Motyre (Pty) Ltd - Conradie Family Trust v Gurah and Others (01R2019, 4334/2016) [2019] ZALCC 6 (29 January 2019)
The court found that both the First and Second Respondents' rights of residence were based on consent rather than employment. The founding affidavit addressed the factors required by Section 8(1) of the Extension of Security of Tenure Act. The Constitutional Court's decision in Klaase v Van der Merwe clarified that...
Source-derived case information.
- Citation
- [2019] ZALCC 6
- Parties
- Applicant: Motyre (Pty) Ltd - Conradie Family Trust; Respondent: Randall Gurah; Respondent: All Other Persons Residing; Respondent: The Municipal Manager; Respondent: The Cape Wine Land District Municipality; Respondent: The Breede River Valley; Respondent: The Deputy Director / The Head of Department; Respondent: The Department of Rural Development and Rural Reform
- Court
- Land Claims Court
- Jurisdiction
- South Africa
- Case Number
- 01R2019
- Procedural Posture
- Review Application / Automatic Review of Eviction Order
- Outcome
- Eviction order confirmed with amended dates for eviction and execution.
- Judges
- Y S Meer
- Legal Topics
- Extension of Security of Tenure Act, Eviction, Consent to Reside, Just and Equitable Eviction, Section 8 Factors, Constitutional Rights of Occupiers
Source-derived case record
Summary, issues, holding and outcome
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Parties
Motyre (Pty) Ltd - Conradie Family Trust
Applicant
Randall Gurah
Respondent
All Other Persons Residing
Respondent
The Municipal Manager
Respondent
The Cape Wine Land District Municipality
Respondent
The Breede River Valley
Respondent
The Deputy Director / The Head of Department
Respondent
The Department of Rural Development and Rural Reform
Respondent
Procedural Posture
Review Application / Automatic Review of Eviction Order
Legal Issues
- 1 Whether the eviction order granted by the Magistrate's Court should be confirmed.
- 2 Whether the rights of residence of the First and Second Respondents flowed from consent or employment.
- 3 Whether the factors in Section 8(1) of the Extension of Security of Tenure Act were properly considered.
Ratio Decidendi
The court found that both the First and Second Respondents' rights of residence were based on consent rather than employment. The founding affidavit addressed the factors required by Section 8(1) of the Extension of Security of Tenure Act. The Constitutional Court's decision in Klaase v Van der Merwe clarified that persons like the Second Respondent have independent rights of residence derived from consent, and Section 8(1) applies to them. After considering all evidence and pleadings, the court was satisfied that the eviction was just and equitable, having regard to all relevant statutory factors.
Court Disposition
Eviction order confirmed with amended dates for eviction and execution.
Orders
- The order of eviction is confirmed.
- The date of eviction is set for Friday 28 June 2019.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE NO: LCC 01R2019
MAGISTRATE’S COURT CASE NUMBER: 4334/2016
Before: The Honourable Acting Judge President Meer
Delivered: 29 January 2019
In the matter between:
MOTYRE (PTY) LTD – CONRADIE FAMILY TRUST Applicant
And
RANDALL GURAH
1st Respondent
ALL OTHER PERSONS RESIDING
2nd Respondent
THE MUNICIPAL MANGER
3rd Respondent
THE CAPE WINE LAND DISTRICT
MUNICIPALITY
THE MUNICIPAL MANGER
4th Respondent
THE BREEDE RIVER VALLEY
THE DEPUTY DIRECTOR / THE HEAD
5th Respondent
OF DEPARTMENT
THE DEPARTMENT
OF RURAL DEVELOPMENT AND RURAL REFORM
JUDGMENT DELIVERED 29 JANUARY 2019
MEER AJP.
[1] This matter comes before me on automatic review. I am satisfied that the order for the eviction stands to be confirmed. The following, which appears to have escaped the Court a quo, must however be noted.
[2] The right of residence of the First Respondent predated his contract of employment. His right to reside therefore flowed from consent and not from his employment contract. The factors at Section 8 (1) of the Extension of Security of Tenure Act No 62 of 1997 (“the ACT”) thus had to be considered. The founding affidavit did in fact address such factors.
[3] The Second Respondent’s right of residence also flowed from consent and not from the rights of occupation of the First Respondent. The Constitutional Court judgment of Klaase and Another v Van der Merwe No and Others 2016(6) SA131(CC) recognized that the rights of residence of persons like the Second Respondent derived from consent flowing from the combined operation of subsections (4) and (5) of section 3 of the Act. Post Klaase the Second Respondent can no longer be regarded as a mere resident who occupied under the First Respondent. Section 8 (1) applies also in respect of the Second Respondent.
[4] I have carefully considered the evidence and pleadings and I am satisfied that the eviction of the Respondents was just and equitable having regard to all relevant factors and particularly those set out at Section 8 (1) of the Act.
[5] I accordingly order as follows:
The order of eviction is confirmed save that the dates in the order are amended as follows:
Date of eviction: Friday 28 June 2019
Date Sheriff to execute order: Mon 1 July 2019
Y S MEER
Acting Judge President
Land Claims Court