Courts have obligation to look at all factors before granting eviction orders


Courts have obligation to look at all factors before granting eviction orders

Ernest Mabuza | 2017-06-08 16:04:59.0

The Constitutional Court in Johannesburg. File photo.


Courts have an obligation to consider all relevant considerations before ordering an eviction‚ in cases where an unlawful occupier has purportedly consented to his removal.

The Constitutional Court made this finding on Thursday as it rescinded a 2013 order made by the high court evicting 184 occupiers from a block of flats in Johannesburg.

The decision has been described as momentous by the Socio-economic Rights Institute (SERI)‚ which represented the occupiers.

A property developer‚ Calvin Maseko‚ had bought the property from the liquidators of a company which owned the flat. Maseko intended to spend R3m to refurbish the property and offer residential apartments for rent.

He has been unable to do this as occupiers still remain on his property.

When the high court granted an eviction order “by agreement” in 2013‚ it had been informed by lawyers for the liquidators and a ward committee member that occupiers had consented to an eviction order.

However‚ 180 of the 184 occupiers said they did not consent to their eviction. They said they only sent four of their members to court to seek a postponement to enable them to get legal representation to contest their eviction.

Their application to rescind the eviction order was dismissed by the high court and the Supreme Court of Appeal.

In its order‚ the Constitutional Court also sent the eviction application back to the high court to deal with the matter on an urgent basis.

The court also joined the City of Johannesburg as a party to the case. An earlier order by the court requires a municipality to provide alternative accommodation if an eviction would result in occupiers being left homeless.

The court also ordered the city to file a report with the high court on its steps to provide alternative accommodation in the event of eviction.

In a unanimous judgment‚ Acting Justice Phineas Mojapelo said courts seized with eviction matters were enjoined by the Constitution to consider all relevant circumstances.

He also said when the high court granted the eviction order‚ it was not aware that there were 180 occupants who were absent and did not consent.

Mojapelo said Maseko’s right to property also enjoyed protection under the Constitution.

Mojapelo said the effect of the law dealing with protection of unlawful occupiers should not be to expropriate the rights of the landowner in favour of the unlawful occupier.

“Properly applied‚ (the law) should serve merely to delay or suspend the exercise of the landowner’s full property rights until a determination has been made whether it is just and equitable to evict the unlawful occupiers and under what conditions‚” Mojapelo said.

SERI director of litigation Nomzamo Zondo said the judgment meant courts were now forbidden from making eviction orders – even if they had been agreed to – until those under threat of eviction were able to exercise their rights‚ and until a judge could be sure no one would be left out on the streets.

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