Swart v Mahlangu (LCC 47R/2009) [2009] ZALCC 12 (16 October 2009)

Swart v Mahlangu (LCC 47R/2009) [2009] ZALCC 12 (16 October 2009)

The court found that the magistrate's eviction order did not comply with the peremptory requirements of section 9(2) of ESTA. There was no specific cancellation of the respondent's right of residence as required, and the evidence did not establish that the right of residence arose solely from employment. The dispute regarding the origin of the right of residence was not properly ventilated, and the affidavit relied upon by the applicant was not part of the record. The probation officer's report did not adequately address the availability and suitability of alternative accommodation, and neither the applicant nor the probation officer fulfilled their responsibilities under section...

Citation
[2009] ZALCC 12
Parties
Applicant: Jacobus Albertus Swart; Respondent: Piet Khonji Mahlangu
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
16 October 2009
Case Number
LCC 47R/2009
Procedural Posture
Automatic Review / Review of Magistrate's Eviction Order
Outcome
Eviction order set aside; application for eviction not confirmed.
Judges
SC Mia
Legal Topics
Extension of Security of Tenure Act, Eviction Procedure, Right of Residence, Service of Process
Land and Property Civil Procedure Extension of Security of Tenure Act Eviction Procedure Right of Residence Service of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Jacobus Albertus Swart

Applicant

Piet Khonji Mahlangu

Respondent

Procedural Posture

Automatic Review / Review of Magistrate's Eviction Order

Legal Issues

  1. 1 Whether the requirements of section 9(2) of ESTA for eviction were complied with.
  2. 2 Whether the respondent's right of residence was lawfully terminated under section 8(2) of ESTA.
  3. 3 Whether the respondent's right of residence arose solely from employment.

Ratio Decidendi

The court found that the magistrate's eviction order did not comply with the peremptory requirements of section 9(2) of ESTA. There was no specific cancellation of the respondent's right of residence as required, and the evidence did not establish that the right of residence arose solely from employment. The dispute regarding the origin of the right of residence was not properly ventilated, and the affidavit relied upon by the applicant was not part of the record. The probation officer's report did not adequately address the availability and suitability of alternative accommodation, and neither the applicant nor the probation officer fulfilled their responsibilities under section...

Court Disposition

Eviction order set aside; application for eviction not confirmed.

Orders

  • The whole of the order made by the magistrate Ermelo under Case Number 2550/2008 is set aside.