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Nimble Investments (Pty) Ltd vs. Johanna Malan and Others - (30 Sep 2021)

Fundamental breach of relationship justifies eviction


The Appellant’s appeal is against an order of the Land Claims Court, Randburg, which set aside an order by the Magistrate’s Court that, the Respondents be evicted from (the farm, in terms of the Extension of Security of Tenure Act, 1997 (ESTA). The ground for their eviction was essentially that, the first Respondent had committed a fundamental breach of the relationship between her and the manager or owner of the farm, that was practically impossible to restore as envisaged in Section 10(1)(c) of ESTA.

The conduct constituted a fundamental breach of the relationship between the occupier and the landowner, justifying the eviction of the Respondents. The eviction was just and equitable as it was untenable to force a landowner to continue with a relationship which, according to the evidence was practically impossible to restore. For this reason and on a proper construction of Section 10(1)(c) of ESTA, it was unnecessary to grant the Respondents an opportunity to make representations as envisaged in Section 8(1)(e) of Act.

A number of the Respondents were employed elsewhere but paid no rent and made no contribution to utilities. The Supreme Court concluded that, the landowner could not be expected to provide free housing and utilities to the Respondents as it had done for a number of years. ESTA was not intended to promote the security of opportunistic occupiers at the expense and exploitation of the rights of landowners. Moreover, the Appellant was, and remained willing to assist the Respondents financially in finding alternative accommodation. This assistance was unreasonably refused. In a minority judgment, it was held that the order of eviction was not just and equitable. The Respondents had not been given an opportunity to make representations as envisaged in Section 8(1)(e) of ESTA, why their rights of residence should not be terminated.


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