application for leave to appeal – just and equitable eviction - Gauteng Local Division of the High Court – Supreme Court of Appeal
SERI acts for the residents on 8 O’Reilly Street, Hillbrow, in an application for leave to appeal against an eviction order granted in the Gauteng Local Division of the High Court on 28 May 2014. There are 21 households on the property, comprising about 90 people, including 37 children. Many of the families have been living on the property for over eight years.
An eviction order was granted against all of these long-standing residents in favour of the new owner, Ingelosi House (Pty) Ltd, despite the City of Johannesburg not having been joined to proceedings and regardless of the fact that the residents are poor and will be rendered homeless by an eviction. The eviction order was granted in opposed court with about eight of the residents present, but unrepresented.
Judge Victor questioned five of the residents, who all confirmed that they required time to raise money for a lawyer and to put together a defence. They explained that the affidavit, filed purportedly on their behalf, was filed without their knowledge. The Judge did not consider the personal circumstances of the residents or whether an eviction order would be just and equitable in the circumstances.
An application for leave to appeal against the order and judgment of the High Court was brought on a number of grounds. The main grounds of appeal are as follows:
On 27 October 2015, that court dismissed the application for leave to appeal, rejecting the argument under section 4(2) of the PIE Act and finding that the residents’ plea at the hearing of the matter for more time to raise money for an attorney was dilatory. The Judge found that “[u]ltimately the respondents (residents) came to listen rather than seek a postponement” and when they appeared, failed to address the legal issues before the court.
SERI petitioned the Supreme Court of Appeal (SCA). The owner filed an answering affidavit arguing that court’s do not have a duty in PIE applications to read beyond the papers filed in court. The residents desputed this in a replying affidavit, and the SCA granted leave to appeal on 19 February 2016.
Their appeal was heard before a full court in the Gauteng Local Division, Johannesburg, and on 19 May 2017 the court set aside the eviction. The High Court judgment held that Judge Victor erred in failing to join the City to the proceedings. Judge Victor should have joined the City and ordered it to submit a report setting out the steps it would take to stop the residents from becoming homeless on eviction. The High Court upheld the residents’ appeal, set aside the eviction order, joined the City to the proceedings and directed it to file a report on the occupiers and their circumstances within 30 days.
The matter has been remitted to the High Court and is to be heard together with Occupiers of Erven 87 & 88 Berea v De Wet ('Kiribilly') on 16 April 2018. On 9 February, SERI filed heads of argument asking the court for a structured order directing the City to make alternative accommodation available to the occupiers within six months (and at least one month before any eviction order takes effect).