Erwee N.O and Others v Davids and Others (LCC63/18) [2018] ZALCC 33 (27 June 2018)

Erwee N.O and Others v Davids and Others (LCC63/18) [2018] ZALCC 33 (27 June 2018)

The court found that the omission of the date and place on the founding affidavit was not a fatal irregularity, as the regulation is directory and no prejudice was caused. The appeal against the Magistrate's decision to uphold the point in limine succeeded. On the merits, the Second to Fourth Respondents' rights of residence derived from consent under ESTA and had not been lawfully terminated in accordance with section 8(1), nor were the mandatory requirements of section 9(2) met. The Fifth Respondent, as a long-term occupier, was entitled to family life, and there was no evidence that permitting his family to reside with him would be unjust or inequitable to the owner. The Appellants...

Citation
[2018] ZALCC 33
Parties
Appellant: Andries Johannes Erwee NO; Appellant: Christina Louisa Erwee NO; Appellant: Jacobus Cornelius Badenhorst NO; Appellant: Johannes Hamman Groenewald NO; Appellant: Wapadskloof Trust (IT 3627/2000) Daniel Brand Groenewald NO; Respondent: Franklin Davids; Respondent: Patric Williams; Respondent: Jaco Davids; Respondent: Maina Adams; Respondent: Frans Pienaar; Respondent: Theewaterskloof Municipality
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
27 June 2018
Case Number
LCC63/18
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Decision
Outcome
Appeal upheld on the point in limine; application for eviction dismissed.
Judges
Y S Meer, M Canca
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Commissioning of Affidavits, Right to Family Life, Termination of Right of Residence
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Proceedings Commissioning of Affidavits Right to Family Life Termination of Right of Residence

Case Brief

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Parties

Andries Johannes Erwee NO

Appellant

Christina Louisa Erwee NO

Appellant

Jacobus Cornelius Badenhorst NO

Appellant

Johannes Hamman Groenewald NO

Appellant

Wapadskloof Trust (IT 3627/2000) Daniel Brand Groenewald NO

Appellant

Franklin Davids

Respondent

Patric Williams

Respondent

Jaco Davids

Respondent

Maina Adams

Respondent

Frans Pienaar

Respondent

Theewaterskloof Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Decision

Legal Issues

  1. 1 Whether the founding affidavit's omission of date and place invalidated the eviction application.
  2. 2 Whether the Second to Fourth Respondents' rights of residence were properly terminated under ESTA.
  3. 3 Whether the Fifth Respondent's right to family life precludes eviction of other family members.

Ratio Decidendi

The court found that the omission of the date and place on the founding affidavit was not a fatal irregularity, as the regulation is directory and no prejudice was caused. The appeal against the Magistrate's decision to uphold the point in limine succeeded. On the merits, the Second to Fourth Respondents' rights of residence derived from consent under ESTA and had not been lawfully terminated in accordance with section 8(1), nor were the mandatory requirements of section 9(2) met. The Fifth Respondent, as a long-term occupier, was entitled to family life, and there was no evidence that permitting his family to reside with him would be unjust or inequitable to the owner. The Appellants...

Court Disposition

Appeal upheld on the point in limine; application for eviction dismissed.

Orders

  • The appeal against the Magistrate's decision to uphold the Respondents' second point in limine succeeds.
  • The application for the eviction of the First to Fifth Respondents from the farm Krabbe Fonteyn, District of Caledon, is dismissed.