Residents of Kanana Village in Bronkhorstspruit will all have to be evicted within a year, the SCA ruled.
Image: File
In a legal spat spanning more than two decades, the Supreme Court of Appeal has now slammed the City of Tshwane’s attempt to expropriate privately owned land near Bronkhorstspruit, outside Pretoria, in a bid to house hundreds of illegal occupants.
Judge Daisy Molefe, who wrote the unanimous judgment, found that the municipality’s expropriation process was unlawful and it could not be used to bypass an existing eviction order. The court gave the municipality a year to finally relocate all the residents.
Lawyers for Human Rights’ Land, Housing and Property Rights Unit has been embroiled in several court applications in a bid to ensure that the occupiers - a community of about 500 households - have a roof over their heads.
The community, known as Kanana Village, for many years fought eviction by a private owner who bought the land. The Kanana Village was established 21 years ago at the farm Kameelzynkraal, Pretoria East. The then owner of the farm, Ben Gomeni, invited families who were left homeless by unlawful evictions to come and occupy part of the farm.The farm owner had plans to formalise the community. However, in December 2005, he died before he could do so.
In March 2006 the property was sold to Summer Seasons Trading, the current owner. In 2011, the new owner brought an eviction application against the community. LHR unsuccessfully appealed to the Constitutional Court.
The matter returned to the high court during which eviction orders were secured. The City of Tshwane, who was ordered to provide alternative accommodation to the people, meanwhile gave notice to the owner for the expropriation of his land. But it had emerged that it did not follow due process and the high court earlier declared it invalid.
While the City argued it wanted to obtain the land so that the residents could permanently settle there, Summer Season, the owners - challenged the legality of the expropriation process.
Meanwhile, the informal settlement continued to grow, and new shacks were erected on the property despite existing court orders. The municipality also installed water tanks and ablution facilities on the property.
On appeal, the City conceded that neither the 2015 nor the 2018 expropriation notices could succeed and withdrew the submission that the high court erred in ruling them invalid. Counsel, however, submitted that the high court incorrectly enforced the eviction order against the occupiers, granted almost 10 years ago.
It was argued that the high court did not obtain further affidavits regarding the current welfare of the occupiers, refused to accede to an invitation to conduct an inspection in loco to see how the settlement had grown and found that the eviction order precluded the City from expropriating the property.
Counsel submitted that the matter should be remitted to the high court, with the City providing sufficient evidence to show that the eviction would entail the massive relocation of a well-established community, which would be severely detrimental to the community.
The court was told that the occupiers have formed themselves into a settled Kanana Village and built homes for themselves; they are working on the surrounding farms with some conducting informal businesses; and there are schools for the children, a clinic for the sick and the elderly, and a church for the community.
But Judge Molefe, while having sympathy with the people, said: “Homelessness in our country is a huge problem. However, land invasion should always be discouraged. While the Constitution guarantees everyone the right to have access to adequate housing, it does not give unlawful occupiers the right to choose exactly where they want to live, and the property owners are not expected to provide such occupation indefinitely,” she said.