eviction - Extension of Security of Tenure Act (ESTA) - Roodepoort Magistrate's Court

SERI represents a group of about 80 people living on a fragment of farmland situated at 13 Johan Road in Honeydew. Many of the residents have lived on the property since the 1990s, some as early as 1991, and were paying rent to the property’s previous owner. 

The new owner of the property brought an application for the eviction of all of the residents in terms of the Extension of Security of Tenure Act 62 of 1997 (ESTA).

ESTA grants significant protections to residents of rural or peri-urban land,  but also provides for their eviction in limited instances, including where  the relationship with the landowner irretrievably breaks down, the residents cause material damage to the property, or build illegal structures or conduct illegal business on the property.  This is subject to a pre-condition that the right of residence of the particular resident was terminated in a lawful manner and not on a whim or arbitrarily.

The owner in this case alleged that it had terminated the rights of all residents to reside on the property residents by means of fixed-term lease agreements and a notice to vacate.  It alleged further that the eviction would be just and equitable on the basis that it required the property for “business purposes”; that there was plenty of residential accommodation available in the area and that some of the residents were in breach of sections of the ESTA by conducting illegal businesses on the property or erecting illegal dwellings. 

The residents filed answering papers opposing the eviction and requesting that it be dismissed.

The application was heard in the Roodepoort Magistrate’s Court on 17 September 2015. 

On 29 October 2015, the Magistrate handed down an order for the eviction of all of the residents, setting the eviction date for 30 November 2015.  The Magistrate reasoned as follows: 

• First, that a number of residents had not put any submissions before him as they had not signed a special power of attorney authorising the deponent to the answering affidavit to speak on their behalf.   
• Second, that the confirmatory affidavits of the residents confirming the facts alleged by a fellow resident in the main answering affidavit were not properly signed and that therefore, only one respondent was properly before the court.
• Finally, that the first respondent (the only respondent who the Magistrate considered to be properly before the Court), a 71-year old man, had breached section 6(3) of ESTA because of the informal dwellings erected and business conducted on the property.

The execution of the eviction order was suspended pending the automatic review of the Magistrate’s Court decision in terms of section 19(3) of ESTA by the Land Claims Court. 

On 23 November 2015, the Land Claims Court set aside the order of the Magistrate and substituted it with an order dismissing the eviction application.  The Land Claims Court found that the Magistrate’s Court was misdirected in finding that the confirmatory affidavits were not properly signed.  It then held, amongst other things that:

• there was no meaningful enquiry into the allegations of misconduct against the residents, which constituted a material error of law;
• the applicant failed to produce clear evidence which would justify the constitutionally entrenched rights of the residents not to be evicted from their home except where it is just and equitable to do so; and
• in any event, the rights of residence of the residents were, in the first place, not lawfully terminated in accordance with ESTA.

Finally, the Land Claims Court emphasised the importance of Probation Officers’ reports being called for and provided to judicial officers in terms of section 9(3) of ESTA. These reports, which follow an extensive investigation into the residents’ personal circumstances and report on the impact the eviction will have on the residents and the availability of suitable alternative land, amongst other things, are crucial in helping the court in arriving at a just and equitable decision.

On 14 December 2015, the owner served SERI with an application for leave to appeal against the judgment of the Land Claims Court.  SERI opposed the application in the Land Claims Court on 5 April 2016.

On 12 April 2016 Judge Ngcukaitobi handed down judgment and refused the owner leave to appeal.

• Land Claims Court judgment (12 April 2016) here.
• Residents' heads of argument (18 March 2016) here.
• Owner's heads of argument (22 February 2016) here.
• Owner's application for leave to appeal (12 December 2015) here.
• SERI press statement (25 November 2015) here.
• Land Claims Court of South Africa judgment (23 November 2015) here.
• Eviction order granted by the Magistrate's Court (29 October 2015) here.
• SERI's heads of argument here.
• Applicant's heads of argument here.
• Residents' response to the City of Johannesburg's accomodation report here.
• City of Johannesburg accomodation report (18 August 2015) here.
• Applicant's replying affidavit (5 May 2015) here.
• Residents' answering affidavit here.
• Notice of motion (20 January 2015) here and founding affidavit (12 January 2015) here.