Family of 10 who say they were ‘illegally evicted’ ask ConCourt for help

The Constitutional Court in session.
The Constitutional Court in session.

A family of 10 made a direct appeal to the Constitutional Court on Tuesday to prevent being left without a place to stay as they allege they were illegally evicted from the property of a former employer in July.

The matter started in the high court in Johannesburg when Alias Mtolo and his wife Maneheng Mtolo approached the court after Theunis Lombard, Mtolo’s former employer, allegedly removed the couple and their eight children from a property on his plot in Vanderbijlpark, Gauteng.

Mtolo has been working for the family for 21 years, first in the Free State, before moving to the Vanderbijlpark property in 2010 to work at Lombard’s ice factory.

In his affidavit before court, Mtolo alleged that on July 6, Lombard came to the plot with heavy machinery when properties were being demolished on the farm.

Mtolo alleged Lombard told him to remove furniture from the house, which he removed.

He stated in his affidavit that his house was subsequently demolished due to the fact that the roof and windows were removed.

Lombard denied this in his affidavit and suggested Mtolo took off the roof and windows on that day without permission.

In his affidavit Mtolo stated Lombard has expelled him from his job, an allegation not addressed by Lombard in his affidavit.

The Mtolos obtained an order on August 5 from acting judge Michael Antonie in the high court in Johannesburg that Lombard must permit the Mtolos and their children to have unrestricted access to the property and allow them undisturbed possession of the dwelling.

Antonie also ordered that Lombard must, by no later than August 10, replace the roof and windows of the dwelling to make it fit for human occupation.

Antonie said if this was not complied with, the Mtolos must approach the high court to enforce compliance.

When Lombard allegedly failed to comply with the order that the dwelling be ready for human habitation, the Mtolos approached the high court to enforce compliance.

However, judge Fiona Dippenaaar struck the matter off the roll for lack of urgency, and with costs.

The Mtolos said their situation has worsened with no place to stay.

Mtolo said Lombard told him that as a result of the court order by Dippenaar, Mtolo owed him a lot of money.

The Mtolos approached the ConCourt at the end of August seeking to set aside the order by Dippenaar and for the Antonie’s order to be complied with.

Tembeka Ngcukaitobi SC, for the Mtolos, told the apex court on Tuesday that the family was illegally evicted from their home.

He said the court should construe the order by Antonie as requiring that a house be put in a state of fitness for human habitation.

“At the baseline of habitability, a structure must protect an occupant from the conditions of the atmosphere, the sun, heat, wind and rain. We are dealing with a positive duty subsequent to an eviction.”

Ngcukaitobi said a structure that is not habitable does not qualify to be a home.

“When a court is dealing with eviction litigation, it has more powers than ordinarily would be the case.”

Ngcukaitobi argued that a report from the Emfuleni municipality, which inspected the property after August 10, indicated the house had the roof which seemed unstable and the corrugated iron sheets were not properly installed.

He said the roof seemed to be worse than it was prior to the eviction.

However, Nadia Smit, advocate for Lombard, his wife Maria Lombard and Jacob Hunter, the man who leased the plot, said the Mtolos had not shown exceptional circumstances to be granted access to the top court.

She said the Mtolos had alternative accommodation and were not staying on the streets, as alleged in their court applications.

"For direct access to this court, there must be exceptional circumstances. They do have alternative accommodation. They do have vehicles to transport their minor children to school,” Smit said.

“We never asked them to vacate. They in fact took the windows and roof with them.”

Acting justice Mjabuliseni Madondo said he found it strange the Mtolos would abandon the house of their own accord.

The court reserved judgment.