City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 Ltd. and Another, (CCT 37/11) [2011] ZACC 33
Challenge by tenants to a planned eviction of poor occupiers from private property. This case involves a range of issues including, the rights of private property owners, and the obligation of the municipality to provide alternate housing for the occupiers.
This case concerns the conflict between the constitutional right to adequate housing and an owner’s right to develop private property. Eighty-six poor individuals were unlawfully occupying private unused industrial facilities as living quarters. The owner of the property (Blue Moonlight) sued to evict the occupiers in order to develop the property, which would almost certainly render them homeless. The occupiers argued that the city had an obligation to provide them with temporary housing under the South African Constitution and the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Housing Act 19 of 1998 (PIE Act) before they could be evicted.
Lower court orders allowed the eviction to proceed, but found that the city had an obligation to find housing for the occupiers. The case was taken on appeal to the Constitutional Court, which held that a court cannot grant an eviction order pursuant to the PIE Act unless it is just and equitable to do so. In deciding whether an eviction is just and equitable, the Court considered that many of the occupiers had lived on the property for a very long time, the occupation had once been lawful, Blue Moonlight was aware of the occupiers’ presence when it purchased the property, and the eviction of the occupiers would render them homeless while there was no competing risk of homelessness on the part of Blue Moonlight (as there might be in circumstances where eviction is sought to enable a family to move into a home). The Court found that eviction would not be just or equitable until the city could provide the occupiers with alternate housing. In other words, the Court found that, in circumstances where an eviction of occupiers from private property would render the occupiers homeless, the rights of the property owners may have to temporarily yield to the occupiers’ right to housing.
The Court then ordered the city to provide the occupiers with adequate alternate housing. In so doing, the Court rejected the city’s contention that the city did not have adequate financial resources with which to provide alternate housing. Finally, the Court insisted that there be a link between the date of eviction and the date by which the city would have to provide such housing to ensure that the occupiers were not rendered homeless by the eviction.
The residents were ordered to vacate the premises by April 15, 2012 and the city was ordered to provide alternate accommodation by April 1. On April 13, 2012, the City had still not found alternate accommodations for the residents, and therefore the residents brought emergency proceedings before the High Court, arguing that they were facing eviction and probable homelessness in three days. The High Court postponed the imminent eviction until May 2, 2012. On April 30, 2012 the residents were relocated into temporary accommodations.
A significant development in terms of enforcement was that the occupiers in this case were separated into two groupings: those who could afford rental of R 600.00 or more who went into Council owned rental accommodation, and those who could not. The first group are still accommodated at MBV 2, the social housing project the city relocated them to in April 2012. The second group was accommodated at the Ekuthuleni Shelter in accommodation managed by Metropolitan Evangelical Services (MES). MES sought to enforce draconian rules which included daytime lockouts, night time lockouts and gender segregation which separates families. Through the second grouping, the Blue Moonlight case evolved into the ongoing litigation Dladla & 32 Others v The City of Johannesburg and Another, an application were the residents challenge these rules. (Interview over email with Nomzamo Zondo, Director of Litigation, SERI, July 9th, 2015)
Socio-Economic Rights Institute (SERI), Lawyers for Human Rights
This case was fundamental as it provided that the state is liable to provide alternate accommodation to unlawful occupiers who may be rendered homeless due to an eviction from private property. The case also indicated that a private owner’s right to property may be limited by the right to housing of unlawful occupiers.
