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Wednesday Apr 03, 2013

Tenants have right to peaceful use of property

A person's right to peaceful and undisturbed occupation and enjoyment of one's home need not be threatened because you are a tenant.

Courts have granted orders against landlords who take the law into their own hands by illegally disconnecting electricity and water supply or preventing tenant access to the dwelling.

Courts have also intervened in cases involving the government. In City of Cape Town v Strümpher (104/2011) (2012) ZASCA 54 ( March 30, 2012), deputy president of the Supreme Court of Appeal, Judge Khayelihle Kenneth Mthiyane, granted a spoliation order against the City of Cape Town.

In this case, the perpetrator was the municipality that relied on its by-laws to disconnect the water supply to an owner's property for non-payment. The judgment made it clear that a municipality had to follow specific procedures, including dispute resolution, to ensure the outcome was fair and equitable.

In a unanimous judgment on February 7 the Constitutional Court extended the definition of an unlawful eviction. In this case, Pontsho Doreen Motswagae and 14 others argued that, as single women living in what they referred to as hostels, they should be regarded as owners.

Ownership was given to men who were hostel dwellers under the apartheid black housing administration, but not to women.

The women had occupied houses owned by the Rustenburg Local Municipality. As part of its upgrade and renewal programme, it wanted to demolish their dilapidated homes and build new ones.

It was eager to start its renewal project that was to be implemented in 2004. When the parties failed to reach an agreement with the tenants, even re-

e-mail ence is by no means slight... The intrusion was plainly so significant a disturbance to the applicants' occupation that it constituted a form of eviction. It is serious and, in our constitutional era, unacceptable."

The municipality's action amounted to evicting the tenants: "An eviction does not have to consist solely in the expulsion of someone from their home. It can also consist in the attenuation or obliteration of the incidents of occupation."

The tenants were protected by the constitution to enjoy undisturbed peaceful occupation of their homes, as were their rights not to be evicted from their homes without a court order.

The courts should have granted the interdicts to the tenants since they had no alternative remedy to stop irreparable harm and the fact that they had a clear right not to be disturbed in the peaceful occupation of their homes.

The Constitutional Court set aside the order against the tenants made by the North West High Court, Mahikeng.

It granted the interdict against the Rustenburg Local Municipality and Promptique TR 9 CC, preventing them from performing or causing to be performed any construction work on the properties on which the tenants' homes were situated, without their written consent or a court order.

The municipality was ordered to pay the tenants' costs in the high court, the Supreme Court of Appeal and the Constitutional Court, including the costs of two advocates.

Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights.
Tenant Issues
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For tenants' rights advice, telephone Loshni Naidoo or Pretty Gumede at 031 304 6451.


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