IN THE LAND CLAIMS COURT OF SOUTH AFRICA
Before: Bam JP
Decided on: 13 May 2011
In the matter between
CORNELIUS NEL 1st Applicant
CHRISTENE EUGINIE NEL 2nd Applicant
AVAX 215 CC t/a RUSCO DAIRIES 3rd Applicant
JOSEPH MOTLABANE 1st Respondent
BOOYSEN KHOLISILE MOGOJO 2nd Respondent
 The three applicants in this matter seek the eviction of the first and second
respondents from the farm DePan ( near Randfontein) in terms of the Extension of
Security of Tenure Act 62 of 1997 (‘the Act’).
 It is common cause that the first and second applicants are the owners of DePan
where they conduct farming operations through the third applicant. It is also
common cause that both first and second respondents are occupiers since 1974 as
defined in ‘the Act’.
 In qualification of this status, it is mutually accepted that on the 30th April 2003,
almost 30 years later, the parties entered into certain written agreements setting
out new boundaries and limits to the right to reside on the farm DePan on the part
of the first and second respondents.
 It is the applicants’ contention that the rights of residence of both the respondents
consequently arose solely from these employment agreements with the third
applicant. Those employment and housing agreements, according to the
applicants ‘replaced any previous consent agreements by the respondents and
determined their rights and obligations regarding their rights of residence’1. This
drastic curtailment of the respondents’ original status as occupiers, was
surprisingly not challenged notwithstanding section 25 of the Act.2
 Among the terms of these new agreements relevant to this application were that :
“13.1 Die werknemer sal voorsien word/nie voorsien word van akkomodasie solank as
wat hy/sy in dien is van die Werkgewer, welke akkomodasie deel van die
Wernemer se vergoedingspakket.
6. Die partye kom uitdruklik ooreen plaas op record, dat die werknemer,
hoegnaamd, nie in tenne van hierdie diensooreenkoms, uitdruklik, stilswynend
of by implikasie, enige reg tot permanenete verblyf of okkupasie op die endom
waarvan die werkgewer eienaar is of eiendom wat deur die werkgewer okkuper
word, verkry of vestig nie en is enige vergunning to bewoning of okkupasie, wat
deur die werknemer opgeneem word, uitdruklik onderhewig aan die bestaan van
‘n diensverhouding tussen die werkgewer en die werknemer, by verstryking of
beeindiging waarvan, sodanige bewoningsvergunning outomaties verval.”
 The purport of the agreements was to emphasize that, henceforth, the right to
reside on the property was directly related to their employment thus limiting it
and bringing it within the restricted category of section 8(2) of ‘the Act’ wherein a
right of residence arising solely from an employment agreement may be
terminated by resignation.
 It is a critical requirement in terms of ‘the Act’ that an applicant seeking an order
of an order of eviction should, inter alia, have terminated the occupier’s right of
residence on any lawful ground provided such is just and equitable.3
Paragraph 6.10 of founding affidavit ‘the right of residence of both the respondents therefore arose solely
from their employment agreements with the third applicant. The employment and housing agreements
entered into with the third applicant replaced any previous consent agreements entered into by the
respondents and determined their rights and obligations regarding their rights of residence.”
Section 25.Legal status of agreements.-(1) The waiver by an occupier of his or her rights in terms of this
Act shall be void, unless it is permitted by this Act or incorporated in an order of a court. (2) A court shall
have regard to, but not be bound by, any agreement in so far as that agreement seeks to limit any of the
rights of an occupier in terms of this Act. (3)Notwithstanding the provisions of subsections (1) and (2), if
an occupier vacates the land concerned freely and willingly, while being aware of his or her rights in terms
of this Act, he or she shall not be entitled to institute proceedings for restoration in terms of section 14.
Section 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-
 In the case where the right of residence arose solely from an employment
agreement, the ‘just and equitable’ provisos are met if the occupiers resign from
their employment or are dismissed in accordance with the provisions of the
Labour Relations Act.
 In the present instance the crucial part of the applicants’ case is that both
respondents were employees whose right of residence arose solely from their
employment agreements and that both have voluntarily resigned in circumstances
that did not amount to constructive dismissal in terms of the Labour Relations
Act. The implication is that the ‘termination’ of the respondents’ right of
residence need not comply with the ‘just and equitable’ provisos which do not
(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.
(4) The right of residence of an occupier who has resided on the land in question or any other land
belonging to the owner for 10 years and-
(a) has reached the age of 60 years; or
(b) is an employee or former employee of the owner or person in charge, and as result of ill health,
or disability is unable to supply labour to the owner or person in charge,
May not be terminated unless that occupier has committed a breach contemplated in section 10(1) (a), (b)
or (c): provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall
not constitute such a breach.
(5) On the death of an occupier contemplated in subsection (4), the right of residence of an occupier who
was his or her spouse or dependant may be terminated only on 12 months’ written notice to leave the land,
unless such a spouse or dependant has committed a breach contemplated in section 10 (1).
(6) Any termination of the right of residence of an occupier to prevent the occupier from acquiring rights in
terms of this section, shall be void.
(7) If an occupier’s right to residence has been terminated in terms of this section, or the occupier is a
person who has a right of residence in terms of subsection (5)-
(a) the occupier and the owner or person in charge may agree that the terms and conditions under
which the occupier resided on the land prior to such termination shall apply to any period between
the date of termination and the date of the eviction of the occupier; or
(b) the owner or person in charge may institute proceedings in a court for a determination of
reasonable terms and conditions of further residence, having regard to the income of all the
occupiers in the household.
apply to occupiers who owe their status solely to their employment agreements
and have resigned voluntarily.
 Whereas the lawfulness of the drastic curtailment of the respondents’ original
right of residence in the written agreements of 30th April 2003 was not
challenged, either at the time or in the present proceedings, the factual allegation
of their voluntary resignation was strenuously contested and has not been
resolved. It is a material element in determining whether a proper termination of
the respondents’ right of residence had been made in terms of section 8 as
required by section 9(2)(a) of ‘the Act’. The version of the respondents is not
intrinsically improbable in this regard and these are discrepancies in the
documentation of their alleged resignation and inconsistencies. It appears the
notion of the refusal was conflated with the notion of resignation.
 Since a proper termination of the respondents’ rights of residence is an important
threshold requirement, I do not consider it useful or necessary to pronounce on
other aspects of the application and am obliged to dismiss it with no order as to
 The fact that an eviction order may not presently be afforded the applicants
should not be interpreted to mean that the respondents are entitled to permanent
occupational rights on DePan. It is crucial that they should assiduously engage in
efforts, to find a new home together with assistance from the applicants and
particularly from the state officials.
(i) The point taken in limine by the respondents relating to res judicata is
(ii) The application for eviction is dismissed;
(iii) No order is made as to costs.
JUDGE PRESIDENT BAM