Arriving early in the morning, news outlets reported that the Red Ants proceeded to hurl personal belongings out of windows, while preventing the owners from claiming their meagre property. Television news reports later showed the hapless families sitting on pavements, unsure of their immediate future. It has since emerged that the owner of the building had begun eviction proceedings against all of the occupants of the building, but the courts had not yet issued a final order in this regard.

The Constitution at section 25 and 26 protects property, while also providing that no one may be evicted from their home without a court order. The Constitutional Court in Port Elizabeth Municipality v Various Occupiers formulated some guidelines for the interpretation of section 25, in which conflicting rights have to be balanced. According to the Court, the start and end point of the analysis of section 25 “must be to affirm the values of human dignity, equality and freedom”. In context of both “protecting existing private property rights as well as serving the public interest…striking a proportionate balance between these two functions”. In the same case, the Court stressed that the Prevention of Illegal Eviction from and Unlawful Occupation Act (PIE Act) “…is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern”. Importantly, the Court in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties stated that when considering whether an eviction would be just and equitable, a court should also consider the obligations of the municipality in a case. Even where a third party who is a private owner – as in the case on hand – requests an eviction order, a municipality must act reasonably in the circumstances.

A court can only give an order allowing an eviction after taking into consideration all of the relevant circumstances, which obliges the courts to inquire into the personal circumstances of the occupiers.  The Constitutional Court has also stressed that the parties in the eviction process must have meaningful engagement prior to the eviction proceedings. This means that before an eviction, there should be attempts at resolving the dispute with a view to establishing how, if ever, the owner’s interests can still be protected without the need for eviction. The engagement also seeks to ensure that the state has temporary alternative accommodation. The mediation efforts should be at individual or household level, as well as at collective or community level. This engagement ought to be of a proactive and honest nature, in a bid to find mutually acceptable solutions.

The PIE Act elaborates on section 26 of the Constitution by prescribing circumstances under which a court may evict occupiers. To this end, the various factors that a court must consider include whether the occupiers fall within vulnerable groups such as the elderly, children or female-headed households. The PIE Act provides that courts may not grant an eviction order unless the eviction would be just and equitable. The court should also take factors such as the length of occupation, the availability of alternative accommodation, or alternative accommodation to be provided by the state where occupiers are unable to obtain such accommodation themselves. Courts may also compel municipalities to be party to litigation so as to provide information on alternative accommodation. This was made clear in a High Court ruling (Witwatersrand Local Division) in Sailing Queen Investments v Occupants La Coleen Court. In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others, the Supreme Court of Appeal found that in instances where an eviction may result in homelessness, the courts should not rush to issue an eviction order where a municipality has not been a party to the proceedings.

Ultimately, a court that considers whether to evict people from their homes in accordance with the Constitution, read with the provisions of PIE Act, will have to ask many of the questions that the Red Ants obviously failed to consider. The fact that the Red Ants – in effecting the eviction – showed little respect for the rights and belongings of the occupiers in this case, underscores the need for court involvement in any decision to evict people from their homes. In the absence of a court order permitting the eviction, the Red Ants, outside of established legal principles, may very well have acted illegally. It is therefore up to the evicted families and individuals seek recourse from the courts.

It should be said, however, that as long as homelessness and inadequate housing plague urban areas, the tension between housing rights and the rights of property owners will continue to exist. It is therefore imperative for the State to urgently address the housing demand. 

Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

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*Article first published by the Cape Argus as “The Right to housing must be respected in eviction cases”  [24/08/15]