HIGH COURT ACTION PREVENTS UNLAWFUL EVICTIONS – February 28, 2019

On 28 February 2019, the Mthatha High Court granted a final interdict against former Headwoman Nosizwe Maxhwele, four members of her traditional council, and a contractor from destroying the properties of six residents of Bhongweni Location, Phase 1 of the Zimbane Administrative Area in Mthatha, who had been unlawfully evicted. The Court also ordered them to restore possession of the properties to the residents and to refrain from threatening the residents or preventing them from accessing their properties. The Legal Resources Centre represented the six applicants.

Ms. Maxhwele had begun forcefully evicting people from the land in order to sell the property to developers. The land forms part of Erf 912, which belongs to the King Sabata-Dalindyebo Local Municipality and is the subject of a land claim in terms of the Restitution of Land Rights Act.

In March 2018, the headwoman and her council informed the applicants that they must vacate their properties, because the plots belonged to the chiefdom and had been sold. The applicants were told that their properties would be destroyed so that a contractor could begin construction on those and other properties to build rental apartments for students. The contractor destroyed a fence around one of the properties and erected a wall. In July 2018, he destroyed the house of one of the applicants, built a wall around the property of another applicant, and barricaded the property to prevent the applicants from entering their properties.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) prevents the arbitrary evictions of any persons from their property by requiring a court order, but the headwoman and her council had not obtained a court order. In terms of the Restitution of Land Rights Act, no person may sell, exchange, donate, or develop land that is the subject of a land claim without the written consent of the Chief Land Claims Commissioner. The applicants hold informal rights to the land under the Interim Protection of Informal Land Rights Act (No. 31 of 1996), which seeks to protect informal land rights holders in the former homelands.

The application was opposed by Ms. Maxhwele, the council members, and the contractor. Judge Plasket found the respondents’ denial of the allegations against them “woefully inadequate” and ordered them to pay the cost of the application. Informal land rights holders have suffered abuse at the hands of traditional leaders in South Africa. The applicants had been effectively dispossessed of their rights to their land without compensation by people who themselves had no legal authority over that land.

The first applicant noted that traditional leaders target households headed by women or widows. She added, “We hope the case will show other traditional leaders, developers, and contractors that they cannot simply evict people from Bhongweni without consequences. There are so many of these unlawful evictions happening in Bhongweni. People are losing their homes because of the greed of others who make money from building flats on the land from which they tried to evict us.”

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