Family must leave and take their dead with them - for a golf estate

They must break down their Eastern Cape home and exhume their relatives to make way for the luxury spread, court rules.

A humble tin shack in the shadow of a luxury new golf estate in the Eastern Cape will have to bend the knee after a court ruled in December that the family must vacate the land.

It leaves the Mnyaka family in Chintsa West, outside East London, until the end of February to not only break down the shack they have called home for decades, but also to exhume the remains of eight relatives buried there.

Among the graves is that of the family matriarch Nonzwakazi Mnyaka, who died in 2018 without knowing the outcome of the court case.

The family said they heard only in 2018 that the farm, which was no longer in operation, had been sold to HCLE Development – and received a magistrate’s court order that they will be evicted  to make way for the Olivewood private golf estate.

Nonzwakazi and her eldest son, Mzwandile Mnyaka, who both lived on a portion of Farm 508 owned by Neil Hunter, have been trying to fight this ever since, with the help of Legal Resource Centre lawyers.

However, the high court turned down their application on December 13, instructing the family to vacate the land in 75 days.

An expert said the family should take this decision on review at the Land Claims Court.

Mzwandile said this is the only place they’ve ever called home.

“Justice is not fair. My 83-year-old mother, who I was fighting this battle with, died and has been buried in this farm last year. She was not at peace with this.”

Mzwandile said their grandparents grew up on the same farm. “What qualifications do we need to stay here, to prove that we have a right to this land?”

Judge John Smith said in his ruling that the respondents had abandoned their residence on the farm and taken up residence in Chintsa East Township.

“The first and second respondents abandoned their residence on the applicant’s property during 2008. In the ensuing years the wattle-and-daub building previously occupied by the first and second respondents collapsed, and during 2011 and 2012 the wood-and-iron structure erected by the latter also collapsed,” the judgment read.

Mzwandile said his mother never abandoned her home, but had gone to visit relatives and “other children” in the township.

“We find it strange that they will use that to remove us from this house.”

In January 2018, according to court papers, the developers wanted to demolish the family home but the family called on the government to intervene.

The head of the Eastern Cape department of rural development and land reform, Zukile Pityi, said he knew about the case and that his department was assisting. “The matter now is with our legal team.”

Hunter testified that he bought the land in 1984 and had employed Nonzwakazi and her husband, Simon Mnyaka, who had lived in a hut on the property.

Hunter told the court that when he stopped farming with cattle, the couple stopped working for him but continued to live on the property with his consent.

In 2006, Hunter sold the property to HCLE Developers and became director of the same company.

He told the court the family left the property between 2010 and 2012.

After he sold the farm attempts had been made to reach an agreement on the family’s relocation. “Those attempts, however, came to naught when the respondents demanded a house on the Olivewood Golf Estate.”

Smith said the application was brought on the basis of an assertion that the respondents had abandoned their occupation of the applicant’s property and accordingly lost their rights in terms of the Extension of Security of Tenure Act.

“The applicant asserts furthermore that it has complied with all the procedural requirements stipulated by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act,” said Smith.

Dr Richard de Satgé of land rights NGO Phuhlisani NPC, said the court must decide whether it is just and equitable to grant an eviction order.

“Sometimes land owners seek to sidestep the land tenure act by making an application in terms of illegal occupation,” he said.

“The courts will generally not grant an eviction order when people do not have an alternative place to go. If the court approves the eviction order based on its assessment of the balance of rights between the occupier and the owner it will usually require that the municipality provides emergency housing.”

De Satgé said tenure laws provide extra protection for the rights of long-term occupiers where someone has resided on the farm for more than 10 years and is over 60 years of age.

“It is difficult to legally evict a long-term occupier, but there are circumstances where this is possible, such as them threatening the owner or intentionally damaging property.”

De Satgé said all tenure cases where eviction orders are granted in the magistrate’s court, go on automatic review to the Land Claims Court.

He suggested that the family contact the East Cape Agricultural Research Project, an NGO, for help.

 The applicants’ attorneys, Nettletons Attorney in Grahamstown, referred Times Select to Siya Cokile Attorneys, who are representing the Mnyaka family. Cokile could not be reached for comment.