eviction - application for leave to appeal - Gauteng Provincial Division of the High Court
SERI represents a family of five people, including three children, living in Vosloorus in an application for leave to appeal against an eviction order granted in the Gauteng Provincial Division of the High Court.
The Maseko’s live in a house which they built on a 300 square metre piece of land. The head of the household, Sipho Maseko, purchased the land through a township development company in 1992. The family has lived there for almost 20 years. Mr Maseko has always believed that he was the owner of the property. However, he recently discovered that the property was never registered in his name, although he paid registration fees and was led to believe that all the required steps had been taken. Instead, the property changed hands several times over the years without his knowledge.
The current owner of the property, Standard Bank, was granted an order for the Maseko’s eviction by the High Court in June 2015. The family was required to vacate the property by 8 September 2015.
This case concerns, at the first level, the justice and equitability of an eviction of a purchaser who signed a contract for land, paid the full purchase price for the land, built a house on it, and then lived there for the next 20 years.
Standard Bank argued that because no-one in the household is elderly, disabled or a domestic servant, an eviction order would be just and equitable. In its replying affidavit, it argued newly that the family would not be left destitute if evicted, and so an eviction would be just and equitable for this additional reason.
SERI became involved in the case after the eviction order was granted and is applying for leave to appeal on the ground that the court erred in finding that it would be just and equitable to evict the Maseko’s, or alternatively, in failing to apply its mind to whether their eviction would be just and equitable in the circumstances. Specifically, for purposes of the application for leave to appeal, SERI has raised the following:
- A court’s primary duty in terms of section 4(7) of the PIE Act is to make an order that is just and equitable after considering all the relevant circumstances. These relevant circumstances are not limited to the needs of disabled persons, the elderly and households headed by women, or the availability of alternative accommodation. Relevant circumstances under the PIE Act also include (not exhaustively) the length of time an occupier has resided on the property and the circumstances under which the occupier moved on to the property.
- In this light, it is not only the eviction of desperately poor people that is unjust and inequitable. SERI argues that it is also unjust and inequitable to evict the Maseko’s from their home which they paid for, built and have lived in for almost twenty years.
- Finally, and with reference to the decision of the Constitutional Court in Sarrahwitz v Maritz NO, SERI argues that the Court failed to have regard to the double indignity which the Maseko’s would suffer through the loss of first, their home which they paid for on their own, and second, the largest investment they had ever made.
In February 2016, it was discovered that the Masekos previous legal representatives entered into a settlement agreement, agreeing to their eviction from their home. They did so without the Masekos’ instruction. The eviction order reflects the settlement agreement. SERI then filed supplementary grounds of appeal in respect of the application for leave to appeal.
Simultaneously with the supplementary grounds of appeal, SERI filed a rescission application on behalf of Mr and Mrs Maseko.