eviction order 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:

Appeal of an Eviction Order

By | Appeal of an eviction order, Eviction law case summaries

CASE SUMMARY by Simon Dippenaar & Associates Inc.*

Tadvest Industrial (Pty) Ltd / Hanekom and Others (Case no.: 83/2018)

In the Supreme Court of Appeal of South Africa

Appeal eviction order - Eviction Lawyers South Africa
Source: IOL

The Magistrates Court for the District of Stellenbosch granted orders for the eviction of the Hanekom family and the Jacobs family from a property situated in Stellenbosch. In both cases, the Magistrates Court, in addition to granting the eviction orders, ordered that the landlord pay the sum of R80,000.00 to each family in order to assist them in relocating and acquiring alternative accommodation. The families were ordered to vacate the premises within 90 days of payment of the aforementioned amount. The landlord appealed against the orders for payment, in both matters, to the Land Claims Court (LCC). The families cross-appealed against the orders for their eviction.

The LCC dismissed the landlords appeal but upheld the cross appeal, which had the effect of setting aside the eviction orders. The landlord then applied for and was granted leave by the LCC to appeal to the Supreme Court of Appeal in both matters. The appeals were subsequently struck from the roll as the court did not have jurisdiction to decide on the merits of the matter.

The court found that the provisions of section 16 of the Superior Courts Act read with section 19 determines the jurisdiction of the SCA to hear appeals from the High Court. Section 16(1)(c) of the Act provides for an appeal against any decision of a ‘court of a status similar to the High Court’. The LCC was found to be one such court. However, the LCC powers are limited to those possessed by a High Court having jurisdiction in civil proceedings. The Court found that because the High Court sitting as an appeal court lacks the power to grant leave to appeal to the SCA, as the special leave of the SCA is required in terms of s 16(1)(b) of the Act, the LCC also lacks the power to do so.

Where the LCC acts as an appeal court in respect of an eviction order granted by the Magistrates’ Court, an appeal only lies to the SCA with the special leave of this court. Therefore, the LCC sitting as an appeal court does not have the power to grant leave to appeal to the SCA. As such, the court had no jurisdiction to hear the appeals and the appeals were struck from the roll.

As featured on IOL.co.za

Further reading:

*Simon Dippenaar & Associates Inc. are a firm of specialised eviction lawyers based in Cape Town and Gauteng, operating nationally.

Eviction Orders: Rescission

By | Eviction law case summaries, Eviction orders

Eviction orders | Case Summary by Simon Dippenaar & Associates Inc., a law firm with eviction lawyers based in Cape Town and Gauteng

Eviction orders will be rescinded where courts fail to take into acccount the personal circumstances of occupiers. Read more here.

The Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele,

Case no.: 102/09 and 499/09, In the Supreme Court of Appeal

The appellants were are a group of people who occupied certain property in Johannesburg. The appellants brought two appeals before the court, namely (1) against an order of eviction that was granted by default and (2) against the dismissal of an application for rescission of the order of eviction.  

The appellants occupied the property in terms of oral agreements of lease and, according to the respondent, their tenancy was on a periodic monthly basis and the monthly rental was R1,239.00 per flat and R266.00 per room. The respondent alleged that the property had become overcrowded and run-down and, as such, he elected to terminate the leases so that he could renovate the property.

The respondent gave the appellant’s notice of the termination of the respective leases and they were given three months, until 31 January 2008, to vacate. None of the appellants vacated and, accordingly, the respondent instituted eviction proceedings against them during April 2008. The appellants failed to oppose the eviction, which resulted in an order for their eviction on 18 June 2008. The appellants subsequently applied for rescission of the eviction order.

In order to be successful in an application for rescission, applicants are required to show good cause. They must give a reasonable explanation for the default and show that they have a reasonable defence to the claim, which, prima facie, has some prospect of success.

The appellants alleged that approximately 70 people resided on the property, of which there were children, disabled persons and woman-headed households. They stated that they had searched for alternative accommodation but could not find anything that they could afford.

The appellants, upon receiving the eviction notice, claimed that they had sought assistance from the Inner City Resources Centre (ICRC), a non-governmental organization which provides assistance to people who are threatened with eviction, and believed that the ICRC would take the necessary steps to oppose the application. The appellants believed that the ICRC would appear in court on their behalf on 17 June 2008.

The court found that the appellants clearly intended to oppose the matter but that they failed to appear in court because they bona fide believed that they would be represented, which they weren’t. Therefore, the court found that they were not in wilful default.

Section 4(6) and 4(7) of PIE provide that a court may only grant an eviction order if it is just and equitable to do so, after considering all the relevant circumstances. The court is obliged to consider the rights and needs of the elderly, children, disabled persons and households headed by women. The court must also have regard to the availability of alternative land.

In Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd & others [2009] 4 All SA 410 (SCA), the court held that “where information relating to these matters is not placed before the court, the court will not be in a position to consider these circumstances in determining whether the eviction was just and equitable.”

The court found that, as the information relating to the needs of the elderly, children, disabled persons and households headed by women was not placed before the court, the court was not in a position to have regard to all of the relevant circumstances. The court also did not have the views of the municipality, which could best inform the court of alternative accommodation available. It was found that the High Court had failed to comply with the mandatory provisions of section 4 of PIE.

The High Court should have taken steps to ensure that it was appraised of all relevant information in order to enable it to make a just and equitable decision. Generally speaking, it will not be just and equitable to grant an eviction order where the effect of such an order would be to render the occupiers homeless.

The court held that having regard to the personal circumstances of the occupiers, and the possibility that their eviction could lead to homelessness, the appellants established a bona fide defence that had some prospects of success.

Accordingly, the default judgment, which was granted against the occupiers on 18 June 2008, was rescinded and the appellants were granted leave to oppose the application for their eviction.

Further reading: