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 3–25 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.