Baron and Others v Claytile and Another 2017 (5) SA 329 (CC)

/ / News, 2018, Property Law


The Applicants, who were formerly employed by the First Respondent’s brick factory, were entitled to occupy various farm units on the brick factory’s property, free of charge, for the duration of their employment. The Applicants were dismissed on disciplinary grounds. However, despite becoming employed elsewhere and having received written notice from the First Respondent to vacate the farm units, they continued to reside on the property. As a result, the First Respondent applied to the Magistrate’s Court for the eviction of the Applicants from the premises. At this time, the City had indicated that no suitable alternative accommodation was available due to the long waiting list. The Magistrate’s Court, however, ruled that the requirements for an eviction, in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”), were met by the First Respondent and the eviction order was granted against the Applicants accordingly. The eviction order was subsequently taken on review and confirmed by the Land Claims Court. Thereafter, the City indicated that it was in a position to secure suitable alternative accommodation to the Applicants and made an offer to the Applicants to move to Delft TRA. The Applicants were unwilling to accept this offer because “they could not see themselves moving from a brick dwelling to a corrugated iron structure”. The City, furthermore, offered alternative accommodation at Wolwerivier, which was also rejected by the Applicants due to the distance from the Applicants’ place and their children’s schools.

The Applicants took the matter on appeal to the Constitutional Court. The main issues on appeal were whether there was a duty incumbent upon the private landowner to provide alternative accommodation to the evicted occupiers, as well as the meaning of “suitable alternative accommodation”.


Section 26(1) of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) states that “everyone has the right to have access to adequate housing”. In relation to this right, Section 26(2) of the Constitution provides that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”. With reference to these sections, the Constitutional Court reiterated that the City is constitutionally obliged to provide suitable alternative accommodation to the Applicants, within its available resources. However, in so doing, the Constitutional Court further stated that, not only is the duty one of progressive realisation, but that ESTA also recognises the right of landowners to apply for eviction under certain conditions and circumstances.

Further to the above, the Constitutional Court referred to The City of Johannesburg v Changing Tides, in which it was held that an eviction is just and equitable if alternative accommodation is made available. In this matter, alternative accommodation had been made available to the Applicants at Wolwerivier.

After consideration of the above-mentioned legal principles, the Constitutional Court highlighted that the Applicants have enjoyed free accommodation for almost five years. Further stating that the First Respondent’s property rights could not fairly continue to be restricted by granting free accommodation to the Applicants, where the First Respondent is unable to accommodate its current employees. The Constitutional Court also considered that the First Respondent had offered to provide transport to and from the schools of the Applicants’ children.

In light of the above, the Constitutional Court stated that the Applicants cannot repeatedly delay their eviction by declaring that they find the alternative accommodation, offered by the City, to be unsuitable. Thus, the Applicants’ appeal was dismissed.


This case discusses the meaning of “alternative accommodation” in relation to the granting of an eviction in terms of ESTA.

Written by Lyndsey Strachan and supervised by Anja van Wijk, 27 July 2018

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