Jacobs and Others v Bester and Others (LCC 02R/2023) [2023] ZALCC 2 (7 February 2023)

Jacobs and Others v Bester and Others (LCC 02R/2023) [2023] ZALCC 2 (7 February 2023)

The Land Claims Court found that the Magistrate erred in granting the eviction order. The termination of the respondents' right of occupation was not just and equitable as required by ESTA. The Magistrate failed to properly consider all relevant factors, including the respondents' lack of alternative accommodation, the special protection afforded to long-term occupiers, and the impact of eviction on children. The probation officer's report, which recommended against eviction and confirmed the second respondent's permanent rights of residence, was ignored. The applicants did not demonstrate any serious prejudice or hardship if the eviction was refused, nor did they substantiate the need...

Citation
[2023] ZALCC 2
Parties
Applicant: Johannes Nicolaas Jacobs; Applicant: Evenly Jacobs N.O.; Applicant: Odette-Mari Boshoff N.O.; Applicant: Risjes Vallei Boerdery (Pty) Ltd; Respondent: Christiaan Bester; Respondent: Maria Bester; Respondent: Christopher Bester; Respondent: All persons occupying through the 1st respondent
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
7 February 2023
Case Number
LCC 02R/2023
Procedural Posture
Automatic Review / Review of Magistrate's Eviction Order Under ESTA
Outcome
Eviction order set aside; application for eviction dismissed.
Judges
Flatela
Legal Topics
Extension of Security of Tenure Act, Just and Equitable Eviction, Long Term Occupier Protection, Right to Housing, Procedural Fairness, Children's Rights
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Just and Equitable Eviction Long Term Occupier Protection Right to Housing Procedural Fairness +1 more

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Parties

Johannes Nicolaas Jacobs

Applicant

Evenly Jacobs N.O.

Applicant

Odette-Mari Boshoff N.O.

Applicant

Risjes Vallei Boerdery (Pty) Ltd

Applicant

Christiaan Bester

Respondent

Maria Bester

Respondent

Christopher Bester

Respondent

All persons occupying through the 1st respondent

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the termination of the respondents' right of occupation was just and equitable under ESTA.
  2. 2 Whether the requirements of sections 8, 9, and 10 of ESTA were complied with.
  3. 3 Whether the rights of long-term occupiers and children were properly considered.

Ratio Decidendi

The Land Claims Court found that the Magistrate erred in granting the eviction order. The termination of the respondents' right of occupation was not just and equitable as required by ESTA. The Magistrate failed to properly consider all relevant factors, including the respondents' lack of alternative accommodation, the special protection afforded to long-term occupiers, and the impact of eviction on children. The probation officer's report, which recommended against eviction and confirmed the second respondent's permanent rights of residence, was ignored. The applicants did not demonstrate any serious prejudice or hardship if the eviction was refused, nor did they substantiate the need...

Court Disposition

Eviction order set aside; application for eviction dismissed.

Orders

  • The order granted by the Magistrate Worcester is set aside and replaced by: 'The application is dismissed with no order as to costs.'