Mollem Boerdery (Pty) Ltd v Modisane (LCC21R/2009) [2009] ZALCC 5 (22 June 2009)

Mollem Boerdery (Pty) Ltd v Modisane (LCC21R/2009) [2009] ZALCC 5 (22 June 2009)

The court found that the applicant failed to comply with the mandatory requirements of section 9(2) of ESTA. There was insufficient evidence of proper termination of residence, inadequate written notice, and lack of detail regarding the opportunity for representations. The service of process was defective, with returns of service lacking necessary information and failing to comply with regulation 9. The probation officer's report was unreliable, did not adequately address the respondents' circumstances or alternative accommodation, and failed to consult relevant family members. Due to these procedural and substantive defects, the eviction orders could not be confirmed and were set aside.

Citation
[2009] ZALCC 5
Parties
Applicant: Mollem Boerdery (Pty) Ltd; Respondent: Daniel Modisane
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
22 June 2009
Case Number
LCC21R/2009
Procedural Posture
Automatic Review / Review of Magistrate's Eviction Orders Under ESTA
Outcome
Eviction orders set aside; application for confirmation of eviction refused.
Judges
S C Mia
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Service of Process, Probation Officer Report, Liquidation and Right of Residence
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Service of Process Probation Officer Report Liquidation and Right of Residence

Case Brief

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Parties

Mollem Boerdery (Pty) Ltd

Applicant

Daniel Modisane

Respondent

Procedural Posture

Automatic Review / Review of Magistrate's Eviction Orders Under ESTA

Legal Issues

  1. 1 Whether the eviction orders granted by the Magistrate complied with the mandatory requirements of section 9(2) of ESTA.
  2. 2 Whether proper notice and termination of residence were effected in accordance with ESTA.
  3. 3 Whether service of process and opportunity for representations were properly executed.

Ratio Decidendi

The court found that the applicant failed to comply with the mandatory requirements of section 9(2) of ESTA. There was insufficient evidence of proper termination of residence, inadequate written notice, and lack of detail regarding the opportunity for representations. The service of process was defective, with returns of service lacking necessary information and failing to comply with regulation 9. The probation officer's report was unreliable, did not adequately address the respondents' circumstances or alternative accommodation, and failed to consult relevant family members. Due to these procedural and substantive defects, the eviction orders could not be confirmed and were set aside.

Court Disposition

Eviction orders set aside; application for confirmation of eviction refused.

Orders

  • The whole of the order of the Magistrate Klerksdorp is set aside in cases 7521/2007, 7522/2007, 7523/2007, and 7525/2007.