Goedverwachting Farm (Pty) Ltd vs. Adriaan Johannes Roux and Others

South Africa

31.05.2024

Tenancy

Probation officer’s report cannot be used as a substitute for evidence

The present eviction application was launched in terms of section 9 of Extension of Security of Tenure Act (ESTA) on the basis that the statutory requirements in terms of section 8 of ESTA were complied with. The Appellant argued that it intended to operate a cattle farming business and was losing substantial amounts of money due the continued occupation of the Respondents. Mr. Roux however, maintained that the respondents were in legal occupation of the land by virtue of their indigenous title to the land based on the ‘Gonas Customary & Indigenous Law System’ and that the members of Deneys gave them ‘permission to look after the farm’ and ‘paid’ for the farm.

The Land Claims Court (LCC) held that the Respondents did not fall within the purview of ESTA because it was not an occupier as defined. This was on the basis it was conducting commercial farming on the land. The LCC’s decision was based solely on the statement in the probation officer’s report which held that, ‘during the 7 years residing on the farm [Mr Roux] has also indicated that he has been farming with livestock which consist of 200 pigs and 18 cattle’. The LCC, therefore, found that a commercial enterprise was being conducted and that the respondents were therefore excluded from the definition of occupier in terms of ESTA.

The probation officer’s report cannot override the court’s discretion as to whether an eviction should be granted and it does not amount to evidence. The role of a probation officer’s report is to assist a court in determining whether an eviction is just and equitable. In any event, the probation officer’s report contained several inconsistencies and inaccuracies which did not support the LCC’s finding that a commercial enterprise was being conducted thus excluding the Respondents from the definition of occupier in terms of ESTA.

The probation officer’s report cannot be used as a substitute for evidence. It was incumbent upon the respondents to raise the issue that they did not fall within the definition of an occupier in terms of ESTA and to set out the reasons therefor. The LCC impermissibly took it upon itself to make a finding on an issue that was not in dispute between the parties without hearing either party on the issue. In doing so, the LCC erred in finding that the respondents were excluded from the definition of ‘occupier’ under Section 1 of ESTA and dismissing the application for eviction on this basis. Taking into consideration that the requirements of Section 115 of ESTA have been complied with, it is just and equitable to grant an order for eviction against Mr Roux and all those occupying through him. Supreme Court upheld the appeal.

Tags : Eviction Entitlement Discretion

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