Brief Summary

Eviction — Unlawful occupation — Just and equitable eviction under the PIE Act — Applicants, comprising approximately 170 families, unlawfully occupied land owned by Golden Thread Ltd in Tshwane and sought to appeal an eviction order granted by the High Court. The High Court concluded that the eviction was just and equitable, considering factors such as the lack of vulnerable occupants and the availability of alternative housing. The Constitutional Court granted leave to appeal, determining that the High Court's assessment of the eviction's justness and equity required further scrutiny, particularly in light of the constitutional implications regarding housing rights and the responsibilities of local government.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for leave to appeal and, if granted, an appeal against an eviction order made under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The proceedings were heard and determined by the Constitutional Court of South Africa.

The applicants were approximately 170 families who were unlawful occupiers of land described as Portion R25 of the Farm Mooiplaats 355 JR within the jurisdiction of the City of Tshwane Metropolitan Municipality. The first respondent, Golden Thread Limited, owned the land and had obtained an eviction order in the North Gauteng High Court, Pretoria. The City of Tshwane was the second respondent. The Minister for Human Settlements and the MEC for Local Government and Housing, Gauteng were joined as the third and fourth respondents respectively at the instance of the Constitutional Court.

The procedural history was that Golden Thread instituted eviction proceedings in the High Court, which granted an eviction order (including authorising demolition and sheriff-assisted eviction and awarding costs). The applicants’ attempts to obtain leave to appeal to the Supreme Court of Appeal were unsuccessful (leave having been refused). The applicants then approached the Constitutional Court for leave to appeal, contending in substance that the High Court was wrong to conclude that eviction was “just and equitable” as required by section 4(6) of PIE.

The general subject-matter was the constitutional regulation of eviction under PIE (enacted to give effect to section 26(3) of the Constitution) and the associated question of the municipality’s role in providing information and, where necessary, emergency accommodation or other measures to avoid homelessness when eviction is sought.

2. Material Facts

It was common cause that the applicants occupied the relevant land unlawfully, and that Golden Thread was the owner of the land. The High Court approached the matter on the basis that the right of access to adequate housing is not enforceable against a private landowner, and that the decisive inquiry under PIE was whether eviction would be just and equitable.

The background relied upon by the High Court and referenced in the Constitutional Court’s analysis was that the Itireleng informal settlement had been established in 2004. When Itireleng became overcrowded, some occupiers (and possibly others from elsewhere) moved onto adjacent property and were evicted during 2009.

The applicant families moved onto the land in issue during December 2009. Their homes were demolished, after which they began rebuilding on 15 January 2010. Golden Thread initiated eviction proceedings in the High Court on 21 January 2010. At the time proceedings were initiated, the occupation had therefore endured for less than six months, bringing the matter within section 4(6) of PIE (rather than section 4(7)).

The High Court recorded various factors in its assessment of justice and equity, including that the applicants had been on the land for a short time and that there were no services or infrastructure on the land. The High Court also stated that there did not appear to be any elderly persons, children, disabled persons, or households headed by women on the land. It further took into account that most occupiers were said to have occupied in contempt of a court order and that Golden Thread had instituted proceedings quickly. The High Court considered it significant that the City owned vacant land adjacent to Itireleng which could accommodate the occupiers.

A further material factual feature, emphasised in the Constitutional Court’s account, was the High Court’s recorded concern that the City was largely absent from the proceedings and did not assist the court with information relevant to eviction and the potential consequences for occupiers who might be rendered homeless.

3. Legal Issues

The central legal question for determination was whether the High Court was correct in concluding, under section 4(6) of PIE, that eviction of the applicants was just and equitable in all the relevant circumstances.

The dispute primarily concerned the application of law to fact and the content of the “just and equitable” inquiry under PIE, particularly in circumstances where eviction of a large number of occupiers would probably result in homelessness. This required an evaluative determination informed by constitutional obligations underlying PIE.

A key subsidiary issue was whether, despite the occupation being for less than six months (and thus not triggering the express requirement in section 4(7) to consider whether land has been made available or can reasonably be made available for relocation), the High Court was nonetheless required, as part of considering “all relevant circumstances” under section 4(6), to obtain and consider information from the municipality about the occupiers’ housing situation and the municipality’s capacity to provide emergency accommodation or alternative land.

A further issue raised in the applicants’ submissions, and addressed by the Constitutional Court, was the role of the municipality in relation to mediation under section 7 of PIE, and whether this should have been explored as part of a proper approach to justice and equity in eviction proceedings.

4. Court’s Reasoning

The Constitutional Court first addressed jurisdiction and leave to appeal. It reasoned that PIE was enacted to give effect to section 26(3) of the Constitution, which means that the interpretation and application of PIE raise a constitutional matter. It also held that it was in the interests of justice to grant leave to appeal because there were prospects of success and because the case concerned the potential homelessness of a large number of families.

Before turning to the merits, the Court expressed concern about the manner in which occupiers had been cited in the High Court papers (as “people who intend invading” and “people who invaded”). The Court considered this form of citation emotive and dehumanising, and stated that a neutral description such as “occupiers” would be more appropriate.

On the merits, the Constitutional Court focused on the applicants’ submission regarding the role of the City. It accepted that, given the likelihood that eviction would render many families homeless, the High Court should have required the City to provide particulars of the applicants’ housing situation and information about whether emergency accommodation could be provided. The Court held that although the High Court criticised the City’s conduct, it did not oblige the City to investigate and furnish the necessary information, nor was the question of mediation explored.

In addressing a dispute between the City and the MEC concerning responsibility for financing emergency housing, the Court relied on its then-recent decision in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae). It adopted the position that the City has both the power and the duty to finance its own emergency housing scheme from its own resources, and that the right to seek provincial assistance does not relieve the City of that responsibility. The Court therefore proceeded on the basis that the City was obliged to make reasonable provision for emergency housing within its means.

The Court drew support from the Supreme Court of Appeal decision in Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others, which had stressed the importance of joining the municipality and obtaining information relevant to the needs of vulnerable groups and the availability of alternative land, and had also emphasised mediation. The Court acknowledged that Shorts Retreat was distinguishable in that it concerned occupation longer than six months and thus engaged section 4(7) expressly. However, the Court held that this distinction was not decisive, because even under section 4(6) a court must consider all relevant circumstances, and a likely consequence that nearly 200 families would become homeless made the municipality’s capacity to provide alternatives a crucial relevant circumstance.

The Court reasoned that the High Court could not properly conclude that eviction was just and equitable without investigating whether the City could reasonably provide alternative land or housing, particularly because the High Court itself had noted the existence of vacant City-owned property adjacent to Itireleng that might be used. The absence of municipal information meant that a key component of the justice-and-equity inquiry had not been adequately undertaken.

The Court further cautioned against an approach that treated private ownership as virtually unlimited in eviction matters. Referring to Blue Moonlight, it reiterated that an owner’s common-law right to use and enjoy property can be temporarily restricted as part of PIE’s justice-and-equity enquiry. It also noted the relevance of the fact that Golden Thread had not put the land to any use and there was no evidence that it intended to do so in the foreseeable future; if that were so, the prejudice to Golden Thread of continued occupation for some additional months (pending municipal provision of alternative accommodation) might be limited. This consideration reinforced the need for a properly informed, balanced assessment rather than an eviction order granted without municipal input.

Given these deficiencies, the Court concluded that the appeal had to succeed. It held that the appropriate course was to set aside the eviction order and remit the matter to the High Court for fresh consideration after the City had provided a report dealing with the applicants’ housing situation and the feasibility and timing of emergency accommodation or alternative land, and after the parties had been given an opportunity to respond.

5. Outcome and Relief

The Constitutional Court granted leave to appeal and upheld the appeal with costs, including the costs of two counsel. It set aside the order of the North Gauteng High Court (case number 3492/2010) and remitted the matter to that court for reconsideration.

The Court ordered the City of Tshwane Metropolitan Municipality to file, in the High Court and confirmed on affidavit by 28 February 2012, a report addressing the applicants’ housing situation (including how many families would be rendered homeless), the steps taken and intended to provide alternative land or emergency accommodation, when such accommodation could be provided, the effects of eviction without alternatives, and steps to alleviate the effects of continued occupation on the landowner if eviction were delayed until alternatives were available.

The applicants and Golden Thread were granted leave to file affidavits responding to the municipal report within 15 days of its delivery.

Cases Cited

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) [2011] ZACC 33 (1 December 2011).

Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others 2010 (4) BCLR 354 (SCA).

Golden Thread Limited v People who intend invading Portion R25 of the farm Mooiplaats 355JR Tshwane, Gauteng and Others [2010] ZAGPPHC 262 (North Gauteng High Court, Pretoria, Case No. 3492/2010, 2 March 2010) (unreported).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 26(3).

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, sections 4(6), 4(7), 4(8), and 7.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the High Court’s conclusion that eviction was just and equitable could not stand because the High Court did not require the municipality to provide information central to the justice-and-equity inquiry, despite the likelihood that eviction would render a large number of families homeless. Even where occupation is for less than six months (section 4(6) of PIE), the court must consider all relevant circumstances, and municipal capacity to provide emergency accommodation may be decisive in that assessment.

The Court held further that the City has the power and duty to make reasonable provision for emergency housing from its own resources, and that ownership rights may be temporarily restricted in the justice-and-equity balancing mandated by PIE. The eviction order was set aside and the matter was remitted for reconsideration after the City filed a detailed report and the parties responded.

LEGAL PRINCIPLES

The judgment applied the principle that PIE, giving effect to section 26(3) of the Constitution, requires a court to determine whether eviction is just and equitable after considering all relevant circumstances. This inquiry is not satisfied by formal reliance on unlawfulness of occupation and the landowner’s common-law entitlements, but must include a context-sensitive assessment of consequences, particularly the risk of homelessness.

The Court applied the principle that, notwithstanding the textual distinction between sections 4(6) and 4(7) of PIE, a court dealing with occupation of less than six months must still identify and evaluate all circumstances that are relevant to justice and equity. Where eviction will probably render a significant number of occupiers homeless, the municipality’s ability to provide alternative land or emergency accommodation is a relevant circumstance that must be properly investigated and placed before the court.

The Court applied the principle (affirmed in Blue Moonlight) that a municipality has both the power and the duty to finance and implement reasonable emergency housing measures from its own resources, and cannot avoid that obligation by contending that the province bears sole responsibility. The municipality must plan and budget proactively for emergency housing needs.

The judgment applied the principle that an owner’s rights in property are not absolute in eviction matters governed by PIE: an owner may, in appropriate circumstances, be required to show patience and accept temporary restriction of use and enjoyment while constitutionally compliant solutions (including municipal emergency accommodation) are arranged as part of a just and equitable outcome.

Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Ltd and Others (CCT 25/11) [2011] ZACC 35; 2012 (2) SA 337 (CC); 2012 (4) BCLR 372 (CC) (7 December 2011)