Land matters and rural development : 2016(1)
| Record Number | sapr1_v31_n1_a11 |
| Author | Willemien Du Plessis,Juanita Pienaar,Ebrezia Johnson,Nic Olivier |
| Pages | 189-231 |
| Date | 01 January 2016 |
| DOI | 10.10520/EJC-c6c07df21 |
| Published date | 01 January 2016 |
189
JOURNAL
LAND MATTERS AND RURAL DEVELOPMENT:
2016 (1)
Juanita Pienaar (US)
jmp@sun.ac.za
Ebrezia Johnson (US)
ebrezia@sun.ac.za
Willemien du Plessis (NWU)
Willemien.DuPlessis@nwu.ac.za
Nic Olivier (NWU)
oliviern@mweb.co.za
1. GENERAL
The amendment of the Restitution of Land Rights Act 22 of 1994 (Restitution Act) led
to a renewed interest in restitution matters. The number of land claims is increasing.
It seems that the courts are still struggling with the interpretation of the Extension
of Security of Tenure Act 62 of 1997 (ESTA) and the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Similar problems are
experienced with housing. Parliament and the Council of Provinces approved the
controversial Expropriation Bill [B4D-2015].1
This note covers land issues: the most important measures and court decisions
pertaining to restitution, land redistribution, land reform, unlawful occupation, housing,
land use planning, deeds, surveying, rural development and agriculture are discussed.2
1 Anon, ‘Parliament Approves Land Expropriation Bill’ Mail & Guardian (26 May 2016)
za/article/2016-05-26-parliament-approves-land-expropriation-bill> accessed 3 July 2016.
2 In this note the most important literature, legislation and court decisions are discussed for the period
31 October to 31 May 2016.
https://doi.org/10.25159/2219-6412/2655
ISSN 2219-6412 (Print)
© Unisa Press 2017
Southern African Public Law
https://upjournals.co.za/index.php/SAPL/index
Volume 31 | Number 1 | 2016 | pp. 189–231
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Pienaar et al Land Matters and Rural Development: 2016
2. LAND RESTITUTION
The Commission on the Restitution of Land Rights made a presentation at the strategic
planning session of the Portfolio Committee on Rural Development and Land Reform
(CRLR) on 3 February 2016.3 The presentation included the challenges that the CRLR
experiences and that relate, among other issues to strategy, structure, systems, style,
staff and skills. The CRLR did not provide feedback on the manner (and extent) of
implementation of the ndings and recommendations of the Department of Performance
Monitoring and Evaluation and the South African Human Rights Commission.4 A
number of strategic interventions for the nancial years 2016/17 to 2018/19 were
identied, among others, three strategic goals: ‘land rights restored in order to support
land reform and agrarian transformation by 2020’, ‘lodgement of restitution land claims
re-opened for people who did not meet the 1998 deadline’ and ‘organisational change
management’. The Exceptions Programme was mentioned that would focus on the
identication of land to be made available to members of the Khoi and San communities
(whose land had been dispossessed prior to the cut-off date of 27 June 1913). This
process would be in accordance with the provisions of the Redistribution Programme
and would identify relevant heritage sites for said communities. Within this context,
an interdepartmental task team as well as a multi-disciplinary, multicultural research
team would be established. The CRLR emphasised that, in principle, old order claims,
meaning claims that were lodged before the cut-off date of 31 December 1998, would be
processed rst. New claims, lodged after 1 July 2014, would rst have to be investigated.
By the end of 2015, 7 584 claims that had been submitted prior to 31 December 1998,
were still outstanding (3 610 still in Phase 2 – screening and categorisation; 350 in
Phase 3 – determination of qualication in terms of s 2 of the Restitution Act; and 3 624
in Phase 4 – negotiations). The provincial breakdown for claims still in Phase 2 was
as follows: Eastern Cape (366); Free State (0); Gauteng (155); KwaZulu-Natal (738);
Limpopo (24); Mpumalanga (1647); Northern Cape (8); North-West (4) and Western
Cape (668).
2.1. Notices
There was an increase in the number of land claim notices published in the Government
Gazette. The notices (with the exception of a few) do not indicate the date of the claim,
making it difcult to determine whether the notices are applicable to the pre-amendment
phase or indeed are notices submitted as a result of the Amendment Act. The following
number of notices was published with regard to the various provinces: Western Cape: Cape
Town (including Eerste Rivier. Kuilsrivier, Newlands, Retreat, Diep Rivier, Oranjezicht,
3 Commission on the Restitution of Land Rights, ‘Presentation to the Portfolio Committee on Rural
Development and Land Reform Strategic Planning Session’ (3 February 2016)
accessed 30 June 2016.
4 (2015) 30 (1) SAPL 239.
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Green Point, Maitland, Constantia, Athlone, Rosebank, Goodwood, Claremont,
Belville, Parow, Bonteheuwel, Ravenswood, Elsies River) forty-six; Lambert’s Bay,
Montagu, Observatory, Mfuleni, Worcester, Willowvale, Sunnydale, Struisbaai,
Aghulhas, Tulbagh, Bitou, Somerset West, Plettenberg Bay, Wittenberg, Stellenbosch,
Strand, Franschhoek, Eden and Noordhoek – one each; Mosselbay, Ceres, Hout Bay,
De Rust, Simon’s Town, Pniel, Grabouw and Matroosfontein – two each; George, and
Oudtsdhoorn – three each; Eastern Cape: Port Elizabeth (ve); Grahamstown (twenty-
three); Sterkspruit/Joe Gqabi (four); Comvaba/Chris Hani, Peddie and Stockenstrom
– three each; Alice, Queenstown, Mthatha, Cala, Stutterheim and Lady Frere – two
each; Keiskammahoek, Port St Johns, Somerset East, Bizana, Qumbu, Elliotdale,
Lusikisiki, Komga, Whittlesea and Herschel – one each; KwaZulu-Natal: Ethekwini
(including Cato Manor) fteen; Mount Currie and New Hanover – four each; Piet
Retief, Pietermaritzburg, Lions River, Umvoti, Camperdown, Lower Tugela, Eshowe,
Port Shepstone and Newcastle – two each; Dundee (three); Egotshe, Lower Umfolozi,
Mtonjaneni, Mtunzini, Upongola, Richmond and Umgungundlovu – one each; Limpopo:
Thulamela and Vhembe – two each; Greater Tabatse, Polokwane, Elias Motswaledi,
Mookgopong and Sekhukhune – one each; Gauteng and North-West: Tshwane (eleven);
Johannesburg (seventeen); Zeerust (seven); Bojanalo (four); Thembisile, Ekurhuleni,
Lichtenburg and Kungwini – one each; Mpumalanga: Mbombela (ten); Thaba Chweu
and Emakazeni – nine each; Delmas (seven); Bushbuckridge (six), Gert Sibande, Victor
Kanye and Emalahleni – four each; Steve Tshwete (three); Thembisile and Nkomazi –
two each, Umjindi, Lydenburg, Chief Luthuli, Albert Luthuli and Govan Mbeki – one
each; Free State and Northern Cape: Bultfontein/Sterkspruit/Spaansefontein (fteen);
Kara Hais and Kai! Garib – two each; Harrismith, Dihlabeng and Keimoes – one each.
Several amendment, withdrawal and correction notices were also published.
By 30 November 2015, 3 290 685 ha of land (costing R19 291 888 564, 05) had
been awarded to qualifying claimants; however, only 1 444 000 ha had been transferred
in ownership to beneciaries. In respect of the re-opening of the lodgement of claims,
144 112 new land claims had been submitted during the period from 1 July 2014 onwards
(to March 2016). It was indicated that the ‘drastic reduction in the compensation of
employees budget throughout the DRLR’ (Department of Rural Development and Land
Reform) had impacted negatively on stafng in the CRLR, and that only ‘unequivocally
critical posts’ would be lled. Within this context it is noteworthy that the following
three critical directorates were still vacant (as on 6 April 2016), namely Restitution
policy, Restitution research and Project management. It is foreseen that the outstanding
(31 December 1998) claims would be researched as follows: 1 530 in the 2016/17
nancial year and 3 098 in the 2017/18 nancial year.5
5 See CRLR, ‘Annual Performance Plan 2016/2017’ (6 April 2016)
les/160406Commission_APP.pptx> accessed 30 June 2016. See also CRLR, ‘Annual Performance
Plan 2016/17 of the Commission on Restitution of Land Rights’
annual-performance-plans/file/4395-annual-performance-plan-2016-17-of-the-commission-on-
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2.1.1. Case law
The Restitution Act led to a number of court decisions dealing, among others, with
disputes relating to the acquisition of the land and the formalisation of settlement
agreements. In Pienaar v Minister of Rural Development and Land Reform6 two matters
were dealt with: (a) the nal amount offered for the acquisition of certain farms in
Mpumalanga, as well as (b) how the amount was decided. Following the lodgement of
various land claims by the Sibiya and Mahlangu communities relating to various farms
comprising portions of the farm Hartbeesfontein, agreements to acquire said land were
entered into by two sets of owners and the defendants. The Botha Trust owned portions
6, 10 and 11 and the Van der Walt family owned portions 3, 5 and 8. The plaintiffs
did not contest the land claims and did not oppose the acquisition of land or the initial
valuations. The initial amounts offered were respectively R7.3 million and R7.4 million
in April 2008. However, when the parties reconvened to nalise the agreements in
September 2008, the amounts were adjusted downwards to R2.3 million and eventually
nalised at R5.2 million. The application before the Land Claims Court (LCC) was for
damages comprising roughly R2 million each on the basis that the amounts represented
the difference between reasonable market value and what was paid to them following
the settlement of the land claim. The cause of action was founded on fraudulent
misrepresentation of the ofcials involved in the process. In the alternative it was also
claimed that the plaintiffs were compelled to accept the offer and alternatively that the
amount (the ‘compensation’) offered did not constitute just and equitable compensation
in accordance with section 25 of the Constitution of the Republic of South Africa, 1996
(Constitution).7
Basically, the plaintiffs testied that they were under the impression that the
amounts offered had been nalised and that they had consequently ceased some of their
farming activities and had entered into other agreements, invariably resulting in nancial
obligations. When they convened for what they considered to be the nalisation of the
agreements, they were shocked to hear that the amounts were not nal and that they
had been adjusted downwards rather drastically without sufcient explanation. They
were further compelled to accept the offers, for various reasons, including (a) they did
not have time to consult with counsel, and (b) they were threatened with expropriation
should they not accept the offer. It was their impression the latter would result in a
lengthy court battle.8 During cross-examination both parties acknowledged that they
knew the nal amounts and concomitant agreements still had to be approved by the
rst defendant, the Chief Land Claims Commissioner, before they could be deemed
nal. To that end it was clear that the amounts had not been nalised during the April
2008 negotiations. Testimony of the state ofcials underlined that the initial valuations,
restitution-of-land-rights> accessed 30 June 2016.
7 ibid paras [1]–[3].
8 ibid paras [16]–[26].
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which were not contested by the plaintiffs, represented the full spectrum of valuations,
including both the highest and the lowest ends of the spectrum.9 The initial valuations
reected only the highest end of the spectrum, whereas the nal valuations related to the
lower end of the spectrum. The adjustment was done after comparable sales in the area
were taken into account, as well as consideration of budgetary restrictions.
With regard to the cause of action dealing with fraudulent misrepresentation, Canca
AJ scrutinised whether the ofcials made a representation which they knew to be untrue
with the intention that the plaintiffs would act thereon.10 The statement that the properties
would be expropriated was not a fraudulent misrepresentation as the properties could be
expropriated, which would result in a referral to the LCC, which could indeed be a time-
consuming and protracted process.11 The argument was further made that the parties
were compelled to accept the offer as the department was in a better position to bargain
and the defendants’ conduct was heavy-handed.12 In this regard the court accepted
that the conduct of the defendants may have been heavy-handed, but denied that they
compelled the plaintiffs to accept the offer. That was the case because the pressure
experienced by the plaintiffs was self-created in that they had concluded transactions
which put enormous nancial pressure on them. These agreements were entered into on
their own accord.13 If they had not entered into other purchase agreements, they would
not have been forced to accept the offer and could have referred the matter to court.
The same stance was also taken with regard to the claim that the defendants had unduly
inuenced the plaintiffs as there was no evidence to support that contention.14
The next issue the court dealt with was whether the ‘compensation’ offered was just
and equitable.15 Of importance, however, was that the land was not expropriated, but
was acquired, following an agreement to that effect. In this regard, the payment need
not comply with the factors listed in section 25(3) of the Constitution, which include
market value. It is important that expropriation is not conated with acquisition. In any
event, where valuations are concerned, various subjective factors enter into the picture,
underlining that valuation is not an exact science. In this context the court also explored
whether a ‘forced sale’ would qualify as an expropriation.16 In the present instance the
court had already found that there was no undue inuence, misrepresentation or duress
which forced the plaintiffs to conclude the nal agreement and accept the amounts.17
Accordingly, in this context it would be very difcult to argue that the agreement
constituted a forced sale, resulting in expropriation.
9 ibid paras [27]–[35] generally.
10 ibid para [36] ff.
11 ibid para [39].
12 ibid paras [41]–[42].
13 ibid para [42].
14 ibid para [45].
15 ibid para [48] ff.
16 ibid paras [52]–[54].
17 ibid para [53].
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The court nally highlighted that the state can acquire land, for purposes of land
reform generally and restitution specically, by various means, including purchase
by agreement, as had occurred here: The court states as follows: ‘A consensual sale
agreement will be valid and enforceable, even if the purchase price is less than market
value. The proviso being that there is no fraudulent misrepresentation or undue inuence,
which I have already found to be absent in this case.’18
It is important to note that market value is not the paramount factor in considering
compensation. Had expropriation been resorted to, market value would be only one of
the factors considered in the exercise of determining just and equitable compensation.
It is thus quite possible that the compensation amount could be less than market value,
taking into consideration all relevant factors. Furthermore, the Property Valuation
Act 17 of 2014, provides specically that market value is only one factor to be taken
into consideration where land is acquired for land reform purposes. In this context
acquisition of land includes consensual sale. Accordingly, where land reform objectives
are pursued, market value is subject to the nation’s commitment to land reform.
Mdumane Community Trust v Land Claims Commissioner19 provides guidelines
to assist courts in formalising settlement agreements and making them orders of court.
The background is briey the following: the applicants lodged a land claim which was
validated and resolved by way of a section 42D agreement under the Restitution Act.
Prior to the endorsement of the agreement the Commission consolidated the claim with
a different community, despite repeated objections from the applicants. Following the
agreement, substantial payments were made to the former landowners of the land, the
land was subsequently registered in the name of the fth respondent – the Ndwandwe
Community Trust,20 and a grant of R8.8 million was paid to the beneciaries to develop
the land. Accordingly, the original claimants, the applicants in the present proceedings,
received no benet at all. The applicants lodged an application to review the decision
of the Commission, which application was initially opposed. However, when the main
matter was heard all parties were in agreement that the consolidation was unlawful
and that the Commission lacked the authority to consolidate the claim. To that end a
settlement agreement was presented and the court, per Ngcukaitobi AJ, was requested
to make the settlement an order of court.
The court emphasised that making a settlement agreement an order of court was
not merely a process of rubberstamping for two main reasons: (a) as a custodian of the
rule of law the court had to ensure that the agreement was consistent with the rule of
law and (b) making it an order of court changed the status of the document in that it
became an enforceable instrument.21 It was within this context that the provisions of
18 ibid para [57].
19 LCC 60/2012, 19 November 2015.
20 ibid paras [3]–[10] generally.
21 ibid para [6].
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the settlement agreement were considered. The key elements22 of the agreement were
that the decisions of both the Minister and the Commission to consolidate the claims
were reviewed and set aside; the corresponding transfer of the land was invalid and
set aside and the matter had to be remitted to the Commission for further and proper
investigation into all claims by the appointment of an independent researcher. Pursuant
thereto a structural interdict was furthermore included in that a working plan was to be
submitted to the court on an ongoing basis and monthly reports had to be furnished as
well. Once the Commission had completed its investigation, mediation was proposed. If
mediation was unsuccessful, the matter was to be referred to the LCC for adjudication.
In the meantime the Ndwandwe Community Trust was prohibited from disposing of any
assets linked to the land.
In accordance with Eke v Parsons23 an agreement can be made an order of court if
three requirements are met, namely (a) the agreement must relate to an issue in dispute
between parties, (b) the agreement must be in accordance with the Constitution and the
law and (c) the agreement must hold some practical and legitimate advantage. With
regard to the former, the court conrmed that two issues were in dispute between the
parties. First, the lawfulness of the decision of the Minister and, second, the remedy,
as funds were paid to the former owners and a grant was awarded to the Trust. As the
settlement dealt with all these issues, it passed the rst test.
The second requirement provides that the settlement agreement must be in line with
the Constitution and the law. This is more pertinent with regard to restitution as section
25(7) of the Constitution provides specically for the restitution programme, so too
does the whole of the Restitution Act deal with the restitution programme. In this regard
the broad process of lodging and nalising claims is set out in para 13 of the judgment.24
Considering the requirements25 and the procedure, it was clear that the Commission and
the Minister failed to consider whether the fth respondent was a community at the time
the claim was lodged. The Trust came into existence only subsequent to the lodging of
the claim. However, it would be possible to transfer land to a subsequently created entity,
if the transfer was done with the knowledge and consent of the original claimants.26 The
decisions to consolidate the claims and to transfer the claims to a newly-created entity
were therefore not authorised.27 Also, in this regard the agreements aimed to set the
record straight and therefore met the second requirement in that it was in line with the
Constitution and the law.
The third stage of the Parsons test requires some practical and legitimate advantage.
This would be achieved if the agreement can be brought into operation sensibly.28 Within
22 ibid para [9].
24 See also Juanita M Pienaar, Land Reform (Juta 2014) 527–32.
25 ibid 356–64.
26 Parsons (n 23) para [15].
27 ibid para [16].
28 ibid para [17].
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the constitutional domain this means that the agreement must be just and equitable.
It is this dimension that the court found lacking, here the agreement as it currently
stood required a fresh investigation of the claims. However, there was no justication
for a new investigation as both claims had been scrutinised and validated already. The
only issue to be dealt with was whether the land had been transferred to the correct
entity upon the nalisation of the investigation. In this context the court had no grounds
to prescribe that the Commission appoint an independent researcher. The agreement
as it stood therefore interfered with the internal workings of the Commission.29 The
agreement was furthermore cumbersome as it provided for a three-stage process,
namely (a) the appointment of an independent researcher, (b) the mediation process and
(c) adjudication by the court. In light of the time that had already been lost and because
the process is so cumbersome, the court found that imposing these requirements would
simply perpetuate the delays in the resolution of the matter.30
The result was an amendment of the agreement to bring it more in line with the
objectives of the Restitution Act. In the nal amended order the decisions of the Minister
and of the Commission remained invalid and therefore were set aside, so too was the
registration of the land. The land was to be registered in the name of the Minister to
be held on behalf of the State. The following questions were forthwith referred to oral
evidence: (a) whether the land should be registered in the name of the applicants; (b) if
the land is to be registered in the name of the applicants, the persons who were entitled
to the land and the basis thereof, and (c) what steps, if any, should be taken in respect of
the funds paid to the fth respondent in the form of a grant.
The judgment will go a long way to streamline the process further, thereby
expediting restitution claims overall. Concluding settlement agreements successfully is
to be encouraged, nevertheless, it is important that the court plays an oversight role and
that all agreements are scrutinised before being rubberstamped. Speeding up the process
is certainly a valid objective, but it is also crucial that the agreement as a whole is above
reproach and is in line with the Constitution and the relevant law. While this judgment
dealt with settlement agreements within the restitution context, the broad framework is
also useful in other contexts, like the ESTA context, as alluded to above with reference
to the Du Randt case.
29 ibid para [18].
30 ibid para [19].
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3. LAND REFORM
3.1. Land Titles Adjustment Act 111 of 1993
Land was designated in the district of Sekhukune in the Limpopo Province in terms of
section 2(1) of the Land Titles Adjustment Act.31
3.2. KwaZulu-Natal Ingonyama Trust Act 3 of 1994
The KwaZulu-Natal Ingonyama Trust Act 3 of 1994 came to the fore in the case of
Gladys Phindile Ngubo NO v Allison Musa Ndlovu and Ithala Development Corporation
Ltd.32 The case dealt with land situated in KwaZulu-Natal, registered in the name of the
Ingonyama Trust, established under the KwaZulu-Natal Ingonyama Trust Act. The land
in question was registered and occupied in terms of a permission to occupy (PTO) by
the respondent since 1983. The respondent borrowed money from the intervening party
and ceded his (the respondent’s) right, title and interests in relation to the PTO to the
intervening party as security. When the respondent failed to honour the debt default
judgment was granted, resulting in the property being sold in execution and transferred
to the intervening party. The intervening party sold the right, title and interest of the
PTO to the joint estate of the present applicants after which applicants took occupation
of the property in June 2004. The respondent applied for an eviction order which was
granted but not executed. While the eviction order was stayed, the present application
was lodged by the applicant in April 2012 requesting a rule nisi, with the following
relief: (a) interdicting the respondent from entering the property; (b) conrming the
applicant’s right, title and interest under the PTO and; (c) suspending the eviction
application for the duration of the proceedings aimed at clarifying the matter.33
Regarding the interdictory relief prayed for by applicant three requirements must
be met, namely proving an infringement of a clear right, that injury was actually
committed or was reasonably apprehended and that no other remedy was available.
The court per Gorven J underlined that the rst requirement was especially difcult
since the respondent denied the cession of the PTO to the intervening party. Thus it
was unclear whether the applicant or the respondent was the rightful holder of the PTO.
Furthermore, as the notion of the ownership of property and the right to occupy was used
interchangeably, confusion resulted.34 When considering the conditions of paragraph 3
of the PTO conditions, the holder was prohibited from transferring, mortgaging, ceding,
leasing, subletting or disposing of the PTO property without prior written approval.35
31 Gen Not 194 in GG 39110 of 2016-04-08.
32 Case no 3425/2012, 19 February 2016, KwaZulu-Natal High Court Division, Pietermaritzburg.
33 ibid paras [1]–[4].
34 ibid para [5].
35 ibid para [6].
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According to the respondent no prior consent was granted to transfer the PTO at the
time of launching this application, either to the intervening party or to the applicant. The
respondent also alleged that the intervening party was not entitled to execute against this
right of the PTO by relying on the conditions in paragraph 5 of the PTO. Paragraph 5
provides that ‘the rights of the holder in or to an allotment shall not be liable to execution
for any debt other than a debt due under a duly registered mortgage bond or a debt to
the South African Development Trust or other statutory body which has been granted
administrative control of the land’.36 According to the respondent the intervening party
was not capable of possessing the right to the PTO, as it was not a statutory body.
This contention was based on the fact that the Act requires the Trust to administer land
registered in its name, which should be held to the benet, material welfare and social
well-being of the tribes and communities and the residents referred to in the schedule
to the Act. The intervening party did not comply as he was neither a statutory body nor
a resident.37
There was also the matter of a settlement agreement that was entered into between
the applicant and the respondent, which was never disclosed during the proceedings.
Based on the settlement agreement which entailed that the applicant agreed to vacate
the property in January 2012, the eviction was stayed. However, at that same time the
applicant applied for cancellation of the eviction order. In light of this the applicant
argued that the settlement agreement had fallen away due to the rescission of the eviction
application. What was problematic was that the settlement agreement had not been dealt
with during any of the previous proceedings. In fact, there was no mention at all of the
settlement agreement. Because it was never dealt with, it was impossible to ascertain
whether there was duress present when the settlement was agreed upon, as was claimed
by the applicant.38 Regarding the PTO it was clear that the applicant had not paid the
purchase price and therefore the right, title and interest in relation to the PTO could not
be transferred to the applicant. The respondent was thus still recognised to be the holder
of the PTO by the Board of the Ingonyama Trust.39
Judgments dealing with so-called ‘old order rights’ are not often handed down.
This judgment is interesting as it highlights the diverse measures regulating landholding
in a particular area within South Africa, namely land within KwaZulu-Natal. In this
regard the kind of right – a PTO – is impacted further by the fact that the land is held
in trust by the Ingonyama Trust, regulated under statute. Apart from the fact that the
level of complexity is increased, actually ascertaining how PTOs function, how they are
enforced and ultimately transferred, can be very time-consuming and difcult. Within
this context the rights of PTO-holders remain vulnerable, warranting further attention
and upgrading. In the meantime, noting the provisions and conditions of the particular
36 ibid para [7].
37 ibid paras [6]–[8].
38 ibid paras [9]–[13].
39 ibid para [21].
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PTO is the only way to protect their holders against unscrupulous persons. In this regard
attention to detail, as set out in the relevant PTO, is critical.
King Goodwill Zwelithini announced that he is going to commence a process to
give people on Ingonyama Trust land title deeds.40 However, it will be the Ingonyama
Trust who will have to decide on land alienation and division in terms of the KwaZulu-
Natal Ingonyama Trust Act and all new developments will have to be dealt with by
the municipality in terms of the Spatial Planning and Land Use Management Act 16
of 2013. Most of the individual land parcels in the rural areas in KwaZulu-Natal are
not surveyed and the process of surveying the land and dealing with land disputes will
take some time. It is also important to note that most of the land referred to is currently
disputed in terms of land claims.
3.3. Communal Property Associations Act 28 of 1996
On 4 November 2015 the Communal Property Associations Annual Report 2014–2015
was presented to the Portfolio Committee on Rural Development and Land Reform.41 On
31 March 2015, 1 428 communal property associations (CPAs) had been registered (of
which forty-eight in the nancial year 2014/15). CPAs were established in terms of the
Restitution Programme and the Redistribution Programme, with the highest percentages
of CPAs in KwaZulu-Natal (twenty-ve); Mpumalanga (twenty-four) and Eastern
Cape (fteen). The report identied ve challenges experienced by CPAs, namely
persistent conict amongst CPA members related to governance matters such as a lack
of accountability and transparency, nancial mismanagement and non-compliance with
the CPA constitution concerned, insolvency, the abuse of legal proceedings to prevent
CPA members from participation, alienation of immovable property registered in the
name of the CPA and the fact that nine CPAs were subject to judicial administration.
According to departmental records twenty CPAs had lost their land (through selling or
being acquired by creditors). CPA compliance consists of ve elements: (a) an updated
membership list, (b) a valid CPA constitution, (c) the holding of regular annual general
meetings, (d) elections to take place on a regular basis in accordance with the provisions
of the Communal Property Associations Act and (e) the timeous submission of annual
reports to the director-general of Department of Rural Development and Land Reform
(DRDLR). 147 CPAs (involving 30 108 households and 104 583 beneciaries, relating
to 411 194.76 ha) had been referred for regularisation to the DRDLR’s Land Rights
Management Facility (LRMF) – forty of which were regularised. Within this context,
40 Amanda Khoza, ‘Process to Give Zuma Title Deeds to Nkandla Land to Start Soon’ News24 (10 June
2016) accessed 3 July 2016.
41 DRDLR, ‘Communal Property Associations Annual Report: 2014–2015’ (4 November 2015) AReport.pdf> accessed 2 July 2016.
pmg.org.za/les/151104CPA.ppt> accessed 2 July 2016;
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regularisation denotes the provision of mediation and assistance to the CPA in order to
ensure compliance.
The Communal Property Associations Amendment Bill, 2016 was published on 22
April 2016, and seeks, among others, to extend the application of the Communal Property
Associations Act to labour tenants, to establish a Communal Property Associations
Ofce and to provide for general plans in respect of all CPA land, improved protection
of communities in respect of movable and immovable property, strengthened measures
for the management of CPAs placed under administration and clarity relating to the
content of annual reports to be submitted by CPAs to the director-general of DRDLR.42
3.4. Extension of Security of Tenure Act 62 of 1997
With regard to eviction applications under both ESTA and PIE (discussed in more detail
below) a theme that emerges very clearly is that having locus standi to lodge eviction
proceedings is by no means a guarantee that the application will be successful. That
is the case because legislation regulates this area of law – not the common law – and
further, that eviction applications will be successful only if the granting of the eviction
order is just and equitable in the circumstances. All relevant circumstances have to be
considered in order to reach that conclusion. Pre-constitutional or purely common law
approaches are out of place in this context. To that end automatic review takes place
under section 19(3) of ESTA so as to ensure that the statutory requirements have been
met. The judgments discussed here show clearly that some courts still grant eviction
applications in line with a pre-constitutional approach and/or in direct conict with
relevant statutory provisions.
Molusi v Voges43 is an application for leave to appeal and an appeal from the
Supreme Court of Appeal (SCA) to the Constitutional Court (CC) regarding an eviction
application granted in the LCC and conrmed in the SCA. The SCA-judgment was
discussed previously in ‘Land matters 2015(1)’. In the previous discussion the continued
reliance on the common law as a foundation for the granting of the eviction order under
ESTA was specically questioned. Essentially the CC conrmed that the common law
cannot be utilised where persons fall within the ambit of ESTA, despite the averment
that the initial basis for occupation was in terms of a lease agreement.
What the CC had to determine here was whether the termination of the right of
residence and eviction of the applicants were in compliance with the relevant provisions
of ESTA.44 In answering the question the court, per Nkabinde J, highlights that the
Constitution remains the point of departure, including issues pertaining to the common
law.45 In the present matter the respondents argued that the basis of occupation of the
42 Gen Not 243 in GG 39943 of 2016-04-22.
43 [2016] ZACC 6, 1 March 2016.
44 ibid para [2].
45 ibid para [6].
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applicants was a lease agreement. The applicants were in breach of a material term of the
lease agreement, namely the duty to pay rental, hence the cancellation of the lease. This
averment was later expanded on twofold: that they had to demolish the homes as they
wanted to develop that part of the farm and further, by relying on ownership it meant
that a periodic lease could be terminated on reasonable notice. The applicants, however,
alleged that they tendered payment and that they did not receive eviction notices. In the
LCC the decision was reached that the right of residence was terminated in accordance
with ESTA and that the requirements were also met. On appeal to the SCA the eviction
order was conrmed on the basis that the lease had been terminated validly – either
on the basis that the rental had not been paid or on the basis that the land owners were
entitled, at common law, to terminate the lease as they had given reasonable notice of
such termination.46 The SCA furthermore found that there was compliance with ESTA
and consequently reached the conclusion that the granting of the eviction order was
just and equitable. In its approach the SCA relied on Graham v Ridley47 and Brisley v
Drotsky48, thereby emphasising that the circumstances that were legally relevant had to
be considered.49
The CC was satised that the application for leave to appeal concerned constitutional
issues and proceeded to determine whether the reliance on the common law ground in the
present matter was correct. Of importance was the fact that the SCA essentially relied on
pre-Constitution authority. However, as Judge Nkabinde sets out very plainly, and in line
with what was argued previously in ‘Land matters 2015(1)’ ESTA has very particular
application, to particular, vulnerable categories of persons, for particular reasons.50
Relying on a ‘common law ground’ cannot force the matter into the (pre-constitutional)
common law paradigm. In this regard the nding of the SCA that the respondents were
‘perfectly entitled to rely … on such common law grounds as availed them in support
of the pleaded claim for eviction as a single cause of action’ was clearly incorrect.51
Section 9(1) of ESTA states specically that: ‘notwithstanding the provisions of any
other law, an occupier may only be evicted in terms of an order of court under this Act’.
Clearly, ‘[t]he phrase “any other law” includes the common law’.52 Furthermore, the
mere ground that the termination of the lease was lawful is not tantamount to granting
the eviction application. The provisions of ESTA become relevant and all have to be
complied with, including an exercise to determine whether the granting of the eviction
order would be just and equitable. By relying on the common law ground only for
termination of the lease and thereafter to grant the order on that basis, ‘would make a
46 ibid paras [16]–[17].
47 1931 TPD 476.
49 Molusi (n 43) para [19].
50 ibid para [39].
51 ibid para [29].
52 ibid.
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mockery of the constitutional scheme regarding the regulation of eviction of vulnerable
occupiers from land to achieve long-term security of land tenure in a fair manner’.53
With reference to case law dealing with PIE the CC furthermore highlighted that
‘the criteria to be applied are not purely of a technical kind that ow ordinarily from the
provisions of land law’.54 While the references to case law relate to PIE, the remarks
are equally valid in relation to ESTA.55 Here, given the particular provisions of ESTA,
the following factors and circumstances have to be considered specically:56 the fact
that the probation ofcer’s report stated that there was no alternative accommodation
available and that the termination of their lease would have rendered them homeless. In
this context section 8(1)(d) of ESTA ought to have been considered. That did not happen.
Furthermore, if the applicants were offered the opportunity to make representations they
could have placed additional facts before the court and would have had the opportunity
to explain why the cancellation of their leases and right of residence was unjust. Again,
this did not happen.57 In this regard:58
It follows that the respondents were not entitled to rely, as they did, on the common law principles
as bases for eviction when the grounds were not set out in the notice and properly pleaded. The
Supreme Court of Appeal may be correct that, at common law, the land owner ‘would have
been entitled to the relief sought’. But that common law claim is now subject to the provisions
of ESTA. The provisions of sections 8, 9, 10 and 11 of ESTA have the result that the common
law action based merely on ownership and possession, as in Graham v Ridley, is no longer
applicable … the risk of repetition, reliance on the common law does not exonerate owners
from compliance with the provisions of ESTA. The fairness of the eviction would still have to
be considered having regard to all relevant circumstances. All such relevant factors were not
considered. It follows that the reliance on the common law ground was, in the circumstances of
this case, unfair to the applicants and impermissible.
Given that ESTA was indeed the relevant statutory measure, the next issue was whether
the requirements of the Act had been complied with. Having regard to the provisions
of ESTA in general, it is clear that fairness plays an important role in the process as a
whole. While it is correct that the cancellation of a lease on the basis that rental had
not been paid constituted a lawful ground for termination, the enquiry does not stop
there. Instead, the termination must also be just and equitable, considering the factors
listed in section 8(1)(a)–(e): the fairness of the ground on which the owner or person
in charge relies; the conduct of the parties giving rise to the termination; the interests
of the parties – including the comparable hardship to the parties; and the fairness of the
procedure followed by the owner or person in charge, including whether the occupiers
53 ibid para [30].
54 ibid para [31].
55 ibid.
56 ibid paras [34]–[35].
57 ibid para [36].
58 ibid paras [37]–[38].
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were given an effective opportunity to make representations before the failure by the
occupiers to pay rental.59 The SCA did not comply with section 8 – instead, the court
relied on the common law principles of the rei vindicatio and the reasonableness of the
notice of termination:60
In other words, the Court did not strike a balance between the interests of the owner of the
land and those of the occupiers as to infuse justice and equity or fairness into the enquiry. The
Supreme Court of Appeal did not consider the fairness of the termination of the applicant’s right
of residence. Nor did it give sufcient weight to the hardship that would eventuate from the
termination of the rights of residence and eviction.
Accordingly, the eviction application did not comply with ESTA. The SCA ought not
to have dismissed the appeal. The CC granted leave to appeal and consequently upheld
the appeal. This judgment underlines that common law evictions are things of the past.
The capacity to lodge an eviction application – including on a lawful ground like the
termination of a lease – supplies only a foundation for the lodgement. The eviction
process entails much more than merely indicating standing or that there is a ground for
the action. It involves considering all relevant circumstances, but within a particular
paradigm, which had been adjusted considerably by way of legislation. In this regard
both PIE and ESTA have changed the eviction landscape drastically where residential
property, homes and shelters are at stake.
Rula Tecno Park (Pty) Ltd v Mahlangu61 set aside an order granted by a magistrate
during the automatic review process provided for under section 19(3) of ESTA. The
starting point of the judgment of the lower court was that none of the conrmatory
afdavits were signed by the respondents and twenty-ve respondents failed to deliver
conrmatory afdavits.62 The decision of the magistrate to exclude the conrmatory
afdavits, although the record of the proceedings included thirty-two signed conrmatory
afdavits led by the rst to 32nd respondents, was of such a sufciently serious nature
that it entitled the LCC to set aside the whole of the judgment and to evaluate the case
afresh.
The application was lodged on the grounds that the occupiers had no legal right
to reside on the property, had committed certain acts of misconduct and the property
was required for business purposes. At least four of the respondents had been in
occupation when the Act commenced in 1997, thereby involving section 10 of ESTA,
whereas the other occupiers settled at a later stage, involving section 11 of the Act.
While considering the case afresh, it became clear that there was no meaningful enquiry
into the allegations of misconduct by the occupiers. The result was that the evidence
before the court did not support the magistrate’s conclusions. Overall, the applicant did
59 ibid para [44].
60 ibid para [45].
61 [2015] ZALCC 10, 23 November 2015.
62 ibid para [25].
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not meet the requirements of sections 10 and 11 of the Act. The right of residence of
occupiers had not been properly cancelled or terminated either. Furthermore, the le did
not contain a probation ofcer ’s report, as required under section 9(3) of ESTA. There
was also no indication that a probation ofcer’s report had ever been requested. The
order of the magistrate was consequently substituted by an order of the LCC dismissing
the eviction application.
In Farm Goedgedacht 228 (Pty) Ltd v Illegal Invaders and/or Occupiers of Portion
4 (A portion of portion 1) of the Farm Goedgedacht 22863 the applicant applied for an
eviction order against respondents, as well as an interdict on the basis that the property
known as portion 4 of the farm Goedgedacht 288 had been invaded by unknown
persons. While no opposition was led, at the day of the hearing two of the land invaders
attended court, stating they represented the illegal invaders and all other people residing
on the farm who were likely to be affected. They averred there were two categories of
people living on the farm: (a) those who have resided on the farm for long periods with
consent and (b) recent occupiers who appeared to have been part of an orchestrated land
invasion. Negotiations led to a draft order providing for the following:64 an interdict
against any further unlawful occupation of the property, an eviction order in relation to
persons forming part of the orchestrated land invasion and an identication process for
all unlawful occupiers and their family members.
Overall, Ngcukaitobi AJ was reluctant to issue an eviction order as it could also
impact negatively on long term occupiers. To that end the execution of the interim order
was suspended, pending the ling of answering afdavits. Inevitably a postponement
resulted. Additional information was requested regarding the identities of the parties
living on the land, their circumstances and the potential availability of alternative
land in the event of an actual eviction. The DRDLR (Department) in Mpumalanga
consequently drafted such a report, indicating that no alternative accommodation
was available.65 Due to the degree of outstanding information, the court conducted an
inspection in loco, inter alia, to establish the identities and circumstances of those most
likely to be affected by the order, in relation to both the long-term and more recent
occupiers. Such an inspection was necessary as – at this stage – in the event of an actual
eviction or demolition order, the sheriff would be unable to determine which structures
should be demolished. The court furthermore required concrete details regarding the
actual invasion as to when and how (overnight or gradual) it occurred. In this regard the
court had to determine whether the requirements of ESTA had been met. ESTA draws a
distinction between ‘usual’ and long-term occupiers, as well as between occupiers who
settled before the Act commenced in 1997 and thereafter. In this context occupiers with
consent could not be affected by the eviction order.66 The applicant permitted persons
63 LCC 283/2015, 23 February 2016.
64 ibid paras [1]–[3].
65 ibid paras [4]–[5]].
66 ibid para [7].
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employed on the farm to reside on the farm under a lease or rental agreement. However,
upon retrenchment of farm workers from 2012 to 2013 in terms of the Labour Relations
Act 66 of 1995, some employees remained in occupation on the farm. Since then the
applicant has been involved in discussions with the Department concerning the sale of
the land, although nothing has been nalised. Since 2013 further unlawful occupation
occurred on the farm, inter alia, involving the allocation of stands in accordance with
specic demarcations. From the inspection it was clear that a well-orchestrated land
invasion took place, thereby necessitating a clear separation of the long-term occupiers
from the unlawful invaders. In this regard an order was issued to remove the markings
that demarcated individual stands, to demolish structures and to remove building material
from stands where building had not commenced or was incomplete as on 1 March
2016. Fifteen households were identied as long-term occupiers on the farm who could
remain in occupation. All other illegal invaders were ordered to vacate the property by
1 March 2016. The third respondent was further ordered to provide emergency housing
to the identied long-term occupiers’ households within sixty days of the granting of
the order and to report back to court within a set period of time. In the case of the
emergency housing being provided by the third respondent the fteen households were
ordered to vacate the property within fteen days.67 This case illustrated the necessity
of an inspection in order to determine the correct facts. In this case it was integral to
distinguish between the long-term occupiers under ESTA on the one hand and unlawful
occupiers (land invaders) on the other.
As is usually the case, various reviews under section 19(3) of ESTA occurred
during the report period. In the following automatic review proceedings judgments of
the lower courts were set aside or remitted to the magistrates’ court: Enslin v Nel68 and
Cillie v Volmoer69. In the Enslin case the occupiers had been in occupation of a house
for more than two decades, with the consent of the land owner, albeit in the absence of a
written, formal agreement. The land owner applied for an eviction order without setting
out the specic grounds for eviction. While the service of documents was in order and
a probation report was attached in line with section 9(3) of ESTA, the exact grounds
for eviction and the implications of the eviction for the occupiers, remained unclear.
Despite this shortcoming, the eviction order was granted in the magistrates’ court. As
was decided previously in the LCC, setting out the grounds for eviction was not only
prescribed by ESTA, but was necessary so as to enable the occupier who stands to be
evicted, to prepare sufciently for the case against him or her. If the grounds for eviction
are not set out clearly, the occupier has no idea what the case against him or her is about.
Neither did the probation report assist the court as there was no indication of whether
the eviction would render the occupiers homeless or whether there was alternative
67 ibid para [9].
68 [2016] ZALCC 4, 17 February 2016.
69 LCC 50R/2015, 15 February 2016.
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accommodation available.70 On the other hand, refusal by the occupiers to enter into a
lease agreement and refusing to vacate the property thereafter could highlight matters
of interest or to the benet of the land owner. To that end the probation report ought
to have been much more detailed so that the court was able to consider all relevant
circumstances before granting the eviction order.71 In this context there was insufcient
information before the court to determine whether the granting of the order would be
just and equitable in the circumstances.72 In this light the judgment handed down by
the magistrates’ court was set aside and the applicant was granted leave to renew its
application.
In the Cillie case the matter was remitted to the lower court following the review
proceedings under section 19(3) of ESTA. The rst and second respondents are husband
and wife and have two dependent children. The husband was dismissed in 2010
following a disciplinary hearing. He was allowed to remain on in the dwelling with
his wife on the basis of their spousal relationship. In 2012 the wife was also dismissed
following a disciplinary hearing. On the basis that the residential housing policy of
the farm provided housing for employees only, the second respondent’s residence was
terminated.73 In the process of determining whether all the requirements for eviction
had been complied with, the court, per Baloyi AJ, conrmed that the relevant provision
was section 11 of ESTA as the respondents became occupiers after 4 February 1997,
the date on which the Bill was published for comment.74 In this regard the court was
satised that the employment contract had been terminated, that the right of residence
likewise had been terminated lawfully and that the ground for such termination was
indeed fair. However, no section 9(3) probation report formed part of the documents.75
While the submission of such a report is not a xed requirement of ESTA, the CC had
warned previously that a court should be reluctant to grant eviction orders unless it is
satised that reasonable alternative accommodation is available, even if only on an
interim basis. Therefore, a proper consideration should have been given to the issue of
whether alternative accommodation was available. This is even more pertinent in light
of the fact that two dependent children were involved.76 How the rights of the children
would have been affected and the possible hardship was therefore not considered.
Accordingly, the absence of a probation report and the implications there of, had to be
considered specically. In this light the eviction application ought to have been refused.
The order of the magistrates’ court was accordingly set aside and the matter remitted to
the lower court to obtain a probation report under section 9(3) of ESTA and to consider
all relevant facts and factors, as required under section 9(2).
70 Enslin (n 68) paras [11], [22].
71 ibid paras [12]–[16].
72 ibid paras [16], [23].
73 Cillie (n 69) paras [2]–[5].
74 ibid para [13].
75 ibid para [16].
76 ibid.
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Du Randt v Khaka and Others77 entailed an application to make a settlement
agreement an order of court. In light of Eke v Parsons,78 discussed in more detail above
within the restitution context, the LCC considered whether the settlement agreement
reached between the parties could be conrmed. While the main considerations
highlighted in the Parsons case were indeed complied with, the court, per Ngcukatobi
AJ, took issue with particular practical matters inherent in the agreement. The land
owners were generous and offered to pay for a house for the occupiers which would
enable them to relocate. The relocation as such would also be funded by the land owners.
However, the site on which the new property would be built had not been claried and
neither had the specications of the new house been set out.79 There was furthermore no
date for the eviction (relocation) and a further date on which the eviction order would be
executed if the relocation had not taken place as planned. The absence of a rst date for
relocation seemed sensible as the building of a new house was somewhat unpredictable
and could take longer than anticipated. Although the absence of a rst date was not fatal
to the settlement agreement (fteen days after the nalisation of the house), a second
date was necessary or at least some kind of timeline in terms of which the execution
of the order could take place. In this regard the settlement agreement was conrmed as
meeting all the requirements and an additional clause was inserted stating that the order
would be carried out within seven days after the failed vacation of the property.
These kinds of settlement agreements are not uncommon in relation to ESTA. While
they are often seen as generous in that housing is provided by (former) employers, it
is an effective way of negotiating eviction in that former occupiers are paid to vacate
relevant land. In this way private land owners are taking up some governmental duties
by supplying housing. On the other hand, evictions are being secured in this fashion. In
this context setting out clear requirements before settlement agreements are routinely
rubberstamped, is crucial. As long as livelihood issues remain integral in ESTA-related
matters, these kinds of settlement agreements which simultaneously secure eviction and
accommodation, will be part-and-parcel of administering ESTA.
Umbeco Properties (Pty) Ltd v Suhla Sprinkaan Masango80 dealt with the number
of cattle and goats the occupier was able to keep on property belonging to the land
owner. The crux of the judgment is, though both the land owner and the occupier have
rights in relation to the land being owned and occupied respectively, such rights have to
be exercised in balance and in a reasonable fashion. In this case various contracts were
entered into with varied numbers of livestock the occupier was able to have on the land.81
Despite not having clarity regarding the exact numbers, it was clear that the occupier
could not act unreasonably. Furthermore, there was no evidence that the occupier at
77 LCC 67R/2015, 16 November 2015.
78 Parsons (n 23).
79 Du Randt (n 77) para [11].
80 LCC 175/2014, 10 March 2016.
81 ibid paras [10]–[19].
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any time had the right to use the entire southern portion of the land in question. At the
time the application was lodged, the occupier had 105 head of cattle, which was much
more than the land could carry sustainably, given that the land owner also utilised the
pasture. Accordingly, acting reasonably and having regard to the numerous attempts of
the land owners to curb the number of livestock, it was clear that the number of cattle
and goats had to be restricted. Restricting the number of livestock furthermore was not
constructive eviction, as was claimed by the respondent.82
Although a counter claim by the respondent that he could not be evicted as he
had lodged a labour tenant claim was dismissed,83 the court did not distinguish clearly
between the categories of occupiers for purposes of ESTA and labour tenants under the
Land Reform (Labour Tenant) Act 31 of 1996. In fact, the court concluded as follows:84
‘Having found that the demand that the rst respondent reduce his livestock to the
permitted number does not constitute an eviction, it is not necessary that I express any
views on the alleged claim in terms of the Labour Tenants Act. Accordingly, I do not say
any more on this defence’.
However, by ascertaining the status of the respondent in the rst instance by
distinguishing between an occupier under ESTA and a labour tenant, would have secured
a simpler and faster solution to the matter. That is the case because the respondent was a
rst generation occupier and does not fall within the category of labour tenants. In that
regard the right to use pasture and cultivate the land does not automatically form part of
the respondent’s rights. Restricting the livestock would then form part of the balancing
of rights under section 5 and 6 of ESTA specically.
The brief discussion here highlights that it is still difcult to employ ESTA in
practice and to realise the objectives of the Act on a daily basis. It is inconceivable that
after almost two decades of being in operation eviction applications are still granted
without following the correct procedures or considering all the relevant issues. In this
context the exercise of automatic review under section 19(3) remains critical and will
probably be part-and-parcel of ESTA’s application for many years to come.
4. UNLAWFUL OCCUPATION
Interesting judgments were handed down during the period of report and various
prominent themes emerged. Of importance is the following: although it is important to
establish whether an applicant has standing to lodge eviction proceedings (eg, a person
who has a right of habitatio), mere standing under PIE would not guarantee the granting
of an eviction order. In this regard the process of considering the application and
whether an eviction order has to be granted is an involved and intricate process. Under
common law prior to the new constitutional dispensation having standing to lodge
82 ibid para [22].
83 ibid paras [23]–[24].
84 ibid para [25].
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eviction applications (as owner or person in charge) often also guaranteed the granting
of the order. Presently, having the capacity to lodge an eviction application is by no
means a guarantee of success. Whether it is just and equitable to grant evictions can only
be considered with regard to all relevant circumstances. To that end a more involved,
investigative role is called for – passive application of legislative measures is not good
enough post-Constitution. Apart from this theme, the importance of broadening access
to land and housing and the administration and regulation connected therewith, often
intertwined with unlawful occupation, are highlighted.
4.1. Standing to lodge eviction proceedings
As A Hendricks v M Hendricks85 was discussed previously, all of the facts and issues
will not be repeated here. The focus of this rather brief discussion is on the eviction
dimension only. The issue before the SCA was whether the holder of a right of habitation
could employ PIE against the owner of immovable property. In this regard the holder
of the usufruct lodged an eviction application against her former daughter-in-law and
co-owner of the house in question. Due to the souring of relationships between the
relevant parties, including the applicant and her son (who has since then divorced his
wife) and the former daughter-in-law alluded to above the applicant and holder of the
usufruct vacated the house. She has in the meantime decided to return to the house
and consequently lodged the eviction application on the basis that she was the person
in charge of the property in question, as required by section 4 of PIE. Up to this point
the applicant had been unsuccessful in the magistrates’ court86 and the full bench of the
Western Cape High Court on the basis that the respondent was not an unlawful occupier
for purposes of the Act.87
In the SCA the judgment was overturned on the grounds that (a) the holder of a right
of habitation was indeed a person in charge of property for purposes of PIE; and (b) that
the person occupying immovable property can be an unlawful occupier under section 1
of PIE if such occupation is without consent of the person holding the habitatio,88 with
reference to October NO v Hendricks.89 However, complying with the denitions of
‘person in charge’ and ‘unlawful occupier’ is no guarantee that the eviction application
would be successful. Under section 4(7) of PIE an eviction order may be granted only if
it is just and equitable in the circumstances. While the factors listed in section 4(7) do not
represent an exhaustive list because ‘all relevant circumstances’ have to be considered,
they do include references to children, the elderly and female-headed households. In the
present case the occupiers consisted of a female-headed family (the former daughter-in-
85 [2015] ZASCA 165, 25 November 2015.
86 ibid para [5].
87 ibid para [2].
88 ibid para [9].
89 [2013] ZAWCHC 12, 31 January 2013.
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law) and at least one minor child. In this regard the SCA was not prepared to grant the
eviction order without having considered all the relevant facts and circumstances. As
insufcient information was before the court at this juncture, the case was remitted to
the magistrates’ court for a full enquiry under section 4(7).90
The judgment claried the issue whether a person as holder of a right to habitation
(which is a personal servitude) has standing to lodge an eviction application under PIE.
For the purpose of PIE such a person is indeed ‘in charge’ of the relevant property. This is
the case even if the application is lodged against the registered owner. In this regard the
interplay between principles owing from the Law of Things and the provisions of PIE
is particularly interesting here. While the circumstances of the present occupiers were
specically alluded to in the SCA, it is critical that the circumstances of the applicant,
a single, elderly lady, are also considered when the magistrates’ court deals with the
matter again. That is important, not only because of the property law dimension, but also
in light of her right of access to adequate housing under section 26 of the Constitution.
4.2. Consideration of eviction applications
Pitje v Shibambo91 dealt with various matters, including double sales and the implications
thereof for the persons involved. However, this discussion focuses only on the particular
approach that is required when PIE is involved. The facts are briey the following: the
applicant is a seventy-six-year old person who suffers from ill-heath who has been in
occupation of the relevant property since birth.92 The property was originally part of the
applicant’s late father’s estate which was registered in the applicant’s brother’s name
(also Mr Pitje) in 1992. However, when the brother experienced nancial difculty, the
applicant took over the bond payments pursuant an agreement to purchase the property
in 2001, at a purchase price of R63 000. The applicant averred that he made various
payments to Nedcor until at some undisclosed point Nedcor inexplicably informed him
that the bond had been closed. In 2001 the present respondents as the purchasers and the
brother as the seller, entered into a sale agreement under the guidance of Bluegloo.co,
estate agents. When the applicant heard about these developments his attorneys drafted
a letter stating that the brother had ceded all his rights in relation to the property and that
the sale was unlawful and wrongful. However, before that letter was sent, the property
had been transferred into the names of the present respondents. The latter subsequently
launched eviction applications against Mr Pitje, which were granted in the high court.
The order was granted by default as Mr Pitje failed to le opposing papers despite
having led a notice of intention to oppose. Mr Pitje’s defence against the eviction was
that the sale between the two Pitje brothers was valid and that the present respondents
were therefore not bona de purchasers and that hence the transfer into their names was
90 Hendricks (n 85) para [13].
91 2016 (4) BCLR 460 (CC).
92 ibid paras [4]–[7].
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assailable. In the alternative he alleged that Mr and Mrs Shibambo failed to comply with
the requirements of section 4(2) of PIE.93
In the High Court the eviction order was granted on the strength of Bowring v
Vrededorp Properties CC94 on the basis of double sales. In this regard it was found that
the present applicant bore the onus of showing that Mr and Mrs Shibambo had prior
notice of the sale between himself and his brother. As Mr Pitje failed to discharge that
onus, the present respondents were bona de purchasers resulting in their acquiring
unassailable rights to the property once it was transferred.95
Presently before the CC is an application for leave to appeal the high court order. The
issue also impacts on two fundamental rights: the right to property [s 25] and the right to
have access to adequate housing [s 26(1)] and not to be evicted from a home without a
court order made after considering all relevant circumstances [s 26(3)96]. The court, per
Nkabinde J, was satised, by reading the High Court judgment, that the requirements of
section 4 of PIE were not considered fully.97 It was emphasised that the application of
PIE, where residential issues are relevant, is not discretionary.98 Furthermore, of critical
importance is the fact that all relevant circumstances have to be considered in order to
determine whether the granting of an order would be just and equitable. Of importance
is Mr Pitje’s particular circumstances, he is seventy-six years of age and in ill-health. He
has lived on the property his whole life and does not have alternative accommodation.
Refusal of joinder meant that the court could not consider all relevant circumstances,
including his disability and that an eviction order would render him homeless.99 Exactly
how courts are supposed to approach the application if PIE is critical:100
Moreover, courts cannot necessarily restrict themselves to the passive application of PIE.
Even if there had been no joinder application, courts are obliged to probe and investigate the
surrounding circumstances when an eviction from a home is sought. This is particularly true
when the prospective evictee is vulnerable. These considerations would have enabled the High
Court to apply the requirements of PIE justly.
Accordingly, reliance on Bowring was displaced as the case did not concern eviction
from property, but related to double sales only.101 While it may have conrmed the
standing of the purchasers to initiate eviction proceedings, it could not shed any light on
whether the eviction order ought to be granted. That is the case because the granting of
the order has to be just and equitable in the circumstances. As the circumstances were
93 ibid paras [8]–[10].
95 Pitje (n 91) para [1].
96 ibid para [14].
97 ibid para [16].
98 ibid para [17].
99 ibid para [18].
100 ibid para [19].
101 ibid para [21].
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not considered at all, the granting of the order could not have been just and equitable.
On this basis the matter was remitted to the high court to proceed from the premise that
the applicant’s application to le an afdavit by way of joinder has been granted.
This is an important judgment that draws a very important distinction between the
capacity to lodge eviction applications on the one hand (establishing standing) and the
granting of an eviction application on the other. With regard to the rst-mentioned, it is
clear that owners or persons in charge of property have the standing to launch eviction
applications. Where bona de purchasers acquired ownership of immovable property
they thus have the necessary standing, as was the case here. Eviction applications
from residential property may be dealt with only by way of PIE. Being an owner of
property is therefore no guarantee that an eviction application will be successful –
based on ownership only. Clearly, a new approach to evictions generally and a new
eviction paradigm have emerged since section 26(3) of the Constitution, coupled with
PIE, became relevant.102 This much is phrased specically by Judge Nkabinde in the
passage above: rstly, courts have to apply PIE and, secondly, courts cannot apply PIE
passively. Engagement and investigation are required, which can only be done in light
of all relevant circumstances.
4.3. Access to housing, unlawful occupation of land and section
78-execution orders
While Mathale v Linda103 deals with a rather formalistic issue of whether a section 78
execution order issued under the Magistrates’ Courts Act 32 of 1944 is appealable, it
also has important implications for access to housing and the regulation of unlawful
occupation of land. The background facts portray a struggle to access land and
housing and extant administrative chaos in regulating the process.104 The applicant, Mr
Mathale, had been in occupation of the premises for more than twenty years after he
took possession of a parcel of land in 1994. While the initial occupation was unlawful,
the informal settlement was formalised and upgraded in around 1999, services were
provided and numbers allocated to lots. This allotment resulted in the relevant parcel of
land being allocated the number 8702. During the period of more than two decades the
Mathale family built a home on the land and improved the land continuously. Following
a further formalisation process a different number was allocated to Mr Mathale and the
number 8702 was allocated to the rst respondent, Mr Linda. The stand Mr Linda had
been occupying was in turn allocated to someone else living in the township. In 2000,
Mr Mathale was allocated a stand with an RDP house in another area, some seven
kilometres away from the township. Mr Mathale refused to relocate as he had immersed
himself in the community and built a home for himself and his family. That stand in the
102 Pienaar (n 24) 667–70, 805–06.
103 2015 JDR 2645 (CC.
104 ibid paras [7]–[18].
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meantime had been allocated to another person. Apart from an unlawful eviction that
occurred in 2004 and which had been dealt with sufciently since then, Mr Mathale
had been in occupation of the original stand since he occupied it in 1994. Although the
applicant admitted to not being the registered owner, he submitted a utility bill with his
name and the unit number 8702.
The rst respondent, Mr Linda, had been allocated the same stand, namely number
8702, during one of the upgrading and formalisation processes. In 2012 an eviction
order was granted against Mr Mathale in the magistrates’ court on the basis that Mr
Linda was the registered owner. Displeased, Mr Mathale appealed. A year later the
eviction appeal remained unprosecuted and Mr Linda applied in terms of section 78
of the Magistrates’ Courts Act for the eviction order to be implemented pending the
nalisation of the eviction appeal. The section 78 order was granted and, once again,
Mr Mathale appealed. In dismissing the appeal the high court found that a section 78
order could be appealed only if it was in the interest of justice and since it concluded it
was not the appeal was unsuccessful. The SCA thereafter dismissed the application for
special leave to appeal, resulting in the present application before the CC.
From the outset the CC, per Khampepe J, highlighted that constitutional rights were
at issue here as section 26 of the Constitution provided everyone with the right of access
to adequate housing and the protection against eviction without court supervision.105
Hence, three matters were to be decided: (a) generally, whether section 78 orders, and
those concerning an eviction from a home in particular, were appealable; (b) whether
the high court erred in its approach to the appeal; and nally (c) whether there were
grounds for the court to interfere with the discretion exercised by the lower court when
it initially granted the execution order under section 78.106
Concerning the rst matter, the court conrmed that generally it was not in the
interests of justice for interlocutory relief to be subject to appeal as it would defeat the
very purpose of that relief.107 However, the exception would be where the interlocutory
relief had the effect of a nal judgment. In the present matter it was clear that Mr Mathale
would lose his house if the eviction order was executed, leaving him homeless with no
alternative accommodation. The house would have to be dismantled with the result,
even if the order was not nally conrmed, that the house could not be reconstructed
in the exact same manner at a later stage. The house that was constructed over the past
twenty years would be gone. Accordingly, the impact of the interlocutory measure was
clearly nal.108 In the high court the point of departure was that interlocutory orders
were only appealable if it was in the interests of justice. However, in so doing the high
court applied the incorrect standard. The correct standard was whether the order granted
under section 78 was nal in its impact and effect. That standard could be established
105 ibid para [22].
106 ibid para [23].
107 ibid para [25].
108 ibid paras [27]–[28].
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only once the facts and circumstances were scrutinised, which never occurred.109 Apart
from the fact that the court did not investigate whether the order had the effect of a nal
order, it also refrained from considering that the loss of a home in the midst of litigation
was in itself an indignity.110 The human rights dimension was therefore not considered,
leading Judge Khampepe to state the following:111
It is prudent to restate the importance of the right of access to adequate housing, the purpose for
its constitutional protection and the need for courts to be more sensitive to housing matters …
Courts play a special adjudicative and oversight role in ensuring the execution of evictions in the
most humane manner possible. This duty is accentuated when a court is dealing with individuals
that are especially deserving of protection. This is not an act of judicial philanthropy, but a duty
borne out of the Constitution’s commitment to a life of dignity for all. For these reasons the High
Court order must be set aside.
With regard to the second matter, namely whether the CC could interfere with the
discretion exercised in the magistrates’ court, Judge Khampepe listed the instances
where such interference would be warranted: (a) where the discretion was exercised in
a non-judicial manner, (b) where the wrong principles of law were applied; (c) where
the court misdirected itself on the facts or (d) whether the court reached a decision that
could not have been reasonably reached by a court that properly appraised itself with
the relevant facts and legal principles.112 Having regard to the fact that the magistrate
considered the balance of convenience to favour Mr Linda, when that was not the case,
as well as the fact that it was found that the harm suffered by Mr Mathala was reparable,
when that was not the case, the CC was satised that the lower court failed to properly
direct itself to the relevant facts and legal principles.11 3 In this context interference was
warranted, leading to an exposition of when granting an eviction order would be just
and equitable as required.114
The question whether there was irreparable harm had to be considered with
regard to both parties. Mr Mathale’s position was already set out above. Mr Linda,
on the other hand, was allocated a stand, but did not receive security of tenure. In the
meantime he was also responsible for some of the expenses and service bills linked to
the property.115 The bungling of the allocation and administrative processes linked to
the allocation of housing clearly impacted negatively on both parties. Both parties were
further beneciaries of housing subsidies, which required further protection. However,
the harm suffered by the applicant, Mr Mathale, if the eviction was put into operation
109 ibid para [33].
110 ibid para [35].
111 ibid paras [35], [38].
112 ibid para [40].
113 ibid para [41].
114 ibid para [42].
115 ibid para [44].
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pending his appeal, was irreparable. Whereas Mr Mathale would be homeless, Mr Linda
still had a home.
Although Mr Linda was allocated a stand, he was not the registered owner of the
plot, neither was he the person in charge of the property. To that end he did not meet
the requirements for lodging an eviction application under PIE.116 At the moment the
eviction order was granted there furthermore was no suitable alternative accommodation
for Mr Mathale. The stand that was offered to him more than a decade ago and which
had in the meantime been allocated to another beneciary could not be considered
within this context.117 Considering all the above facts and circumstances, the court was
satised that ultimately the balance of convenience favoured Mr Mathale, resulting in a
nding that the magistrates’ court did not reach a conclusion which another court could
reasonably have reached on a proper understanding of the facts and applicable legal
principles. The execution order was consequently set aside.118
In light of the particular facts of this case, which may not be unique, the court also
specically commented on the untenable situation that prevailed in the jurisdictional area
of the local authority with regard to the allocation of housing and the administration and
regulation thereof.119 The judgment is welcomed, not only because it conrmed principles
of law and procedure regarding interlocutory orders, but because of its implications
for the regulation of unlawful occupation and access to housing. Issuing a section 78
order where evictions from homes are at stake would be tantamount to orchestrating an
eviction via the back door. It is crucial that the considerations listed here, especially the
impact on human dignity and the right of access to housing, irrespective of the legality
of occupation, are taken into account before an eviction order is granted. The situation
prevalent in many local authorities where records are not up to date and information is
incorrect or conicting cannot be tolerated. This judgment illustrates very clearly how
incorrect and bungled paperwork impact directly on persons’ security of tenure on the
one hand and dignity on the other.
4.4. Agreement of sale and eviction from immovable property
The case of Eastern Cape Development Corporation v Sandlana120 deal with three issues,
namely (a) contractual obligations (b) eviction and (c) the Alienation of Land Act 68 of
1981. For purposes of this discussion the focus is on eviction only. The applicant as the
owner of immovable property in Umtata concluded a written agreement of sale in respect
of the property with the respondent. According to the agreement the purchase price was
payable and possession would occur upon the date of the registration of the property in
116 ibid para [49].
117 ibid para [50].
118 ibid para [52].
119 ibid paras [53]–[55].
120 [2016] ZAECMHC 2, 1 March 2016.
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the name of the purchaser while occupational rent was also payable. The parties agreed
that the property would be transferred either upon payment of the purchase price by
the respondent or by providing a bank or building society guarantee for the payment
of the purchase price within ninety days of the parties signing the agreement of sale.
Failure to guarantee the payment of the purchase price would result in the nullity of the
agreement, except if the seller chose to honour the agreement by paying the full balance
of the purchase price. When the purchaser indeed failed to comply with paying the
purchase price or by providing a bank or building society guarantee before the agreed
period while still occupying the property, the plaintiff instituted eviction proceedings
in Mthatha. The respondent instituted a counter application, which was opposed by
the plaintiff.121 In the counter application the respondent wanted an order which would
compel the applicant to transfer the immovable property in question against payment by
the respondent of the purchase price.
According to Brooks AJ it was evident that the respondent was of the view that the
agreement of sale was still in existence and enforceable between the parties, despite
the fact that clause 13 of the sale agreement contains a non-alteration or amendment
clause. This clause embodied a suspensive condition and thus non-compliance resulted
in the agreement of sale to be automatically of no force or effect, thereby rendering
the counter application on this ground unsuccessful.122 Brooks AJ also held that the
respondent’s right to make any claim against the applicant based upon what the
agreement of sale has prescribed and that an obligation to effect transfer of immovable
property was indeed a debt as provided for in section 10 of the Prescription Act 68 of
1969. Since the respondent was claiming for specic performance, namely the transfer
of the immovable property, this also resulted in a reciprocal obligation to pay or to make
provision for the payment of the purchase price. There was no merit in the respondent’s
claim that he was not obliged to provide the applicant with the full purchase price or
bank or building society guarantees. As such there was no obligation on the applicant to
ensure transfer of the property to the respondent.123
The respondent also alleged that the applicant could not evict him from the property,
due to the applicant failing to comply with the procedures provided for in PIE. Brooks
AJ conrmed that: ‘[P]IE is predominantly designed to protect the rights of persons who
may have taken up occupation of land under somewhat precarious circumstances and
who would otherwise be faced with eviction proceedings of which they have had no
notice and which would take them by surprise to their substantial disadvantage’.124 The
respondent was described in the afdavits led of record as a duly admitted attorney,
and not a person to be protected in terms of PIE. As such Brooks AJ held that the rights
of the respondent in relation to the immovable property were created and regulated by
121 ibid paras [1]–[3].
122 ibid paras [10]–[11].
123 ibid para [12].
124 ibid para [14].
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the agreement between him and the applicant, thus his occupation was not precarious.
This right included that the applicant could institute eviction proceedings against
the respondent in certain circumstances, such as the particular circumstances before
the court. In other words, the non-compliance of the respondent with the agreement
meant that the applicant could institute eviction proceedings resulting in the eviction
of the respondent. At no point during the proceedings did the respondent allege he was
unaware of these rights or was misled into signing the original lease agreement or the
agreement of sale. At all times during the proceedings the respondent was represented
adequately.125
Lastly, the respondent alleged that section 19 of the Alienation of Land Act provided
that there can be no termination of the respondent’s right of occupation of the property
without the prior written notication by the applicant calling upon the respondent to
remedy his breach. This argument was also found to hold no merit, as the respondent
did not comply with the suspensive condition provided for in clause 4 of the agreement.
Therefore, section 19 of the Alienation of Land Act was not applicable to this matter.126
Brooks AJ found in favour of the applicant and dismissed the counter application of the
respondent.
4.5. Eviction and mandament van spolie
Nomkhitha Ntantana v Mhlontlo Local Municipality127 concerns an appeal against a
judgment of the same court sitting as a court of rst instance. After being evicted from
the Chris Hani Park informal settlement without a court order by the Municipality and
the local municipal manager, the evictees approached the court a quo on an urgent basis
for interim relief for a mandament van spolie in relation to the demolished structures,
alternatively for constitutional relief provided for in section 38 of the Constitution. The
respondents were requested to show cause the day after the destruction of the applicants’
homes why the required interim relief should not be granted. As part of the interim
relief the following were requested by the appellants: (a) interdicting the respondents to
prevent the invading and/or undertaking the demolition of any structure and/or placing
any material upon the applicants’ immovable properties situated at Chris Hani Park,
(b) interdicting the respondents from removing any material or movable property from
Chris Hani Park, (c) the restoration of the property dismantled to its former status
quo and (d) from destroying any immovable property which was re-erected. Where
there was partial destruction of structures the respondents had to be interdicted from
invading, pending the provision of alternative accommodation.128 The appellants
alleged that the demolition occurred without a court order and that they were entitled
125 ibid para [13].
126 ibid paras [15]–[16].
127 [2016] ZAECMHC 10, 5 April 2016.
128 ibid para [2].
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to proper notice and alternative accommodation, since they were unable to provide it
themselves. The interim interdict would result in short term relief pending the return
date of the application in respect of the constitutional relief being sought, restraining the
respondents from demolishing the homes further or evicting the appellants or removing
their belongings without an order of court.129 The court a quo in motion proceedings
refused to grant the mandament because re-erection of the structures with the original
material was impossible and stated that it was a pity that the current applications were
brought before it in the form of the mandament van spolie. Accordingly, relief was
refused by stating that the ‘mandament van spolie does not avail in these proceedings’.130
This was the case as restoration was impossible.
It is against this order that the appellants are lodging this appeal, requesting an
interim order which would prevent the respondents from demolishing the appellants’
structures, including structures that were still standing. It is the contention of the
appellants that the conduct of the respondents amounted to spoliation while they were in
peaceful and undisturbed possession of their structures. The respondents deprived them
of their homes in a violent or unlawful manner. The appellants were all impoverished
residents of the informal settlement, whose homes were summarily destroyed by the
respondents. Throughout the process, the appellants were represented on a pro bono
basis. The following were furthermore averred: (a) they were all indigent persons, (b)
who had settled in the area known as Chris Hani Park, (c) the municipality never had
any issue with them settling there and (d) some occupiers and their families had been
residing there for more than a decade.
The appellants were previously informed that the municipality intended to build
subsidy houses in Chris Hani Park, thus amounting to in situ upgrading. An ‘agreement’
of understanding was reached that the residents would be accommodated in the
meantime. Despite this agreement the residents were ordered to vacate their structures.
On 21 November 2014 persons arrived at Chris Hani Park and started to demolish the
appellants’ homes without an order of court. Some residents demolished their own
structures which allowed them to salvage some of their building materials.131
The respondents opposed the application on the following grounds: (a) that it stood
to be dismissed due to the appellants’ non-compliance with the provisions of section
35 of the General Law Amendment Act 62 of 1955 requiring no less than seventy-two
hours’ notice of an application against an organ of state for interim relief; (b) denying
that the respondents had demolished or intended to demolish any of the applicants’
structures; (c) denying that the rst respondent’s employees had taken possession of
any of the appellants’ property or threatened to dispossess them; (d) denying that it
was possible to hold the rst respondent vicariously liable for the acts of its mayor and
speaker, not being its employees and (e) that the appellants had demolished their own
129 ibid para [5].
130 ibid para [13].
131 ibid paras [3]–[4].
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homes or that the demolitions had already occurred and were not imminent, therefore
the granting of a spoliation remedy was not competent.132 It was clear that the appellants
were evicted from their homes and that the respondents refused to take any responsibility
for the eviction. On appeal the appellants contested the a quo decision with reference
to Tswelopele Non-Prot Organisation and 23 Others v City of Tshwane Metropolitan
Municipality133 on the basis that the court a quo erred by not considering sections 1(c),
26(3) and 38 of the Constitution. In this regard the court ought to have applied section
38 of the Constitution and ordered the reconstruction of the houses where the appellants
were arbitrarily deprived of their rights and left remediless due to the non-applicability
of the spoliation remedy. The appellants also averred that the court a quo failed in
respect of the immediate interim relief sought to distinguish one appellant’s situation
from another in the sense that some structures were completely demolished while others
were still under threat of demolition.134 In certain instances where there was partial
demolition, the application of the mandament was not excluded. Thus the court erred in
not nding that an order of reconstituted restoration in the case of complete destruction
could be fashioned by the court as an effective constitutional remedy in these particular
circumstances. As such the court had disregarded the infringement of the appellants’
rights not to have their structures demolished or to be evicted without an order of court
and had in effect condoned the illegality.135 This contention was found by Hartle J to
have merit who held that the court a quo had to decide the question of interim relief in
the form of an interim interdict and the issue of constitutional relief in the long term.
Instead, the court a quo did not pursue the issue of an effective constitutional remedy
further but summarily dismissed the application.
In this context Hartle J considered a spectrum of important cases relating to
restoration. In Schubart Park Residents’ Association v City of Tswane Metropolitan
Municipality136 the CC focused on the interplay between the ordinary requirements of
spoliation and the demands of section 26(3) of the Constitution. In Schubart Park the CC
held that when an applicant seeks an order in the high court for restoration on the ground
that he was despoiled of the possession of his home, the dimension of section 26(3) of
the Constitution is added to what would have been a normal spoliation application. From
this decision it was clear that the limited spoliation remedy is aimed only at restoration
of possession.137 In Rikhotso v Northcliff Ceramics (Pty) Ltd138 the court reiterated that a
spoliation order may not be granted if the property in question no longer existed, due to
the remedy’s limited nature. As such the remedy was meant only to restore possession
and was not for making reparation. The express objective of this common law remedy
132 ibid para [7].
134 Ntantana (n 127) para [16].
135 ibid.
136 2013 (1) SA 323 (CC).
137 ibid para [19].
138 1997 (1) SA 526 (WLD) 535A–B.
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is the interim restoration of physical control and enjoyment of specied property and
not its ‘reconstituted equivalent.’ In Tswelopele the court stated that an insistence that
the mandament be extended to mandatory substitution of the property in question would
be the creation of a different and wider remedy than the one received in South African
law. This would result in the remedy losing its possessory focus in favour of different
objectives. In the Tswelopele matter the SCA was forced to confront the issue of whether
people whose homes had been destroyed would be left remediless since the mandament
is inapplicable. As such the court had to decide whether the common law remedy had to
be developed as the SCA did not want to leave the residents remediless. Accordingly, it
opted to grant relief in terms of section 38 of the Constitution and distinguished between
the requirements for spoliation and that of constitutional relief in this context. The court
granted the constitutional relief even though the matter was a spoliation application.
In the current matter the appellants alleged the infringement of section 26 as a
whole. Section 26(1) provides that ‘everyone has the right to have access to adequate
housing’, while section 26(2) enjoins the state to take reasonable legislative and other
measures, within its available resources, to achieve the progressive realisation of this
right. Read with section 26(3) these sections provide context for the assertions of the
appellants that the subsidy scheme was unreasonable in its implementation, in that they
found themselves without homes or alternative accommodation while the construction
of the subsidy houses was underway.139 In the Schubart Park case the distinction between
the mandament and constitutional relief under section 38 of the Constitution, entailed
the following:140
It is conducive to clarity to retain the ‘possessory focus’ of the remedy of spoliation and keep
it distinct from constitutional relief under section 38 of the Constitution. This is because the
order made in relation to factual possession in spoliation proceedings does not in itself directly
determine constitutional rights, but merely sets the scene for a possible return to the status quo,
in order for the subsequent determination of constitutional rights in relation to the property. The
implication of this is that the spoliation proceedings, whether they result in restoration or not,
should not serve as the judicial foundation for permanent dispossession – that is eviction – in
terms of section 26(3) of the Constitution.
According to Hartle J the judgment of the court a quo reected a misconception as to the
true nature of the appellants’ causes of action. In the main application it was not spelt
out that an enquiry was necessary to grant a spoliation order where the circumstances
justied this, but also in the long term into the illegality. In the other applications orders
were expressly sought to declare the conduct of the respondents in interfering with or
demolishing the property of the appellants unlawful. Since the respondents did not offer
any justication for evicting the appellants, the court a quo had to consider whether
there was an interference with the appellants’ rights not to be arbitrarily deprived of their
139 Ntantana (n 127) paras [24]–[25].
140 ibid para [26].
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homes, and constitutional relief had to be considered to remedy this. It was, however,
unfortunate that the appellants’ application was leaving them remediless. As such the
appellants were denied the opportunity, on a return date and of the court redressing
the hardship as a result of the violation of their constitutional rights by the patently
illegal evictions without regard to the provisions of PIE. The outright dismissal of the
applications by the court a quo therefore amounted to condoning the illegality.141
Hartle J held that the court a quo at least should have considered the interim relief,
especially in the instances where it was still possible. The court a quo therefore erred
when it failed to consider the distinct circumstances of the evictees. Since not all of the
appellants’ structures were totally demolished, it was indeed possible that some could
be restored to the status quo ante. The occupiers whose structures were still standing
and who faced imminent eviction or the destruction of their homes proved compliance
with the interim relief.142
In determining the most appropriate and effective relief the Court held that
regardless of who was responsible for the demolition of the appellants’ structures, the
respondent still had a duty to meaningfully engage with the appellants in trying to nd
a reasonable solution. Even if the land in question was handed over to the Department
of Human Settlements for in situ upgrading, the rst respondent was still ‘the developer
and responsible at its sphere of government on a co-operative basis with the national
department to ensure reasonable implementation of the housing programme’.143
According to the appellants they were not included at that stage as beneciaries who
would be allocated permanent RDP houses in the settlement. Hartle J held that given the
circumstances the most reasonable solution would be to include the appellants, since the
rst respondents were in any event expected to prioritise the needs of indigent persons
in housing development.144 Accordingly, the appeal succeeded on the basis of section 38
and the order of the court a quo was set aside.
The importance of this decision lies in the obligations of local government to comply
with its legislative and constitutional obligations in eviction matters, even though this is
done to effect housing development in the form of in situ upgrading. Unlawful evictions
of vulnerable and indigent occupiers cannot be justied by local government as a means
to give effect to in situ upgrading and thus its housing obligations. In this case it was clear
respondents wanted to avoid having to re-erect the informal structures of the occupiers
in relying on the original application of the common law remedy of the mandament van
spolie, which in this case could still be given effect to, even only partially.
141 ibid paras [27]–[28].
142 ibid paras [30]–[31].
143 ibid para [37].
144 ibid.
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5. HOUSING
Melani v City of Johannesburg145 dealt with the review and setting aside of the decision
of the rst respondent, the City of Johannesburg’s failure or refusal to apply to the fth
respondent, the MEC for Human Settlements Gauteng, for funding to upgrade Slovo
Park. Alternatively, the applicants wanted the court to order that the City of Johannesburg
be compelled to commence with the process, the Urban Settlements Development
Grant (USDG) and the Upgrading of Informal Settlement Policy (UISP), prescribed for
upgrading of the Slovo Park settlement, by applying to the MEC for the funding to do
so. This application was opposed by the rst to fourth respondents in its capacity as the
City of Johannesburg on the basis that the decision to relocate the residents to Unaville
was a policy decision, which was not susceptible to review. The following facts were
common cause: (a) the applicants were about 10 000 indigent people living in 3 700
households, (b) who had been residing in Slovo Park for a period of up to twenty-one
years and (c) had no access to electricity, invariably resulting in shack res. Throughout
the process the residents were constantly informed by ofcials – at all levels of the state
– that they would receive formal housing, that planning schemes had been developed,
environmental impact assessment studies had been done and that steps had already been
taken to declare the area a township. However, despite having issued documents to
the residents of Slovo Park which conrmed their rights to subsidised state housing,
nothing was realised in practice.146
Within this context it was clear that the City and the MEC had a constitutional
obligation to realise the right of access to adequate housing for persons living in their
areas of jurisdiction. The functionaries were bound by legislative and policy frameworks,
set out in the National Housing Act 10 of 1997, the National Housing Code, adapted
in terms of section 3(4)(g) and 4(1) of the Housing Act. This legislative framework set
out the relevant procedures, plans and funding instruments, all designed to facilitate
the delivery of adequate housing. In 2015 the City took a policy decision to relocate
the residents to another site, Unaville, 11 km away from Slovo Park, provided that the
residents qualied for housing.147 Following this approach meant that some residents,
depending on the particular circumstances, would be left homeless.
The applicants averred that one of the instruments by which the City could provide
adequate housing, was employing the UISP, a fully-funded programme intended to
ensure the upgrading of informal settlements in partnership with its residents. The
applicants had consequently engaged with the terms of the UISP and drafted their own
plans embodying the provision of housing and secure tenure in relation to the land
they occupied at that stage, or land nearby. After the plans were presented to the City,
the residents had attempted to engage with the City concerning its implementation.
145 [2016] ZAGPJHC 55, 22 March 2016.
146 ibid paras [1]–[3].
147 ibid para [6].
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When this application was lodged the City had (a) neither refused nor denied the UISP,
but instead (b) decided to relocate the applicants to Unaville. The applicants argued
that the relocation to Unaville is in conict with the UISP as upgrading in situ is
preferred to relocation, wherever possible. Also, housing development under UISP had
to include everyone living in a particular settlement, even individuals who would not
normally qualify in terms of other housing programmes.148 This meant that the decision
to relocate was unlawful. This was the case because the UISP had force of delegated
legislation; it was furthermore the main instrument through which the state provided
housing to people living in informal settlements and it was a comprehensive exible
instrument that exhaustively regulated the upgrading of informal settlements. In this
regard complying with the prescriptions of UISP was not optional.149 Conversely, the
City argued that the applicants had to show that an in situ development was feasible and
that the City was obliged to apply for assistance under the UISP programme. The City
further averred that it was providing housing by way of the Unaville development, since
the land was already valued for acquisition by the City and the development had been
budgeted for. Being part of the City’s exercise of executive authority, the decision was
therefore not subject to review under the Promotion of Administrative Justice Act 38 of
2008 (PAJA), was argued.150
In response the applicants argued that the City failed to implement legislation
and, as it constituted administrative action, the Court had to decide whether the City’s
decision to continue with the Unaville development breached the principle of legality
and whether it was rational and reasonable.151 With reference to Permanent Secretary
Department of Education and Welfare, Eastern Cape v Edu Colllege PE152 Strauss AJ
held that although the formulation of broad policy was not administrative action, the
decision to implement the policy in a specic case in a manner that affected the rights
and legitimate expectations of specic people, was indeed administrative action. In this
regard the City relied on technical reports that stated that in situ upgrading would be
unsuitable due to the dolomite in the area. Although the City later conceded that it was
possible to develop the property in situ for at least 482 households, it did not conrm
that it had considered the terms of the UISP. Instead, it opted rather to relocate qualied
beneciaries as opposed to applying the UISP policy. In this context the court made
reference to the National Housing Act, section 3(4)(g), in terms of which the Minister for
Human Settlements is obligated to institute and nance national housing programmes. A
Code must be published by the Minister under section 4(1) of the Housing Act, containing
national housing policy which is distributed to all provincial and local governments.
This means that the City did not have a choice to not comply with it. Section 7(3) of the
148 ibid paras [9]–[12].
149 ibid para [13].
150 ibid paras [15]–[19].
151 ibid paras [20]–[22].
152 2001 (2) SA 1 (CC).
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Housing Act requires the MEC to administer national housing programmes containing
the Code in a manner which is consistent with the code. Furthermore, section 9(a)(i) of
the Housing Act necessitates the City to take all reasonable and necessary steps within
the framework of national and provincial housing legislation and policy to ensure
that the inhabitants of its area of jurisdiction have access to adequate housing on a
progressive basis. According to Strauss AJ the UISP provides for a holistic approach
to housing development, with minimum disruption or distortion of existing fragile
community networks and support structures and encourages engagement between local
authorities and residents living within informal settlements.153 Furthermore, the UISP
states that relocation of informal settlements should be the exception and not the rule.
If relocation does take place, it must be close to the existing settlement and within the
context of community approved relocation strategies.
In order to nd that the respondents failed to consider the decision of in situ
development instead of relocation, the court must establish whether this failure
amounted to an administrative decision. In this regard the seven requirements for
administrative action, as decided in Chirwa v Transnet Ltd154 were referred to, namely:
(a) there must be a decision taken or any failure to take a decision; (b) by an organ of
State; (c) exercising a public power or performing a public function; (d) in terms of the
Constitution (or legislation); (e) that adversely affects someone’s rights or legitimate
expectations; (f) which has a direct, external, legal effect and (g) that does not fall under
any of the exclusions listed in section 1 of PAJA. Strauss AJ held that the City’s failure
to apply the UISP was unlawful, because the decision was taken outside the legislative
and policy frameworks intended to apply to informal settlements such as Slovo Park.
The decision of the respondents was unreasonable and in breach of the residents’ right
to just administrative action, as well as their right of access to adequate housing under
section 26(1) of the Constitution. The City should have considered whether the UISP
was applicable to Slovo Park and not just have ignored the in situ upgrading possibility
in favour of relocation. As such the City was required and obliged to act within the
connes of the Housing Act and the Code, which lay down the framework intended to
apply to informal settlements. The City’s conduct was thus subject to reasonableness
criteria as held in Government of Republic of South Africa v Grootboom.155 In this regard
the following considerations emerge: the measure it adopts must be comprehensive,
coherent, inclusive, balanced, exible and transparent and must be properly conceived
and properly implemented. Since the City’s decision to relocate the applicants would
result in the exclusion of an unknown number of people, Strauss AJ held it to be
unreasonable and not inclusive. The unilateral decision of the City to relocate the
inhabitants took place without proper consultation and engagement with the residents.
The residents have been told for more than twenty years they will be upgraded in situ,
153 ibid para [34].
154 2008 (4) SA 367 (CC).
155 2001 (1) SA 46 (CC).
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which created a legitimate expectation. Thus, the City’s failure or refusal to apply the
UISP Code and Practice must be reviewed and set aside. Effective relief here entailed
compelling the City to commence the process prescribed by the UISP for the upgrading
of Slovo Park settlement.156
This case conrms that local government has to follow policy and legislative
frameworks when trying to give effect to their housing obligations. In this instance
the UISP was indeed the rst option to consider as opposed to relocation of vulnerable
occupiers. Apart from the uprooting of residents when relocation occurs, it would
furthermore result in some members of the community – often the most vulnerable −
being excluded and remaining homeless.
In Ruiters v Minister of Human Settlements157 the owner, as the unregistered builder
of property in Kuilsriver, brought an application against the rst respondent, the Minister
of Human Settlements, who refused to grant the applicant an exemption certicate for
the registration and enrolment as a registered builder in terms of certain sections of
the Housing Consumer Protection Act 95 of 1998. The main aim of the Act is to make
provision for the protection of housing consumers and to provide for the establishment
and functions of the National Home Builders Registration Council (the Council).
The facts are briey the following: The City of Cape Town approved building plans
for a new house in terms of section 4 of the National Building Regulations and Building
Standards Act 103 of 1997 (NBRBSA). Upon approval of the plans the applicant started
with the construction of his home without being enrolled as a registered builder with
the Council, thus contradictory to section 10 of the Act. This section prohibits a builder
from commencing with building unless that person is a registered home builder with the
Council. A notice of non-compliance with sections 14(1) of the Act was served on the
applicant, which stated that the applicant had started with the construction of his home
prior to enrolment by the Council. The applicant had to comply by 8 August 2012. The
applicant claimed he was the owner builder as dened in section 1 of the Act, namely ‘a
person who builds a home for occupation by himself.’ It was contested by the Minister
that the applicant was a home builder until such time as he brought an application for
an exemption based on the fact that he is an owner builder. In an attempt to qualify as
an owner builder, so as to comply with the provisions of sections 10 and 14 of the Act,
the applicant submitted an exemption application to the Council on 12 September 2012
under sections 10A and 29 of the Act. Section 10 of the Act provides that no person shall
carry on business of a home builder unless that person is a registered home builder with
the National Home Builders Registration Council, while section 14 states that a home
builder shall not commence the construction of a home unless the Council has issued
a certicate of enrolment to the home builder. However, section 10A provides that an
owner builder in terms of section 29 may apply to the Council for exemption from
sections 10 and 14. In other words: in instances where a builder is an owner builder, that
156 Chirwa (n 154) paras [38]–[50].
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person can apply for an exemption. In terms of section 29(1)(a)–(c) the Council could
exempt a person from any provisions in the Act if satised that the (a) granting of the
exemption would be in the public interest and (b) would not undermine the objectives
of the Act or the effectiveness of the Council or (c) in cases where the exemption is not
granted, the effect would be extremely prejudicial to the interest of the applicant and
housing consumers. In his covering letter accompanying the exemption application, the
applicant stated that he planned to build the house in stages according to his nancial
position and would be residing in the house himself and was not planning on selling the
house within ve years. The applicant stated that he indemnied the Council from any
blame against the granting of the exemption certicate.158
The key issue the court had to decide was whether the Council could refuse a bona
de owner builder’s application for a section 10A exemption on the basis that construction
of the home in respect of which exemption was sought had already commenced at
the time of such application.159 On 18 September 2014 the applicant was informed in
writing that his exemption application had been rejected. It was common cause that the
Minister’s decision in conrming the decision of the Council constituted administrative
action in terms of section 6 of PAJA, thereby warranting the possibility of a review.
Essentially the applicant requested the setting aside of the Minister’s decision as part
of the review, and also a direction that he should be allowed to make an application
for late enrolment in terms of section 14A of the Act. Donen AJ conrmed, when
considering the denition of home builder read with section 10A of the Act (which must
be read with section 29 of the Act), it was mandatory for the Council, when receiving
an application for exemption, to investigate and establish the jurisdictional fact for an
exemption, namely that the owner was in fact an owner builder. If the applicant satised
the Council that he or she was a bona de owner builder, the duties that rest upon the
home builders and consequences of breach of those duties ceased to exist from the
time that the owner builder applied for exemption. According to Donen AJ, despite
the peremptory provisions in subsections 10(2) and 14(1) of the Act (which required a
home builder to comply prior to commencement of construction), no provision of the
Act specically provided that the application must be brought prior to commencement
of construction or that exemption may not be granted to an owner builder who had
commenced building before applying for exemption. It would be arbitrary to deprive a
bona de owner builder of his or her right to continue to build on his or her property.
Prohibiting a bona de owner builder from commencing to build would be irrelevant
to the purpose of the Act, namely to protect housing consumers. The purpose of the Act
would not be undermined according to Donen AJ, if owner builders were allowed to
build before applying for the said exemption, because consumers do not need protection
from an owner builder as they would need from a home builder.160 An owner builder
158 ibid para [9].
159 ibid paras [1]–[8].
160 ibid paras [58]–[59].
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is required in terms of the Act to remain in occupation of the newly-built property for
a period of ve years and is also prohibited from selling the property. The order of the
Minister dated 22 May 2014, refusing to register the applicant as an owner builder and
the refusal to grant the exemption application was therefore set aside and the matter was
referred back to the Council for determination as to whether the applicant was entitled
to exemption in terms of sections 10A and 29 of the Act.
6. DEEDS
A Deeds Registries Amendment Bill, 2016 was published for comment.161 According to
the Memorandum to the Bill the objectives of the Bill are to ‘(a) facilitate the enactment
of electronic deeds registration provisions in order to effect the registration of large
volumes of deeds as necessitated by the government’s land reform initiatives; and to
(b) expedite the registration of deeds by decreasing the time required for the deeds
registration process’. Clause 1A is inserted to make provision for an electronic deeds
registration system. The Bill then amends the Deeds Registries Act accordingly to
make provision for electronic seals (s 2 to be amended) and the electronic keeping
and maintenance of records (s 3 to be amended). Section 4 is to be amended to allow
for electronic proof of records. Section 10 will be amended to allow for regulations
to further regulate the electronic deeds registration system. Several sections will be
amended to delete the words ‘attestation of deeds’. Section 20 will provide ‘for the
electronic execution of a deed of transfer by a conveyancer upon authorization of the
owner of the land’ (memorandum). In certain circumstances it would no longer be
necessary to lodge diagrams and general plans that have been approved under Land
Survey Act 8 of 1997 (ss 18, 22, 40, 43A, 44, 46, 46A and 47 to be amended).
7. EXPROPRIATION
The Expropriation Bill162 provides for ‘the expropriation of property for a public
purpose or in the public interest’ (long title). Expropriation is dened in clause 1 as
‘the compulsory acquisition of property by an expropriating authority or an organ of
state upon request to an expropriating authority’, while the denition of ‘public interest’
corresponds with the denition of ‘public interest’ in section 25 of the Constitution of the
Republic of South Africa, 1996 and ‘includes the nation’s commitment to land reform,
and to reforms to bring about equitable access to all South Africa’s natural resources
in order to redress the results of past racial discriminatory laws or practices’. ‘Public
purpose’ is dened as ‘any purposes connected with the administration of the provisions
of any law by an organ of state’. The Bill does not dene ‘property’ but only states that
it has a meaning that corresponds with section 25 of the Constitution. The expropriating
161 Gen Not 92 in GG 39781 of 2016-03-04; Gen Not 101 in GG 39793 of 2016-03-09.
162 B4D-2015.
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authority (any organ of state ‘empowered by this Act or any other legislation to acquire
property through expropriation’163) may expropriate both registered and unregistered
rights in land.164 The Bill describes the procedure that needs to be followed before any
expropriation can take place165 as well as how the compensation should be determined;166
the expropriation notice may also be withdrawn.167 Chapter 6 deals with mediation of
disputes and determinations that the court can make.
The Bill also provides for urgent expropriation.168 This may take place only if the
property will be used on a temporary basis for a period not exceeding twelve months.
The expropriating authority may only exercise their rights in terms of clause 22 if there
is no national, provincial or local land available in the case of a disaster (as dened in
terms of the Disaster Management Act 57 of 2002). In this regard the court grants an
order ‘that an expropriating authority is entitled to use the provisions of this section due
to (i) urgent and exceptional circumstances that justify action under subsection (1); (ii)
real and imminent danger to human life or substantial injury or damage to property; or
(iii) any other ground which in the view of the court justies action under subsection (1).
In terms of clause 26 the Director-General of Public Works must maintain a register of
all intended, effected and withdrawn expropriations, as well as decisions not to proceed
with an expropriation. These registers will be open to the public.
The critique against the Bill includes that ‘property’ is not limited to land and
that compensation does not include outstanding bank payments of the property owner.
AgriSA is concerned that market value will not be taken into account. Some people are
concerned that the Bill may lead to a Zimbabwe-like land-grabbing process. On the other
hand government indicated that the land redistribution process needs to be expedited.
Government has transferred eight million hectares of land to Black ownership since
1994, which constitutes only a third of its thirty per cent original target.169 The South
African Institute of Race Relations is of the opinion that the Bill is unconstitutional as
there was not proper public participation.170 Given the formulation of section 25(3) of
the Constitution, as well as the provision in the Bill dealing with compensation, it is clear
that market value will indeed be taken into account. What is important, however, is that
163 Cl 1 of the Bill.
164 Cl 9–11.
165 Ch 3 and 4, read with cl 24–25.
166 Ch 5.
167 Cl 23.
168 Cl 22.
169 See in this regard Anon (n 1); Emsie Ferreira, ‘Agri SA Wants Market Value for Expropriated Land’
Mail & Guardian (29 July 2015)
for-expropriated-land> accessed 17 June 2017. See also EJ Marais and BV Slade, ‘Expropriation Bill
will Boost Land Reform’ Mail & Guardian (29 April 2016)
expropriation-bill-will-boost-land-reform> accessed 17 June 2017, who indicate that these criticisms
are unfounded.
170 Philda Essop, ‘Cronin Hits Back at Critics of Expropriation Bill’ City Press (31 May 2016)
ly/29Irq7g> accessed 3 July 2016.
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market value will not be the only or the most important factor but will be considered in
light of all of the factors so listed. In this regard the new Bill is directly aligned with the
Constitution. Possibly more problematic is the precise working relationship of the new
Expropriation Act and the Property Valuation Act 17 of 2014, which commenced on 1
July 2015. In this regard two different functionaries are responsible for its operation,
namely the DRDLR regarding the Property Valuation Act and Public Works regarding
the Expropriation Act. In light of the procedure and processes involved, it is furthermore
highly unlikely that the Expropriation Act will speed up land reform, which was one, if
not the most important, motivation for drafting the Act.
Apart from the issues mentioned above, the application of the new Expropriation
Act in relation to communal land and land where customary law land rights prevail is
highly contentious. This remains a reality despite the Memorandum to the Bill indicating
that the new Expropriation Act holds no implications for customary law. In this regard
questions emerge concerning the denition of ‘expropriator’ and ‘expropriatee’ and who
or what represents the relevant community where expropriation negotiations take place.
At an overarching level, the fact that communal land is largely registered in the name
of the state, is also critical for the potential and actual application of the Act in these
areas. Despite objections and criticisms, the new Act seems generally to be aligned with
section 25 of the Constitution. However, the actual operation of the Act, its scope and
alignment with other relevant legislation, may pose problems at various levels and at
different stages in the expropriation process.
8. RURAL DEVELOPMENT AND AGRICULTURE
The Department of Agriculture, Forestry and Fisheries (DAFF) submitted its 2016/17
Annual Performance Plan (APP) to Parliament on 10 March 2016.171 DAFF’s policy
mandate consists of the National Development Plan (NDP); the Medium Term
Strategic Framework (MTSF); the Industrial Policy Action Plan (IPAP); the State of
the Nation Address (SONA); the Budget Speech presented by the Minister of Finance;
the Agriculture, Forestry and Fisheries Strategic Framework; and the Agricultural
Policy Action Plan (APAP). In the APP’s Situational Analysis twelve key challenges
were identied; these include the ‘thousands of hectares of underutilised arable land
in homelands’; the increase in the cross-border movement of people and goods (with
the resultant increased risks as regards animal diseases, plant pests, and unsafe animal
feed and food); the increase in food insecurity in Southern Africa; insufcient market
access for developing (emerging) agricultural producers; challenges relating to the
need to grow the smallholder sector (of which more than fty per cent live currently
below the poverty line); the over-exploitation of marine and inland sh stocks; the
171 DAFF, ‘2016/17 Annual Performance Plan’ (10 March 2016)
west-1.amazonaws.com/160407app.pdf> accessed 7 July 2016; accessed 7
July 2016.
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decline in softwood and hardwood plantation areas since the mid-1990s and the related
shortages of timber products; the negative impact of high and rising input costs on
the competitiveness of the agricultural sector and ‘unsustainable land-use practices
are intensifying and this has contributed to the deterioration of soils’. Six programmes
will be implemented in the 2016/17 nancial year, including the provision of funding
modalities for and the implementation of the Integrated Development Finance Policy
Framework; agricultural production, health and food safety; food security and agrarian
reform, trade promotion and market access; forestry and natural resources management
(including the enactment of the Preservation and Development of Agricultural Land
Framework Bill) and sheries management. The approved National Policy on Food and
Nutrition Security will be institutionalised by 2019/20 by an increase of 200 000 in the
number of households that benet from food production initiatives, the provision of
support to 80 000 smallholder producers by 2019/20, and the cultivation for agricultural
production of 600 000 underutilised land in communal areas.
DRDLR172 indicated that nine Bills will be submitted to parliament during the
nancial year 2016/17, including a Communal Property Associations Amendment Bill; a
Deeds Registries First Amendment Bill; a Communal Land Tenure Bill; a Regulation of
Land Holdings Bill; a Sectional Titles First Amendment Bill; a Sectional Titles Second
Amendment Bill; a Deeds Registries Second Amendment Bill; a Planning Professions
Amendment Bill and a Land Surveys Amendment Bill.
Also, the Department will nalise policies relating to communal land tenure,
communal property associations, regulation of land holdings policy, electronic deeds
registration policy, policy framework for the strengthening of relative rights for persons
working the land and policy on exceptions to pre-1913 claims and on access to heritage
sites and historic landmarks during the period 2016 to 2019.
DLDLR implemented various land reforms measures, namely 3.4 million ha of
land in the former homelands were surveyed and the state land register was veried.
The Ofce of the Valuer-General was established, and the Valuer-general was appointed
in August 2015. Nine-hundred and forty-seven rural enterprises (including ninety-
two agricultural enterprises) were supported. 1.49 million ha of strategically-located
land were acquired for purposes of the promotion of equitable land redistribution and
agricultural development. Comprehensive farm development support was provided
to 1 496 farms (smallholder farmers and land reform beneciaries for agrarian
transformation) in accordance with the Recapitalisation and Development Programme.
Based on the implementation of the Spatial Planning and Land Use Management Act
16 of 2013, Spatial Development Frameworks are being nalised by the national and
provincial spheres of government as well as by the local sphere (metropolitan, district
and local municipalities). By 2019 rural development plans will be implemented in
all forty-ve district municipalities. Furthermore, Agri-parks will be established in all
172 DRDLR, ‘Strategic Planning Session of the Portfolio Committee on Rural Development and Land
Reform’ (2 February 2016) accessed 9 July 2016.
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forty-ve district municipalities, and at least 1 000 enterprises will receive government
support. Through this programme 330 000 small producers will be assisted and
provided with market access, credit facilities as well as other strategic logistical support,
simultaneously, both household and local food and nutrition security will be enhanced.
According to the Annual Performance Plan 2016/17 of DRDLR,173 four key
performance areas are to be realised in the nancial year 2016/1: (a) further rollout
of the Agri-parks Programme (focusing on both food production and the design and
construction of new infrastructure); (b) the expedition of applications submitted by
labour tenants; (c) land acquisition and allocation for the benet of smallholder farmers
(which includes the implementation of the ‘one household, one hectare’ policy) and
(d) the enhanced implementation of the Strengthening of Relative Rights of People
Working the Land Programme (also known as the 50/50 Policy Framework). The
Rural Economy Transformation Model (to be implemented by means of the Agrarian
Transformation System) forms a centrepiece to the Department’s activities; this consists
of four phased developmental deliverables (as outlined in the 2009 Comprehensive
Rural Development Programme (CRDP)): ‘(a) Meeting basic human needs; (b) Rural
enterprise development; (c) Agro-village industries, sustained by credit facilities and
value-chain markets; and (d) Improved land tenure systems (embedded in meeting basic
human needs)’. Despite criticism against the DRDLR it seems that government has
several plans and programmes in place to effect land reform – the execution may be a
challenge in light of human and budget constraints.
173 DRDLR, ‘Annual Performance Plan 2016/17’ (7 April 2016)
pptx> accessed 10 July 2016; accessed 10 July 2016.
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