Smuts N.O. and Others v Baardman and Others

An eviction order against the first to third respondents was granted by default by the Magistrate’s Court, George, under the Extension of Security of Tenure Act 62 of 1997 (ESTA). The order was automatically referred to the Land Claims Court for review in terms of section 19(3) of ESTA. Despite repeated requests by the Registrar of the Land Claims Court, the magistrate failed to provide a record or transcript of the proceedings, stating that no transcript existed because the matter was decided by default. The applicants had alleged compliance with some, but not all, statutory requirements for eviction. The respondents remained in occupation of the property.

The Magistrate’s Court eviction order dated 31 March 2009 was set aside in its entirety.

This case underscores the strict procedural and substantive safeguards governing evictions under ESTA, particularly in default judgments. It affirms the supervisory role of the Land Claims Court in automatic reviews and highlights the obligation on magistrates to keep a proper record and to actively ensure compliance with justice and equity requirements before granting eviction orders.