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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Burden to prove that ESTA applies in relation to a specific occupier rests on the occupier who invokes the application of the Act - (29 Apr 2022) </td> </tr> <tr> <td align="left" valign="top">Frannero Property Investments (Pty) Ltd vs. Clement Phuti Selapa and Others</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">The issue in present application for special leave to appeal is whether a community of about 300 people who occupied the Applicant’s property known as Portion 35 of the Farm Waterval 306 in Rustenburg, Northwest Province (the property), were occupants under the Extension of Security of Tenure Act, 1997 (ESTA). 
Following its termination of the rights of the community to occupy the property, the applicant, Frannero Property Investments (Pty) Ltd (Frannero), brought an application in the high court to evict them from the property in terms Section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act). Court found that it had no jurisdiction to hear the eviction application because the first to seventh respondents were occupiers in terms of ESTA and that their occupancy rights had not been lawfully terminated as prescribed in that Act. On appeal, the full court of that Division confirmed the finding that the Respondents were occupiers under ESTA and dismissed the appeal. 
Having found that there was no dispute regarding the fact that the tenants at some stage had consent to occupy the property, they had to show that their income did not exceed the maximum amount of income prescribed for the application of ESTA. Consistent with the basic common law principle that ‘the party who alleges must prove’, which is applicable in the determination of the incidence of the onus in civil cases, the burden to prove that ESTA applies in relation to a specific occupier rests on the occupier who invokes the application of the Act. The Court found that the evidence provided by some of the tenants in that regard was vague and inadequate and that the onus to prove that they were not disqualified under the exclusions remained unsatisfied. Only the 15 tenants who gave evidence that they were unemployed were found to have brought themselves within the ambit of ESTA. It is only in relation to them that the appeal by Frannero was dismissed. The appeal in relation to the rest of the tenants was upheld. 
The applicant did make out a proper case for special leave to be granted in this case. The approach to determination of the onus and satisfaction thereof under ESTA is significant and important. Its clarification will benefit not only the applicant; it is a point of law of general public importance. The application is referred back to the high Court for determination of the application brought in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Occupants, Onus, Proof</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>