14 July 2017
Lawyers for Human Rights must unfortunately express its disappointment in today’s judgment of the Constitutional Court in the matter of Baron v Claytile. We had hoped that the Court would make use of this matter to develop the law concerning “suitable alternative accommodation” for Esta occupiers (occupiers on farm land) in a manner that is progressive and that also places a fair burden on private land owners to assist in providing alternative accommodation. The court did neither, and it shattered any hopes that the Extension of Security of Tenure Act (ESTA) could be used for radical rural transformation.
The implications of this judgement is that there is little difference between accommodation that must be made available for most categories of lawful ESTA occupiers as compared to unlawful occupiers under the PIE Act, the latter dealing mostly with unlawful occupation in the urban setting.
Previously, under common law, occupiers of farmland enjoyed no protection of their tenure. ESTA was thus enacted to remedy this problem and to create greater procedural protections, and more importantly, greater protection of their substantive rights to tenure security and progressive realisation of housing rights. The promise that the act held for the protection and realisation of substantive housing rights, have been dashed.
In a recent judgment of Daniels v Scribante, the constitutional court held that ESTA could under certain circumstances place a positive obligation on a private land owner. That case only dealt with the occupier’s right to make minor additions to his/her existing home. The present case held the promise that these obligations would be extended to persons being evicted. This was not to be, as the judgment would appear to suggest that the state bears all the responsibilities in respect of the final alternative accommodation that must be provided.
The court further emphasised that the failure of the City of Cape Town to provide alternative accommodation in 2013 placed a further burden on Claytile as the company was compelled to continue housing the occupiers. This approach has potentially disastrous consequences for ex-employees of mining companies and other rural occupiers who will not qualify for formal housing for a long time. It also places a disproportionate burden on municipal resources, which the tax payer must ultimately provide.
Private farm owners will thus have all the benefits of housing their workers on their properties, but will carry none of the obligations that arise when the same workers are evicted.
Most disappointing of the judgment is that the court considered accommodation some thirty kilometres away from the existing place of residence as reasonable. The relocation to the Wolwerivier relocation camp inevitably make it impossible for the occupiers in this case to access job opportunities.
To read the full judgement click here