Klink v Klink (LCC59R/2007) [2007] ZALCC 15 (1 January 2007)

Klink v Klink (LCC59R/2007) [2007] ZALCC 15 (1 January 2007)

The Land Claims Court declined to confirm the eviction order on automatic review because notice of appeal had been given by the respondent, and the respondent's status as an 'occupier' under ESTA was uncertain due to the lack of information regarding his monthly pension. The matter was remitted to the magistrate's court for further information and reconsideration, with instructions that any new order must be submitted for automatic review.

Citation
[2007] ZALCC 15
Parties
Applicant: P J L Klink; Respondent: S G P Klink
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
1 January 2007
Case Number
LCC59R/2007
Procedural Posture
Review Application / Automatic Review Under Section 19(3) of ESTA
Outcome
The eviction order granted by the magistrate is set aside and the matter is remitted for further information and reconsideration.
Judges
Gildenhuys
Legal Topics
Eviction Order, Definition of Occupier, Automatic Review, Condonation of Late Appeal
Land and Property Civil Procedure Eviction Order Definition of Occupier Automatic Review Condonation of Late Appeal

Case Brief

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Parties

P J L Klink

Applicant

S G P Klink

Respondent

Procedural Posture

Review Application / Automatic Review Under Section 19(3) of ESTA

Legal Issues

  1. 1 Whether the respondent qualifies as an 'occupier' under ESTA and is thus protected by the Act.
  2. 2 Whether the Land Claims Court has jurisdiction to confirm the eviction order on automatic review when notice of appeal has been given.
  3. 3 Whether the respondent's monthly pension disqualifies him from being an 'occupier' under ESTA.

Ratio Decidendi

The Land Claims Court declined to confirm the eviction order on automatic review because notice of appeal had been given by the respondent, and the respondent's status as an 'occupier' under ESTA was uncertain due to the lack of information regarding his monthly pension. The matter was remitted to the magistrate's court for further information and reconsideration, with instructions that any new order must be submitted for automatic review.

Court Disposition

The eviction order granted by the magistrate is set aside and the matter is remitted for further information and reconsideration.

Orders

  • The magistrate's order of 14 November 2006 is set aside in its entirety.
  • The matter is referred back to the magistrate's court to allow the parties to provide information regarding the respondent's pension, occupation of the property, and proposed new dates for eviction.