This is an application for leave to appeal to the Supreme Court of Appeal. Angelina Nomvula Mjoli (the “applicant”), is appealing against the whole of the order made in terms of Section 19(3) of the Extension of Security of Tenure Act, 62 of 1997 (“ESTA”), on 12 March 2019 (“the order”), The applicant’s grounds of appeal can be summarised as follows:
- The Land Claims court has no jurisdiction in terms of section 19 (3) of ESTA to confirm the magistrate’s order as it was not an eviction order but a relocation order from one building to another building on the same farm. 2. The order was too vague and incapable of implementation.
The applicant is a resident on the Modderfontein farm (“the farm”), which is owned/managed by Grey Pass Farm (the “respondent”). The respondent had initially applied in the magistrate court for an order for the applicant and other occupiers to vacate the houses which the applicant and other occupiers occupied on the farm. The application was accordingly heard, oral inspection was led and an inspection in loco was conducted.
During the inspection in loco, the magistrate noted the circumstances under which the occupiers were living and they were shocking – there was no sanitation and the building posed a danger to the occupants. The adjoining building which the applicant occupied was better, but was not of a standard required for human habitation. Furthermore, the magistrate noted the alternative accommodation that could be made available to the occupiers on another part of the farm.
The conditions on that part of the farm were conducive to human habitation, as opposed to the one the applicant and other occupiers had been occupying. 1 Act 10 of 2013. The place was equipped with running water and sanitation facilities. The respondent undertook to provide housing for the occupiers (including the applicant), if the occupiers agreed to move to that part of the farm. The applicant refused to move to that part of the farm and it is unclear as to whether the other occupants agreed to move.
The magistrate made an order (“magistrate’s order”) in the following terms:
- Eviction of the first, second and third respondents together with everyone who got occupation of the farm through them;
- All the respondents and everyone who got occupation through them must vacate the property on or before 31 January 2019;
- Non-compliance to this order will result in the sheriff being able to evict the residents from the farm bearing in mind that alternative accommodation is available; and
- No costs as to order.
The magistrate’s order was suspended depending on the whether the Land Claims confirmed same.
Subsequent to the above, the matter was referred to the Land Claims Court for review purposes in terms of Section 19(3) of ETSA. The order was confirmed and only the date on which the occupiers were to vacate changed.
Relying on section 17 of the Superior Courts Act (“the Act”)1, the court highlighted the following aspects which had to be considered for leave to appeal to be given:
- Whether the appeal would have reasonable prospects of success;
- Whether there was some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.
- Whether the decision sought falls within the ambit of section 16(2) of the Act, and
- If the decision sought to be appealed does not dispose of the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.
With regards to the test of reasonable prospect of success, the court considered the case of S v Smith2, where the Supreme Court of Appeal (“SCA”) held that in order for the applicant to succeed, she would have to convince the SCA on proper grounds that she has prospects of success on appeal and that those prospects are not too remote, but have a realistic chance of succeeding.
The SCA explained that an order for the applicant to be moved to an alternative location, placed the order in abeyance pending allocation of the alternative accommodation on the other part of the farm. Accordingly, this did not confine to an eviction from land in terms of ESTA3, as relocation cannot amount to eviction from land. For that reason, the applicant had a reasonable prospect of success on her first ground of appeal.
The other grounds were not discussed in such detail as the first ground as the application should succeed alone on the first ground. It was thus held that a relocation order is not an eviction order and therefore not reviewable in terms of section 19(3) of ESTA.
Relocation order is not an eviction order and therefore not reviewable in terms of section 19(3) of ESTA.
Written by Puseletso Radebe Checked by Stefan Bezuidenhout