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Chapter 10 - Land and Housing

Land redistribution

All claims for land restitution had to be submitted to the Land Claims Commission before 31 December 1998. The Land Claims Court is still in the process of reviewing the claims. The Recent Restitution of Land Rights Amendment Act gives the Minister of Land Affairs extra powers to expropriate land for purposes of settling restitution claims.

Land redistribution and land grants

Land Redistribution aims to give those most in need a chance to get land for housing and productive purposes. It caters for urban and rural areas and includes labour tenants, farm workers and people who want to start farming.

A grant is a sum of money that you do not have to pay back. The government pays the money to help people pay for land or something else on the land like a well or fencing. It is not money in your hand. The money goes directly to the person or agent that is selling the land or the service. The government gives no more than R16 000 in subsidy money to any one applicant/household. If you apply for a grant from the Department of Land Affairs, you cannot get a housing subsidy from the Department of Housing as well.

There are five different grants from the Department of Land Affairs to assist with the land reform programme:

• Land Acquisition Grant
• Settlement Grant
• Settlement Planning Grant
• Land Acquisition Grant for local authorities
• Land Redistribution for Agricultural Development grant

See The housing subsidy.
See Land Redistribution Agricultural Development (LRAD) grant.

Land Acquisition or Settlement Grants

You can use this grant to buy land or get secure tenure to land you already occupy. You can also use the grant for improvements like housing, water supply, sanitation, internal roads and fencing.

Who can get a Land Acquisition or Settlement Grant?

To qualify for the grant, you have to be a South African citizen living in a household where your combined income is less than R2 500 per month per applicant/household. A household means a single adult older than 18 with dependants, or two adults with or without dependants. Households can apply individually or in a group. When households apply as a group, the average household income for the group must be less than R2 500 per month. It is important to understand that you will not automatically get a grant if you qualify.

People who could qualify for the grant are:

• landless people, especially women who need to settle in rural or urban areas
• farmworkers and their families who want to improve their settlement and land tenure conditions
• labour tenants and their families who want to get secure title to land they are living on and to improve it, or to get alternative land
• residents who want to get secure title to the land they are living on
• business people who want rural land for production, like farming or a shop
• people who get land through the land restitution programme
• people who lost land but are not covered by the Restitution of Land Act

Settlement Planning Grant

The same people who qualify for the Settlement Grant also qualify for the Settlement Planning Grant. This grant is meant to assist poor communities to employ planners and other professionals to help them plan their settlement. It can cover services like legal fees, land use planning, and infrastructure planning. The money gets paid in two instalments to the professional: once the project proposal is complete, and once the detailed settlement plan is done. This grant is worked out as a portion of the R16 000 that each household in the settlement is entitled to. The amount that is paid to the professionals is deducted from each household's R16 000.

How to apply for a Land Acquisition, Settlement, or Settlement Planning Grant

Contact your nearest office of the Department of Land Affairs and fill in a registration of need form. When you apply as a group, you must elect a representative to make the application on your behalf.

Land Acquisition Grant for local authorities

Many rural towns in South Africa have commonages. Long ago this was used by town people who did not have land, to graze their animals or grow crops. People had to pay a small fee to the local authority to use the commonage. As this practice fell way, the local authorities started to lease out their commonages, mostly to rich farmers who often paid very little for the land. The Land Acquisition Grant is to help local authorities buy land to create a commonage, or to add to the existing commonage, so that the poorer residents in the town can use the commonage for grazing animals or planting crops.

If there is a need in your community to use a commonage, you must go to your local authority or the provincial Department of Land Affairs and discuss this option with them.

In order to qualify for this grant, your local authority must:

• tell the Department of Land Affairs how much they can contribute to buy the land
• show the Department of Land Affairs their financial records
• give a commitment that the land will be for the poorest residents to lease
• give a list of all the people who will want to use the commonage
• give a plan from the residents explaining how the land will be used

Access to land if you do not have land

The purpose of the land redistribution programme is to provide people with land for housing in urban and rural areas as well as land for farming purposes. The government realises that poor people cannot buy land at normal prices. The government will assist them to buy land using the land grants - and in that way speed up land reform. The government will make state land available and buy land from willing sellers on behalf of applicants. Expropriation, where the state forces the owner to sell, will only be a last resort.

Land tenure reform

When people talk about 'tenure', they mean the different ways in which you can own or occupy land or housing. When people use the term 'security of tenure' they mean that your right to stay where you are is secure. You cannot be thrown off or evicted easily.

Different kinds of land tenure in South Africa

Private ownership - Private ownership means that a person or business owns the house or the land through having a registered title deed. 

Communal ownership - This means people own land or property together as a community or as a group. This can be organised as a trust, Section 21 company, voluntary association or communal property associations (CPA).

Renting - You can rent your house or land from its owner and pay them a monthly fee.

Laws that give people security of tenure

Tenure reform must give everybody the same amount of security wherever they stay. Three laws have been introduced to give people more security of tenure and prevent illegal evictions:

• Communal Land Rights Act of 2004 (CLRA)
• Land Reform (Labour Tenants) Act 3 of 1996
• Extension of Security of Tenure Act 62 of 1997 (ESTA)
• Prevention of Illegal Occupation of Land Act 1998 (PIE)

Extension of Security of Tenure Act (ESTA)

Who is covered by ESTA?

ESTA covers people who live in rural areas, on farms and on undeveloped land. It also protects people living on land that is encircled by a township or land within a township that is marked for agricultural purposes. The Act specifically gives women occupiers the same rights as men occupiers. However, the Act does not cover:

people who live in a proclaimed or recognised township

• people who live in a proclaimed or recognised township
• land invaders
• labour tenants
• people using the land for mining or industrial purposes, for businesses or commercial farming
• people who earn more than R5 000 per month gross (before tax deductions)

What does ESTA say?

The Act says that if you have lived on someone else's land - with permission of the owner - on or before 4 February 1997, you have a secure legal right to live on the land. An owner can not change or cancel these rights without your consent unless there is a good reason for doing so, or until you have had a chance to answer any allegations made against you.

It sets out the steps you can follow to strengthen your land rights. You can apply for a state grant that can be used to secure tenure rights - either in the form of a development on the land where you are living, or on another piece of land.

See Land Acquisition or Settlement grants.

The Act says you have the right to receive visitors, to have your family live with you, to have access to water, health and education services, to receive post and other forms of communication. The Act also gives people the right to visit and maintain family graves in rural and peri-urban areas. This right must be balanced with the owner's right to privacy. The owner or person in charge can set reasonable conditions on how this right is exercised.

The Act gives special rights to long term occupiers. If you are older than 60 years, and you have lived on the land for 10 years, or if you become disabled while you were employed by the owner, you can stay on that land for the rest of your life.

The Act protects you against unfair and arbitrary evictions and sets out how disputes over land rights can be resolved with mediation, arbitration or the courts.

Rights and duties of occupiers and owners

The Act spells out clearly what are the rights and duties of occupiers and owners.

Occupiers

Occupiers must:

• respect the fundamental rights of the owner
• prevent visitors from causing damage
• comply with the important and fair terms of the agreement with the owner. This is very important. If occupiers do not fulfil the agreement, they can be evicted without the option of alternative land.

The Act says that occupiers may not:

• harm or threaten other people on the land
• damage property
• help others to build shelters unlawfully on the land

Owners

Owners must:

• respect the fundamental rights of occupiers
• cknowledge the rights that this Act gives to occupiers
• follow the provisions of the Act when they consider ending the rights of occupiers to stay on the land

The Act says owners or persons in charge have the right to:

• set reasonable conditions regarding visits to occupiers' homes and family graves
• terminate an occupier's right to stay on the land, if this is just and fair
• apply for an eviction order
• make an urgent application for eviction in certain circumstances

Evictions in terms of ESTA

The following actions are all forms of evictions:

• where the contract of employment is terminated and the person agrees to leave
• taking away somebody's right to live on land
• taking away somebody's right to use land
• taking away somebody's access to water ad electricity, if they are staying on the land
• threatening occupiers so that they leave
• stopping them from coming back onto land if they left but planned to come back, for example, they went away for a family visit

The Act protects you against unfair and arbitrary evictions. An eviction may be fair and occupiers may be evicted from land if they:

• do something seriously wrong
• refuse to honour agreements with the owner, such as not paying rent if they agreed that they would pay.

In cases where the eviction is fair, a landlord must follow the requirements of the law in getting an occupier to leave the property, for example, by giving the required notice. However, if the occupier refuses to leave, the landlord must then get a court order to enforce the eviction. If the occupier disputes the eviction then the reasons for this must be raised in the court.  The Act protects people who believe they have been unfairly evicted.

 When is an eviction lawful?

An eviction is lawful if the following requirements have been met:

• The occupier must get two months written notice that the owner intends to apply for an eviction order. An eviction will not be lawful if the correct notices have not been given.
• The owner must send a copy of this notice letter to the local authority and the provincial office of the Department of Land Affairs. This must be done in order to warn the municipality and the Department that they might need to make arrangements for alternative accommodation for the occupiers, and for mediation, where possible.
• An eviction is only lawful if there is an eviction order from a court.

The eviction must also be just and equitable. The court will look at the following questions to decide whether it is just and equitable:

• Was the original agreement between the occupier and the owner fair?
• How did the parties conduct themselves?
• How much is each party going to suffer if this eviction happens or does not happen?
• Did the occupiers expect to stay on the land for a longer period?
• Was there a fair procedure to end the right to stay on the land?  To decide if it was fair, the court will ask:
• are there valid grounds for ending the right?
  
• did the owner inform the occupiers of allegations against them in a way they could understand it?
  
• did the occupiers have a chance to reply to the allegations?
  
• did the occupiers have enough time to reply?
  
• if there is an enquiry, another occupier, or person from an organisation that the occupier belongs to, must be allowed to help the occupier to state his or hercase
  
• if there is an enquiry, the owner must inform the occupier of his or her decision after the enquiry in writing
  
• if the right to stay on the land is threatened, the owner has to remind the occupier that the occupier has the right to take the matter to court if they disagree about the outcome of the enquiry
  

 What the court can decide

The court may or may not grant an eviction order, based on the following conditions:

• If the occupier has been on the land on or before 4 February 1997, and has done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where the occupiers can enjoy the same quality of life.
• If the occupier has been on the land on or before 4 February 1997, and has done something seriously wrong, the court may grant an eviction order even if there is nowhere else to stay.
• Even if an occupier arrived after 4 February 1997, the owner must still end the right to stay lawfully and fairly, give written notice of two months, and get an eviction order before the occupier can be evicted.

An eviction order given by a magistrate’s court must go to the Land Claims Court for automatic review of the magistrate’s decision. In other words, the eviction order issued by the Magistrates Court must be confirmed by the Land Claims Court before it can be enforced.

Urgent evictions

The court can give a provisional order for an urgent eviction when:

• there is a real and immediate danger that the occupier might harm someone or something
• there is nothing else that can be done to prevent this harm from happening
• the owner or any other person will suffer more if the eviction does not happen, than the occupier will suffer if the eviction does take place

 Compensation if you get evicted

If the court grants an eviction order, the court must order the owner to compensate you for any improvements to the land or property, or for crops you planted which you have not harvested yet. If you were employed by the owner, you must get all your wages that are due to you.

 When can the eviction order be carried out?

The eviction can only take place once:

• your compensation has been paid
• the court has set a date by when you must leave. If you do not leave by the due date, you can be removed.

 Who can remove you?

Only the sheriff of the court or someone under their supervision, can carry out an eviction. If at any time, the owner or the person in charge forces you off the land, it is criminal offence. They can be jailed or fined for this. You will be compensated for any losses, and have the right to return to the land on terms and conditions decided by the court.

Possible repeal of ESTA and the Land Tenure Security Bill

A National Survey on Evictions conducted in 2005 showed that more people living on farms had been evicted in the 10 years of democracy (1994-2003) than in the 10 years,before this  and only one percent of these evictions involved legal proceedings and a court order (as required by the Constitution).  Also, only one farm owner was prosecuted for illegal eviction.  There was therefore little inclination to implement ESTA or its the Labour Reform (Labour Tenants) Act of 1996.

In 2010 the government introduced the Land Tenure Security Bill which was intended to replace both ESTA and the Labour Reform (Labour Tenants) Act.  In doing so the government acknowledged that  ESTA had not been effective in preventing farm evictions. Apart from poor enforcement, many farm owners had found ways to avoid the legislation or find loopholes in it.

The Land Tenure Security Bill, if enacted, would provide for: the continued protection of the rights of people living and working on farms.  It would provide a support framework for sustainable livelihoods for farm workers that would, (amongst other things) address the need for sustained food production and state assistance in the settlement on alternative land,  Importantly the Bill would ensure that there is a clear legal distinction between the rights of farm dweller as employees, and their rights as occupants.

People who would be covered by the new law include those living and working on farms and  those associated with them, as well as farm owners and their agents.  The Bill addresses the rights of these stakeholders.

The Land Tenure Security Bill willl also provide a framework for the following

• the management of evictions;
• expropriation;
• the management of re-settlement units and agri-villages;
• the establishment of a land rights management board,
• dispute resolution.

In mid-2011 the Bill was sent back to the Department of Rural Development & Land Reform for reconsideration after stakeholders representing both farm owners and farm dwellers raised a range of concerns.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), No 19 of 1998

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (also called PIE) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners.

An unlawful occupier is a person who occupies land without the express or tacit permission of the owner or the person in charge. Tacit permission is when the owner is aware of the occupant being on the land or premises but does nothing to stop this.

Who is covered by PIE?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE.  It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act

Evictions in terms of PIE

When is an eviction lawful?

For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:

• give the occupier notice of his/her intention of going to court to get an eviction order.
• apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area. The notice must contain the following:
  • a statement that says proceedings are being instituted in the court in terms of PIE
  • the date and time of the court hearing
  • the grounds for the proposed eviction
  • that the occupier is entitled to appear before the court and defend the case
  • that the occupier can apply for legal aid
    
• The unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair.

A person who wants to defend the court action should approach the Justice Centre at the Magistrate’s court for assistance. An occupier threatened with eviction can apply for legal aid assistance and representation.

What the court can decide

The court will only give an eviction order if it is proved that:

• the person who is applying to evict you, is in fact the owner of the land
• you are an unlawful occupier
• the owner has reasonable grounds to ask for your eviction
• the local authority or any other owner of land in the area can make alternative land available for you

Urgent evictions

The Act also allows for urgent eviction proceedings. This will be granted if the owner can show that:

• there is real danger of substantial injury or damage to any person or property
• there is no other way to solve this situation
• the owner is going to suffer more if the occupier stays on the land, than the occupier will suffer if he or she gets evicted In such a case, the owner can go to court and get a final order for the eviction.

If the court grants an eviction order

The eviction order will state a date by when you have to leave the land, and also the date on which the eviction will take place if you do not vacate the land.

The court order may also make an order for your buildings to be demolished.

Who can remove you?

Only the sheriff of the court can carry out an eviction.

Dealing with land claims and other land reform disputes - the Land Claims Court

The Land Claims Court (LCC) specializes in dealing with disputes that arise out of laws that underpin South Africa’s land reform programme. These are the Restitution of Land Rights Act, the Land Reform (Labour Tenants) Act and the Extension of Security of Tenure Act (ESTA). The LCC has the same status as the High Courts. Any appeal against a decision of the LCC lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The LCC can hold hearings in any part of the country if it thinks this will make it more accessible and it can conduct its proceedings in an informal way if this is appropriate.

See Labour tenants and the Land Claims Court.