eviction application - just and equitable - South Gauteng High Court

SERI represents the occupiers of a property in Fairlands, Johannesburg, who are facing eviction by the owner, All Building and Cleaning Services CC, which is a property development company. The occupiers include two 71 year-old individuals who had worked for the previous owner of the property and lived on the property for 44 years. The occupiers earn very little and are at risk of becoming homeless if evicted. The property owner is requesting the eviction in order to redevelop the property for higher-income persons.

The occupiers argue that the eviction application should be set aside on equitable grounds. To prevent the threat of homelessness the occupiers argue that the owner should allow them to reside on a small portion of the property, or to accommodate them in the redevelopment through the provisions of the Inclusionary Housing Policy (IHP). Alternatively, the occupiers argue that the City is obliged to provide them with temporary alternative accommodation, and the municipality is also joined to the proceedings.

The eviction application comes in the wake of an attempted illegal eviction which took place on Freedom Day last year on 27 April 2013. On that day, a group of men descended onto the property and attempted to remove the roof of the occupiers’ home.

On 9 October 2014 SERI filed papers opposing the eviction application. The case was heard in the South Gauteng High Court on 15 October 2014.

On 16 January 2015 judgment in the case was handed down by Acting Judge Paul Carstensen, who dismissed the application with costs. According to him, taking into account the circumstances and factors set out in section 4(7) of the PIE Act - including the length of time which the residents have occupied the premises, 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]”.

Judge Carstensen further argued that the onus is on the owner to show that an eviction would be just and equitable, however the owner 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, he found that the owner had also made no attempt to satisfy the court on this issue, or to assist the residents in any way. He stated that believed there would be “very little prejudice” if, as part of the development, the owner had offered to build the residents a suitable home. 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.

The owner applied for leave to appeal the judgment, which was heard on 18 February 2015. On 2 April 2015 the application for leave to appeal was dismissed with costs.

• Occupier's notice of intention to oppose leave to appeal (9 February 2015) here.
• Owner's application for leave to appeal (5 February 2015) here.
• SERI press statement (16 January 2015) here.
• Judgment (16 January 2015) here.
• Occupiers' written submissions (9 October 2014) here.
• Section 4(2) notice (14 August 2014) here.
• High Court order (13 August 2014) here.
• Exparte application (13 August 2014) here.
• Applicant's heads of argument (20 June 2014) here.
• Owner's replying affidavit (12 March 2014) here.
• Occupier's answering affidavit (3 March 2014) here.
• Occupier's notice of intention to defend (3 December 2013) here.
• Owner's notice of motion and founding affidavit (13 November 2014) here.