The Constitutional Court of South Africa recently ruled that an eviction promoting homelessness is illegal, even if the residents that stand to be evicted technically agreed to it.

This unanimous judgment, delivered by Mojapelo AJ, has placed a specific duty on the courts to proactively “probe and investigate” all circumstances in eviction applications and ensure that no-one is left homeless. The momentous judgment delivered in Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O. [2017] ZACC 18 (“the Berea case”) is a victory for people who stand to be evicted and stipulates what the constitutional duties of the courts are in eviction matters.

The applicants in the matter were 184 occupants of a block of flats in Berea, Johannesburg. The respondents were joint liquidators who had bought the property with the intention of upgrading and leasing it to qualifying tenants.

On the day of the eviction application, the occupants had no legal representation in court. They were represented only by a ward committee member, Mr Skhulu Ngubane.

Mr Ngubane agreed to the eviction on behalf of all the occupants of the property in question and a court order was granted to this effect. He did this without the proper consent of the occupants, for reasons that are unclear.

When the occupants realised that Mr Ngubane had confirmed the court order for their eviction instead of securing a postponement of proceedings, they sought legal assistance from the Socio-economic Rights Institute of South Africa (SERI). After failing to have the court order set aside at the Gauteng Local Division of the Johannesburg High Court, and after being denied leave to appeal the decision at the Supreme Court of Appeal, the matter was brought before the Constitutional Court for final adjudication.

The legal question before the Constitutional Court was whether an eviction order could be rescinded in a case where occupiers had supposedly consented to the eviction. In terms of rule 42(1)(a) of the Uniform Rules of Court (the rules), a court order can only be set aside if it is erroneously granted or it is granted in the absence of an affected party. Alternatively, in terms of the common law, a court order can be set aside if it is granted without instructions from the client.

The Constitutional Court considered the fact that some of the occupants concerned were present at the court during the eviction application. However, it was clear that the true intention of the occupants was to seek a postponement of the eviction proceedings and to avoid being left homeless. Further, the occupants did not have any legal representation and were never made aware of their rights in terms of section 26 of the Constitution.

The Constitutional Court therefore ruled that the court order for eviction had to be rescinded on the basis that not all the occupants were present at the court, as required by the rules. The Constitutional Court ruled further that the consent purportedly given to Mr Ngubane was uninformed and that Mr Ngubane agreed to the eviction without a proper mandate to do so. Therefore, a rescission of the court order was also appropriate in terms of the common law.

How has this decision affected people that stand to be evicted?

For people who stand to be evicted, the Berea case is a victory. The 184 occupants were made up of men, women and minor children, some of whom were low-income earners or unemployed. In addition, some of the occupants had been occupying the property for up to 26 years.

The Berea case is therefore a step in the right direction to prevent homelessness and the violation of people’s rights in terms of section 26 of the Constitution, and preserve their dignity. It specifically protects the most vulnerable and poor in our society.

How has the decision affected South African courts and presiding officers?

In terms of section 26(3) of the Constitution, no-one may be evicted without a court order and the consideration of all the relevant circumstances. Further, section 26 reads that a court can only evict someone when it is just and equitable to do so. However, the Berea case has now specifically pronounced that presiding officers have to play an “active role” in eviction matters and must “probe and investigate” relevant circumstances. Among other things, the court needs to:

  • Ensure that all the relevant information has been presented in court prior to granting eviction orders, especially where the occupants do not have legal representation;
  • explain the rights of occupants in terms of section 26 of the Constitution;
  • invite the occupants to voice their concerns;
  • direct the occupants to the nearest available law clinic or legal aid centre; and
  • ensure that no-one is left homeless.

The most important principle of the Berea case is that the presence of an agreement to an eviction between the affected parties can never absolve any court or presiding officer from proactively applying the Prevention of Illegal Eviction from Unlawful Occupation of Land Act (PIE Act), read together with section 26 of the Constitution. A person’s home is intrinsically linked to the realisation of almost all human rights and the Berea case is set to ensure that no-one is left without shelter when being evicted.

By Sylvia Maila

LindsayKeller Associate

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