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Diedericks v Univeg Operations South Africa (Pty) Ltd t/a Heldervue Estates (LCC18/2011) [2011] ZALCC 11 (23 August 2011)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

IN RANDBURG


CASE NO: LCC18/2011


Heard on 9 May 2011 before Gildenhuys J & Kahanovitz AJ

Judgment delivered 23 August 2011



In the matter between:


HERMAN DIEDERICKS ….........................................................................Appellant

and



UNIVEG OPERATIONS SOUTH AFRICA (PTY) LTD

T/A HELDERVUE ESTATES ….............................................................Respondent







JUDGMENT

Kahanovitz AJ

1. This appeal against the order of the Honourable Magistrate P L Grundlingh which was handed down in the Piketberg Magistrates' Court on 26 August 2010 was heard in the Land Claims Court held in Cape Town.


2. The Appellant seeks condonation for the late filing of his appeal and briefly stated, seeks an order setting aside the eviction order handed down by the Magistrate as he submits that it was not just and equitable in the circumstances. The respondent seeks confirmation of the order and suggests dire consequences for all farmers should I decide otherwise. Both agreed that this matter is one governed by the Extension of the Security of Tenure Act ('ESTA'), 62 of 1997.


3. I have considered this matter and for the reasons set out hereunder, I will order that the eviction order be set aside, and that the matter be remitted to the Magistrates' Court so that the parties can engage as required in terms of the Constitutional Court decisions discussed hereunder. In this regard I have taken note of the Constitutional Court's decisions referred to by counsel and other judgments in that Court's consideration of section 26 of The Constitution of The Republic of South Africa1 (herein referred to as 'the Constitution') and its impact on the eviction of people from their homes. The Courts have interpreted the section in such way that, save in certain circumstances, no eviction order should be granted without there having been engagement. This Constitutional Court approach has received significant academic recognition2 and this Land Claims Court has recently also required engagement3 by the parties.

4. The history of the matter is almost entirely common cause and can be summarized as follows:

4.1. The Appellant started work on Respondent's farm during 1997, but after 4 February 1997, thus excluding the provisions of Section 10 of ESTA from consideration.

4.2. He and his family lived in a house on the farm from 1997 as part and parcel of his employment contract - and thus were "occupiers" in terms of ESTA.

4.3. He was dismissed on 24 June 2009. At that time he, his wife and their 3 children - one an employed adult, one in matric and a third at primary school - were living in the house.

4.4. He challenged the dismissal and referred the dispute to the Commission for Conciiiation, Mediation and Arbitration ('the CCMA') in terms of the Labour Relations Act.4

4.5. He and the respondent reached an agreement with regard to the labour dispute at the CCMA on 26 August 2009 and thus it was common cause that he had been "dismissed in accordance with the provisions of the Labour Relations Act"5.

4.6. After he and his family refused to vacate the premises, the Respondent brought an application for their eviction, that application being issued on 25 March 2010 out of the Magistrates' court at Piketberg under case number 175/10.

4.7. The application for eviction was argued at the Magistrates' Court in Piketberg on 26 August 2010 and the eviction order6 was granted that day in terms of which they were to leave the premises by 30 November 2010, failing which the sheriff was directed to evict them on 3 December 2010.

4.8. The record of the proceedings was forwarded to the Land Claims Court in terms of Section 19(3) of ESTA on 14 September 2010. On 14 October 2010 Acting Justice Mpshe ('Mpshe AJ') confirmed the eviction, the Land Claims Court having received the documents on 11 October 2010.

4.9. On 14 October 2010 the Registrar of the Land Claims Court faxed the decision of Mpshe AJ to Piketberg, but it is common cause that this notice was not sent to the Appellant or his then attorney of record.

4.10. On 24 November 2010 concerned that he had not yet heard the outcome of the review and worried that they were facing eviction on 3 December 2010, the Appellant consulted with the law clinic at Lawyers for Human Rights, his current attorneys of record.

4.11. On 25 November 2010 Lawyers for Human Rights advised the Appellant to lodge an appeal and after certain exchanges between attorneys for the Appellant and the Respondent a notice of appeal was lodged on 3 December 2010; reasons received from the presiding Magistrate on 7 December 2010; an amended notice of appeal lodged on 10 February 2011 and the Appellant's notice of motion seeking condonation for the late filing of the appeal , served on the Respondent's attorneys on 11 February 2011, and filed at the Land Claims Court on 18 February 2011.


4.12 Accordingly, by the time this appeal was heard the Appellant and his family had occupied their home for 14 years - and face eviction to an uncertain future with no assurance of a new home to live in.


5. Section 26 of the Constitution provides as follows:
"Housing.—

(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) 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."


6. Parliament has, in ensuring the realization of this right, enacted ESTA and other
legislation, including the Prevention of the Illegal Eviction from and Unlawful
Occupation of Land Act7 ("PIE"), and the Housing Act.8 In this, parliament has
sought to limit homelessness and thus "respected, protected, promoted and
fulfilled"9 the right of access to housing. These enactments considered together with the Bill of Rights and Court interpretations show a significant shift in the relationship between any land occupier (lawful or unlawful) and owner, and between them and the public authority from the pre-constitutional days to one where these respective parties can rely on their new constitutional and statutory rights and obligations . Prof v d Walt in his seminal work noted this as:



".. . to move away from a static, typically private-law conceptualist view of the constitution as a guarantee of the status quo to a dynamic, typically public-law view of the constitution andas an instrument for social change and transformation under the auspices of entrenched constitutional values."10

7.Section 26(3) of the Constitution requires the Court to "consider all relevant circumstances". ESTA prescribes several factors (which I will revert to at a later stage) that must be amongst the relevant circumstances requiring the court's consideration. The Appellant has argued that as a consequence of this intended limitation of homelessness there can, in the absence of proof of the availability of alternative accommodation, be no eviction order The Respondent argues that if this factor trumps others it will constitute a breach of the property rights of the owner of the farm . He suggests that this factor is but one of many in a basket of factors mentioned in ESTA. It should not be a conclusive or determining factor. I am of the view that a balance is required informed inter alia by the rights to property11 and of access to housing.12 This I believe is the manner of properly balancing the many factors in ESTA viz by understanding them in terms of the broad constitutional matrix.

8. ESTA doesn't mean that evictions are to be near impossible save where alternative land is available from a local authority joined in every dispute .That would not allow a balancing of the rights (to housing, family life and dignity) and interests of a vulnerable ex-farm employee, some short-term, some many years in employ and who have never had a town base from which to join a housing waiting list, with the rights of a hard pressed landowner who may well need the house for new and skilledemployees necessary for ensuring the sustainability of the farm, The Constitutional Court has in recent years had to consider several housing rights matters dealing with the balancing of these rights in evictions and I turn now to those decisions binding on this court in respect of aspects facing us in this appeal. While many of the Constitutional Court decisions were considered in matters governed by the PIE13 , their deliberations were in the context of the access to housing right as contained in section 26 of the Constitution and are accordingly also applicable here, where the Appellant and his family face eviction



The Constitutional Court has in the Grootboom14 decision analysed the many pressures facing poor occupants and government authorities in the realisation of the housing rights and required of the authorities "policies and programmes (that) must be reasonable both in their conception and implementation"15. In subsequent decisions the Court has had to grapple with establishing if this exists in the circumstances of each case. To this end, the Constitutional Court has devised processes based on interaction between the parties concerned to inform its decision and what the Court should do if such information is not available.



9. The Constitutional Court in bringing about the shift referred to by Professor vd Walt16 has considered the balancing between these rights and in a series of cases has considered the relevant statutes and the "relevant circumstances" as required in terms of Section 26(3) of the Bill of Rights. The "relevant circumstances" have in all matters to date required some form of consultation, mediation or meaningful engagement with the authorities. In these cases the Constitutional Court has alsorequired a more active judicial approach which I will take into account. An overview of some of these decisions, including those referred to by counsel, follows:


9.1 In Port Elizabeth Municipality v Various Occupiers ('PE Municipality') the local authority sought in an application in terms of PIE, to evict 68 unlawful occupiers from private land, of whom 23 were children. The SCA17 held that in the absence of the municipality being able to prove that the alternative land proposed for them was actually available, it was not entitled to an eviction order. In dismissing the Municipality's appeal the Constitutional Court18 was particularly concerned about the absence of consultation between the parties. Although Sachs J did not formulate consultation or mediation as an absolute requirement, he held that absent special circumstances, "it would not ordinarily be just and equitable to order eviction if proper discussions and, where appropriate, mediation, have not been attempted".19


9.1.1 Sachs J, after considering the historical and oppressive position that existed under the now repealed Prevention of Illegal Squatting Act 52 of 1951, stated20:



"Thus, the former depersonalised processes that took no account of the life circumstances of those being expelled were replaced by humanised procedures that focused on fairness to all. People once regarded as anonymous squatters now became entitled to dignified and individualised treatment with special consideration for the most vulnerable. At the same time the second part of the title established that unlawful occupation was also to be prevented. The courts now had a new role to play, namely, to hold the balance between illegal eviction and unlawful occupation. Rescuing the courts from their invidious role as instruments directed by statute to effect callous removals, the new law guided them as to how they should fulfil their new complex and constitutionally ordained function: when evictions were being sought, the courts were to ensure that justice and equity prevailed in relation to all concerned.




The broad constitutional matrix for the interpretation of PIE

In this context PIE cannot simply be looked at as a legislative mechanism designed to restore common-law property rights by freeing them of racist and authoritarian provisions, though that is one of its aspects. Nor is it just a means of promoting judicial philanthropy in favour of the poor, though compassion is built into its very structure. PIE has to be understood, and its governing concepts of justice and equity have to be applied, within a defined and carefully calibrated constitutional matrix.



As with all determination about the reach of constitutionally protected rights, the starting and ending point of the analysis must be to affirm the values of human dignity, equality and freedom..."



9.1.2. And then he expanded as follows on the Constitutional requirements in respect of all evictions21:



"There are three salient features of the way the Constitution approaches the interrelationship between land hunger, homelessness and respect for property rights. In the first place, the rights of the dispossessed in relation to land are not generally delineated in unqualified terms as rights intended to be immediately self-enforcing. For the main part they presuppose the adoption of legislative and other measures to strengthen existing rights of tenure, open up access to land and progressively provide adequate housing. Thus, the Constitution is strongly supportive of orderly land reform, but does not purport to effect transfer of title by constitutional fiat. Nor does it sanction arbitrary seizure of land, whether by the State or by landless people. The rights involved in section 26(3) are defensive rather than affirmative. The landowner cannot simply say: this is my land; I can do with it what 1 want, and then send in the bulldozers or sledgehammers.

A second major feature of this cluster of constitutional provisions is that through section 26(3) they expressly acknowledge that eviction of people living in informal settlements may take place, even if it results in loss of a home.

A third aspect of section 26(3) is the emphasis it places on the need to seek concrete and case-specific solutions to the difficult problems that arise. Absent the historical background outlined above, the statement in the Constitution that the courts must do what courts are normally expected to do, namely, take all relevant factors into account, would appear otiose (superfluous), even odd. Its use in section 26(3), however, serves a clear constitutional purpose. It is there precisely to underline how non-prescriptive the provision is intended to be. The way in which the courts are to manage the process has accordingly been left as wide open as constitutional language could achieve, by design and not by accident, by deliberate purpose and not by omission,

in sum, the Constitution imposes new obligations on the courts concerning rights relating to property not previously recognised by the common law. It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant right not arbitrarily to be deprived of a home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case". (Own emphasis.)


9.1.3 The Court furthermore enunciated the following principles in respect of


evictions22:


"The phrase "just and equitable" makes it plain that the criteria to be applied are not purely of the technical kind that flow ordinarily from the provisions of land law. The emphasis on justice and equity underlines the central philosophical and strategic objective of PIE. Rather than envisage the foundational values of the rule of law and the achievement of equality as being distinct from and in tension with each other, PIE treats these values as interactive, complementary and mutually reinforcing. The necessary reconciliation can only be attempted by a close analysis of the actual specifics of each case.

The court is thus called upon to go beyond its normal functions, and to engage in active judicial management according to equitable principles of an ongoing, stressful and law-governed social process. This has major implications for the manner in which it must deal with the issues before it, how it should approach questions of evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it might make. The Constitution and PIE require that in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result."



9.1.4 Finally the Court analysed the role of the local authority - more recently confirmed and expanded upon by the SCA in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another23 ('Blue Moonlight')- and stated24:




"In considering whether it is "just and equitable" to make an eviction order in terms of section 6 of the Act, the responsibilities that municipalities, unlike owners, bear in terms of section 26 of the Constitution are relevant. As Grootboom indicates, municipalities have a major function to perform with regard to the fulfilment of the rights of all to have access to adequate housing. Municipalities, therefore, have a duty systematically to improve access to housing for all within their area. They must do so on the understanding that there are complex socio-economic problems that lie at the heart of the unlawful occupation of land in the urban areas of our country. They must attend to their duties with insight and a sense of humanity. Their duties extend beyond the development of housing schemes, to treating those within their jurisdiction with respect. Where the need to evict people arises, some attempts to resolve the problem before seeking a court order will ordinarily be required."


9.2. In Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg25 ("Olivia Road" ) the City of Johannesburg sought to evict occupiers from privately owned derelict city centre buildings by invoking section 12(4)(b) of the National Building Regulations and Building Standards Act.26 Here the Constitutional Court - even though the matter had already been considered by two other courts - issued what has become known as an interim engagement order prior to handing down judgment.



9.2.1. The Court in Olivia Road held that the absence of any engagement or an unreasonable response by a municipality in the engagement process would ordinarily be a weighty consideration against the granting of an eviction order. They accordingly issued an interim engagement order directing the City and the occupiers to "engage with each other meaningfully" in an effort to resolve their differences. They stated as follows:




"Two days after the application for leave to appeal was heard, this Court issued an interim order aimed at ensuring that the City and the occupiers engaged with each other meaningfully on certain issues. That order was in the following terms-

1. The City of Johannesburg and the applicants are required to engage with each other meaningfully and as soon as it is possible for them to do so, in an effort to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned.

2. The City of Johannesburg and the applicants must also engage with each other in an effort to alleviate the plight of the applicants who live in the two buildings concerned in this application by making the buildings as safe and as conducive to health as is reasonably practicable.

3. (Rest omitted,)"27




9.2.2 In reaching this decision to issue an engagement order the court was implementing in part the role for courts outlined in PE Municipality and then commented on the role of the local authority as follows:28

"It became evident during argument that the City had made no effort at all to engage with the occupiers at any time before proceedings for their eviction were brought. Yet the City must have been aware of the possibility, even the probability, that people would become homeless as a direct result of their eviction at its instance. In these circumstances those involved in the management of the municipality ought at the very least to have engaged meaningfully with the occupiers both individually and collectively".


9.2.3 In regard to the constitutional obligation to and purpose of engaging the court stated29


"And, what is more, section 26(2) mandates that the response of any municipality to potentially homeless people with whom it engages must also be reasonable. It may in some circumstances be reasonable to make permanent housing available and, in others, to provide no housing at all. The possibilities between these extremes are almost endless. It must not be forgotten that the City cannot be expected to make provision for housing beyond the extent to which available resources allow. As long as the response of the municipality in the engagement process is reasonable, that response complies with section 26(2). The Constitution therefore obliges every municipality to engage meaningfully with people who would become homeless because it evicts them. It also follows that, where a municipality is the applicant in eviction proceedings that could result in homelessness, a circumstance that a court must take into account to comply with section 26(3) of the Constitution is whether there has been meaningful engagement." (Own emphasis.)




9.2.4 It made it clear later that30:


"This Court made the interim order because it was not appropriate to grant any eviction order against the occupiers, in the circumstances of this case, unless there had at least been some effort at meaningful engagement. It was common cause during argument that there had been none. The ejectment of a resident by a municipality in circumstances where the resident would possibly become homeless should ordinarily take place only after meaningful engagement. Whether there had been meaningful engagement between a city and the resident about to be renderedhomeless is a circumstance to be considered by a court in terms of section 26(3).



It follows that the Supreme Court of Appeal should not have granted the order of ejectment in the circumstances of this case, in the absence of meaningful engagement."





9.3 In Joe Slovo31 the judges in separate judgments differed as to when and how much engagement had taken place or was necessary32 but concurred in their order not only that there had to be alternative temporary accommodation for evictees of a prescribed minimum standard but that there had to be engagement regarding the details of the relocation. The order included the following provisions33:




"The applicants are ordered to vacate the Joe Slovo Informal Settlement ("Joe Slovo"). . . The order to vacate is conditional upon and subject to the applicants being relocated to temporary residential units situated at Delft or another appropriate location on the conditions.

The applicants and the respondents are ordered, through their respective representatives, to engage meaningfully with each other with a view to reaching agreement on the following issues:

5.1. a date upon which the relocation will commence ...

5.2. a timetable for the relocation process ...

5.3. any other relevant matter upon which they agree to engage.


■ ■ ■ i

The respondents are ordered to provide alternative accommodation in the form of temporary residential units to those applicants who vacated Joe Slovo."

9.4. There followed several months during which the state parties only were required to report to the Court on developments at Joe Slovo, and then after instructing a set of reports from all parties and further heads of argument the Constitutional Court gave a further judgment34 in which it rescinded the eviction order. The Court found that the engagement as ordered had not taken place - and as that meant that the provisions of Section 26(3) of the Constitution were no longer satisfied the supervisory eviction order was no longer in the circumstances of the case, competent35

9.5. Finally I turn to the Constitutional Court's approach as set out in President of the RSA & another v Modderklip Boerdery (Pty) Ltd (Agri SA & others, amici curiae)36. In that matter the private landlord obtained an eviction order against approximately 40 000 unlawful occupants. The occupants were unable to persuade the SCA to grant them condonation for the late filing of an appeal - and that Court and later the Constitutional Court accordingly considered the appropriate constitutional approach in a matter where a private land owner in possession of a valid eviction order found that it was incapable of being implemented against unlawful occupants, inter alia because the local authority was unable to provide the potential evictees with alternative accommodation. The Court - because of this breach of the owner's rule of law rights - ordered that the landlord be paid compensation. Professor Liebenberg comments on the Court's approach as follows:


"The remedy granted by the Supreme Court of Appeal was substantially upheld by the Constitutional court. The State was required to compensate the landowner for the occupation of its property, such compensation to be calculated on the basis of s 12(1) of the Expropriation Act 63 of 1975. Similarly, the order expressly declares 'that the residents areentitled to occupy the land until alternative land has been made available to them by the state or the local or provincial authority1.

All three judgments in the Modderklip case confirm that the State may not abdicate its responsibilities in a dispute between private parties where important constitutional rights are threatened and State intervention is required for their protection."37


9.6. This Court has considered many ESTA eviction matters. Recently in Lebombo Cape Properties (Pty) Ltd v Awie Abdol and Others38 it had to consider an appeal against a refusal of an eviction order by the Paarl Magistrates' Court of 35 Respondents from their extremely unhealthy homes on a farm. The LCC recognized that "Over the last 12 years the successive owners of the property have been engaging the Drakenstein Municipality in order to achieve the relocation of the Respondents."39 At paragraph 28 the Court noted that in refusing the eviction application that "Effectively what the Magistrate has done is remove from the shoulders of the state the constitutional obligation of providing housing for the Respondents, and place it on the shoulders of the Appellant. This burden cannot be shifted onto private landowners." What was now required the court held was "to ensure, insofar as it may be possible that the Respondents concerned are not rendered roofless by their eviction."40 The Court then ordered the applicant occupiers and local authority notwithstanding the earlier engagement to "engage with each other meaningfully as soon as possible on the provision of emergency housing for the occupiers after they have vacated the property."41


10. All decisions in these matters dealing with evictions - whether they be evictions carried out in terms of PIE (PE Municipality, Joe Slovo) or whether they be in terms of the National Building Regulations and Building Standards Act (Olivia Road) or ESTA Lebombo) or whether they be on private property (Olivia Road, PE Municipality, (Lebombo) or on state land (Joe Slovo), point to a requirement that there must be engagement by the parties. The engagement is clearly directed at informing the parties concerned and the local authority (even if not a party) in a manner so as to limit homelessness -accordingly in most cases an eviction order would not be competent in the absence of some form of engagement . The courts have depending on the circumstances set aside the eviction order or, while confirming it, suspended it to enable the engagement to take place. In PE Municipality, absent engagement the Constitutional Court decided not to remit the matter to the High Court and set aside the eviction order. In Joe Slovo the Constitutional Court confirmed the eviction order but amended it in such a way that engagement was necessary. The Court later suspended and eventually discharged the eviction order as they held that the engagement ordered by the Court had not taken place.

11. In light of the above Constitutional Court decisions it now appears as settled law that in determining the relevant circumstances to satisfy Section 26 (3) of the Constitution a Court must establish if there has been engagement. It is accordingly not a question as to whether there should be joinder or not as argued by the Appellant, but it is clear that (save exceptional circumstances) that absent meaningful engagement no eviction ; if there has been a refusal to engage joinder may be a competent alternative route ; or as in the PE Municipality decision the Court in the absence of proof of engagement considered ordering mediation,42 but those are issues what to do in the absence of engagement. I accordingly, do not accept the Appellant's submission that where an eviction might lead to homelessness the municipality having jurisdiction is a necessary party and must be joined .

12. The cases referred to above see the development of meaningful engagement based on an interpretation of Section 26 of the Constitution and accordingly it applies not only to evictions where a public authority governed by administrative law is involved but to all evictions from homes - and this is understandable because many evictions from homes (not only those governed by PIE ) will result in people being homeless in areas where the courts have confirmed that the duties of the municipality will "extend. . . to treating those (evictees) within their jurisdiction with respect"43 and to fulfilling the constitutional obligations in respect of the right of access to housing.

13. In light of these dramatic shifts in the relationship between landowner and occupier in our law I now turn to consider the position in regard to ESTA. ESTA prescribes both procedural and general requirements for the fairness of evictions. In this matter the procedural requirements have not been disputed 44 In particular it has been agreed that there has been compliance with the provisions of Section 8(2) and that the termination of the right of residence was not an issue. The dismissal dispute was settled at the CCMA. Accordingly, reading sections 8(2) and (3) of ESTA together, meant that thetermination of the right of residence took effect once the dismissal dispute was settled at the CCMA.



14. Once the Appellant and his family didn't vacate their home, these proceedings as provided for in ESTA45 were instituted. The Respondent
having complied with all the procedural requirements, the Court needs to
"have regard to

(a) the period that the occupier has resided on the land in question;

(b) the fairness of the terms of any agreement between the parties;

(c) whether suitable alternative accommodation is available to the occupier;

(d) the reason for the proposed eviction; and

(e) the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land."46



in determining if an eviction order would be "just and equitable".



15. If after considering these factors and other relevant circumstances the Court, grants an eviction order, the Act then requires it to determine two dates one
by which the Respondent should have left and then a date "on which an
eviction order may be carried out if the occupier has not vacated the land" by
the earlier date,47




16. In determining a date the Act states:



"In determining a just and equitable date the court shall have regard to all relevant factors, including-

(a) the fairness of the terms of any agreement between the parties;

(b) the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land; and

(c) the period that the occupier has resided on the land in question."48(Emphasis added.)

I note that these three factors repeat three of the five factors considered when the court has to decide whether to grant an eviction order or not. Pienaar and Brickhill in their analysis of ESTA49 correctly draw attention to the discussion of PIE's factors in PE Municipality (within the constitutional matrix) and conclude in respect of evictions that:



"First, proof of unlawful occupation alone is not a sufficient basis on which to grant evictions, although it is a pre-requisite. Secondly, the statutory factors relevant to granting eviction orders must be interpreted and applied bearing in mind underlying constitutional values, and are not a closed list. Finally, the court has a broad discretion both as to procedure and substance, when considering eviction cases."50


In considering these "general requirements of fairness"51 set out in ESTA the Constitutional Court decisions referred to above are binding on this court. Thus evidence of meaningful engagement is required by the Court in eviction application cases to so as to ensure the Court is able to properly consider "all relevant circumstances".





17. I turn now to consider why the local authority is key to this engagement. The Act provides for notice to both the municipality and to the provincial Department of Rural Development and Land Reform. Municipalities now have jurisdiction over the length and breadth of the land. In the Grootboommatter it was required of the local authority to develop a housing plan "reasonable both in their conception and implementation"52. Subsequent to the Grootboom decision the National Department of Housing added to the national housing code chapters 12 and 13, one of which provides for an emergency housing programme. Since then several court decisions53 have set out the obligations of the local authority in housing delivery. Most recently the SCA expanded on this in the City of Johannesburg Metropolitan Municipality v Blue Moonlight Properies and Another.54*: Having considered the role of national government in respect of housing55 the SCA stated in respect of local government:



"Section 4(2) prescribes a set of duties that municipalities are required to comply with, subject to 'financial and administrative capacity and having regard to practical considerations'. For present purposes, only one of these duties needs be mentioned. It is the duty to 'contribute, together with other organs of state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution'. Section 8(2) provides that a City may do 'anything reasonably necessary for, or incidental to, the effective performance of its functions and the exercise of its powers.56"(Footnotes ommitted.)



The Court continues later:


"The legislative framework that has been described above appears in large measure to be designed to give effect to the obligations referred to in Grootboom in a co-ordinated manner. It is clear from that framework that each sphere of government has obligations imposed on it in respect of the right of access to adequate housing; that they are required to work together — as one would expect in a system predicated on principles of co-operative government — to 'achieve the progressive realisation of this right'; and that each sphere is an independentbearer of the obligation. From this, and the legislative scheme as a whole, we conclude that the City's obligations to the occupiers is not derivative, as was argued on its behaif, but direct and that the City has the authority to fund its own housing programme and administer its own housing policy from its own resources as well as from the national and provincial spheres of government, within the parameters of the national housing policy."57(Footnote ommitted.)




Finally in Blue Moonlight the Court sums up



"As indicated above, the City has an indispensable role to play in the progressive realisation of the right of access to adequate housing. It has a constitutional obligation in the circumstances of this case to provide temporary emergency housing to the occupiers. We were not referred by counsel on behalf of the City to any statutory prohibition against the use by the City of its own funds to provide temporary emergency accommodation58."


18. In Blue Moonlight the Supreme Court Appeal concluded that despite the evidence presented of an impressive housing program, there was insufficient information before the court to ascertain what was available for the unlawful occupants facing eviction. In the matter before us neither the court nor the parties have the information that could offer a remedy to these farm occupants regarding even a temporary alternative site. In as much as the city or town based potential evictees ought to have this considered, so too should farm based evictees who too need to look to their local authority for access to housing, albeit temporary. A simple unsupported statement that no land is available does not inform if the local authority housing has plans which include implementation of Chapters 12 and 13 of the Housing Code, or has had discussions with the Department of Rural Development and Land Reform regarding the implementation of Chapter 2 of ESTA. If engagement reveals that none of these options are available, the court could give consideration tothe type of order handed down in Modderklip where the family would remain in occupation and the landowner receive compensation59 or rent as implied by section 12(4) of ESTA. It is not for this court to determine the potential outcome of this engagement but to ensure that it does in fact take place for purposes of determining if there should be an eviction and fixing appropriate dates.



19. I wish to expand further on why the engagement needs to be with the local authority also in the case of ESTA based evictions. In the preamble to the Act it is recorded that:"... that the law should promote the achievement of long-term security of tenure for occupiers of land, where possible through the joint efforts of occupiers, landowners and government bodies"60, (own emphasis)



ESTA records as a "limitation" to a court considering an eviction the requirement that notice must be given in one of two prescribed manners61 to the municipality and to the head of the provincial office of the now renamed Department of Rural Development and Land Reform. This notice - whichever of the two prescribed processes are followed- must reach those parties 2 calendar months "before the date of commencement of the hearing." While the Act states that the notice is "for information purposes" nothing prescribes what they should do with the information. The Constitutional Court decisions clearly require an informed local authority in such a situation, knowing of pending homelessness, to engage. The SCA decision in Blue Moonlight setting out their obligations in realizing of the right of access to housingconfirms what they are able to do once in receipt of the information. It matters not whether the owner of the land, the potential evictee or the local authority initiates the engagement but engage they must. Some may suggest that the report provided for in Section 9(3) of ESTA from a probation officer would suffice - instead of engagement- but that section expressly states the purpose of the report is related to subsection 2(c) of ESTA. In that 2 months' period the engagement could well achieve the following:



"In cases like the present it is particularly important that the Municipality not appear to be aligned with one side or the other, it must show that it is equally accountable to the occupiers and to the landowners. Its function is to hold the ring and to use what resources it has in an even-handed way to find the best possible solutions. If it cannot itself directly secure a settlement it should promote a solution through the appointment of a skilled negotiator acceptable to all sides, with the understanding that the mediation proceedings would be privileged from disclosure. On the basis of this judgment a court involved in future litigation involving occupiers should be reluctant to accept that it would be just and equitable to order their eviction if it is not satisfied that all reasonable steps had been taken to get an agreed, mediated solution."62


20. I turn now once again to the facts of this particular matter. I look to the factors provided for in Section 11 of ESTA so as to decide if the magistrate was correct when he decided that an eviction order would be just and equitable. The facts referred to in the probation report also inform this decision. I have accordingly considered those factors referred to in paragraph 4 above - viz a family with fourteen years residence, a family that has acknowledged in court that its right of occupation was terminated, that there was an agreement between them and the owner that the housing is linked to the employment, that at least one child is still at school, that the farmer needs the accommodation for further and other employees and that the applicant has told the probation officer that they can afford to contribute.

The missing factor is information about alternative accommodation, and should it be available, when it would be available. Engagement could well lead to additional information before court regarding housing plans of the local authority and when housing opportunities (albeit temporary) may be available. After considering all these factors I am of the view that in the circumstances of this case the decision of the magistrate to issue an eviction order was correct. I reach this decision because the agreement between the parties signed in November 1999 and unchallenged in this Court, in the Magistrates' Court and in the CCMA, must be given significant weight when considering all the relevant circumstances. The agreement to terminate the right to occupy once the employment was terminated was just and equitable in the circumstances.



While the agreement between the parties provided for a 30 day notice period, section 12 of ESTA nonetheless requires a separate determination of two dates. I cannot accept that 30 day notice period as fair after 14 years of lawful occupation. Here the absence of engagement means that there is insufficient information to determine a date that is just and equitable. I will thus remit this to the Magistrate Court to enable that engagement to take place. Furthermore, the Magistrate in determining new dates should also take into account the Respondent's late acknowledgement in its replying affidavit that some places on the farm are vacant for upgrading - and the failure of the Probation officer to comment on that possibility in his rather inarticulate report63




20. I know that this will mean the continued occupation of their home by Appellant for at least a while. There is no reason as why this should be gratis. The section 9 report confirms that they are receiving income and able to pay. I shall accordingly order that as of one month after this judgment is handed down, that rent be paid - subject to the Magistrate being able on application, to amend the amount to be paid.



21. Finally I take note of the concerns of Mr. Wilken counsel for the Respondent who suggested that if the court orders joinder farming itself could be the casualty. While I have not so ordered I believe his concerns require a response. I disagree with him for two reasons. I do accept that in certain circumstances the process required above could delay evictions in cases where the owner of the land faces threats and danger if the ex-employee remains on the farm. That however doesn't mean that the easy pre-constitutional (and unconstitutional) eviction process should be retained in preference to a more considered equitable approach appropriate to a constitutional state. The legislature has recognized this need to protect owners from such threats, abuse and real danger- and in the protection of their rights the Legislature has provided for an urgent eviction process in terms of Section 15 of ESTA. Furthermore, I believe that Mr. Wilken's concern does not take into account either the obligations of local authorities in regard to the provision of housing or the of housing or the provisions of Chapter 2 of ESTA which requires of the Minister "to facilitate the planning and implementation of on site and off site developments".








I accordingly order that:


1. condonation is granted.


2. the appeal succeeds.

3. paragraph (a) of the order of the Magistrates' Court is confirmed.

4. paragraphs (b) and (c) of the order of the Magistrates' Court are set aside.

5. the matter is remitted to the Piketberg Magistrates' Court.

6. the Applicant and the Respondent are ordered to engage with one another and jointly or separately to engage with the local authority meaningfully and as soon as it is possible for them to do so, in an effort to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the parties to this application.

7. within 30 days of the date of this judgment to file further affidavits with the Magistrate of Piketberg reporting on said engagement.

8. the Magistrate after consideration of the reports and further argument is to determine the two dates as provided for in section 12 of the Act.

9. the Appellant is to pay R400 per month to the Respondent in terms of section12 (4) of ESTA as of 1 October 2011, such payment to be made to the Respondent's attorney of record no later than the 7th day of each month; the amount is subject to variation on application to the magistrate ;

10. this matter is not subject to a further automatic review; and

11. each party is to pay its own costs.


S Kahanovitz

Acting Judge


I concur


Geldenhuys, J


APPEARANCES


For the Appellant: Sheldon Magardie,

Lawyers for Human Rights, Stellenbosch


For the respondent: Advocate Laurie Wilkin,

instructed by De Klerk & Van Gend, Cape Town



1Act 108 of 1996.

2See inter alia Prof A.J van der Walt, Property in the margins, at 146; Host Publishing 2009. Prof Sandra Liebenberg, Socio-economic rights adjudication under a transformative constitution, Juta 2010; Stuart Wilson, Breaking the tie: evictions from private land, homelessness and a new normality 126 (2009) SALJ 270.

3Lebombo Cape Properties (Pty) Ltd v Awie Abdol & Others, unreported case no LCC129/10.

4Act 66 of 1995.

5Section 8(2) of ESTA.

6"word dit bevel (a) Dat die Respondent en sy ajhanklikes woning wat hulle te die plaas Heldervue,

Piketberg bewoon ontruim.

(b) Ingevolge Artikel 12(1)(2) van die Wet word dit gelas dat die Respondent en sy ajhanklikes die betrokke woning en grondvoor of op 30/1 J/10 moet ontuim.

(c) Ingevolge Artikel 12(l)(b) van die Wet word die gelas dat die uitsettingsbevel op 3/12/10 uitgevoer kan word en word die Balju gemagtig om die uitsetting van die Respondent en sy ajhanklikes vanuit die woning wat hul te Heldervueplaas, Piketberg bewoon uii te voer op laasgemelde datum indien hulle nie die woning en grondop 30/11/10 ontruim nie."

7Act 19 of 1998.

8Act 107 of 1997.

9Section 7(2) of the Constitution.

10AJ van der Walt, The Constitutional Property Clause Juta: Kenwyn, 1997 (Van der Walt 1997) and Constitutional Property Clauses: A Comparative Analysis Juta: Kenwyn, 1999 (Van der Walt 1999) at 11 as referred to in First National Bank of SA Ltd t/a Wesbank v Commissioner for SA Revenue Services & Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002(4) SA768 (CC); 2002(7) BCLR 702(CC) at 38.

11See section 25 of the Constitution.

12See section 26 of the Constitution.

13Act 19 of 1998.

14Government of the Republic of South Africa & others v Grootboom & others 2000 (11) BCLR 1169
(CC); 2001 (1) SA 46 (CC).

15Id at paragraph 42.

16See [6] above.

17See Baartman and Others v Port Elizabeth Municipality 2004 (1) SA 560 (SCA).

18Port Elizabeth Municipality v Various Occupiers 2005(1) SA 217 CC.

19Id at paragraph 43.

20Above n 17 at paragraphs 13-15.

21Above n 17at paragraphs 20-23

22Above n 19 at paragraph 35-36

23See below at paragraph 17 Case number [2011] ZASCA 47 (30 March 2011) (as yet unreported).

24Above n 19 at paragraph 56.

26Act 103 of 1977.

27Above n 24 at paragraph 5.

28Above n 16 at paragraph 13.

29Above n 26 at paragraph 18.

30Olivia Road above n 24 at paragraphs 22-23.

31Residents of Joe Slovo Community, Western Cape v Thubelisha Homes ("Joe Slovo") 2009 (9) BCLR
847 (CC).

32See inter alia Yacoob J at 69; Moseneke DCJ atl67ff; Ngcobo CJ at 238ff; O'Regan J at 378/9 and Sachs J at 382.

33Joe Slovo above n 52at paragraph 4ff.

34Residents of Joe Slovo Community, Western Cape v Thubelisha Homes & others [201 1] JOL 26970 (CC); 2011(7) BCLR723(CC)

35At paragraphs 27-28.

362005(5) SA 3 (CC); 2005 (8>BCLR 786 (CC).

37Professor S Liebenberg, Socio-economic Rights Adjudication under a transformative constitution, Juta 2010 at 285.

38LCC 129/10 unreported.

39Id at paragraph 7.

40Lebombo, above n 3 9 at paragraph 36.

41Lebombo, above n 39 at paragraph 39(d).

42PE Municipality above n 19 at paragraph 47.

43See 8.1.4 above

44See Constitutional Law of South Africa. Chapter 48: Land by Pienaar and Brickhill at 48.38(2nd Edition) on the procedural requirements.

45ESTA Section 9.

46ESTA Section 11(3).

47ESTA Section 12(a) and (b).

48ESTA Section 11(3).

49Pienaar & Brickhill above at 48.28-48.42

50Pienaar & Brickhill at 48.40.

51Pienaar & Brickhill above at 48.38 and 48.39.

52Grootboom above n 15 at paragraph 42.

53Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others 2010 (2) BCLR 99 (CC); Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) (29 May 2001); President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5; ; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC).

54City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & Another [2011] ZASCA 47 (30 March 2011), as yet unreported.

55Id at paragraph 33.

56Blue Moonlight above n 56 at paragraph 32-33.

57Blue Moonlight above n 56 at paragraph 40

58Blue Moonlight above n 56 at paragraph 53.

59Modderklip above n 37.

60Preamble of ESTA

61Section 9(2)(d)

62PE municipality supra at paragraph 61.

63See record pages lOparagraph 11,page 65 paragraph 11,and page 69 ad paragraph 11.