Franco Lee v Petrus Johannes Merwe van Rensburg

The Appellant (Franco Lee) was employed as a general labourer on a farm (Bosjesmans Valley, No 218, Portion 63) and resided there as part of his employment. From 1 November 2014, the Respondent (Petrus Johannes Merwe van Rensburg) became the farm manager pursuant to the purchase of the farm by Sandrivier Wingerde (Edms) Bpk. The Respondent requested the Appellant to enter into a new written contract of employment, which the Appellant refused. The Appellant subsequently absented himself from work and was dismissed following a disciplinary enquiry for unauthorised absenteeism. On 27 May 2015, Sandrivier's attorneys wrote to the Appellant informing him of his dismissal and giving him 30 days to vacate the farm. The letter was personally served by the sheriff on 28 May 2015. When the Appellant failed to vacate, the Respondent launched an eviction application on 14 September 2015, which was personally served on the Appellant on 17 September 2015. Despite personal service, the Appellant filed no notice of opposition or answering affidavit. The Worcester Magistrates Court granted a default eviction order on 3 December 2015, which was confirmed on automatic review by the Land Claims Court on 27 January 2016. The Appellant then noted an appeal on 8 February 2016.

• Whether the eviction application was properly served on the Appellant
• Whether the eviction application was properly served on the Municipality and the Department of Rural Development and Land Reform
• Whether the Respondent had the necessary authority to depose to the founding affidavit
• Whether the Respondent made out a case for eviction in terms of ESTA
• Whether the Magistrate could proceed without a Probation Officer's report under section 9(3) of ESTA
• Whether the granting of the eviction order was just and equitable
• Whether a judicial officer must subpoena an occupier before determining an unopposed eviction application
• Whether a costs order should be made against the Appellant and/or his attorneys

The appeal was dismissed with costs. The eviction date was extended to 31 January 2017, with the sheriff authorized to evict on 7 February 2017 if the Appellant failed to vacate.

In unopposed eviction applications under ESTA where: (1) the applicant has made all necessary averments required under sections 8(2) and 9(2) of ESTA; (2) there has been proper personal service on the occupier; (3) the occupier has failed to oppose despite such service; and (4) a Probation Officer's report has been requested but is not forthcoming within a reasonable time, a Magistrate is entitled to proceed to determine the application without the Probation Officer's report and without subpoenaing the occupier. In such circumstances, the judicial officer may accept the applicant's unopposed averments and grant an eviction order where it is just and equitable to do so. The duty of courts to adopt a compassionate approach in social legislation cases does not require disproportionate procedural interventions where occupiers fail to engage with properly served proceedings.

The Court noted with concern the substandard work of the Appellant's legal representatives, particularly their failure to obtain the record before drafting the notice of appeal, and their failure to amend manifestly incorrect grounds once the record was obtained. The Court observed that the firm (Elton Shortles Attorneys) was involved in a number of land reform cases and that this was not the only case where their work had not been up to standard. Following the approach in Ntuli v Smit (which itself followed Webb and Others v Botha), the Court issued a warning that "the time is fast approaching when [the firm] would be held liable de bonis propriis for the costs of proceedings where the papers are patently deficient and the prospects of success obviously absent." The Court acknowledged the importance of the firm's work representing indigent litigants in land reform measures but emphasized that this is "no excuse for substandard performance." While the Court declined to make a costs order on an attorney and client scale or de bonis propriis in this instance (accepting that the attorney had consulted with the client and had not acted dishonestly), it made clear that such orders may follow in future cases of similar poor quality work.

This case clarifies important procedural aspects of ESTA eviction applications. It confirms that: (1) A Magistrate may proceed to determine an eviction application without a Probation Officer's report where the report has been requested but is not forthcoming within a reasonable time, particularly in unopposed matters; (2) Courts are not required to take an overly interventionalist approach in unopposed eviction applications where the applicant has made out the necessary case - there is no duty to subpoena an absent occupier; (3) While ESTA is social legislation requiring courts to "infuse elements of grace and compassion," this does not impose disproportionate procedural burdens on applicants or the courts where occupiers fail to oppose despite proper service; (4) Legal practitioners in land reform cases must ensure proper preparation and cannot launch "hit and miss" appeals raising every conceivable point without proper factual basis; (5) Although costs orders are generally not made in ESTA matters if litigation is reasonably justified and properly conducted, costs may be ordered where appeals are manifestly unmeritorious and improperly prosecuted. The judgment serves as a warning to legal practitioners representing indigent litigants in land reform matters that substandard performance may result in adverse costs orders, including potentially de bonis propriis orders in future.