Category

ESTA

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.

 

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:

Rights and Wrongs

Top court finds eviction of woman who has been in house since 1947 is lawful

By | Appeal of an eviction order, ESTA, Eviction news, PIE

Reprinted from Times Live, by Ernest Mabuza – 2022-09-21

The Constitutional Court has ruled the eviction of an 85-year-old woman from a property given to her by a Somerset West businessman is not unlawful.

Clara Phillips has been living in the house since she was 11. She started living on the property in 1947, when the property formed part of a larger farm. She lives in the house with her disabled son.

The property is situated about 500m from Willem Grobler’s home in Somerset West. Grobler bought the property at a public auction because he wanted his elderly parents to reside in it.

The property was registered in Grobler’s name in September 2008 but his wishes to accommodate his parents in it have not yet been realised.

After purchasing the house, Grobler met Phillips on three occasions and told her he required her to vacate the property.

Grobler was prepared to pay towards her relocation or, at his cost, provide alternative accommodation for her. Phillips did not accept Grobler’s proposals, stating she was not prepared to move from the property.

The magistrate’s court said the alleged lifelong right of occupation was invalid and unenforceable against Grobler as it was not registered against the title deed. The court granted an order of eviction against Phillips.

Phillips appealed to the full court of the Western Cape High Court.

In that court, not only did Phillips invoke the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act but also relied on a new and alternative ground of appeal, namely that she was an occupier in terms of the provisions of the Extension of Security of Tenure Act.

The high court upheld her appeal and this led to Grobler appealing to the Supreme Court of Appeal (SCA).

In its judgment last year, the SCA rejected the defence raised by Phillips that she had a right of lifelong habitation and was a lawful occupier. However, it said it was not just and equitable to order an eviction in the matter and dismissed Grobler’s appeal.

In its judgment on Tuesday, the Constitutional Court said an unlawful occupier such as Phillips does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain on the property she is occupying unlawfully.

Tshiqi said the fact that Grobler had repeatedly made offers of alternative accommodation to Phillips should not be taken as creating any obligation to offer alternative accommodation.

Tshiqi said it was an important consideration that an eviction order in these circumstances will not render Phillips homeless.

“The offer advanced by Mr Grobler stands. If it is made an order of court, it will essentially mean Mrs Phillips will only be required to relocate from one home to another in the same immediate community within Somerset West.”

In the order, the court said Grobler is directed to purchase a two-bedroom home in good condition, and it must be within a radius of 5km from where Phillips currently resides. The order said Phillips will have a right to live in that house for the rest of her life.

The court said if Phillips and her son do not take occupation of the dwelling within six months from the date of registration of the dwelling in the name of Grobler, they are directed to vacate the premises. Failing this, the sheriff of the court is directed to evict them from the premises.


For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you have questions about your right of occupation or if you need advice on the eviction process.

Further reading: