Constitutional Court decision regarding the right to housing as juxtaposed with an owner’s right to his own land; An appeal from a High Court order allowing eviction to proceed without fully considering the circumstances of, and consequences for, the occupiers.
At the time of writing, alternative land had not yet been provided. An occupier audit was conducted by the City of Tshwane, but the personal circumstances and housing needs of the community were not dealt with by the City. It should be noted here that the settlement grew significantly from an estimated 170 families at the time the application was brought to approximately 2000 households at the time of the Constitutional Court judgment and subsequent audit. Following the municipality’s submission of the mandated report to the High Court, the Occupiers filed an affidavit in accordance with paragraph 5 of the Constitutional Court order. All follow-up enquires and attempts to engage with the City following the exchange of affidavits failed. The City made an offer to pay the landowner monetary compensation until such time as the occupiers could be relocated however failed to make any of the promised payments and the landowner has now issued a civil action for damages against the City. The occupiers are not participating in this action. The occupiers are still resident at Mooiplaats. The matter is yet to be set down again in the High Court. (Interview with Nathaniah Jacobs, Lawyers for Human Rights, July 2015.)
The case supplements and elaborates upon the Court’s decision in City of Johannesburg v Blue Moonlight Properties in three material respects. First, the Court deplored the citation of the occupiers in both matters as “invaders”. This description, the Court held was “emotive and judgmental” and undermined the occupiers’ humanity. Second, the Court took into account that, even though the occupation had only begun a relatively short period before eviction proceedings were instituted, the probability that an eviction would lead to homelessness meant that the provision of alternative accommodation or land was still required. Third, the Court took into account the owner’s failure to demonstrate that they had any urgent or compelling use for the land unlawfully occupied. This militated against ordering a speedy eviction without the provision of alternatives.
(Updated August 2015)
Lawyers for Human Rights