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Constitutional Court: municipality to provide housing if eviction means residents are homeless

There was a tangible sigh of relief for 184 low-income residents this week after a rescission order against their eviction was upheld by the Constitutional Court. Some of the residents having occupied their homes at the Kiribilly block of flats in Berea, Johannesburg for more than 26 years. 

Michelle Dickens MD of TPN a property specialist credit bureau, highlights an important aspect of the ruling to understand, “Contrary to current reports, the judgment is not a dismissal of an eviction application by the Constitutional Court. In fact, the Constitutional Court ordered that the matter be referred to the South Gauteng High Court to be dealt with on an expedited basis and most importantly, that the City of Johannesburg be joined as a party to the proceedings.”

The reason that the Constitutional Court upheld the appeal against the eviction was that occupiers would legitimately be left homeless and destitute should the eviction order be granted. Cilna Steyn, managing director of SSLR Inc. clarifies this in the light of her extensive experience in property litigation, “We have seen many court orders including orders from the Constitutional Court compelling municipalities to provide alternative accommodation to occupants who will be left homeless because of an eviction order being granted. In this particular case, the City of Johannesburg was not a party to the proceedings.” 

The Constitutional Court order does therefore not change the legal position pertaining to evictions. It is however important to note that the eviction order was initially granted based on an agreement reached between the parties at the initial eviction hearing. The occupants were apparently not properly advised at the time of the effect of this agreement, which is why the Constitutional Court held that it was not satisfied that they were fully aware of their rights to defend the matter. 

Steyn continues to explain that, “The PIE Act is an extension of section 26 of the Constitution which prohibits evictions without a court order. Once the court has fully familiarised itself with the personal circumstances of the occupant, it details the process that should be followed to successfully obtain an eviction order. If the provisions of PIE are not followed to the letter, no court will be allowed to grant an eviction order.

We clearly notify illegal occupants of their right to attend court to defend the matter. To satisfy the court in this regard, we always ensure that the contact details of legal clinics and institutions that provide free legal services are provided.”

The PIE Act further provides that a court ‘must’ grant an eviction order if the court is satisfied that the provisions of the Act has been complied with and if the occupiers would be left homeless and destitute, the local municipality will be ordered to provide alternative accommodation. 

Dickens confirms this saying that, “in practical terms, should you comply with the provisions of the PIE Act and ensure that the municipality perform their constitutional duty to provide alternative accommodation, the court must and therefore will grant the eviction order.”

You can read the full judgement here: http://www.saflii.org/za/cases/ZACC/2017/18.pdf



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