Januarie and Others v Botma NO (LCC162/2017) [2018] ZALCC 36 (22 February 2018)

Januarie and Others v Botma NO (LCC162/2017) [2018] ZALCC 36 (22 February 2018)

The Court found that the Second and Third Appellants are occupiers under ESTA, as they have resided openly and continuously on the farm for over three years, and their rights of residence stemmed from consent. The Respondent failed to lawfully terminate their rights of residence in accordance with Section 8(1) of ESTA, as there was no evidence of substantive or procedural fairness in the termination process. The First Appellant's right of residence arose from a lease agreement, not solely from employment, and the requirements of Section 8(1) applied. The disciplinary hearing preceding his dismissal was found to be procedurally and substantively unfair, and the lease agreement did not...

Citation
[2018] ZALCC 36
Parties
Appellant: David Januarie; Appellant: Katrina Januarie; Appellant: Jo Anne Januarie; Respondent: Johan Botma N.O.
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
22 February 2018
Case Number
LCC162/2017
Procedural Posture
Civil Appeal / Appeal From Worcester Magistrate's Court Eviction Order; Cross Appeal on Status of Second and Third Appellants
Outcome
Appeal upheld; eviction order against First Appellant set aside; cross-appeal dismissed.
Judges
Meer, Potterill
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Right to Family Life, Procedural Fairness, Termination of Residence, Stare Decisis
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Eviction Proceedings Right to Family Life Procedural Fairness Termination of Residence +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

David Januarie

Appellant

Katrina Januarie

Appellant

Jo Anne Januarie

Appellant

Johan Botma N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Worcester Magistrate's Court Eviction Order; Cross Appeal on Status of Second and Third Appellants

Legal Issues

  1. 1 Whether the Second and Third Appellants are occupiers under ESTA and entitled to protection from eviction.
  2. 2 Whether the termination of the First Appellant's right of residence was just and equitable under Section 8(1) of ESTA.
  3. 3 Whether the requirements for granting an eviction order against the First Appellant were satisfied.

Ratio Decidendi

The Court found that the Second and Third Appellants are occupiers under ESTA, as they have resided openly and continuously on the farm for over three years, and their rights of residence stemmed from consent. The Respondent failed to lawfully terminate their rights of residence in accordance with Section 8(1) of ESTA, as there was no evidence of substantive or procedural fairness in the termination process. The First Appellant's right of residence arose from a lease agreement, not solely from employment, and the requirements of Section 8(1) applied. The disciplinary hearing preceding his dismissal was found to be procedurally and substantively unfair, and the lease agreement did not...

Court Disposition

Appeal upheld; eviction order against First Appellant set aside; cross-appeal dismissed.

Orders

  • The appeal is upheld. The order for the eviction of the First Appellant granted in the Worcester Magistrate's Court on 28 March 2017 is set aside.
  • The cross-appeal is dismissed.