Van Wyk v Mokoena and Others (LCC 59R/2009) [2010] ZALCC 16 (20 May 2010)

Van Wyk v Mokoena and Others (LCC 59R/2009) [2010] ZALCC 16 (20 May 2010)

The court found that there was insufficient evidence regarding the age of the respondent's deceased husband and whether he qualified as an occupier under section 8(4) of ESTA, which would trigger the protections of section 8(5) for the respondent as a surviving spouse. Without this information, the court could not confirm that the settlement agreement and eviction order complied with the statutory requirements for notice and justness. The matter was therefore referred back to the Magistrate, Vrede, to determine the relevant facts, including the age and status of the deceased, the applicability of section 8(5), the respondent's alternative accommodation, and whether the settlement was just...

Citation
[2010] ZALCC 16
Parties
Applicant: Van Wyk JD; Respondent: Evelyn Mokoena; Respondent: Phumelela Local Municipality; Respondent: Department of Land Affairs
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
20 May 2010
Case Number
LCC 59R/2009
Procedural Posture
Automatic Review / Review and Referral Back to Magistrate
Outcome
Matter referred back to the Magistrate, Vrede, for further determination of facts relevant to the application of section 8(5) of ESTA and the justness of the settlement agreement.
Judges
SC Mia
Legal Topics
Extension of Security of Tenure Act, Eviction, Settlement Agreement, Just and Equitable Order
Land and Property Extension of Security of Tenure Act Eviction Settlement Agreement Just and Equitable Order

Case Brief

Summary, issues, holding and outcome

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Parties

Van Wyk JD

Applicant

Evelyn Mokoena

Respondent

Phumelela Local Municipality

Respondent

Department of Land Affairs

Respondent

Procedural Posture

Automatic Review / Review and Referral Back to Magistrate

Legal Issues

  1. 1 Whether the respondent's right of occupation was lawfully terminated under section 8 of ESTA.
  2. 2 Whether section 8(5) of ESTA, requiring 12 months' notice to a surviving spouse, applies to the respondent.
  3. 3 Whether the settlement agreement is just and equitable under the circumstances.

Ratio Decidendi

The court found that there was insufficient evidence regarding the age of the respondent's deceased husband and whether he qualified as an occupier under section 8(4) of ESTA, which would trigger the protections of section 8(5) for the respondent as a surviving spouse. Without this information, the court could not confirm that the settlement agreement and eviction order complied with the statutory requirements for notice and justness. The matter was therefore referred back to the Magistrate, Vrede, to determine the relevant facts, including the age and status of the deceased, the applicability of section 8(5), the respondent's alternative accommodation, and whether the settlement was just...

Court Disposition

Matter referred back to the Magistrate, Vrede, for further determination of facts relevant to the application of section 8(5) of ESTA and the justness of the settlement agreement.

Orders

  • The matter is referred back to the Magistrate Vrede to determine the age of Mr. Selane Martiens Mokoena.
  • The Magistrate must determine whether Mr. Selane Martiens Mokoena was an occupier as described in section 8(4) of ESTA.