Lee v Van Rensburg (04R/2016, U4056/2015) [2016] ZALCC 26 (17 October 2016)

Lee v Van Rensburg (04R/2016, U4056/2015) [2016] ZALCC 26 (17 October 2016)

The appeal was dismissed because the record established that personal service of the eviction application was effected on the appellant, and the application was served on the Municipality and Department of Rural Development and Land Reform. The respondent made all necessary averments for eviction under ESTA, and the appellant failed to oppose or appear. The absence of a probation officer's report did not invalidate the proceedings, as the magistrate was entitled to proceed in its absence per Theewaterskloof Holdings. The appellant's remaining grounds of appeal were found to be without merit, and the suggestion that the magistrate was required to subpoena the appellant was rejected as...

Citation
[2016] ZALCC 26
Parties
Appellant: Franco Lee; Respondent: Petrus Johannes Merwe van Rensburg
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
17 October 2016
Case Number
04R/2016
Procedural Posture
Civil Appeal / Appeal Against Eviction Order Granted by Default in Magistrates Court, Confirmed on Automatic Review, Now Heard by Land Claims Court.
Outcome
Appeal dismissed with costs. Eviction order confirmed with amended dates for vacating and enforcement.
Judges
Barnes, Rajab-Budlender
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Probation Officer Report, Just and Equitable Eviction, Service of Process
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Probation Officer Report Just and Equitable Eviction Service of Process

Case Brief

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Parties

Franco Lee

Appellant

Petrus Johannes Merwe van Rensburg

Respondent

Procedural Posture

Civil Appeal / Appeal Against Eviction Order Granted by Default in Magistrates Court, Confirmed on Automatic Review, Now Heard by Land Claims Court.

Legal Issues

  1. 1 Whether the eviction order was properly granted in terms of ESTA.
  2. 2 Whether personal service of the eviction application was effected on the appellant.
  3. 3 Whether the absence of a probation officer's report invalidated the eviction order.

Ratio Decidendi

The appeal was dismissed because the record established that personal service of the eviction application was effected on the appellant, and the application was served on the Municipality and Department of Rural Development and Land Reform. The respondent made all necessary averments for eviction under ESTA, and the appellant failed to oppose or appear. The absence of a probation officer's report did not invalidate the proceedings, as the magistrate was entitled to proceed in its absence per Theewaterskloof Holdings. The appellant's remaining grounds of appeal were found to be without merit, and the suggestion that the magistrate was required to subpoena the appellant was rejected as...

Court Disposition

Appeal dismissed with costs. Eviction order confirmed with amended dates for vacating and enforcement.

Orders

  • The appeal is dismissed with costs.
  • Franco Lee is ordered to vacate the farm by no later than 31 January 2017.