In this case, the Court rescinded the eviction order of 184 land occupiers on the grounds that the lower court failed to both consider all relevant circumstances and make a finding that the eviction be just and equitable. The Court held that such procedures are required for granting of an eviction order, even when there is purported consent to the eviction.
On 10 September, 2013, the High Court granted an eviction order “by agreement” of 184 unauthorized occupiers from a block of flats where they had been living for periods of up to 26 years. Only four of the 184 occupiers were present at the initial Court proceeding, accompanied by their unofficial ward committee representative, Mr. Skhulu Ngubane. The High Court both ordered the eviction of the occupiers, and, in parallel proceedings, refused to grant a rescission of this judgment. The case before the Constitutional Court was the rescission application. The plaintiffs argued that: 1) there had been no consent when the order was granted purportedly by agreement, 2) even if there was consent, it was not legally valid, and 3) even if the consent was legally valid, the High Court had failed to meet the constitutional and statutory requirement of ensuring that the eviction would, nevertheless, be just and equitable after considering all relevant circumstances.
While the Constitutional Court deferred to the High Court’s factual finding that there was consent to the eviction order, it determined that this consent was not legally valid or binding because it was not informed, and that this applied not only for the 180 absent occupiers, but also to the four who had showed up to the hearing and purportedly consented to the eviction. Waiver was not possible because the occupiers were not aware of their constitutional and statutory rights. Because legally binding consent was not given, the Court ordered the eviction order to be set aside under rule 42, and remitted the case for consideration, on an expedited basis, of the issue of whether homelessness would result and whether the eviction would be just and equitable.
The Constitutional Court also accepted petitioner’s third argument, namely that for an eviction to be valid, section 26(c) of the Constitution requires that it be ordered by a court after considering all relevant circumstances. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), giving effect to this section, further requires the Court to find the eviction to be just and equitable. The Court can only grant an eviction order where it has all the information about the occupiers necessary to determine whether an eviction would be just and equitable. Purported “consent” to the eviction does not relieve the court of its duty to gather information and determine the issues consistent with the PIE. The persons occupying must be given notice and informed of their right to obtain legal aid. Where there is a risk of homelessness, local authorities must be joined. In addition to setting aside the removal order and remitting the case, the Constitutional Court joined the city of Johannesburg as a respondent and directed it to file a report on what steps it has and will take to provide alternate living accommodations in the event that an eviction is ordered.
After remand, according to the litigants Socio-Economic Rights Institute of South African (SERI):
On 16 April 2018, the High Court granted the eviction of the residents by 31 July 2019 on condition that the residents are provided with alternative accommodation by the City at least one month before the eviction (30 June 2019). Furthermore, the court ordered the City to provide the residents, in writing, the nature and location of the alternative accommodation that will be provided by 28 February 2019.
The judgment is statement of principles of housing law in South Africa that have been being developed by courts – and particularly the Constitutional Court – for years. For example, it affirms that for an eviction to be just and equitable a judge must consider whether homelessness may result and that this is the responsibility of the judge whether or not the residents appear to have consented (factually or legally) to their own eviction. The court also emphasizes clearly the proactive duty on judges to investigate these and other circumstances of clients, including whether they have legal representation and how well they may understand their rights. Finally the Court emphasizes a crucial point about the balancing of occupiers rights with property owners rights, reaffirming that the mere fact that the occupiers on private property unlawfully does not eliminate their constitutional and statutory rights, which are there precisely to defend such occupiers.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.
