Magubane and Another v Twin City Developers (Pty) Ltd and Others

This was an application for leave to appeal against an eviction order granted by the Land Claims Court on 13 January 2016. The applicants (Magubane and Khumalo) were the respondents in the original eviction application brought by Twin City Developers (Pty) Ltd and Wetlands Country Retreat (Pty) Ltd. The eviction order was granted in accordance with section 10(1) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The applicants initially filed eleven grounds of appeal but abandoned all except grounds 1, 2 and 3, which all related to whether the trial court was precluded from ordering eviction without having requested, received, or considered a probation officer's report in terms of section 9(3) of ESTA.

• Whether it is obligatory or peremptory for a trial court to request a probation officer's report in terms of section 9(3) of ESTA before granting an eviction order
• Whether a court can finalize its determination in an eviction matter without having had insight into the contents of the section 9(3) report
• Whether the requirements under section 9(3) of ESTA are mandatory in all eviction proceedings under the Act

The court granted: (a) Condonation application; (b) Application for leave to appeal only regarding section 9(3) of ESTA; (c) Costs to be costs in the appeal.

When there exists conflicting judicial authority on a legal issue central to the granting of an eviction order - specifically whether section 9(3) of ESTA mandates that a court must request and consider a probation officer's report before granting eviction - reasonable prospects of success on appeal exist, warranting the grant of leave to appeal.

The court noted the substantive legal debate regarding section 9(3) of ESTA without resolving it, observing that some courts have held that the section 9(3) report is a mechanism to enable the presiding officer to fulfil constitutional duties under section 26(3) of the Constitution, particularly in relation to alternative accommodation and hardship considerations. The court also referenced the view that in section 10(1) cases (where eviction follows breach by the occupier), hardship considerations may only delay rather than prevent eviction. The court emphasized that this conflict in the case law justified allowing the matter to proceed to the Supreme Court of Appeal for authoritative determination.

This case highlights a significant unresolved tension in South African land law regarding the interpretation of section 9(3) of ESTA. The case identifies conflicting precedents on whether obtaining a probation officer's report on alternative accommodation and hardship is mandatory before granting eviction orders under section 10(1) of ESTA. The case is significant because it raises fundamental questions about the procedural requirements for evictions and the extent to which courts must consider constitutional rights to housing under section 26(3) of the Constitution when granting eviction orders. The matter required appellate clarification on the proper interpretation of ESTA's eviction procedures.