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Article by Umhlanga Rocks Lawyer, Fawzia Khan

A family who lived on farm property successfully resisted attempts to have them evicted. Mr. and Mrs. Mtolo together with their eight children lived on a farm which was owned by Mrs Lombard. Mr. Mtolo who was employed by Mr Lombard since 2010 and resided with his family on his employer’s farm in the Free State.

When his employer moved to Vanderbyl Park in Gauteng, Mr. Mtolo and his family were accommodated in their own house on a farm property owned by Mrs Lombard. This property was then sold to the third party. The Mtolos claimed that on 16 June 2021, Mr Lombard came to their house, accompanied by the police, and informed them that the property was sold but that they could reside on the property until they secured alternative accommodation. The claimed that on 24 June 2021 Mr. Lombard, again accompanied by the police, intimidated them to vacate and that the roof and windows of their house was then removed, thus effectively evicting them. They said that they were forced to live in the open, with their eight children sleeping in the car.

The Mtolos challenged the lawfulness of their eviction saying that it also affected their children’s schooling, two of whom are in grade 12. The High court ordered the Lombards to ensure that the house was in a state fit for human occupation and that the applicants be allowed to re-take possession of the house. The High Court also gave the Mtolos leave to return to court on an urgent basis, if there was non-compliance with the order.

The applicants brought an urgent High Court application saying that the house remained unfit for human occupation. The Lombards responded that they did indeed comply with the court order and that the Mtolos had since secured alternative accommodation. The matter was then struck from the roll for lack of urgency.

The Mtolos approached the Constitutional Court on the basis that the matter concerned their right to dignity, their children’s right to basic education, an eviction and the right of access to housing. In a unanimous judgment, the Constitutional Court held that the Mtolo family would suffer irreparable harm if they were made to wait for the next available date for a hearing and accepted the matter was urgent.

The Concourt rejected the Lombards assertion that there was compliance with the High Court order and ordered them to comply with the order forthwith so as to restore the dignity of the applicants. The Concourt also ordered the Lombards to do anything that was integral to the fixing of the roof. It further directed the Emfuleni Local Municipality to appoint a suitably qualified person to inspect the house and prepare a report on whether it was fit for human occupation in the event that the applicants said it was not. The Court sent the matter back to the High Court for it to ensure that it supervises compliance with the court order.

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