Brief Summary

Eviction — Just and equitable eviction — Occupiers of land unlawfully occupying property in Tshwane Metropolitan Municipality sought to appeal eviction order granted to landowner — High Court ordered municipality to provide alternative accommodation but allowed eviction to proceed regardless of compliance — Applicants contended eviction was not just and equitable under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) — Constitutional Court held that eviction must be linked to provision of alternative accommodation, requiring municipality to provide such accommodation one month prior to eviction date — Appeal upheld, High Court order set aside, and municipality ordered to comply with obligations to provide alternative housing.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for leave to appeal to the Constitutional Court and, if granted, an appeal against an eviction order granted by the North Gauteng High Court, Pretoria. The proceedings arose under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and implicated the constitutional protection against arbitrary evictions in section 26(3) of the Constitution.

The applicants were approximately 50 families described as the Occupiers of Skurweplaas 353 JR, who were in unlawful occupation of privately owned land. The first respondent, PPC Aggregate Quarries (Pty) Limited (PPC Quarries), was the owner of the land and the party that obtained the eviction order in the High Court. The City of Tshwane Metropolitan Municipality (the City) was the second respondent and had been joined in the High Court proceedings because of the potential need for alternative land or accommodation for the occupiers. The Minister for Human Settlements and the Member of the Executive Council for Local Government and Housing, Gauteng were joined as additional respondents at the instance of the Constitutional Court.

Procedurally, PPC Quarries obtained an eviction order in the High Court that also imposed obligations on the City to conduct an audit of occupiers and to provide access to land by specified dates. Applications for leave to appeal to the Supreme Court of Appeal were refused, both by the High Court and the Supreme Court of Appeal. The occupiers then sought leave to appeal in the Constitutional Court, contending that the High Court’s order was not “just and equitable” as required by PIE because it permitted eviction even if alternative land was not provided and even if eviction would render occupiers homeless.

The general subject matter was the proper exercise of a court’s power under PIE to grant eviction orders in circumstances where unlawful occupiers face homelessness, and the associated duties of a municipality to provide alternative accommodation or land so that an eviction order is just and equitable.

2. Material Facts

The court proceeded from the fact that the applicants were a group of families who unlawfully occupied land described as the Remaining Extent of the Farm Skurweplaas 353, J.R., Tshwane, Gauteng. It was also common cause that PPC Quarries owned the land and had sought and obtained relief in the High Court to evict the occupiers.

The High Court order had three salient practical consequences for purposes of the Constitutional Court’s evaluation. First, it required the City to conduct an audit of the personal circumstances of the unlawful occupiers and to provide them with access to land by a specified date. Second, it authorised PPC Quarries to proceed with eviction from a stipulated date. Third, and critically for the Constitutional Court, the order authorised eviction irrespective of whether the City had complied with its obligation to provide land, which meant eviction could occur even if occupiers were thereby rendered homeless.

Before the Constitutional Court, the City did not formally challenge the High Court’s order. Nonetheless, it advanced a contention that a municipality allegedly lacked the obligation or power to spend its own funds to make emergency housing available and that the province alone bore responsibility to finance emergency housing from its resources. The Constitutional Court treated this as an attempt to challenge the High Court’s order indirectly and declined to entertain it.

As to PPC Quarries’ position, the Constitutional Court accepted that PPC Quarries emphasised its ownership rights and the importance of the rule of law, and opposed interference with the High Court order. A further fact material to the court’s equity assessment was that there was no evidence that PPC Quarries planned to use the property gainfully in the foreseeable future.

In the course of argument, the occupiers’ stance evolved. Although their written argument sought setting aside of the High Court order in its entirety, by the end of oral argument they indicated contentment with relief that would require alternative land to be furnished by the City and would make eviction operative only after such land had been made available.

3. Legal Issues

The central legal question was whether the High Court’s eviction order, as framed, satisfied PIE’s requirement that an eviction must be “just and equitable”, in circumstances where it permitted eviction even if alternative land or accommodation had not been provided and where eviction could result in homelessness.

The dispute predominantly concerned the application of law to fact under PIE, informed by constitutional standards. It required the Constitutional Court to evaluate how the PIE justice-and-equity enquiry should operate where (i) a private owner seeks eviction, (ii) unlawful occupiers may be rendered homeless, and (iii) a municipality bears responsibilities connected to alternative accommodation.

A further issue, addressed in a procedural and jurisdictional sense, was whether the City could effectively challenge the High Court’s conclusion regarding municipal obligations without having pursued a proper appeal. The Constitutional Court treated this as an improper “back door” challenge and refused to entertain it.

Leave to appeal also required determination of whether a constitutional matter was raised and whether granting leave was in the interests of justice, including whether there were reasonable prospects that the High Court order would be found inconsistent with the requirements of PIE.

4. Court’s Reasoning

The Constitutional Court identified the matter as raising a constitutional issue because it concerned the interpretation and application of PIE, legislation enacted to give effect to section 26(3) of the Constitution. It held that the interests of justice justified granting leave to appeal because there was a reasonable prospect that the High Court’s order failed the “just and equitable” standard insofar as it permitted eviction before alternative land was provided to those who would become homeless.

On the merits, the court assessed the High Court’s approach against the Constitutional Court’s recent decision in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) [2011] ZACC 33. The Constitutional Court reiterated that an owner’s rights are not wholly unqualified in the PIE enquiry, and that an owner may, in appropriate circumstances, be required to be “somewhat patient” because the owner’s common-law entitlements to use and enjoy property may be limited by the justice-and-equity assessment mandated by PIE.

Applying those principles, the court considered it significant that there was no evidence that PPC Quarries intended to use the property gainfully in the near future. The court also considered that there was no basis, on the information before it, to assume that the City would not take reasonably prompt steps to provide alternative accommodation—particularly because the City had not properly appealed the High Court’s judgment and had not mounted a sustained, direct challenge to the order requiring it to provide land.

The core evaluative conclusion was that it would not be just and equitable for occupiers who would be rendered homeless by eviction to be “thrown onto the streets” for an interim period if the City could provide alternative accommodation within a reasonable time. Following Blue Moonlight, the court held that justice and equity required a linkage between the date of eviction and a specified date by which the municipality must provide alternative accommodation, so as to prevent homelessness arising because of a time-gap between eviction and municipal compliance.

The High Court order failed in this respect because it permitted eviction regardless of whether the City had complied with its duty to provide land. The Constitutional Court therefore concluded that the appropriate remedial structure was to require the City to gather complete information about occupiers and homelessness risk, to provide alternative accommodation by a specified date, and to set the eviction date only after that municipal obligation had to be met. The court considered that requiring alternative accommodation to be provided one month before the eviction date would be just and equitable in the circumstances.

In relation to costs, the court reasoned that the occupiers and PPC Quarries were largely successful in obtaining a corrected order that addressed homelessness concerns while protecting the owner’s ability to evict on a defined date. The court accordingly directed that the municipality should bear the costs.

5. Outcome and Relief

The Constitutional Court granted leave to appeal and upheld the appeal. It set aside the order of the North Gauteng High Court, Pretoria (case number 12289/2010), and replaced it with a new order that restructured the obligations of the City and the timing of eviction.

The substituted relief required the City to gather complete information on the personal circumstances of all occupiers on the land as at 24 March 2010 and on how many would become homeless after eviction, to provide that information to the applicants’ attorneys by 28 February 2012, and to provide those occupiers who would be rendered homeless with access to alternative accommodation by 30 April 2012. PPC Quarries was declared entitled to evict the occupiers on 31 May 2012.

On costs, the City of Tshwane Metropolitan Municipality was ordered to pay the costs of the applicants and PPC Quarries, including (where applicable) the costs of two counsel in both the High Court and the Constitutional Court.

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).

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

PPC Aggregate Quarries (Pty) Ltd v The People who intend invading the Remaining Extent of the Farm Skurweplaas 353, J.R., Tshwane, Gauteng and Others Case No. 12289/2010 (North Gauteng High Court, Pretoria, 24 March 2010) (unreported; reasons dated 5 May 2010).

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.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the High Court’s eviction order was not just and equitable under PIE because it permitted eviction even if the City failed to provide alternative land or accommodation and even if eviction would render occupiers homeless. Justice and equity required that the eviction date be linked to the date by which the City was obliged to provide alternative accommodation for those who would otherwise become homeless.

The court granted leave to appeal, upheld the appeal, set aside the High Court order, required the City to assess occupiers’ circumstances and provide alternative accommodation by specified dates, authorised eviction only on a later date after the City’s compliance date, and ordered the City to pay the costs of both the occupiers and PPC Quarries.

LEGAL PRINCIPLES

Under PIE, and consistent with section 26(3) of the Constitution, a court may grant an eviction order only if it is just and equitable after considering all relevant circumstances, including the risk of homelessness.

In eviction matters, a private owner’s common-law entitlements to the use and enjoyment of property are not treated as wholly unqualified; they may be temporarily restricted as part of the justice-and-equity enquiry, and an owner may in appropriate circumstances be required to display reasonable patience while the state complies with its obligations.

Where unlawful occupiers face homelessness, a just and equitable order generally requires that the date of eviction be linked to a specific date on which the relevant municipality must provide alternative accommodation, so that occupiers are not rendered homeless due to a gap between eviction and municipal compliance.

A party that did not properly challenge an order through appropriate appellate steps cannot expect to undermine that order indirectly through submissions that amount to a “back door” appeal; such an attempt may be refused consideration in the appellate forum.

Occupiers of Skurweplaas 353 JR v PPC Aggregate Quarries (Pty) Ltd and Others (CCT 26/11) [2011] ZACC 36; 2012 (4) BCLR 382 (CC) (7 December 2011)