Public Authorities Must Consult with People before Evicting Them

Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg CCT 24/07 [2008] ZACC 1 (19 February 2008) ‘Human beings are required to be treated as human beings.’

A simple statement.  A self-evident truth?

In a landmark judgment of the South African Constitutional Court, the Court’s key message was that human beings must be treated as such.  The judgment affirms the basic principle that where people face homelessness due to an eviction, public authorities should engage seriously and in good faith with the affected occupiers with a view to finding humane and pragmatic solutions to the dilemma.  Respectful, face to face engagement gives meaningful enjoyment of the right to adequate housing in the South African Constitution.

The judgment, handed down on 19 February 2008, marked the end of an epic struggle of around 400 occupiers of so-called ‘bad-buildings’ in the inner city of Johannesburg to resist the City of Johannesburg’s attempt to evict them for health and safety reasons under the National Building Regulations and Standards Act.  The authority had not consulted with the occupiers nor considered the probability that the occupiers would be made homeless.

The Constitutional Court ordered the parties to engage meaningfully such that the public authority could ascertain the consequences of an eviction and whether:

• the City could help in alleviating those dire consequences;
• the buildings could be rendered relatively safe and conducive to health for an interim period; and
• the City had any obligations to the occupiers in the prevailing circumstances and when and how the City could or would fulfill these obligations.

The requirement of face-to-face dialogue with people living in conditions of dire poverty and facing homelessness if evicted is both principled and pragmatic.  It affirms the foundational value of respect for each person’s inherent dignity.  It also enables public authorities and those affected to participate actively in finding solutions which are tailored to the circumstances of each case.  The parties reached consensus that the City would not eject the occupiers, that it would upgrade the buildings and provide temporary accommodation.

In requiring the local authorities to consider suitable alternative accommodation in deciding whether to proceed with an eviction, the Court effectively said that public authorities must function in a systemic, integrated manner: the relevant departments of a municipality cannot function in isolation from each other with “one department making a decision on whether someone should be evicted and some other department in the bureaucratic maze determining whether housing should be provided.”

Relevance to the Victorian Charter

While the Charter does not enshrine a right to adequate housing, this decision is significant in regards to ss 7(2) and 38 of the Charter as to how and when a public authority can limit a human right.  Specifically, the judgment means that public authorities cannot embark upon a process that limits a human right (such as the right to housing) – whatever the justification – without first considering the values and purposes underlying that right.  This consideration requires that people are heard in relation to decisions which impact on their rights and analysis of alternative solutions to the dilemma.  Further, public authorities cannot hide behind the decisions of other departments to justify a limitation on human rights.  Rather, departments must interact and work together to design flexible solutions which best protect the relevant rights.

Phoebe Knowles is a lawyer on secondment to the Human Rights Law Resource Centre from Minter Ellison