Tag

ESTA Archives | Eviction Lawyers South Africa

Our farm had to evict people: It was lawful and justified

By | Eviction news, Farm evictions

Francina Petersen was dismissed for chronic absenteeism and offered alternative accommodation

Reprinted from GroundUp – 2020-03-12, by Lance Bouma

I was astonished to read in GroundUp that Francina Petersen, who had worked on our farm, Anura Vineyards, as a more absent then present bottle packer for five years and was dismissed for chronic absenteeism, “helped build the farm into the multi-million rand enterprise that it is today, boasting a winery, cheese factory, beer brewing, jam-making, wedding venue and restaurant”.

Eviction lawyers

The author, one of the owners of Anura Farm in the Cape Winelands, writes that a high profile eviction was done lawfully and justifiably. Photo supplied

I’m afraid Francina Petersen is not exactly truthful here. Perhaps because she is a tad jealous of her husband Chris who is the true entrepreneur of the Petersen family. Chris and Francina’s father, Marthinus Cupido, were arrested and charged with theft of diesel, which they were allegedly reselling on the farm.

I’ve no doubt that Barbara Maregele’s heartbreaking story of another victimised, vulnerable farm worker tossed on to the streets with her children would have even your most hardened reader reaching for the tissues. But they’ll be pleased to know that underneath Francina’s tearful exterior there is a steely resolve.

Francina told the Sheriff, in no uncertain terms, that she did not want to be taken to the alternative accommodation provided by me in La Rochelle but wanted to be dumped on the street outside our farm. This was so that she could get the maximum amount of media publicity. You have to admire her. She was prepared to camp outside, night after night with her husband and children for the greater good of the Petersen family.

But she was not alone. The community led by Carmen Louw of Women on Farms rallied around her “angered by yet another family on a farm left destitute by an eviction”. Some, of course, may argue that Chris Petersen’s substantially higher salary in the construction sector as an earthmoving operator doesn’t exactly qualify him as destitute.

Women on Farms’s director Colette Solomon, who is no slouch when it comes to exaggeration, claims that “they were concerned that the farm owners were trying to evict the rest of the Petersen’s family including her father and brother”.

In fact, Marthinus voluntarily moved off our farm two years ago and lives with his daughter in Klapmuts. He worked for Anura from 1989 to 2014 and on that basis Anura provided him with a house. His belongings remain undisturbed in the house as they did two years ago when he left the farm and moved to Klapmuts. Her brother, Jonathan, is still working on Anura.

In accordance with the rule of law in which — astonishingly, not only the farmworker but the farmer has rights — the Paarl Magistrates’ Court and Land Claims Court weighed the evidence and competing rights of the Petersens and the Boumas and granted an eviction order against the Petersens on 15 October 2019. This gave the Petersens just under four months, until 7 February 2020, to find alternative accommodation.

The Petersens, in accordance with their contractual agreement, which gave them a house as long as they were employed on the farm were evicted (after refusing to move out) to accommodate farm workers who are currently employed on the farm, and who are in need of housing.

Lance Bouma is one of the owners of Anura.

Chris Petersen denied the allegation of diesel theft.

Views expressed are not necessarily GroundUp’s.

Some links added by SD Law.

Eviction specialists

There are two sides to every story, as this article shows, and at SD Law we are expert eviction attorneys who weigh up all the facts, on both sides. We are eviction lawyers in Cape Town and Johannesburg, and we believe the landlord-tenant relationship should be built on trust. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. If you  need help with an eviction, either as landlord or tenant, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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.