Family defeat farm owners in eviction battle

A FARMWORKER family has won a David and Goliath-like battle which prevents the farm owner from evicting them from a place they’ve called home for generations.

The eviction bid against a husband and wife, their daughter who lives with a physical disability and two young children was heard on appeal in the Land Court, following a ruling by the Swellendam Magistrate’s Court.

All but the husband were born on the Barrydale farm. The wife left her job in 1998 to care for their daughter, and the husband’s employment on the farm ended in 2020 when he was dismissed.

The Swellendam Magistrate’s Court found that the family was not given a fair chance to respond before their right to stay on the farm was ended. The magistrate said that any talks that happened after the decision didn’t help the applicants, because the choice to evict the family had already been made. Because of this, the eviction process was unfair. 

Before ending someone’s right to live on a farm, they are usually given a chance to explain their situation both while living there and what their circumstances would be if they had to leave. 

Before the Land Court, Misty Cliffs Farm argued that the lower court made a mistake regarding the (father), claiming that his right to live in the house was directly tied to his job on the farm. They questioned whether he was entitled to a separate chance to argue why he should be allowed to stay, given that he had already received a fair disciplinary hearing before his employment was terminated.

Acting Land Court judge, Wilhelmina Elmien Jacoba du Plessis found Misty Cliffs Farm were required to not only rely on the absence of employment to terminate the residence of occupiers but must also consider all relevant factors such as the hardships each party will suffer in the instance of termination or lack thereof, the period of occupation, especially if there would be a reasonable expectation of extending the occupation.

“Accordingly, the purported termination of the respondents’ rights of residence was invalid. The appeal must therefore be dismissed. The court a quo concluded that the procedural safeguards in ESTA, particularly section 8(1)(e), were not complied with. I reach a similar conclusion, but by taking a different path. My conclusion rests on the appellants’ failure to appreciate the nature of the right of residence of both (husband and wife).” 

The Extension of Security of Tenure Act (ESTA) allows the termination of a farm person’s residence if their right to live on the farm was solely linked to their employment, and that employment has come to an end.

“(The husband) denies that he received the house as a result of employment, as he started his occupation before he was employed on the farm. He denies knowledge of the terms of the employment agreement and states that it is common practice at the farm for general workers to sign any documents that are presented to them by management. The documents were not explained in simple terms, and he was simply told to sign,” court papers read. 

“A mechanical reliance on the termination of employment under section 8(2), without a proper interrogation of the surrounding circumstances may result in an unjustified erosion of an occupier’s occupational rights. Particularly where the facts indicate that the right of residence did not originate solely from employment (or where the termination causes disproportionate hardship), the court remains obliged to examine whether the eviction would, in all the circumstances, be just and equitable. 

“The requirements of section 8 were not fulfilled. The Court cannot conclude that the termination of the rights of residence was just and equitable.”

Legal Aid SA’s lawyers Mvuyisi Mjuda, Lelethu Mgedezi, and Hilary Julius from the Stellenbosch Local Office represented the family throughout the legal process, from the Magistrate’s Court to the Land Court, the family were represented. 

Legal Aid SA Northern Cape/Western Cape provincial executive Nolitha Jali said the matter was one of many similar cases in the province where vulnerable people such as women, people with disabilities and children face eviction despite having lived on farms for many years and having nowhere else to go.

Lawyers for the landowners who had brought the appeal, did not respond to requests for comment by deadline.

Cape Times