JAD Properties Trust v Tshabalala and Others (LCC 58R/2009) [2010] ZALCC 21 (4 August 2010)

JAD Properties Trust v Tshabalala and Others (LCC 58R/2009) [2010] ZALCC 21 (4 August 2010)

The court found that the magistrate's order for eviction did not comply with the mandatory requirements of section 9(2)(a) and (b) of ESTA. There was insufficient evidence of proper written notice of termination of the respondents' right of residence, and the record did not clarify the fourth respondent's age or status under section 8(4). The oral evidence presented did not establish compliance with statutory requirements. As a result, the eviction order was not lawfully granted and was set aside.

Citation
[2010] ZALCC 21
Parties
Applicant: JAD Properties Trust; Respondent: Elias Mathoto Tshabalala; Respondent: Deliwe Emily Nhlapo; Respondent: Makamoho Melita Tshabalala; Respondent: Thokozile Julia Tshabalala; Respondent: Dihlabeng Local Municipality; Respondent: Department of Land Affairs
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
4 August 2010
Case Number
LCC 58R/2009
Procedural Posture
Automatic Review / Automatic Review of Magistrate's Eviction Order Under Section 19(3) of Esta.
Outcome
Eviction order set aside due to non-compliance with statutory requirements.
Judges
MIA
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Termination of Right of Residence, Compliance With Statutory Requirements
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Proceedings Termination of Right of Residence Compliance With Statutory Requirements

Case Brief

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Parties

JAD Properties Trust

Applicant

Elias Mathoto Tshabalala

Respondent

Deliwe Emily Nhlapo

Respondent

Makamoho Melita Tshabalala

Respondent

Thokozile Julia Tshabalala

Respondent

Dihlabeng Local Municipality

Respondent

Department of Land Affairs

Respondent

Procedural Posture

Automatic Review / Automatic Review of Magistrate's Eviction Order Under Section 19(3) of Esta.

Legal Issues

  1. 1 Whether the respondents were properly classified as occupiers under ESTA.
  2. 2 Whether there was compliance with section 9(2)(a) and (b) of ESTA regarding termination of right of residence and notice requirements.
  3. 3 Whether the eviction order granted by the magistrate was lawful and just.

Ratio Decidendi

The court found that the magistrate's order for eviction did not comply with the mandatory requirements of section 9(2)(a) and (b) of ESTA. There was insufficient evidence of proper written notice of termination of the respondents' right of residence, and the record did not clarify the fourth respondent's age or status under section 8(4). The oral evidence presented did not establish compliance with statutory requirements. As a result, the eviction order was not lawfully granted and was set aside.

Court Disposition

Eviction order set aside due to non-compliance with statutory requirements.

Orders

  • The order made by the Magistrate Fouriesburg under Case Number 31/2008 is set aside.