Constitutional Court decision regarding the constitutional right to housing as juxtaposed with an owner’s right to occupy his own land; appeal from a High Court order allowing eviction to proceed without first requiring that the city provide alternate land to the occupiers.
An order was issued by the High Court order allowing the eviction of 50 families unlawfully occupying private land and requiring the municipality to provide the occupiers with alternate land. However, under this order, the eviction was permitted to proceed even if the municipality had not yet provided alternate land to the occupiers, in which event the occupiers would become homeless. The 50 families appealed from this order, arguing that not requiring the city to provide alternate land prior to the eviction was unjust and inequitable under section 4 (6) of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 and would be in breach of Section 26(3) of the South African Constitution, which prohibits evictions without consideration of all relevant circumstances.
The Constitutional Court found that, while a private owner’s right to property is important, it is not absolute when considering whether a proposed eviction is just and equitable. It must be balanced against the occupiers’ constitutional rights to avoid eviction before a Court has sufficiently taken account of their circumstances. The Court held that an owner can be asked for some measure of patience in obtaining an eviction of unlawful occupiers when the eviction could result in unjust and inequitable consequences for the occupiers. In other words, the Court held that an owner’s right to property can be temporarily restricted to avoid such a result. The Court found that the landowner had failed to show that it had any pressing purpose or use for the land, and that this was relevant in determining how long the landowner should be expected to wait to take possession of the land.
The Court ruled that the prospect that the occupiers, under the High Court’s order, could be evicted and rendered homeless before the city had been given a reasonable timeframe in which to provide them with alternate land was neither just nor equitable. To ameliorate the order’s constitutional shortcoming, the Court required a linkage between the date of eviction and the date by which the city had to provide alternate land to the occupiers. The Court’s new order required that the city provide alternate land to the occupiers one month prior to their eviction, reducing the possibility that the occupiers would find themselves homeless.
The City of Tshwane conducted an audit of occupiers but failed to deal with the personal circumstances as stipulated in the Constitutional court order. The City relocated all the families residing on Skurweplaas to a “temporary holding site” on City owned land where they are awaiting permanent housing allocations. (Interview with Nathaniah Jacobs, Lawyers for Human Rights, 2015)
The case supplements and elaborates upon the Court’s prior decision in Blue Moonlight in four 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 considered 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. Finally, the Court emphasised that High Courts have the power and the duty to order municipalities to take steps to investigate and furnish information relating to their ability to provide alternative accommodation, in the event that it is found that a municipality’s approach is unsatisfactory.
(Updated July 2015)
Lawyers for Human Rights
