Page 27 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL 79 ESTA protects the rights of occupiers in two ways:
79 1 Chapter Chapter III protects their right to occupy and and and use land and and and Chapter Chapter IV limits the the the ability of the the the owner
to evict them from the the land 79 2 Chapter II has measures to provide them with long term secure tenure 80 We focus on on on the protection from eviction secured by Chapters III and IV 81 A person has the the ‘right to reside on on on and and use the the land’ only if i he he he he or she qualifies as as as an an an ‘occupier’ as as as defined fin in section 1 of ESTA An occupier must meet three requirements:
81 1 1 A person person residing on on on on land which belongs to another person person 81 2 Who had had on on 4 February 1997 or or thereafter had had consent or or another right in law to do so and 81 3 3 Whose income is is not above a a prescribed threshold threshold The current threshold threshold is is R13 625 per month Phases of an ESTA eviction 82 There are six phases in the eviction application or action:
83 Termination of of of Rights Phase: In terms of of of section 8(1) an occupier’s right of of of residence may be terminated on on on any lawful grounds provided that such termination is just and equitable having regard to to all relevant factors This provision is is is is important It prevents ESTA occupiers from being evicted unless there is is is is a a a a fair reason to permit their eviction It requires an an assessment of of of the the the the the conduct of of of the the the the the parties parties the the the the the interests of of of the the the the the parties parties and the the fairness of the the procedure followed 84 In terms of of of sections 8(2) and (3) if the right of of of residence of of of an an an occupier was solely based from an an an employment agreement his or or her right of residence may be terminated if the occupier resigns from employment or or is is dismissed in accordance with the provisions of Labour Relations Act 85 In terms of of of section 8(4) the right of of of residence of of of a a a long-term occupier40 may not be terminated unless he he or she has committed a a a a a a a a a a fundamental or or material breach of an an agreement to occupy The dependants or or spouse of a a a a a a a a long-term occupier may be given 12 calendar months written notice to vacate the the farm unless they have committed a a a a a a fundamental or material breach 86 Notice Phase: An eviction order cannot be granted unless the the Court has has satisfied itself that the the owner
or or person in charge has complied with the the requirements of ESTA 41 Section 9(2)(d) requires the the owner
or or person in in charge to to send not not less than two (2) calendar months’ written notice to to an an occupier the provincial office of of of the the the DALRRD and the the the local municipality advising of of of his or her intention to evict the the the occupier The 40 A person person person is is is is a a a a a a a a a a a a a a a a a a long term occupier if they have lived on on on on on the the the the the the property for for 10 years and and either: (a) has reached the the the the the the age of of of 60 or or or or or or or (b) “is an an an employee employee or or or or or or or former employee employee of of of the the the the the the owner
owner
or or or or or or person person person in in in charge charge and and as as a a a a a a a a a a a a a a a a a a result of of of ill health injury or or or or or or disability is is is is unable to to supply labour to to the the the the the the owner
owner
or or or or or or person person person in in in charge” 41 ESTA s 9(1) PAGE PAGE 27