Van Heerden v Magaga and Others (LCC48R/2007) [2007] ZALCC 13 (11 July 2007)

Van Heerden v Magaga and Others (LCC48R/2007) [2007] ZALCC 13 (11 July 2007)

The Land Claims Court found that the magistrate failed to properly apply his mind to the facts and did not consider all relevant circumstances as required by section 26(3) of the Constitution. The applicant did not prove that the respondents were not dependants of the late Menzi, nor did he establish that the requirements of section 15(1)(a)-(d) of the Extension of Security of Tenure Act were met. The evidence did not support the allegations of damage or imminent danger, and the hardship to the respondents, including a minor child, outweighed any hardship to the applicant. No adequate arrangements for reinstatement were made. The eviction order was therefore set aside and the respondents'...

Citation
[2007] ZALCC 13
Parties
Applicant: Albertus Lambertus Van Heerden; Respondent: Cynthia Magaga; Respondent: Unathi Magaga
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
11 July 2007
Case Number
LCC48R/2007
Procedural Posture
Automatic Review / Review of Magistrate's Eviction Order Under Section 19(3) of the Extension of Security of Tenure Act
Outcome
Application for eviction dismissed; respondents reinstated.
Judges
T Ncube
Legal Topics
Extension of Security of Tenure Act, Urgent Eviction Application, Constitutional Right to Housing, Balance of Hardship, Oral Evidence Dispute, Restoration of Occupation
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Urgent Eviction Application Constitutional Right to Housing Balance of Hardship Oral Evidence Dispute +1 more

Case Brief

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Parties

Albertus Lambertus Van Heerden

Applicant

Cynthia Magaga

Respondent

Unathi Magaga

Respondent

Procedural Posture

Automatic Review / Review of Magistrate's Eviction Order Under Section 19(3) of the Extension of Security of Tenure Act

Legal Issues

  1. 1 Whether the requirements of section 15(1)(a)-(d) of the Extension of Security of Tenure Act were satisfied for urgent eviction.
  2. 2 Whether the magistrate properly considered all relevant circumstances as required by section 26(3) of the Constitution.
  3. 3 Whether the hardship to the owner exceeded the hardship to the respondents.

Ratio Decidendi

The Land Claims Court found that the magistrate failed to properly apply his mind to the facts and did not consider all relevant circumstances as required by section 26(3) of the Constitution. The applicant did not prove that the respondents were not dependants of the late Menzi, nor did he establish that the requirements of section 15(1)(a)-(d) of the Extension of Security of Tenure Act were met. The evidence did not support the allegations of damage or imminent danger, and the hardship to the respondents, including a minor child, outweighed any hardship to the applicant. No adequate arrangements for reinstatement were made. The eviction order was therefore set aside and the respondents'...

Court Disposition

Application for eviction dismissed; respondents reinstated.

Orders

  • The magistrate's order for eviction of the first and second respondents dated 30 March 2007 is set aside in its entirety.
  • The warrant of ejectment of the first and second respondents issued by the clerk of the court on 12 April 2007 is set aside.