Sibeko and Another v De Wet Rautenbachent and Others (LCC135/2007) [2008] ZALCC 1 (30 January 2008)

Sibeko and Another v De Wet Rautenbachent and Others (LCC135/2007) [2008] ZALCC 1 (30 January 2008)

The court found that the eviction order and warrant of ejectment issued by the magistrate did not apply to the applicants, as they were not named nor were they persons claiming occupation through Thembi Selepe. The applicants' right of residence derived from their familial association with Solomon Sibeko and not through Thembi. The sheriff failed to properly identify the persons subject to eviction and did not exercise sufficient caution or respect for constitutional rights. The applicants were resident at Vastrap farm and had not abandoned their home. Their eviction was unlawful, as it was not authorized by the court order or warrant and did not comply with the requirements of ESTA and...

Citation
[2008] ZALCC 1
Parties
Applicant: Tom Samuel Sibeko; Applicant: Lindiwe Sibeko; Respondent: J. H. J. E. De Wet Rautenbachent; Respondent: Sheriff at Vrede
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
30 January 2008
Case Number
LCC135/2007
Procedural Posture
Urgent Application / Final Determination After Confirmation of Rule Nisi
Outcome
Application granted; Rule Nisi confirmed; restoration of residence and property ordered.
Judges
T M Ncube
Legal Topics
Extension of Security of Tenure Act, Unlawful Eviction, Restoration of Possession, Rule Nisi Confirmation
Land and Property Civil Procedure Extension of Security of Tenure Act Unlawful Eviction Restoration of Possession Rule Nisi Confirmation

Case Brief

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Parties

Tom Samuel Sibeko

Applicant

Lindiwe Sibeko

Applicant

J. H. J. E. De Wet Rautenbachent

Respondent

Sheriff at Vrede

Respondent

Procedural Posture

Urgent Application / Final Determination After Confirmation of Rule Nisi

Legal Issues

  1. 1 Whether the eviction of the applicants was lawful under the Extension of Security of Tenure Act.
  2. 2 Whether the magistrate's eviction order and warrant of ejectment applied to the applicants.
  3. 3 Whether the applicants were residents with rights of occupation independent of Thembi Selepe.

Ratio Decidendi

The court found that the eviction order and warrant of ejectment issued by the magistrate did not apply to the applicants, as they were not named nor were they persons claiming occupation through Thembi Selepe. The applicants' right of residence derived from their familial association with Solomon Sibeko and not through Thembi. The sheriff failed to properly identify the persons subject to eviction and did not exercise sufficient caution or respect for constitutional rights. The applicants were resident at Vastrap farm and had not abandoned their home. Their eviction was unlawful, as it was not authorized by the court order or warrant and did not comply with the requirements of ESTA and...

Court Disposition

Application granted; Rule Nisi confirmed; restoration of residence and property ordered.

Orders

  • The Rule Nisi granted on 12 November 2007 is confirmed.
  • The first respondent is ordered to restore to the two applicants the residence on and use of the portion of land at Vastrap farm, division of Franshoek 606, district of Vrede, as occupied immediately before eviction.