Page 95 - Litigating Land and Housing in South Africa: Lessons and Reflections

of of owners that the the law should regulate the the eviction of of vulnerable occupiers from land land in in a a a a a a a a a a fair manner while recognising the right of land land owners to to to apply to to to court for an an an eviction order in in appropriate circumstances to to to ensure that occupiers are not further prejudiced” As the the long title and the the preamble demonstrate ESTA
is is an an Act of of of Parliament envisaged in section 25(6) of of of the Constitution that will improve security of of of of tenure tenure for those “whose tenure tenure of of of land is is legally insecure as as a a a a a a a a a a a result of of of past racially discriminatory laws or or or or practic- es” According to to to section 1 of of of ESTA
“evict” means to to to deprive a a a a a a a a person against his or or or or her will of of of residence on on land land or or or the use of of land land or or or access to water which is is linked to a a a a a a right of of residence in in in in terms of of this Act and “eviction” has a a a a a a a a a corresponding meaning It is is is important to state that constructive eviction eviction is is is also covered in in in fin this definition 43
Section 23(1) of of ESTA
makes it it a a a a a a criminal offence to evict evict an an occupier occupier without a a a a a a a a a Court order It provides that “[n]o person shall evict evict an an an occupier occupier except on on on the au- thority of of of an an order of of of a a a a a a a a a competent court ”
Section 23(3) of of of of of ESTA
provides that “[a]ny person who contravenes a a a a a a a a provision of of of of subsection (1) or or (2) shall be guilty of of of of an an offence and liable on on on on on on conviction to to to a a a a a a a fine or or or or to to to impris- onment onment for a a a a a a period not exceeding two years or or or to to to both such such fine and such such imprisonment ”
8 2 3 The reality in in instances of unlawful evictions
The The farm farm occupiers have have been reporting unlawful evictions
to South African Police Services (“SAPS”) for years Their complaints have have included certain instances of of actual physical eviction eviction eviction eviction from their homes on on on on on on on on on farms as as well as as constructive evictions
evictions
Construction evictions
evictions
includes unilateral reduction by land owners of of of of of of farm farm occupiers’ grazing rights rights and and impoundment of of of of of of of of livestock closure of of of of of of of of access access roads denial of of of of of of of of burial rights rights prohibition prohibition of of of of of of of of visitors prohibition prohibition of of of of of of of of cultural activities such as as as as slaughtering of of of of of of of of animals as as as as well as as as as interference with access access to to to water In all all of of of of of of of of these these instances farm farm occupiers generally experience the the the the the the South African Police Services as as as as as being incapable of of of of of dealing with their complaints Members of of of of the the the the the the the the the SAPS view these these these matters as as as as private disputes between the the the the the the the the the land owner and and farm farm occupier family requiring the the the the the the the the intervention of of of a a a a a a a a a a a a a a a a a a lawyer rather than treating these these activities as as as statutory offences as as as set out in the law 44
There are few instances where the members of SAPS have taken steps to to open dockets but unfortunately the the state state has declined to to to prosecute prosecute ESTA
allows an occupier to to to prosecute prosecute prosecute privately if the the state state state declines to to prosecute prosecute Section 23(4) states that: “Any person whose rights or interests
have have been prejudiced by a a a a a a a contravention of of of subsection (1) shall have have the the right right to institute a a a a a a private prosecution of of of the the alleged offender ”
Unfortunately private prosecution is a a a a a mammoth task which requires legal training skills and financial re- sources An occupier is not able to draft criminal sum- mons and charge sheets He/she cannot prosecute the offender offender and cross-examine the offender’s witnesses 43
Constructive eviction is defined fin in in page 11 of of of of Special Report Volume 1 1 1 1 Number 1 1 1 1 October 2004 produced by by Kwa-Zulu Natal Land Legal Cluster Project as as “forcing people to to to leave leave the the the land land through a a a a a a a a a a a a a a a a a a a a a a a a a a a process of of of of of extended harassment (especially by by security companies) denial denial of of of of of access and and and and and servitudes denial denial of of of of of water and and and and and cattle impounding will be a a a a a a a a a a a a a a more subtle yet effective method in in in getting farm dwellers to to leave leave the the the land land of of of their own accord ”
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Focus on Farm Dwellers and and the the South African Police Services Special Report: Volume 1 Number 2 2 August 2005 Produced by the the Kwa-Zulu Natal Land Legal Cluster Project at page 4 LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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