Category

ESTA

Jun 19
0
Bad husband

Can I be evicted from the farm I have been living on for decades?

By | ESTA, Farm evictions

The text below is the answer to a question posed by a reader to GroundUp – 2024-06-12

The short answer

As a person living on a farm, you may be covered by the Extension of Security of Tenure Act of 1997.

The whole question

Dear Athalie

I have lived on a farm in Stellenbosch with my grandmother and uncle for 31 years. They have both passed on now. Last week I was given an eviction letter. Other people living on the farm got them too – even ones who used to work on the farm.

The long answer

No one in South Africa can be evicted without a court order. A new owner cannot evict you without a court order and the court must find that the eviction is fair and just before granting an eviction order.

As a person living on a farm, you are covered by the Extension of Security of Tenure Act of 1997 (ESTA) if you do not earn more than R5,000 a month and you are not a labour tenant.

The organisation PASSOP points out that under ESTA you have special rights if you are a long-term occupier. If you are older than 60 and have lived on the farm for ten years, you can stay on the farm for the rest of your life. The only way that you can be evicted is if you do not honour agreements that you have made with the owners, or if you do something seriously wrong. An eviction is only lawful if there is an eviction order from a court, and the eviction must also be just and equitable.

If you are younger than 60, but have lived on the farm since before 4 February 1997 (when the new Constitution came into effect), and you have done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where you can enjoy the same quality of life. As you have lived on the farm for 31 years, that protection would apply to you.

ESTA protects farm dwellers against unfair evictions and sets out how disputes over rights to the land can be resolved with mediation, arbitration or the courts. The decisions that the courts make must strike a balance between the constitutional right of a person to a home and the rights of the landowner.

The Constitutional Court emphasized in a 2016 case, that security of tenure and provision of adequate housing must be at the centre of the eviction process in terms of ESTA.

If the new owner wants you all to leave, these are the procedures he must follow:

  • He must give you a notice that if you do not vacate the premises within two months of the notice, he will go to court for an eviction order. (The owner is not allowed to remove you by physical force or by blocking access to the property.)

  • He must send a copy of this notice letter to the local authority and the provincial office of the Department of Land Affairs, to warn the municipality and the Department that they might need to make arrangements for alternative accommodation for you, and for mediation, if this is possible.

  • The application for eviction through ESTA must be brought either to the Land Claims Court or to the Magistrate’s Court.

In an ESTA application for eviction, the court will look at the following questions to decide whether it is just and fair to evict you:

  • Was the original agreement between the occupier and the owner fair?

  • How did the parties conduct themselves?

  • How much is each party going to suffer if this eviction happens or does not happen?

  • Did you expect to stay on the land for a longer period?

  • Are there valid grounds for evicting you?

In the court enquiry, you have the right to have another person or a lawyer there to help you state your case. After the enquiry, if the eviction order is granted, the owners must inform you of their decision in writing, and remind you that you have the right to take the matter to court if you disagree with the outcome of the enquiry.

The eviction order also has to be sent to the Land Claims Court to be confirmed before it can be enforced.

If you need help and advice, you could contact the following organisations:

3 Hans Strijdom Avenue Lane

Tulbagh Centre Building (Room 413)

Cape Town 8001

Office Telephone: 0214182838

Office E-mail: office@passop.co.za

Link to Programme: Security of Farm Workers Project

Telephone number:  021 424 8561

Physical address:

4th floor, Vunani Chambers,

33 Church Street,

City Centre,

Cape Town

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities.

Further reading:

Oct 04
0
RDP house

‘I want to take my last breath in this house’ says Cape farm dweller facing eviction

By | ESTA, Evictions, Farm evictions

Reprinted from capetownetc.com, by Liezl Human of GroundUp – 2023-10-03

Two families on a farm in Vredendal on the West Coast are being evicted from the homes they have occupied for several generations.

Several other tenants also living on Welverdiend Farm have been told to relocate to RDP houses in Vredendal North.

The residents, most of whom have lived on the farm all their life, do not want to move to a township which they say is dangerous and has frequent incidents of crime. They also don’t want to leave the farm because the graves of their parents, siblings, children and other relatives are on the property.

The current owner, Truter Lutz, purchased the farm for commercial agriculture in 2015. He wants the tenants to leave the houses so that his current employees can move in as the farm is about ten kilometres from the nearest urban area. None of the people currently living on the farm are employed by Lutz.

Welverdiend mostly farms fruit, vegetables and nuts for both the local and international market.

In an attempt to secure the families’ tenure, the Department of Agriculture, Land Reform and Rural Development had offered to buy the portion of the farm where they live. However, this offer was not accepted by the new owner. The matter is expected to be heard in the Land Claims court. No court date has been set yet.

According to court papers dated 30 May 2023, seen by GroundUp, the land was ‘free of any encumberments or land claims of any kind’ at the time of purchase.

Meanwhile, Andreas Finana whose family has lived on the farm for many generations says he remembers life there while he was growing up. Finana, now 50, points to a tree nearby where he had carved out his name as a young child.

According to Lutz’s affidavit, Finana was employed at Welverdiend from August 2020 until January 2022, when he was dismissed.

Finana lives with his sister and one of his children. ‘This farm has passed through three hands since my birth,’ he says. ‘I want to take my last breath in this house and be buried up here.’

Finana says they are worried what life would be like if they have to leave the peace that comes with living on a farm. ‘Here I can leave all my doors and windows open. I can leave my laundry outside. I can walk over to that house anytime of the day or night … I feel safe here.’

Elderly couple Anna and Dawid Saal were among the several tenants who received a letter that they needed to relocate to an RDP house. All four of their children were born on the farm. Anna was born on the farm in 1953 and her parents had worked on the farm. Dawid moved to the farm when they got married in the 1970s. Their son was also buried near their home.

Dawid says they struggled to understand what the ‘big words’ in the letter actually meant. Dawid said their son was buried in the graveyard on the farm and he also wants to be buried there.

Thys Beukes, who was a seasonal worker for one of previous farm owners, says he worries about his elderly mother’s health and quality of life should they be successfully evicted. ‘She is too old to move to the place they want us to relocate to. There are murders, rapes, and thievery,’ he says.

Coleen Arnolds, development facilitator at the Surplus People Project — a local organisation helping the farm dwellers — told GroundUp that there was ‘lots of violence’ in Vredendal North and that it would be a major change for this group to be forced to move there.

She said the RDP houses in Vredendal were cramped and didn’t have much space for the farm dwellers’ to sustain themselves by ‘planting vegetables’ like they do on the farm.

We sent several questions to the Department of Agriculture, Land Reform and Rural Development. Officials told GroundUp that they could not comment before the matter is adjudicated in court.

When we contacted the farm owner, Mr Lutz, his legal representative, Steph Grobler responded to GroundUp, which we have published below in full:

“Our client does not intend to answer each and every one of your queries and the same should not be construed as an admission or denial of the same. Our client also reserves the right to respond at a later point in time should our client deem the same to be necessary.

Our client is a commercial farmer and the land in question is zoned for agriculture purposes. The farm was purchased free of any land claims and/or other encumberments. Our client confirms that there are two (2) pending Extension of Security of Tenure Act (ESTA) eviction matters. The respondents are represented by Legal Aid South Africa and have this week filed a notice of appearance confirming the intention to oppose the matters. Our client will continue to follow the lawful process and will continue to engage with all the interested parties in an attempt to find an amicable solution.

It is specifically confirmed that there are no aged persons amongst the respondents or occupiers who enjoy protected status under section 8(4) of the Act. There are certain occupiers who enjoy protected status who have received RDP houses in the local housing project. In terms of the applicable municipal legislation and rules pertaining to subsidies, the recipients/beneficiaries are required to accept the allocation and are to reside in the house in question themselves. It is common cause that a real right in property, which so few of our citizens have the privilege to enjoy, is a stronger right than any personal right that is acquired through the operation of the ESTA Act.

Our client is of the view that the aforementioned persons should relocate peacefully to their allocated houses and take occupation thereof. Our client has attempted to meet with the occupiers to determine how they can be of assistance to relocate them peacefully to their RDP houses. These attempts have to date hereof been futile and met with hostility.

In these instances, the state has fulfilled its section 26 duty, and the beneficiary should accept the allocation and take occupation forthwith. To expect a private landowner to continue to house occupiers when they have alternative accommodation available is prejudicial to the landowner and to the commercial viability of the farm. The intention of ESTA, as it is clear from the preamble, is to provide security of tenure to vulnerable farm workers who do not enjoy access to alternative accommodation. It could never have been the intention of the legislature that persons who have received state grants (again a reference to the law in this regard) should be able to remain on the farm and enjoy possession and occupation of both premises. ESTA speaks to the permanence of residence, as does the applicable rules pertaining to individual housing subsidies/RDP houses.

Our client will continue to follow a lawful process in this regard and will engage with the interested parties including the local municipality in an attempt to find an amicable solution. In the event the parties are unable to find an amicable solution, our client will follow the applicable legal process.”

Facing eviction?

This case is before the courts. It is not for us to comment on whether or not these evictions are lawful. However, if you think you are being subjected to illegal eviction practices, or if you are evicting a tenant lawfully and the eviction is being opposed, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically and all parties’ rights are respected. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za for assistance with eviction matters.

 

Jul 27
0

Evicted families take “eco-friendly” property developer to court

By | ESTA, Tenants

Reprinted from GroundUp, by Kimberly Mutandiro – 2023-07-26

  • In 2022 the homes of 15 families on Tilly’s Farm in Mogale City were unlawfully demolished by Dutch-South African property company MaxxLiving.
  • People living on the farm claimed land tenure rights and the company was ordered to build them brick houses within 90 days.
  • But a year later, the families are still in temporary structures.
  • Lawyers for Human Rights has applied for a ruling that the developer is in contempt of court. The matter has been reserved.
  • MaxxLiving says it will build the houses but gives no timeframe.

Last year GroundUp reported how the homes of 15 families living on Tilly’s Farm in the Mogale City Municipality had been unlawfully demolished by Dutch-South African property company MaxxLiving.

They took the developer to court, claiming land tenure rights under the Extension of Security of Tenure Act (ESTA). In July 2022, the Land Claims Court ordered MaxxLiving to build them brick houses within 90 days.

Lawyers for Human Rights (LHR) had to launch an urgent application in the Land Claims Court (Johannesburg) to compel the developer to provide temporary homes in the meantime.

The families still live in those temporary structures. A total of R100,000 compensation, which the court ordered to be paid by 30 September 2022, was only paid in November 2022. The families say the amount, which was shared by 25 households, was too small to make up for their damaged possessions.

They are sharing just one chemical toilet. They have one water tank, but it runs dry and is sometimes not refilled for a week.

The families say the water tank they depend on is not refilled for a week sometimes

The first toilet provided by MaxxLiving on the left is full. A second toilet was added, shared by about 25 people

“To think that we once had warm homes. They should just build our homes,” said Violet Moloto, who has lived on the farm since 1995.

This is the second winter the residents are enduring since their houses were bulldozed.

Moloto said all her possessions were taken from her at the time of the demolition, and the R4,000 she received in compensation was far too little.

Because they have no electricity, the families have now built additional shacks, where they cook and warm themselves as winter bites.

Wilson Kgatla said his chickens had been killed during the demolition. “The fact that they are taking a long time to build is making the pain even worse.”

“I have no family and the house which was demolished was all I had,” said Wilson Sehlako, who has lived on Tilly’s Farm since 1989. “All l wish is for my house to be built.”

Lerato Katla, who grew up on the farm, says the nine members of her family are crammed into two shacks. The temporary accommodation can be seen behind her.

Contempt of court proceedings

David Dickinson of LHR said the property developer had argued that it had no money at present to build the homes, but had failed to provide proof of this. He said the developer had assets which could be sold.

The families first launched a contempt of court application in August 2022, and Justice Brian Spilg gave the developer until November 2022 to build the houses.

On 18 July 2023, the families went back to court, asking that the property developer be found in contempt of court. Judgment has been reserved.

Tilly’s farm families say they are struggling since their lives were disrupted and their homes bulldozed.

Margaret Makgomola, the first applicant in the case and a resident since 1988, says she has been left feeling broken. As the former preschool teacher at the old farm’s crèche, she’d hoped to open her own crèche at the site.

“The developer promised to leave the crèche standing,” she said.

But the crèche was also demolished. Makgomola sometimes visits the ruins; for her it was much more than just a crèche. Now she has fixed her hopes on at least getting a house as ordered by the court.

Her temporary shack is too small and her possessions are becoming ruined standing out in the open.

“We feel unsafe, because the property developers just do as they please. It’s as if they are above the law and we would be lucky if they even build the houses,” says Makgomola.

Margaret Makgomola, the first applicant in the case and a resident since 1988, says she has been left feeling broken.

Development forges ahead

On 18 July the residents protested outside MaxxLiving premises while the contempt of court hearing was being held in the Land Claims Court.

In a memorandum addressed to Arthur Bezuidenhout, director of MaxxLiving, they complained: “You have made excuses and excuses that you do not have money to rebuild our homes, but we can see with our own eyes that you continue to build luxury homes on the site where our homes once stood.”

MaxxLiving’s flagship “innovative modular wooden, off-grid and CO2-friendly property development” has forged ahead, with a total of 11 new homes and foundations for more, according to court papers.

Bezuidenhout told GroundUp he is committed to building homes for the Tilly’s Farm families and that the residents would still get homes, but he could not give a timeframe.

He said bad publicity had damaged on the project, causing cash constraints.

“We are from the Netherlands, and we are a Dutch-based company aiming to fix with innovative solutions a housing problem in South Africa.”

“We are building homes in wood. It allows us to build fast, with quality and it allows us to build model homes. The purpose of this development is to showcase how we can build quality homes with wood, better than brick and mortar.”

He said the company had engaged with the Minister of Human Settlements.

He said his good intentions had been misunderstood by the families who refused to move to land he had offered them.

“We are against RDP homes and informal settlements. Our model is the future of social homes if the government joins in,” he said.

The MaxxLiving flagship development in Mogale City

Groundup has been awaiting comment from Mogale City Municipality since Monday.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities.

Further reading: