2016. In respect of the 163rd to
167th respondents, this took place on 26 April 2016.

[6] On 24 and 25 February 2015, the appellant served notices of the intention to
obtain an eviction order in terms of s 9(2)(d)(i) of ESTA on the 1st to 161st, the 164th and
the 166th to 167th respondents. Similar notices were served on the remaining occupiers
(the 162nd, 163rd and 165th respondents) on 3 June 2016. It appears therefore that eviction
notices were served on the 114th to 161st, the 164th and the 166th to 167th respondents
before the final termination of their employment. The appellant launched its application
for the eviction of the occupiers on 20 September 2016.

[7] The LCC decided the matter in favour of the respondents, and dismissed the
application for the eviction of the occupiers. It found, after considering both ss 8 and 9 of
ESTA, that:
‘[T]ermination of employment does not necessarily and automatically lead to the termination of
the occupier’s right of residence. The Act envisages a two-stage procedure before an order of
eviction may be granted. The first stage is the giving of a notice of termination of the right of
residence in terms of s 8. The manner in which this kind of notice is to be given is not prescribed.
The second stage is the giving of a notice of eviction in terms of s 9 (2)(d). The manner in which
this second notice is to be given, is prescribed in accordance with s 28(i)(b) of the Act. . . .’

[8] The LCC also held that:
‘[17] [T]he use of the phrase “may be terminated” in section 8(2) postulates a situation where the
owner or person in charge has a discretion. In other words, there will be cases where, despite the
fact that employment has been terminated, but the owner still in his or her discretion decides to
permit the former employee to continue to reside on the premises. Therefore, termination of
employment does not automatically lead to termination of the occupier’s right of residence. A
separate and specific notice of termination of right of residence is required.’
Thus, the LCC found that the appellant failed to satisfy the first statutory requirement for
the granting of an order of eviction. In our view, for the reasons mentioned below, the
LCC correctly dismissed the appellant’s application for the eviction of the first to the 167th
respondents (the occupiers) for failure to comply with the provisions of s 8 of ESTA.

[9] It is convenient to set out the relevant provisions of ESTA:
‘8 Termination of right of residence
(1) Subject to the provisions of this section, an occupier's right of residence may be terminated
on any lawful ground, provided that such termination is just and equitable, having regard to all
relevant factors and in particular to-
(a)   the fairness of any agreement, provision in an agreement, or provision of law on which the
owner or person in charge relies;
(b)   the conduct of the parties giving rise to the termination;
(c)   the interests of the parties, including the comparative hardship to the owner or person in
charge, the occupier concerned, and any other occupier if the right of residence is or is not
terminated;

(d)   the existence of a reasonable expectation of the renewal of the agreement from which the
right of residence arises, after the effluxion of its time; and
(e)   the fairness of the procedure followed by the owner or person in charge, including whether
or not the occupier had or should have been granted an effective opportunity to make
representations before the decision was made to terminate the right of residence.
(2) The right of residence of an occupier who is an employee and whose right of residence arises
solely from an employment agreement, may be terminated if the occupier resigns from
employment or is dismissed in accordance with the provisions of the Labour Relations Act.
(3) Any dispute over whether an occupier's employment has terminated as contemplated in
subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act,
and the termination shall take effect when any dispute over the termination has been determined
in accordance with that Act.
. . .
9  Limitation on eviction
(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of
an order of court issued under this Act.
(2) A court may make an order for the eviction of an occupier if-
(a) the occupier's right of residence has been terminated in terms of section 8;
(b) the occupier has not vacated the land within the period of notice given by the owner or person
in charge;
(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with;
and
(d) the owner or person in charge has, after the termination of the right of residence, given-
(i) the occupier;
(ii) the municipality in whose area of jurisdiction the land in question is situated; and

(iii) the head of the relevant provincial office of the Department of Rural Development and Land
Reform, for information purposes,
not less than two calendar months' written notice of the intention to obtain an order for eviction,
which notice shall contain the prescribed particulars and set out the grounds on which the eviction
is based: Provided that if a notice of application to a court has, after the termination of the right of
residence, been given to the occupier, the municipality and the head of the relevant provincial
office of the Department of Rural Development and Land Reform not less than two months before
the date of the commencement of the hearing of the application, this paragraph shall be deemed
to have been complied with.’

[10] Both this Court and the Constitutional Court have authoritatively interpreted these
provisions. Approximately two decades ago, this Court found in Mkangeli and Others v
Joubert and Others1 that there had to be a proper termination of the right of residence. It
stated:
‘Once an occupier's right to reside has been duly terminated, his refusal to vacate the property is
unlawful. Nevertheless, it does not mean that the remedy of eviction will necessarily be available.
This remedy is limited by those provisions of ESTA to which I will presently return. On the other
hand, ESTA places no limitation on the other remedies attracted by unlawful occupation. It must
therefore be accepted, I think, that the other remedies, such as the owner's delictual claim for
his patrimonial loss caused by the unlawful occupation of his land (see, for example, Hefer v
Van Greuning 1979 (4) SA 952 (A)) are still available to him.
As to the remedy of eviction s 9(2) provides that a court may only issue an eviction order if certain
conditions are met. The first such condition is that the occupier's right to residence must have
been properly terminated under s 8. Other conditions prescribed by s 9(2) include the giving of

1 Mkangeli and Others v Joubert and Others [2002] ZASCA 13; [2002] 2 All SA 473 (A); 2002 (4) SA 36
(SCA) paras 12-13.

two months' notice of the intended eviction application after the right to reside has been terminated
under s 8 (s 9(2)(d)). In a case such as the present, where the appellants took occupation of
Itsoseng after 4 February 1997, s 11 also finds application. This section provides that a court may
only grant an eviction order if it is of the opinion that it is just and equitable to do so. In deciding
whether it is just and equitable to grant an eviction order the court must have regard to the
considerations listed in s 11(3), but it is not limited to them. Included amongst these is the
consideration 'whether suitable alternative accommodation is available to the occupier' (s
11(3)(c)) and 'the balance of the interests of the owner . . . the occupier and the remaining
occupiers on the land' (s 11(3)(e)).’

[11] In Sterklewies2 this Court said the following:
‘The Act contemplates two stages before an eviction order can be made. First the occupier's right
of residence must be terminated in terms of s 8 of the Act. The manner in which this is to be done
is not specified. Once the right of residence has been terminated then, before an eviction order
can be sought, not less than two months' notice of the intention to seek the occupier's eviction
must be given to the occupier, the local municipality and the head of the relevant provincial office
of the Department of Land Affairs in terms of s 9(2)(d) of the Act. That notice is required to be in
a form prescribed by regulations made in terms of s 28 of the Act.’

[12] The Constitutional Court said the following in Snyders:3
‘If a person has a right of residence on someone else’s land under ESTA, that person may not be
evicted from that land before that right has been terminated.  In other words, the owner of land
must terminate the person’s right of residence first before he or she can seek an order to evict

2 Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others [2012] ZASCA 77; 2012 (5) SA 392
(SCA) para 16.
3 Snyders and Others v De Jager and Others [2016] ZACC 55; 2017 (3) SA 545 (CC) para 68.

the person.  However, it must be borne in mind that the termination of a right of residence is
required to be just and equitable in terms of section 8(1) of ESTA.  Section 8(2) deals with the
right of residence of an occupier who is an employee of the owner of the land or of the person in
charge and whose right of residence arises solely from an employment agreement.  It provides
that such a right of residence may be terminated “if the occupier resigns from employment or is
dismissed in accordance with the provisions of the Labour Relations Act.’
And at para 56:
‘Section 8(1) makes it clear that the termination of a right of residence must be just and equitable
both at a substantive level as well as at a procedural level.  The requirement for the substantive
fairness of the termination is captured by the introductory part that requires the termination of a
right of residence to be just and equitable.  The requirement for procedural fairness is captured in
section 8(1)(e).’4
And further at para 73:
‘In any event, even if it were to be accepted that Ms de Jager terminated Mr Snyders’ right of
residence, she has failed to show, as is required by section 8(1) of ESTA, that there was a lawful
ground for that termination and that, in addition, the termination was just and equitable. At best
for Ms de Jager, she purported to show no more than that there was a lawful ground for the
termination of the right of residence. She did not go beyond that and place before the Magistrate’s
Court evidence that showed that the termination of Mr Snyders’ right of residence was just and
equitable.’

[13]  Thus, both the clear meaning of the language of these sections and their context
(the need to protect the rights of residence of vulnerable persons) indicate a two-stage
procedure.  Section 8 provides for the termination of the right of residence of an occupier,

4 Snyders fn 4 para 56.

which must be on lawful ground and just and equitable, taking into account, inter alia, the
fairness of the procedure followed before the decision was made to terminate the right of
residence. Section 8 at least requires that a decision to terminate the right of residence
must be communicated to the occupier. Section 9(2) then provides for the power to order
eviction if, inter alia, the occupier’s right of residence has been terminated in terms of s
8, the occupier nevertheless did not vacate the land and the owner or person in charge
has, after the termination of the right of residence, given two months’ written notice of the
intention to obtain an eviction order. Section 8(2) must of course be read with s 8(1) and
provides for a specific instance of what may constitute a just and equitable ground for the
termination of a right of residence.

[14] It is common cause that the appellant did not terminate the right of residence of
any of the occupiers. It is clear from the papers that the appellant failed to appreciate the
need to comply with this legal requirement. In its founding affidavit the appellant, on the
one hand, erroneously equated the termination of employment with termination of the
right of residence, and on the other, stated that the occupiers’ right of residence had to
be terminated by the court. In their answering affidavit the occupiers admitted the
termination of their employment, but pertinently denied that their rights of residence had
been terminated. This elicited the quite untenable response in the replying affidavit that
in the light of the admission of the termination of their employment, the occupiers ‘. . .
have failed to provide reasons why they still have rights in terms of ESTA or in terms of
any other law to continue to occupy the hostel’. As we have said, it was for the appellant
to allege and prove, in addition to the termination of the employment of the occupiers,
that their rights of residence had been terminated.

[15] The appellant only served notices in terms of s 9(2)(d)(i) on the occupiers. And in
respect of a substantial number of them (the 114th – 161st, 164th, 166th and 167th
respondents), this took place even before their employment was finally terminated.

[16] It follows that the appellant’s case for eviction of the occupiers suffered from a fatal
defect and therefore the appeal must fail.

[17] In the result we make the following order:
The appeal is dismissed with costs.

____________________________
M M MAYA
PRESIDENT

____________________________
H K SALDULKER
JUDGE OF APPEAL

____________________________
C H G VAN DER MERWE
JUDGE OF APPEAL

____________________________
B C MOCUMIE
JUDGE OF APPEAL

____________________________
M J DOLAMO
ACTING JUDGE OF APPEAL

APPEARANCES:
For Appellant:

PL Mokoena SC, with him M Majozi and S Kunene
Instructed by:

Werksmans Attorneys, Johannesburg

c/o Symington De Kok, Bloemfontein

For 1st to 167th Respondent:
JJ Botha
Instructed by:

Matshitse Attorneys, Potchefstroom
c/o Bezuidenhout Attorneys, Bloemfontein

For 168th Respondent:

No appearance

M E Tlou Attorneys & Associates, Mahikeng

c/o Moroka Attorneys, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

16 March 2020

STATUS

Immediate

Aquarius Platinum (South Africa) (Pty) Ltd v Bonene Sebajoa and 170 Others
(1177/2018) [2020] ZASCA 07 (16 March 2020)
Please note that the media summary is intended for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (SCA) dismissed the appeal of the appellant, Aquarius Platinum
(South Africa) (Pty) Ltd, against the decision of the Land Claims Court, Johannesburg (LCC).

The appellant contracted a third party to perform mining operations at the Kroondal Platinum Mine, on
a farm in Rustenburg, North West Province and on the Marikana Platinum Mine. The 1st to 167th
respondents (the occupiers) were employed by the third party and resided in hostels on the farm and
at Marikana Platinum Mine.

The occupiers participated in an unprotected strike and were dismissed. The occupiers challenged their
dismissal under the Labour Relations Act 66 of 1995 (the LRA). The appellant then applied and was
granted an eviction order under the Extension of Security of Tenure Act 62 of 1997 (ESTA) against the
occupiers in the North West Division of the High Court, Mahikeng (the high court). The occupiers
successfully challenged the high court’s order in the LCC, where the restoration of the occupiers’ rights
of residence in terms of ESTA was ordered. The occupiers then resumed residence on the farm.

The appellant then became the employer of the occupiers by virtue of s 197 of the LRA and the
occupiers continued to exercise their rights of residence in terms of ESTA. After protracted labour
litigation, the occupiers were dismissed. The appellant served notice of its intention to obtain an eviction
order on the occupiers in terms of s 9(2)(d)(i) of ESTA, some having been served before the final
termination of the employment of some of the occupiers. The appellant then launched an application
for the eviction of the occupiers in the LCC, which was dismissed. The appellants then appealed this
decision to the SCA.

The SCA held that ss 8 and 9 of the ESTA had been authoritatively interpreted to require the proper
termination of occupiers’ rights of residence. It held that these sections require a two-stage procedure
that involves: first, the termination of the occupiers’ right of residence in terms of s 8 of ESTA; and
second, before an eviction order can be sought, occupiers must be given notice of the intention to seek
their eviction in terms of s 9(2)(d)(i) of ESTA.
The SCA held that it was common cause that the appellant had not terminated any of the occupiers’
right of residence. It held that the appellant failed to appreciate the need to comply with this legal

requirement. And it is the duty of the appellant to allege and prove, in addition to the termination of the
employment of the occupiers, that their rights of residence had been terminated.

The SCA further held that in the present case the appellant had only served notices in terms of
s 9(2)(d)(i) on the occupiers. And in respect of a substantial number of them, this took place before their
employment was finally terminated. In the circumstances, the appellant’s case for the eviction of the
occupiers suffered from a fatal defect. The appeal was accordingly dismissed.