THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1012/2020
LCC Case No: 59/2018

In the matter between:
TIMOTHY MALULEKE N.O.

APPELLANT
(in his capacity as trustee of the               (Applicant in the Court a quo)
Hlaniki Trust IT 1101/2007)
and
DANIEL PHELLIMON SIBANYONI

FIRST RESPONDENT
(First Respondent in the Court a quo)
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY                                               SECOND RESPONDENT
(Second Respondent in the Court a quo)
THE DIRECTOR-GENERAL: DEPARTMENT
OF RURAL DEVELOPMENT AND
LAND REFORM
THIRD RESPONDENT
(Third Respondent in the Court a quo)

Neutral citation: Timothy Maluleke N.O. v Daniel Phellimon Sibanyoni
and Others (Case no 1012/2020) [2022] ZASCA 40 (04
April 2022)
Coram:
MOCUMIE, MOLEMELA AND CARELSE JJA AND MUSI
AND SMITH AJJA
Heard:
23 February 2022
Delivered:  04 April 2022
Summary: Land – Land Reform –Extension of Security of Tenure Act 62 of
1997 (ESTA) – termination of right of residence – were occupiers given an
effective opportunity to make representations before termination of right to
residence in terms of s 8(1)(e) – if not, was the termination of right of
residence just and equitable.

ORDER

On appeal from: Land Claims Court, Randburg (Spilg J, sitting as court of first
instance): judgment reported sub nom Timothy v Sibanyoni and Others
(LCC/24/2009) [2009] ZALCC 8 (5 August 2020)
The appeal is dismissed.
No order as to costs.

JUDGMENT

Carelse JA (Mocumie, Molemela and Carelse JJJA and Musi and Smith
AJJA – concurring)

[1] The central issue in this appeal is whether the termination of the first
respondent’s (Mr Sibanyoni) right to reside on a farm was just and equitable both
in substance and procedure in terms of s 8(1) of the Extension of Security of
Tenure Act 62 of 1997 (ESTA). This appeal is with leave of the Land Claims
Court (LCC).

[2] The appellant, the Hlaniki Trust (the Trust) sought the eviction of Mr
Sibanyoni, under ESTA from portion 5 (a portion of Portion 4) of the farm
Tweefontein 541, Registration Division JR, Province of Gauteng (farm)
measuring 498,8842 hectares. In 2015, the Trust bought the farm, from the
previous owner, the Tweefontien Trust represented by Ms Viljoen without
knowing about Mr Sibanyoni’s occupation.

[3] Mr Sibanyoni, at the time of the application was 56 years old. He resided
in a labourer’s cottage on the farm with his wife, niece, nephew and mother.
Subsequent to the launch of the application, Mr Sibanyoni’s mother has since
died.

[4] Both Mr Sibanyoni’s parents resided on the farm. He was born and raised
there. According to him, his late father and the previous owner had a verbal
agreement in terms of which they were given rights to a portion of the farm which
they used for cropping and grazing as part payment for their labour.

[5] The Trust disputed the agreement.  It alleges that it was only in 2017, when
the sheriff attempted to serve documents on Mr Johannes Sibanyoni, (the older
brother of the appellant, Mr Sibanyoni) that it became aware that Mr Sibanyoni
and his family resided on the farm. Furthermore, the Trust alleges that Mr
Sibanyoni and Mr Johannes Sibanyoni shared a labourer’s cottage on the farm.

[6] Disputing this, Mr Sibanyoni contends that he lived in a separate labourer’s
cottage on the farm. It is not disputed that Mr Sibanyoni has 30 cows and a
number of goats and chickens.  According to Mr Sibanyoni he was employed as
a seasonal worker. However, it is common cause that he is not, and never was,
employed by the Trust.

[7] In its founding affidavit, the Trust alleges that Mr Sibanyoni moved onto
the farm after 4 February 1997 without the necessary consent. Notwithstanding
this contention by the Trust, at the hearing of this appeal, the Trust conceded that
Mr Sibanyoni is, in fact, an occupier.1  Initially in issue, was whether Mr

1 ‘Occupier’ means a person residing on land which belongs to another person. and who has or on 4 February
1997 or thereafter had consent or another right in law to do so, but excluding—
(a)
a labour tenant in terms of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996); and

Sibanyoni arrived on the farm before or after 1997. However, during argument,
the Trust conceded that Mr Sibanyoni arrived on the farm before 4 February 1997.
Section 9(2) (c) of ESTA requires compliance with section 10 of ESTA, if the
person to be evicted was already an occupier on 4 February 1997, and compliance
with s 11 if the person became an occupier after 4 February 1997. It follows that
the provisions of s 102 and not s 113 in terms of ESTA apply.

(b)
a person using or intending to use the land in question mainly for industrial. Mining, commercial or
commercial farming purposes, but including a person who works the land himself or herself and does
not employ any person who is not a member of his or her family; and
(c)
a person who has an income in excess of the prescribed amount.
2 Section 10 of ESTA provides that:
‘(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if—
(a)
the occupier has breached section 6(3) and the court is satisfied that the breach is material and that the
occupier has not remedied such breach;
(b)
the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s
right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has
breached a material and fair term of the agreement, although reasonably able to comply with such term,
and has not remedied the breach despite being given one calendar month’s notice in writing to do so;
(c)
the occupier has committed such a fundamental breach of the relationship between him or her and the
owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner
which could reasonably restore the relationship; or
(d)
the occupier—
(i)
is or was an employee whose right of residence arises solely from that employment; and
(ii)
has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the
Labour Relations Act.
(2) Subject to the provisions of subsection (3), if none of the circumstances referred to in subsection (1) applies,
a court may grant an order for eviction if it is satisfied that suitable alternative accommodation is available to the
occupier concerned.
(3) If—
(a)
suitable alternative accommodation is not available to the occupier within a period of nine months after
the date of termination of his or her right of residence in terms of section 8;
(b)
the owner or person in charge provided the dwelling occupied by the occupier: and
(c)
the efficient carrying on of any operation of the owner or person in charge will be seriously prejudiced
unless the dwelling is available for occupation by another person employed or to be employed by the
owner or person in charge.
A court may grant an order for eviction of the occupier and of any other occupier who lives in the same dwelling
as him or her. And whose permission to reside there was wholly dependent on his or her right of residence if it is
just and equitable to do so, having regard to—
(i)
the efforts which the owner or person in charge and the occupier have respectively made in order to
secure suitable alternative accommodation for the occupier; and
(ii)
the interests of the respective parties. Including the comparative hardship to which the owner or person in
charge. The occupier and the remaining occupiers shall be exposed if an order for eviction is or is not
granted.
3 Section 11 provides as follows:
‘(1) If it was an express, material and fair term of the consent granted to an occupier to reside on land, that
the consent would terminate upon a fixed or determinable date, a court may on termination of such consent
by effluxion of time grant an order for eviction of any person who became an occupier of the land in
question after 4 February 1997, if it is just and equitable to do so.
(2) In circumstances other than those contemplated in subsection (1), a court may grant an order for
eviction in respect of any person who became an occupier after 4 February 1997 if it is of the opinion that
it is just and equitable to do so.

[8] The LCC dismissed the application for the eviction of Mr Sibanyoni and
his family. It is common cause that if this Court finds that the Trust did not
comply with s 8 of ESTA, it would be dispositive of the matter. There would be
no need to deal with s 94, and 10 of ESTA.

[9] This Court in Aquarius Platinum (SA) (Pty) v Bonene and Others5 re-
affirmed the principle that ESTA envisages a two–stage eviction procedure. The
first is a notice terminating the occupier’s right to reside, thereafter a second
notice of eviction in terms of s 9(2)(d)6 should be given to the occupier.  Several
letters purporting to terminate Mr Sibanyoni’s right to reside were sent to him.
However, it is not disputed that Mr Sibanyoni received a letter dated 12 February
2018, terminating his right to reside on the farm. It is trite that until an occupier’s
right to reside is terminated through the withdrawal of an owner’s consent, an

(3) In deciding whether it is just and equitable to grant an order for eviction in terms of this section. the
court shall have regard to-
(a) the period that the occupier has resided on the land in question;
(b) the fairness of the terms of any agreement between the parties;
(c) whether suitable alternative accommodation is available to the occupier;
(d) the reason for the proposed eviction;
(e) the balance of the interests of the owner or person in charge. the occupier and the remaining
occupiers on the land.’
4 Section 9 provides as follows:
‘(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 Land Affairs, 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 Land
Affairs 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.’
5 Aquarius Platinum (SA)(Pty) Ltd v Bonene and Others [2020] ZASCA 7; 2020 (5) SA 28 (SCA);Sterklewies
(Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others [2012] ZASCA 77.
6 Ibid, s 9 (2)(d).

occupier cannot be evicted. Mr Sibanyoni refused to vacate, as a result thereof,
on 5 April 2018, the Trust launched an eviction application against Mr Sibanyoni
and all those who occupy through him.

[10]  Section 9(2)(a) of ESTA requires that the occupier’s right of residence
must have been terminated in terms of Section 8 of ESTA, which in relevant part,
reads as follows:
‘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 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.’ (Emphasis added.)
Section 9(3) provides:
‘(3)   For the purposes of subsection (2)(c), the Court must request a probation officer
contemplated in section 1 of the Probation Services Act, 1991 (Act No 116 of 1991), or an
officer of the department or any other officer of the department or any other officer in the
employment of the State, as may be determined by the Minister, to submit a report within a
reasonable period –
(a)  on the availability of suitable alternative accommodation to the occupier;

(b) indicating how an eviction will affect the constitutional rights of any affected
person, including the rights of the children, if any, to education;
(c)  pointing out any undue hardships which an eviction would cause the occupier; and
(d)  On any other matter as may be prescribed.

[11] The requirements for an eviction order are located in s 9(2) under ESTA.
The right of residence of an occupier can, subject to certain exceptions which are
not relevant in this case, only be terminated if it is just and equitable to do so,
having regard specifically to five factors set out in s 8(1) of ESTA.

[12] In Port Elizabeth Municipality v Various Occupiers7 Sachs J analysed the
phrase ‘just and equitable’ with reference to The Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and said:
‘The phrase “just and equitable” makes it plain that the criteria to be applied are not purely of
a technical kind that flow ordinarily from the provisions of land law. The emphasis on justice
and equity underlines the central philosophical and strategic objective of PIE. Rather than
envisage the foundational values of the rule of law and the achievement of equality as being
distinct from and in tension with each other, PIE treats these values as interactive,
complimentary and mutually reinforcing. The necessary reconciliation can only be admitted by
close analysis of the factual specifics of each case. The court is thus called upon to go beyond
its normal functions and to engage in active judicial management according to equitable
principles of ongoing stressful and law-governed social process. This has major implications
for the manner in which it must deal with the issuers before it, how it could approach questions
of evidence, the procedure it may adopt, the way in which it exercises its powers and the orders
it makes. The Constitution and PIE require that in addition to considering the lawfulness of the
occupation the court must have regard to the interests and circumstances of the occupiers and
pay due regard to . . . broader considerations of fairness and other constitutional values, so as
to produce a just and equitable result.’ (Footnotes omitted.)
These remarks apply with equal force to ESTA.8

7 Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC) paras 35 & 36.
8 See Herman Diedericks v Univeg Operations South (Pty) Ltd t/a Heldervue Estates LCC 18/2011.

[13]  The question that arises is whether the termination of Mr Sibanyoni’s
residence was just and equitable as required by s 8(1) of ESTA. This requires a
court to consider ‘all relevant factors’ and, in particular, the subparagraphs (a) to
(e). The nature of the enquiry has been laid down by the Constitutional Court in
Snyders and Others v De Jager9 where it was said:
‘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 of the termination is captured by the introductory part that requires
the termination of a right of residence to be just and equitable.’
ESTA demands fairness and equity in all dealings with occupiers.

[14]   The Trust submits that a court is called upon to determine ex post facto,
whether the termination of the right of residence was lawful as well as just and
equitable. I agree that the enquiry into whether the termination of the right of
residence is lawful and just and equitable occurs ex post facto. However, this does
not mean that the occupier must first be evicted. It only means that it happens
after the termination, while the occupier still resides on the premises.

[15] In this case subparagraphs (a) and (b) of s 8(1) do not apply. The Trust
does not rely on any agreement to seek the eviction of Mr Sibanyoni and neither
is any reliance placed on the conduct of Mr Sibanyoni or any of his family
members.

[16]  Regarding subparagraph (c), the Trust alleges that not terminating Mr
Sibanyoni’s right of residence will result in hardship for the Trust. In its founding
affidavit10 the Trust contends that,
‘. . . it is suffering considerable hardship on account of being prevented from developing the
area of the Farm in which the First Respondent resides. Furthermore, by virtue of the First

Snyders and Others v De Jager [2016] ZACC 55; 2017 (3) SA 545 (CC) para 56.
10 Founding Affidavit para 28.

Respondents continued occupation, the Applicant is prevented from accommodating current
and/or prospective employees of the Applicant on the Farm. It is unjust and inequitable for the
First Respondent to continue residing on the Applicants’ Farm without giving any benefits to
the Applicant and depriving its current and / or prospective employees of accommodation.’

[17]    In response thereto, Mr Sibanyoni contends that:
‘I hereby submit that me and my family have been occupying the portion of the farm that we
are currently occupying, for a long period of time and it has not previously been an impediment
to the development of the farm. Considering the size of the portion that we are occupying and
its positioning on the farm, without assuming or suggesting that I am knowledgeable in this
regard, it cannot reasonably be considered to be a disturbance to any prospective development,
unless the contrary can be proven, in which case the Applicant is put to the proof thereof.’11

[18] With regard to subparagraph (c), on the issue of comparative hardship, the
LCC held that the termination of Mr Sibanyoni’s right of residence will have a
devastating impact and consequences for him. The information of the proposed
development is scant and lacks particularity. No plans pertaining to the alleged
development was attached to its founding affidavit. The further contention that
the cottage was required for its employees and for operational needs of the farm
appeared unfounded as there was no evidence as to how many labourers currently
occupy the property or any other details or information pertaining to the
operational requirements of the Trust and the farm. The Trust had to do more than
make mere assertions that it will suffer hardship if it did not terminate Mr
Sibanyoni’s right of residence.

[19]  Counsel for the Trust correctly submits that the onus is on the Trust to
place information before the Court to enable it to have regard to the criteria listed
under s 8(1)(a) to (e) and any other relevant factors. I agree that the hardship that
Mr Sibanyoni would suffer if evicted far outweighs that of the Trust.

11 Answering Affidavit para 31.

[20] It bears mentioning that the attitude of the Trust concerning the issue of
alternative accommodation for Mr Sibanyoni and his family cannot be
countenanced by any court. On the issue of alternative accommodation, the Trust
submitted that it had established that there is a nearby township which could
accommodate Mr Sibanyoni and his family. The Trust, thereby, ignores the
undisputed fact that Mr Sibanyoni has livestock which require grazing land. This
is not, ordinarily, possible in a township.

[21] Subparagraph (d) is not applicable. As far as s 8(1)(e) is concerned, the
Trust contends in its Founding Affidavit that:
‘The Applicant submits that the procedure followed has been fair and that the First Respondent
has been given ample opportunity and time to vacate the Farm and will be given an opportunity
to make representations before the Honourable Court.’

[22]  In Snyders12 the Constitutional Court held:
‘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 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 Snyder’s right of residence
was just and equitable.
. . .  Counsel for the Snyders family also contended that the Magistrates Court should not have
issued an eviction order because the Snyders family had not been afforded any procedural
fairness by way of an opportunity to be heard before they were required to vacate the property.
It is common cause that the Snyders family were never invited to make representations to Ms
De Jager on why they should not be required to vacate the house before they were actually
required to vacate it. In my view, the submission by Counsel for the Snyders family has merit.
ESTA requires the termination of the right of residence to also comply with the requirement of
procedural fairness to enable this person to make representations why his or her right of

12 Footnote 9, paras 72 and 75.

residence should not be terminated. This is reflected in section 8(1)(e) of ESTA. A failure to
afford a person that right will mean that there was no compliance with this requirement of
ESTA This would render the purported termination of the right of residence unlawful and
invalid. It would also mean that there is no compliance with the requirement of ESTA that the
eviction must be just and equitable. . ..’

[23] The Trust submitted13 that the procedure adopted by it was fair. However,
it is not stated what procedure is referred to. More telling is the further allegation
that Mr Sibanyoni will have the opportunity to make representations before a
court. This misconstrues the provisions of s 8(1)(e) which expressly states: ‘ ‘the
fairness of the procedure followed by the owner or person, 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.’(Emphasis added.)
In this case it is common cause that the Trust did not engage with Mr Sibanyoni
before terminating his right of residence.

[24] Counsel for the Trust submitted that para 75 in Snyder’s was obiter. I
disagree. The Constitutional Court dealt with both the issue of substantive
fairness and procedural fairness which were before it. Paragraph 75 dealt
specifically with procedural fairness.

[25] The approach of the LCC on the issue of s 8(1)(e) cannot be faulted. The
LCC held that: ‘Furthermore as I will indicate later, the fairness of the procedure followed
must of necessity be case specific and a weighting must be given to it relative to the other
factors. It may well be definitive in some cases while in others it may only be a factor carrying
little or no weight. In short; whether it will be the silver bullet cannot be determined in isolation
at this preliminary stage bearing in mind the extent of the disputed facts.’

13 See para 19 of this judgment.

[26] It is apparent from the record that the Trust was only prepared to engage
with the erstwhile owner of the farm and not the occupier. There is no plausible
reason why the Trust did not engage with Mr Sibanyoni before it terminated his
right of residence. Given the particular hardship for Mr Sibanyoni that will flow
from an eviction, in my view this is a case where there ought to have been ‘an
effective opportunity to make representations before the decision was made to
terminate the right of residence’ in terms of s 8(1)(e) of ESTA. According to Mr
Sibanyoni, he was born on the farm. What is therefore clear is the fact that Mr
Sibanyoni was on the farm prior to 4 February 1997. Had the Trust engaged Mr
Sibanyoni before it terminated his right of residence, it would have appreciated
the history of Mr Sibanyoni and his family’s occupation on the farm.

[27] The failure by the Trust to provide Mr Sibanyoni with an opportunity, let
alone an effective opportunity, to make representations before terminating his
right of residence is not reconcilable with the principles of procedural fairness as
envisaged in s 8 of ESTA and confirmed in numerous judgments of this Court14
and the Constitutional Court15.

[28] As a result, the termination of Mr Sibanyoni’s right of residence was not
just and equitable. In light of this finding, there is no need to deal with ss 9 and
10 of ESTA.

[29]  In the result the appeal falls to be dismissed and the following order is
made:
The appeal is dismissed.
No order as to costs.

14 See fn 5.
15 See fn 9.

________________________
Z CARELSE
JUDGE OF APPEAL

Appearances

For appellant:                   Mr G F Porteous
Instructed by:
Cliffe Dekker Hofmeyr, Sandton
McIntyre van der Post Attorneys, Bloemfontein

For first respondent:
Mr L Sefudi
Instructed by:
Marivate Attorneys, Pretoria
Moroka Attorneys, Bloemfontein.

For third respondent:
Mr K Toma
Instructed by:
Office of the State Attorney, Pretoria

Office of the State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
04 April 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Timothy Maluleke N.O. vs Daniel Phellimon Sibanyoni & Others (Case Name: 1012/2020) [2022] ZASCA 40 (04
April 2022)
Today the Supreme Court of Appeal (SCA) dismissed an appeal from the Land Claims Court, Randburg.
The appeal dealt with the question whether the termination of the first respondent’s right to reside on the farm
was just and equitable both in substance and procedure as prescribed by the Extension of Security of Tenure Act
62 of 1997 (ESTA). The first respondent had resided on the farm before 4 February 1997 and had cropping and
grazing rights, in exchange for his labour on the farm. The appellant sought the respondent’s eviction and alleged
that the first respondent moved to the farm without the necessary consent and, as a result, exerted considerable
and intolerable hardship on the farm and its continued development.
This Court considered the provisions of ESTA and found that an occupier’s right of residence can only be
terminated in the event that it is just and equitable to do so. This prompted the Court to consider all relevant factors
ex post facto.
To this end, this Court found that not all relevant factors had been considered. It was clear that the appellant was
only prepared to deal with the owners of the property, not it’s occupiers.  In addition, the conduct of the appellant
not affording the first respondent an opportunity to make representations prior to the termination of his right to
residence, which this Court found to be irreconcilable with the principles of procedural fairness as envisaged by
ESTA. This Court found that the termination of the first respondent’s right to residence was not just and equitable.
In the result, the appeal was dismissed.
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