23 April 2008

Farm workers right to occupation

The Extension of Security of Tenure Act of 1997 (ESTA) sets out the procedures to be followed in order to lawfully evict occupants from agricultural land. The purpose of ESTA is to ensure that all these evictions are just and equitable in the circumstances of each case.

However, where the right of occupation is linked to an employment contract, a further requirement is added that the termination of employment, whether the worker was dismissed or resigned, which led to the termination of occupation, was in accordance with the Labour Relations Act, 1995 (LRA).

In a recent Supreme Court of Appeal judgement, Rand Water v Tshabalala [2007] JOL 19428 (LCC), the court had to decide whether the eviction of Tshabalala, (who was dismissed due to theft and who's right of occupation was linked to his employment contract) was just and equitable.

All the procedural requirements in terms of ESTA were complied with including the dismissal being in accordance with the LRA, which was confirmed by the CCMA, as being substantially and procedurally fair and his right of accommodation lawfully terminated. In respect of the question whether the eviction was just and equitable, the court confirmed previous case law which stated that it cannot be expected of landowners to provide housing indefinitely.

The theft by Tshabalala caused a fundamental, irreparable breach of the relationship between him and the owner. Tshabalala had also been on the land for more than two years without making any contribution towards his accommodation while other employees of the landowner were waiting to be housed on the land in question. It was therefore argued that continued occupation of the house by Tshabalala was hampering the efficient carrying on of farming activities on the property and was taking away accommodation from other occupiers.

The court was satisfied that all formal requirements had been met and that it was just and equitable in these circumstances to grant an eviction order.

Ashley Adriaans, director and Annemarie Potgieter, candidate attorney, Cliffe Dekker Inc.

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