Klaase v Van der Merwe NO (CCT 23/15) [2016] ZACC 17 (14 July 2016)

The ConCourt was faced with a complicated appeal from two judgments of the land claims court (LCC).  A family lived on the farm.  The husband was employed and his wife assisted the farmer with seasonal work.  The husband was dismissed for reasons related to misconduct.  A dispute was settled and he agreed to leave the farm, but failed to do so.  The farmer obtained an eviction order from the magistrates’ court.  The LCC upheld it on automatic review.  But his wife claimed that she was an occupier in her own right.  The ConCourt allowed her appeal and should have been cited as a party or joined in the eviction proceedings against her husband.  In other words the farmer needed to prove substantive grounds to evict her and failed to do so.

See also: Rights of women occupiers: Farmers and ESTA

Coram:

Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J

Judgments:

  • Matojane AJ (majority): [1] to [68]
  • Zondo J (minority): [69] to [154]
  • Jafta J (concurring): [155] to [161]

ConCourt summary:

Extension of Security of Tenure Act 62 of 1997 — Definition of “occupier” — Express and Tacit Consent — Rights of Occupiers — Occupiers’ protections under ESTA — Right to Family Life — Joinder in Eviction Proceedings — variation of eviction order

Order

On appeal from the Land Claims Court (hearing an automatic review from the Clanwilliam Magistrates’ Court):

  1. Leave to appeal is granted to Mr and Mrs Klaase.
  2. Condonation for the late filing of additional documents by the amicus curiae is refused.
  3. The applications for the admission of new evidence by Mrs Klaase and the amicus curiae are dismissed.
  4. The appeal by Mr Klaase is dismissed.
  5. The appeal by Mrs Klaase succeeds.
  6. The decision of the Land Claims Court confirming the Clanwilliam Magistrates’ Court order for the eviction of Mrs Klaase is set aside.
  7. The application by Mr Klaase for suspension of the execution of the eviction order against him pending the determination of the rights of Mrs Klaase in terms of the Extension of Security of Tenure Act 62 of 1997 is refused.
  8. There is no order as to costs.