---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

RANDBURG

CASE NUMBER: LCC36R/11

MAGISTRATE'S COURT CERES CASE NUMBER: 2054/10

In chambers Kahanovitz AJ

In the review matter of:

EL RIO FARMING (PTY) LTD ….............................................................................Applicant

REG NR. 2001/020372/07

And

PHILLIPUS JACOBS ….....................................................................................Respondent

JUDGMENT

1. This is an automatic review of an eviction order of the Magistrate Ceres granted on 22 June 2011 evicting the respondent from his home on the farm "EL Cuesta" owned by the applicant. It has been referred to the above Court in terms of Section 19(3) of the Extension of Security of Tenure Act ("ESTA").¹

2. I am currently unable to confirm this eviction order and remit it in terms of Section 19(3)(d) of ESTA to the Magistrate Ceres in terms of the order set out below.

3. The applicant is the tenant and person in charge of the farm. The respondent has lived and worked on the farm since 2005 and subsequent to his dismissal from employment refused to vacate his house. The applicant thereafter sought his eviction and, following the hearing of an opposed application, the eviction was ordered.

4. The Magistrate has had the advantage of considering argument accompanied by
heads of argument, founding, answering and replying papers. I find little fault with his
approach save in respect of his application of section 9 (3) of ESTA.

5. That section provides:

"(3) For the purposes of subsection (2)(c), the Court must request a probation officer contemplated in section 1 of the Probation Services Act, 1991 (Act 116 of 1991), or an officer of the department or any other officer in the employment of the State, as may be determined by the Minister, to submit a report within a reasonable period-

(a) on the availability of suitable alternative accommodation to the occupier;

(b) indicating how an eviction will affect the constitutional rights of any affected person, including the rights of the children, if any, to education;

(c) pointing out any undue hardships which an eviction would cause the occupier; and

(d) on any other matter as may be prescribed."

6. In his finding the magistrate in Ceres held that there was no need to wait for the
Section 9(3) report ("the report") which had been requested on 9 December 2010 and not yet received by the date of his decision i.e. 22 June 2011. He based his decision on his reading of the decision of this court per Moloto AJ (as he then was) in Holt Leisure Park (Pty) Ltd v R. Josephs and another. In the Magistrate's decision he says that Moloto AJ had determined . . is dat daar nie plig op die hof rus om die aansoek onbepaald uit te stel as die verslag nie ingedien word nie, en dat dit slegs Respondent is wat deur die aansoek geraak word . .. "²

7. The magistrate has not properly understood Moloto AJ's finding. His finding was
that, in the circumstances of that particular matter, there was no need to wait for the
report. The judgment read in full states³:

"There is no duty on the magistrate to postpone an eviction application indefinitely when the department fails to submit the necessary report. Each application must be considered on its own merits. On the facts, this case appears to be one in which no report was necessary, it being alleged that the first respondent breached section 10(1) read with section 6(3) of ESTA."

8. More recently in Berti Eggers Trust IT 12084/1998 v Jane Hlatswayo and others⁴
Gildenhuys J, held in respect of the missing report, that:

"In my view a reasonable period after the date of the request has expired and I am entitled to proceed with the hearing without the report."⁵

In that matter the facts were that the applicants in an unopposed application were seeking an eviction order against the remaining respondents who had refused to leave the farm in terms of an agreed relocation land reform plan.

9. The facts of this case accordingly need to be considered before one can reach a decision that the report is unnecessary. I now turn to the facts of this matter:

9.1. Applicant and the magistrate initially agreed that they should get the report. In the notice of motion the applicant sought an order that the report be produced. The Court then ordered that " 'n verslag in terme van Artikel 9(3) van Wet 62 van 1997 dringend opgestel word en onmiddellik na uitreiking hiervan by hierdie hof ingedien het" (sic). The order was granted ex parte on 6 December 2010. The order required it to be served together with the Notice of Motion and annexures on the Provincial Director Department of Land Affairs Cape Town, the Department of Land Affairs, Stellenbosch, and a Mr Beerwinkel of the department in Worcester. The applicant's attorneys of record then forwarded copies of the order together with the founding papers to these three officials by fax and registered post on 9 and 10 December.

9.2. The Court itself appeared to do nothing further to obtain the report until prompted to do so by the applicant's lawyers. Then on 19/4/2011 the Court wrote to a Mr Vonk of the Department only regarding the report byfax. !t is noted that even though the matter by then was opposed and an answering affidavit had been filed by the respondent, the Court sent only the applicant's papers to Mr Vonk.

9.3. The applicant's attorneys of record also filed a copy of a letter dated 9/6/2011 they had sent to the Department official in Worcester reminding him of the need for the report. In these circumstances I will assume that the report had been requested as required in terms of Section 9(3) of ESTA.

10. The affidavits record the following:

10.1. The applicant stated in its founding papers⁶ that respondent and his wife had been divorced in September 2010 and from the order of divorce attached to the applicant's affidavit⁷ would have known that that respondent and his ex-wife had been awarded joint guardianship and parental responsibilities of their minor child and that the child's primary residence was to be with her mother.

10.2. The respondent in his answering affidavit confirmed the divorce and further stated that⁸ he had a close relationship with his daughter and was worried that if evicted the relationship could be damaged.

10.3. The applicant, in reply⁹, complained that the respondent, even though he now had a job, was staying free of charge on the farm¹⁰. In regard to the child he stated that the applicant owed no legal duty to provide housing so as to enable them to maintain their parent/child relationship. He rather insensitively then attested that the respondent ought to have foreseen the possible break in the relationship with this daughter when the marriage came to an end.

The affidavits accordingly leave one in a position of uncertainty regarding the future relationship between father and daughter - matters which would have benefitted from the report required in terms of Section 9(3) of ESTA.

11. Notwithstanding the abovementioned contents of the affidavits counsel appearing for the applicant submitted in reply that there were no children involved¹¹. In his finding¹² the Magistrate held that there was only one person (the respondent) affected by the order - this is clearly not the position. Our Constitution requires that a child's interests be of paramount importance "in every matter concerning the child"¹³ and the report could assist the court inter alia in respect of those rights enshrined in sections 28(1) (b) and (c) of the Constitution. In ESTA the probation officer is specifically instructed to include in the report "how an eviction will affect the constitutional rights of any affected person, including the rights of the children, if any,to education,"¹⁴ so as to enable a court to take into account the rights of a child. The Magistrate has failed to consider these matters and considering the facts in this matter he cannot in the absence of the report provided for in ESTA simply proceed to grant an eviction order.

12. In my view, a proper application of the Court's powers in terms of section 19(3) renders the magistrate's decision reviewable for the reasons given above, I did consider setting the order aside and dismissing the application, but that may well be unfair on all the parties who in light of what is set out above may be able after consideration of the report to resolve the matter. The Act¹⁵ fortunately provides that the matter can be remitted to the Magistrate with directions. Accordingly I order that:

1. The order is set aside.

2. The matter is remitted to the Magistrate, Ceres.

3. The Magistrate is instructed to ensure that the department and its officer now comply with the court order dated 6 December 2010 that they produce the report as provided for in Section 9 (3) of ESTA and that they now produce it within the reasonable time of 1 month from receipt by them of the magistrates' further notice

4. The Magistrate provide the officer concerned with a full set of the pleadings herein and this judgment.

5. After the receipt of the report and after considering supplementary affidavits and further argument (if any) the Magistrate is to decide the

Kahanovitz AJ

Acting Judge

Land Claims Court

---