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Jones & Others V. Sutherland & Another - (14 Nov 2019)

Where an eviction is going to render persons homeless, a constitutional obligation rests on relevant municipality to provide suitable accommodation

Tenancy

Present is an appeal against the eviction of Mr. Cedric Morgan Jones and Mrs. Diane Morgan Jones, aged 78 and 76 years old respectively, together with their mentally disabled daughter, Ms Kerenza Morgan Jones, aged 48 years old. They are the three Appellants herein. The Appellants have been in occupation of the farm since July 2013, residing there rent-free since November 2013, a period of almost six years. The Sutherlands successfully launched an application for eviction of the elderly couple and their daughter in the Meyerton Magistrates’ Court, Midvaal. The Joneses and all other occupiers were ordered to vacate the property within 3 months of the date of the 3 eviction order granted on 7 June 2017 by Magistrate. On automatic review to the Land Claims Court, Canca AJ confirmed the eviction order.

From its preamble, it is apparent that, Extension of Security of Tenure Act 62 of 1997 (ESTA) was primarily designed to provide security of tenure for the most vulnerable and marginalised members of society, farmworkers, whilst also balancing the rights of landowners. The Appellants are 12 undoubtedly vulnerable, but this is not a situation of a wealthy landowner pitted against a destitute farm worker. The Respondents themselves are elderly and not in the best of health. They are not affluent people and their main income is derived from the rental generated by their farm. They have been deprived of that income since November 2013, for almost six years. The Respondents require payment of the substantial arrears in rental for their own well-being.

As regards Section 8(1)(e) of Act, the Appellants have been given ample warning of the termination of their lease. The Appellants, on their own version, were made aware that, the property was to be sold on 28 October 2013 and that they would have to vacate. They remain in occupation as of today. Although, there is nothing on record to indicate that, the Appellants were given a formal right to make personal representations to the Respondents, there is reference to various verbal interactions between the parties when Mr. Sutherland attempted to cancel the lease. In any event, the wording of Section 8(1)(e) of Act, does not make it peremptory for representations to be made in every case but rather that a fair procedure be followed ‘including whether or not the occupier should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence’. It should be borne in mind that when the eviction was ordered by the Magistrates’ Court and confirmed by the Land Claims Court, the Appellants had ample opportunity to make representations to the Department of Rural Development and the social worker. Their views were put across on three different occasions, all of which were duly recorded and placed before court. Viewed holistically, the procedure may have been defective at times but it has not been unfair to the appellants.

The right of residence has been validly terminated in terms of Section 8(1) and is in accordance with the dictates of fairness. The procedural requirements in terms of Sections 9(2) and 9(3) have been met. The Appellants do not want to reside in an old age home. They wish to remain on the property where they can keep their livestock and numerous domestic pets. Unfortunately, it is not open to the Appellants to oppose their eviction on the grounds that, the farm is their residence of choice. Where an eviction is going to render persons homeless, a constitutional obligation rests on the relevant municipality to provide suitable accommodation. This does not mean that, the Appellants can continue to occupy the farm until they are provided with accommodation to their liking.

The inescapable fact is that, the Appellants are living in deplorable conditions. The social worker has noted that, their continued occupation on the farm is compromising their health and safety and that their constitutional rights would be infinitely better catered for in an old age home. The Respondents have been deprived of their property for nearly six years. In balancing the rights of both parties, justice and equity demands that the appeal be dismissed. The appeal is dismissed. The first, second and third appellants are ordered to vacate the property.

Tags : EVICTION   LEGALITY   RIGHT OF RESIDENCE  

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