GroundUp: Eviction and the law – what the Constitutional Court says

First published by GroundUp

On 13 July the Constitutional Court handed down a judgment confirming an eviction order against people occupying houses on Muldersvlei farm near Paarl. The judgment considered eviction and land tenure rights. It looked at what kind of alternative accommodation is suitable for evictees.

Isak Baron, David Bailey, Jonathan Stoffels and Richard Figland were some of the occupiers who appealed the eviction order. They had been employed by a company, Claytile, to work in its brick manufacturing business, located on the farm. Because they were employed by the company, the occupiers were entitled to live in houses located on the farm.

Starting in 2006, some employees were dismissed following alleged misconduct and disciplinary proceedings. However, Baron, Bailey, Stoffels and Figland continued to live on the farm, even after they were fired. In November 2012, Claytile served them with eviction notices but they continued to live on the farm. In 2013, Claytile applied for, and later obtained, an eviction order against the occupiers, despite the City of Cape Town informing the court that no alternative accommodation was available. The occupiers were given eight months to move off the farm. They appealed against the eviction order in the Land Claims Court, the Supreme Court of Appeal and then the Constitutional Court, all without success.

Since Baron, Bailey, Stoffels and Figland had been living on the farm from before 4 February 1997, their eviction had to take place under section 10 of the Extension of Security of Tenure Act, 1997, known as ESTA.

ESTA was designed to protect occupiers from unfair evictions by recognising the rights that arise from long-term occupation. It recognises the rights of farm workers, who previously suffered the brunt of unfair evictions during apartheid.

Evictions that take place under ESTA are supposed to be different to evictions of illegal occupiers or ordinary residents. Section 10 of ESTA describes the requirements that must be met for a person to be evicted. In some circumstances, the occupiers must be given suitable alternative accommodation before being evicted.

Employees who have lived on land after 4 February 1997 are also protected by ESTA but the conditions for their eviction are different.

Usually at the heart of eviction cases is the issue of alternative accommodation: Who must offer it (generally government)? Has it been offered? And is it sufficient?

To cut a long story short, by the time the case was heard in the Constitutional Court, the parties had agreed on many aspects of the case. The critically contested issue was what constituted “suitable alternative accommodation” under ESTA.

This issue became even more important after the City offered the occupiers five emergency housing units located in Wolwerivier in February 2017. The occupiers rejected the City’s offer because Wolwerivier was too far away from their places of work, their children’s schools and the units were made of corrugated cladding rather than brick. But the court noted that despite being emergency housing, the units had inside toilets and washbasins as well as electricity and running water. So the accommodation was markedly better than previous units available to the occupiers.

The court had to consider whether this accommodation was suitable but also who had the obligation to provide alternative accommodation under ESTA. While the court recognised that the state generally has to do this, it did not exempt private owners from any obligations. Instead, the court found that private owners may sometimes be required to help pay for or even provide suitable alternative accommodation to evictees, and the extent of this obligation depends on the particular case. However, in this case, the Court did not discuss the obligations ESTA imposed on Claytile. Instead, the court only dealt with what the city was required to do.

The Court noted that the city had offered the occupiers units at both Delft and Wolwerivier and both offers had been rejected by the occupiers. The Court confirmed that the city had a constitutional obligation to provide housing. The city could not avoid this obligation simply by claiming that no housing was available, as it had done in a lower court.

However, the Constitutional Court also recognised that the right to adequate housing is limited by the resources the city has available. This means that occupiers cannot avoid eviction simply by claiming that the alternative accommodation the city offers them is unsuitable. Taking into account the resource limitations of the city, coupled with the fact that Claytile agreed to drive the occupiers’ children to school from Wolwerivier until the end of the year, the court confirmed the eviction order. It ordered the occupiers to leave the property within three months.

On 13 October 2017, three months after the judgment, the occupiers were relocated to Wolwerivier and their former houses at Claytile were demolished. A statement from Lawyers for Human Rights (LHR), who represented the occupiers during the eviction proceedings, highlights the problems with their accommodation at Wolwerivier. Besides being far away from public transport, the houses at Wolwerivier also did not have electricity when the occupiers moved in. The statement also said that the occupiers have no security of tenure over the units since the housing belongs to the city.

LHR wrote: “In spite of lengthy litigation in attempts to strengthen the rights of ESTA occupiers, this matter brought deep disappointment and leaves ESTA occupiers in a worse position than ever before. The court ought to have allowed the occupiers to act on their offer to pay rent in exchange for their continued occupation after their employment was terminated.”

A number of other communities in Cape Town are fighting against being moved to Wolwerivier. However the City recently announced that it would no longer be developing additional housing at Wolwerivier. It remains to be seen how this will affect ongoing eviction court cases.

What this case does show is that there are limits to what the Constitutional Court is willing to do when it comes to disputes about how resources are spent. While the courts may help stop the worst abuses when it comes to evictions, the struggle for decent housing has to be won politically, by convincing government to change its approach. In Cape Town that appears to be beginning to happen following years of campaigning by housing activists. DM

Photo: The Constitutional Court confirmed the eviction of dismissed workers living on a farm. The workers have had to move to Wolwerivier pictured here. Archive photo: Ashraf Hendricks