ZM and Others v Windmeul Kelder and Others (LCC275D/2017) [2019] ZALCC 17 (12 June 2019)

ZM and Others v Windmeul Kelder and Others (LCC275D/2017) [2019] ZALCC 17 (12 June 2019)

The court found that the second eviction order subsumed and replaced the first, rendering the first order without independent effect. The applicants failed to establish that their attorney, Ms. Macnab, acted without a mandate; the evidence, including contemporaneous communications, supported that she acted on instructions. The requirements for rescission under Rule 64 and section 35(11) of the Restitution Act were not met, as no ambiguity, error, fraud, or common mistake was proven. The eviction was executed pursuant to a valid court order, and no contravention of ESTA was established. The Municipality offered emergency accommodation, which the applicants refused, and their claim for...

Citation
[2019] ZALCC 17
Parties
Applicant: Z M; Applicant: N M; Applicant: S M; Applicant: D M; Applicant: E B; Applicant: Four minor grandchildren of Z M; Respondent: Windmeul Kelder; Respondent: Drakenstein Municipality; Respondent: Head: Western Cape Provincial Department of Rural Development and Land Reform; Respondent: Lene Kjerstine Macnab
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
12 June 2019
Case Number
LCC275D/2017
Procedural Posture
Rescission Application / Judgment on Third Rescission Application
Outcome
Application for rescission of the eviction orders, restoration, compensation, and alternative accommodation is dismissed.
Judges
Canca
Legal Topics
Extension of Security of Tenure Act, Eviction Orders, Rescission of Judgment, Alternative Accommodation, Mandate of Attorney, Municipal Obligations
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Eviction Orders Rescission of Judgment Alternative Accommodation Mandate of Attorney +1 more

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Parties

Z M

Applicant

N M

Applicant

S M

Applicant

D M

Applicant

E B

Applicant

Four minor grandchildren of Z M

Applicant

Windmeul Kelder

Respondent

Drakenstein Municipality

Respondent

Head: Western Cape Provincial Department of Rural Development and Land Reform

Respondent

Lene Kjerstine Macnab

Respondent

Procedural Posture

Rescission Application / Judgment on Third Rescission Application

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of the eviction orders granted on 30 April 2018 and 10 August 2018.
  2. 2 Whether the applicants' attorney had a mandate to settle and consent to the second eviction order.
  3. 3 Whether the eviction was contrary to the provisions of ESTA and if restoration or compensation is warranted.

Ratio Decidendi

The court found that the second eviction order subsumed and replaced the first, rendering the first order without independent effect. The applicants failed to establish that their attorney, Ms. Macnab, acted without a mandate; the evidence, including contemporaneous communications, supported that she acted on instructions. The requirements for rescission under Rule 64 and section 35(11) of the Restitution Act were not met, as no ambiguity, error, fraud, or common mistake was proven. The eviction was executed pursuant to a valid court order, and no contravention of ESTA was established. The Municipality offered emergency accommodation, which the applicants refused, and their claim for...

Court Disposition

Application for rescission of the eviction orders, restoration, compensation, and alternative accommodation is dismissed.

Orders

  • The application for rescission of the orders granted on 30 April 2018 and 10 August 2018 is dismissed.
  • The application for an order directing the first respondent to compensate or pay damages to the applicants is dismissed.