/ 9 June 2017

Judges can no longer lawfully order evictions that leave people homeless

Down and out: Residents of a Berea building face eviction or “temporary” relocation. Photos: Delwyn Verasamy
Down and out: Residents of a Berea building face eviction or “temporary” relocation. Photos: Delwyn Verasamy

In a landmark judgment delivered on Thursday, the Constitutional Court said that judges have an obligation to ensure that evictions will not leave people homeless. The Concourt delivered the judgment after hearing a case where residents in an apartment block had agreed to be evicted without knowing their rights.

There were 184 residents who faced eviction from a block of flats called Kiribilly in Berea near inner city Johannesburg. Some of the residents have occupied the building for more than 26 years. In 2013, they were served with a notice that they would be evicted. 

When the matter was heard in the Johannesburg high court later that year for a court order to be granted, a member of the Johannesburg ward committee agreed to the eviction on behalf of the residents. He had not received a mandate to do so from the residents themselves. But the court granted the eviction order, saying the parties had come to an agreement.

At the time, many of the residents could not speak English, afford legal representation and only four were present at the high court when the order was granted.

In response, they sought representation from the Socio-Economic Rights Institution (SERI) who took the matter on appeal to the high court, and eventually the Supreme Court of Appeal. When they lost in both those courts, they approached the Concourt. Under scrutiny was the consent of residents to eviction and the duties of a court when hearing an eviction case.

What the Constitutional Court found was that the Kirbilly residents had not consented to the eviction because they did not properly know their rights. According to the court, their rights include access to alternative temporary accommodation if they would be left homeless after the eviction and to be evicted only after the court granting the order had considered all relevant details and background information

Consent to an eviction, the Concourt said, is only valid if it is informed. The residents did not have access to legal representation at the time the high court granted the eviction order by agreement and therefore the Concourt decided that they had not been entirely informed about their rights.

“It has not been disputed that the applicants were not informed of any of these rights. It must, therefore, be accepted that they were not aware of any such rights. Given that the applicants were not aware of their rights, the factual consent that they gave was not informed. Their consent is therefore not legally valid. It is not binding on them,” the Concourt said in its judgement.

The Concourt found that judges are obligated to take informed consent into account when granting an eviction order. It also found that judges cannot grant an eviction order if it renders people homeless. 

According to previous judgements issued by the Concourt, such as Blue Moonlight in 2011, municipalities are obligated to provide temporary accommodation in the event that an eviction will lead to homelessness. The Concourt said that courts must ensure these responsibilities are effected when they grant eviction orders

“Courts must be alive to the risk of homelessness and the issue of joining the local authority to discharge any duties it may have. All of this may appear unduly burdensome but it is necessary if one has regard to the fundamental importance that a person’s home has to the realisation of almost all human rights,” the Concourt said.

Nomzamo Zondo, director of litigation at SERI, represented the residents at the Concourt. Zondo said that the Concourt judgement would help give security to poor South Africans at risk.

“This is a momentous decision for millions of poor people across South Africa who live with insecure tenure and inadequate housing. As of today, our courts are forbidden from making eviction orders – even if they have been agreed to – until those under threat of eviction are aware of and able to exercise their rights, and until a Judge can be sure no-one will be left out on the streets.”