You can't evict people who have the right to occupy under esta
After 10 years of litigation, the South African Supreme Court of Appeal held that 167 of Aquarius Platinum's ex-employees can continue living in the company's hostels because the company's eviction application was fatally flawed.
The dispute dates back to 2009, when the ex-employees were dismissed after an unprotected strike. The ex-employees challenged their dismissals lawfulness in the Labour Court, but were unsuccessful. The company then launched legal proceedings to evict the ex-employees from the hostel in 2015.
The company didn't, however, take any steps to terminate the ex-employees right to reside in the hostel. The company argued that the employees right of residence terminated automatically with their employment. The ex-employees acknowledged that their employment was terminated, but counter argued that their right of residence hadn't yet been terminated by the company, meaning that the eviction application was premature.
The court agreed with the ex-employees, finding that the eviction application suffered from a fatal defect – the ex-employees right to live in the hostels hadn't been legally terminated.
The court's reasoning centred around the interpretation of section 8 and section 9 of the Extension of Security of Tenure Act (ESTA). These critical sections are:
8. Termination of right of residence
(1) Subject to the provisions of this section, an occupiers right of residence may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular to: ...
(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act ...
9. Limitation of eviction
(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued under this Act.
(2) A court may make an order for the eviction of an occupier if:
(a) the occupier's right of residence has been terminated in terms of section 8; ...
The South African Supreme Court of Appeal and Constitutional Court have consistently held that the requirements in section 8 must've been followed before a court can evict in terms of section 9. At a minimum, this means that there must be a lawful ground for the termination, the termination must be just and equitable, and the termination must be communicated to the occupier.
To evict the ex-employees, the company had to prove (i) the termination of their employment contracts; and (ii) the termination of their right of residence. The company had, however, failed to do this, and had incorrectly argued that the termination of employment automatically terminated the right of residence.
This error was fatal to the company's attempt to evict the ex-employees.
- Aquarius Platinum (SA) (Pty) v Bonene and Others (1177/2018)  ZASCA 7 (16 March 2020)
- Extension of Security of Tenure Act, No 62 of 1997 (ESTA)