Timothy v Sibanyoni and Others (LCC 2018/59) [2020] ZALCC 8 (5 August 2020)

Timothy v Sibanyoni and Others (LCC 2018/59) [2020] ZALCC 8 (5 August 2020)

The court found that the respondent had resided on the farm continuously and openly since before 4 February 1997, qualifying him as an occupier under ESTA and entitling him to the irrebuttable presumption of consent under section 3(5). The applicant failed to afford the respondent an effective opportunity to make representations prior to terminating his right of residence, as required by section 8(1)(e) of ESTA. The notices issued by the applicant did not constitute lawful or just and equitable termination of residence. The evidence, including the probation officer's report and affidavits from the DRDLR and Tshwane Metro, established that no suitable alternative accommodation was...

Citation
[2020] ZALCC 8
Parties
Applicant: Maluleke N.O., Timothy (in his capacity as Trustee of the Hlaniki Trust); Respondent: Sibanyoni, Daniel Philamon; Respondent: City of Tshwane Metropolitan Municipality; Respondent: The Director-General: Department of Rural Development and Land Reform
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
5 August 2020
Case Number
LCC 2018/59
Procedural Posture
Eviction Application / Final Judgment After Motion Proceedings; No Referral to Oral Evidence
Outcome
Application dismissed with costs, including reserved costs.
Judges
Spilg
Legal Topics
Extension of Security of Tenure Act, Labour Tenants Act, Eviction Proceedings, Just and Equitable Termination, Alternative Accommodation, Constitutional Right to Housing
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Labour Tenants Act Eviction Proceedings Just and Equitable Termination Alternative Accommodation +1 more

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Parties

Maluleke N.O., Timothy (in his capacity as Trustee of the Hlaniki Trust)

Applicant

Sibanyoni, Daniel Philamon

Respondent

City of Tshwane Metropolitan Municipality

Respondent

The Director-General: Department of Rural Development and Land Reform

Respondent

Procedural Posture

Eviction Application / Final Judgment After Motion Proceedings; No Referral to Oral Evidence

Legal Issues

  1. 1 Whether the respondent qualifies as an occupier under ESTA and/or as a labour tenant under the Labour Tenants Act.
  2. 2 Whether the applicant lawfully and justly terminated the respondent's right of residence as required by section 8 of ESTA.
  3. 3 Whether suitable alternative accommodation is available for the respondent and his family as required under ESTA.

Ratio Decidendi

The court found that the respondent had resided on the farm continuously and openly since before 4 February 1997, qualifying him as an occupier under ESTA and entitling him to the irrebuttable presumption of consent under section 3(5). The applicant failed to afford the respondent an effective opportunity to make representations prior to terminating his right of residence, as required by section 8(1)(e) of ESTA. The notices issued by the applicant did not constitute lawful or just and equitable termination of residence. The evidence, including the probation officer's report and affidavits from the DRDLR and Tshwane Metro, established that no suitable alternative accommodation was...

Court Disposition

Application dismissed with costs, including reserved costs.

Orders

  • The application for eviction is dismissed.
  • The applicant is ordered to pay the costs of the application, including the reserved costs of 12 December 2019.