Magubane & another v Twin City Developers (Pty) Ltd & others

The first respondent owned farm land in Mpumalanga where the second respondent conducted farming activities. The appellants and their families had resided on the farm since 1975 and 1980 respectively. At the time of the eviction application, the appellants were not employed by the respondents. The respondents terminated the appellants' right of residence on 2 July 2013 in terms of section 10 of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The appellants disputed the lawfulness of this termination. The Land Claims Court (Mpshe AJ) found that the appellants' right of residence had been lawfully terminated, particularly due to damage caused to the respondents' property resulting in an irretrievable breakdown of the relationship. A probation officer's report required under section 9(3) of ESTA was requested on 27 February 2015 but was only filed on 3 December 2015, before the judgment was delivered on 13 January 2016. However, the report was not brought to the attention of Mpshe AJ before judgment was delivered, and the eviction order was granted without consideration of the report.

• Whether the Land Claims Court was entitled to grant an eviction order without considering the probation officer's report required under section 9(3) of the Extension of Security of Tenure Act 62 of 1997
• Whether the matter should be remitted to the Land Claims Court for reconsideration or whether the Supreme Court of Appeal should itself consider the report
• Whether the content of the probation officer's report justified interference with the eviction order

1. The appeal was dismissed with no order as to costs. 2. The order of the Land Claims Court dated 13 January 2016 was substituted with an amended order providing: (a) eviction of the appellants from the farm properties; (b) removal of all livestock on the date of eviction; (c) payment by the respondents of R100,000 to each appellant (R50,000 within seven days of the order and R50,000 within seven days of vacating); (d) eviction date extended to on or before 1 September 2017; (e) authorization for the Sheriff to effect eviction if necessary; (f) assistance by the respondents with relocation of moveable assets, livestock and building materials, including transport costs; (g) no order as to costs.

The failure of the Land Claims Court to consider a probation officer's report filed in terms of section 9(3) of the Extension of Security of Tenure Act 62 of 1997 before granting an eviction order constitutes a material misdirection. The purpose of a section 9(3) report is to ensure that the constitutional rights of occupiers who stand to be evicted are not overlooked, although such rights do not impose an obligation on landowners to assume the State's responsibility for providing housing and education. Where a probation officer's report has been filed but not considered, an appellate court may, based on considerations of convenience and the interests of justice, consider the content of the report itself rather than remitting the matter to the lower court, particularly where the litigation has been protracted and remittal would cause unnecessary delay and costs. Where the content of the probation officer's report complies with section 9(3) requirements and contains nothing that militates against the eviction order, and where the appellant can point to no prejudice suffered, the eviction order will not be set aside.

The court observed that it was not unusual, in the experience of the Land Claims Court, for probation officers' reports to only be submitted two years after being requested, or not at all. The court noted that in terms of the jurisprudence of the Land Claims Court, it was entitled to proceed with an eviction application in the event of the report not being filed within a reasonable period of time, as section 9(3) requires the report to be submitted within a reasonable time. The court commended the respondents' magnanimity in offering extended time for eviction, increased financial compensation, and assistance with relocation, describing these undertakings as laudable. The court emphasized that courts considering eviction applications under ESTA must consider the constitutional rights of occupiers in an attempt to address the hardship and instability caused by evictions and to ensure that they are conducted with a measure of compassion, or even delayed with as little resultant disruption to constitutional rights as possible.

This case is significant in South African land law as it clarifies the mandatory nature of considering probation officer's reports under section 9(3) of ESTA before granting eviction orders, while also demonstrating the appellate court's flexibility in deciding whether to remit matters or finalize them based on considerations of convenience and justice. The judgment emphasizes the important constitutional purpose served by section 9(3) reports in ensuring that the constitutional rights of occupiers (including rights to housing and children's rights to shelter and education) are not overlooked in eviction proceedings. The case also illustrates the principle that while these constitutional rights must be considered, they do not impose an obligation on landowners to assume the State's responsibility for providing housing and education. The judgment demonstrates the court's approach to balancing the rights of landowners with the protection of vulnerable occupiers under ESTA.