The Constitutional Court. Photo by user André-Pierre via Wikimedia Commons (CC BY 2.0)
24 October 2016
A judgment of the Constitutional Court, delivered in July, will allow women to have a voice in eviction proceedings. It compels lower courts to consider the interests of spouses and dependants when assessing whether an eviction is just and equitable.
The Extension of Security of Tenure Act of 1997 (ESTA) was designed to protect occupiers from unfair evictions by recognising the rights that arise from long-term occupation. It recognises the rights of farm workers, who previously suffered the brunt of unfair evictions.
In terms of ESTA, the right of residence may only be terminated if it is just and equitable. One of the factors that must be considered is the hardship an eviction will cause an occupier.
Also, an occupier who has resided on land for longer than ten years may not be evicted if he or she is older than 60 years or is no longer able to work for the owner because of illness or injury.
ESTA also recognises special circumstances for eviction to take place for people in occupation of land on 4 February 1997. It protects an occupier from eviction except where an agreement or relationship with the owner has been breached. If there is no breach, the court may only grant an eviction order if alternative accommodation has been made available. Failing this, the owner must have made an effort to find accommodation and faces comparative hardship if the order is not granted.
While the protections of ESTA are extensive, they are only for people who fall under the definition of an ‘occupier,’ namely someone residing on land with consent or another right in law to do so.
The case of Jan Klaase and Another v Jozia Johannes van der Merwe N.O and Others was not about a farm worker but rather about a farm worker’s spouse. And the outcome was an expanded definition of the word ‘occupier.’
Mr Klaase worked on the farm from 1972 until 2010 and was entitled to reside in a cottage on the farm. He and his wife resided together for more than 30 years. As a result of his employment, Mr Klaase was considered an ‘occupier’ under ESTA and entitled to all the protections it affords to occupiers. But Mrs Klaase was a seasonal worker on the farm although she had permanently resided in the cottage with her husband.
In 2010 a disciplinary hearing was initiated against Mr Klaase and the matter was then referred to the CCMA. The employers and Mr Klaase agreed to a settlement of R15,000, in exchange for which Mr Klaase and his family would vacate the property.
The Klaase family failed to vacate the premises, and eventually the owners filed eviction proceedings against Mr Klaase, seeking eviction of Mr Klaase and his family. In order to evict Mr Klaase, the owners had to meet a number of conditions including demonstrating that they had attempted to secure alternative accommodation for Mr Klaase and that there had been an irreparable breakdown of the relationship.
The owners also had to prove that the termination of Mr Klaase’s residence on the property was just and equitable. However, Mrs Klaase was not joined in these proceedings, and neither her nor her children’s interests were considered when the court decided whether the eviction was just and equitable.
The lower court granted the eviction order, and it was reviewed and upheld by the Land Claims Court. On appeal, the Constitutional Court also confirmed the eviction order against Mr Klaase.
However, the additional issue before the court was the eviction of Mrs Klaase.
She was not party to any of the proceedings in the lower courts despite her application to join them. Mrs Klaase appealed the lower court’s decision and argued that she was an occupier under ESTA and also entitled to the protections afforded to her husband.
While Mrs Klaase was never a permanent employee on the farm, she was a seasonal worker who had stayed on the farm with her husband for at least 30 years prior to the eviction order. While the owners knew she resided on the farm, the owners argued this did not give her an independent right of occupation and, as a consequence, Mrs Klaase was not entitled to the protection of ESTA.
The Constitutional Court upheld Mrs Klaase’s appeal, finding that she ought to have been joined in the eviction proceedings by virtue of her residence on the property. The Court then considered whether Mrs Klaase was an ‘occupier’ entitled to the protection of ESTA.
The Court stressed the importance of looking at the purpose of ESTA, which is to seek to protect people ‘whose tenure to land is insecure.’ Where a person has resided on land openly and without objection of the owners of the land, the owner’s consent is implied. The court found that failure to recognise Mrs Klaase’s right of occupation as independent of Mr Klaase was demeaning to her rights of equality and dignity. Ultimately, the court upheld Mrs Klaase’s appeal and set aside the eviction order against her.
The situation of Mrs Klaase is not an uncommon one, as was recognised by the Constitutional Court.
The reality is that many women are seasonal workers and often find themselves in a position similar to Mrs Klaase. Many women may reside on land for long periods of time by virtue of their spouse’s employment but ultimately find themselves without independent rights to occupation and without any protection. This makes women particularly vulnerable to unfair and prejudicial evictions since their status as occupiers is not recognised and they are rarely joined in eviction proceedings.
The Constitutional Court’s decision not only recognises these women’s right to protection under ESTA but also affirms this protection as imperative for the dignity and equality of women. Future eviction cases will now have to ensure that spouses are joined in eviction proceedings.