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Eviction attorney Archives | Eviction Lawyers South Africa

Evicted [squatters]: “The Red Ants broke into … shacks”

By | Eviction news, Homeless

A few days before Christmas, while residents of a farm behind Cradlestone Mall were at work, the notorious Red Ants marched onto the land and tore down their homes [… evicting the squatters].

“They were just breaking down the houses and destroying everything,” says community leader Jeanette Baleni. “It was terrible, I cried that day.”

The farm, in the west of Johannesburg, had been acquired by Absa’s development subsidiary Blue Age Properties 60 Ltd in 2014 and the bank had obtained an eviction order against the residents in 2015. Absa claimed the land had been illegally occupied, but because there was nowhere to move the people to, the eviction order was only acted on in December last year.

“They misled the court,” said human rights lawyer Tracey Lomax, acting for the residents who say they’re the descendants of farm workers on the property for generations.

“They were simply treated like squatters … as if they had moved in illegally the month before,” she said. Lomax explained that once an eviction order is granted, relocating people becomes the responsibility of the municipality – in this case, Mogale City.

Baleni said Absa held meetings with Mogale City about the relocation but had not consulted the residents. “In 2015 the municipality came to tell us we’re illegal occupants,” Baleni said, adding that they paid rent – some for as long as 10 years – through a scheme started by the previous property owner who had a security business.  

“We were renting from Gideon Ntini, from Interactive Security – he brought many of us here. He showed me the place actually,” Clayton Kamurai said, who also denied being an illegal occupant. Interactive Security National Sales Manager Renier de Meyer dismissed the claims.

Absa has denied that the process of eviction was flawed.  “The court went through a process of determining who had what interest in that piece of land before deciding to issue the relocation order. At no point was any such claim made by anyone, that is, from the time Blue Age became the owner of the land and throughout the consultation process,” Absa’s head of Media Relations Phumza Macanda said.

[The municipality] promised us stands, water, electricity and other things.

When contacted for help before the eviction happened, Mogale City councillor Molefi Sebilo told the community they would be moved to another ‘better’ place as soon as possible. A year went by until last October when Selibo informed the residents they were being moved in three weeks. The community drafted a letter to the Department of Rural Development and Land Reform in Pretoria demanding to know why they had been given only a three-week deadline. A November meeting held between the municipality, the community and the department to establish how the relocation was to proceed.

Broken Promises [to evicted squatters]

“[The municipality] promised us stands, water, electricity and other things,” Baleni said. Health-e News has a recording of the meeting where a municipality representative called Tshepiso Ndlovu is heard  saying: “At your new place, we’re going to install tap water, we’re going to give you stands, build toilets with running water and streets.” But according to the community, these were just empty promises. The reality was a disaster.

On 3 December Baleni was told the community would be moved two days later. Instead, the following day while residents were at work, the Red Ants arrived and broke into people’s shacks to move their belongings to the new place. 

“Furniture was broken, our things were stolen – even our money,” Baleni remembered. 

evicted squatters Cape Town
Blame Game: Absa and Mogale City Municipality are pointing fingers at each other for who was responsible for the relocation. (Photo: Health-e News TV Unit)

Blame Game: Absa and Mogale City Municipality are pointing fingers at each other for who was responsible for the relocation. (Photo: Health-e News TV Unit)

The community [and evicted squatters] said toilets only arrived after three days, and were inadequate. They currently share one working chemical toilet amongst 100 people and they have one illegal water connection provided by pitying neighbours and no electricity.

Some [evicted squatters] weren’t given any shelter and had to scrounge for materials in the rain to build a structure for their families. When Health-e News interviewed Mogale City municipality about the promises they made, councillor Selibo said: “I don’t know who promised them that [tap water and toilets]. They [the community] are telling a lie.” However, he admitted that Absa was in a hurry and there should have been proper planning for the relocation.

But Macanda argued this wasn’t Absa’s responsibility, but that of Mogale City which had three years to sort things out. Lomax, who works for Access to Justice and represents the Absa Squatter Camp community, said the treatment of the residents had been unfair. “Poor people are treated as if they don’t have agency … as if you are their father and you will let them know as much as you think they should know,” she said.

Any municipality tasked with eviction is constitutionally obliged to house people properly, Lomax explained. “My clients had strong ties to the land and we’re considering a damages claim.”

And now the neighbours and everyone relying on the water flowing from the wetland adjacent to the newly established informal settlement have been affected by the move. 

Mogale City Municipality has admitted that no environmental impact assessment was done, nor was the Department of Water and Sanitation notified. Residents argue the Absa Squatter Campsite is inappropriate because informal settlements on wetlands that don’t have proper sanitation could pose serious health and environmental hazards.

Human waste causes a high biological load that pollutes the water, water expert Anthony Turton said.  “Because the area is largely basement granite, the boreholes in the area are relatively shallow, about 30m deep,” he explained. “This puts the neighbour’s water at risk of contamination too.” 

The wetland next to the Absa Squatter Camp supplies water to the Crocodile River which feeds into the Hartbeespoort Dam, a strategic water resource. Local farmers are worried about the Absa squatter camp being on the wetland because they fear ecoli contamination of the water they rely on for growing vegetables.

According to Lomax, the municipality only secured the property a couple of months before the relocation. She explains: “That is a problem because wetlands are scarce and heavily protected by environmental legislation. I am astonished they were allowed to do this where there is a wetland nearby.” 

The municipality promised to put  in bulk infrastructure to deal with the poor sanitation. But a visit to the pump station about a kilometre away revealed that it hasn’t functioned properly for five years and overflows into the wetland, causing further pollution.

According Absa, the land was identified by Mogale City Municipality and Blue Age merely facilitated the acquisition and transfer of that land. The bank paid R3.6-million for the land and R3.1-million for the relocation – monies that will be recouped against bulk services at their Cradlestone property.

The [evicted squatters] feels betrayed and has lost hope, said Baleni. “I don’t think [the] Human Rights Commission will agree with the conditions we are living under, I want to see justice.” – Health-e News.

Source: HEALTH-e News (emphasis by Eviction Lawyers, SDLAW*)

*Cape Town Lawyers, Simon Dippenaar & Associates, Inc., is a law firm in Cape Town CBD of specialised eviction lawyers offering legal help to landlords and tenants regarding residential, commercial and farm evictions. Now helping clients in Gauteng and Kwazulu Natal.

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.