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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC 59R/2009

IN CHAMBERS

Decided on: 20 May 2010

In the matter between:

VAN WYK JD Applicant

and

EVELYN MOKOENA First Respondent

PHUMELELA LOCAL MUNICIPALITY Second Respondent

DEPARTMENT OF LAND AFFAIRS Third Respondent

JUDGEMENT

MIA A J:

[1] This is an automatic review under section 19(3) of the Extension of Security of Tenure Act (“hereafter referred to as ESTA”) of an order granted by the Magistrate, Vrede on 7 August 2009. The Magistrate, Vrede made a settlement agreement concluded by the parties an order of court and referred the matter for review and confirmation of the order.

[2] The relief requested in the notice of motion was as follows:

1. That the Respondent’s rights of occupation of the house situated on

the farm Kleinvlei district Vrede, the property of the Applicant, formally described as Farm KLEINVLEI No 658, District Vrede, Free State Province, held under title deed T7517/1975, is unlawfully terminated in terms of Section 8 of the Act;

2. The Respondents are ordered to evacuate the farm on or before

06 MAY 2009 at 10h00;

3. The Sheriff of this Court is authorised and instructed to remove the

Respondents and their belongings, should the Respondents refuse

and/or fail to evacuate the residence by 06 MAY 2009 at 10h00;

4. The Sheriff of this Court is authorised and instructed to obtain the

the services of the South African Police Force, should the

Respondents refuse and/or fail to co-operate with the Sheriff;

5. Respondents are ordered to pay the costs of this application;

6. further and/or alternative legal aid.

[3] The deed of settlement concluded on the 7 August 2009 provided for the respondent and anyone holding under her to vacate the premises on or before 1 November 2009. Paragraph 11 of the agreement reads as follows:

“The parties agree that all their rights in terms of ESTA Act have been explained to them

by their legal representatives and that they understand and accept those rights. They

agree that this agreement has been reached in terms of those rights”¹

[4] The respondent resides on the farm Kleinvlei in the district of Vrede in the Orange Free State. She resided on the farm for approximately 15 years and held occupation under her husband who was employed on the farm. The respondent is 59 years old. The respondent’s husband is deceased. The date of his demise and his age on that date does not appear from the papers. It is thus not clear whether the respondent’s husband was an occupier in terms of section 8(4) of “ESTA” and consequently whether section 8(5) of “ESTA” was applicable. In the event of the latter being applicable the right of residence may only be terminated on 12 months’ notice to the surviving spouse who is the respondent in the present matter. In this instance the time period as provided for in the settlement agreement to vacate the land would not have complied with section 8(5) of “ESTA”.

[5] In response to this courts queries regarding the age of the respondent’s spouse and whether section 8(5) of “ESTA” is applicable, the Magistrate Vrede submitted that it would be in the interest of justice that the age of Mr. Mokoena be determined to ascertain whether section 8(5) is applicable and requests that the matter be referred back to ascertain this by way of further evidence.

[6] Having considered the papers before me as well as the Magistrate, Vrede’s response to the queries herein and having regard to all the relevant factors herein, the matter is referred back to the Magistrate Vrede to determine the age of Mr. Selane Martiens Mokoena and whether the he is an occupier eviction as described in section 8(4) of “ESTA” and whether section 8(5) of “ESTA” applies to the respondent herein. Further whether the respondent has suitable alternative accommodation and whether the settlement providing for respondents departure is just and equitable under the circumstances.

ORDER

[7] The following order is made;

[1] The matter is referred back to the Magistrate Vrede to determine the following:

1.1 the age of Mr. Selane Martiens Mokoena;

1.2 whether Mr. Selane Martiens Mokoena is an occupier as described in section 8(4) of “ESTA”;

1.3 whether section 8(5) of “ESTA” applies to the respondent herein;

1.4 whether the respondent has suitable alternative accommodation.

1.5 upon finalization the matter is to be referred back to this Court per section 19(3) of “ESTA” with reasons why the settlement is just and equitable having regard to the evidence to be placed before the Magistrate, Vrede as indicated above in 1.1, 1.2,1.3 and 1.4.

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Acting Judge SC Mia

Land Claims Court

Appearances:

Attorney for Applicant

HS Marais Attorneys (Bethlehem)

Attorney for the Respondents

Mnyameni Attorneys (Bloemfontein)

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