- Eviction set aside after no lawful termination of residence rights.
- Dismissal was wrongly treated as the automatic end of housing rights.
- Failure to invite representations renders the eviction process defective.
When Crookes Brothers dismissed a farm worker in 2014, they instructed the family to vacate the property and issued several notices over the following years stating that their right of residence had ended.
No separate process was followed to terminate that right, and no opportunity was given to the occupiers to make representations. When the matter eventually reached the Land Claims Court, the eviction was set aside because the correct procedure for terminating residence had never been followed.
Zola Eric Mkololo began working on Ou Werf Farm near Caledon in 2010. His contract did not expressly grant housing, but it made clear that accommodation was linked to his employment. His partner, Cynthia O’Reiley, and their family lived with him on the farm, and her right to remain flowed from his.
In February 2014, police searched Mkololo’s home on the farm and found a large quantity of alcohol. He was charged and paid an admission of guilt fine. Following a disciplinary hearing, the employer dismissed him on 10 March 2014 and instructed the family to vacate the property within a month.
Despite this, the family remained on the farm for years. Notices were issued in 2015, 2016 and 2017 stating that their right to live on the property had ended, but no separate process was followed to determine whether their residence rights should be terminated. An eviction application was only launched in 2019.
The matter initially went unopposed, with the respondents later explaining that they had not been referred to legal assistance. A report prepared for the court recorded that the family included minor children attending a nearby school and that no alternative accommodation was available in the area.
No separate decision to terminate residence
The central issue before the Land Claims Court was not whether the dismissal was fair, but whether the right of residence had been lawfully terminated before the eviction application was brought. The employer’s position was that dismissal automatically ended the right to occupy the property, and that the notices issued over the years were sufficient.
The court rejected that position. Acting Judge M Bishop found that the eviction process was fundamentally flawed because the employer had never made an independent decision to terminate the right of residence.
The court stated, “The real problem with the eviction application is that the Applicants never took a separate decision to terminate the Respondents’ right of residence.”
The court explained, “The right of residence needed to be terminated on its own in addition to the termination of the contract of employment.”
The judgment further found that the respondents were never given an opportunity to make representations before their housing rights were said to be terminated. Judge Bishop stated, “The Applicants never invited representations. There is no evidence that the Applicants indicated they were open to representations.”
The court also held that O’Reiley’s position had been incorrectly treated as entirely dependent on Mkololo’s employment. The employer had not considered her rights separately.
Children and living circumstances on the farm
The court noted that the family included minor children, one of whom suffered from a heart condition and had stopped attending school. No alternative accommodation was available in the area.
By the time the matter reached the Land Claims Court, both Mkololo and O’Reiley were working elsewhere and living in informal housing while their children remained on the farm.
Eviction order set aside
The Land Court set aside the eviction order granted by the Magistrate in 2022. Judge Bishop stated, “The eviction should be set aside as it was not justified when it was made.”
The court held that the eviction application was brought without a lawful termination of the right of residence.
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