It is common cause that many South Africans do not have secure tenure of their homes and the land which they use and are therefore vulnerable to unfair eviction.
Our law, in particular the Extension of Security of Tenure Act 62 of 1997, regulates the eviction of vulnerable occupiers in a fair manner, while recognising the right of land owners to apply to court for an eviction order in appropriate circumstances, to ensure that occupiers are not further prejudiced.
It should be noted that this act pertains most specifically to the occupation of farm land.
The purpose of the extension of security of tenure act is to provide for measures with state assistance to facilitate long-term security of land tenure; to regulate the conditions on and circumstances under which persons, whose right of residence is to be terminated, may be evicted from land, and to provide for matters connected there with.
Section 2 of the Extension of Security of Tenure Act 62 of 1997, applies to all land other than land in a township, established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircle by a township or townships including;
- Any land within such township which has been designated for agricultural purposes in terms of any law; and
- Any land within such a township which has been established, or recognised after 4 February 1997, in respect only of a person who was an occupier to such an establishment;
In terms of the above-mentioned, it may be noted that an owner of land in question may institute proceedings for eviction in terms of the ESTA ACT, provided alternative housing is made available to the vulnerable land occupier.
In light of the above discussion, we refer to the following notable case:
In Sailing Queen investments v Occupants La Colleen Court (4480/07) [2008] ZAGPHC 15;2008 (6) BCLR 666 (W) the court dealt with the issue of joining the municipality in a prevention of eviction and unlawful occupation of land Act 19 of 1998 as follows;
“The court held for the first time that the interests of the occupiers, the private landowner and the state (municipality) would be protected if the state was joined, because the state has a duty to provide the evicted occupiers with adequate housing”
Separate to the aforementioned, If the occupier, after his or her tenure in terms of Section 8 of the ESTA ACT has been terminated, refuses or fails to vacate the land, the owner must give two months’ notice to the occupier, municipality and provincial office of the Department of Rural Development of his/her intention to request an eviction order.
Once the court has approved an eviction order, the court can determine a fair and equitable date on which the occupier must vacate the land. The court may also determine the date on which the sheriff may execute the eviction order if the occupier fails to vacate the land.
In a situation where the occupier has erected structures, made improvements to the land or has any planted crops, the court may order the land owner to pay fair and equitable compensation to that.
The court may also make an order that the occupier be given an opportunity to remove the structures and/or cultivate and harvest the planted crops.
Should you have any queries, or require any assistance with a related matter, kindly contact our office and schedule a consultation – first time consultations remain without charge.
Written by Musa Mativandlela (Candidate Attorney) and Keegan Elliott (Attorney)