The key questions before the Court were whether certain clauses of the public rental lease were against policy or unconstitutional, and whether the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation Act (PIE) were applicable.

The background to the case is that Ms Malan, the appellant, had been occupying the property since 1979. The City of Cape Town (the City) sent her a letter, which she received on 23 November 2008, giving her until 31 December 2008 to vacate the property. The City cited rental arrears and that the South African Police Service (SAPS) had reported that on numerous occasions, illegal activities involving drugs, liquor and illegal firearms had been reported on the property. Further, the SAPS had made arrests for illegal activities conducted on the property. Ms Malan did not leave the property on the said date and once again, in January 2009, another letter was delivered to her from the City advising her that the lease had been cancelled and that legal proceedings would be instituted to evict her from the property. She did not vacate the property despite this. In October 2009, the City approached the High Court seeking an eviction order against Ms Malan on the basis that she was an unlawful occupier as her lease had been cancelled. The High Court granted the eviction order against Ms Malan and her family and they were given two months to leave.

Ms Malan then appealed the decision of the High Court on the basis that there was no material breach of the lease. She further contended that certain clauses in the lease used to justify the cancellation of the lease were against public policy and were therefore unconstitutional and unenforceable. She argued that the clauses detracted from the lessee’s security of tenure, and that the clauses were inconsistent with the rights to equality, dignity, and property and housing as enshrined in the Constitution. In any event, she argued, even if the clauses were found to be in line with the Constitution, it was still not just and equitable to evict her in the circumstances. The City’s response was that the lease was cancelled as Ms Malan had breached it through failure to pay rent and also permitting illegal activities on her property. The City further contended that even though Ms Malan had been afforded ample opportunity to correct her breach of lease agreement, she had failed to do so. Another consideration for the City was that there is a very high demand for public rental housing. As such, the abuse of occupation rights should justifiably be met by eviction, particularly in light of the City’s provision of alternative accommodation for Ms Malan within an old age home.

The Court dismissed Ms Malan’s appeal. In determining the constitutionality of the clauses invoked by the City to cancel the lease agreement, the Court stated that fairness is the benchmark in assessing whether a clause in a contract is against public policy.There has to be procedural fairness in that Ms Malan had to be afforded proper notice to settle her arrear rentals, which she was. The Court stated that had the City failed to uphold its duty of procedural fairness to its poor housing tenants, then this would have infringed on important constitutional values. The Court then considered whether the lease cancellation and eviction were warranted, given the various instances of illegal activity that occurred on the premises.  The Court stated that since the clauses made it clear that illegal activity on the premises were prohibited, Ms Malan could have prevented the continued illegal activity after receiving the notice of intention to cancel her lease. On this basis, the Court held that the City had complied with section 26(3) of the Constitution which provides that no one may be arbitrarily evicted from their home without a court order.  As such, the Court concluded the City had lawfully and validly cancelled the lease agreement on the grounds of illegal activities on the property.

The Court then considered whether the eviction order was just and equitable within the requirements of the PIE Act. The Court articulated the City’s obligations to provide public housing and balanced this obligation against Ms Malan as an elderly widowed pensioner. The Court stated that the City’s offer to accommodate Ms Malan in a home for the aged, located within a radius of eight to ten kilometres from the property was a reasonable offer and therefore the decision to evict her from the property was just and equitable.

The importance of this decision is that it provides greater clarity on the implementation of the right to have access to adequate housing. The decision shows that the right can, in certain circumstances, be limited. It also highlights an instance and manner in which the courts may grant an eviction order. The decision reiterates important principles such as that tenants in public housing may not be evicted merely on notice. There has to be either further breaches of the lease agreement or it must be necessary to vacate the property for other compelling public reasons. Government agencies are precluded from relying on the termination of contracts against tenants in need of public housing. The decision further underscores the importance of the right to dignity through its acceptance of the City’s offer to provide alternative accommodation in a home for the aged for Ms Malan. It also highlights the City’s constitutional obligations in providing housing. Although housing is a very scarce resource for which there is a massive demand, the City must still fulfil its constitutional obligations to those in need on a fair and equitable basis. 

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights

[Photo credit: Foter / CC BY-NC]