David Bilchitz, Schubart Park eviction a dishonourable injustice, Mail & Guardian (Oct. 24, 2011), http://mg.co.za/article/2011-10-24-schubart-park-eviction-a-dishonourable-injustice

Upwards of 3 000 people were evicted from their homes by the municipality and forced on to the streets in Pretoria three weeks ago. The city’s actions followed protests by some residents of Schubart Park, during which rocks were thrown at passers-by. It is not clear exactly why all the residents—even those not involved in these protests—were evicted without a court order. In our new constitutional order one would have expected this wrong to have been remedied by the courts; sadly, they too have failed in this instance, refusing to champion the rights of the vulnerable and, ultimately, sanctioning injustice.

The first travesty of justice began in the North Gauteng High Court. When the municipality failed to allow residents back into their flats, their lawyers approached this court to request that they be allowed back into their homes.

The court, sitting for five hours until 10pm on the day following the eviction, refused to grant the residents the right to return to their flats and ordered the parties to discuss emergency housing.

The judge in question appears to have been persuaded by the municipality’s argument that the Schubart Park buildings were unsafe for habitation. The evidence to back this up was questionable at best—no structural engineer was questioned and evidence regarding the buildings’ safety was vague and some of it based on hearsay. In any event it was completely unexplained why the protests would have rendered the building more unsafe than it was before. If compelling evidence indeed existed, then why was a court order not obtained prior to the eviction?

The judge failed to appreciate that the courts have a significant responsibility to protect the right of people not to be evicted from their homes. Shelter is one of the most fundamental needs of human beings and the Constitutional Court has repeatedly emphasised the link between housing and human dignity. It has, in the past, adopted a strong stance on evictions, requiring, for instance, that before an eviction takes place the parties must engage meaningfully with one another.

Alternative accommodation is usually also required for those being evicted. Emergency situations, of course, pose difficulties of their own and the precise legal position is currently before the Constitutional Court in another case. However, the cloak of “emergency” cannot be allowed to enable local authorities to deprive people of housing without a proper legal process, as is required by section 26(3) of the Constitution. The Schubart Park eviction appears to have taken place outside of any legal framework; why was it then sanctioned by the court?

Emergency housing
The situation of the residents has been exacerbated by the city’s inability to secure alternative emergency housing for the evictees. The city submitted to the court that it had emergency housing available. Despite a court order requiring it to provide alternative accommodation, it has thus far been able to provide only some 180 housing units, which is completely inadequate for the thousands of evictees. The parties have now been to the high court twice to try to sort out emergency accommodation, yet most of the residents remain without shelter.

Given their dire situation, the residents filed an urgent appeal to the Constitutional Court to enable them to return to the building or receive appropriate alternative relief. In a remarkable abdication of its duties, the Constitutional Court refused to hear the matter, sending the residents a letter informing them that it “was not in the interests of justice to hear the matter at this stage”.

After hearing the decision, one of the residents asked how it could be in the interests of justice for her children to sleep on the street. We are equally shocked and surprised by the court’s decision. One can only wonder what could be a more pressing matter of justice than attending to the applicants and their suffering.

The court has extensive remedial powers and could quite easily have designed a process and remedy that would have alleviated the plight of the applicants in the interim while the finer details are worked out. It has previously, in a case concerning inner-city evictions in Johannesburg relating to clearly unsafe buildings, refused to order an eviction pending the engagement between the residents and the city that resulted in an amicable solution.

What is particularly dismaying about the court’s decision is that it did not give any reasons. One of the key advances in our constitutional order has been the requirement developed by our courts that all exercises of public power must be justified. This applies to the executive, but also to the judiciary, including the Constitutional Court.

It is an anomaly that the Constitutional Court can require all other branches of government to justify their actions, but then dismiss applications to it—where often serious violations of fundamental rights have taken place—without giving reasons. Indeed, the key form of accountability the Constitutional Court has to citizens is through the reasons it provides.

If, as in this case, a decision is so at odds with the court’s established jurisprudence and the scale of human suffering is so large, reasons for dismissal of a leave-to-appeal application ought to be required.

The courts have developed important safeguards against eviction for individuals, yet apartheid-style evictions continue unabated by both the private sector and the government.

Stronger action is needed by the courts to stem this trend. The courts’ failure to assist the Schubart Park evictees sanctions injustice and dishonours the role they have been given—of defending and safeguarding the rights of the most vulnerable in our society.