Monde v Viljoen NO and Others (1162/17) [2018] ZASCA 138; [2018] 4 All SA 665 (SCA); 2019 (2) SA 205 (SCA) (28 September 2018)

Monde v Viljoen NO and Others (1162/17) [2018] ZASCA 138; [2018] 4 All SA 665 (SCA); 2019 (2) SA 205 (SCA) (28 September 2018)

The Supreme Court of Appeal held that the appellant's right of residence was not derived exclusively from his employment contract but also from prior consent and family connection, as evidenced by his longstanding occupation and the absence of any waiver of pre-existing rights. The respondents failed to prove that the termination of the right of residence was lawful, just, and equitable as required by s 8(1) of ESTA. Furthermore, the eviction order was incompetent because no probation officer's report was furnished, which is a peremptory requirement under s 9(3) of ESTA. The court found that the magistrate and Land Claims Court erred in granting the eviction order without compliance with...

Citation
[2018] ZASCA 138
Parties
Appellant: Mzimkhulu Martiens Monde; Respondent: Jacobus Johannes Viljoen NO; Respondent: Jacobus Johannes Viljoen; Respondent: Breede Valley Municipality; Respondent: Provincial Director of the Department of Rural Development and Land Reform
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 2018
Case Number
1162/17
Procedural Posture
Civil Appeal / Appeal From Land Claims Court, Automatic Review Under S 19(3) of ESTA
Outcome
Appeal upheld; eviction order set aside and replaced with dismissal of the application.
Judges
Maya, Swain, Mocumie, Schippers, Mothle
Legal Topics
Extension of Security of Tenure Act, Lawful Termination of Residence, Eviction Procedure, Probation Officer Report, Just and Equitable Eviction
Land and Property Civil Procedure Extension of Security of Tenure Act Lawful Termination of Residence Eviction Procedure Probation Officer Report Just and Equitable Eviction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 17 Party arguments 2
Sign in to unlock

Parties

Mzimkhulu Martiens Monde

Appellant

Jacobus Johannes Viljoen NO

Respondent

Jacobus Johannes Viljoen

Respondent

Breede Valley Municipality

Respondent

Provincial Director of the Department of Rural Development and Land Reform

Respondent

Procedural Posture

Civil Appeal / Appeal From Land Claims Court, Automatic Review Under S 19(3) of ESTA

Legal Issues

  1. 1 Whether the appellant's right of residence was lawfully and justly terminated under ESTA.
  2. 2 Whether the eviction order was competent in the absence of a probation officer's report as required by s 9(3) of ESTA.
  3. 3 Whether the appellant's right of residence derived exclusively from his employment contract or from prior consent.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant's right of residence was not derived exclusively from his employment contract but also from prior consent and family connection, as evidenced by his longstanding occupation and the absence of any waiver of pre-existing rights. The respondents failed to prove that the termination of the right of residence was lawful, just, and equitable as required by s 8(1) of ESTA. Furthermore, the eviction order was incompetent because no probation officer's report was furnished, which is a peremptory requirement under s 9(3) of ESTA. The court found that the magistrate and Land Claims Court erred in granting the eviction order without compliance with...

Court Disposition

Appeal upheld; eviction order set aside and replaced with dismissal of the application.

Orders

  • The appeal is upheld.
  • Paragraph 2 of the order of the Land Claims Court is set aside and replaced with: 'The order of the Worcester Magistrate’s Court for the eviction of the first respondent from Millhurst Farm in De Doorns, Western Cape, is set aside and replaced with the following: The application is dismissed. There is no order as to...