stay application - evictions - City of Johannesburg - South Gauteng High Court
In January 2014 the City of Johannesburg made an application to the South Gauteng High Court for an order directing that pending the final determination of Dladla and Others v City of Johannesburg and Others (Dladla), the final eviction applications in over 30 matters be stayed. This would mean that legal proceedings would be postponed in these cases till the Dladla case is finalised. SERI represents over 1 100 people in a number of these cases, including Soper Road, Changing Tides and Jeanwell Court.
On 10 June the occupiers represented by SERI issued a counter-application requesting the court to declare that the City has failed to take reasonable measures, within its available resources, to discharge its obligations, under section 26(2) of the Constitution, to provide temporary accommodation to the occupiers, as required by the decision of the Constitutional Court in Blue Moonlight.
The occupiers also request that the court declare the City’s criteria for determining who will qualify for the provision of temporary accommodation are unconstitutional and invalid. Rather, the occupiers argue that the City should devise, publish and implement revised criteria for determining the occupiers’ eligibility for the provision of temporary accommodation. Pending the implementation of these criteria, the following shall apply: whether the occupier faces the risk of being rendered homeless if evicted; and whether affordable alternative accommodation is reasonably available to an occupier.
The City must therefore adopt reasonable measures, within its available resources, to provide temporary accommodation to the occupiers, and to comply with the following process:
- Forthwith to engage meaningfully, individually and collectively, with each of the occupiers, the owners of the property and their legal representatives in order to determine their individual circumstances, and the extent to which the City’s managed care policy should be applied to them.
- Within 3 months of the date of the order, to file a report dealing with at least the following issues:
- The steps it has taken to engage, individually and collectively, with the occupiers and owners on the provision of temporary accommodation;
- The reasonableness of applying the aspects of the managed care policy under challenge in the pending case of Dladla to the occupiers;
- The land and/or buildings available to the City to accommodate the occupiers;
- To the extent that the City’s capacity to provide temporary accommodation is insufficient, the steps it has taken to budget for the procurement of land and/or buildings to accommodate the occupiers;
- If no land and/or buildings are available, the steps it intends to take to procure those necessary to provide temporary shelter to the occupiers;
- The steps it intends to take to provide temporary shelter to the occupiers within a year of the date of this order;
- If, in the opinion of the City it will not be possible to provide temporary accommodation to each of the occupiers within a year of the date of the order, the reasons why it will not be possible to do so.
The City is seeking a blanket stay in circumstances where the Dladla case does not necessitate one. The real basis for the City’s application is two-fold: it has adopted an unreasonable, inflexible attitude to the occupiers and their circumstances, and it has failed to adequately plan for and procure the land and/or buildings necessary to provide temporary shelter to them. The occupiers request that all applications to evict them are stayed pending the detailed process set out above.
In July, one of the building owners involved in the stay appplication, Mark Steele, submitted an affidavit opposing SERI's counter-application. In October the City filed its replying affidavit in the stay application and its answering affidavit in SERI's counter-application.
- City's affidavit in response to occupiers affidavit of 30 May 2016 (18 July 2016) here.
- Mr. Phophi's affidavit regarding annexures (18 July 2016) here.
- City's affidavit in response to the Minister of Human Settlements and MEC for Human Settlements (2 June 2016) here.
- Occupier's replying affidavit (30 May 2016) here.
- Minister of Human Settlements' affidavit (26 April 2016) here.
- Gauteng MEC for Human Settlements' affidavit (20 April 2016) here.
- High Court's order in the joinder application (1 December 2015) here.
- City of Johannesburg's joinder application (14 July 2015) part 1 here, part 2 here, part 3 here, part 4 here and part 5 here.
- SERI's replying affidavit in the counter-application (5 December 2014) part 1 here, part2 here, part 3 here and part 4 here.
- City of Johannesburg's answering affidavit in SERI's counter-application (14 October 2014) here.
- City of Johannesburg's replying affidavit (14 October 2014) here.
- Mark Steele's affidavit opposing SERI's counter-application (10 July 2014) here.
- Occupiers' notice of counter-application here and answering affidavit (10 June 2014) here.
- City of Johannesburg's notice of motion and founding affidavit (17 January 2014) here.