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.
  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.

 

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.

 

Arial view of Marikana settlement in Cape Town.

Marikana settlement – Landmark judgement appealed

By | Evictions

Marikana settlement near Cape Town International Airport.

 

A landmark judgement in the Western Cape at the end of August this year dismissed an application to evict occupants from the so-called Marikana settlement near the Cape Town International Airport and ordered the City of Cape Town to negotiate a purchase price to buy the land or expropriate the land instead. Copper Moon Trading, the owner of Erf 149, Phillipi, has now appealed to have these rulings overturned.

 

It is asking for the State to either purchase the property at its market-related value, as determined by an arbitrator, or pay Copper Moon damages to the same value. Alternatively, Copper Moon is seeking to have the occupiers evicted and for these costs to be borne by the State.

 

Marikana settlement

 

The City of Cape Town has applied for leave to appeal.

Simon Dippenaar & Associates with the assistance of Adv Ralph Kujawa, acting pro bono on behalf of the approximately 10 000 unlawful occupants of Erf 149, part of the Marikana settlement, has called on the Court to refuse the appeal with costs. A costs order in favour of indigent litigants is not unprecedented and has been supported in previous judgements to encourage attorneys to take on more pro bono work. It also sends a strong message to applicants that they could have costs awarded against them even if their opponents are not incurring legal costs.

 

“The State has not provided alternative housing plans and the eviction of so many people would create a humanitarian disaster. This is unacceptable in a constitutional democracy such as ours where, in terms of the Constitution, the Government is required to protect the property rights of its citizens and to provide housing. Eviction is not only unrealistic, it is unthinkable,” says Simon Dippenaar. “We have to strike a balance between the constitutional rights of the property owners and the occupiers.”

 

Dippenaar and Kujawa, who officially went on record at the Constitutional Court at the end of October, are championing the human right to housing and protection for the most vulnerable in society, including the Marikana residents.

 

The case forces government to face up to the plight of the homeless and highlights the extreme poverty and desperation of many South Africans. An estimated 60 000 people have been living on the 40-hectare Marikana land since 2013. They have nowhere else to go.

 

 

About Simon Dippenaar & Associates

Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

 

Simon’s dedication, diplomacy and compassionate approach extend from Family Law to each of his fields of expertise and have earned him a reputation for cracking cases where his competitors have failed. His associates are appointed for their skills specific to their areas of practice.

 

Simon is committed to serving his community and the less fortunate, increasing access to justice by making legal expertise available to deserving cases. He is on record in one of South Africa’s biggest mass eviction cases in Marikana, representing, pro bono, the unlawful occupiers and their constitutional right to adequate housing.

 

Learn more about Simon Dippenaar

Lease Agreement Template South Africa

Lease Agreement Template – Free Download

By | Lease Agreement | No Comments

Lease Agreement Template Free Download

You have rented out your property but now, for whatever reason, you wish to return and take up occupancy. Are you within your rights as the property owner to remove the tenant, and what do you do if they refuse to vacate?

 

What to do if you want to move back into your property while your tenant still has occupancy

There are two issues to consider. Firstly, your tenant is the current lawful inhabitant and you want to serve a notice to quit, so that you can resume occupancy. The process for this is straightforward. Secondly, what if the tenant refuses to leave, despite due legal process of eviction having been followed? This is a different and more complicated scenario. Let’s look at each in turn.

 

Lawful eviction

To some extent, your rights as landlord depend on what is in the lease agreement. (We’ve written before about the importance of having a written lease. See Tips for a happier tenancy and The Consumer Protection Act and rental agreements.) Under PIE, your tenant is protected against illegal eviction. The Consumer Protection Act (CPA) provides a further layer of protection. In terms of the CPA a tenant is protected for the full term of the lease if there is no material breach on their part. The landlord can cancel the lease if there is a material breach of contract by giving 20 business days’ notice of the breach; but the landlord must give the tenant the opportunity to remedy the breach. Provided they do so, you don’t have the right to evict the tenant and move back in until the end of the contract.

However, when drawing up the lease, it is permissible to include a clause allowing the landlord to cancel the lease, with two months’ notice, if the landlord elects to sell the property or move back in. If the tenant agrees to this clause and signs the contract, then there does not need to be a material breach for the landlord to give notice of eviction, nor is the landlord in breach of any aspect of the tenant’s rights. Without this clause, the tenant is protected upon the sale of the property and the sale can have no impact on the tenant’s right to hold the lease until it expires.

So if you are drawing up a lease agreement for a new tenant and you think you may wish to sell the property in future or resume occupancy for your own purposes, it’s probably wise to include a clause of this nature. But what if you have existing tenants and you have legally given them notice to quit the property, within the terms of the lease and the CPA (perhaps there has been an unremedied breach), and they won’t budge? This is a different situation altogether. What can you do?

 

Unlawful occupancy

At this stage the tenant becomes an unlawful occupier. If you have cancelled the lease lawfully you are entitled to move back into your property, even if the unlawful occupier remains on the premises – effectively cohabiting (whether you would want to do this or not is a different matter). The situation can deteriorate and may result in unpleasant consequences for the landlord, even if there is no misconduct. A tenant with nowhere else to go may behave in a desperate manner, even laying charges of theft, harassment or intimidation against the landlord. Or they may insist the landlord find them alternative accommodation. However, it is not the landlord’s responsibility to re-house the tenant, and this has been tested in the courts.

In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the court found that the property owners’ rights, under the Constitution, should be balanced with those of the occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation.

This ruling notwithstanding, if you are in this trying situation, it is not enough to know you are in the right, legally. You may need professional help to reclaim your property. You certainly don’t want to find yourself defending an unsubstantiated accusation of harassment, nor do you want to be share your home indefinitely with someone you didn’t invite.

 

We can help with evictions and your lease agreement

SD Law & Associates are experts in property law and we have vast experience of helping landlords and tenants alike reach satisfactory resolution on a wide range of property disputes, including evictions. Let us help you today with your eviction dispute and lease agreement. Contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za.

 

Lease Agreement – Free Download

Lease Agreement Template – Click here (Right click to save PDF)

 

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Original article taken from SDLaw.co.za