5. Subject to limitations which are reasonable and justifiable in an open and democratic society based on human dignity. equality and freedom, an occupier. an owner and a person in charge shall have the tight to— (a) human dignity; (b) freedom and security of the person; (c) privacy; (d) freedom of religion, belief and opinion and of expression: (e) freedom of association; and (f) freedom of movement, with due regard to the objects of the Constitution and this Act. Rights and duties of occupier 5 10 6. ( 1 ) Subject to the provisions of this Act. an occupier shall have the right to reside 15 on and use the land on which he or she resided and which he or she used on or after 4 February 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly. (~) without prejudice to [he generality of the provisions of section S and subsection ( 1). and balanced with the rights of the owner or person in charge. an occupier shall have 20 the right— (a) to security of tenure: (b) to receive bona fide visitors at reasonable times and for reasonable periods: Provided that— (i) the owner or person in charge may impose reasonable conditions that are 25 normally applicable to visitors entering such land in order to safeguard life or property or to prevent the undue disruption of work on the land; and (ii) the occupier shall be liable for any act. omission or conduct of any of his or her visitors causing damage to others while such a visitor is on the land 30 if the occupier, by taking reasonable steps, could have prevented such damage; (c) to receive postal or other communication: (d) to family life in accordance with the culture of that family: Provided that this right shall not apply in respect of single sex accommodation provided in 35 hostels erected before 4 February 1997; (e) not to be denied or deprived of access to water; and (J not to be denied or deprived of access to educational or health services. (3) An occupier may not— (a) intentionally and unlawfully harm any other person occupying the land; (b) intentionally and unlawfully cause material damage to the property of the 40 owner or person in charge; (c,) engage in conduct which threatens or intimidates others who lawfully occupy the land or other land in the vicinity; or- (d) enable or assist unauthorised persons to establish new dwellings on the land in 45 question. (4) Any person shall have the right to visit and maintain his or her family graves on land which belongs to another person, subject to any reasonable condition imposed by the owner or person in charge of such land in order to safeguard life or property or to prevent the undue disruption of work on the land. 50 I i [~ yO, 18467 Act NO. 62, 1997 GOVERNMENT GAZETTE. 28 NOVEMBER [997 EXTENSION OF SECLJRITY OF TENURE ACT, 1997 Rights and duties of owner 7.( 1 ) The owner or person in charge of Irmd may have a trespassing animal usually or actually in the care of an occupier impounded and removed [o a pound in accordance with the provisions of any applicable law, if the owner or person in charge has given the occupier at least 72 hours’ notice to remove the animal from the place where it is 5 trespassing and the occupier has failed to do so: Provided that the owner or person in charge may take reasonable steps to prevent the animal from causing damage during those 72 hours. (2) An owner or person in charge may not prejudice an occupier if one of the reasons for the prejudice is the past, present or anticipated exercise of any legal right. (3) If it is proved in any proceedings in terms of subsection (2). that the effect of the conduct complained of is to prejudice an occupier as set out in that subsection. it shall be presumed, unless the contrary is proved. that such prejudice was caused for one of the reasons referred to in subsection (2). CHAPTER IV Termination of right of residence and eviction 10 15 Termination of right of residence 8.(1 ) Subject to the provisions of this section. an occupier’s right of residence maybe terminated on any lawful ground, provided that such termination is just and equitable. having regard to all relevant factors and in particular tc--- ?0 (a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person in charge relies; (b) the conduct of the parties giving rise to the termination; (c) the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier concerned. and any other occupier if the right 25 of residence is or is not terminated; (d) the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of its time; and (e) the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier had or should have been granted an 30 effective opportunity to make representations before the decision was made to terminate the right of residence. (2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of 35 the Labour Relations Act. (3) Any dispute over whether an occupier’s employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act. 40 (4) The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and— (a) has reached the age of 60 years; or (b) is an employee or former employee of the owner or person in charge, and as a result of ill health. injury or disability is unable to supply Iabour to the owner 45 or person in charge, may not be terminated unless that occupier has committed a breach contemplated in section 10( 1)(a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide Iabour shall not constitute such a breach. (5) On the death of an occupier contemplated in subsection (4), the right of residence 50 of an occupier who was his or her spouse or dependant may be terminated only on 12 calendar months’ written notice to leave the land, unless such a spouse or dependant has committed a breach contemplated in section 10(1). 14 (6) Any termination of the right of residence of an occupier to prevent the occupier from acquiring rights in terms of this section, shall be void. (7) If an occupier’s right to residence has been terminated in terms of this section, or the occupier is a person who has a right of residence in terms of section 8(5)— (a) (b) the occupier and the owner or person in charge may agree that the terms and conditions under which the occupier resided on the land prior to such termination shall apply to any period between the date of termination and the date of the eviction of the occupier; or the owner or person in charge may institute proceedings in a court for a determination of reasonable terms and conditions of further residence, having regard to the income of all the occupiers in the household. Limitation on eviction 9. (1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued under this Act. (2) A court may make an order for the eviction of an occupier if— (a) (b) (c) (d) the occupier’s right of residence has been terminated in terms of section 8; the occupier has not vacated the land within the period of notice given by the owner or person in charge; the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and the owner or person in charge has, after the termination of the right of residence, given— the occupier; (i) the municipality in whose area of jurisdiction the land in question is (ii) situated; and the head of the relevant provincial office of the Department of Land Affairs, for information purposes, (iii) not less than two calendar months’ written notice of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based: Provided that if a notice of application to a court has, after the termination of the right of residence, been given to the occupier, the municipality and the head of the relevant provincial office of the Department of Land Affairs not less than two months before the date of the commencement of the hearing of the application, this paragraph shall be deemed to have been complied with. Order for eviction of person who was occupier on 4 February 1997 10. (1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if— (a) (b) (c) (d) the occupier has breached section 6(3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach; the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar month’s notice in writing to do so; the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or the occupier— (i) is or was an employee whose right of residence arises solely from that employment; and (ii) has voluntarily resigned in circumstances that do not amount to a 5 10 15 20 25 30 35 40 45 50 constructive dismissal in terms of the Labour Relations Act. 55 (2) Subject to the provisions of subsection (3), if none of the circumstances referred 16 No. I 8467 GOVERNMENT GAZETTE. 2S NOVEMBER 1997 Act No. 62.1997 EXTENSION OF SECURITY OF TENURE ACT. 1997 to in subsection (1) applies, a court may grant an order for eviction if it is satisfied that suitable alternative accommodation is available to the occupier concerned. (3) If— (a) suitable alternative accommodation is not avaiIable to the occupier within a period of nine months after the date of termination of his or her right of residence in terms of section 8; (b) the owner or person in charge provided the dwelling occupied by the occupier: and (c) the efficient carrying on of any operation of the owner or person in charge will be seriously prejudiced unless the dwelling is available for occupation by another person employed or to be employed by the owner or person in charge. a cou~ maY grant an order for eviction of the occupier and of any other occupier who lives in the same dwelling as him or her. and whose permission to reside there was wholly dependent on his or her right of residence if it is just and equitab!e to do so, having regard to— (i) the efforts which the owner or person in charge and the occupier have respectively made in order to secure suitable alternative accommodation for the occupier; and (ii ) the interests of the respective parties. including the comparative hardship to the occupier and the remaining which the owner or person in charge. occupiers shall be exposed if an order for eviction is or is not granted. Order for eviction of person who becomes occupier after 4 February 1997 11. (1) If it was an express, material and fair term of the consent granted to an occupier to reside on land. that the consent would terminate upon a fixed or determinable date, a court may on termination of such consent by eftluxion of time grant an order for eviction of any person who became an occupier of the land in question after 4 February 1997, if it is just and equitable to do so. (2) In circumstances other than those contemplated in subsection ( 1). a court may grant an order for eviction in respect of any person who became an occupier after 4 February 1997 if it is of the opinion that it is just and equitable to do so. (3) In deciding whether it is just and equitable to grant an order for eviction in terms of this section. the court shall have regard to- (a) the period that the occupier has resided on the land in question; (b) the fairness of the terms of any agreement between the parties; (c) whether suitable alternative accommodation is available to the occupier; (d) the reason for the proposed eviction; (e) the balance of the interests of the owner or person in charge. the occuplcr and the remaining occupiers on the land. Further provisions regarding eviction 12. (1) A court that orders the eviction of an occupier shall— (a) determine a just and equitable date on which the occupier shall vacate the land; and (b) determine the date on which an eviction order may be carried out if the occupier has not vacated the land on the date contemplated in paragraph (a). (2) In determining a just and equitable date the court shall have regard to all relevant factors. including— (a) the fairness of the terms of any agreement between the parties; (b) the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land; and (c) the period that the occupier has resided on the land in question. 5 10 15 20 25 30 35 40 45 50 18 No. 18467 Act NO. 62, 1997 GOVERNMENT GAZETTE. ?8 NOVEMBER 1997 EXTENSION OF SECURITY OF TENURE #.CT. 1997 (3) A court may, at the request of the sheriff in question, authorise any person to assist the sheriff to carry out an order for eviction, demolition or removal, subject to the conditions determined by the court as to the execution thereof Provided that the sheriff shall at all times be present during such eviction, demolition or removal. (4) Any order for the eviction of an occupier in terms of section 10 or 11 shall be 5 subject to reasonable terms and conditions for further residence which may be determined by the court, having regard to the income of all of the occupiers in the household. (5) A court may, on good cause showrt, vary any term or condition of an order for eviction made by it. (6) Notwithstanding the provisions of sections 10 and 11, the court shall not order the eviction of an occupier if it is of the opinion that one of the purposes of such intended eviction is to prevent the occupier from acquiring rights in terms of section 8(4). Effect of order for eviction 13. ( 1 ) If a court makes an order for eviction in terms of this Act— (a) the court shall order the owner or person in charge to pay compensation for structures erected and improvements made by the occupier and any standing crops planted by the occupier. to the extent that it is just and equitable with due regard to all relevant factors, including whether— 10 15 (i) the improvements were made or the crops planted with the consent of 20 the owner or person in charge; (ii) the improvements were necessary or useful to the occupier: and (iii) a written agreement between the occupier and the owner or person in charge, entered into prior to the making of improvements, provides that the occupier shall not be entitled to compensation for improve- 25 ments identified in that agreement; (b) the court shall order the owner or person in charge to pay any outstanding wages and related amounts that are due in terms of the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983) the Labour Relations Act or a determination made in terms of the Wage Act, 1957 (Act No. 5 of 1957); and 30 (c) the court may order the owner or person in charge to grant the occupier a fair opportunity t~ (i) demolish any structures and improvements erected or made by the occupier and his or her predecessors, and to remove materials so salvaged; and (ii) tend standing crops to which he or she is entitled until they are ready 35 for harvesting, and then to harvest and remove them. (2) The compensation contemplated in subsection(1) shall be determined by the court as being just and equitable, taking into account— (a) the cost to the occupier of replacing such structures and improvements in the 40 condition in which they were before the eviction: (b) the value of materials which the occupier may remove; (c) whether any materials referred to in paragraph (b) or contributions by the owner or person in charge were provided as part of the benefits provided to the occupier or his or her predecessors in return for any consideration; and (d) if the occupier has not been given the opportunity to remove a crop. the value of the crop less the value of any contribution by the owner or person in charge to the planting and maintenance of the crop. 45 (3) No order for eviction made in terms of section 10 or 11 may be executed before the owner or person in charge has paid the compensation which is due in terms of 50 subsection (1): Provided that a court may grant leave for eviction subject to satisfactory guarantees for such payment. ?0 No. 18467 GOVERNMENT GAZETTE. 28 NOVEMBER !997 Act NO. 62, 1997 EXTENSION OF SECURITY OF TENURE ACT, 1997 Restoration of residence and use of land and payment of damages 14. (1) A person who has been evicted contrary to the provisions of this Act may institute proceedings in a court for an order in terms of subsection (3). (2) A person who— (a) would have had a right to reside on land in terms of section 6 if the provisions 5 of this Act had been in force on 4 February 1997; and (b) was evicted for any reason or by any process between 4 February 1997 and the commencement of this Act, may institute proceedings in a court for an order in terms of subsection (3). (3) In proceedings in terms of subsection ( 1 ) or (2) the court may. subject to the 10 conditions that it mav imuose. make an order— ((z) (b) (c) (d) (e) (f) for the rest&ati&r of residence on and use of land by the person concerned, on such terms as it deems just: for the repair. reconstruction or replacement of any building. structure. installation or thing that was peacefully occupied or used by the person 15 immediately prior to his or her eviction, in so far as it was damaged. demolished or destroyed during or after such eviction; for the restoration of any services to which the person had a right in terms of section 6; for the payment of compensation contemplated in section 13: for the payment of damages. including but not limited to damages for suffering or inconvenience caused by the eviction: and for costs. 20 (4)-Where the person contemplated in subsection (2) was evicted in terms of an order of a court— 25 (a) the proceedings contemplated in subsection (1) shall be instituted within one year of the commencement of this Act; and (b) the court shall in addition to any other factor which it deems just and equitable, take into account— (i) whether the order of eviction would have been granted if the 30 proceedings had been instituted after the commencement of this Act; and (ii) whether the person ordered to be evicted was effectively represented in those proceedings, either by himself or herself or by another person. Urgent proceedings for eviction 35