Elankor SES (Pty) Ltd v Mzwandile Ngcosholo and Others

The Respondent, Mzwandile Ngcosholo, and his family had resided on Portion 89 of the KraggaKamma farm since 1973, where he also worked. The farm was initially owned by Mr Grant Fox, then sold to Taurus Stock, and subsequently to the Applicant, Elankor SES (Pty) Ltd, in 2000 or 2001. The Applicant purchased the farm to convert it into an eco-estate with game farming and residential sites. When the Applicant acquired the farm, the Respondent was still resident with his wife and seven children (five of his own and two foster grandchildren) in a six-roomed house built of corrugated iron and other materials, without running water or electricity. The Respondent was employed as a gardener by Mrs. Tracy Harris, and his wife as a domestic worker earning R800 per month. The Applicant sought to evict the Respondent's family, and the Port Elizabeth Magistrate initially granted an eviction order on 7 March 2006. The matter came before the Land Claims Court for review in 2006, where NCUBE AJ remitted it back to the Magistrate to investigate suitable alternative accommodation. After various procedural complications, including proceedings in the High Court and a variation application, the matter returned to the LCC for finalization. Despite attempts by various parties, including the Department of Land Affairs, Mr van der Merwe (the Applicant's director), and Mrs. Harris, no suitable alternative accommodation was secured. The Applicant offered a two-roomed RDP house in Walmer or Motherwell township, which the Respondent rejected as unsuitable for his nine-member family and inconsistent with their rural lifestyle and need for agricultural land.

• Whether the eviction order should be confirmed under section 19(3) of the Extension of Security of Tenure Act 62 of 1997
• Whether suitable alternative accommodation was available to the Respondent and his family as required by section 10(2) of the Extension of Security of Tenure Act
• What constitutes 'suitable alternative accommodation' under the Act for a family of nine accustomed to rural living and agricultural activities
• How to balance the Applicant's constitutional property rights under section 25 with the Respondent's constitutional right not to be evicted from their home without considering all relevant circumstances under section 26(3)
• Whether the comparative hardships of the parties favored granting or refusing the eviction order

The eviction order granted by the Magistrate, Port Elizabeth, on 7 March 2006 in case number 12428/05 was set aside in its entirety in terms of section 19(3)(b) of the Extension of Security of Tenure Act 62 of 1997.

Under section 10(2) of the Extension of Security of Tenure Act 62 of 1997, an eviction order may only be granted against an occupier who was residing on land on 4 February 1997 (and where none of the circumstances in section 10(1) apply) if the court is satisfied that suitable alternative accommodation is actually available to the occupier. 'Suitable alternative accommodation' as defined in section 1(1) of the Act means accommodation that is safe and overall not less favorable than the occupier's previous situation, having regard to: (a) residential accommodation and land for agricultural use available prior to eviction; (b) the reasonable needs and requirements of all household members for residential accommodation, land for agricultural use, and services; (c) their joint earning abilities; and (d) the need to reside in proximity to employment or economic opportunities. A vacant site, a promise of future housing, or accommodation that is inadequate for the size of the household does not constitute 'suitable alternative accommodation' under the Act. Where no suitable alternative accommodation is available, an eviction order must be refused, even if the landowner has legitimate business interests in developing the property. The constitutional right not to be evicted from one's home without an order of court made after considering all relevant circumstances (section 26(3) of the Constitution) must be balanced against property rights (section 25), with courts being reluctant to grant eviction orders against settled occupiers unless reasonable alternatives are available.

NCUBE AJ made powerful observations about the historical context, stating: 'This case is a typical example of the painful history of landless people of our country. The Respondent finds himself a pariah in the country of his birth... because of cruel and racially discriminatory practices of the apartheid system. Under that system farm dwellers became perpetual farm labourers with no possibility of having land of their own.' The Court also commented that the case could have been peacefully settled had it been properly handled, particularly noting that Mrs. Harris had offered land, the Department was willing to purchase it, but Mr van der Merwe failed to make an undertaking to assist with building materials merely because the land was not yet registered. The Court sympathetically noted the Respondent's statement that he wanted 'a place where he can stay even if he is unemployed,' understanding this as a desire to crop land to supplement meagre wages. The Court acknowledged the social worker's description of the house as a 'shack' but observed it had 'sentimental value' to the family who had lived there for 25-30 years. NCUBE AJ noted the Respondent's illiteracy and stated 'because of that reason, some people take an advantage of him.' The Court also observed that Mrs. Ngcosholo's preference to stay in the forest rather than a township 'where there are taverns and shebeens which will have a negative influence on her children's lives' reflected legitimate concerns about the family's wellbeing.

This case is significant in South African land reform jurisprudence as it demonstrates the strong protection afforded to farm dwellers under the Extension of Security of Tenure Act 62 of 1997 (ESTA), particularly those who were occupiers on 4 February 1997. It establishes that ESTA provides greater protection than the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) for lawful occupiers of rural land. The judgment reinforces that 'suitable alternative accommodation' must be actually available and genuinely suitable to the occupier's circumstances, including family size, rural lifestyle, and agricultural needs - not merely theoretical possibilities like vacant sites or promises of future housing. The case illustrates the court's willingness to balance constitutional property rights with socio-economic rights, particularly housing rights under section 26 of the Constitution, and demonstrates judicial recognition of the historical injustices suffered by farm dwellers under apartheid. It also shows the Court's practical approach to comparative hardships, recognizing that business inconvenience does not outweigh the fundamental right to shelter. The case highlights the ongoing challenges in securing suitable alternative accommodation for farm dwellers and the important role of government departments in facilitating relocation.