City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) Case No. 253/06 SCA

Eviction - the right not to be evicted without an order of court after considering all the relevant circumstances - the effect of this guarantee on statutory provisions empowering local authorities to evacuate areas in certain circumstances – provision of alternative accommodation.

The facts

This case concerns several applications in which the City of Johannesburg sought the eviction of over 300 people (the occupiers) from six properties in the inner city of Johannesburg. The City of Johannesburg (the City) initially served notices on respondents (occupiers) to vacate unsafe buildings in terms of section 12(4)(b) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act). The Act essentially requires Local Authority to vacate occupants from buildings within its jurisdiction which pose health or safety hazards to the occupiers or to the general public. As a result of the respondents’ failure to comply with the notice, the City applied for an order of court for their eviction. The respondents opposed the eviction application, inter alia, on the following basis:

  1. They (the respondents) are entitled to the protection of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE), and that the Court should therefore consider the availability of alternative accommodation in determining whether it will be just and equitable in the circumstances for them to be evicted;
  2. The NBRA is in conflict with section 26(3) of the Constitution as it allows for arbitrary evictions;
  3. The municipality did not afford them a fair hearing or consulted them in any way before approaching the Court.

The High Court (HC) had found that the City of Johannesburg had a constitutional duty to provide the applicants with alternative adequate housing before it could evict them. This finding by the Court constituted the main ground of appeal by the City of Johannesburg. The HC was also silent on the issue of structural interdict sought by the respondents in their counter-application. Failure to grant the structural interdict by the HC was the main feature of the respondents’ cross-appeal.

According to the Supreme Court of Appeal (SCA), the issues to be decided were:

  1. (a) Whether Local Authority had the right to order occupiers by notice to vacate a building because it was necessary for their safety or the safety of others;
    (b) If the occupiers fail to comply with the notice, can Local Authority apply for an order of court for their eviction;
  2. Whether the decision by Local Authority to evict the occupiers was conditional on Local Authority finding the occupiers adequate alternative housing;
  3. Whether such adequate alternative housing must be provided within the Inner City.

Decision of the SCA

The SCA disagreed with the first argument, for PIE did not apply in the present case. Technically PIE did not apply because the definition in Sec 1 was not met, said the SCA. According to the SCA, while, admittedly, the respondents were “unlawful occupiers” and did not have the “express” consent of the owner, they however had the “tacit” consent to remain in the buildings for the owners had abandoned the properties. The SCA further held that, even more generally, it was difficult to see how PIE could have been intended to prevent occupiers from eviction from unsafe properties.

Regarding the second argument by respondents, The SCA said that the term “arbitrary” means that there was insufficient reason provided for the deprivation of ownership (property). In terms of Section 26(3) of the Constitution which prohibits any law that permits arbitrary evictions, sufficient reason requires an evaluation of the relationship between the means employed, namely the eviction, and the end sought to be achieved, namely the purpose of the law in question, the Court said. The SCA rejected the finding (by the HC) that persons in emergency situations may not be evicted unless alternative or adequate housing is provided. The SCA said that unsafe (inadequate) housing is not adequate housing. Thus the respondents’ right of access to adequate housing could not have been infringed.

The SCA held that since the majority of the respondents would be left without a roof over their heads when evicted from the unsafe buildings, a constitutional obligation arose for the City to provide alternative accommodation of a temporary nature to those persons. Furthermore, while the municipality housing programme in its design must have regard to people’s residence and the places of employment, the Constitution does not entitle the respondents to claim alternative accommodation of a permanent nature at a location of their choice (in the Inner City), the SCA held.

The SCA also rejected the third argument by the respondents. The SCA said that the right to be heard has been constitutionalized and codified in sec 3 of PAJA. However it is not an absolute or immutable right. The ‘administrator’ must give the affected persons the opportunity to make representations but if it is reasonable and justifiable in the circumstances, the administrator may depart from this requirement (sec 3(4) of PAJA), the SCA said. The SCA held that in this case the only issue the administrator might have been obliged to hear and consider representations was in relation to the question whether it was necessary for the safety of any person that the buildings be vacated. That this was not a case where there had to be consultation. In emergency situations there is barely time to hold hearings, said the SCA. Having regard to the difficulty of determining the mere number of the respondents, let alone their identities, the City was justified in not holding prior hearing, the SCA held.

On the basis of the above, the SCA also dismissed the respondents’ counter-claim which essentially sought to have the legislation in issue declared unconstitutional.

Finally, the SCA overturned the HC finding that the decision to evict was dependent on the City finding alternative adequate housing in the Inner City. The SCA held that to order that the respondents were to remain in unsafe (and inadequate housing) building unless alternative adequate was provided, was incorrect.

The Court ordered that:

Respondents are prevented from occupying the property concerned until such time as the applicant (the City) has granted permission in writing that the property may be occupied or used. City of Johannesburg offer and provide those respondents who are evicted and in desperate need of housing assistance with relocation to a temporary settlement. The temporary accommodation is to consist of at least the following elements: a place where they may live secure against eviction; a structure that is waterproof and secure against the elements; and with access to basic sanitation, water and refuse services. The City of Johannesburg is ordered to serve on the respondents’ attorneys of record and the amici and file with the registrar a compliance affidavit within four months of this order (structural interdict).

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