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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG CASE NUMBER: LCC 07R/02

In chambers: BAM AP MAGISTRATE’S COURT CASE NUMBER: 1643/2000

Decided on: 29 January 2003

In the review proceedings in the case between:

BIFFEN, JN Plaintiff

and

SITHOLE, PM First Defendant

SITHOLE, NC Second Defendant

JUDGMENT

BAM AP:

1. On 7 February 2002, the plaintiff in this matter obtained an eviction order against the respondents from the Magistrates’ Court in Howick for the eviction from the farm known as Sunningdale, situated within its jurisdiction. In terms of section 19(3) of the Extension of Security of Tenure Act ¹ (‘the Act’) such an order is subject to automatic review by this court and stands suspended pending the completion of the said review.

2. I have now completed the proceedings and have reached the conclusion that the magistrate’s order cannot stand and should be dismissed in its entirety. The main reason is that there is no indication in the record of proceedings whether the defendants were occupiers on 4 February 1997 or became occupiers only after that date. Consequently, the magistrate was unable to determine whether section 10 or 11 of the Act applied in compliance with section 9(2)(c).

3. It is particularly important in granting default judgment in cases against legally unrepresented, and possibly illiterate, parties to ensure that all necessary provisions and peremptory requirements of the Act have been observed.²

[5] In the present case, it appears that the defendants were completely excluded from further participation when they failed to enter appearances to defend. The return of service, relating to the summons served on 22 September 2002, states that it was personal service and that it was ‘translated’ into their own language, Zulu, yet it bears no signature of the recipient. The summons further provides only 5 days in which to enter appearances instead of 10 days as required by High Court procedure.

[6] In these circumstances, it is not difficult to imagine that when no person had explained

the exigency of the document to the recipient within the 5 days indicated, a subsequent enlightenment might have been considered to have come too late. Even though the defendants had not entered notice of appearance to defend, the plaintiff was obliged to inform them when the matter was heard, in terms of the form E notice that was served on the defendants. ³ Thus, for instance, it is significant that the notice of amendment in terms of rule 55A dated 28 August 2001 appears not to have been served on the defendants. The magistrate’s finding was that the defendants had been “given ample time” before viva voce evidence was heard on 28 August 2001. It is not the question of time availability that matters but that of comprehending legal processes.

[7] There is no indication in the magistrate’s judgment that he considered the section 9(3)

report, which arrived late but before the judgment was handed down. There is also no indication that the matter was ever postponed to wait for the section 9(3) report, so that it could have been properly considered, and if necessary, answered by the plaintiff.

[8] Finally, the magistrate did not consider whether or not an order in terms of section 13

was required.

Order:

[9] The order of the Magistrate, Howick made on 7 February 2002, is dismissed in its entirety.

______________________________

ACTING PRESIDENT FC BAM

For the Plaintiff: For the Defendants:

Austen Smith Inc, Howick Absent

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