City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) BLCR 728 (W)

Eviction - the right not to be evicted without an order of court after considering all the relevant circumstances - the effect of this guarantee on statutory provisions empowering local authorities to evacuate areas in certain circumstances.

The Facts

This case concerns several applications in which the municipality sought the eviction of over 300 people (the occupiers) from six properties in the inner city of Johannesburg. The municipality (the Applicant) justified the eviction on the basis of section 12(4)(b) of the National Building Regulations and Building Standards Act 103 of 1977 (NBRA), which gives it statutory powers and duties to prevent dangerous living conditions in its area of jurisdiction. It contended that evicting the occupiers (the Respondents) from the properties would promote public health and safety and reverse inner city decay.

The occupiers opposed the eviction application, inter alia, on the following basis:

  1. They (the occupiers) are entitled to the protection of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE), and that the Court should therefore consider the availability of alternative accommodation in determining whether it will be just and equitable in the circumstances for them to be evicted.
  2. The NBRA is in conflict with section 26(3) of the Constitution as it allows for arbitrary evictions.
  3. The municipality did not afford them a fair hearing or consulted them in any way before approaching the Court.

The occupiers also instituted a counter application in which they sought the following: 

  1. A relief to the effect that the practice of securing evictions by reliance on the NBRA, the Health Act and the Fire By-Laws be declared unconstitutional as it violates section 26(3) and 9 of the Constitution.
  2. A declaration that the municipality’s housing programme fails to comply with its constitutional and statutory obligations, as it does not carter for those in desperate need.
  3. An interdict preventing the municipality from seeking to evict them until suitable alternative accommodation is provided to them, and a structural interdict to procure compliance by the municipality with its positive constitutional obligations towards the occupiers.

The Decision

The case was heard in the Johannesburg High Court by Justice Jajbhay and the judgment was handed down on 3 March 2006. The Judge focussed on the right of access to adequate housing under section 26 of the Constitution, as he found it unnecessary to deal with any of the other prayers sought in either the application or the counter application.

The judge held as follows:

  1. The consequences of rendering a person homeless in the circumstances postulated in this case have a very wide reach. It affects the very quality of a person’s life, dignity and a person’s freedom and security.
  2. A state’s duty is to immediately address the housing needs of its respective population, if any significant number of individuals is deprived of basic shelter and housing and to do otherwise is considered a prima facie violation of the right to adequate housing.
  3. The municipality’s constitutional duty, to promote a safe and healthy environment towards the general public has to be balanced with the state’s constitutional duty towards the poor and the destitute such as the occupiers in the present case. The mere establishment by the municipality that the occupation of the buildings is unhealthy or unsafe does not automatically require a court to make an eviction order.
  4. The Emergency Housing Programme, which was adopted as a result of the Grootboom judgment, requires municipalities to investigate and assess the emergency housing need in their areas of jurisdiction and to “plan proactively” thereof. The municipality does not have such a programme in place.
  5. The positive component of the right of access to adequate housing places a duty on the State to take steps to address the housing needs of the occupiers. The failure by the municipality to take steps to achieve this goal constitutes a failure to engage meaningfully with the transformative vision of the Constitution.
  6. The interest involved and specific factors relevant in the case have to be considered, which include the degree of emergency and desperation of the people, the length of occupation, any form of constructive consultation with the occupiers and the provision of adequate alternative accommodation. The municipality has not engaged in any form of constructive consultation with any of the occupiers and has not made provision for suitable alternative accommodation should it evict the occupiers.
  7. The absence of adequate housing for the occupiers and any subsequent eviction will drive them in a vicious circle to the deprivation of their employment, their livelihood and therefore their right to dignity, perhaps even their right to life.

The Judge therefore dismissed the municipality’s eviction application, and: 

  1. Declared that the housing programme of the municipality fails to comply with its constitutional and statutory obligations, as it fails to provide suitable relief for those in a crisis situation or otherwise in desperate need of accommodation.
  2. Directed the municipality to devise and implement within its available resources a comprehensive and co-ordinated programme to progressively realise the right to adequate housing to people in the inner city of Johannesburg who are in crisis situation or otherwise in desperate need of accommodation.
  3. Interdicted the municipality from evicting or seeking to evict the occupiers in question pending the implementation of the programme referred to above or until such time as suitable adequate accommodation is provided to the occupiers.

The municipality applied for leave to appeal to the Supreme Court of Appeal, which was granted. The occupiers applied for leave to cross-appeal which was also granted. The Community Law Centre together with the Centre on Housing Rights and Evictions were admitted as amici curae. The case was heard in the Supreme Court of Appeal on 20 February 2007. A summary of the Supreme Court of Appeal judgment will be posted on this website once passed.