Clinton Pavlovic

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When it's just and equitable to lose your home

2020-04-01

South African law protects the vulnerable from losing their homes to eviction. This protection is, however, balanced against the rights of landowners, meaning a person can be evicted if a court decides that it is just and equitable. Unfortunately for Mr Jones and Mrs Jones (aged 78 and 76), and their disabled daughter (aged 48), the South African Supreme Court of Appeal decided that their case was one where homelessness was just and equitable.

In 2013 the Jones family rented a farm from the Sutherland family for a year. After a few months the Sutherlands sold the farm and told the Joneses that were washing their hands of the place. The Joneses interpreted this as the Sutherlands breaching the lease agreement. The Joneses stopped paying rent. This prompted the Sutherlands to harass the Joneses and vandalise the Joneses' property, for which the Sutherlands were criminally charged and convicted.

The Joneses' property damage meant they couldn't earn an income to pay the rent. The Sutherlands weren't not much better off. Mr Sutherland suffered from rheumatoid arthritis and gastric ulcers, and the Sutherlands had lost their main source of income the rent earned from leasing their farm.

The Sutherlands brought legal action to evict the Joneses, and the South African Land Claims Court ordered their eviction. The Joneses appealed to the South African Supreme Court of Appeal, which agreed that evicting the Joneses was just and equitable.

Eviction legal framework

The Sutherlands property was agricultural land that was occupied with their consent, meaning that the eviction was regulated in terms of Extension of Security of Tenure Act (ESTA) rather than the Prevention of Illegal Evictions Act (PIE).

ESTA was enacted primarily to protect workers under the South African migrant labour system. Workers and their families would often live on their employers land, building a community that could last multiple generations. The workers, however, didn't have any security in the community that they built. Losing their job for any reason, including old age, meant expulsion from their home and their community.

In the Joneses case, the court focused on the legal requirements of ESTA. First, the Sutherlands had to have followed the proper legal procedure. Secondly, the Joneses eviction must be in accordance with the justice and equity prescripts.

Lawful cancelation of the lease agreement

A person can't be evicted without a court order, which isn't guaranteed.

The court analysed ESTA's section that differentiated between a fixed term agreement that would terminate automatically, and an agreement without a fixed term. It found that even though the Joneses had originally leased the property for one year period, the Sutherlands could not escape the mandatory legal requirement to terminate the agreement lawfully (this was an analysis of the interaction between the sections 11(3), 9(2) and 8(1) of ESTA).

Even though the agreement was for a fixed term, the first step was to lawfully terminate the lease in terms of section 8(1) of ESTA. The Sutherlands had sent many termination letters to the Joneses. The court found that even though most of the notices were legally defective, the Sutherlands had nonetheless correctly cancelled the lease by the time the matter came before the court.

Was it just and equitable to evict the joneses?

The court applied each relevant factor listed in section 8 of ESTA in turn.

The Joneses didn't raise two of the factors in their defence. They didn't challenge the fairness of the agreement, and they didn't alleged that they had an expectation that the agreement would be renewed.

However, the Joneses argued that the Sutherland's the criminal vandalisation of their property meant that it wasn't just and equitable evict them. The court didn't place much weight on this argument. Even if all the allegations against the Sutherlands were true, their conduct wouldn't entitle the Joneses to live permanently on the property.

The court's decision to evict hinged on considering the interests of the parties, including the comparative hardship to the owner.

On the one hand, the Jones wanted to live on the farm with their pets and farm animals. They wanted a level of personal autonomy. In an act of paternalism, the court, however, said that it was actually in the Joneses best interest to be evicted, because then the family could be moved to an old age home. The old age home was superior because the family's health and safety and constitutional rights would be infinitely better catered for. The Joneses couldn't oppose the eviction only on the grounds that they preferred to live on the farm. The Joneses weren't entitled to pick accommodation to their liking. They had no choice because the municipality could accommodate them at the old age home.

On the other hand, the Sutherlands were also suffering. They were old and in poor health. They were not wealthy and relied on the rent from their farm to earn a living. This was not a situation of a wealthy landowner pitted against a destitute farm worker.

Weighing up the factors, the court decided that the Joneses eviction was just and equitable, and gave the family 3 months to leave the Sutherlands' farm.

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