A brief discussion of the latest Constitutional Judgment on the Act – the matter of Occupiers of Erven 87 and 88 Berea v De Wet, Christiaan Fredrick N.O and Another CCT 108/2016:
This judgment deals with relevant circumstances that must be considered by the court, even if the order for eviction is made in terms of a settlement agreement, by consent.
It is important to bear in mind the provisions of Section 26 of the Constitutional Court set out below.
“26 Housing – (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of the right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
In the De Wet Judgment by the Constitutional Court handed down on the 8th of June 2017 an application was brought for leave to appeal against the judgment of the High Court in JHB. The High Court refused to rescind an eviction order that had been granted against 184 men, women and children (occupiers) who occupied a block of flats. The property was owned by Rocha Investments CC since 1985. The first and second respondents were appointed as joint liquidators of the Close Corporation. Mr. Maseko purchased the property from the liquidators and intended to restore the property as residential accommodation. In January 2013 a preliminary notice of eviction was served on the occupiers and a court order obtained authorizing the service of the eviction application on the occupiers in terms of Section 4(2) of PIE.
After receiving the Notice of the date the occupiers appointed Mr. Magubane and four of the Occupiers were present. Counsel for the Liquidators informed the Court on the date of hearing that a settlement agreement was reached and that the occupants will vacate the property in terms of the settlement reached. The draft order was then made an order of Court by agreement with Mr. Magubane and the other four Occupants confirming the draft order. The occupiers then obtained legal representation when they realized that they now have to vacate the property, on the basis that they only authorized Mr. Magubane to postpone the initial application and that he was not mandated to settle the matter on their behalf. The brought an application for rescission of the eviction order granted against them. The High Court refused the application for leave to appeal and a petition was lodged to the Supreme Court of Appeal to grant leave to appeal. This application too failed. The Constitutional Court was then approached for assistance.
The occupiers’ arguments can be summarized as follow:
- There was no consent by all the occupiers to settle the matter and that even if there were consent that the consent was no valid.
- They further argued that the Court dealing with their eviction was under the Constitutional and Statutory obligation to satisfy itself that the eviction would nevertheless be just and equitable after considering all the relevant circumstances.
- As such they sought a rescission of the order under Rule 42 of the Uniform Rules of Court and the common law.
The Liquidators in turn argued that:
- The Occupiers did not have any right to occupy the Property and had failed to disclose any defense.
- They also argued that the occupiers failed to take any steps to secure alternative accommodation and were represented in Court when the eviction order was made.
- Lastly the Liquidators contended that the Occupiers had failed to establish efficient cause for rescission of the consent order at common law.
There was a further party joined as friend to the court known as The Poor Flat Dwellers Association who submitted that even where parties in eviction proceedings seek to have an eviction order by agreement granted, such consent does not relieve the court of its obligation to perform the judicial oversight function imposed by PIE.
The Constitutional Court handed down a unanimous judgment through Mojapelo AJ, the thrust of the judgment is the following:
- Any agreement which waivers any Constitutional Right must be just and equitable and local authorities must be joined and take an active part in the process.
- Section 26(3) of the Constitution read with the PIE Act obliges a court to establish for itself whether it will be just and equitable to make the eviction order. The Court must take active part in making this finding. The PIE act has numerous Sections which refers to “the Court must…” The legislator clearly intended for the Court to play an active role before granting an eviction order.
- The Court added that the court should satisfy 2 enquiries, firstly whether the eviction order will be just and equitable and then to decide what the commencement date of the order should be.
- It is not however just the duty of the Court in the process but the onus of all the parties to make available all relevant and adequate information of the relevant circumstances to assist the Court in making a just and equitable finding.
- The Court was clear that where there are no or inadequate information the Court MUST NOT make an eviction order. The Court cannot enforce an agreement if all the relevant facts are not known to the Court even if it is a settlement agreement.
- It was confirmed by the Learned Judges that the PIE Act does not necessitate a joinder of the Municipality to an eviction application however Section 26 of the Constitution places a duty on the Municipality (local authority) to provide occupation to all in need of it. For practitioners this point is important as it seems where there is any signs that the Respondent might, once an eviction order is grant against him/her, become homeless it will be necessary to join the Municipality to the proceedings.
- In the Law “a valid defense” is a defense which is good in law. A defense that someone will be homeless if evicted is not a defense good in law. This was also the argument of the Liquidators. The Court disagreed and indicated that homelessness must be taken into account and it indeed a consideration of execution of the eviction. Where it will be unjust and inequitable then the defense of homelessness is indeed a valid defense.
- In respect of the settlement agreement the court held that the Court must still investigation whether enforcing the agreement will be just and equitable and only after making careful considerations of all the circumstances can the court enforce the agreement, if it will be just and equitable to do so.
- Finally the settlement agreement which was made an order of court by the Court a quo was rescinded. The Constitutional Court, after joining the Municipality as a Respondent referred the matter back to the High Court to make proper enquiries into whether it will be just and equitable to grant an eviction order.
For land owners the Court gave some hope when commenting that the PIE act does not seek to frustrate land owners or to emphasize illegal occupants rights above those of land owners, but rather the delay the right of an owner to ensure that the occupants, who are usually indigent persons, will not be left destitute and out on the street.