IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG CASE NUMBER: LCC 81R/01 In chambers: Gildenhuys AJ MAGISTRATE S COURT CASE NUMBER: 8448/2001 Decided on: 06 September 2001 In the review proceedings in the case between: T J M MULLER t/a T J MULLER & SON Applicant and CLAASSEN, W LAWS, R CARELSE, P First Respondent Second Respondent Third Respondent JUDGMENT GILDENHUYS AJ: [1] The papers in the case were forwarded to the Registrar of this Court under cover of a letter dated 26 July 2001, reading as follows: Alle oorspronklike hofstukke tov bogenoemde saak word hiermee aan u versend vir u dringende aandag en oorweging. Stuur alle dokumente soos aangeheg saam met u aanbeveling na hierdie kantoor terug.

2 2 I do not know if it was intended to submit the case for automatic review in terms of section 19(3) of the Extension of Security of Tenure Act 1 ( the Act ). Because the Act is clearly applicable, the eviction order is subject to review. 2 [2] The applicant in the case applied by way of notice of motion in the Magistrate s Court, George for an order against the respondents as follows: a) The Respondents must vacate the premises at MILKWOOD FARM, GEELHOUTBOOM, DISTRICT GEORGE, within a period as decided by the Court; b) That the sheriff be authorized to remove the Respondents together with their possessions from the property should the Respondents not vacate the premises as ordered by the Court; c) That the Respondents be ordered to pay the Applicant s costs for the bringing of this Application. [3] The applicant s founding affidavit contains the following statements: None of the Respondents have ever received the right from myself or anybody else to live on the farm. They moved into a dwelling with one of my former worker s widow without my consent.... The only person who has got my consent to live in the house at this stage, is Katriena Claasen, the widow of my late farm worker. I have however also given her notice to vacate the premises as prescribed by the Extension of Security of Tenure Act 62 of 1997 (as amended). The First Respondent is Katriena Claassen s son. I am uncertain about what the relationship between her and the Second and Third Respondents are. She has however never requested my permission to have other people living with her in the house. 1 Act 62 of 1997, as amended. Section 19(3) of the Act reads as follows: (3) Any order for eviction by a magistrate's court in terms of this Act, in respect of proceedings instituted on or before a date to be determined by the Minister and published in the Gazette, shall be subject to automatic review by the Land Claims Court, which may- (a) confirm such order in whole or in part; (b) set aside such order in whole or in part; (c) (d) substitute such order in whole or in part; or remit the case to the magistrate's court with directions to deal with any matter in such manner as the Land Claims Court may think fit. 2 Skhosana and Others v Roos t/a Roos se Oord and Others reported as Skhosana v Roos 2000 (4) SA 561 (LCC); [1999] 2 All SA 652 (LCC) at para [18]; Bergboerdery v Makgoro 2000 (4) SA 575 (LCC) at paras [4]- [7].

3 [4] On 27 June 2001 the Additional Magistrate, George, gave the following order: 3 die aansoek van die applikant word toegestaan met koste. Respondente word beveel om die perseel te verlaat voor of op 31 Julie It is not clear whether the order was made in terms of the provisions of the Act. If it was, it did not comply with section 12(1)(b) of the Act. 3 [5] It is clear that Katriena Claassen, with whom the respondents live, is an occupier as defined in the Act. 4 Until she is evicted by order of Court, she is entitled to family life in accordance with the culture of her family. 5 Generally speaking this means that she is entitled to have members of her family living with her. The three respondents in this case are people staying with her. They are probably family members. The procedures set out in the Act must be followed before family members can be evicted. [6] I have come to the conclusion that the requirements for an eviction order in terms of the Act have not been met in several respects. I confine myself to one of them, being the requirement of giving advance notice of the intended eviction, as required by section 9(2)(d). The section reads: (2) A court may make an order for the eviction of an occupier if-... (d) the owner or person in charge has, after the termination of the right of residence, given- (i) (ii) the occupier; the municipality in whose area of jurisdiction the land in question is situated; and 3 Section 12(1) reads as follows: (1) A court that orders the eviction of an occupier shall- (a) determine a just and equitable date on which the occupier shall vacate the land; and (b) determine the date on which an eviction order may be carried out if the occupier has not vacated the land on the date contemplated in paragraph (a). 4 See the definition of occupier in section 1 of the Act. 5 Section 6(2)(d) of the Act, which reads: (2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right-... (d) to family life in accordance with the culture of that family...

4 4 (iii) the head of the relevant provincial office of the Department of Land Affairs, for information purposes, not less than two calendar months' written notice of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier, the municipality and the head of the relevant provincial office of the Department of Land Affairs not less than two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to have been complied with. [7] The founding affidavit does not deal with the requirements of section 9(2)(d). Amongst the papers, however, are copies of two section 9(2)(d)(i) notices, addressed to second and third respondents respectively, and served on them by the sheriff on 7 February The form of a section 9(2)(d)(i) notice is prescribed by regulations. 6 It must correspond with Form E of the regulations. Form E requires that a separate notice must be served on every occupier in the household, excluding children under the age of As I read that, it requires service of a separate notice on every persons forming part of the household. [8] The first respondent is the son of Katriena Claassen. As such it would appear that his residence with his mother might be in terms of section 6(2)(d) of the Act. If this is so, he cannot be evicted without proper grounds. 8 There is no evidence that a section 9(2)(d)(i) notice was ever served on him. The section 9(2)(d)(ii) and (iii) notices served on the municipality and on the Department of Land Affairs do not refer to the first respondent. The eviction order granted against him was, if only for these reasons, made contrary to the requirements of the Act. It cannot be allowed to stand. [9] The applicant, in his founding affidavit, alleged that he is uncertain about what the relationships between Katriena Claassen and the second and third respondents are. If the applicant was uncertain about the relationships, he should have enquired. The return of service of the section 9(2)(d)(i) notice on the third respondent by the sheriff, describes Katriena Claassen as the grandmother of the third 6 The regulations are published in Regulation R1632, Government Gazette 19587, 18 December I have assumed that all three respondents are over the age of 18, since each has been cited as a respondent in his own right. 8 Conradie v Hanekom and Another 1999 (4) SA 491 (LCC); [1999] 2 All SA 525 (LCC) at para [21]; Remhoogte Farms (Pty) Ltd v Mentoor, LCC 71R/99, 2 December 1999, [1999] JOL 5851 (LCC); website at para [7].

5 5 respondent. Failing allegations from the applicant as to the nature of the relationships between Katriena Claassen and the second and third respondents, I cannot assume that they are not family members. 9 [10] The section 9(2)(d)(i) notices served on the second and third respondents are curious. They contain the statement: U het... nooit enige reg gevestig om op die grond te woon nie. A few lines lower down a contrary statement appears: U verblyfreg is in terme van Artikel 8 van die Wet op die Uitbreiding van Sekerheid van Verblyfreg beëindig. In the notices, according to the last statement, the existence of a verblyfreg (albeit now cancelled) and also the applicability of the Act are accepted by the applicant. [11] Katriena Claassen might well be entitled, under section 6(2)(d) of the Act, to have the second and third respondents living with her. The applicant must either present proper grounds why he would be entitled to evict them separately from Katriena Claassen, which he did not do, 10 or he must apply for their eviction together with the eviction of Katriena Claassen. The eviction orders against the second and third respondents should not have been granted on the papers as they now stand. [12] The notice of motion commencing the proceedings was, according to returns of service amongst the papers, served on second and third respondents on 7 May There is no evidence of service on the first respondent. Furthermore, the date of hearing is stated at several places in the notice as 10 May At one of these places the date was altered by hand to 5 June At other places, the date remained unaltered. That is sufficiently confusing to make the entire notice defective. The order 9 Karabo and Others v Kok and Others 1998 (4) SA 1014 (LCC); [1998] 3 All SA 625 (LCC) at para [13]; De Kock v Juggels and Another 1999 (4) SA 43 (LCC) at para [13]. 10 The mere allegation of a notice given to Katriena Claassen to vacate the land cannot, on its own, constitute sufficient grounds. It could well be that the other requirements of the Act have not been met and that Katriena Claassen will not be not obliged to leave.

6 6 was eventually given on 27 June There is no explanation as to how the case become to be heard on that date. There is also no indication of whether the respondents were present at the hearing. [13] I must make one final remark. The eviction order was granted on 27 June The respondents were ordered to leave the farm on 31 July The letter under cover of which the papers were sent to the Registrar was dated 26 July 2001, almost a month after the order was made. I do not know when it was posted. It arrived at the Registrar s office on 15 August The delay is unexplained, and unacceptable. Order [14] The order of the Magistrate given on 27 June 2001 is set aside in whole. The applicant s attorney is requested to take such steps as he or she may deem appropriate to bring this fact to the attention of the respondents. ACTING JUDGE A GILDENHUYS For the applicant: Millers Incorporated, George. For the respondents: Unknown.