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Citation
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Judgment date
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| December 2011 |
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ESTA eviction set aside for failure to provide record, show proper service, and consider fairness and balancing of interests.
Extension of Security of Tenure Act (ESTA) – eviction – requirement to transmit record and magistrate’s reasons to Land Claims Court for review; ESTA – section 8(1)(c) (balancing hardships) and section 8(1)(e) (procedural fairness) must be considered and recorded; ESTA – service requirements under section 9(2)(d) and compliance with section 9(2)(a); Civil procedure – application of High Court rules mutatis mutandis to magistrates’ courts; Default eviction orders – necessity of transcript/record and adequate reasons; grounds for review and setting aside.
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22 December 2011 |
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Court declares eviction unlawful, finds seven ESTA occupiers, orders negotiations and potential accommodation relief, and awards costs.
Property/Eviction law – Extension of Security of Tenure Act (ESTA) – definition of ‘occupier’ – income threshold and continuous residence. Procedural law – whether occupants are bound by prior settlement made an order of court – onus on party relying on representation and proof. Constitutional law – right against arbitrary eviction (s 26(3)) – Land Claims Court’s jurisdiction to declare evictions unlawful even where PIE may apply to some occupants
Remedies – declaratory relief, obligation to negotiate alternative accommodation, reporting requirement, costs award
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15 December 2011 |
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Court refused costs for suspended contempt order, ordered each party to bear settlement costs, and respondent to pay wasted costs for late unsigned affidavit.
Costs — contempt application — suspension of parts of prior order prevented definitive costs order — no costs awarded; Urgent application — settled — each party to bear own costs for settlement appearance; Procedural default — late unsigned affidavit — wasted costs incurred — ordered paid on party-and-party scale.
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12 December 2011 |
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Under ESTA, adult dependants occupying with an employer’s consent are occupiers; eviction allowed where suitable alternatives exist.
Land law – ESTA – definition of "occupier" – consent to an employee can confer occupier status on adult dependants in their own right
Procedure – jurisdiction – Land Claims Court may hear appeals where magistrate decided under ESTA
Evictions – sections 8, 9 and 10 ESTA – requirement that termination be just and equitable and that suitable alternative accommodation be considered
Condonation – late appeal may be condoned where delay not excessive and respondents not prejudiced
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12 December 2011 |
| October 2011 |
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No mora interest where payment was conditional on signing the section 42D sale agreement and no demand was made.
Restitution of Land Rights Act – sale under section 42D – payment contingent on signing of sale agreement; mora ex re and mora ex persona – requirement of fixed performance date or interpellatio; no entitlement to mora interest absent demand or fixed due date; costs awarded party-and-party.
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27 October 2011 |
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Decision refusing legal funding was set aside for procedural irregularity, irrational reasoning and failure to follow guidelines.
Administrative law – review of funding decision under s29(4) Restitution of Land Rights Act – decision-maker uncertainty; failure to follow guidelines; absence of written reasons; irrational reliance on prospects-of-success test. Restitution procedure – funding to enable defence of declaratory application; distinction between overall claim prospects and need to defend interlocutory relief
Remedy – court may substitute decision where exceptional circumstances make remittal inappropriate
Costs – award of party-and-party costs including wasted hearing costs; punitive costs refused
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5 October 2011 |
| August 2011 |
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Commission ordered to fund and pay the applicant’s outstanding legal fees; interest awarded from date of order.
Restitution of Land Rights Act s29(4) – State-funded legal representation for indigent claimants – entitlement and funding obligations.* Review – administrative decision/ discretion – refusal or delay to fund legal fees – reasonableness and effect on constitutional rights (access to court, fair trial, restitution).* Payment of outstanding legal fees – when amounts become due and payable – entitlement to interest.
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26 August 2011 |
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Meaningful engagement, often including the municipality, is required before executing ESTA eviction orders.
Land — ESTA evictions — Section 26(3) Constitution — "just and equitable" requires consideration of all relevant circumstances including meaningful engagement — municipalities have direct duties to assist with housing solutions — where engagement and information on alternatives absent, remit/suspend eviction dates; prior employment-linked occupancy agreements weigh heavily but do not dispense with engagement.
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23 August 2011 |
| June 2011 |
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CPI adjustment, not compound interest or statutory rates, compensates delayed restitution under the Restitution Act.
Restitution Act s33(eC) – change in value of money over time – method of adjustment; CPI appropriate for equitable redress in absence of reliable investment evidence; compound interest and statutory Exchequer rate not automatically applicable; costs – party‑and‑party plus two counsel fees awarded.
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23 June 2011 |
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Applicants entitled to legal-rate interest for respondents' mora after a sale agreement was held concluded on 31 March 2009.
Sale of land – enforcement of written agreement – effect of lost signed document and subsequent re-signing – whether re-signing constitutes a new contract. Contract law – formation: offer and acceptance, formalities for sale of land
Mora – distinction between mora ex re and mora ex persona; where payment date fixed by contract, mora ex re applies
Damages – entitlement to interest at the legal rate for delay in payment under a sale agreement
Costs – party-and-party costs awarded; punitive costs require mala fides
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16 June 2011 |
| May 2011 |
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The respondent's further discovery application was dismissed for vagueness and failure to show prior insufficient discovery.
Civil procedure — discovery — Rule 46(9)(a) — further discovery requires prior discovery shown to be insufficient or incomplete; requests must be specific and linked to prior discovery; wide, speculative or fishing requests will be refused; procedural non-compliance (leave/notice) may be excused where justice permits.
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19 May 2011 |
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Eviction under the Extension of Security of Tenure Act requires clear lawful termination of occupier’s residence; contested resignation defeated eviction.
Land reform / security of tenure – Eviction under Extension of Security of Tenure Act 62 of 1997 – requirement to prove lawful termination of occupier’s right of residence under section 8. Employment-related occupancy – where residence arises solely from employment agreement, termination follows resignation or dismissal in terms of the Labour Relations Act
Evidence – material factual disputes about resignation/constructive dismissal defeat eviction application. Preliminary points – res judicata dismissed
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13 May 2011 |
| February 2011 |
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Eviction under ESTA s10(1)(c) requires proof that the respondent committed an irremediable fundamental breach, which was not shown.
Extension of Security of Tenure Act (ESTA) — s 10(1)(c) — requirement that occupier commit a fundamental, irremediable breach of the social relationship with owner (lack of mutual trust). Distinction between s 10 and s 11 evictions — post‑1997 occupiers; constructive resignation vs dismissal. An occupier's institution of court proceedings to assert ESTA rights does not of itself constitute a fundamental breach. Evidence of damage must be attributed and substantial to support finding of irremediable breach. Costs practice in ESTA litigation — ordinarily no order as to costs absent good reason
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24 February 2011 |
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Application dismissed: committee lacked proven locus standi and unreasonably delayed review of the Section 42D agreement.
• Restitution Act s36 — review of Section 42D framework agreements; • Locus standi — a community committee must prove organisational status, membership and mandate to sue; • Constitutional standing (s38) — associations must disclose members/representation; • Delay and condonation — review barred if unexplained/unreasonable delay and potential prejudice to respondents; • Jurisdiction of Land Claims Court not displaced where statutory review relief is sought.
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17 February 2011 |
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Court orders transfer of restitution properties to the applicant, rejects alleged competing claim and awards punitive costs.
Restitution of Land Rights Act — enforcement of transfer to communal property trust; competing claim alleged by traditional authority — absence of proof; administrative delay in implementing awards; punitive costs against State for failure to effect transfer.
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16 February 2011 |
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Applicant's challenge to writ and bill of costs dismissed; writ valid despite typographical date and bill properly taxed.
Execution — Writ of execution with typographical error does not necessarily invalidate writ — compliance 'as near as may be' with Form 18 — Taxation of bill of costs and proof of notice by affidavit — Interdict against execution pending taxation refused — Costs awarded on party-to-party scale.
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16 February 2011 |
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CCMA settlements can validly terminate employment‑based residence rights under ESTA, permitting just and equitable eviction.
Labour law/ESTA interplay – CCMA settlements validly terminate employment disputes under the LRA; where housing is tied to employment, ESTA s8(2) applies; s25(1) waiver does not invalidate a labour settlement; section 9(2) and s10(3) ESTA requirements for eviction and just and equitable balancing.
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11 February 2011 |
| January 2011 |
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Applicant’s urgent interdict dismissed for failing to prove dispossession by racially discriminatory practices and for unclear claim description.
Restitution of Land Rights Act – entitlement under s2 – requirement to prove dispossession after 19 June 1913 due to past racially discriminatory laws or practices. Section 6(3) interdict – elements: interested party, lodged claim by entitled person/community, development on land, reasonable belief development will defeat Act’s object. Interim interdict – necessity to establish prima facie right; inadequacy of bare assertion without evidentiary proof in motion proceedings. Claim description – importance of correctly identifying the specific land in lodged claim
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1 January 2011 |
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Applicant’s failure to prove statutorily required notice under section 6(3) precluded interim relief.
Restitution of Land Rights Act s6(3) — requirements for interdict pending land claim; necessity of notifying landowner and referring to s6(3); section 11 notice by Regional Land Claims Commissioner; applicant’s burden of proof; insufficiency of MEC’s knowledge alone.
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1 January 2011 |