Magubane and Another v Twin City Developers (Pty) Ltd and Others; In re: Twin City Developers (Pty) Ltd and Another v Magubane and Others (LCC 126/2014) [2016] ZALCC 7 (18 April 2016)

Magubane and Another v Twin City Developers (Pty) Ltd and Others; In re: Twin City Developers (Pty) Ltd and Another v Magubane and Others (LCC 126/2014) [2016] ZALCC 7 (18 April 2016)

The court found that there is a material contradiction in the case law regarding whether a probation officer's report under section 9(3) of the Extension of Security of Tenure Act is a mandatory prerequisite for granting an eviction order. Given the conflicting judicial interpretations and the constitutional implications for affected persons, including children, the court concluded that there are reasonable prospects of success on appeal. Accordingly, leave to appeal is granted to allow the Supreme Court of Appeal to resolve the issue of whether the trial court must request, receive, and consider a probation officer's report before ordering eviction under section 10(1) of the Act.

Citation
[2016] ZALCC 7
Parties
Applicant: July Joseph Magubane; Applicant: Gweje Khumalo; Respondent: Twin City Developers (Pty) Ltd; Respondent: Wetlands Country Retreat (Pty) Ltd; Respondent: Pixley Ka Seme Local Municipality; Respondent: Head of the Mpumalanga Provincial Office of the Department of Rural Development and Land Reform; Respondent: Head of the KwaZulu-Natal Provincial Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
18 April 2016
Case Number
LCC 126/2014
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Eviction Order
Outcome
Leave to appeal is granted regarding the section 9(3) report issue; condonation is granted; costs to be costs in the appeal.
Judges
Mpshe MJ
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Probation Officer Report, Alternative Accommodation, Constitutional Rights, Hardship Consideration
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Probation Officer Report Alternative Accommodation Constitutional Rights Hardship Consideration

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Parties

July Joseph Magubane

Applicant

Gweje Khumalo

Applicant

Twin City Developers (Pty) Ltd

Respondent

Wetlands Country Retreat (Pty) Ltd

Respondent

Pixley Ka Seme Local Municipality

Respondent

Head of the Mpumalanga Provincial Office of the Department of Rural Development and Land Reform

Respondent

Head of the KwaZulu-Natal Provincial Development and Land Reform

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Eviction Order

Legal Issues

  1. 1 Whether the trial court is obliged to request a probation officer's report under section 9(3) of the Extension of Security of Tenure Act before ordering eviction.
  2. 2 Whether the court may finalise an eviction determination without considering the contents of a section 9(3) report.

Ratio Decidendi

The court found that there is a material contradiction in the case law regarding whether a probation officer's report under section 9(3) of the Extension of Security of Tenure Act is a mandatory prerequisite for granting an eviction order. Given the conflicting judicial interpretations and the constitutional implications for affected persons, including children, the court concluded that there are reasonable prospects of success on appeal. Accordingly, leave to appeal is granted to allow the Supreme Court of Appeal to resolve the issue of whether the trial court must request, receive, and consider a probation officer's report before ordering eviction under section 10(1) of the Act.

Court Disposition

Leave to appeal is granted regarding the section 9(3) report issue; condonation is granted; costs to be costs in the appeal.

Orders

  • Condonation application is granted.
  • Leave to appeal regarding section 9(3) is granted.