Page 29 - 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 94 If an an order for for the the the the the eviction is is is is is is issued by the the the the the Magistrate Magistrate the the the the the requirements of of section 19(3) of of the the the the the ESTA kicks in 42 The The The Magistrate Magistrate must send his or or or or or her judgment to to the the the the the the the the LCC LCC LCC for for automatic review review The The The decision cannot be implemented until it it it it is is is is is is reviewed by the the the the the the the the judge judge judge of of of the the the the the the the the LCC LCC LCC The The The The judge judge judge of of of the the the the the the the the LCC LCC LCC can can can confirm or or or or or set aside or or or substitute the the the the the the the order of of of the the the the the the the Magistrate Magistrate The The judge judge judge can can remit the the the the the the the matter to the the the the the the the Magistrate Magistrate with directions Labour Tenants Act
95 While ESTA offers important protection against eviction it it it does not ultimately prevent a a a a a a a a a a landowner from evicting an an an an an an an occupier if he he he he or or or she follows the correct process and and and it it it is just and and and equitable to do do do so The LTA grants labour tenants even stronger rights against eviction 96 Almost all labour labour tenants will also also qualify as ESTA ESTA occupiers A A A A A good defence to an an an an ESTA ESTA eviction eviction application is is is is is that that that the the the person person is is is is is also also a a a a a a a a a a a a a a a a a a a a a a a a a a labour labour labour tenant tenant tenant and that that that the the the eviction eviction should have been brought under the the the LTA However as discussed earlier it is is is is is is far more difficult to to prove that that that that a a a a a a a a a a a a a a a a a a a a a person person is is is is is is a a a a a a a a a a a a a a a a a a a a a labour labour tenant tenant than to to establish that they are an ESTA occupier 97 Only the the the the the LCC can issue issue an an an eviction order under the the the the the provisions of of of LTA 43 However there is is is is is an an an exception exception to this limitation Section 13(1A)(b) states that that with the the the the the exception exception of of of issues concerning the the the the the definition of of of “occupier” in fin in in in in ESTA “if an issue issue arises in fin in in in in a a a a a a a a a a a a a a a a a case in fin in in in in a a a a a a a a a a a a a a a a a Magistrate’s Court Court or or or or a a a a a a a a a a a a a a a a a High Court Court which requires that that that court court to to interpret or or or or apply this Act” that that court court court court must must refer refer it it to to to the the the the the LCC LCC if if no no no oral oral evidence evidence has has has been been led led If oral oral evidence evidence has has has been been led led already the the the the the the the the court court court must must decide decide it it and not not refer refer the the the the the the the the matter to to to the the the the the the the the LCC LCC LCC Where another court court court has has has decided the the the the the issue there is is an an exclusive right of appeal to the the the the the LCC 98 Importantly only the the the owner owner or or or or a a a a a a a a a a a person person with the the the support on on on on on on on oath of of the the the owner owner can can bring an an an an an application for eviction A tenant of person person in charge cannot do so so so alone (s 6) 99 There are three phases in eviction application under the Labour Tenants Act
100 Notice: in in terms of of of section 11 an an an an an owner who intends to to to evict a a a a a a a a a a a a labour labour tenant tenant has to to to send the the labour labour tenant tenant and Director-General Director-General of of of the the DALRRD not not less than two (2) calendar months’ written notice of of of his or or or or or or her intention to to to to obtain an an an an an order for eviction (section (section 11 11 (1)) The Director-General Director-General shall attempt to to to to mediate or or or or or or reach a a a a a a a a a a settlement of the the the dispute between the the the labour tenant and the the the owner (section (section 11(3)) 101 Litigation: If If the the the the Director-General has has has failed to to mediate or or or or or has has has not not taken any steps within two months after he he he he he he he or or or or or or or she has has has been served with with the the the the notice the the the the owner may issue the the the the application application or or or or or or or action action for eviction If If If it it it it it is is is is brought brought by by way way of of action action oral oral evidence will be be heard If If it it it is is is is brought brought by by way way of of application application oral oral submissions will be heard 42 Section 19(3) of of of of of of the the the Extension of of of of of of Security of of of of of of Tenure Act
Act
No 62 of of of of of of 1997 states that: “An order for for eviction by by by a a a a a a a a a a a a a a Magistrate’s Court in in in in in in in terms of of of of of of this Act
Act
in in in in in in in respect of of of of of of proceedings instituted on on on on or or or or before a a a a a a a a a a a a a a date to to to be be be determined by by by the the the Minister and and published in in in in in in in Gazette shall be be be subject to to to automatic review by by by the the the Land Claims Court ” 43 Section 5 of of of of of the the the Land Reform (Labour Tenants) Act
Act
No 3 3 3 of of of of of 1996 states that: “Subject to the the the provisions of of of of of section 13 a a a a a a a a a a a a labour tenant or or or or his his or or or or her associate may only be evicted in terms of of of of an an an order of of of of the the Court issued under this Act
Act
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