amicus curiae - appeal against order to provide alternative accommodation - City of Johannesburg - Supreme Court of Appeal (SCA)

SERI was admitted as amicus curiae in an SCA appeal against an order of the South Gauteng High Court which requires the City of Johannesburg (the City) to provide alternative accommodation to approximately 100 unlawful occupiers of a building in inner city Johannesburg called Tikwelo House. The occupiers are represented by the Legal Resources Centre (LRC). The owner of the building, Changing Tide Properties, applied for the eviction of the occupiers, which was unopposed by the occupiers. However, the owner highlighted that the eviction may lead to homelessness and the High Court made an order directing the City to provide alternative accommodation to the occupiers. The Judge ordered the Sheriff to compile a list of the occupiers and directed the City to provide accommodation, in the form of temporary emergency shelter to "all those whose names appear" on that list, by no later than the date of eviction. The eviction order thus occurred in circumstances where the City had a) not investigated the occupiers’ circumstances or need for alternative accommodation and b) had not applied its mind to the occupiers' circumstances and reported back to the court on the steps it had taken, and could in future take, to provide accommodation to those of the occupiers who require it.

SERI's submission argued that the High Court ought to have called for evidence of the occupiers’ needs and circumstances, and should have given the City an opportunity to say when accommodation, if needed, could be provided. The High Court would then have been able to make a just and equitable order. SERI argued that the SCA should not simply set aside the aspects of the order placing obligations on the City, and that appropriate relief is that which encourages the City to confront its obligations and the needs of the occupiers. SERI argued that the appropriate order would be one that directs the City to take the necessary steps, by a specific deadline, to provide temporary emergency shelter to the persons identified in the application to introduce new evidence, and those occupying through and/or under them. The execution of the eviction order handed down by the High Court should be delayed until two weeks after the deadline by which the accommodation is provided.

The SCA hearing was on 21 August 2012, and counsel for the amicus curiae were Stuart Wilson and Irene de Vos. Judgment was handed down by the SCA on 14 September 2012. The SCA remitted the application for eviction to the High Court, in order for the lower court to determine the date when all of the occupiers are to be evicted from the building as well as the terms on which the City is to provide temporary emergency accommodation to those facing homelessness (by no later than two weeks prior to the date of the eviction order). The SCA instructed the LRC to furnish the City’s legal representation with a list of its clients who require temporary emergency accommodation, together with their names, ages, family circumstances, sources of income and appropriate proof of identity. The SCA directed the City, by no later than 31 October 2012, to deliver a report to the High Court, detailing the accommodation it will make available to the occupiers. According to the SCA, this accommodation “must be in a location as near as feasibly possible to the area where Tikwelo House is situated and the report must specifically deal with the issue of proximity and explain why the particular location and form of accommodation has been selected.”

Enforcement order

The eviction date was set for 13 May 2013 by agreement (with the City to provide temporary alternative accommodation before this time), however on 7 May the City made it clear that, due to what it viewed as difficulties encountered with its managing agent, the buildings were not, and would not be, available for the occupiers to move into by the date set for the eviction. According to the City, the basis for the difficulty was that the house rules enforced by the managing agent are being challenged in another matter (see Ekuthuleni case here). The owner of the building indicated that it would evict the occupiers regardless. The LRC decided to approach the court on an urgent basis to compel the City to provide the occupiers with temporary emergency accommodation or to prevent the occupiers from being evicted should the application to compel be not successful. The court ordered that the date of eviction be moved to the end of May 2013 and ordered the City to specifically facilitate the access of the applicants to the buildings allocated for their accommodation. Importantly, the court authorised the Sheriff to “take the necessary steps to gain entry to the buildings” known as Ekuthuleni and Linatex should the City have not provided access to the occupiers by 29 May 2013.

  • LRC media statement on enforcement order (15 May 2013) here.
  • SERI media statement (18 September 2012) here.
  • Judgment (14 September 2012) here.
  • Amicus heads of argument (26 July 2012) here.
  • Practice note (26 July 2012) here.
  • List of authorities (26 July 2012) here.