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.
This case concerns an appeal from a High Court order allowing an eviction of roughly 170 families from private land they had occupied as a result of a settlement’s spilling over onto private land. The High Court issued an order allowing the eviction of the families from the property. The families appealed from this order alleging that it was in violation of Section 4(6) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE Act”), which was enacted to give effect to Section 26(3) of the Constitution (prohibition against evictions without court orders made after considering all relevant circumstances).
The Constitutional Court held that, despite the fact that the High Court was not required by the PIE Act to ascertain whether the municipality could make alternate land available to those who would be evicted, it nonetheless is obliged to consider all relevant circumstances to ensure that an eviction would be neither unjust nor inequitable. In this case, the eviction would render close to 200 families homeless and the City owned vacant land that might be used to re-settle the evictees. The Court held that, without considering these facts, the High Court could not with confidence say that its order was just and equitable.
The Court criticized the High Court for relying on an absolutist theory of property rights. The decision held that, while property rights are certainly important, those rights can be temporarily restricted to ensure that the occupiers’ constitutional rights have been met. The Court emphasized that the owners had no intended use for the land for the foreseeable future and that, in this circumstance, allowing the occupiers to remain on the land until alternate land became available would not impermissibly burden the owners. Therefore, the Court remitted the case back to the High Court for a fuller consideration of the circumstances of the case , and the City was ordered to file a report in the High Court covering various issues including the steps it has taken, is able to take and intends to take to provide alternative land or housing as emergency accommodation for the occupiers if they are evicted.
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
