Finbond Mutual Bank Limited v Magau Elphas and Others

Finbond Mutual Bank Limited (Applicant) was the registered owner of a farm. The respondents, including the third respondent Bulelwa Magau and her family, were occupiers on the property in terms of ESTA. On 22 September 2020, the Applicant brought an urgent ex parte application for eviction based on allegations of theft, assault, and intimidation by the respondents against the farm manager. Barnes AJ granted an interim interdict on 22 September 2020 and an interim eviction order on 2 October 2020 ordering the respondents to vacate within two days. The respondents were unable to obtain legal representation in time due to difficulties accessing Legal Aid. On 5 October 2020, the third respondent obtained an urgent order staying the eviction. On 28 October 2020, the parties agreed to rescind the earlier orders. The Applicant later withdrew the main eviction application on 3 April 2023. The third respondent pursued a counterclaim for damages of R1,000,000 for shock, trauma, and impairment of dignity arising from the allegedly irregular eviction proceedings.

• Whether the Land Claims Court has jurisdiction to adjudicate a delictual claim for damages arising from eviction proceedings
• Whether the eviction proceedings were conducted irregularly and contrary to ESTA
• Whether the third respondent's counterclaim complied with the procedural requirements of the Land Claims Court Rules
• Whether the Applicant was delictually liable for damages for shock and trauma caused by the eviction proceedings
• Whether section 14 of ESTA applies where no actual eviction occurred
• The appropriate costs order in the circumstances

1. The third respondent's counterclaim is dismissed. 2. There is no order as to costs.

Section 14 of ESTA, which provides for payment of damages for suffering or inconvenience caused by eviction, only applies to persons who have actually been evicted contrary to the provisions of the Act. Where eviction proceedings are instituted under section 15 of ESTA and a court properly grants an interim eviction order after considering the statutory requirements, but the order is stayed before execution and later withdrawn, there is no eviction contrary to the Act and therefore no basis for a delictual claim under section 14. For a delictual claim to succeed, the claimant must properly plead and prove all five elements of delict: commission or omission, fault, harm, causation, and wrongfulness. The Land Claims Court has jurisdiction under section 22(2)(c) of the Restitution of Land Rights Act to decide issues not ordinarily within its jurisdiction if incidental to matters within its jurisdiction and in the interests of justice.

The Court noted that while Rule G33(7) of the Land Claims Court Rules allows a respondent to bring a counter-application with delivery of an answering affidavit, this provision does not substitute action proceedings with a counterclaim to an application. The third respondent should have brought her delictual claim by Notice of Action based on Form 8 of Schedule 1 in accordance with Rule 44, as Rule 23(2) provides that no claim for determination of compensation may be brought by way of notice of motion. The Court also observed that the Applicant's reference to Rule 6(12) of the Uniform Rules instead of Rule 34 of the Land Claims Court Rules, while technically incorrect, was not fatal to the application as the substantive provisions of section 15 of ESTA were properly applied. The Court noted the difficulties that occupiers face in accessing legal assistance, particularly in rural areas with limited Legal Aid availability, but found this did not render the proceedings irregular.

This is the first case in the Land Claims Court addressing a delictual claim for damages arising from eviction proceedings under ESTA. The judgment clarifies that: (1) The Land Claims Court has jurisdiction to decide delictual claims incidental to eviction proceedings under its jurisdiction; (2) Section 14 of ESTA, which provides for damages including for suffering or inconvenience caused by eviction, applies only where an actual eviction contrary to the Act has occurred; (3) The granting of an eviction order by a court under section 15 of ESTA, which is later stayed or rescinded, does not constitute an eviction contrary to the Act that attracts delictual liability; (4) Applicants claiming delictual damages must properly plead all elements of delict, particularly wrongfulness; (5) The judgment reinforces proper procedural compliance in the Land Claims Court, noting that claims for compensation should be brought by action (notice of action) rather than by application. The case demonstrates the court's approach to balancing the protection of occupiers' rights under ESTA with the requirement that claims be properly founded in law and fact.