In a landmark judgement by the South African Constitutional Court, Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet, the Court found that eviction orders that will lead to homelessness are unjust and inequitable, and accordingly, unconstitutional. This applies even in cases where there is an eviction agreement.
Among the most vulnerable people in South Africa, are those who do not have title over their homes, the majority of whom are Black; the most vulnerable, Black women and children in the inner-city flats. In the past, these communities could be summarily evicted and subject to criminal prosecution for unlawful occupation. However, section 26(3) of the post 1994 Constitution protects them by prohibiting arbitrary evictions and requiring all relevant circumstances to be considered in the granting of eviction orders. Essentially, under the new constitutional dispensation, the right to property must be balanced with the rights and interests of these communities. In this way, the right to property is construed against the background of the land hunger and homelessness rooted in the colonial and apartheid dispossession of Blacks. To give effect to section 26(3) of the Constitution, the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (PIE) provides that evictions can only be granted if it is just and equitable to do so.
However, there are millions of flat dwelling communities in South Africa’s inner cities who are under a constant threat of eviction, do not have legal representation, and may not be aware of their rights under the Constitution and PIE. This makes them vulnerable to unscrupulous dealings by property owners and other parties. The applicants in this case were 184 residents in a block of flats in inner-city Johannesburg, most of whom were low income earners or unemployed. It was alleged that the community had consented to an eviction agreement with the owner of the property. Taking this at face value, the lower court issued an eviction order based on the purported eviction agreement. Before the Constitutional Court, the community contested the eviction order and argued that it was erroneously granted because they had not consented to the eviction agreement. In the alternative, they argued that even if there was consent, the eviction order should not have been granted because it was not just and equitable to do so as the eviction would have rendered them homeless.
In relation to evictions by agreement, the Court held that for consent to be legally valid, it must be free, voluntary and informed. For consent to be informed, the parties must be aware of their rights under the Constitution and PIE, in particular, they must be aware that: an eviction can only be granted after all relevant circumstances have been considered; that they have a right to a just and equitable order; that they have a right to have the local municipality joined in eviction proceedings to trigger its Constitutional obligation to provide temporary alternative accommodation; that they have a right to temporary alternative accommodation in the event that the eviction would result in homelessness. The Court stressed the importance of informing residents of their rights to legal representation and legal-aid in eviction proceedings to ensure that they are aware of these rights. On the facts of the case, the Court found that the community was unaware of these rights and it did not have legal representation to assist. Accordingly, the eviction by agreement was invalid due to a lack of consent.
Furthermore, the Court made it clear that judges cannot rubber stamp eviction orders, they must ensure that they have all the relevant information to enable them to determine whether granting an eviction order would be just and equitable. In exercising this duty, judges had to play an active role in the adjudication process, going beyond their normal functions and engaging in active judicial management. This duty applies equally to cases where the parties purport to consent to the eviction. In this case, the Court made it clear that the risk of homelessness would render an eviction order unjust and inequitable, even if there had been a valid agreement to the eviction.
While many local municipalities in South Africa’s large cities are pushing for ‘urban renewal’, poor, mostly Black people are being evicted from their homes. This judgement goes a long way in protecting their right to a home. It exposes the power imbalance between occupiers and owners of property and requires the courts to be proactive in addressing this by soliciting all the relevant circumstances to ensure that a just and equitable finding is made. It asks us to reimagine the right to property in way that will draw us closer to the transformative vision of an egalitarian society in which everyone has a safe and dignified home.