First published by GroundUp

On 8 June 2017, the Constitutional Court handed down a judgment, which clarifies the role of judges in eviction proceedings and is a victory for unrepresented people facing eviction.

The case involved almost 200 people who are occupying a property in Berea and who were subject to an eviction order made in 2013. The occupiers, represented by the Socio-economic Rights Institute, appealed against an eviction order granted by the High Court in Johannesburg. The Constitutional Court then heard the appeal earlier this year.

In their appeal, the occupiers argued that the eviction order by the high court should not have been granted even if they had consented to it, because the judge had not considered all relevant circumstances and ensured that the eviction order was just and equitable.

At the time the eviction order was granted by the high court, the residents were unrepresented. A small delegation attended a court hearing with the intention of requesting a postponement in the case. Following the court hearing, an eviction order was made on the grounds that the residents had reached an agreement with the owners of the land.

Under the Prevention of Illegal Evictions Act (PIE Act), a judge may only grant an eviction order if it is just and equitable to do so after he or she has considered all relevant circumstances. However, the judge did not hear any arguments from the residents before making the order in this case because he believed the occupiers had settled with the trustees.

The issue the Constitutional Court had to then consider was what duties a judge has when considering whether to grant an eviction order under the PIE Act.

The Constitutional Court considered previous cases and stated that judges must make two enquiries when deciding whether to grant an eviction order. The first is whether it is just and equitable to grant the eviction order after considering all relevant factor including whether there is alternative accommodation available. However, the occupiers’ interests must also be balanced against the property owner’s rights and, if the occupiers have no defence against eviction, the court should try to limit the period of time that a property owner’s rights are infringed. The second enquiry concerns the implementation of the eviction order and conditions attached to it. In this enquiry, the court is to consider what would be just and equitable in the circumstances, particularly where eviction would render occupiers homeless.

The Constitutional Court stated that a judge cannot conduct these inquiries if the relevant and necessary information has not been provided to the court. Furthermore, the court stated that where unlawful occupiers are unrepresented, they should be informed of their right to legal aid and ensure the occupiers have been adequately notified about the proceedings.

The Constitutional Court held that the High Court had not applied the PIE Act by conducting the necessary enquiries and had simply granted the eviction order after the parties had settled. The Constitutional Court confirmed that even where the parties have settled, the court is still required to fulfil its duties under the PIE Act and determine whether the eviction order is just and equitable.

Also, the Constitutional Court held that municipalities or organs of state must be joined in eviction proceedings if there is a risk of homelessness. The City of Johannesburg was not joined in the initial eviction proceedings, which meant it was not possible for the occupiers to secure alternative accommodation during the initial eviction proceedings.

So the court ordered that the eviction order be rescinded and that the case will be reconsidered at the High Court in Johannesburg. The court also ordered that the City of Johannesburg be joined as a party to the proceedings and that the City file a report on its ability to provide alternative accommodation for the occupiers.

The judgment represents an important victory for occupiers who face eviction proceedings without legal representation. It affirms the active role judges have to take in eviction proceedings. DM

See also: Can you consent to an unfair eviction?

Photo: Constitutional Court judges enter the court (archive photo). Photo: Ihsaan Haffejee