Miradel Street Investments CC v Mnisi and Others

Miradel Street Investments CC (the applicant), owned by Mr Neville John Bester, purchased portions 304 and 305 of Mirabel Street, Pomona Estates Agricultural Holdings, Kempton Park in 2001. Many of the 375 poor households (respondents) had resided lawfully on portion 305 since before the applicant's acquisition, some since 1993. After the applicant purchased the property, it leased buildings to primary tenants who sublet to the respondents with the applicant's consent. The respondents paid rent from 2001-2006. In 2006, the applicant wished to develop the property commercially and gave notice to vacate. The respondents refused due to lack of alternative accommodation. The applicant tolerated their occupation for a further 7 years. The applicant disconnected water and electricity to the property. On 5 March 2014, the applicant terminated the respondents' rights of residence under section 8(1) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). In October 2014, the applicant brought an eviction application. The respondents are extremely poor, working in the informal sector or relying on social grants. No alternative accommodation was available. The applicant misrepresented the facts in its founding affidavit, creating the false impression that respondents were recent land invaders.

• Whether the termination of the respondents' rights of residence under section 8(1) of ESTA was just and equitable
• Whether occupiers should have been afforded an opportunity to make representations before termination of their rights of residence
• Whether the requirement of meaningful engagement applies to ESTA evictions
• How to balance the property rights of landowners against the housing rights of vulnerable occupiers under ESTA

The eviction application was dismissed. There was no order as to costs, consistent with the practice in social litigation matters.

The termination of an ESTA occupier's right of residence under section 8(1) will not be just and equitable in appropriate cases if the occupier has not been given an effective opportunity to make representations prior to that decision being taken. Section 8(1)(e) of ESTA must be interpreted in harmony with the constitutional requirement of meaningful engagement derived from section 26(3) of the Constitution. The determination of whether termination was just and equitable must balance the opposing interests of owners and vulnerable occupiers in a constitutionally just manner, taking into account factors including: length and nature of occupation, payment of rent, availability of alternative accommodation, conduct of the parties, and the fairness of procedures followed. The requirement of meaningful engagement applies to all eviction applications under ESTA, whether on private or state land.

The Court observed that engagement processes, if approached constructively by both sides, have the potential to achieve pragmatic and humane solutions to housing disputes. The Court noted that this judgment should not be understood to imply that landowners can never terminate ESTA rights or secure eviction, but rather that they cannot act in an unrestrained way in relation to property occupied by vulnerable occupiers for extended periods. The Court took a dim view of the applicant's unlawful conduct in disconnecting utilities and of the applicant's failure to include material facts in its founding affidavit, creating a false impression that respondents were recent land invaders. The Court commented that rental payments during continued occupation is precisely the sort of issue suited for discussion in an engagement process. The Court reaffirmed the practice of not awarding costs in social litigation matters.

This judgment is significant in South African land and housing law for: (1) extending the principle of meaningful engagement from PIE jurisprudence to ESTA eviction applications; (2) clarifying that section 8(1)(e) of ESTA (the requirement to give occupiers an opportunity to make representations before terminating rights of residence) must be interpreted in harmony with constitutional principles of meaningful engagement; (3) emphasizing that landowners cannot act unrestrained when terminating rights of long-settled vulnerable occupiers; (4) affirming that meaningful engagement is required in all eviction matters regardless of whether they arise under PIE or ESTA and whether involving state or private land; (5) demonstrating how courts must balance property rights against housing rights in a constitutionally just manner; and (6) emphasizing the participatory dimension of section 26 constitutional housing rights, allowing occupiers a stake in decisions fundamentally affecting their lives.