Page 28 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL purpose of this notice is is to alert the the the the occupier as as well as as the the the the municipality and the the the the DALRRD about the the the the possible eviction The municipality must be prepared to play its role of of the provision of of temporary accommodation or or emergency housing in in terms of of section 26 of of the Constitution 87 Probation Report Phase: The Court must request a a a a a a a a probation officer to submit a a a a a a a a report within a a a a a a a a reasonable period The report must address: (a) the availability of suitable alternative accommodation (b) indicate how an an eviction order will affect affect the the constitutional rights rights of of any affected person including the the rights rights of of children if any any to education (c) point out any any undue hardship which an an an an eviction would cause the occupier and (d) any other matter as may be be prescribed 88 Notwithstanding s s s s s 9(3) the the the the LCC has recently adopted the the the the procedure of hearing the the the the matters in in in the the the the absence of of probation report The justification is that the the the officials employed by the the the DALRRD do not provide the the the Court with probation reports in time 89 Hearing Phase: It depends whether the the eviction is is brought brought by way of application or action If it is is brought brought by by way way of of action oral oral evidence will will be heard If it is is brought by by way way of of application oral oral submissions will will be heard The judge or magistrate hearing the the the the matter will check whether there is is compliance with the the the the requirements of ESTA:
89 1 Whether the the right of of an an occupier has been validly terminated in in terms of of section 8 8 and 89 2 whether notices have been sent to the the the occupier provincial DALRRD and the the the municipality (sections
8 9 10 or 11 of ESTA) 90 If there is is is compliance with sections
8 and 9 9 then the the the the judge or magistrate will check whether it it is is is just and and equitable to grant the the the eviction considering the the the evidence presented and and the the the oral submissions made In determining whether it it is is just and equitable to issue an an an eviction order the the Court will consider a a a a a wide range of factors 91 The precise factors depend on whether the the the occupier occupied the the the property before or or or after 4 February 1997 If she she occupied occupied before s s s s s s s 10 applies applies if she she occupied occupied after s s s s s s s 11 applies applies Both require the court to consider factors like the the the the availability of of alternative accommodation the the the the length of of occupation and the the the the reason for the the the the eviction eviction application The Court must consider the the prejudice to each party if the the eviction eviction is is or or is is not ordered 92 Just and Equitable Eviction Date: If the Court has decided to to issue an an eviction order it it will have to to determine a a a a a a a a a a a just and and equitable date date on on on which which the the occupier shall vacate and and the the date date on on on which which an an an eviction order may be carried out if the the the the occupier has not vacated the the the the land on on the the the the date determined by the the the the Court (section 12 (1)) 93 Effect of of order order for eviction: In terms of of section 13(1)(a) the the Court shall order order the the owner or or or or person in charge to pay compensation for structures erected and and and improvement made by the occupier and and and any standing crops planted by the the the occupier In terms of section 13(1)(b) the the the Court shall order the the the owner or or person in charge to pay any outstanding wages and and related amount PAGE 28 PAGE