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Van Den Berg v Skosana (LCC10R/03) [2003] ZALCC 7 (18 February 2003)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC 10R/03

In chambers: Gildenhuys J MAGISTRATE’S COURT CASE NUMBER: 276/2002

Decided on: 18 February 2002

In the review proceedings in the case between:

VAN DEN BERG, I J DU P Plaintiff

and

SKOSANA, MM Defendant

JUDGMENT

GILDENHUYS J

The facts

1. This matter comes before me on automatic review from the Magistrate’s Court, Balfour, in terms of section 19(3) of the Extension of Security of Tenure Act¹ (herein referred to as “ESTA”).

2. The plaintiff issued summons against the defendant for eviction. The brief particulars of claim read as follows:

“1. The Plaintiff is Mr. IJ DU P VAN DEN BERG of the farm Portion 9 (a Portion of Portion 7) of the farm Hartebeesfontein 683, I R Grootvlei, district Balfour, Mpumalanga.

2. The defendant is Mrs. Mmamorena Martha Skosana a major female residing at Portion 9 (a Portion of Portion 7) of the farm Hartbeesfontein 683, I.R. Grootvlei, district Balfour, Mpumalanga.

3. The Defendant is in unlawful occupation of a house on the property being the lawful property of the Plaintiff.

4. A proper notice has been given to the Defendant in terms of Section 9(2)(d)(i) and 11 of the Extension of Security of Tenure Act 1997. A copy of the notice as well as a copy of the return of service is attached hereto as Annexure “A”

5. The notice has properly been served on the Department of Land Affairs and the municipal manager of the Dipaleseng Municipality Balfour.

6. Sixty days has expired since service of the document on the 29^th of August 2002.

7. The Defendant has failed to evacuate the property and are in unlawful occupation of the property.”

3. The defendant did not enter an appearance to defend. The plaintiff applied for judgment by default. He filed two affidavits in support of the application, relating to some but not all of the findings which must be made before an eviction order under ESTA can be issued.

Requirements for an eviction order

4. The requirements for an eviction order under ESTA are contained in section 9(2), which reads:

“A court may make an order for the eviction of an occupier if -

(a) the occupier’s right of residence has been terminated in terms of section 8;

(b) the occupier has not vacated the land within the period of notice given by the owner or person in charge;

(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and

(d) the owner or person in charge has, after the termination of the right of residence, given -

(i) the occupier;

(ii) the municipality in whose area of jurisdiction the land in question is situated; and

(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.”

I will deal with each of these requirements in this judgment.

5. Section 13 of ESTA enjoins a court to deal with certain matters in an eviction order, such as improvements erected by the occupier, standing crops and arrear wages. A plaintiff must put the necessary information before the Court so that it can deal with those matters. Save for stating that the information given in this case leaves much to be desired, I need not dwell on this issue any longer.

Cancellation of the right of residence [section 9(2)(a)].

6. The plaintiff caused a notice to be served on the defendant, purportedly in terms of sections 8, 9(2)(d)(i) and 11 of ESTA. Paragraph 3 of the notice reads:

“In terms of Section 8, 9(2)(d)(i) and 11 of the Extension of Security and Tenure Act, 1977 [sic], you are hereby notified that the owner of the said farm hereby terminates and ends your right of residence and occupation of the premises as mentioned above and should you fail to vacate the property, application shall be made by the owner after the expiry of 2 calender months from receiving this notice, to obtain an order for your eviction based on the following conduct and the effect thereof, in that: . . .”

The notice then lists some twenty transgressions allegedly committed by the defendant. None of them were confirmed under oath and some of them are so vague that no account can be taken of them. For example, it is alleged that the defendant had “on various occasions been offered and accepted and had alternative residence”. The availability of suitable alternative accommodation is of prime importance for the various discretions which the Court has to exercise. Yet the plaintiff does not elaborate on the “various occasions” when “alternative residence” were offered, nor does he indicate whether the “alternative residence” meets with the statutory definition of “suitable alternative accommodation”.²

7. The right of residence of an occupier can, subject to some exceptions which were not shown to apply in this case, only be terminated if it is just and equitable to do so, having regard specifically to five factors set out in section 8(1) of ESTA. These issues were not dealt with at all. A court cannot be expected to extricate reasons why the termination might be just and equitable from the unproven list of contraventions contained in the notice served on the defendant.

Failure to vacate within the period of notice given [section 9(2)(b)].

8. One of the requirements for an eviction order is that the defendant must have failed to vacate the land “within the period of notice given by the owner or person in charge”. It has not been shown that any “period of notice” was given.

Compliance with section 10 or 11 of ESTA [section 9(2)(c)].

9. Section 9(2)(c) of ESTA requires compliance with section 10 if the person to be evicted was already an occupier on 4 February 1997, and compliance with section 11 if the person to be evicted became an occupier after 4 February 1997. Section 11 applies in this case. Under that section, the Court has to be satisfied that it would be just and equitable to grant an eviction order, having regard to five considerations contained in section 11(3). Apart from inserting a list of alleged contraventions contained in the notice served on the defendant, the question of whether it would be just and equitable to grant an eviction order with regard to mandatory considerations was not addressed at all.

10. Section 9(2)(c) contains what are probably the most important requirements for an eviction order, yet it is the section most often neglected by practitioners.³ Practitioners must see to it that sufficient evidence (not vague and unproven allegations in an eviction notice) is placed before the Court to enable the Court to properly exercise the discretions which it is called upon to exercise.

Notice of intention to obtain an eviction order [section 9(2)(d)].

11. The Regulations made under ESTA⁴ prescribe the content and manner of service of the notice to be given of an owner’s intention to obtain an eviction order. Form E is prescribed for a notice to an occupier. The notice given to the defendant does not conform substantially with form E. Important parts have been left out, such as:

“This notice means that the owner or person in charge plans going to Court in two months time or at some time thereafter to ask an eviction order be issued against you.”

“The summary contained in this notice of your legal position is incomplete. For further information you should immediately contact a lawyer, a non-governmental organisation or the Department of Land Affairs.”

Under the Regulations, the notice must be given to the occupier in the language she understands best. Copies of the notice in that language and in another official language must be handed to her.⁵ There is no indication in the papers that this requirement had been complied with. The sheriff must, in his return of service, deal with each discrete service requirement.⁶

12. In the notice purportedly given in terms of section 8, 9(2)(d)(i) and 11, the plaintiff seeks to cancel the right of residence [under section 8] and give notice of his intention to obtain an eviction order [under section 9(2)(d)(i)] in the same document. That cannot be done. Section 9(2)(d) clearly states that the notice of intention to obtain an eviction order can only be given after the termination of the right of residence.⁷

Probation Officer’s report

13. Section 9(3) of ESTA provides that the Court must request a probation officer or an officer of the Department of Land Affairs or any other officer in the employment of the State to

submit a report on the matters contained in paragraphs (a), (b), (c) and (d) of section 9(3). There is no indication in the papers that section 9(3) was complied with. That omission alone is sufficient to prevent me from confirming the magistrate’s eviction order.⁸

Conclusion

14. It follows from the above that the Magistrate’s order cannot be confirmed. It is hereby set aside in its entirety.

_______________________________

ACTING JUDGE A GILDENHUYS

For the plaintiff:

Viljoen & Meek, Balfour.

For the defendant:

Absent.