Kimberley - Hundreds of artisanal miners have been granted leave to appeal against an earlier Northern Cape High Court decision granting their eviction by the Sweden Housing Company.
This follows an original court order, handed down by acting Judge Sharon Erasmus in the Motion Court on December 9, calling for the eviction of the miners, together with all persons occupying, trespassing or mining them, from the properties adjacent to Samaria Road, which have been earmarked for housing developments.
Following this ruling, an application for leave to appeal was made to the Supreme Court of Appeal, alternatively to the full bench of the Northern Cape High Court, against the whole of Erasmus’ judgment and order, on the basis that she had erred in granting an eviction order.
Among the reasons given for the appeal by the artisanal miners’ legal representatives, Richard Spoor Attorneys, was the fact that Erasmus had granted an eviction order against unnamed respondents which could not be objectively measured or implemented.
It was argued that the presiding officer had erred in her finding that granting an eviction order was just and equitable, stating further that the housing company had made no effort to engage with the occupants to resolve the dispute.
The miners also felt that an eviction would render them homeless which entitled them to emergency alternative accommodation prior to the execution of an eviction order and that the onus was on the Sol Plaatje Municipality to identify and service an appropriate site for relocation.
While delivering her judgment, Erasmus said that the miners had neither given notice of their intention to oppose the application, nor raised any defence when the matter was heard before her in the Motion Court last year.
“The uncontested facts were that the Sweden Housing Company is the owner of the properties and the occupiers are unlawful occupiers and they had invaded the properties to conduct illegal mining operations and they do not reside on the properties permanently,” said Erasmus. She pointed out that, according to the original application for the eviction, the miners resided elsewhere and would therefore not be rendered homeless if evicted.
She added that it was also argued that the unlawful occupation of the properties was not only prejudicial to the owner as well as the rightful occupants of the houses on and in the vicinity of the properties.
The types of structures and where they were positioned, was also said to pose a threat to illegal occupants and residents alike.
However, while Erasmus felt that because the miners had failed to place any circumstances before her during the initial hearing, she was satisfied that, in this instance, it was just and equitable to grant the order for the eviction of the unlawful occupants.
“I am satisfied that there is a reasonable prospect that the court dealing with the appeal would come to a different conclusion and/or consider remitting the application to the Northern Cape Division of the High Court of South Africa to issue further directions to the occupiers and/or the first respondent to file a report with the high court pertaining to further steps to be taken in order to provide alternative land or emergency accommodation to the occupiers, in the event of the eviction of the occupants.
“It follows that leave to appeal should therefore be granted.”
Meanwhile, spokesperson for Richard Spoor Attorneys, Johan Lorenzen, said the firm was thrilled by the ruling and was eagerly awaiting the next court appearance.
“This ruling means that the high court’s decision to grant the eviction order will now be heard by three judges of the Northern Cape High Court,” Lorenzen said on Thursday.
“Given the recent judgment in Kimberley, we are confident that the appeal will succeed.”