Kotze v Scholefield & others [2021] ZALCC 9 (4 May 2021)

Kotze v Scholefield & others [2021] ZALCC 9 (4 May 2021)

The appeal turned on whether the Magistrate's Court erred in dismissing the eviction application without referring the dispute of fact regarding the First Respondent's alleged life right to oral evidence. The Land Claims Court found that there was a real dispute as to whether the First Respondent's consent to reside on the farm stemmed from a life right or a lease agreement. The Magistrate's Court was bound to accept the respondent's version in the absence of oral evidence, but should have referred the matter to oral evidence to resolve the dispute. The failure to do so was a misdirection. Accordingly, the matter was remitted to the Magistrate's Court for the hearing of oral evidence on...

Citation
[2021] ZALCC 9
Parties
Appellant: Penny Kotze; Respondent: Michelle Scholefield; Respondent: City of Cape Town Municipality; Respondent: Department of Rural Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
4 May 2021
Case Number
LCC200/2020
Procedural Posture
Civil Appeal / Appeal From Dismissal of Eviction Application in Magistrate's Court
Outcome
Appeal upheld in part; matter remitted for oral evidence on the disputed life right.
Judges
MIA, Meer
Legal Topics
Extension of Security of Tenure Act, Eviction Proceedings, Dispute of Fact, Oral Evidence, Right of Habitatio
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Proceedings Dispute of Fact Oral Evidence Right of Habitatio

Case Brief

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Parties

Penny Kotze

Appellant

Michelle Scholefield

Respondent

City of Cape Town Municipality

Respondent

Department of Rural Development and Land Reform

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Eviction Application in Magistrate's Court

Legal Issues

  1. 1 Whether the First Respondent's occupation was by consent in terms of a verbal lease agreement or by a life right (habitatio).
  2. 2 Whether the Appellant lawfully terminated the First Respondent's right of residence under section 8 of ESTA.
  3. 3 Whether eviction would be just and equitable, particularly regarding the notice period given.

Ratio Decidendi

The appeal turned on whether the Magistrate's Court erred in dismissing the eviction application without referring the dispute of fact regarding the First Respondent's alleged life right to oral evidence. The Land Claims Court found that there was a real dispute as to whether the First Respondent's consent to reside on the farm stemmed from a life right or a lease agreement. The Magistrate's Court was bound to accept the respondent's version in the absence of oral evidence, but should have referred the matter to oral evidence to resolve the dispute. The failure to do so was a misdirection. Accordingly, the matter was remitted to the Magistrate's Court for the hearing of oral evidence on...

Court Disposition

Appeal upheld in part; matter remitted for oral evidence on the disputed life right.

Orders

  • The matter is remitted to the Magistrates Court Simonstown for the hearing of oral evidence on whether the First Respondent has a life right to reside on the farm and the nature of such right.
  • There is no order as to costs.