Obligation to consider alternatives to eviction into homelessness

Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Limited and Others (CCT 25/11) [2011] ZACC 35 (7 December 2011)

Summary

In this case, if evicted, approximately 170 families would be made homeless. The South African Constitutional Court unanimously held that, before making eviction orders, the High Court should have considered whether the local authority – the City of Tshwane Metropolitan Municipality – was able to provide alternative land or accommodation to the occupiers.

The Constitutional Court found that the High Court’s failure to require the City to present information about alternative land was a failure to properly assess whether the eviction was ‘just and equitable’. The eviction order was therefore not in accordance with South African legislation that protects against arbitrary evictions. The Constitutional Court remitted the matter to the High Court and ordered the City to provide information about the circumstances of the occupiers and steps it could take to provide alternative land or accommodation if the eviction were to proceed.

Facts

The applicants were approximately 170 families who had occupied land within the City since December 2009. The land is owned by Golden Thread Limited (Golden Thread). Eviction proceedings commenced on 21 January 2010, and on 2 March 2010 the North Gauteng High Court, Pretoria, ordered the occupiers’ removal from the land. The occupiers subsequently sought leave to appeal to the Constitutional Court.

Under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE Act), if an unlawful occupier has occupied land for less than six months when proceedings commence, a court can grant an order for eviction – if it is ‘just and equitable to do so’ after considering “all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women”. If the land has been occupied for more than six months, the PIE Act requires the court to also investigate whether the municipality in question can reasonably make other land available for the relocation of the unlawful occupier.

The PIE Act was enacted to give effect to the South African Constitution, which protects the right to adequate housing. Section 26 of the Constitution provides that:

• Everyone has the right to have access to adequate housing.
• The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
• No one may be evicted from their home, or have their home demolished, without an order from the court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Although joined as a party, the City did not take part in the High Court proceedings and did not present any information about the steps that could be taken to avoid the families being made homeless by the eviction.

Decision

The Constitutional Court granted leave to appeal because the matter raised constitutional issues and, as homelessness was at stake for a large number of families, it was in the interests of justice to do so. The Constitutional Court considered whether the High Court was correct to decide that to evict the families would be just and equitable.

The Constitutional Court found that since “[c]lose to 200 families would have been evicted and in all probability rendered homeless” the High Court should have directed the City to provide details of the applicants’ housing situation and whether the City could provide emergency housing. Although not expressly required by the PIE Act (because the applicants had occupied the land for less than six months), the Constitutional Court held that this information forms part of ‘the relevant circumstances’ that the court is required to consider when determining whether an eviction is just and equitable.

The Constitutional Court affirmed the decision in Blue Moonlight (discussed above) which held that the City has the power and the responsibility to make reasonable provision for emergency housing from its own resources.

The Constitutional Court handed down its judgement upholding the appeal on 7 December 2011 and remitted the matter to the High Court for reconsideration. The Constitutional Court ordered the City to provide further information by 28 February 2012, including information about:

• the circumstances of the applicants, including the number of families that would be made homeless if the eviction proceeds, and the consequences of eviction for the applicants if no alternative land or emergency accommodation is made available;
• steps that the City could take to provide alternative land or emergency accommodation if the applicants were evicted and the timeframes in which it could do this; and
• steps that could be taken to minimise the impact on Golden Thread if the eviction of the applicants were delayed to give the City time to make available alternative land or accommodation.

Relevance to the Victorian Charter

Section 13(a) of the Charter protects individuals against unlawful or arbitrary interferences with their privacy, family or home. Section 17 of the Charter protects the rights of children and families.

Although the Charter does not expressly protect the right to adequate housing, these sections can be relied on to help prevent the unlawful eviction of people from social housing into homelessness. In negotiating alternatives to eviction, advocates can point to these sections and to section 38, which obliges public authorities (such as local councils, government departments and social landlords) to act compatibly with, and give proper consideration to, human rights in decision-making processes.

Public authorities must balance their priorities and competing objectives – including fiscal concerns, the acute shortage of public housing and the need to manage properties – with the vulnerabilities of the individual or family and the severity of the consequences of eviction for them. Under section 7(2) of the Charter, a limitation on rights is permissible if it is reasonable and justifiable.

This case highlights how crucial this balancing exercise is for fair, accountable decision-making. The Constitutional Court did not compel the City to provide land or housing to the applicants; it simply found that the opaque manner in which the City approached the eviction proceedings was inconsistent with South Africa’s protection against arbitrary evictions. This case reminds us that the protection of economic and social rights is not an absolute protection: there is not a blanket obligation to provide housing, but the city was required to properly consider viable alternatives to rendering 170 families homeless.

Legislation that expressly requires the City to contemplate alternatives to eviction and confers on courts the power to refuse to make an eviction order unless such alternatives have been considered provides strong and necessary protection against arbitrary evictions. In this way, the case provides an example of how Victoria’s Charter could be strengthened to encourage better decision-making by public bodies and fairer outcomes for vulnerable citizens.

The decision is available at: http://www.saflii.org/za/cases/ZACC/2011/35.html

Lauren Hodes is a lawyer seconded to the PILCH Homeless Persons’ Legal Clinic from Victoria Legal Aid and Lucy Adams is a Senior Lawyer at the PILCH Homeless Persons’ Legal Clinic