Nederhuitse Hervormde Kerk (Geemente van Ruskoppies Dwaalboom) v Kotsedi (LCC47R/07) [2007] ZALCC 9 (14 June 2007)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC 47R/07

In chambers: Meer AJ MAGISTRATE’S COURT CASE NUMBER: 903/06

Decided on: 14 June 2007

In the review proceedings in the case between:

NEDERDUITSTE HERVORMDE KERK Applicant

(GEEMENTE VAN RUSKOPPIES DWAALBOOM)

And

APRIL KOTSEDI Respondent

________________________________________________________________________

JUDGMENT

MEER J:

This is an automatic review in terms of section 19(3) of the Extension of Security of Tenure Act1 (“the Act”) of an order granted by the Magistrate, Thabazimbi on 14 July 2006. The order provides for the eviction of the respondent from the farm Dwaalboom 217, district, Thabazimbi owned by the applicant. It orders also the applicant to provide alternative

accommodation to respondent. Both parties were legally represented and were present at the hearing.

The grounds for eviction upon which the applicant relied, appear from the affidavit of Daniel Jansen van Vuuren, who is the chairperson of the applicant’s council. This states that the respondent’s right of residence, which arose from his contract of employment with the applicant, was lawfully terminated on 28 February 2005 due to his misconduct. A letter to the respondent on behalf of applicant annexed to the affidavit cites the reason for termination as the respondent’s absence from work for 5 days without permission. Respondent’s rowdy and unruly behaviour, in close proximity to the church building was cited as a further ground. Such behaviour was corroborated by the testimony of two witnesses and found to be reasonably probable by the court a quo. Applicant contended that there were in the circumstances grounds for an order evicting the respondent as set out in sections 9(2) (a) and 9(2) (c) of the Act, and such order was called for.

The papers before me on review suggested that the mandatory requirements for an eviction order provided for at sections 9 (2) (a) read with section 8 (2), and section 9(2)(c) read with section 10(1)(c), as well as section 9(2)(d)(i)to (iii) of the Act had been complied with. These provide as follows: Section 9 - “(2) A court may make an order for the eviction of an occupier if - (a) the occupier’s right of residence has been terminated in terms of section 8; (b) the occupier has not vacated the land within the period of notice given by the owner or person in charge; (c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and (d) the owner or person in charge has, after the termination of the right of residence, given - (i) the occupier; (ii) the municipality in whose area of jurisdiction the land in question is situated; and (iii) the head of the relevant provincial office of the Department of Land Affairs, for information purposes, not less than two calendar months' written notice of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier, the municipality and the head of the relevant provincial office of the Department of Land Affairs not less than two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to have been complied with.” Section 8 “(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act.” “Section 10(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if

The papers before me on review suggested that the mandatory requirements for an eviction order provided for at sections 9 (2) (a) read with section 8 (2), and section 9(2)(c) read with section 10(1)(c), as well as section 9(2)(d)(i)to (iii) of the Act had been complied with. These provide as follows:

Section 9 -

“(2) A court may make an order for the eviction of an occupier if -

(a) the occupier’s right of residence has been terminated in terms of section 8;

(b) the occupier has not vacated the land within the period of notice given by the owner or person in charge;

(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and

(d) the owner or person in charge has, after the termination of the right of residence, given -

(i) the occupier;

(ii) the municipality in whose area of jurisdiction the land in question is situated; and

(iii) the head of the relevant provincial office of the Department of Land Affairs, for information purposes,

not less than two calendar months' written notice of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier, the municipality and the head of the relevant provincial office of the Department of Land Affairs not less than two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to have been complied with.”

Section 8

“(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act.”

“Section 10(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if

. . . (c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship;” [5] Respondent’s right of residence was founded on his employment contract which was terminated on 31st March 2006. The termination of the employment contract came after the respondent had been served with a letter which he signed for, wherein he was told that he had to attend a disciplinary meeting pertaining to his absence from work and misconduct. Respondent failed to attend the disciplinary proceedings which took place nonetheless in his absence, and he was subsequently dismissed. Respondent did not challenge his dismissal.

Failure to comply with Section 9 (3) [6] I am unable to confirm the eviction order as the pleadings indicate that there has not been compliance with the mandatory provision of Section 9 (3) of the Act as the magistrate failed to request a probation officer’s report as required by section 9 (3). The section provides that the court must request a probation officer’s report to assess inter alia the availability of suitable alternative accommodation for the occupier, indicating how the eviction will affect the constitutional rights of any affected person including the rights of children to education and any undue hardships which would be caused by the eviction. A section 9 (3) report is essential in assessing the impact an eviction will have on occupiers2.

Submissions by the Applicants Attorney [7] In submissions for the purposes of review applicant’s attorney, stated the magistrate erred in finding that the applicant had a duty to provide alternative accommodation to the respondent. There is merit in this view3.

[8] The Magistrate failed further to comply with the provisions of Section 12 (1) (a) and (b) in that he failed to determine a date on which respondent shall vacate the land and a date for the execution of the order thereafter if respondent had not vacated.

[9] In view of all of the above, the following order is made: The undated order granted under case no 903/2006 by the Magistrate, Thabazimbi, is set aside in its entirety. _________________________ JUDGE Y S MEER For the applicant: J.F Van Graan & V.D Waterken For the respondent: Nkunzi Land Rights Legal Unit

. . .

(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship;”

[5] Respondent’s right of residence was founded on his employment contract which was terminated on 31st March 2006. The termination of the employment contract came after the respondent had been served with a letter which he signed for, wherein he was told that he had to attend a disciplinary meeting pertaining to his absence from work and misconduct. Respondent failed to attend the disciplinary proceedings which took place nonetheless in his absence, and he was subsequently dismissed. Respondent did not challenge his dismissal.

Failure to comply with Section 9 (3) [6] I am unable to confirm the eviction order as the pleadings indicate that there has not been compliance with the mandatory provision of Section 9 (3) of the Act as the magistrate failed to request a probation officer’s report as required by section 9 (3). The section provides that the court must request a probation officer’s report to assess inter alia the availability of suitable alternative accommodation for the occupier, indicating how the eviction will affect the constitutional rights of any affected person including the rights of children to education and any undue hardships which would be caused by the eviction. A section 9 (3) report is essential in assessing the impact an eviction will have on occupiers2.

Submissions by the Applicants Attorney [7] In submissions for the purposes of review applicant’s attorney, stated the magistrate erred in finding that the applicant had a duty to provide alternative accommodation to the respondent. There is merit in this view3.

[8] The Magistrate failed further to comply with the provisions of Section 12 (1) (a) and (b) in that he failed to determine a date on which respondent shall vacate the land and a date for the execution of the order thereafter if respondent had not vacated.

[9] In view of all of the above, the following order is made:

The undated order granted under case no 903/2006 by the Magistrate, Thabazimbi, is set aside in its entirety.

_________________________

JUDGE Y S MEER

For the applicant:

J.F Van Graan & V.D Waterken

For the respondent:

Nkunzi Land Rights Legal Unit

1Act 62 of 1997, as amended.

2 Holdengarde v Zondi and Another 2000 (4) SA 910 (LCC) at page 914C-D

3 Theewaterskloof Holdings Edms Bpk, Glaser Afdeling v Jacobs en Andere 2002 (3) SA 401 (LCC) at 410 E-G/H and 411 E-F/G

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