Cillie N.O and Others v Volmoer and Others (956/2013) [2016] ZALCC 5 (15 February 2016)

Cillie N.O and Others v Volmoer and Others (956/2013) [2016] ZALCC 5 (15 February 2016)

The court found that while the applicants had lawfully terminated the respondents' right of residence and complied with most statutory requirements, they failed to provide evidence regarding the availability of suitable alternative accommodation and did not submit a Probation Officer's report as required by section 9(3) of ESTA. The absence of this report and supporting evidence prevented the magistrate and the reviewing court from properly assessing whether eviction would be just and equitable, particularly considering the respondents' long-term residence and the interests of their dependent children. As these deficiencies are fatal to the application, the magistrate's order for eviction...

Citation
[2016] ZALCC 5
Parties
Applicant: Christina Francina Cillie N.O (in her capacity as trustee of Johan Cillie Trust); Applicant: Kweperfontein Landgoed (Edms) Bpk; Applicant: Deon Briedenhann; Respondent: Wilhelm Dennis Volmoer; Respondent: Elsie September; Respondent: Witzenberg Municipality; Respondent: Provincial Director, Department of Land Affairs
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
15 February 2016
Case Number
956/2013
Procedural Posture
Review Application / Automatic Review of Magistrate's Eviction Order
Outcome
Magistrate's eviction order set aside; matter remitted for further consideration.
Judges
Baloyi AJ
Legal Topics
Extension of Security of Tenure Act, Eviction Requirements, Probation Officer Report, Alternative Accommodation, Just and Equitable Eviction
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Requirements Probation Officer Report Alternative Accommodation Just and Equitable Eviction

Case Brief

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Parties

Christina Francina Cillie N.O (in her capacity as trustee of Johan Cillie Trust)

Applicant

Kweperfontein Landgoed (Edms) Bpk

Applicant

Deon Briedenhann

Applicant

Wilhelm Dennis Volmoer

Respondent

Elsie September

Respondent

Witzenberg Municipality

Respondent

Provincial Director, Department of Land Affairs

Respondent

Procedural Posture

Review Application / Automatic Review of Magistrate's Eviction Order

Legal Issues

  1. 1 Whether the requirements for eviction under section 9(2) of ESTA have been satisfied.
  2. 2 Whether the absence of a Probation Officer's report and evidence of alternative accommodation is fatal to the eviction application.
  3. 3 Whether the magistrate's order for eviction should be confirmed or set aside.

Ratio Decidendi

The court found that while the applicants had lawfully terminated the respondents' right of residence and complied with most statutory requirements, they failed to provide evidence regarding the availability of suitable alternative accommodation and did not submit a Probation Officer's report as required by section 9(3) of ESTA. The absence of this report and supporting evidence prevented the magistrate and the reviewing court from properly assessing whether eviction would be just and equitable, particularly considering the respondents' long-term residence and the interests of their dependent children. As these deficiencies are fatal to the application, the magistrate's order for eviction...

Court Disposition

Magistrate's eviction order set aside; matter remitted for further consideration.

Orders

  • The order of the magistrate is set aside.
  • The matter is remitted to the magistrate to obtain a report in terms of section 9(3) and to consider the issues prescribed in section 9(3).