/ 1 December 2011

Jo’burg council forced to accommodate Berea evictees

The City of Johannesburg will have to provide emergency housing for 86 people due to be evicted from a building earmarked for redevelopment in Berea.

The City of Johannesburg must provide emergency housing for 86 people due to be evicted from a building earmarked for redevelopment in Berea, according to a judgment handed down on Thursday.

The Constitutional Court also found the city’s housing policy was inconsistent with its housing obligation and unconstitutional because it did not provide accommodation for people in an emergency situation.

It rejected the city’s argument that even if it did have an obligation to provide temporary accommodation in such cases, it did not have the means to do so.

“The court was not persuaded that the city did not have sufficient resources, holding that the city had wrongly budgeted on the basis that it was not obliged to provide them with emergency housing.”

The judgment dealt with when it would be just and equitable under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) to evict unlawful occupiers from private property.

It was common cause that the occupiers of the building were unlawful.

Abysmal conditions
But they had been living in the building in abysmal conditions for a long time and had paid rent although no record of the rent to the present owner through a third party could be found.

Owners of the property, Blue Moonlight, bought the property in 2004 but met resistance when it wanted to redevelop it. The building was also a fire risk.

The occupants, who brought in around just over R1 000 per household, did not want to move because they would be homeless and away from their sources of income.

They tried to raise the matter with the housing tribunal but eventually the issue went to court.

The city must, by April 1 2012, provide the occupiers whose names are on a list filed on April 30 2008 with temporary accommodation as near as possible to the Berea property.

Emergency accommodation
The city appealed an earlier high court judgment ordering it to provide alternative accommodation for those living in the building. The owner of the Berea building is private property company Blue Moonlight Properties 39.

In the judgment, by Appeal Court Judge Mohamed Navsa and Acting Judge of Appeal Clive Plasket, the city’s housing policy was declared irrational, discriminatory and unconstitutional because, among other things, it drew a distinction between people it evicted from unsafe or “bad” buildings owned by private landowners and persons evicted by private landlords for other reasons.

Furthermore, it was deemed “inflexible” in not allowing for the provision of temporary accommodation for persons evicted from privately owned land, even if they were desperately poor.

The court found the city had been vague about the affordability of meeting demands for housing as it had mostly addressed the costs involved in providing permanent housing as opposed to temporary emergency housing for occupants.

Evicting the undesirables
It was after Blue Moonlight Properties 39 bought the premises in 2005 (it still remains unclear from whom), that the heavy-handedness began.

In 2006, Blue Moonlight launched an application for the eviction of residents, opposed by residents on the grounds that the city first had to “discharge its constitutional obligation to provide them with temporary, alternative accommodation pending ultimate access to formal housing as part of the national housing programme”.

The occupiers then brought the city to the proceedings and sought an order compelling the city to fulfil its obligation. This seems to have frustrated the owners’ plans for the property considerably. — Sapa, M&G reporter