By Tanya Calitz

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

In a recent Constitutional Court (CC) judgment handed down, Pretorius AJ sought to clarify the statutory obligations of an organ of state to provide alternative accommodation in eviction matters.

Baron and Others v Claytile (Pty) Ltd and Another 2017 (5) SA 329 (CC), started out like any ordinary eviction matter. First, the employer, Claytile (Pty) Ltd, followed the correct legislative procedures as envisaged in the Extension of Security of Tenure Act 62 of 1997 (ESTA) to evict former employees prior to their resignation or the termination of their employment contract. Second, an eviction order was granted and subsequently confirmed by the Land Claims Court. Third, the former employees refused to vacate the units that they were residing in and continued to enjoy free accommodation, electricity and water for almost five years since their right of employment (which was connected to their right of occupation) was terminated.

What makes this matter so significant is the fact that it directly engages and impacts on the application and interpretation of ESTA. Our courts have not had the opportunity to ventilate ESTA as much as they have done with related legislation, such as the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).

In this matter, the City of Cape Town Municipality (the city) indicated on two separate occasions that it did not have the capacity to house the employees and did not foresee having alternative accommodation available in future – contrary to its constitutional obligation in subs 26(1) and 26(2) of the Constitution –
which states that:

‘(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’.

The city further indicated that people who qualified for alternative accommodation were allocated units at its Temporary Relocation Areas, should space become available. In the face of the city’s slack conduct, the landlord continued to experience hardship by having to accommodate the employees on the farm. The employees were employed elsewhere and conferred no benefit or advantage of any sort on the landlord.

The city made a tentative offer at a later stage to accommodate the employees at Blikkiesdorp, a Temporary Relocation Area. The employees rejected the offer, because the units at Blikkiesdorp consisted of a one room corrugated iron structure without electricity. The question then arises: How does one strike an equitable balance between employees who are to be rendered homeless on the one hand and employees who are offered alternative accommodation, which are less favourable than what they are used to, on the other hand?

It seldom occurs that people who are the subject of eviction, will reject an offer of alternative accommodation. In the scenario that was created in the Baron case, it can be said that the municipality adhered and complied with its constitutional obligations by making an offer of alternative accommodation, which was rejected. How far does the duty of a municipality stretch and when can it be determined that a municipality complied with its constitutional obligation to provide adequate housing? What exactly should a municipality do to adhere to its constitutional obligation?

The right to access to adequate housing is a fundamental human right that cannot be disregarded, but it is a right that should not be read in isolation. The right to adequate housing is, therefore, more than the mere provision of a roof over one’s head or a safe place in the sense that an irrefutable link exists between the right to adequate housing and the right to human dignity; the right to life; and the right to freedom and security of a person. The question as derived from the Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) then is: Does the municipality’s offer on alternative accommodation demean the employees’ current housing situation or fortify it?

Notably, the city made a second offer to the employees at Wolwerivier days before the matter was set to be heard in the CC. Once again, the employees rejected the offer because the units at Wolwerivier, according to them, were inadequate.

Landlords should caution against interpreting this judgment as ‘once-and-for-all’ victory in terms of obtaining eviction orders against employees who remain on their properties. In this matter, the employees’ contention that commercially-able private landowners is obligated to provide assistance in obtaining suitable alternative accommodation, is tenable and carries some weight to the extent, where meaningful engagement between the relevant parties plays a pivotal role.

This is not a case where it is justified to impose an obligation on private landowners, as the employees would have it, to provide suitable alternative accommodation to them. It is profusely clear that a constitutional duty vests with the city to provide suitable alternative accommodation, in instances where occupiers are legally evicted and rendered homeless.

In these circumstances, the municipality, albeit it initially held that it did not have the capacity to accommodate the employees complied with its constitutional obligation to provide alternative suitable accommodation to the employees.

Tania Calitz LLB (cum laude) (UFS) is a candidate attorney at MacRobert Inc in Pretoria.

This article was first published in De Rebus in 2017 (Dec) DR 54.