Can you evict a dismissed employee off your property?

In terms of his contract of employment with his employer, Mr Viljoen was provided with accommodation for a nominal rental on his employer, Lebowa Platinum Mines’ Land.  After he was dismissed from his employ, Viljoen remained in occupation beyond the 30 days permitted in terms of the employer’s housing policy, and refused to vacate the premises.  The employer duly instituted proceedings in the High Court for his eviction on the basis that he was “an unlawful occupier” as he no longer had the employer’s express or tacit consent to occupy the premises.

Viljoen opposed proceedings and raised the defence that he was an “occupier” as contemplated in the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) because he was unemployed and the premises were situate on a farm and not in a township as envisaged in Section 2 of ESTA.

Those facts, he contended, excluded the High Court’s jurisdiction to adjudicate the eviction proceedings.  The matter was transferred to the Land Claims Court by agreement between the parties.  The Court ultimately found that Viljoen was an occupier as contemplated in ESTA and that the employer ought therefore to have instituted the eviction proceedings under ESTA and dismissed the application.

The employer appealed against that decision to the Supreme Court of Appeal.  [(Lebowa Platinum Mines Limited v Viljoen) 2009 (3) SA 511].  The employer contended that Viljoen’s right to occupy the premises terminated automatically on his dismissal and that he did not thereafter qualify as an “occupier” as contemplated in ESTA, as ESTA was intended only to protect “poor previously disenfranchised farm workers”, which Viljoen undisputedly was not.

The Court held that the contention that ESTA was intended only to protect “poor previously disenfranchised farm workers” was misconceived.

Although there was obviously a particular class of vulnerable persons which was the legislature’s primary concern when ESTA was conceived, of which Viljoen might not be a member, Courts were nonetheless enjoined to consider the colour-blind provisions of Section 26 (3) of the Constitution when interpreting ESTA.  From the wide wording of such provisions, it hardly seemed inconceivable that, in that exercise, a person falling outside the designated category, but nonetheless possessed of a landowner’s consent or some other legal right, might fall within its purview the Court held.

The relevant time at which Viljoen’s circumstances had to be assessed for purposes of determining whether he was or was not an “occupier” as defined in ESTA was when his lawful occupation ceased, i.e. when the permission or right to occupy was withdrawn or ceased.

In the present case it was found that the employee did not qualify as an occupier during the tenure of his employment.  However, he remained in occupation of the premises with the employer’s consent after termination of such employment; that, at a time when he no longer earned an income and did not use the premises for the purposes precluded in the ESTA definition.  During this period the employee’s occupation of the premises undoubtedly assumed an entirely different character which brought him squarely within the amdit of “occupier”.  It was therefore held that Viljoen was an occupier as contemplated in ESTA and the Court declined to grant a remedy.

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4 Responses to “Can you evict a dismissed employee off your property?”

  1. AnnMarie Dillon Says:

    I am requesting information on eviction of a caretaker that has been laid off and paid a severance. He occupies a condo that the subdivision is wanting to sell for monies needed. He does not pay rent for the housing was part of his income.

    • Section 39 of the Basic Conditions of Employment Act regulates the termination consequences of employees residing in accommodation provided by employers in the following respects:

      1) If the employer of an employee who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer terminates the contract of employment of that employee –

      -Before the date on which the employer was entitled to do so in terms of Section 37; or

      -In terms of Section 38, the employer is required to provide the employee with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated.

      2) If an employee elects to remain in accommodation in terms of subsection (1) after the employer has terminated the employee’s contract of employment in terms of Section 38, the remuneration that the employer is required to pay in terms of Section 38 is reduced by that portion of the remuneration that represents the agreed value of the accommodation for the period that the employee remains in the accommodation.

      (3) Section 38 provides that an employer may pay an employee the remuneration the employee would have received, if the employee had worked during the notice period. It is therefore a case of paying an employee his notice salary and not expecting the employee to work during his notice month.

      (4) Section 37 regulates the minimum notice period necessary to terminate a contract of employment lawfully, including four weeks notice for an employee with more than one year’s service.

      (5) Once the notice periods (for both the termination of employment and notice to vacate the accommodation) have run their course, an employer is entitled to take the prescribed steps to have the employee evicted from the property. This, however, entails quite a process and can not be achieved overnight. In fact, the provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act may apply which requires quite a cumbersome procedure before a competent order for the eviction an occupier in such circumstances may be granted by a Court.

  2. mr slavo Says:

    last 4 years i work like live in staff in pub.2 weeks ago i have been made redundant without any notice.they give me 2 weeks time to live the accomodation.i got new accomodation,but in 4 weeks time.can i stay in the pub accomodation for this period of time without breaking any law?

    • Dear Sir

      Because you have been employed for more than a year you are entitled in law to notice to vacate your accommodation on at least a four weeks notice basis. It follows that the 2 weeks notice given to you is not proper and you may demand to be granted the full four week notice period for purposes of vacating your employment accommodation.
      We trust this assists you in the matter.
      Regards
      JDV

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