21 January 2009

The eviction balancing act

South Africa prides itself on being "a society based on democratic values, social justice and fundamental human rights". These fundamental human rights are given clear prominence in our Constitution. Amongst the fundamental rights enshrined are those to property and housing.

The housing problem in South Africa has become one of the most pressing socio-economic issues of our time. At its core however, it remains a conflict between three fundamental rights in the Bill of Rights:

  • Section 24(1) - "Everyone has the right: a) to an environment that is not harmful to their health or well-being".
  • Section 25(1) - "No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property".
  • Section 26(1) - "(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 realisation of this right".

On 12 September 2008, the High Court (the Court) handed down judgment in the matter of Blue Moonlight Properties v The Occupiers of Saratoga Avenue and the City of Johannesburg (Blue Moonlight) (as yet unreported). In this matter the Court was faced with an application brought by the unlawful occupiers of certain property, for an order requiring the City of Johannesburg (the City) to provide the unlawful occupiers with housing, should they be evicted from their homes by a private property developer. The City opposed the application, contending that it had neither the obligation nor the resources to provide accommodation to persons evicted from private land.

In essence, the Court held that the City is under an obligation to provide interim or emergency shelter not only to persons evicted in terms of its own programmes, but also those evicted from private property in terms of Prevention of Illegal Evictions Act. The Court held that the City cannot hide behind its own housing programmes in an attempt to escape its obligations towards the unlawful occupiers and the property owner and found further that this is "tantamount to a failure by the City to comply with its constitutional obligations".

The Court postponed the matter indefinitely, in order to give the City an opportunity to make the necessary arrangements for the illegal occupants to be evicted when the City has secured alternate accommodation for them. In effect, this means that the private property owner's application for eviction of unlawful occupiers is being 'put on ice' even though it is common cause that the illegal occupants have no legal right to occupy the premises from which they are to be evicted.

It is arguable that the Court's order shows a striking disregard for the rights of the private property owner and the fact that while the City dawdles in arranging its affairs, the private property owner is being deprived of its property and kept out of pocket. Although the Court accepted that the private property owner is suffering prejudice and mentions the possibility of awarding constitutional damages to it, it still failed somehow to strike a balance between the rights of the owner on the one hand and the unlawful occupiers on the other.

It is time for the legislature to address this issue by promulgation of a new and comprehensive property rights act. It has become imperative that our courts are given clear and effective remedies to deal with the failure of the different role players in these disputes to ensure that one man's rights are not upheld at the expense of another's.

Marianne du Toit-Scholtz and Albert Aukema

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