Ceres Fruit Processors v Folotie and and Another (LCC36R/2009) [2009] ZALCC 17 (28 December 2009)

Ceres Fruit Processors v Folotie and and Another (LCC36R/2009) [2009] ZALCC 17 (28 December 2009)

The Land Claims Court found that the Magistrate's eviction order did not comply with the mandatory requirements of ESTA. Specifically, notice of termination of residence was not served on the First Respondent, and no probation officer's report was obtained regarding alternative accommodation and the impact of eviction on constitutional rights. The Magistrate's order was vague and did not provide a reasonable period for the report to be filed. The court held that compliance with sections 9(2), 9(3), and 10 of ESTA is essential before granting an eviction order. As these requirements were not met, the eviction order could not be confirmed.

Citation
[2009] ZALCC 17
Parties
Applicant: Ceres Fruit Processors; Respondent: Elizabeth Francina Folotie; Respondent: Roslin Elize Folotie
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
28 December 2009
Case Number
LCC36R/2009
Procedural Posture
Automatic Review / Review of Magistrate's Eviction Order Under ESTA
Outcome
Eviction order set aside; matter remitted for compliance with ESTA procedural requirements.
Judges
SC Mia
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Termination of Right of Residence, Alternative Accommodation, Review of Magistrate Decision
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Termination of Right of Residence Alternative Accommodation Review of Magistrate Decision

Case Brief

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Parties

Ceres Fruit Processors

Applicant

Elizabeth Francina Folotie

Respondent

Roslin Elize Folotie

Respondent

Procedural Posture

Automatic Review / Review of Magistrate's Eviction Order Under ESTA

Legal Issues

  1. 1 Whether the eviction order granted by the Magistrate complied with the peremptory requirements of section 9(2) and 9(3) of the Extension of Security of Tenure Act (ESTA).
  2. 2 Whether proper notice of termination of residence was served on both respondents as required by section 8(5) of ESTA.
  3. 3 Whether a probation officer's report on alternative accommodation and constitutional rights was obtained as required by section 9(3) of ESTA.

Ratio Decidendi

The Land Claims Court found that the Magistrate's eviction order did not comply with the mandatory requirements of ESTA. Specifically, notice of termination of residence was not served on the First Respondent, and no probation officer's report was obtained regarding alternative accommodation and the impact of eviction on constitutional rights. The Magistrate's order was vague and did not provide a reasonable period for the report to be filed. The court held that compliance with sections 9(2), 9(3), and 10 of ESTA is essential before granting an eviction order. As these requirements were not met, the eviction order could not be confirmed.

Court Disposition

Eviction order set aside; matter remitted for compliance with ESTA procedural requirements.

Orders

  • The order of the Magistrate in case number 350/2009 with regard to the First Respondent is set aside in its entirety.
  • The order of the Magistrate in case number 350/2009 with regard to the Second Respondent is set aside. The Magistrate is directed to obtain a report as envisaged in section 9(3) of ESTA and to have regard to sections 10(2) and 10(3) of ESTA before granting any eviction order.