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Why you can’t evict a tenant during a labour dispute

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The Supreme Court of Appeal recently handed down judgment in a matter concerning the eviction of a farmworker and his family under the Extension of Security of Tenure Act 62 of 1997 (“ESTA”), having particular regard to whether or not eviction notices were properly served on him while his labour dispute was still pending in the Commission for Conciliation, Mediation and Arbitration (CCMA).

Mr Snyers (“First Appellant”) worked as a farm labourer at Houtkaprug, Citrusdal, in the Western Cape (the “Property”). The First Appellant had resided on the Property with Mrs Snyers (“Second Appellant”) and their two children since February 1982 which was provided for in terms of the First Appellant’s employment contract (“Previous Employment Contract”).

New employer, same conditionsoranges

From 2 November 2010, Mgro Properties (Pty) Ltd and Mouton Citrus (Pty) Ltd (the “Respondents”) became the new owners of the Property. The Respondents entered into a new employment contract with the First Appellant on 9 November 2010 (the “New Employment Contract”). The New Employment Contract contained provisions similar to those contained in the First Appellant’s previous employment contract, inter alia, the following:

  1. the First Appellant’s residence on the Property was linked to his continued employment; and

  2. in the event of the termination of the New Employment Contract, the First Appellant and his family would be required to vacate the Property on two months’ notice by the Respondents.

On 17 December 2010, the First Appellant resigned indicating that he would work until 17 January 2011. Four weeks later, on 13 January 2011, the First Appellant stopped working on the Property and on that same day, he referred a constructive dismissal dispute to the CCMA. The First Appellant’s case at the CCMA was that he was forced to resign under the pretext that he would receive his pension money.

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While the Respondent’s case was still pending at the CCMA, the Respondents gave the First Appellant two months within which to vacate the Property. The First Appellant refused to vacate the Property on the basis that he was awaiting the outcome of the dispute he had referred to the CCMA. The Land Claims Court (LCC) held that the dispute referred to the CCMA by the First Appellant had been late and thus no dispute was pending when the notice to vacate the Property was given to the First Appellant on 7 March. The LCC further held that the notice given to the First Appellant was, in fact, valid.

On appeal to the Supreme Court of Appeal the court held that when the Respondents served the notice on the First Appellant to vacate the Property, the labour dispute in the CCMA had not yet been determined and as such contravened the provisions of s8(3) of ESTA. The aforementioned provision requires that where a labour dispute relating to the termination of the occupier’s right of residence occurs, the termination only takes effect when such dispute is determined in accordance with the Labour Relations Act 66 of 1996 (LRA). The court held that the determination of the disputed labour matter is clearly a precondition for terminating a labour occupier’s right of residence under ESTA, and that given the objects of ESTA, where an occupier’s tenancy is subsidiary to his or her employment on a farm, dismissal must be finally determined before the subsidiary tenancy can be terminated.

Accordingly, the court found that the notice given by the Respondents to the First Appellant was invalid and consequently vitiated the entire eviction proceedings against him. Having regard to the Second Appellant, the court held that although she had been given proper notice to vacate the Property, the undesirability to separate families and the right to family life protected in terms of s6(2)(d) of ESTA and due to the irregular eviction proceedings that were brought against the First Appellant, if an application for eviction were allowed against her it would result in the division of their family. As such, the court upheld the appeal and substituted the order of the LCC with an order dismissing the application.


This is what you should NOT include in a lease


Where a labour dispute relating to the termination of the occupier’s right of residence occurs, the termination only takes effect when such dispute is determined in accordance with the LRA. Further, if the occupier were to live with his or her spouse or partner and with one, two or more of his children or other members of the extended family and this would not result in any injustice or unfairness and inequity to the owner of the land, the occupier would be entitled to live with those members of his or her family. The purpose of section 6(2)(d) of ESTA is to enable occupiers to live as full a family life as possible, including engaging in cultural activities or practices, as long as that does not offend the equitable balance of the occupier’s rights with the rights of the landowner as required by section 6(2)(d).


Words: Jenna Bentel, candidate attorney at Schindlers Attorneys

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