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Press Release: Con­sti­tu­tional Court rules that courts must con­sider jus­tice and fair­ness when grant­ing evic­tions

For Imme­di­ate Release: 09 June 2017

 

Yes­ter­day, 08 June 2017, the Con­sti­tu­tional Court handed down a judg­ment that has impli­ca­tions for the con­duct of courts in future evic­tions of occu­piers. The LRC rep­re­sented the Poor Flat Dwellers Asso­ci­a­tion (PFDA) as a friend of the court.

 

We are pleased to note that our sub­mis­sions were relied on exten­sively when the Court made its find­ings.

 

In Occu­piers of Erven 87 & 88 Berea v Chris­t­ian Fred­er­ick De Wet and one other, the Con­sti­tu­tional Court found that,in evic­tion proceedings,courts are required to, and must take an active role, in con­sid­er­ing what is just and fair for those being evicted.

 

The occu­piers had been liv­ing in an aban­doned build­ing in Berea, Johan­nes­burg, for peri­ods of 325 years. An evic­tion appli­ca­tion was brought and it was granted on the 10 Sep­tem­ber 2016 in the South Gaut­eng High Court.

 

A pro­posed draft of the court order had been pre­sented to the High Court. It was under­stood that the terms of the court order had been con­sented to by the occu­piers, when, in fact, only four peo­ple appeared in court claim­ing to rep­re­sent the com­mu­nity of occu­piers. The evic­tion was granted based on this draft order.

The occu­piers appealed this evic­tion order and were rep­re­sented by the Socio-economic Rights Insti­tute (SERI). The High Court and Supreme Court of Appeal both dis­missed the appeal and the mat­ter came before the Con­sti­tu­tional Court.

The occu­piers argued that the order could not have been granted by con­sent as the four peo­ple were not enti­tled to rep­re­sent them.

 

On behalf of the PFDA, the LRC pre­sented sub­mis­sions to the Con­sti­tu­tional Court in which we argued that, when grant­ing an evic­tion, a court must employ its judi­cial over­sight func­tion. Sec­tion 4(9) of the Pre­ven­tion of Ille­gal Evic­tions of Unlaw­ful Occu­piers Act (PIE) requires a court to inter­ro­gate the man­ner and form of an evic­tion.

 

Sec­tion 26(3) of the Con­sti­tu­tion guar­an­tees that no per­son may be evicted from their home with­out an order of court made after con­sid­er­ing all of the rel­e­vant cir­cum­stances. This sec­tion must be read together with Sec­tion 34 of the Con­sti­tu­tion which pro­vides that every­one has the right to have any dis­pute that can be resolved by the appli­ca­tion of law, decided in a fair pub­lic hear­ing before a court. 

 

The PFDA con­tend that by not con­sid­er­ing of all the rel­e­vant cir­cum­stances of the occu­piers, the court deprived them of a fair pub­lic hear­ing and deprives them of their right under Sec­tion 34 of the Con­sti­tu­tion.

 

In hand­ing down judg­ment in Berea, the Con­sti­tu­tional Court empha­sised that the duty that rests on the court order under sec­tion 26(3) of the Con­sti­tu­tion and sec­tion 4 of PIE goes beyond the con­sid­er­a­tion of the law­ful­ness of the occu­pa­tion.

 

It is a con­sid­er­a­tion of jus­tice and equity, in which the court is required and expected to take an active role.

 

The judg­ment went fur­ther to spec­ify when an evic­tion order can be granted: 1) when a court has all the infor­ma­tion about the occu­piers to enable it to decide whether the evic­tion is just and equi­table; and 2) when the court is sat­is­fied that the evic­tion is just and equi­table hav­ing regard to this infor­ma­tion.

 

Fur­ther­more, a court must actively engage with the rel­e­vant cir­cum­stances, even when there is pur­ported con­sent and even when both sides are rep­re­sented and a com­pre­hen­sive agree­ment is placed before the court. Courts must, as a first step, be sat­is­fied that the par­ties freely, vol­un­tar­ily and in full knowl­edge of their rights agreed to the evic­tion. The court must con­sider home­less­ness and the issue of join­ing the local author­ity to the case in order to ensure that the local author­ity dis­charges any duties it may have towards the occu­piers.

 

The LRC wel­comes this sig­nif­i­cant deci­sion by the Con­sti­tu­tional Court as it will reduce the vul­ner­a­bil­ity and uphold the rights of the vast num­ber of indi­vid­u­als fac­ing mass evic­tion, who often form part of our dis­ad­van­taged and indi­gent in soci­ety.

 


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