private eviction - Berea - City of Johannesburg - alternative accommodation - Constitutional Court

Stuart Wilson, SERI’s Director of Litigation, is one of the counsel acting for the occupiers in this matter. He is instructed by the Centre for Applied Legal Studies (CALS) and appears with advocates Paul Kennedy SC and Heidi Barnes.

The occupiers of 7 Saratoga Avenue are a community of 86 desperately poor people living in disused industrial property in Berea, Johannesburg. In 2006, they were sued for eviction by the owner of the property. They opposed the application, stating that they could not be evicted unless and until the City of Johannesburg discharged its constitutional obligation to provide them with temporary alternative accommodation pending ultimate access to formal housing as part of the national housing programme.  They joined the City of Johannesburg ('the City') to the proceedings and sought an order compelling it to do so.

In February 2010, Spilg J, sitting in the South Gauteng High Court, granted the eviction and ordered the occupiers to vacate the property. He simultaneously directed the City either to provide the occupiers with temporary accommodation or to pay each of the occupiers’ households R850 per month towards the cost of finding their own alternative accommodation. He also declared the City’s housing policy unconstitutional because it excludes from its ambit persons evicted from private land by way of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 ('PIE Act'). The City was also directed to compensate the owner of 7 Saratoga Avenue for the loss of the use of its property caused by the its defective housing policy.

The City appealed to the Supreme Court of Appeal (SCA) against the declaration of constitutional invalidity and against the order to provide the occupiers with temporary shelter or to pay them R850 per month. The occupiers cross-appealed against the eviction order and against the order that the City make payments towards their rent. They argued that the payments directed by the High Court would not protect them from becoming homeless upon eviction. The only appropriate relief would be to provide them with temporary alternative accommodation and direct that they may occupy their current homes until this is made available to them.

The appeal was heard in the SCA on 18 February 2011. Judgment was handed down on 30 March 2011, where the SCA declared the City of Johannesburg’s housing policy irrational, discriminatory and unconstitutional.  The SCA directed the City to provide temporary emergency accommodation to the occupiers by 1 June 2011.

The City subsequently appealed the SCA judgment, and the appeal was heard on 11 August 2011 in the Constitutional Court. Judgment was handed down on 1 December 2011. In a unanimous judgment written by van der Westhuizen J, the Court accordingly upheld the order of the SCA but ordered the eviction of the occupiers 14 days after the City was ordered to provide those occupiers who were in need with temporary accommodation. This was to ensure that they would not be rendered homeless because of the eviction.

On 8 March 2012, an urgent application was launched in the Constitutional Court which sought to compel the City to engage meaningfully with the occupiers in order to give effect to the order handed down by the Court on 1 December 2011. The application also requested the Court to vary the terms of this order, to avoid the occupiers facing eviction in circumstances where the City failed to take meaningful steps to provide temporary accommodation (as required by the order) in advance of the date set by the court for them to vacate the property or be evicted. The Constitutional Court dismissed this application, however the City's counsel undertook, in front of the Court, that the occupiers would be accommodated by 15 April – the date of eviction. On 24 May 2012, the Constitutional Court handed down its reasons for dismissing the occupiers' application. These reasons emphasise that the Court is not the appropriate forum to enforce or vary the orders it gives on appeal, unless it declares a statute unconstitutional, or makes a detailed supervisory order which may require variation in light of changed circumstances. Otherwise, a party should approach the court in which the case was first considered, in this case, the Johannesburg High Court.

On 13 April, two days before the eviction order was due to be executed by the owner, the City had not provided alternative accommodation to the residents. Facing imminent eviction and homelessness, the residents and their legal representatives, CALS, approached the Johannesburg High Court on an urgent basis. The High Court temporarily suspended the execution of the eviction order until 2 May 2012, and ordered the City to provide shelter to the occupiers by 30 April 2012. The City was required to report back to the residents on its progress, and a site visit was ordered to examine the proposed new accommodation. 

On 30 April 2012, the occupiers moved into temporary accommodation provided by the City, in the MBV building and in the Ekuthuleni Shelter run by Metro Evangelical Services (MES).

Constitutional Court

  • SERI and CALS press release on Constitutional Court's ruling on application dismissal (24 May 2012) here.
  • SERI and CALS press release on High Court suspension of Constitutional Court order (13 April 2012) here.
  • SERI and CALS press release on Constitutional Court dismissal of urgent application (30 March 2012) here.
  • SERI and CALS press release on urgent application (9 March 2012) here.
  • Notice of motion in urgent application to Constitutional Court (8 March 2012) here.
  • SERI and CALS press release on judgment (1 December 2011) here.
  • Constitutional Court judgment (1 December 2011) here.
  • Media summary of judgment (1 December 2011) here.
  • Second respondent's heads of argument (occupiers of Saratoga Avenue) here.
  • SALGA's application for leave to intervene as amicus curiae here.
  • Applicant's practice note and heads of argument (City of Johannesburg) here.
  • Second respondent's answering affidavit (occupiers of Saratoga Avenue) here.
  • Application for leave to appeal in the Constitutional Court (City of Johannesburg) here.

Supreme Court of Appeal (SCA)

  • K Tissington and S Wilson (2011) "SCA upholds rights of urban poor in Blue Moonlight judgment" ESR Review vol. 12(2) pp. 3-6.
  • SERI press release on SCA judgment (30 March 2011) here.
  • SCA judgment (30 March 2011) here.
  • Heads of argument for the second respondents (occupiers of Saratoga Avenue) here.
  • Appellants heads of argument and practice note (City of Johannesburg) here.

High Court

  • CALS media release on High Court judgment (5 February 2010) here.
  • High Court order (4 February 2010) and reasons for judgment by Spilg J in the South Gauteng High Court (18 February 2010) here.
  • Op-ed in the Business Day by Stuart Wilson (14 October 2008) here.