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Smuts NO and Others v Baardman and Others (LCC 32R/10) [2011] ZALCC 18 (22 December 2011)

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THE LAND CLAIMS COURT

REPUBLIC OF SOUTH AFRICA



CASE NUMBER: LCC 32R/10

MAGISTRATE’S COURT CASE NUMBER: 4522/2008


In Chambers

Before MPSHE AJ


Decided on: 22 December 2011



In the matter between:


BEATRIX HENDRIENNA SMUTS N.O ….........................................................1st Applicant


KAREL BAUMGRATZ GERSBACH N.O …....................................................2nd Applicant


FRANCIOS STALLBOM N.O ….........................................................................3rd Applicant


JAN FRANCIOS STRYDOM N.O …...................................................................4th Applicant


and



WILLEM BAARDMAN ….................................................................................1st Respondent

MARIA BAARDMAN …...................................................................................2nd Respondent

HANNES3S BAARDMAN ….............................................................................3rd Respondent

GEORGE MUNICIPALITY ….........................................................................4th Respondent

DEPARTMENT VAN GRONDSAKE ….........................................................5th Respondent



JUDGMENT

MPSHE AJ


  1. On the 25 May 2010 the Registrar of this Court received an order for eviction of the first to the third respondents without record of proceedings from the additional Magistrate, George for automatic review in terms of Section 19 (3) of the Extension of Security Act 62 of 1997 (The Act).


  1. On the 26 May 2010 Registrar of this Court dispatched a letter to Magistrate, George in the following terms:


I refer to the above matter.

1. Upon perusal of the record the following queries are raised:

1.1 It is not clear from the record why this matter was forwarded to this Court.

2. Kindly provide a typed transcript of the proceedings.

Your urgent responses herein are waited.


  1. On the 13 July 2010 Registrar of this Court dispatched a letter to the Magistrate, George in the following terms:

We acknowledge receipt of your letter dated 25 May 2010 in the above matter. This matter cannot be reviewed or considered without the Order or Directives from the Magistrate.

I hope you will find this in order.


  1. Again on the 25 October 2011 letter was dispatched by the Registrar of this Court to the Magistrate, George in the following terms:

I refer to the matter above.

The record of proceedings in this matter was requested by this court in a letter dated (26 May 2010) by the Registrar. Unfortunately, this was not done. May I take this opportunity to point out that without the record this court is unable to review this matter.

In the premise, kindly furnish the Court a typed transcript of the proceedings.

Your swift response will be highly welcomed.




  1. On the 30 November 2011 the Registrar of this Court received a letter from Magistrate, George dated the 27 October 2011, I find it opposite to quote the entire letter as the same will have a bearing on my final order herein:

The above matter refers:

In this case the order was granted by default. The respondents did not enter or file any opposing papers, or appear at the hearing.

No transcript of the proceedings, is therefore available.


  1. The eviction order in this case was granted by default in circumstances that leave this Court in doubt as to whether the requisite Notices in terms of Section 9 (2) (d) were properly served on all respondents. There is further no indication or evidence that Section 9 (2) (a) of the Act has been complied with. The Founding Affidavit states that the deponent told the three respondents to leave on a particular date. Due to lack of record of proceedings, I cannot even determine as to whether the Magistrate considered the provisions of Section 8 (1) (c) of the act.


  1. The proceedings before the Magistrate, was by a way of Notice of Motion. The First to third respondents did not file appearance to defend, neither did they file answering affidavits; the magistrate had only the version of the applicant before him. This in my mind made it compelling for the Magistrate to ascertain and put on record the reasons why respondents did not oppose or appear. There is a duty on the Magistrate to ascertain this.


  1. The Act gives Magistrate the power to grant final order for eviction.1 Magistrates are obliged to apply rules of procedure applicable in the High Court.2 The salient part of this Section reads thus:

“….The rules of procedure applicable in civil actions and applications in a High Court shall apply mutatis mutandis in respect of any proceedings in a magistrate’s court in terms of this act.”

I now determine compliance with rules of procedure of the High Court in giving orders on default.


  1. Rules 35 A (1) (b) provides as follows:

A Magistrate making an order for eviction under the Extension of Security of Tenure Act must forthwith transmit to the court the record of the proceedings and his or her reasons for the order.

In casu as already noted record of proceedings is not provided. It then becomes impossible for this Court to conduct a proper review of the matter. In addition the Rule3 provides for presentation of evidence by the applicant to obtain an order by default. It further 4 provides for the procedure to be followed in default applications.


  1. There is a notable non-compliance with the Rules in this matter. The Magistrate made an order after perusing the documents filed and listening to counsel for the applicant. This then implies that evidence was given to support the order. This is a stark contradiction of the fact that “no transcript of the proceedings is therefore available”.


11. In the affidavits filed on behalf of the applicant, some allegations are made indicating compliance with only some of the prerequisites but not all. The apparent failure to comply with Section 9 (2) (d) has already been noted. In addition, I have not found any averments indicating compliance with Section (1) (c) and 8 (1) (e) of ESTA. Section 8 (1) (c) requires the Magistrate, for the sake of justice and equity, to weigh up the interests of the applicant against those of the respondent and compare hardships that the eviction will cause the one as against the other. Section 8 (1) (e), also for the sake of justice and equity, requires the Magistrate to have considered the fairness of the procedure followed by the applicant including whether or not the respondent had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence.


  1. I have come to the conclusion that for various reasons stated herein, the Magistrate’s order must be set aside. On the 20 December 2011 Registrar established that first to third respondents were still on the property of the applicants.


Consequently I order as follows:

  1. The Magistrate’s order of the 31 march 2009 is set aside in it’s entirety.



____________________________

ACTING JUDGE MPSHE




TO: THE CLERK OF THE COURT

PRIVATE BAG X 6537

GEORGE

6530


AND TO: IAN ELLIS PROKUREUR

SUITE 309A

NEDBANK GEBOU

LANGENHOVENSTRAAT

GEORGE

6529




1De Kock v Juggels and another 1999(4) S.A. 43 @ 50B-D

2Section 17 (4) of ESTA.

3Rule 58 (5) of Rules of this Court.

4Rule 58(3) and (4)