A frequently asked question that causes enormous delays in the eviction process, is who is responsible for providing suitable alternative housing to the occupier who is being evicted from the land? In other words, is it the responsibility of the state or private individuals to provide access to suitable alternative housing?

Until recently, representatives of the Department of Rural Development and Land Reform, as well as local municipalities, shrugged their shoulders in most eviction matters. The view was that the state has no constitutional obligation to provide alternative or emergency housing to occupiers, and that the landowner is solely responsible for providing alternative housing.

In some cases landowners have even been threatened with expropriation should they refuse to sell part of their farms to the Department of Rural Development and Land Reform, and/or refuse to make alternative housing available to occupiers.

Legal security for landowners

The Constitutional Court, however, in the recent decision of Baron and Others vs Claytile (Pty) Ltd. and Others (CCT241 / 16) [2017] ZACC 24 (hereinafter referred to as the Baron case), equipped landowners with a ruling that creates legal certainty regarding the duties of state organisations and private individuals in circumstances where occupiers under the Extension of Security of Tenure Act, 1997 (Act 62 of 1997, i.e. the ESTA Law) are removed from the land.

The ruling in the Baron case will now enable landowners to repel any form of intimidation and/or threats of possible expropriation and/or any suggestion that the owner must provide alternative housing to occupiers, by throwing the proverbial ball into the state’s hands, because the verdict confirms the constitutional obligation on the state to provide alternative housing.

Facts of the Baron case

The occupiers in this case were employees of a brick manufacturer. The occupiers’ right of residence to live on the farm resulted from an employment agreement between the occupiers and the owner of the farm. The occupiers’ employment agreement was terminated after disciplinary proceedings for misconduct, and the termination of their employment agreement was never opposed.

As the occupiers’ accommodation arose from their employment relationship with the owner and the employment relationship ended, the owner terminated their right of residence under the ESTA Act and they were told to leave the farm. The occupiers failed to respond to the owner’s request and remained on the farm, after which the owner began eviction proceedings.

Although the municipality indicated that, due to a long waiting list, they were unable to provide alternative accommodation and that emergency housing was also unavailable, the magistrate’s court issued the eviction order.

Constitutional obligation

The eviction order has been upheld by the Land Claims Court by automatic review. The Land Claims Court found that the constitutional obligation to ensure access to suitable housing, rests solely on the state and not on private individuals.

The occupiers later turned to the Constitutional Court and argued that an eviction order would leave them homeless. They also argued that the owner is in a financial position to provide assistance to the occupiers to obtain suitable alternative housing – alternatively, the employer must provide the housing.

It should also be borne in mind that the occupiers rejected two offerings of alternative housing as the alternatives did not meet their needs. The owner also offered to make transport available (from their temporary alternative housing to school and back home again) to the children, who were affected by the eviction of their parents, until the end of the 2017 school year.

The Constitutional Court analysed both the position of the state and private individuals in this regard.

Duties of private individuals

Although in certain cases a positive (i.e. social) duty may rest on a private landowner, the court ruled that it does not mean that private owners carry all the responsibilities, or responsibilities similar to that of the state, to realise the constitutional right to access to housing.

 The court further distinguished between cases where the occupier’s behaviour is the cause of eviction proceedings and cases where the occupier’s behaviour is not the cause of eviction proceedings (so-called “no error”-evictions).

In cases where the occupier’s behaviour is the cause of eviction proceedings, the court may issue an eviction order if it is fair and reasonable, even if no alternative housing is available.

In cases where the occupier’s behaviour did not lead to the eviction proceedings, an eviction order should only be granted in exceptional cases. In such cases, the owner may be required to identify alternative housing and, in exceptional cases and after considering all circumstances, to provide alternative housing.

Duties of government organisations

In terms of Article 26 of the Constitution of South Africa, 1996 (Act 108 of 1996), everyone has the right to access suitable housing, and the state must take reasonable legislative and other measures to achieve, within its available means, this right to an increasing extent.

With reference to other judgments, the court made it clear that occupiers could enforce this constitutional right on the state and not on private individuals. The duty to provide suitable housing rests on all three levels of government (national, provincial and local), which must cooperate independently.

The Constitutional Court has ruled that a constitutional duty rests on the municipality to provide alternative housing to occupiers who are lawfully evicted and consequently left homeless.

Temporary alternative housing

The court also ruled that the municipality cannot escape this responsibility simply by indicating that temporary alternative housing is not available. The municipality is obliged to provide such housing under the ESTA Act and Article 26 of the Constitution.

With regards to the owner’s constitutional right not to be deprived of property in terms of Section 25 (1) of the Constitution, the court found that the owner’s property rights were limited for a period of almost five years. Therefore, the owner cannot be expected to provide free accommodation to the dismissed occupiers (and at the expense of his current employees) for a longer period.

The court has made it clear that occupiers will not be allowed to delay the eviction proceedings by being picky, and by rejecting the available alternative accommodation simply because it does not meet their requirements. Consequently, the Constitutional Court confirmed the eviction orders and instructed the occupiers to vacate the land within three months.

Conclusion

The Baron case is undoubtedly a victory for landowners by providing certainty about who ultimately is responsible for supplying alternative housing in cases where people are evicted from the farm under the ESTA Act.

Although, under the ESTA Act, owners are required to make concerted efforts to identify alternative accommodation, the state can no longer try to avoid the responsibility of providing housing by passing it on to private individuals.

It is very important to be vigilant in eviction matters when negotiations with the Department of Rural Development and Land Reform and/or municipality are conducted. It is strongly advised to have a legal representative, who is familiar with the provisions of the ESTA Act, present during negotiations.

Any form of intimidation and/or threats of expropriation if the owner does not make available alternative housing must be reported immediately. The ultimate responsibility to provide occupiers with suitable alternative housing rests on the state and not on landowners. – Clarissa Pienaar, Moolman and Pienaar Incorporated

For more information, email Clarissa Pienaar at clarissap@mmlaw.co.za or hj@mmlaw.co.za.

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