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ESTA

Family of 10 left homeless after farm eviction

By | ESTA

By Barbara Maregele and Velani Ludidi

Ethical trade association to review Windmeul Kelder wine farm

A family of ten is gearing up to fight a court judgment that forced them off the farm which was their home for 38 years. Windmeul Kelder wine farm hired armed security to be present at the eviction of the family on Tuesday. The family was left on the roadside with their belongings and no roof over their heads.

Family of 10 left homeless after farm eviction

The evicted family are Zonwabile and Sweetness May, their children – Dumsani, Zola, Sinazo and Azola (aged between 15 and 37), and grandchildren – Anoxolo and Ivile (aged nine and 11), together with Elna Brown, who is dating Dumsani, and their child, Charlton, aged nine.

Brown said security guards arrived on Tuesday morning. “It was around 8am and the children were still sleeping when the securities arrived with papers telling us to leave. We tried putting up a fight, but our parents said we would be hurt … We should let go.”

Their belongings were put on the R44. The family has spent four nights sleeping rough, watching over their belongings.

When GroundUp contacted the family on Thursday, Sinazo was sobbing. “We have not bathed nor had a proper meal since Tuesday. There are people trying to assist us, but we need help urgently.”

Sinazo said the family had lived for 38 years on the farm. She said her parents are old and do not have any strength left to fight.

Carmen Louw, director of activist organisation Women on Farms Project, said it is common for farm owners to evict former employees. “Since Zonwabele stopped working on the farm, the owner started eviction proceedings against the family. We are busy with a lawyer drafting an urgent application to have the eviction judgment set aside.”

Billy Claasen, director of the Rural and Farmworkers Development Organisation, said it believed the court had made an “error in judgment” by granting the eviction order without stating that the family should be offered alternative accommodation.

“It is clear in this case that if you don’t have the money to litigate, you will lose even if you have a strong case,” he said.

Zonwabele said his troubles started a decade ago. “I was fired in 2008 after I was accused of selling alcohol, someone took a video of me with beers under a tree.”

Sinazo said her father never sold alcohol. “He was drinking when the cellphone video was taken. After firing him, we continued to stay on the farm, but it was hard because we received threats.”

Brown has been staying with the family for 15 years. “We received letters telling us that we must leave the only place we called home. We had a lawyer, but we heard that the lawyer reached an agreement with the farm owners that we must be out by January this year,” she said.

Jonathan Marthinus of the Drakenstein Municipality said that the municipality was aware that the eviction order had been granted, but was not aware that the order had been executed by the sheriff.

“The Extension of Security of Tenure Act (ESTA) places an obligation on the Department of Rural Development and Land Reform to intervene and assist farmworkers with access to legal representation. The Land Claims Court did not order Drakenstein Municipality to provide alternative accommodation in this case, and the evictees also at no stage requested assistance or alternative accommodation from the municipality,” said Marthinus.

He said the municipality had offered the May family temporary accommodation. “We also provided them with food parcels and water, which were delivered to them. The evictees, however, indicated to municipal officials last night that they did not want alternative accommodation from the municipality.”

Asked if municipality has plans to deal with pending eviction cases which may affect thousands of people living on farms, Marthinus said, “The municipality is aware of the scale of evictions within the jurisdiction and is proactively planning to assist within our resources. Furthermore, the municipality has meaningful engagements to discuss alternatives to evictions and also produces a report to the court.”

In response to Marthinus, Claasen said they were appalled by the premises the municipality had offered the family. “It is a small structure connecting to toilets on the property. When you stretch your arms, you can touch both walls. It’s only big enough for two people. There are already 52 tents on the property,” he said.

Claasen added that his organisation approached the Wine and Agricultural Ethical Trade Association (WIETA) to call on its members [which Windmeul belongs to] to halt evictions until proper housing solutions for displaced families are implemented.

“We as NGO’s also want an urgent meeting with the President to discuss issues affecting farmworkers,” he said.

Amelia Heyns of WIETA said the organisation was currently helping to find alternative accommodation for the family. WIETA also questioned the manner in which the eviction order was executed.

In a statement, CEO Linda Lipparoni said, “Any court decision around security of tenure should take into account the moral obligation and impact on evictees.”

Lipparoni urged the Drakenstein Municipality “to provide interim shelter and then longer term accommodation solutions for this family and many other farm dwellers whose human rights are infringed on during lawful eviction processes”.

She said WIETA has evoked its Incidents Reporting and Code Violations Protocol regarding Windmeul Kelder.

In a statement on Wednesday, the directors and management of Windmeul Kelder said the May family’s eviction was “the culmination of a nearly decade long process at a large financial cost and prejudiced Windmeul”.

It said that the first notice was delivered to the family in July 2017. “Windmeul further held a meeting on 4 April 2018 with the occupiers in an attempt to amicably resolve matters. On 30 April 2018, Windmeul obtained an order from the Land Claims Court,” it stated.

The company said that the family was given extra time to move their belongings before the sheriff of the High Court obtained a warrant to evict the family.

“The occupiers conduct, in brief, includes: destruction of property, overcrowding and the illegal use and sale of narcotics and alcohol which forced Windmeul to bring such eviction proceedings,” it stated.

Windmeul said it sympathised with the family and that the process was “regrettable”.

Source: GroundUp

Further reading:

Farm dweller evictions – a fair process

By | ESTA

By Simon Dippenaar, originally published at eviction-specialists.co.za

Eviction of farm dwellers is governed by ESTA

The eviction of farm dwellers is a contentious topic. But it can be done with dignity and respect. We explain ESTA and the farm eviction process.

The eviction of farm dwellers has received a lot of media publicity over the past year, particularly in the Western Cape. Some farm labourers have suffered intimidation in the course of eviction and have been reduced to living in unsafe and unsanitary conditions in informal settlements after leaving their farm dwelling.

The Extension of Security of Tenure Act 1997 (ESTA) was enacted to provide farm workers with protection against unfair evictions from land they may have occupied for decades and it guarantees them certain rights. It also endows landowners with rights, and attempts to balance the interests of both parties.

Does ESTA prevent farm dweller evictions?

ESTA has been criticised for failing to achieve its objectives and instead being used to justify unfair evictions of farm dwellers. However, the problem does not lie with the legislation, which aims to


According to Hanif Vally, deputy director of the Foundation for Human Rights, most farm evictions are in fact illegal. So the problem lies with the failure of landowners to follow the prescribed process and the lack of enforcement of the legislation. At Simon Dippenaar & Associates Inc. we believe the rights of farm dwellers and landowners alike must be upheld; and we do not condone irresponsible or disrespectful conduct towards tenants.

Situations sometimes arise that make it necessary for a landowner to evict farm dwellers. When that happens we will make sure that tenants are treated fairly and fully within the law, while protecting the rights of owners to use their land as they see fit. As eviction lawyers we understand the eviction process thoroughly – whether governed by PIE or ESTA – and we can ensure landowners do not fall foul of the legislation.

Farm dwellers’ right to residence

If a farm dweller has been resident on the land for 10 years or more and has reached the age of 60, they cannot have their right of residence revoked. But an anomaly in the law says that if the farm is sold, the new owner of the land must consent to the continued occupation by the household.

Municipal housing provision for former farm labourers

Currently in the Western Cape farm evictions are a hot topic. With over 1000 pending evictions and a possible 20,000 people affected, alternative housing is a critical concern. In the Drakenstein district last year two sites were allocated for evictees. The cost of water and sanitation per site was estimated to be R140 000. More municipal sites are needed to accommodate the number of potentially displaced farm dwellers and prevent the unsafe, ad hoc settlements that develop. Although designed to be temporary, former farm workers often remain in informal settlements because they have nowhere else to go; and if their farm employment has been terminated it can be difficult to find alternative employment.

Therefore it is incumbent on farm owners to consider all factors and behave responsibly when faced with the need to evict farm dwellers. If there is no other solution, then a good eviction attorney is essential to uphold the constitutional rights and dignity of all parties involved.

The eviction process for farm dwellers

  1. Landowners must legally terminate the occupier’s right of residence by giving two months’ notice and inform the relevant municipality and Department of Land Affairs of the intention to evict. A legal termination includes ending a lease agreement or a fair dismissal from employment. This notice of motion and supporting affidavit must be served by the sheriff of the court.
  2. A probation officer from Land Affairs will be appointed to draft a report, which the court will consider in determining whether or not to evict.
  3. The occupier has an opportunity to oppose the eviction and file answering papers.
  4. The court will then set a date for the matter to be heard.

Legal advice is essential

Cape Town law firm Simon Dippenaar and Associates Inc are experts in evictions, both residential and agricultural. Let us help you conduct your farm eviction in full compliance with ESTA and all relevant legislation. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

ESTA – blishing the rights of people in rural areas

By | ESTA, Evictions

The role of ESTA in preventing unfair evictions

Our Constitution states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” The Constitution further provides for everyone’s right “to access to adequate housing” and sets out the State’s obligation to ensure this right is upheld.

In this way, the Constitution attempts to balance the rights of landowners and occupiers and redress historical inequalities.

Enter the Extension of Security of Tenure Act 62 of 1997 (ESTA), which guarantees basic human rights for farmworkers and people living on someone else’s land in rural and peri-urban areas. Historically, these people do not have secure tenure of their homes or the land they use and are vulnerable to unfair eviction.

In terms of ESTA, if you have lived on someone else’s land with their permission, you have a legal right to remain there, and the owner cannot change this without consent unless there is a good reason to do so. ESTA aims to ensure long-term security of tenure, prevent unfair and arbitrary evictions, and encourage the government to assist occupiers and landowners to find long-term solutions to disputes involving occupation of land.

ESTA in a nutshell

    • ESTA applies to people in rural areas, living on farms and undeveloped land that is not part of a township. It also protects those living on land surrounded by a township or township land earmarked for agricultural purposes. Male and female occupiers have equal rights under ESTA.
  • ESTA applies to people who reside on the land with the express or tacit consent of the landowner or due to another right in law (such as the widow of an occupier) and earn less than R13 625 a month (increased from R5 000 a month in February 2018).
  • If you were living on someone’s land with the owner’s permission on or before 4 February 1997, you have a right to remain on that land and the owner cannot amend or cancel those rights without consent, unless there is a good reason. You also must be given an opportunity to answer any allegations against you.
  • You are entitled to receive visitors, have your family live with you, enjoy access to water, health and education services, and receive post and other forms of communication. Note that family members do not automatically become occupiers in their own right.
    • The Act gives people the right to visit and maintain family graves, but this must be balanced with the owner’s right to privacy and reasonable conditions should be agreed.
    • “Long-term occupiers” (people who have lived on the land for 10 years and are over 60, or people who become disabled or sick while employed by the landowner) can stay on that land for the rest of their lives. Their rights can only be terminated if they intentionally harm or threaten anyone else occupying the land or deliberately damage property.
  • The Land Claims Court and the Magistrate’s Court have jurisdiction in terms of ESTA, although, if the parties agree, proceedings can be instituted in any division of the High Court.

What if your income exceeds the qualifying amount?

Even if an applicant’s income exceeds the prescribed qualifying amount, the court may still rule that an eviction is an infringement of rights in terms of section 26(3) of the Constitution, as it did in the case of Mahlangu & Others v Lanseria Commercial Crossing (Pty) Ltd & Another. The court declared the eviction unconstitutional and therefore unlawful.

Spot the difference – distinctions between PIE and ESTA

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), discussed in this blog previously, pertains to unlawful occupiers of residential land. In contrast, ESTA deals with the eviction of lawful or previously lawful occupiers of rural or peri-urban land.

Even if someone is evicted from non-urban land and is consequently deemed an unlawful occupier in terms of PIE, the eviction is still dealt with under ESTA because the land in question is non-urban. For example, in Agrico Masjinerie (Edms) Bpk v Swiers, an occupier had consent to live on land as defined in ESTA, voluntarily vacated the land, and later reoccupied it without consent, thus becoming an unlawful occupier in terms of PIE. The court found that ESTA still entitled the unlawful occupier to apply for restoration under ESTA.

Additionally, an occupier’s right to live on the land relates to the entire unit of land, and not to a specific area or house. This means that if a landowner wanted to relocate an occupier to another place on the same land, ESTA would not apply.

Interestingly, a smallholding in a township is not regarded as agricultural land for the purposes of ESTA and does not fall within the ambit of ESTA. In the case of Schaapkraal Community v Cassiem, the court ruled that smallholdings are designated for rural residential use according to the Cape Metropolitan Area Guide Plan of 1998, and no law designates smallholdings for agricultural use alone.

How to go about obtaining an eviction order

    1. As a landowner you must legally terminate the occupier’s right of residence by giving two months’ notice and inform the relevant municipality and Department of Land Affairs of the intention to evict. A legal termination would include the ending of a lease agreement or a fair dismissal. This notice of motion and supporting affidavit is served by the sheriff of the court.
    1. A probation officer from Land Affairs will be appointed to draft a report, which the court will consider in determining whether or not to evict.
    1. The occupier has an opportunity to oppose the eviction and file answering papers.
  1. The court will then set a date for the matter to be heard.

Property owners and occupiers alike have rights under South African law and it is important for everyone to receive fair and just treatment. Unfair and unjust evictions are fortunately a thing of the past.

We can help

SD Law & Associates are property and eviction law experts. We have an intimate knowledge of the legislation and can make sure your rights are protected under ESTA, whether you’re a landowner or an occupier. If you’re facing an unfair eviction or if you’re considering evicting someone and need to serve an eviction notice, we can help. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

For about Simon Dippenaar click here.