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Last year GroundUp reported how the homes of 15 families on Tilly’s Farm were demolished by Dutch-South African property company MaxxLiving.
The Land Claims Court ordered the developer to compensate for this community’s relocation.
The property company consented to a court order compelling it, amongst others, to provide temporary homes. But it failed to comply with the terms of the court order and subsequently, a contempt of court charge was brought against MaxxLiving and its director.
More than a year after the original court order on 28 July 2022, the legal battle dragged on. How can property developers ensure they avoid costly courtroom sessions with communities occupying the land they intend to build on? What are the legal rights of property developers and occupying communities respectively?
Human rights prioritised
David Dickinson has a day job as an academic but also moonlights for Lawyers for Human Rights (LHR) – pro bono work close to his heart. He generously updated Estate Living on the Tilly’s Farm case, explaining that judgement is now awaited in the contempt of court charge against the developer.
‘In the court order of July 28 last year, two issues were key: Because the homes had been unlawfully demolished, temporary accommodation had to be provided for three months, after which period permanent homes would have been built, albeit in a different location to the families’ original houses.’
Dickinson says that, since the developer has not honoured the court’s instruction in the allotted time, contempt proceedings were brought and LHR now awaits judgement in this regard.
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A jail sentence is not out of the question – and if this sounds harsh, one only needs to consider the squalid conditions in which the 15 families, comprising 35+ people, have been forced to live since their homes have been bulldozed.
Know the work
Dickinson recommends that developers familiarise themselves with the Extension of Security of Tenure Act (62 of 1997, generally referred to as ‘ESTA’) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (‘PIE’, which came into effect in June 1998).
In short, this legislation sets out to prevent arbitrary evictions and provide for measures to facilitate the long-term security of land tenure. They also regulate the conditions on and circumstances under which the right of persons to reside on land may be terminated, inter alia.
Two types of occupying forces
ESTA was designed primarily with farm workers in mind; especially in the post-apartheid years, it provided some security for workers kicked off farms after a lifetime of living and working on the land.
‘In this case the developer acquired the farm, a portion of which was occupied by the 15 families. In some cases, when farms have been abandoned for a period of time, former farm workers may be joined by occupiers with no historical link to the land, and then the PIE Act would pertain to these new arrivals. This may complicate things even further for developers, not on top of the legislation.’
Get the balance right
Hardy Mills is a senior consultant at Boqwana Burns Attorneys and says that the right of access to adequate housing is the most contested and frequently litigated socio-economic right in South Africa.
‘In 2012 the Constitutional Court confirmed that an owner’s property rights, protected in terms of section 25 of the Constitution could, in circumstances where an eviction leads to homelessness, conflict with the occupiers’ right of access to adequate housing. ‘The balancing of these rights means that in cases where occupiers could become homeless because of an eviction, they acquire a temporary, limited right of occupation,” says Mills.
‘The direction that the courts have taken recently is to grant suspended eviction and consequential relocation orders, while forcing the state to provide emergency housing alternatives on a temporary basis.’ He explains that these orders are generally intended to protect the most vulnerable from being rendered homeless, although they indirectly also suggest that landowners’ rights would be unjustifiably restricted in the absence of such an order.
‘The courts are required to weigh the conflicting rights against each other and strike an appropriate balance. A constitutional analysis of these judgments shows that each case will have to be decided with reference to the relevant circumstances, specifically pertaining to the parties involved.’
The Constitution assists and protects the courts to ensure, among other things, their dignity and that their authority is effective. It makes orders of court binding on “all persons to whom and organs of state to which it applies”. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Cases concerning contempt of court are lately brought with more frequency, according to Mills.
The cost of non-compliance
When it comes to land-use management, landowners and developers need to be aware of all town planning legislation and regulations. If consent for a land development application was granted with conditions, these should be complied with within the stipulated time frames to avoid the lapsing of the consent.
‘Should this happen, developers run the risk that the rights, contracts, or grants will become null and void, and deposits that may have been paid being forfeited,’ Mills concludes. In the case of Tilly’s Farm, the developer is fast losing more than just funds.
Just follow the law!
David Dickinson reminds us that laws apply to everyone and flouting them will only result in developers digging themselves in deeper. ‘We see landlords and developers seeking to bypass the law. We see frustration, bad publicity, lost funding, and legal costs piling up.
‘Find out who lives on the land and what rights they have and remember: the rules apply to you, too.’
