Continued occupation

In Trustees for the Time Being of the East London Hebrew Congregation v Galperin and Others [2022] 4 All SA 224 (ECLD), continued occupation of property, despite a notice to vacate following the termination of employment.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Property - Termination of employment rendering continued occupation unlawful: The East London Hebrew Congregation in Trustees for the Time Being of the East London Hebrew Congregation v Galperin and Others [2022] 4 All SA 224 (ECLD) sought the eviction of the first and second respondents from premises owned by it. The first respondent was appointed to serve the Congregation as its Rabbi, and the right to occupy the property was an incident of his employment.

According to the applicant, the respondents’ occupation of the property became unlawful when it terminated the first respondent’s services. Despite notice to vacate, the respondents remained in occupation.

While the applicant stated that it had complied with the requirements for eviction in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), the respondents opposed the application on procedural and substantive grounds. One of the issues related to the appropriate forum in which the first respondent could challenge his dismissal. The applicant averred that the dispute fell to be settled in terms of the Labour Relations Act 66 of 1995. The respondents asserted that the dispute fell to be resolved before the Jewish Ecclesiastical Court.

The court pointed out that it was not open to the respondents to dispute that the first respondent’s employment had been terminated, ending the contractual entitlement to remain in occupation of the property. That then brought the respondents within the purview of the PIE Act as ‘unlawful occupiers’, entitling them to the protection of the Act. The court was satisfied that the respondents were ‘unlawful occupiers’ within the meaning of the definition and that the applicant was entitled to an eviction order subject to s 4.

An eviction application will only be granted if it is just and equitable to make such an order. The expectation that the first respondent should be given the opportunity to have a labour dispute finally determined before being evicted accorded with the constitutional objectives of justice and equity. As the first respondent had not yet had a chance to state his case regarding his dismissal, the court decided to stay the eviction application pending the resolution of the contested issues surrounding the application.

Merilyn Rowena Kader

Legal Editor at LexisNexis