The Constitutional Court’s decision in Baron and others v Claytile (Pty) Limited and Another is a missed opportunity to enhance the usefulness of the Extension of Security of Tenure Act (Esta) as a tool that can enable farm dwellers to take control of their lives. The Act recognises that the farm dweller’s rights to live on commercial farmlands are precarious.

Eviction – if it happens – must be just, equitable and accompanied by the provision of ‘suitable alternative accommodation’.

But the Socio-Economic Rights Institute of SA’s Stuart Wilson argues that in the above case, these lofty aims have not been achieved. In an analysis in Business Day, Wilson notes that a group of about 10 farm dwellers were evicted from a farm in the Western Cape, on which they had resided for many years. The City of Cape Town – which bore the responsibility to house them – had offered to accommodate them at an emergency housing facility at Wolwerivier, more than 30km from their farm.

They rejected the offer, on the basis that relocation over a long distance would cause prejudice to their access to employment and their children’s access to school.

However, the Constitutional Court confirmed their eviction on the basis that the offer of the alternative accommodation was ‘reasonable’ within the meaning of section 26 (2) of the Constitution.

Wilson claims the Constitutional Court gave little consideration to one of the most important provisions of Esta – its definition of ‘suitable alternative accommodation’. In his analysis, he points out that Esta provides that alternative accommodation provided after an eviction must meet stringent standards. These are that it must be ‘overall not less favourable’ than the accommodation from which the occupiers stand to be evicted; and that a court must have regard to the ‘reasonable needs and requirements of all the occupiers’, the occupiers’ joint earning abilities, and the occupiers’ needs to reside ‘in proximity to opportunities for employment or other economic activities’. However, the court fell back on the landowner’s right to exclusive possession of its property, and the state’s duty to provide accommodation that is ‘reasonable’ in terms of the Constitution. Says Wilson: ‘In failing to deploy the text of the statute, the Constitutional Court decided that near enough is good enough. But that is seldom true for poor and vulnerable people, whose lives often depend on a delicate, geographically particularised network of jobs and social services.’

Full analysis in the Mail & Guardian

Baron and others v Claytile (Pty) Limited and Another