What to consider in eviction orders

What to consider in eviction orders
20 Dec 2018

In the case of Nederburg Wines (Pty) Ltd v Nero & Others (Nederburg Case) Nederburg Wines Proprietary Limited (Appellant), the registered owner of Nederburg Estate (Property), appealed against the decision of the Land Claims Court (LCC) wherein an unopposed application for eviction was dismissed by the LCC on grounds that certain evidence, namely the probation officer’s report, had not been submitted for consideration.

The Appellant alleged that the first respondent (First Respondent), a former employee of the Appellant, and his children (Second to Fifth Respondents), were in unlawful occupation of the Property following the lawful termination of the First Respondent’s employment with the Appellant. A material term of the employment contract entered into between the Appellant and the First Respondent provided that the First Respondent (together with the Second to Fifth Respondents) would be entitled to reside on the Property until such time as his employment has been terminated and/or appropriate notice to vacate has been given to the First Respondent. The employment contract further provided that the Appellant reserved the right to exclude the First Respondent from the Property if he were to be found under the influence of alcohol or drugs.

The First Respondent was dependant on alcohol and after being admitted to a rehabilitation centre, the First Respondent agreed to undergo random alcohol testing. During such random alcohol testing, alcohol was found in the First Respondent’s blood system and a disciplinary hearing was subsequently held. The First Respondent was found guilty and as a result thereof, his employment contract with the Appellant was terminated together with his right of residence and was requested to vacate the Property. After failing to vacate the Property, an application for eviction was brought by the Appellant in terms of section 10(1)(c), alternatively 10(3), read with section 8 and 9 of the Extension of Security of Tenure Act 62 of 1997 (ESTA).

The court a quo decided the matter and dismissed the application in the absence of the probation officer’s report. On appeal, the Supreme Court of Appeal (SCA) found the probation officer’s report to be extremely useful and decisive, specifically in relation to the issue of whether the First Respondent and the Second to Fifth Respondents had alternative accommodation at their disposal. The SCA confirmed the findings in the case of Valley Packers Co-operative Ltd v Dietloft & another that a probation officer’s report must always be requested in eviction applications where section 9(2)(c) of ESTA is relied upon.

The SCA ruled that had the court a quo considered the probation officer’s report, the court a quo would have granted the eviction application instead of merely dismissing same. The SCA further ruled that the granting of the eviction order adequately considered the rights, duties and legitimate interests of the Appellant as the registered owner of the Property against the protection of vulnerable occupiers, such as the First Respondent and the Second to Fifth Respondents.

The SCA found that the granting of the eviction order would not have resulted in the First Respondent being without a home as he did in fact have alternative accommodation at his disposal. Further, the occupation rights of the Second to Fifth Respondents only existed whilst the First Respondent was employed by the Appellant.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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