Lesiba Matlaila (71), Sophie Kgomare (71) and Kgomare’s daughter, Connie, have resided at 236 Wilson Street, Fairlands for four decades. Now a property developer that bought the property last year wants to remove them – but the high court in Johannesburg heard arguments on Wednesday that the eviction would be inhumane and unlawful.
According to papers filed at the high court in Johannesburg, All Building and Cleaning Services (ABCS), a property development company, wants to build residential units on the 6 000-square-metre property for “higher income” groups.
The Socio-Economic Rights Institute of South Africa (Seri-SA) is assisting Matlaila and the Kgomares with opposing the application. The crux of Seri-SA’s argument is two-fold. Firstly, there are numerous personal circumstances, unique to this case, which the court must take into account. Secondly, ABCS has flouted its duty in terms of meaningful engagement in its eviction efforts, instead resorting to coercion tactics to remove the three people. ABCS says this is not true.
It says its obligations do not extend as far as mediation or meaningful engagement because Matlaila and the Kgomares are occupying the land illegally, and because the duty to provide them with alternative accommodation after the eviction is the municipality’s.
Seri-SA says an attempted “illegal eviction” took place on April 27 2013, when bulldozers moved in to the property and tried to remove the roof of Matlaila’s home. ABCS, who took ownership of the property two months prior, has denied involvement in the incident.
Two days later, an ABCS representative offered to pay the “occupiers” a months’ rent if they agreed to move out. The offer was rejected. “They [the applicants] are intimately connected with the local area, and have known little else for most of their lives. This is no ordinary eviction application,” say Seri-SA’s lawyers.
Matlaila was born in Fairlands where he lived with his father, a farmer, until the two moved in 1958. Twelve years later, they returned to Fairlands, which they consider to be their home.
Kgomare’s daughters, Connie and Beauty, were raised on the property. Beauty works as a domestic worker elsewhere but Connie still lives there with her mother. Matlaila and Sophie Kgomare were employed by the previous landowners, the Twaalhovens, until the couple’s death in 2008.
They were each given separate rooms and a small piece on land on which to grow vegetables. They described the Twaalhovens as family. According to the papers, the Twaalhovens bequeathed the property to “Rita Swanepoel”.
Her relationship to the Twaalhovens is not made clear in the court papers. But ABCS says the property was then sold on three times after that, until the company finally became the owners. They say the Matlailas did not obtain permission from Swanepoel or the subsequent owners to continue living on the property.
But the Matlailas told the court that the land is their ancestral land. A land claim launched by Lesiba Matlaila failed in 2005 but he told the court that he is in the process of filing a new claim. Matlaila earns R3 700 a month as a labourer. The Kgomares’ combined income is R3 200, according to court papers. Accomodation in Fairlands starts at R2 500 per month for a single person, and R4 000 per month for a family.
‘Return’ to rural areas
ABCS suggested that the family should move “back” to Mpumalanga and Limpopo, where some of their family originated from. Therefore, the company argues, it is not true that the three will be homeless if evicted. But Seri-SA says this “evinces the unfortunate attitude that black South Africans must ‘return’ to rural areas if they cannot find affordable accommodation”.
“In our submission, no value system consistent with the Constitution, and no aspect of case law developed under the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 [PIE] would sanction the eviction onto the streets of two 71-year-old persons who have been living on the property for 44 years,” Seri-SA told the court on Wednesday.
But ABCS argues that the occupiers are there illegally. As such, ABCS says the only issue at hand is the “circumstances” of the family, and deciding a “just and equitable” date for the eviction. The company concedes that the circumstances of the three “occupiers” require “special consideration”.
But ABCS says in spite of this, “they do need to be evicted” in terms of PIE. The section referred to by ABCS says that the court must grant an eviction order if the occupiers have raised no defence – which ABCS says the occupiers here have failed to do. This is after the court has taken into account all factors, including the length of time the occupiers have spent on the land.
In any event, according to the company, Matlaila and Sophie Kgomare are so old that they will have to be moved elsewhere soon to receive full-time care. The company also argues that the onus is on the City of Johannesburg to provide them with alternative accommodation in the interim.
Seri-SA argues that not only have the three lived on the property for most of their lives, that the property has meaning to them, but they also have no alternative accommodation and the eviction will render them homeless. Critically, Seri-SA says there has been no meaningful engagement with the Matlaila or the Kgomares.
It says there must be mediation efforts, too.
‘A matter of logic’
ABCS says it doesn’t have to do this because case law on meaningful engagement involves group evictions, not individual evictions. Seri-SA says this argument is flawed.
“It is clear as a matter of logic, and from much of the applicable case law that the right to alternative accommodation in the event that an eviction would lead to homelessness, and the statutory framework for adjudicating eviction proceedings, applies to individuals and groups of people with equal force.”
Judgment was reserved on Wednesday.