First Reality (Krugersdorp) (Pty) Ltd v G Mitchell and others (LCC 123/2018) [2021] ZALCC 6 (13 April 2021)

First Reality (Krugersdorp) (Pty) Ltd v G Mitchell and others (LCC 123/2018) [2021] ZALCC 6 (13 April 2021)

The applicant failed to comply with the procedural and substantive requirements for eviction under ESTA. The founding affidavit did not make direct averments that the rights of residence of all occupiers, including adult non-dependent children, were terminated in accordance with section 8 of ESTA. The adult non-dependent children are occupiers in their own right and must be afforded independent procedural protection, including an effective opportunity to make representations before termination. The applicant's reliance on employment agreements and housing policy does not extend to adult non-dependent children, and the notices and meetings were primarily directed at employees and...

Citation
[2021] ZALCC 6
Parties
Applicant: First Realty (Krugersdorp) (Pty) Ltd; Respondent: Gertjie Mitchell; Respondent: Bettie Mitchell; Respondent: Michelle Haarvoor; Respondent: Gerhard Mitchell; Respondent: Willem Januarie; Respondent: Dolfina Januarie; Respondent: Anna-Marie van Wyk; Respondent: Jeremy Januarie; Respondent: Nazeem Lennerts; Respondent: Mary Lennerts; Respondent: Hennie Bailey; Respondent: Katrina Bailey; Respondent: Faiza Bailey; Respondent: Absolon van Wyk; Respondent: Truitjie Goosen; Respondent: Shirley Goosen; Respondent: Jerome Arendse; Respondent: Sara Arendse; Respondent: Lee-Hano Jonathan; Respondent: Anna Januarie; Respondent: Aletsea Mitchell; Respondent: Welmarie Mitchell; Respondent: Franklin Mitchell; Respondent: All those holding title through First to Twenty Sixth Respondents or occupying cottages 1, 3, 5, 7, 8, 9 & 10 Farm Hammansdans, Portion 6 of Farm No 191, Division Paarl, Western Cape; Respondent: Drakenstein Municipality; Respondent: Head: Western Cape Provincial Department of Rural Development and Land Affairs
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
13 April 2021
Case Number
LCC 123/2018
Procedural Posture
Eviction Application / Judgment
Outcome
Application for eviction dismissed for non-compliance with ESTA procedural requirements.
Judges
Carelse
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Right to Family Life, Termination of Right of Residence, Just and Equitable Standard, Procedural Fairness
Land and Property Constitutional Law Civil Procedure Extension of Security of Tenure Act Eviction Proceedings Right to Family Life Termination of Right of Residence Just and Equitable Standard +1 more

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Parties

First Realty (Krugersdorp) (Pty) Ltd

Applicant

Gertjie Mitchell

Respondent

Bettie Mitchell

Respondent

Michelle Haarvoor

Respondent

Gerhard Mitchell

Respondent

Willem Januarie

Respondent

Dolfina Januarie

Respondent

Anna-Marie van Wyk

Respondent

Jeremy Januarie

Respondent

Nazeem Lennerts

Respondent

Mary Lennerts

Respondent

Hennie Bailey

Respondent

Katrina Bailey

Respondent

Faiza Bailey

Respondent

Absolon van Wyk

Respondent

Truitjie Goosen

Respondent

Shirley Goosen

Respondent

Jerome Arendse

Respondent

Sara Arendse

Respondent

Lee-Hano Jonathan

Respondent

Anna Januarie

Respondent

Aletsea Mitchell

Respondent

Welmarie Mitchell

Respondent

Franklin Mitchell

Respondent

All those holding title through First to Twenty Sixth Respondents or occupying cottages 1, 3, 5, 7, 8, 9 & 10 Farm Hammansdans, Portion 6 of Farm No 191, Division Paarl, Western Cape

Respondent

Drakenstein Municipality

Respondent

Head: Western Cape Provincial Department of Rural Development and Land Affairs

Respondent

Procedural Posture

Eviction Application / Judgment

Legal Issues

  1. 1 Whether the applicant complied with the procedural and substantive requirements for eviction under ESTA.
  2. 2 Whether the adult non-dependent children are occupiers in their own right under ESTA and entitled to procedural protections.
  3. 3 Whether the applicant terminated the right of residence of all occupiers in accordance with section 8 of ESTA.

Ratio Decidendi

The applicant failed to comply with the procedural and substantive requirements for eviction under ESTA. The founding affidavit did not make direct averments that the rights of residence of all occupiers, including adult non-dependent children, were terminated in accordance with section 8 of ESTA. The adult non-dependent children are occupiers in their own right and must be afforded independent procedural protection, including an effective opportunity to make representations before termination. The applicant's reliance on employment agreements and housing policy does not extend to adult non-dependent children, and the notices and meetings were primarily directed at employees and...

Court Disposition

Application for eviction dismissed for non-compliance with ESTA procedural requirements.

Orders

  • The application for eviction is dismissed.
  • The application to strike out is dismissed.