The Supreme Court of Appeal has ruled in favour of a retired gardener and his wife living in Joostenbergvlakte. Illustration: Lisa Nelson
The supreme court of appeal has found that a retired gardener and his wife can continue living on a smallholding in Stellenbosch because their land rights are protected under the Extension of Security of Tenure Act.
The judgment is important for people who live on land in farming areas near cities, where it is sometimes unclear whether the Act applies. The legislation was established in 1997 to protect farm workers whose rights were insecure because of racist laws of the past.
The case revolves around a smallholding in Joostenbergvlakte, an agricultural area just outside Stellenbosch. Jacob Pieters and his wife started living there in 1988 when he was employed by the landowner as a gardener.
Pieters retired in 2012 but the couple continued living there and are still residing on the property with two grandchildren. Their sole source of income is a South African Social Security Agency old-age grant of R1 700 per month.
But, in 2014, the land was taken over by the owner’s son, Peter Stemmet. Four years later, Stemmet started eviction proceedings against the Pieters.
The Bellville magistrate’s court granted the eviction order, but the Pieters family appealed to the land claims court, arguing that the Extension of Security of Tenure Act applied to them and that they were therefore allowed to stay on the land. Eviction proceedings would have to comply with the Act, they argued.
The court ruled against the Pieters, finding that the Act did not apply to this land. It said the landowners had correctly followed the eviction process required by the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act and the Pieters family could therefore be evicted.
But the family took the matter to the supreme court of appeal, where a full bench (Acting Judge Leonie Windell, Judge Pieter Meyer, Judge David Unterhalter, Judge Keoagile Matojane and Judge Raylene Keightley) ruled in the Pieters’ favour.
In terms of the Extension of Security of Tenure Act, land situated within or around a “township” is excluded from its ambit. So the court first had to determine whether the land occupied by the Pieters constituted a township in terms of the law.
It was not disputed that the land had never been officially registered or proclaimed as a township in a provincial gazette. Because there is no uniform definition of township in South African law, the court had to consider definitions from several different laws.
The court found that “public space” was a key feature in each of these definitions. If there is public space, defined as “any open or enclosed area, such as a street or road, depicted on a general plan or diagram, intended for use by the general public and owned by or vested in the municipal council”, then the land in question is a township. Taking this approach, the land was in a township.
But if the land is designated for agricultural purposes, even though it is a township, the Act may still reply. Here the court stressed that it has an obligation to interpret any law in a manner that promotes the spirit and aims of the Bill of Rights.
Because the land in question had been zoned as rural, the court found that it was equal to agricultural land, though the Stemmets argued that the land was earmarked for urban development.
The court said that the attempt to distinguish between “rural” and “agricultural” was artificial. In the City of Cape Town’s development management scheme, the line between rural and agricultural was often blurred and they shared many overlapping characteristics, the court found.
The protections of the Extension of Security of Tenure Act are aimed at safeguarding security of tenure, the right not to be unjustly evicted and the right to adequate housing.
Because the constitutional court had stressed that the Act was remedial legislation, and its provisions must be interpreted to advance the rights of farm workers who are a vulnerable group, the supreme court of appeal found that a rigid approach could not be sustained.
The court also stressed the importance of the fact that the Pieters family had resided on the property for more than three decades with the knowledge and consent of the owners.
The supreme court of appeal found that the Extension of Security of Tenure Act applied to the land and the Pieters’ right of residence could only be terminated in terms of the Act. The appeal was upheld with costs.
This article was first published by GroundUp.