Louwerivier Plase (Edms) Bpk and Others v Paulse and Others (LCC18R2018, 3498/2017) [2018] ZALCC 6 (17 April 2018)

Louwerivier Plase (Edms) Bpk and Others v Paulse and Others (LCC18R2018, 3498/2017) [2018] ZALCC 6 (17 April 2018)

The court found that the eviction order against the Fifth Respondent, being minor children of the Second Respondent, would violate both the right to family life under section 6(2)(d) of ESTA and the constitutional rights of children to family and parental care under section 28(1)(b) of the Constitution. There was no evidence that the continued residence of the Second Respondent and her minor children would result in injustice or unfairness to the applicants. The Third and Fourth Respondents, being adults who did not have consent to reside and refused to pay the required fee, were not entitled to protection under ESTA. The eviction order was confirmed only in respect of the Third and...

Citation
[2018] ZALCC 6
Parties
Applicant: Louwerivier Plase (Edms) Bpk; Applicant: JD Kirsten (Edms) Bpk; Applicant: Hendrik Albertyn Louw N.O; Applicant: Jacob Daniel Kirsten N.O; Applicant: Hester Josina Kirsten N.O; Respondent: Johanna Paulse; Respondent: Elzaan Paulse; Respondent: Ivan Paulse; Respondent: Taswill Peter Karolesen; Respondent: Alle ander persone woonagtig saam of onder die Eerste tot Vierde Respondente te Huisnommer 03, Irene Plaas; Respondent: Drakenstein Munisipaliteit; Respondent: Department van Landelike Ontwikkeling en Gronhervorming
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
17 April 2018
Case Number
LCC18R2018, 3498/2017
Procedural Posture
Review Application / Automatic Review of Eviction Order
Outcome
Eviction order confirmed only in respect of the Third and Fourth Respondents; no order as to costs.
Judges
Y.S Meer
Legal Topics
Extension of Security of Tenure Act, Right to Family Life, Eviction Procedure, Children S Rights
Land and Property Constitutional Law Extension of Security of Tenure Act Right to Family Life Eviction Procedure Children S Rights

Case Brief

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Parties

Louwerivier Plase (Edms) Bpk

Applicant

JD Kirsten (Edms) Bpk

Applicant

Hendrik Albertyn Louw N.O

Applicant

Jacob Daniel Kirsten N.O

Applicant

Hester Josina Kirsten N.O

Applicant

Johanna Paulse

Respondent

Elzaan Paulse

Respondent

Ivan Paulse

Respondent

Taswill Peter Karolesen

Respondent

Alle ander persone woonagtig saam of onder die Eerste tot Vierde Respondente te Huisnommer 03, Irene Plaas

Respondent

Drakenstein Munisipaliteit

Respondent

Department van Landelike Ontwikkeling en Gronhervorming

Respondent

Procedural Posture

Review Application / Automatic Review of Eviction Order

Legal Issues

  1. 1 Whether the eviction order against the Fifth Respondent, being minor children of the Second Respondent, violates the right to family life under ESTA and the Constitution.
  2. 2 Whether the Third and Fourth Respondents are lawful occupiers entitled to remain on the property.
  3. 3 Whether the eviction of the Third and Fourth Respondents is just and equitable under the circumstances.

Ratio Decidendi

The court found that the eviction order against the Fifth Respondent, being minor children of the Second Respondent, would violate both the right to family life under section 6(2)(d) of ESTA and the constitutional rights of children to family and parental care under section 28(1)(b) of the Constitution. There was no evidence that the continued residence of the Second Respondent and her minor children would result in injustice or unfairness to the applicants. The Third and Fourth Respondents, being adults who did not have consent to reside and refused to pay the required fee, were not entitled to protection under ESTA. The eviction order was confirmed only in respect of the Third and...

Court Disposition

Eviction order confirmed only in respect of the Third and Fourth Respondents; no order as to costs.

Orders

  • The Third and Fourth Respondents are ordered to vacate House No.3, Irene Plaas, Erf 7 Paarl, Western Cape on or before 30 June 2018.
  • If the Third and Fourth Respondents fail to vacate by the specified date, the Sheriff is authorised to carry out their eviction on 1 July 2018.