Cape Town - Legal Aid South Africa is approaching the Land Claims Court in a legal battle that is likely to reach the Constitutional Court as it inherits the Land Rights Management Facility which was previously entrusted to the Department of Agriculture, Land Reform and Rural Development.
As part of it’s new mandate, Legal Aid will now be assisting people with land issues with regards to unlawful evictions, land claims and other land-related matters. Currently Legal Aid has just over 650 active land-related cases on its books.
One of these matters is the eviction of a group of people from a farm in Grabouw. On February 10, 2022 the Land Claims Court granted the eviction order, stating: “Pending the grant of a final eviction order (Patricia Matthys, Patricia Swartland and Danvino Jemaine Swartland) and all those holding title under them, are evicted from the property known as portions 12, 13 and 22 of the farm Van Aaries Kraal.”
Legal Aid has appointed an attorney to contest the constitutionality of the eviction in respect of section 15 of the Extension of Security of Tenure Act 62 of 1997 (ESTA).
It will be challenging the decision on the basis that these section does not make provision for the courts to consider the availability of suitable alternative accommodation for the occupier before granting the order for the immediate removal of the occupier.
According to Legal Aid the availability of suitable alternative accommodation is one of the relevant circumstances to be considered in all eviction matters.
In several cases, the Constitutional Court has held that if there is a risk that the occupier will be rendered homeless when evicted, the municipality must provide alternative accommodation.
Legal Aid spokesperson Janeske Botes said it had taken on the new mandate but had also inherited a number matters from the Land Rights Management Facility.
“We use private attorneys, we brief them, we give them instructions to act on our behalf and so they’ve been instructed to contest this.
“If this is successful in terms of the provisions around an eviction order then that will be a great change in terms of how farm occupiers and labour tenants are actually experiencing the eviction process.
“I think it does happen quite often, especially in the Western Cape, where farm owners will say you need to leave, but they are not following the provisions of the law. But the law itself is problematic and this is what we are contesting,” Botes said.
Land Rights Management legal executive, Thabiso Mbhense, said: “If Patricia Matthys, Patricia Swartland and Danvino Jemaine Swartland are successful in this challenge, the judgment will have a significant impact on the lives of all farm occupiers in South Africa.”