Smith v Kgoleng and Others (LCC 26R/02) [2003] ZALCC 38 (11 September 2003)

Smith v Kgoleng and Others (LCC 26R/02) [2003] ZALCC 38 (11 September 2003)

The reviewing judge found that the magistrate erred by treating points of law as factual disputes and converting the application into a trial with unnecessary viva voce evidence. The magistrate failed to properly assess whether the grounds for termination were lawful and just and equitable under ESTA, and did not adequately consider the requirements of sections 8(c) and 8(e). The evidence did not establish a material breach under section 6(3) or a fundamental breakdown of the relationship as required by section 10(1)(c). The magistrate's reliance on hearsay and irrelevant evidence was improper. The issue of alternative accommodation was not objectively determined. The cost order against...

Citation
[2003] ZALCC 38
Parties
Applicant: Smith SJPK; Respondent: Kgoleng NE; Respondent: Shiba UF; Respondent: Shiba SV; Respondent: Kgoleng K
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
11 September 2003
Case Number
LCC 26R/02
Procedural Posture
Review Application / Automatic Review Under Section 19(3) of ESTA
Outcome
Eviction order set aside; no cost order made.
Judges
F C Bam
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Termination of Right of Residence, Just and Equitable Standard, Alternative Accommodation
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Termination of Right of Residence Just and Equitable Standard Alternative Accommodation

Case Brief

Summary, issues, holding and outcome

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Parties

Smith SJPK

Applicant

Kgoleng NE

Respondent

Shiba UF

Respondent

Shiba SV

Respondent

Kgoleng K

Respondent

Procedural Posture

Review Application / Automatic Review Under Section 19(3) of ESTA

Legal Issues

  1. 1 Whether the termination of the respondents' right of residence was lawful and just and equitable under ESTA.
  2. 2 Whether the magistrate correctly applied the requirements of section 9(2) and section 10 of ESTA.
  3. 3 Whether the respondents committed a material breach justifying eviction under section 6(3) and section 10(1)(c) of ESTA.

Ratio Decidendi

The reviewing judge found that the magistrate erred by treating points of law as factual disputes and converting the application into a trial with unnecessary viva voce evidence. The magistrate failed to properly assess whether the grounds for termination were lawful and just and equitable under ESTA, and did not adequately consider the requirements of sections 8(c) and 8(e). The evidence did not establish a material breach under section 6(3) or a fundamental breakdown of the relationship as required by section 10(1)(c). The magistrate's reliance on hearsay and irrelevant evidence was improper. The issue of alternative accommodation was not objectively determined. The cost order against...

Court Disposition

Eviction order set aside; no cost order made.

Orders

  • The eviction order granted by the Magistrate's Court, Nelspruit, is set aside in its entirety.
  • No order as to costs is made.