Case discussion: Frannero Property Investments 202 (Pty) Ltd v Selapa and Others 2022 (5) SA 361 (SCA)

The SCA had to decide whether ESTA was applicable in the present circumstances, which would be the case if the land in question was the type as contemplated in section 2 of the Act, and the occupiers qualified as 'occupiers' as defined in the Act, i.e. that they resided on land belonging to another person, and had consent to do so on or after 4 February 1997, and they did not fall under the exceptions set out in the definition. The fact that the property fell under the scope of ESTA was not in dispute. The dispute focused on the question of whether the respondents were 'occupiers' in terms of ESTA, in which case the occupiers had to have been afforded an opportunity to make representations prior to the termination of their rental agreements. The SCA held that the burden to prove that ESTA applied in relation to a specific occupier rested on the occupier who alleged that the Act is applicable, but that most of the occupiers, in this case, did not discharge this onus.

"ESTA and PIE were adopted with the objective of giving effect to the values enshrined in ss 26 and 27 of the Constitution. The common objective of both statutes is to regulate the conditions and circumstances under which occupiers of land may be evicted. The main distinction is that broadly speaking ESTA applies to rural land outside townships and protects the rights of occupation of persons occupying such land with consent after 4 February 1997, whilst PIE is designed to regulate eviction of occupiers who lack the requisite consent to occupy. Occupiers protected under ESTA are specifically excluded from the definition of "unlawful occupier" in PIE. An order for the eviction of occupiers may be granted under ESTA by a competent court on just and equitable grounds, having regard to the different considerations applicable in each instance". (Randfontein Municipality v Grobler and Others [2010] 2 All SA 40 (SCA) ([2009] ZASCA 129) para 4)

The former aptly summarises the legal position in South Africa with regard to the Extension of Security of Tenure Act 62 of 1997 ("ESTA") and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE").

The Supreme Court of Appeal ("SCA") in the case under discussion, Frannero Property Investments 202 (Pty) Ltd v Selapa and Others 2022 (5) SA 361 (SCA), had to consider the application of these Acts as well as the question of who will carry the onus to prove that one or the other is applicable in the circumstances.

In August 2015, Frannero Property Investments 202 (Pty) Ltd ("Frannero") brought an application in the High Court in terms of section 4 of PIE to evict occupiers from its property. Frannero's case was that the oral lease agreements in terms of which the occupiers had occupied the property had been lawfully cancelled and that they were therefore unlawful occupants under PIE. The High Court however found that it lacked jurisdiction to hear the eviction application because the occupiers were "occupiers" in terms of ESTA and that Frannero did not follow the correct procedure in terminating their occupancy rights in terms of the Act. Frannero appealed to the full bench of the High Court but was rejected. They then applied to the SCA for special leave to appeal.

The SCA had to decide whether ESTA was applicable in the present circumstances, which would be the case if-

  • the land in question was the type as contemplated in section 2 of the Act, and-
  • the occupiers qualified as 'occupiers' as defined in the Act, i.e. that they resided on land belonging to another person, and had consent to do so on or after 4 February 1997, and-
  • they did not fall under the exceptions set out in the definition.

The fact that the property fell under the scope of ESTA was not in dispute. The dispute focused on the question of whether the respondents were 'occupiers' as defined by ESTA, in which case the occupiers had to have been afforded an opportunity to make representations prior to the termination of their rental agreements.

The SCA held that the burden to prove that ESTA applied in relation to a specific occupier rested on the occupier who alleged that the Act is applicable. The occupiers had to prove that they complied with all the components of the definition of an "occupier" in the Act, including that they were not excluded from the application of the Act under section 1(1)(x).

The SCA further found that it appeared from the record that it was common cause that the occupiers did, at some stage, have consented to reside on the property. They, therefore, did not have to prove consent. As to the applicability of the exceptions, it was apparent from the evidence that the occupiers were not labour tenants, and that they were not using or intending to use the property for industrial, mining or commercial purposes. The occupiers therefore only had to prove that their income did not exceed the prescribed amount, which was R5,000 per month at the time.

The Court held that all but 15 of the occupiers cited as respondents in the case did not provide sufficient evidence to prove that they were unemployed and did not earn an income of more than R5,000 per month and that they, therefore, did not discharge the onus on them. The appeal in relation to these occupiers was upheld, and the case was referred back to the High Court to consider Frannero's application for eviction in terms of PIE. The appeal was however dismissed in relation to the 15 occupiers who did prove that ESTA was applicable in their specific circumstances.

It is important for landlords to consult in detail with legal practitioners who are experienced in property law, so that they can determine whether ESTA or PIE is applicable before occupiers are evicted. This will determine the correct eviction process to follow, as well as which party must prove which facts and the evidence that will be required by the Court in each case. Failure to do so could lead to a lot of wasted costs and time, as well as possible rental income.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.