The Land Court of South Africa ruled that a farm worker dismissed after police found large amounts of alcohol in his home could not be automatically evicted from housing on the farm.
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A farm worker fired after a booze raid could not automatically be evicted from his home, the Land Court has ruled.
Acting Judge Mark Bishop set aside an eviction order granted by the Caledon Magistrates’ Court involving residents of a Crookes Brothers farm, Ou Werf, near Caledon in the Western Cape.
Crookes Brothers is a Southern African Company with agricultural operations in the KwaZulu-Natal and Mpumalanga provinces of South Africa, as well as in eSwatini, Zambia and Mozambique. Specialising in the production of primary agricultural products, including sugar cane, bananas and macadamias.
The case centred on former farm worker Zola Eric Mkololo and his partner Cynthia O’Reiley.
Police raided Mkololo’s home on the farm in February 2014 and found 62.25 litres of beer. He was charged with trafficking in alcohol and later paid an admission-of-guilt fine of R5,000.
Following the incident, the farm’s owner, Crookes Brothers, held a disciplinary hearing and dismissed him the following month. The dismissal notice informed him he had one month to vacate the house on the property.
However, the Land Court found the farm owners had incorrectly assumed that once Mkololo lost his job he also automatically lost the right to live on the farm.
This is despite the employment contract stating: “The provision of accommodation is subject to employment within the company, and the right of occupation will fall away on termination of this contract.”
“That is not our law,” Bishop said in the judgment. “The real problem with the eviction application is that the Applicants never took a separate decision to terminate the Respondents’ right of residence.”
Under the Extension of Security of Tenure Act, a farm worker’s right of residence must be terminated separately before an eviction can be pursued.
“The right of residence needed to be terminated on its own in addition to the termination of the contract of employment,” the judgment stated.
Because the farm owners never took that separate step, the eviction order granted by the magistrate in 2022 could not stand.
Although Mkololo was dismissed in March 2014, the eviction application was only launched in October 2019.
The Caledon Magistrates’ Court granted the eviction order in June 2022, setting an eviction date of December that year.
However, eviction orders granted under the Extension of Security of Tenure Act must automatically be reviewed by the Land Court.
Judge Bishop said the case had been marked by long delays at multiple stages. “The delays in this case are obviously unsatisfactory. There were delays on all sides,” he said.
The judge said eviction cases must be handled quickly because families’ circumstances can change significantly over time.
Court papers showed that although Mkololo and O’Reiley later moved elsewhere for work, but their children remained living on the farm. O’Reiley visits her children on the weekend.
Yet, Crookes Brothers state that O’Reiley “has not relocated or permanently left the farm. It is still her primary place of residence.”
One child has a heart condition and has stopped attending school. “It seems there are also difficulties transporting him to school as he cannot be unattended due to his condition.”
Another child was still attending school and receiving a social grant.
These children are looked after by Nolubabalo O’Reiley, who is 21-years-old and O’Reiley’s daughter from another relationship.
Despite overturning the eviction order, the court said the ruling does not give the family a permanent right to remain on the farm.
Instead, it found the eviction application was premature because the right of residence had not been lawfully terminated.
The farm owners remain free to properly terminate any rights of residence and bring a new eviction application if they choose.
“They may well have been entitled to terminate [the right of residence],” Bishop said. But they should have considered that as a separate question from dismissal.”
“All of this means that the eviction order should not have been granted in 2022. The only result is to set aside the eviction order that was granted. The passage of time cannot cure the fatal flaw in the original eviction application.”
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