Breytenbach N.O. and Another v Mokoena and Others (46R/2016) [2016] ZALCC 25 (27 September 2016)

Breytenbach N.O. and Another v Mokoena and Others (46R/2016) [2016] ZALCC 25 (27 September 2016)

The Land Claims Court held that the respondents, having lived openly on the farm and with the knowledge of the owners, qualify as 'occupiers' under ESTA in their own right, following the Constitutional Court's decision in Klaase. The previous interpretative distinction between 'occupiers' and 'residents' is no longer applicable. The applicants failed to lawfully and fairly terminate the respondents' right of residence as required by ESTA, relying instead on the now-defunct distinction. As a result, the respondents' right of residence was not validly terminated, and the eviction order granted by the Magistrate was set aside. The respondents are entitled to remain in occupation of the farm...

Citation
[2016] ZALCC 25
Parties
Applicant: Jacobus Johannes Breytenbach N.O.; Applicant: Phillip Theunissen N.O.; Respondent: Makgala Joyce Mokoena; Respondent: Makgala Joyce Mokoena N.O.; Respondent: Modise Shadrack Mokoena; Respondent: Dihlabeng Municipality; Respondent: Department of Rural Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
27 September 2016
Case Number
46R/2016
Procedural Posture
Automatic Review / Referral From Magistrate's Court for Automatic Review Under ESTA
Outcome
Eviction application dismissed; respondents entitled to remain in occupation of the farm.
Judges
Barnes
Legal Topics
Extension of Security of Tenure Act, Definition of Occupier, Termination of Right of Residence, Just and Equitable Eviction, Magistrates Court Review
Land and Property Civil Procedure Extension of Security of Tenure Act Definition of Occupier Termination of Right of Residence Just and Equitable Eviction Magistrates Court Review

Case Brief

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Parties

Jacobus Johannes Breytenbach N.O.

Applicant

Phillip Theunissen N.O.

Applicant

Makgala Joyce Mokoena

Respondent

Makgala Joyce Mokoena N.O.

Respondent

Modise Shadrack Mokoena

Respondent

Dihlabeng Municipality

Respondent

Department of Rural Development and Land Reform

Respondent

Procedural Posture

Automatic Review / Referral From Magistrate's Court for Automatic Review Under ESTA

Legal Issues

  1. 1 Whether the respondents are 'occupiers' under ESTA and entitled to its protections in their own right.
  2. 2 Whether the respondents' right of residence was lawfully and fairly terminated under ESTA.
  3. 3 Whether the eviction order granted by the Magistrate was just and equitable.

Ratio Decidendi

The Land Claims Court held that the respondents, having lived openly on the farm and with the knowledge of the owners, qualify as 'occupiers' under ESTA in their own right, following the Constitutional Court's decision in Klaase. The previous interpretative distinction between 'occupiers' and 'residents' is no longer applicable. The applicants failed to lawfully and fairly terminate the respondents' right of residence as required by ESTA, relying instead on the now-defunct distinction. As a result, the respondents' right of residence was not validly terminated, and the eviction order granted by the Magistrate was set aside. The respondents are entitled to remain in occupation of the farm...

Court Disposition

Eviction application dismissed; respondents entitled to remain in occupation of the farm.

Orders

  • The judgment and order of Magistrate Jikeka handed down on 30 May 2016 under case number 75/2015 is set aside.
  • The eviction application is dismissed.