By Christo Smith

The Supreme Court of Appeal, in the matter of City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA) set guidelines for municipalities in reporting to court in eviction matters. In a wide range of eviction cases municipalities have been ordered to provide occupiers with emergency accommodation, to furnish detailed reports or to meaningfully engage with occupiers. In many instances municipalities have failed to comply or to comply adequately with such orders. This has resulted in many cases being referred back to court, to further orders being made, as well as appeals in some cases, all resulting in protracted and sometimes fruitless litigation. At the receiving end of this conundrum is the land owner, because in the majority of cases the eviction is sought from privately-owned land.

The Hlophe case

Subsequent to the Changing Tides case, in the matter of Hlophe and Others v City of Johannesburg and Others 2013 (4) SA 212 (GSJ) the High Court, per Satchwell J, made a detailed order holding city officials personally responsible for not ensuring the city’s compliance with earlier orders. The present status of this matter confirms the general trend: The municipality has taken the decision on appeal and the matter has been further delayed to the prejudice of the landowner. In the Hlophe case the court was of the view that the report was inadequate because it merely dealt with the city’s inability to provide emergency accommodation to the evicted occupiers. The city reported that its inability to comply with the order was due to financial constraints, lack of resources and availability of ­alternative accommodation. In the judgment, Sachwell J referred the various obstacles raised by municipalities when confronted with such orders, as follows (at para 24 – 25):

‘They may lament that the City of Johannesburg will be expected to house the entire continent of Africa. They may disagree that no distinction is drawn between South Africans and non-South Africans when it comes to providing temporary housing for the homeless. They may complain that the rates and other income in this City cannot support provision of housing of those who do not directly contribute to the tax base of the City. They may protest that provision of temporary housing as required will encourage persons to bypass housing waiting lists and prejudice persons who have been patiently waiting on housing lists. And on and on the dissatisfactions may be expressed.

But there is no room for any tier of government or any organ of the state or any court in the land to be inimical to the reasoning or the decisions of the Constitutional Court. The City of Johannesburg is bound thereby. This court is bound thereby. We must all do our best and exert ourselves to implement the decisions of the Constitutional Court in pursuit of the constitutional promises.’

Inconsistency

Admittedly, municipalities frequently fail to perform basic duties and are sometimes even guilty of contempt of court, however, the concerns raised by them as alluded to by the court in the Hlophe case, should be seriously considered. Do the courts always adequately consider whether their orders are executable? Why is there a growing inconsistency between judgments in eviction matters?

At the core of the controversy is the discretion a court has when applying the ‘just and equitability’ requirement in terms of ss 4(7) and 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). A court must essentially make three determinations: Firstly, whether an eviction order should be granted, secondly, if the order is granted, the date by which the property is to be vacated and thirdly, the date by which the eviction order may be executed if the property has not been voluntarily vacated. All three determinations must be ‘just and equitable’ (see the Changing Tides case at para 12; and Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village 2013 (1) SA 583 (GSJ) at para 33 and 126).

Determination of the eviction date and execution of the order are discretionary. When a court is clothed with a discretion, it can be either in a wide or narrow sense. A discretion in the wide sense refers to a discretion being exercised from a range of permissible options while a discretion in narrow sense leaves little room for variation. The courts essentially support application of the discretion in the narrow sense in evictions. See for instance, Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) where Skweyiya J, delivering the unanimous judgment of the Constitutional Court (CC), said: ‘The application of PIE is not discretionary’ (at para 15). In an earlier decision the SCA, in Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) favoured the same view. The discretion in the narrow sense, however, applies only in theory because essentially an eviction does not have one possible justified outcome. Therefore, the CC and the SCA, when applying the discretion in the narrow sense, tend to set aside the judgments of the High Court and lower courts due to the fact that, as stated by Willis J (as he then was) (the Newtown case at para 21 and 127): ‘A conundrum arises from what is meant by “just and equitable”… it is intellectually and morally impossible to insist that there can be only one correct date in the determination of (a) the date upon which an occupier is to vacate the property and (b) failing which the occupier is to be evicted therefrom.’ Application of the discretion in the narrow sense would, according to Willis J ‘[render] the functioning of the courts in regard to eviction matters unworkable. It would be grossly unfair to judges’ (the Newton case at para 36).

Roulette

Intrinsic to the rule of law is predictability, reliability and certainty (see Ben Beinart ‘The Rule of Law’ Acta Juridica (Balkema: Cape Town) 1962 at 99, quoted in the Newtown case). Practitioners are increasingly perturbed about the intolerable inconsistency in evictions. They cannot advise clients and are literally confronted with a roulette table when litigious matters are generally determined on equity and the value system of the particular judge, rather than the law. In Cassell & Co Limited v Broome and Another [1972] All ER 801 (HL) the then Lord Chancellor of England, Lord Hailsham of St Marylebone, dealt with the questions of predictability, reliability and certainty in the courts and viewed the disputes between different courts as embarrassing. The SCA, in Brisley v Drotsky 2002 (4) SA 1 (HHA), in upholding the enforcement of the pacta sunt servanda maxim, held that the law and not the values of an individual judge, should determine what is just and equitable.

Courts frequently insist that municipalities provide alternative accommodation ‘at all costs’. One has to agree with Willis J when he held that (the Newtown case at para 92):

‘… it would be intellectually dishonest for a court not to take into account the real problem that exists at a Municipal level, with its capacity in terms both of finance and its administrative personnel, to solve problems. If a city cannot even mend potholes promptly and resolve billing crises expeditiously, what hope does it have of addressing adequately the needs of housing? The courts cannot blink, Bambi-like, at the real dangers that are posed through a lack of capacity at a municipal level. The judges on duty in the motion court in the South Gauteng High Court stare real evil in the face every week. Among these evils is the hijacking of buildings in the City. This hijacking is not only criminal but brings with it attendant evils of exploitation, squalor and degradation.’

He further states that when it comes to the provision of housing in South Africa, the CC has made and is likely to continue to make orders that may impact, to a major degree, on questions of funding for projects of national development that, in classical constitutional theory and on an ordinary reading of the Constitution, it is the government’s prerogative to decide, subject to approval by parliament (at para 89). He further states that (at para 95):

‘It is indubitably desirable that an aura of intellectual incontestability should be distinctive of the Constitutional Court’s determinations. Unfortunately, controversy has dogged its judgments on eviction matters since [Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)].’

Citizenship

The citizen status of occupiers is apparently not regarded by the courts as a relevant circumstance (see the Changing Tides case para 38 – 41).  The SCA, in Changing Tides (at para 40 – 41) held that a general report by a municipality is not sufficient. A list of circumstances to be considered in evictions as enumerated in our case law was summarised by the court in Changing Tides. However, the citizen status of an unlawful occupier, is not one of them.

I submit that a further inquiry a court should make in an eviction matter, is to question the origin of the occupier. Is it ‘just and equitable’ that a municipality is forced to provide accommodation, emergency or otherwise, to illegal immigrants? Existing housing programmes and waiting lists are often ignored by the courts and jeopardised. An origin inquiry is also relevant to South African citizens, merely because many occupiers are mala fide. They unscrupulously occupy­ city properties in so-called building hijackings, sometimes at the instance of vigilantes, criminal syndicates and political pressure groups. In many instances these occupiers have willingly abandoned their places of abode elsewhere in the country (where they might have had adequate homes and employment) to become a burden on already cash-strapped urban municipalities. I submit that the occupiers should bear the onus to provide this information to the court. Applicants will undoubtedly not be in a position to gather such information (see the matter of Changing Tides where the SCA places the onus to a large extent on applicants).

Apartheid-ghost

In the Hlophe case the court, as in so many eviction matters thus far, equated eviction at common law in general terms with forced removals under apartheid. In this regard Willis J, in the Newton case, states quite correctly, that the position of owners of immovable property seeking to enforce, under the common law, the eviction of those who occupy their properties without the owners’ consent is not remotely comparable to the forced removals under the previous dispensation (at para 18). Granting and execution of eviction orders, absent those that were politically motivated, have over many years been acceptable. These orders inadvertently cause inconvenience and trauma, but so does any order made against a losing party. The courts have noted frequently that if the facts justify eviction, it cannot and should not be avoided (the Brisley case). Seemingly, the apartheid-ghost is haunting an otherwise justified and normal legal procedure.

Homeless?

Courts frequently decline or delay eviction orders because the order will allegedly render occupiers homeless. Neither the SCA nor the CC have attempted to define the term ‘homeless’. In the Newtown case Willis J defined ‘homeless’ as (at para 85):

‘Without any reasonable prospect, between the date of the court order which it is proposed be made that the occupier is to vacate the property and the date upon which the eviction order is to be effected (in the event that the occupier does not vacate the property), of the occupier being able to find alternative accommodation that is (a) of a comparable or better standard to and (b) at a similar rental to and (c) within reasonable proximity to that of the property from which the eviction is sought.’

The mere fact that a person stands to be evicted does not necessarily mean that he or she will be rendered homeless. To determine this fact, an inquiry into the bona fides and detailed personal circumstances of occupiers is imperative.

The course that our courts are on will invariably lead to orders becoming increasingly unexecutable. There are no signs that the influx to the cities, legal or illegal, is going to decrease. Officials may be held in contempt and may even be incarcerated, but the real problem will not go away. In the meantime landowners are suffering, development is discouraged and property rights in terms of s 25 of the Constitution are merely ‘blinked at Bambi-like’.

This situation favours vigilante groups as well as mala fide and other illegal occupiers of land. Moreover, the judicial system is contributing to the crisis in governmental housing programmes. We need a way out of the cul de sac in the eviction road. Innovative judgments, boldness, astute action by practitioners and possibly, even legislative intervention, can hopefully assist.

Christo Smith BA (UJ) LLB (Unisa) is an attorney at Christo Smith Attorneys Inc in Nelspruit and author of Eviction and Rental Claims: A Practical Guide (Durban: LexisNexis Butterworths 2009).

This article was first published in De Rebus in 2014 (May) DR 40.