Page 10 - Notes from LRC's Housing Conference

If there is compliance with sections 8 and 9, then the judge or magistrate will check whether the eviction is just and equitable, considering the evidence presented and the oral submissions made. In determining whether it is just and equitable to issue an eviction order, the court will take the following into account:
- whether the occupier has committed any material breach on the farm (section 10 (1) (a));
- whether the owner or person in charge has complied with any terms of the agreement pertaining to the
occupier’s right to reside and has fulfilled his or her duties in terms of the law;
- whether the occupier has breached a material and fair term and has not remedied the breach despite being given one calendar months’ notice in writing to do so (section 10 (1) (b));
- whether the occupier has committed such a fundamental breach of the relationship between them and the owner or person in charge of the property, that it is not practically possible to remedy the relationship, either at all or in a manner which could reasonably restore the relationship (s 10 (1) (c));
- whether the occupier is or was an employee whose right of residence arises solely from their employ- ment; and has voluntarily resigned in the circumstances that do not amount to constructive dismissal in terms of the Labour Relations Act (s 10 (1) (d)); and
- whether suitable alternative accommodation is available to the occupier (s 10 (2) and 10 (3)). If suitable alternative accommodation is not available, the court will have to consider:
- the efforts made by the owner or person in charge and the occupier to secure suitable alternative accom- modation (s 10 (3) (c) (i)); and
- the interest 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 to if an order for eviction is or is not granted.
IMPORTANT: The difference between sections 10 and 11 is that section 10 applies to those who became occupi- ers on or before 4 February 1997, and section 11 applies to those who became occupiers after 4 February 1997.
5) Just and Equitable Eviction Date: If the court has decided to issue an eviction order, it will have to determine a just and equitable date on which the occupier shall vacate and the date on which an eviction order may be carried out if the occupier has not vacated the land on the date determined by the court (s 12 (1)).
6) Effect of Order for Eviction: In terms of s 13 (1) (a), the court shall order the owner or person in charge to pay compensation for structures erected and improvement made by the occupier and any standing crops planted by the occupier. In terms of section 13 (1) (b), the court shall order the owner or person in charge to pay any outstanding wages and related sums. If the magistrate issues an order for the eviction, the requirements of s 19 (3) of the ESTA kicks in. This simply means that the magistrate will have to send his or her judgement to the Land Claims Court for automatic review. The decision cannot be implemented until it is reviewed by the judge of the Land Claims Court. The judge of the Land Claims Court can confirm or set aside or substitute the order of the magistrate. The judge is allowed to remit the matter to the magistrate with directions.
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SUMMARY NOTES FROM THE HOUSING CONFERENCE