On 19 February 2015 application for leave to appeal the Hlophe judgment will be heard in the Supreme Court of Appeal (SCA). This appeal arises from an eviction case where the City of Johannesburg was ordered to provide alternative accommodation to the residents of a building called Chung Hua Mansions in inner city Johannesburg. This did not happen, despite three court orders being issued.
In 2013 judgment was handed down in the South Gauteng High Court directing the Executive Mayor, City Manager and Director of Housing for the City to personally explain why it had not acted to provide shelter, and to take all the steps necessary to provide shelter within two months. The functionaries were ordered to take the necessary steps in terms of their own constitutional and statutory obligations, to cause the City to obey a court order against it.
The City applied for leave to appeal this judgment to the SCA. Its appeal is based on the proposition that functionaries can never be directed to perform their constitutional and statutory duties to see to it that the City obeys court orders, no matter how protracted or severe the disobedience, and no matter how severe the consequences of non-compliance.
The residents argue that the appeal should be dismissed with costs. They argue that, having endured the continuing breach of three court orders intended to ensure the provision of alternative accommodation, the residents were entitled to pursue mandatory relief against the functionaries in control of the City. The residents are represented in court by Paul Kennedy SC and Stuart Wilson.
Today marks the first day of the relocation of 46 households living at the Taylor Road informal settlement located in Honeydew Manor Ext 27. Sixteen households are currently being relocated to Fleurhof, a mixed housing development located on Main Reef Road in Johannesburg where they will receive full ownership of subsidised flats. The remaining occupiers will relocate on 31 January, some to Fleurhof and others to the Ruimsig informal settlement where they will be allowed to rebuild their homes.
The much anticipated relocation comes after the City of Johannesburg was ordered by the South Gauteng High Court in February 2014 to provide the residents of the settlement (many of whom have lived there for 20 years) with alternative accommodation, following an eviction application by a private developer. The residents are protected by either the Extension of Security of Tenure Act (ESTA) or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). After a number of missed relocation deadlines by the City, the residents are finally relocating with the assistance of SERI.
On 20 January 2015 residents of the Ekuthuleni shelter in inner city Johannesburg filed their answering affidavit to the City of Johannesburg's petition to the SCA for leave to appeal the Dladla judgment.
The judgment, handed down in the South Gauteng High Court on 22 August 2014, found that the City and MES' day-time lockout rule is an unjustifiable infringement of the residents' constitutional rights to dignity, freedom and security of person, and privacy. The court also found that the City and MES' refusal to permit the residents to reside in communal rooms together with their spouses or permanent life partners is an infringement of their constitutional rights to dignity and privacy.
In September 2014 the City filed an application in the South Gauteng High Court for leave to appeal the judgment to the SCA; however the High Court dismissed the application with costs. The residents oppose the City’s latest application, arguing that it is inconsistent with the residents' constitutional rights to dignity, freedom and security of the person and privacy. The City’s rules and conditions corrode the residents' well-being and self-respect, and deprive them of the most fundamental form of social support available to anyone: the company of a loving family. They also severely restrict the respondents’ autonomy by curtailing their ability to make the most basic decisions about how to live their daily lives. The City has simply never offered a basis upon which these clear breaches of the residents' rights can be justified in terms of section 36 of the Constitution. Instead, the City claims that its rules and conditions are convenient, practical and, even, reasonable. But that is not enough. The City nowhere makes a coherent argument that its rules and conditions are constitutional.
SERI is delighted by the ratification by the South African government of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which will enter into force on 12 April 2015. The South African government signed the ICESCR twenty years ago and while it has taken its time to ratify the ICESCR, it is an important step forward that the ICESCR will now have greater force.
SERI looks forward to the government’s speedy ratification of, or accession to, the Optional Protocol to the ICESCR (OP-ICESCR) – an action that will consolidate South Africa's role in advancing the rights of poor people around the world to a decent standard of living.
The OP-ICESCR is an additional treaty that provides an individual complaint mechanism (such as exists for the other major international human rights treaties, including the International Covenant on Civil and Political Rights). This mechanism further promotes a culture of accountability for implementing the ICESCR. It empowers vulnerable and marginalised groups to lodge individual complaints at the international level regarding violations of their socio-economic rights
Today, the South Gauteng High Court dismissed an eviction application against two 71 year-old pensioners who have lived and worked on land in Fairlands, Johannesburg for 44 years.
Acting Judge Paul Carstensen found that the owner of the land had not proven that an eviction order would be just and equitable. He dismissed the application with costs. The Judge found that, taking into account the circumstances and factors set out in section 4(7) of the Prevention of Illegal Eviction from, and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) - including the length of time which the residents have lived on the land, the circumstances under which they moved there, the fact that there are old age pensioners on the property and that there is a lack of alternative accommodation - all “clearly tilt the scales of justice in favour [of the residents]”.
The residents, represented by SERI, earn very little and are at risk of becoming homeless if evicted. The owner, a property developer called All Building and Cleaning Services CC (ABCS), wants to build townhouses for higher-income residents.
The eviction application came in the wake of an attempted illegal eviction which took place on Freedom Day on 27 April 2013. A group of men descended onto the property without warning and attempted to remove the roof of the residents’ home. In October 2014 the residents argued in court that the eviction application should be dismissed on equitable grounds, because the ABCS has had not meaningfully engaged with them, but had attempted to hound them out of the property by making living there unbearable.
In his judgment of 16 January 2015 Judge Carstensen argued that the onus is on an owner to show that an eviction would be just and equitable. But, in this case, ABCS had “not made any serious attempt to satisfy the onus”. In terms of meaningful engagement, he found that, apart from “intimidatory tactics”, there had been “no engagement” at all with the residents.
On the question of alternative accommodation, Judge Carstensen found that ABCS had made no attempt to satisfy the court on this issue, or to assist the residents. The Judge found that there would be “very little prejudice” if, as part of the development, ABCS had offered to build the residents a suitable home. The Judge said that the fact that the owner refused to do so, and its attitude towards the constitutional rights of the residents in general, factored into his decision not to grant the order.
Nomzamo Zondo, a SERI attorney who acted for the residents: “This is a ground-breaking case. It is very unusual for a court to refuse to grant an eviction order to a private owner on just and equitable grounds. This case serves as a warning that property developers must treat poor people who they find living on newly-purchased land with dignity and respect. Our constitution demands nothing less.”
Adv Stuart Wilson and SERI senior attorney Teboho Mosikili argued the matter on behalf of the residents.