unlawful eviction - inner city of Johannesburg - Johannesburg High Court

SERI acts for 253 poor and homeless men, women and children who were evicted from their homes at Chung Hua Mansions, 191 Jeppe Street, Johannesburg by the owner with the assistance of a private security company and the police. There was no court order authorising their eviction. Their application to reverse their unlawful eviction was dismissed by Judge Maluleke on 20 August 2010. They then turned to a full bench of the Johannesburg High Court requesting that the judges overturn Judge Maluleke’s decision.

At issue in the appeal was whether (as the police, the owner and the security company alleged) the residents consented to leave the property or whether (as Judge Maluleke found) the respondents were lawfully counter-spoliated. Counter-spoliation is a legal remedy which allows a person to forcibly re-take possession of property unlawfully taken from them. It is only allowed if the property was in the process of being taken from a person at the time that they re-took it. Counter-spoliation is an instantaneous 'snatching back' of property unlawfully taken. The residents argued that they were not lawfully counter-spoliated of their homes because they had been living in them for periods of up to five years – long before the owner, Changing Tides, bought the property. They also say that they were beaten out of the property by the owner, the security guards and the police and had to seek medical attention after their eviction.

The case was heard on 1 December 2010, and a unanimous judgment was handed down on 3 December by Judge Claassen, Judge Blieden and Acting Judge Ngalwana. This order reversed the illegal eviction and held the owner, private security company and station commander of Johannesburg Central Police Station in contempt of court. The owner subsequently applied for leave to appeal at the SCA, however this application was dismissed with costs.

The owner then launched a fresh application in the High Court, seeking a court order evicting the occupiers from the property and directing the City to provide alternative accommodation to certain of the occupiers. The occupiers sought an order that directs the City to provide all the current 250 occupiers with alternative accommodation, in a location as near as feasibly possible to the property and where they may live secure against eviction, not later than 5 months from the date of the Court’s order (in line with the Blue Moonlight judgment). In terms of the issue of who qualifies, SERI argued that, in the absence of any rational criteria (or any criterion at all) by the City for who gets temporary shelter, the only relevant criterion is that the eviction would lead to homelessness without alternative accommodation.

The case was heard on 14 June 2012 by Judge Claassen, who handed down judgment on the same day. He ordered the City to provide alternative accommodation to all of the Chung Hua occupiers in a location as close as possible to their current location, where they may reside “secure against eviction”, by no later than 30 January 2013. The City must report to the Court, identifying the nature and location of the alternative accommodation, by no later than 31 October 2012. The order also authorises the eviction of the occupiers by no later than 15 February 2013.

On 20 December 2012, SERI launched an enforcement application to declare the Executive Mayor, the City Manager and the Director of Housing of the City of Johannesburg, in their respective capacities, constitutionally and statutorily obliged to take all the necessary steps to make sure than the City complies with the order granted by Judge Claassen in June 2012. Read more on the Hlophe case here.

• SERI press statement (14 June 2012) here.
• High Court judgment (14 June 2012) here.
• Heads of argument (11 June 2012) here and practice note here.
• "Occupants win appeal on eviction", Business Day (6 December 2010) here.
• SERI press release here.
• Judgment (3 December 2010) here.
• Appellants' Heads of Argument (1 November 2010) here.
• Appellants' Practice Note (1 November 2010) here.