Kanhym (Pty) Ltd v Mashiloane

• Jurisdiction: South Africa
• Citation: 1999 (2) SA 55 (LCC)

Kanhym (Pty) Ltd v Mashiloane
1999 (2) SA 55 (LCC)

1999 (2) SA p55

Citation	1999 (2) SA 55 (LCC)
Case No	LCC 17R/98
Court	Land Claims Court
Judge	Dodson J
Heard	January 7, 1999
Judgment	January 7, 1999
Counsel	J Floor for the applicant; No representation for the respondent

Flynote : Sleutelwoorde

Land — Land reform — Magistrate's court order for eviction in terms of s 19(3) of Extension of Security of Land Tenure Act 62 of 1997 — Review of — Proviso to s 19(3) obliging Land Claims Court to receive submissions from G parties before reviewing magistrate's court order deleted by s 28 of Land Affairs General Amendment Act 61 of 1998 — Court, however, retaining discretion to receive submissions before reviewing order in terms of s 19(3) of Extension of Security of Land Tenure Act. H

Land — Land reform — Application for eviction in terms of s 8(2) of Extension of Security of Land Tenure Act 62 of 1997 — Locus standi of applicant — Only deponent on behalf of applicant company having failed to state nature of his association with company or that he was authorised to depose on behalf of applicant — Deponent stating I in founding affidavit that he was 'manager of manpower of Kanhym Estate, a division of F Ltd' — In absence of explanation, not possible to read 'Kanhym (Pty) Ltd' for 'Kanhym Estate' — No application to amend citation of applicant — Matter to be decided on basis that true applicant 'Kanhym (Pty) Ltd' — Applicant company accordingly having failed to show that deponent properly authorised. J

1999 (2) SA p56

Land — Land reform — Order for eviction in terms of s 10(3)(c) of Extension of Security of Land Tenure Act 62 of A 1997 — Applicant having averred that respondent retrenched and that house to which respondent entitled qua employee required for another employee — Such averment not justifying inference that 'the efficient carrying on B of (an) operation' of applicant would be 'seriously prejudiced unless the dwelling is available for occupation by another person' — Applicant to set out details of alleged prejudice and to identify operations in question — Causal connection to be shown between unavailability of particular dwelling and serious prejudice that owner's operation or operations will suffer — Section 10(3)(c) not complied with — Magistrate's order evicting respondent set aside.

Headnote : Kopnota

The applicant's application for the eviction of the respondent was granted in a magistrate's court and thereafter came to the Land Claims Court by way of automatic review in terms of s 19(3) of the Extension of Security of Tenure Act 62 of 1997. The applicant's case was set out in the founding and replying affidavits D of one E, who testified that he was the 'manager, manpower of Kanhym Estate, a Division of Foodcorp Operations Ltd' and that the respondent had been employed by the applicant from 1 August 1976 until December 1996, and thereafter by ITS, a contractor of the applicant. As an employee of ITS the respondent had retained his right to occupy the house which had previously been made available to him by the applicant. E This was subject to the condition that termination of his employment with ITS would require him to vacate the premises within 30 days. The respondent was retrenched in June 1997. He however refused to vacate the house and the applicant applied for and obtained an eviction order. The Land Claims Court first dealt with the issue, raised by the applicant, of whether the Court was obliged to entertain submissions from the parties before handing down judgment. F

Held, that the Court was no longer obliged to entertain submissions prior to handing down judgment: s 28 of the Land Affairs General Amendment Act 61 of 1998 deleted the proviso to s 19(3) that previously had accorded the parties this right. The Court did, however, retain a discretion to receive submissions. (At 58B—D.)

Held, further, that there were two primary concerns with regard to the eviction order: (1) whether it had been G proved that E had the authority to depose to his affidavits and to bring the application on behalf of the applicant and (2) whether the facts as alleged in the affidavit were sufficient to prove compliance with s 10(3)(c) of the Act. (At 60A—C.)

Held, further, as to (1), that the applicant had failed to prove that E had properly been authorised: it was not H possible simply to read 'Kanhym (Pty) Ltd' for 'Kanhym Estate'. In the absence of an application to amend the citation of the applicant the matter had to be decided on the basis that the true applicant was Kanhym (Pty) Ltd. The eviction order stood to be set aside on this ground alone. (At 61E/F—62B, paraphrased.)

Held, further, as to (2), that s 9(2)(c) of the Act required the applicant to show that the conditions for an I order of eviction set out in s 10 had been complied with. Section 10(3) was applicable in the instant case because the applicant had not shown on the papers that there was alternative accommodation available to the respondent as contemplated by s 10(2). (At 62B/C—D.)

Held, further, that the applicant had not complied with s 10(3)(c), which provided that a court could grant an eviction order if 'the efficient carrying on of any operation of the owner . . . or person in charge will be seriously prejudiced unless the dwelling is available for another person employed or J

1999 (2) SA p57

to be employed by the owner'. The only fact alleged by the applicant was that the respondent's house was A needed in order to provide accommodation for another employee. This did not justify the inference that the efficient carrying on of any operation of the applicant would seriously be prejudiced if the respondent were not evicted to accommodate the other employee. The applicant was required to set out the details of the 'serious prejudice' that his operations would suffer and to identify those operations. In addition, a causal B connection between the unavailability of the respondent's house and the serious prejudice the applicant's operations would suffer had to be shown. No such proof had, however, been offered by the applicant. (At 62G/H—63C.)

The Court accordingly set aside the magistrate's order of 14 October 1998 and replaced it with an order C dismissing the application. (At 63C/D—E.)

Cases Considered

Annotations

Reported cases

Kanhym (Pty) Ltd v Shabangu 1999 (2) SA 51 (LCC): applied

Karabo and Other v Kok and Others 1998 (4) SA 1014 (LCC) ([1998] 3 B All SA 625): referred to D

Lategan v Koopman en Andere 1998 (3) SA 457 (LCC): referred to

Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C): dictum at 351H—352A applied.

Statutes Considered

Statutes

The Extension of Security of Tenure Act 62 of 1997, ss (8)2, 9(2)(c), 10(3), 19(3): see Juta's Statutes of E South Africa 1997 vol 6 at 2-605, 2-606.

Case Information

Automatic review under s 19(3) of the Extension of Security of Tenure Act 62 of 1997 of an order for eviction by a magistrate's court. The facts appear from the reasons for judgment F

J Floor for the applicant.

No representation for the respondent.

Judgment

Dodson J: G

[1] This matter came to the Court by way of automatic review in terms of s 19(3) of the Extension of Security of Tenure Act. [1] I will refer to it as 'the ESTA'. The matter was referred together with another matter, namely Kanhym (Pty) Ltd v...