THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 478/2018

In the matter between:

CEDRIC MORGAN JONES
FIRST APPELLANT
DIANE MORGAN JONES
SECOND APPELLANT
KERENZA MORGAN JONES
THIRD APPELLANT

and

SHAWN SUTHERLAND
FIRST RESPONDENT
JULIA SUTHERLAND
SECOND RESPONDENT

Neutral citation:
Jones & others v Sutherland & another (478/2018) [2019] ZASCA
146 (14 November 2019)

Coram:

Maya P, Tshiqi, Mokgohloa, Nicholls JJA and Dolamo AJA

Heard:

13 September 2019

Delivered:

14 November 2019

Summary:
Eviction in terms of Extension of Security of Tenure Act 62 of 1997 – is it
just and equitable to terminate the right of residence in terms of 8(1) and grant an eviction
order – after balancing rights of the parties held that the eviction should be granted.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Land Claims Court, Port Elizabeth (Canca AJ sitting as court of first
instance):
1 The appeal is dismissed.
2 There is no order as to costs.
3 The first, second and third appellants are ordered to vacate the property known as
Portion 40 of the Farm Witkoppie 373 IR, Midvaal, Gauteng, by no later than 29 February
2020.
4 Should the appellants fail to comply with the above order, the sheriff is authorised to
evict the first, second and third appellants from the above-mentioned property.

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Nicholls JA (Maya P, Tshiqi, Mokgohloa JJA and Dolamo AJA concurring):

[1] This is an appeal against the eviction of Mr Cedric Morgan Jones and Mrs Diane
Morgan Jones, aged 78 and 76 years old respectively, together with their mentally
disabled daughter, Ms Kerenza Morgan Jones, aged 48 years old. They are the three
appellants herein. They reside on a farm in Meyerton, Gauteng described as Farm 373,
Portion 40 Witkoppie IR, Midvaal.  Mr Shawn Sutherland and Mrs Julia Sutherland, the
respondents, are the registered owners of the farm.  The appellants have been in
occupation of the farm since July 2013, residing there rent-free since November 2013, a
period of almost six years.

[2] The Sutherlands successfully launched an application for eviction of the elderly
couple and their daughter in the Meyerton Magistrates’ Court, Midvaal. The Joneses and
all other occupiers were ordered to vacate the property within 3 months of the date of the

eviction order granted on 7 June 2017 by Magistrate E A Makda. On automatic review to
the Land Claims Court, Canca AJ confirmed the eviction order and authorised the sheriff
to facilitate the eviction should they fail to vacate by 1 December 2017. The Joneses
appeal their eviction with the leave of this court.

[3] Both parties agreed that this is an eviction in terms of the Extension of Security of
Tenure Act 62 of 1997 (ESTA). The mandatory requirements for the granting of an
eviction order under ESTA are set out in s 9 which provides:
‘(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 s 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 s 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.
(3) For the purposes of subsec (2)(c), the Court must request a probation officer contemplated
in s 1 of the Probation Services Act, 1991 (Act 116 of 1991), or an 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.’

[4] Section 9(2)(a) makes it clear that an eviction may only be ordered once there has
been a lawful termination of the right of residence in terms of s 8. This is subject to
compliance with procedural requirements specified in s 9(2)(d) and s 9(3). Therefore,
where the right of residence is by consent, before any eviction is ordered, the starting
point is s 8(1). In terms of this section an occupier’s right of residence may be terminated
on any lawful ground, provided that such termination is just and equitable. The factors to
be considered are:
‘(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.’

[5] Section 11 regulates evictions of persons who became occupiers after February
1997. Subsection (1) provides that:
‘If it was an express, material and fair term of the consent granted to an occupier to reside on the
land in question, 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.’

[6] Section 11(3) sets out what circumstances the court must have regard to when
determining if an eviction is just and equitable. These are:
‘(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; and
(e) the balance of the interests of the owner or person in charge, the occupier and the remaining
occupiers on the land.’

[7] It is against this legislative framework that the facts of this case should be
evaluated. A court is enjoined to weigh the competing rights of the parties, the right to
security of tenure in respect of the occupiers and, in respect of owners, the right to their
property.1 Justice and equity have a determinative role to play.

[8] Mr Jones and Mr Sutherland entered into a one year verbal agreement of lease
commencing on 1 July 2013.  In terms of the agreement the main house on the farm was
leased to Mr and Mrs Jones for the sum of R6 000 per month and a deposit of R8 000
was paid. It is common cause that as from November 2013 no further rentals were paid
by them.

[9] According to Mr Jones, their non-payment was informed by the fact that on 28
October 2013 Mr Sutherland told them that he had sold the farm to a certain Mr John
Hartley and was ‘washing his hands of the whole place’. Although Mr Sutherland did not
specify that the lease was terminated, Mr Jones interpreted this as a unilateral termination
which amounted to a repudiation which he did not accept. He stated that he elected to
uphold the lease agreement as the one year period had not expired.

[10] Mr Sutherland sent his first notice of termination of the lease agreement on 10
January 2014. In this notice he stated that the reason for the termination was that the
property has been sold and that the new owner wanted to take vacant possession. When

1 Daniels v Scribante & another [2017] ZACC 13; 2017 (4) SA 341 (CC); Molusi & others v Voges NO &
others [2016] ZACC 6; 2016 (3) SA 370 (CC) para 39.

this was ignored Mr Sutherland proceeded to sue Mr and Mrs Jones for the arrear rentals.
Default judgment was later obtained.

[11] Mr Jones alleged that because they did not vacate voluntarily, Mr Sutherland, by
his actions attempted to constructively evict them. He illegally cut off their electricity
supply. This is disputed by Mr Sutherland who provided an affidavit from an Eskom
employee that the electricity had been cut off due to non-payment, on instruction from
Eskom.

[12] Mr Jones set out a litany of alleged misconduct by Mr Sutherland and/or Mr Hartley,
acting alone or in concert. In addition to cutting the electricity of the Joneses, this also
included removal of their water pumps, destruction of water tanks, destruction of solar
panels, damage to their tractor, breaking of windows and other malicious damage to their
property.  Mr Jones estimated that they suffered damages in the sum of R600 000 as a
result of this unlawful conduct. Mr Sutherland in turn alleged that his property was
vandalised by the Joneses.

[13] Mr Jones laid a charge of malicious damage to property against Mr Sutherland and
his son. During the course of 2014 they were both found guilty and Mr Sutherland was
sentenced to a fine of R10 000 or 12 months imprisonment suspended for 2 years on
condition that they were not found guilty of malicious damage to property in the period of
2 years.

[14] The next ‘notice of eviction’ was sent by Mr Sutherland through his attorneys in a
letter dated 13 February 2015. In this letter Mr Jones was informed that default judgment
had been obtained against him, the lease had been cancelled, and he had been verbally
requested both by Mr Sutherland and his attorneys to vacate the property which he had
refused to do. They were given 30 days to vacate the property. This was ignored by Mr
and Mrs Jones who claimed they were then subjected to further acts of vandalism. The
cables from the pump room to the water tank were cut, electric cables were taken and
their livestock let loose.

[15] The final notice was sent to the Jones family by the Mr Sutherland’s attorneys on
16 November 2015. In this letter it was stated that the verbal lease expired on 31 August
2015 through effluxion of time. The date is clearly an error as, on Mr Jones’ own version,
the fixed period of the verbal lease expired on 6 July 2014. The letter purported to cancel
the lease and the Joneses were given 30 days within which to vacate. It was further
alleged that they had caused damage to the property. This notice was served personally
on all three appellants by the sheriff.

[16] The cancellation letter was followed by a Form E Notice of intention to apply for an
eviction order in terms of s 9(2)(d)(i) of ESTA and a similar Form F Notice to the
Municipality and the Department of Land Affairs to apply for an eviction in terms of s
9(2)(d)(ii) and (iii). Form G is a notice in terms of s 10(1)(b) of ESTA headed ‘Notice of
Breach of Material and Fair Term of Agreement Between Owner/Person in Charge and
Occupier ’. It set out the grounds on which there had been a breach of the agreement,
which was the non-payment of rental. It also recorded the cancellation of the lease. All
three notices were served personally on Mr and Mrs Jones, on 10 June 2016, by the
sheriff who recorded that he explained the contents thereof to them. Because of her
disability, service on their daughter was effected by serving on Mr Jones.

[17] A social worker’s report from the Gauteng Provincial Department of Social
Development was prepared in anticipation of the application for eviction. The first report
is dated 12 January 2017. It set out the circumstances of both parties and their respective
attitudes. By October 2015 both Mr and Mrs Jones were receiving old age pensions and
their daughter was receiving a disability grant.

[18] The Joneses indicated that they stopped paying rent because they had been
deprived of their livelihood and their farming equipment had been damaged. The
Sutherlands in turn said they caused the damage because the Joneses had stopped
paying rent. Mrs Jones suffers from Bell’s palsy and an autoimmune disease, apparently
due to stress. Nonetheless they were determined to remain in occupation with their two
horses and five cats and 12 dogs. Mr Sutherland responded that he was being deprived

of his only income as a result of the non-payment of rent and suffers from rheumatoid
arthritis and gastric ulcers.

[19] It is clear that the farm was, and still is, in a state of disrepair and dilapidation. The
damage to the house had not been fixed, the house was not insulated, there were broken
windows and it was ice cold in winter. The social worker’s recommendation was that it
was not in the Joneses’ best interests to remain on the property – it was far from a hospital
in case they needed medical help and they had no motor vehicle. It was proposed that
they should move to a place nearer to medical facilities and where they would have
electricity and running water. Significantly, the social worker observed that this was not a
case where the family has nowhere to go but rather a case where ‘they will not leave the
property, because they need to prove a point, and in the process they are harming their
own welfare and health and that of their disabled daughter, as they are not planning for
their future’.

[20] When the matter was first heard in the Magistrates’ Court, Mr and Mrs Jones
complained of the inadequacy of the social worker’s report in that it did not pertinently
address the issues required by s 9(3) of ESTA. These are (a) the suitability of alternative
accommodation; (b) how the eviction would affect the respondents; and (c) any undue
hardship they would suffer. The magistrate requested a supplemented report from the
Department of Social Development as well as a report by the Department of Rural
Development and Land Reform.

[21] The report provided by the Department of Rural Development and Land Reform
dates the dispute between the parties to as early as September 2013 when there was an
argument over whether the rent was due on the first day of the month, as alleged by Mr
Sutherland, or the seventh of the month, as alleged by Mr Jones. Apart from concluding
that the appellants did not have anywhere to go except with the intervention of the
municipality, a recommendation was made that they be given time to seek alternative
accommodation.

[22] The supplemented social worker’s report dealt with the three issues set out in s
9(3) of ESTA.  As regards alternative accommodation, it was established that Jeugland
Old Age Home in Vanderbijlpark could accommodate all three appellants if they received
a government pension and Mr and Mrs Jones had children who may be able to contribute
financially. Avontrus Old Age Home in Vereeniging indicated that they were able to
accommodate the couple if they paid R4 500 per month, but not their daughter. The social
worker concluded that the appellants’ constitutional rights as envisaged in s 9(3)(b) would
not be compromised if they moved to an old age home.

[23] As regards the question whether the eviction would result in undue hardship, the
social worker pointed out that the appellants were the only people on the land, which they
had occupied for a relatively short period. Thus, they have no historical or sentimental
attachment to the land. They have spent no money on upgrading the property. They have
been evicted from other properties in the past so this is not an unknown process to them.
The social worker concluded that it is in the best interests of the three appellants that they
be placed in an old age home where they would have access to electricity, running water
and medical attention when needed. This would ensure that their constitutional right to
dignity was taken into consideration.

[24] At the first appearance in this court the appellants were unrepresented. Counsel
provided by the Department of Rural Development, and who drafted the heads of
argument, had been instructed to withdraw. The matter was postponed to ensure that the
appellants were provided with legal representation. This court is grateful to Mr Zietsmann
for taking on this task pro amico at short notice.

[25] The appellants’ original heads of argument were adopted by Mr Zietsman, with the
exception of the applicability of s 8(1). He argued that the relevant section was s 11(3),
and eschewed any reliance on s 8(1). This submission misconstrues the structure of
ESTA.2 Although s 11(3) largely mirrors and complements s 8(1) with regard to the
requirements of what is just and equitable, where the right of residence is by consent, the

2 Molusi fn 1.

first step is to lawfully terminate the right in terms of s 8. Compliance with 8(1) does not
necessarily mean that the remedy of eviction is available to the landowner. However, an
eviction can only take place once the prerequisites set out in s 8(1) are met.3

[26] The mandatory requirements for granting an eviction are set out in s 9(2) of ESTA.4
At s 9(2)(a), reference is made to the termination of a right of residence in terms of s 8.
To reinforce the view that s 8 is applicable rather than s 11, s 8(1)(d) provides that one of
the factors to be considered is the reasonable expectation of a renewal of an agreement
after the effluxion of time. Therefore, even when an occupier’s consent to reside on the
land is terminated through effluxion of time, a landowner is not absolved from compliance
with s 8(1). When dealing with an eviction pursuant to a lease agreement, the first hurdle
is whether there was a lawful termination of the right of residence.

[27] In this matter the right of residence arose from a verbal agreement which had to
be terminated on lawful grounds. That the Joneses’ right of residence, which survived the
expiry of the period of lease, was terminated on lawful grounds was denied by the
appellants. Reference is made to the various erroneous cancellation notifications.
Although the respondents sent several abortive notices to vacate, by the time the matter
was heard in the Magistrates’ Court there had been a lawful cancellation of the lease. The
appellants had been notified verbally; the lease was cancelled in the attorneys’ letter of 6
November 2016, albeit with the incorrect expiry date; the lease was cancelled in terms of
the Form G notice, which was served personally on the appellants.

[28] The right of residence having been lawfully cancelled, the next question is whether
it was just and equitable, at both a substantive and a procedural level, having regard to
the factors set out in s 8(1)(a)-(e).5 There is no suggestion that the period of the verbal
lease or the terms thereof was unfair in terms of s 8(1)(a). Nor was there a reasonable
expectation of the renewal of the agreement after the effluxion of time as set out in s

3 Mpedi & others v Swanevelder & another 2004 (4) SA 344 (SCA); Mkangeli & others v Joubert & others
2002 (4) SA 36 (SCA) para 13.
4 Yarona Game and Guest Farms (Pty) Ltd v Mashinini & others 2017 JDR 1959 (LCC) para 12.
5 Snyders & others v De Jager & others [2016] ZACC 55; 2017 (3) SA 545 (CC) para 56.

8(1)(d). The real bone of contention was the conduct of the parties giving rise to the
termination in terms of s 8(1)(b). The appellants contended that the respondents were not
blameless. They vandalised the property in order to get rid of the appellants. The
appellants’ counsel argued that this conduct amounted to a constructive eviction before
the effluxion of the period of the lease. The respondents’ hands were dirty and when
dealing with social legislation like ESTA, such conduct should not be countenanced.  The
eviction should accordingly not have been granted. Implicit in this argument is that the
appellants should be permitted to stay on the property rent-free for as long as they wish.

[29] It is, of course, correct that the respondents’ actions were unacceptable. Mr
Sutherland was convicted and sentenced for his conduct. However, the appellants are
not paragons of virtue either. They admit that they have not paid rent since November
2013. This was prior to any acts of damage to the property. As at 16 February 2016 they
were R168 000 in arrears. The respondents allege that the appellants have damaged the
property and that they steal items from the property which they sell. Even assuming in
favour of the appellants, the respondents’ conduct can hardly entitle the appellants to live
on the farm in perpetuity. They state that they would move if they were compensated for
their damages but this is insufficient reason to oppose an eviction which is clearly in their
best interests.  If the appellants have a damages claim as they allege, then this should
be pursued in the correct forum.

[30] In terms of s 8(1)(c) the interests of the parties and the comparative hardship each
of them will suffer must be taken into consideration. The appellants state that as a result
of the respondents’ conduct they have lost their livelihood. This is not entirely correct.
Their horses were confiscated by the SPCA and the appellants are facing charges relating
to neglect of animals. Their cattle were stolen. The respondents are not responsible for
this state of affairs.

[31] From its preamble, it is apparent that ESTA was primarily designed to provide
security of tenure for the most vulnerable and marginalised members of our society,
farmworkers, whilst also balancing the rights of landowners. The appellants are

undoubtedly vulnerable, but this is not a situation of a wealthy landowner pitted against a
destitute farm worker. The respondents themselves are elderly and not in the best of
health. They are not affluent people and their main income is derived from the rental
generated by their farm. They have been deprived of that income since November 2013,
for almost six years. The respondents require payment of the substantial arrears in rental
for their own well-being. This now totals in excess of R400 000, an amount which they
are unlikely to recoup.

[32] As regards s 8(1)(e), the appellants have been given ample warning of the
termination of their lease. The appellants, on their own version, were made aware that
the property was to be sold on 28 October 2013 and that they would have to vacate. They
remain in occupation as of today. Although there is nothing on record to indicate that the
appellants were given a formal right to make personal representations to the respondents,
there is reference to various verbal interactions between the parties when Mr Sutherland
attempted to cancel the lease. In any event, the wording of s 8(1)(e) does not make it
peremptory for representations to be made in every case but rather that a fair procedure
be followed ‘including whether or not the occupier should have been granted an effective
opportunity to make representations before the decision was made to terminate the right
of residence’.6  It should be borne in mind that when the eviction was ordered by the
Magistrates’ Court and confirmed by the Land Claims Court, the appellants had had
ample opportunity to make representations to the Department of Rural Development and
the social worker. Their views were put across on three different occasions, all of which
were duly recorded and placed before court. Viewed holistically, the procedure may have
been defective at times but it has not been unfair to the appellants.

[33] In my view the right of residence has been validly terminated in terms of s 8(1) and
is in accordance with the dictates of fairness. The procedural requirements in terms of ss
9(2) and 9(3) have been met. All that remains is to determine whether the eviction is in
accordance with the justice and equity prescripts of s 11.

6 Le Roux NO v Louw 2017 JDR 1033 (LCC) paras 91-93.

[34] The only argument of substance put up was that the available alternative
accommodation is not suitable. The appellants do not want to reside in an old age home.
They wish to remain on the property where they can keep their livestock and numerous
domestic pets. Unfortunately, it is not open to the appellants to oppose their eviction on
the grounds that the farm is their residence of choice. Where an eviction is going to render
persons homeless, a constitutional obligation rests on the relevant municipality to provide
suitable accommodation. This does not mean that the appellants can continue to occupy
the farm until they are provided with accommodation to their liking.7

[35] The inescapable fact is that the appellants are living in deplorable conditions. The
social worker has noted that their continued occupation on the farm is compromising their
health and safety and that their constitutional rights would be infinitely better catered for
in an old age home. The respondents have been deprived of their property for nearly six
years. In balancing the rights of both parties, justice and equity demands that the appeal
be dismissed.

[36] No costs were awarded in the Land Claims Court and the respondents have
abandoned their prayer for costs in this court.

[37] In the result the following order is made:
1 The appeal is dismissed.
2 There is no order as to costs.
3 The first, second and third appellants are ordered to vacate the property known as
Portion 40 of the Farm Witkoppie 373 IR, Midvaal, Gauteng, by no later than 29 February
2020.
4 Should the appellants fail to comply with the above order, the sheriff is authorised to
evict the first, second and third appellants from the above-mentioned property.

7 Baron & others v Claytile (Pty) Ltd & another [2017] ZACC 24; 2017 (5) SA 329 (CC) para 46.

_________________
C Heaton-Nicholls
Judge of Appeal

APPEARANCES:

For the Appellants:

P J J Zietsman
Instructed by:

Kgaugelo Baloyi Incorporated, Pretoria

Matsepes Attorneys, Bloemfontein

For the Respondent:

S D Maritz
Instructed by:

Odendaal Erasmus & Thulane Incorporated, Meyerton
Rossouw Attorneys, Bloemfontein