Eviction of farm dwellers is governed by ESTA
The eviction of farm dwellers has received a lot of media publicity over the past year, particularly in the Western Cape. Some farm labourers have suffered intimidation in the course of eviction and have been reduced to living in unsafe and unsanitary conditions in informal settlements after leaving their farm dwelling.
The Extension of Security of Tenure Act 1997 (ESTA) was enacted to provide farm workers with protection against unfair evictions from land they may have occupied for decades and it guarantees them certain rights. It also endows landowners with rights, and attempts to balance the interests of both parties.
Does ESTA prevent farm dweller evictions?
ESTA has been criticised for failing to achieve its objectives and instead being used to justify unfair evictions of farm dwellers. However, the problem does not lie with the legislation, which aims to:
“...promote the achievement of long-term security of tenure for occupiers of land, where possible through the joint efforts of occupiers, landowners. and government bodies”
and
”...regulate the eviction of vulnerable occupiers from land in a fair manner, while recognising the right of landowners to apply to court for an eviction order in appropriate circumstances”
According to Hanif Vally, deputy director of the Foundation for Human Rights, most farm evictions are in fact illegal. So the problem lies with the failure of landowners to follow the prescribed process and the lack of enforcement of the legislation. At Simon Dippenaar & Associates Inc. we believe the rights of farm dwellers and landowners alike must be upheld; and we do not condone irresponsible or disrespectful conduct towards tenants.
Situations sometimes arise that make it necessary for a landowner to evict farm dwellers. When that happens we will make sure that tenants are treated fairly and fully within the law, while protecting the rights of owners to use their land as they see fit. As eviction lawyerswe understand the eviction process thoroughly – whether governed by PIE or ESTA – and we can ensure landowners do not fall foul of the legislation.
Farm dwellers' right to residence
If a farm dweller has been resident on the land for 10 years or more and has reached the age of 60, they cannot have their right of residence revoked. But an anomaly in the law says that if the farm is sold, the new owner of the land must consent to the continued occupation by the household.
Municipal housing provision for former farm labourers
Currently in the Western Cape farm evictions are a hot topic. With over 1000 pending evictions and a possible 20,000 people affected, alternative housing is a critical concern. In the Drakenstein district last year two sites were allocated for evictees. The cost of water and sanitation per site was estimated to be R140 000. More municipal sites are needed to accommodate the number of potentially displaced farm dwellers and prevent the unsafe, ad hoc settlements that develop. Although designed to be temporary, former farm workers often remain in informal settlements because they have nowhere else to go; and if their farm employment has been terminated it can be difficult to find alternative employment.
Therefore it is incumbent on farm owners to consider all factors and behave responsibly when faced with the need to evict farm dwellers. If there is no other solution, then a good eviction attorney is essential to uphold the constitutional rights and dignity of all parties involved.
The eviction process
Landowners must legally terminate the occupier’s right of residence by giving two months’ notice and inform the relevant municipality and Department of Land Affairs of the intention to evict. A legal termination includes ending a lease agreement or a fair dismissal from employment. This notice of motion and supporting affidavit must be served by the sheriff of the court.
A probation officer from Land Affairs will be appointed to draft a report, which the court will consider in determining whether or not to evict.
The occupier has an opportunity to oppose the eviction and file answering papers.
The court will then set a date for the matter to be heard.
Legal advice is essential
Cape Town law firm Simon Dippenaar and Associates Inc is widely experienced in evictions, both residential and agricultural. Let us help you conduct your farm eviction in full compliance with ESTA and all relevant legislation. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za and one of our Cape Town Attorneys will contact you back.
Also featured at: https://evictionlawyerssouthafrica.co.za/esta/farm-evictions/