Page 88 - Litigating Land and Housing in South Africa: Lessons and Reflections

evictions in terms of ESTA where occupiers could be rendered homeless and and (2) whether the the the landowner was entitled to compensation from the the the State It must be be noted that at at the the the stage of the the the hearing despite despite being cited as parties to to the the the the proceedings and despite despite its its obligation to to to file a a a a a a a a a a a probation officer report the the local municipality had neglected to to take any position on on on on on its its obligations The same was was said about the the provincial government It was was for this reason that the the the the court requested further direction from the the the the parties about how to deal with the the the the the obligations of government at at local and and provincial level and and their silence in in in the the the the the proceedings As a a a a a a a a result the the the the court ordered the the the the local municipality to file a a a a a a a a probation officer report report Such report report would: establish the the personal circumstances of of the the occupiers identify
8 1 2 Legal principles
vulnerable groups of of of people and most importantly deal with the issue of of of availability of of of alternative accommo- dation if an an eviction application was granted Such information would would assist the the the court in in in in deciding whether it it would would be just and equitable in in in in the the the the circumstances to grant the eviction Upon receipt of of of the the the probation officer report the the the non-compliance with the the the the the provisions of of of ESTA was clear and thus the the the the the order for the the the the the eviction could not not be granted Furthermore the the the the court did not not have adequate information at at at at its disposal to reach a a a a a a a a a a a decision on on on on on the the the eviction The issue of of the the the provision of of alternative accommodation was was not adequately addressed in the the the probation officer report In January 2017 judgment was was was delivered The eviction application was dismissed The The LRC LRC relied relied on on on on on on sections 25 and and 26 of the the Constitution that that prohibit arbitrary evictions and and promotes tenure tenure that that is is legally secure secure The The The LRC LRC LRC also relied relied on on on on on on on on on on ESTA which was was promulgated to to to give effect to to to the the the the the the right to to to secure secure tenure tenure in in in in section section 25(6) of of of of of of the the the the the the Constitution The The main defence raised by the the the the the the LRC LRC on on on on on on on behalf of of of of of of the the the the the the occupiers was was was was that the the the the the the termination termination of of of of of of of of of of their rights of of of of of of of of of of residency was was was not just just and and equitable in in in in in in terms terms of of of of of of of of of of section section 8(1) (a) – (e) of of of of of of of of of of ESTA ESTA This was was was evident from the the the the the facts of of of of of of of of the the the the the case In terms terms of of of of of of of of ESTA ESTA in in in in in order for the the the the the termination termination of of of of of of of of right right of of of of of of of of residence to to to be be just just and and and equitable the the the the following factors need to to be satisfied and or or or or considered:
(a) The fairness of of any agreement agreement provision provision in agreement agreement or or provision provision of of law which is is is relied on on on on by the owner or or person in charge (b) The conduct of the the parties giving rise to the the termination (c) The interests of the the the parties which includes comparative hardship to the the the the the owner the the the the the occupier occupier concerned and for any other occupier occupier if the the the the right of residence is not terminated (d) The existence of of of a a a a a a reasonable expectation of of of the the the renewal of of of of of the the the the agreement from which the the the the right of of of residence arises after the the the effluxion of of of its time and (e) The fairness of the the the procedure followed by the the the owner or or or person in in in charge including whether or or or not the the occupier had or or or or should have been granted an an effective opportunity to to make representations before the the decision was made to to terminate the the right of residence The LRC argued that the the the lease agreement which was entered into by the the the the occupiers with the the the the owner in in in 2007 was vague and and unclear in in in in that it it it did not provide for for the the the duration and and period of its termination Therefore upon relocation to to the the the the Malan Road Road property property property from the the the the Mirabel Road Road property property property their tenure to to to the the the the the new new property property property was unclear An option to to to renew the the the the lease for a a a a a a a a a period of six (6) months was granted to to the the tenants The LRC argued 88
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS