Nel v Beleng and Others (LCC 77R/2011) [2012] ZALCC 1 (14 February 2012)

Nel v Beleng and Others (LCC 77R/2011) [2012] ZALCC 1 (14 February 2012)

The Land Claims Court set aside the magistrate's eviction order because the magistrate failed to request a probation officer's report as required by section 9(3) of ESTA, did not ensure proper termination of the right of residence under section 8, and failed to confirm that written notice was properly served on the municipality and provincial department as required by section 9(2)(d). These procedural defects are fatal and preclude confirmation of the eviction order.

Citation
[2012] ZALCC 1
Parties
Applicant: Jacoba Cornelia Nel; Respondent: Mohau David Beleng and 5 Others
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
14 February 2012
Case Number
LCC 77R/2011
Procedural Posture
Automatic Review / Automatic Review of Magistrate's Eviction Order Under ESTA
Outcome
Magistrate's eviction order set aside; no order as to costs.
Judges
Kahanovitz
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Probation Officer Report, Termination of Right of Residence, Municipal Notice Requirement
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Probation Officer Report Termination of Right of Residence Municipal Notice Requirement

Case Brief

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Parties

Jacoba Cornelia Nel

Applicant

Mohau David Beleng and 5 Others

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the magistrate's eviction order complied with mandatory procedural requirements under the Extension of Security of Tenure Act.
  2. 2 Whether a probation officer's report was requested and considered as required by section 9(3) of ESTA.
  3. 3 Whether the termination of the right of residence was properly effected in terms of section 8 of ESTA.

Ratio Decidendi

The Land Claims Court set aside the magistrate's eviction order because the magistrate failed to request a probation officer's report as required by section 9(3) of ESTA, did not ensure proper termination of the right of residence under section 8, and failed to confirm that written notice was properly served on the municipality and provincial department as required by section 9(2)(d). These procedural defects are fatal and preclude confirmation of the eviction order.

Court Disposition

Magistrate's eviction order set aside; no order as to costs.

Orders

  • The order as granted by the Magistrate is set aside.
  • There is no order as to costs.