Ewree NO and Others v Jacobs and Others (LCC32R/2018, 03/2016) [2018] ZALCC 16 (3 September 2018)

Ewree NO and Others v Jacobs and Others (LCC32R/2018, 03/2016) [2018] ZALCC 16 (3 September 2018)

The Court found that the eviction order was granted without proper consideration of the requirements under ESTA, specifically sections 8(1) and 9(2) regarding the termination of rights of residence for the Second to Fourth Respondents, whose rights derived from consent and not from the First Respondent's employment. The mandatory factors for termination and eviction were not addressed. Furthermore, the right to family life under section 6(2)(d) of ESTA, as interpreted by the Constitutional Court in Hattingh and Others v Juta, was not properly considered. There was no evidence that the continued residence of the Second to Fourth Respondents with the First Respondent would result in...

Citation
[2018] ZALCC 16
Parties
Applicant: Andries Johannes Erwee NO; Applicant: Christina Louisa Erwee NO; Applicant: Jacobus Cornelius Badenhorst NO; Respondent: Stefanus Jacobs; Respondent: Mercia Wildschutt; Respondent: Donique Wildschutt; Respondent: Micolene Sauls; Respondent: Theewaterskloof Municipality
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
3 September 2018
Case Number
LCC32R/2018
Procedural Posture
Automatic Review / Automatic Review of Eviction Order From Magistrates Court Under ESTA
Outcome
Eviction order set aside in whole; respondents are not to be evicted.
Judges
Meer
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Right to Family Life, Termination of Right of Residence
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Proceedings Right to Family Life Termination of Right of Residence

Case Brief

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Parties

Andries Johannes Erwee NO

Applicant

Christina Louisa Erwee NO

Applicant

Jacobus Cornelius Badenhorst NO

Applicant

Stefanus Jacobs

Respondent

Mercia Wildschutt

Respondent

Donique Wildschutt

Respondent

Micolene Sauls

Respondent

Theewaterskloof Municipality

Respondent

Procedural Posture

Automatic Review / Automatic Review of Eviction Order From Magistrates Court Under ESTA

Legal Issues

  1. 1 Whether the eviction order granted against the respondents complied with the requirements of the Extension of Security of Tenure Act (ESTA).
  2. 2 Whether the rights of residence of the Second to Fourth Respondents were properly terminated under section 8(1) of ESTA.
  3. 3 Whether the right to family life under section 6(2)(d) of ESTA was properly considered in relation to the First Respondent.

Ratio Decidendi

The Court found that the eviction order was granted without proper consideration of the requirements under ESTA, specifically sections 8(1) and 9(2) regarding the termination of rights of residence for the Second to Fourth Respondents, whose rights derived from consent and not from the First Respondent's employment. The mandatory factors for termination and eviction were not addressed. Furthermore, the right to family life under section 6(2)(d) of ESTA, as interpreted by the Constitutional Court in Hattingh and Others v Juta, was not properly considered. There was no evidence that the continued residence of the Second to Fourth Respondents with the First Respondent would result in...

Court Disposition

Eviction order set aside in whole; respondents are not to be evicted.

Orders

  • The order for the eviction of the Respondents is set aside in whole.