Category

ESTA

Sep 26
0
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.

When the eviction proceedings were before the magistrate’s court, Phillips alleged the previous owner had given her a lifelong right of occupation.

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.

“The Constitution does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live,” justice Zukisa Tshiqi wrote in a unanimous judgment.

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.

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Feb 20
0

Farm worker challenges authorities in court over housing

By | ESTA, Eviction news, Eviction notice, Evictions, Farm evictions

Municipality and province accused of not meeting constitutional obligations

A farm worker is to take the Drakenstein Municipality and the provincial Department of Human Settlements to court for their “failure to meet its constitutional obligation by not providing adequate emergency housing” to families facing eviction.

The worker, Eric Lolo, is bringing the matter to court on behalf of all farm dwellers in the region currently facing eviction and in need of emergency accommodation. The case will be heard in the Western Cape High Court in April. Farm worker rights organisation Women on Farms Project has been admitted as amicus curiae [friend of the court] in the matter.

Lolo, 60, shares a two bedroom home with his daughter Berenice Fransman and her child on Langkloof Roses farm in Wellington. Lolo said he had worked at Langkloof intermittently for about 20 years before he was retrenched in February 2014.

In August 2015, the farm’s owners, Greenwillows Properties, lodged an eviction application in the Wellington Magistrates’ Court against Lolo. They argued that according to the Extension of Security of Tenure Act (ESTA), the right of Lolo and his family to remain in the house at Langkloof ended along with his employment.

Lolo currently works on an estate in Simondium.

Representing the farm, attorney Ina-Mari Booysen said that despite having worked for the company years earlier, Lolo had only signed a written employment and housing agreement in February 2012.

“Mr Lolo was retrenched for operating requirements. He is being evicted because he is no longer working on the farm. The farm only offers housing to active staff,” she said.

“There is currently a need for housing for employees who must live on-site. This distress and Mr Lolo’s failure to vacate the premises voluntarily is why we instituted the eviction application. There were several occasions where [alternative] housing was discussed with Mr Lolo, among other things,” she said.

The ruling on Lolo’s eviction is pending the outcome of the High Court case. If he is evicted, Lolo told GroundUp, his family has “nowhere to go”.

“I was given R10,000 for all of the years I worked there. They want me to move but I have nowhere to go. My daughter is unemployed and they don’t have work for her there either,” he said.

“The company offered me a bungalow, but I have to find a place to put it.”

During the eviction hearing, the municipality was asked to provide emergency housing for Lolo in Simondium where he currently works. The municipality offered emergency housing at an informal settlement in Simondium, which was rejected by Lolo and his lawyer as the site was already overcrowded and lacked sufficient services.

“Have they [the municipality] seen what that place looks like or know what goes on there?” asked Lolo.

Representing Lolo, attorney Johan van der Merwe said they want the municipality’s housing selection policy — dated 28 October 2014 — declared unconstitutional and invalid.

Van der Merwe plans to argue that this policy precludes farm dwellers from benefiting from the 20% quota set aside for farm workers and dwellers in municipal housing projects.

“The municipality’s practice of relying primarily on money from the provincial government for the provision of emergency housing is unlawful. We want the municipality to be legally obligated to use its own financial resources for emergency housing,” he said.

Gerald Esau, Executive Director of Community Services at Drakenstein Municipality, told GroundUp that as of last week, they were aware of 55 households awaiting placement. He did not say how many people were affected.

The municipality has a budget of R1.2 million available for emergency accommodation. The provincial Department of Human Settlements gave about R12 million to develop a piece of land to house evictees. “The National Department of Rural Development and Land Reform is however the lead government institution to address evictions on farms in terms of the Extension of Security Tenure Act. They must provide legal representation and also secure the permanent tenure [alternative accommodation] of evictees,” he said.

Esau said the municipality’s challenges included availability of funding and of suitable land, and the competing interests of evictees and of the communities where they are to be settled. “In Schoongezicht [in Paarl] for instance, the surrounding communities threatened to invade the site and even to harm the evictees unless they could also be accommodated in the project. The challenge is to find land and to get the buy-in from these communities,” he said.

Colette Solomon, co-director of the Women on Farms Project, in an affidavit to the court, said: “We will show that even from the evidence already on record, the living conditions of persons who are evicted from farms within the municipality’s jurisdiction, fall short of acceptable standards. Worse still, on the municipality’s own version, it has not prioritised the needs of the most vulnerable evictees: women and children. This is despite the constitutional injunction that they do so.”

Solomon believes that the evidence to be presented to the court “shows that the municipality’s failure to provide humane and an acceptable emergency accommodation for those evicted from farms in the manner similar to that of the applicants, violates the right to housing enshrined in the Constitution”.

Reprinted from GroundUp – 2020-02-20. Emphasis/links by SD Law.

Need help with an eviction matter?

Simon Dippenaar & Associates Inc. is a Cape Town law firm with offices in Cape Town, and now Johannesburg and Durban, of specialised eviction attorneys and property lawyers. We uphold the rights of landlords and tenants, including farm workers. Contact Cape Town Attorney for help with your eviction matter on +27 (0) 86 099 5146 or sdippenaar@sdlaw.co.za. One of our Cape Town Eviction Attorneys will contact you right back.

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Mar 30
0

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

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