Baron and Others v Claytile (Pty) Limited and Another

The applicants were former employees of Claytile (Pty) Limited (first respondent), a brick manufacturing business, who resided in housing units on the farm as a condition of their employment. Their employment was terminated between 2006-2011 following disciplinary proceedings for misconduct. Despite termination, they continued residing on the farm without paying rent or utilities. On 3 November 2012, the first respondent issued eviction notices requiring them to vacate by 8 December 2012. When they failed to leave, eviction proceedings were instituted in the Magistrate's Court in June 2013. The Bellville Magistrate's Court granted an eviction order on 7 February 2014, giving the applicants until 30 October 2014 to vacate. The City of Cape Town Municipality (second respondent) initially indicated no suitable alternative accommodation was available. The Land Claims Court confirmed the eviction order on automatic review (21 October 2015) and dismissed an appeal (23 March 2016). The Supreme Court of Appeal refused special leave to appeal on 13 September 2016. The applicants then approached the Constitutional Court. Just before the Constitutional Court hearing, on 27 February 2017, the City offered alternative accommodation at Wolwerivier, which the applicants rejected as unsuitable on 20 March 2017.

• Whether the provisions of section 10 of ESTA, read with sections 25 and 26 of the Constitution, were complied with for the eviction
• What constitutes 'suitable alternative accommodation' as defined in section 1 of ESTA
• What constitutional obligations do organs of state (municipalities) have to provide suitable alternative accommodation in eviction proceedings
• What duties, if any, do private landowners have to provide or assist in finding alternative accommodation for evicted occupiers
• Whether the eviction order was just and equitable in the circumstances

1. Condonation granted for late filing of appeal record and first respondent's answering affidavit. 2. Application to adduce further evidence granted. 3. Application to amend application for leave to appeal granted. 4. Leave to appeal granted. 5. Appeal dismissed. 6. Eviction order of Bellville Magistrate's Court confirmed. 7. Applicants ordered to vacate first respondent's premises within three months. 8. First respondent ordered to transport affected children from Wolwerivier to their current school and back every school day from eviction date to end of 2017 school year. 9. City of Cape Town Municipality ordered to pay applicants' costs up to 23 February 2017 including costs of two counsel where applicable.

The binding legal principles established are: (1) Municipalities have a constitutional obligation under section 26 of the Constitution to provide suitable alternative accommodation to occupiers legally evicted under ESTA who face homelessness, within the municipality's available resources. (2) 'Suitable alternative accommodation' under ESTA must be interpreted in light of section 26(2) of the Constitution as accommodation that is safe and not less favourable than the occupier's previous situation, assessed holistically within the context of progressive realisation of housing rights. (3) Emergency housing structures with basic facilities (internal toilets, water, electricity) can constitute suitable alternative accommodation where they represent reasonable measures within available resources. (4) Eviction is just and equitable under section 10 of ESTA when suitable alternative accommodation is made available and reasonable concerns (such as schooling disruption) are addressed. (5) Private landowners cannot be expected to indefinitely restrict their property rights by providing free accommodation to former employees when the State has made alternative accommodation available and the occupiers have already enjoyed extended occupation after termination of their right of residence.

Pretorius AJ made observations (qualified by Zondo J's concurrence) about potential duties of private landowners under ESTA: In exceptional circumstances under section 10(2) where eviction is sought without breach of employment relationship, it might be appropriate to expect private landowners to assist in finding or even provide suitable alternative accommodation, depending on context and the landowner's commercial ability. However, this must be a contextual enquiry. The Court also observed that ESTA can under certain circumstances place positive obligations on private landowners (referencing Daniels), and that ownership of land in the constitutional dispensation comes with duties that differ from the pre-constitutional context. The Court noted that legal principles developed under PIE cannot automatically apply to ESTA without consideration of ESTA's distinct purpose within the land reform scheme. The Court also commented that the City's failure to provide accommodation earlier and waiting until just before the Constitutional Court hearing was "astounding" given it had over five years to fulfil its constitutional obligation, justifying the costs order against it (though Zondo J disagreed with this aspect).

This case clarifies the constitutional obligations of municipalities to provide suitable alternative accommodation in ESTA eviction proceedings. It establishes that: (1) municipalities cannot evade their section 26 constitutional duty by simply reporting no accommodation is available; (2) the definition of 'suitable alternative accommodation' under ESTA must be interpreted having regard to section 26(2)'s requirement of progressive realisation within available resources; (3) basic emergency housing structures with internal facilities can constitute suitable alternative accommodation; (4) occupiers cannot indefinitely delay eviction by repeatedly rejecting offered accommodation; and (5) private landowners who have already accommodated former employees for extended periods cannot be expected to do so indefinitely when the State has made alternative accommodation available. The case also addresses the limited circumstances in which positive obligations might be imposed on private landowners under ESTA, though these dicta were qualified by the concurring judgment. The case reinforces the principle from Blue Moonlight that municipalities owe constitutional obligations to persons facing homelessness from eviction.