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.
On 29 December 2014 judgment was handed down in the Mokebe case, in which the Boksburg Magistrate Court dismissed the eviction application against SERI's client.
SERI became involved in the case after Ms Mokebe, a single mother of two children, was evicted from her home by her landlord in 2010. Ms Mokebe's landlord claimed that she left the property voluntarily because he offered her alternative accommodation. SERI, on behalf of Ms Mokebe, argued that she had been intimidated into leaving her home by her landlord, who used his position as a police officer and his service firearm to intimidate her. The Magistrate agreed with SERI's submissions and in 2011 granted an order restoring Ms Mokebe to her home, interdicting and restraining her landlord from evicting her again without a court order.
The landlord subsequently applied for an eviction order, heard in the Boksburg Magistrate Court in August 2014. In a written judgment the Magistrate found that the landlord had failed to prove that the lease agreement was terminated and therefore Ms Mokebe is not an unlawful occupier as defined by the PIE Act.
The Constitutional Court Review (CCR) is an annual international journal that tracks the work of the Constitutional Court of South Africa. In 2014 the fifth edition of the CCR was published by Juta Law. SERI's executive director Stuart Wilson and senior researcher Jackie Dugard both contributed articles on the Blue Moonlight case to the publication.
In November 2014 the City of Johannesburg petitioned the SCA for leave to appeal the Dladla judgment of Wepener J, handed down in the South Gauteng Court in August 2014. The court found that the City's day-time lockout rule at the Ekuthuleni shelter (alternative accommodation provided by the City in the Blue Moonlight case) 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's 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.
The City's appeal to the SCA comes after its application for leave to appeal in the High Court was dismissed with costs on in October 2014. The answering papers by residents of the Ekuthuleni shelter are due on 28 January 2015.