Concourt closes loophole used in municipal evictions

“Meaningful engagement” is required, not optional

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Photo of the inside of the court
File photo of the Constitutional Court in session. Photo courtesy of SERI

In a unanimous judgement, the Constitutional Court recently ordered the  Govan Mbeki Municipality in Mpumalanga to have meaningful engagement with 200 families it had twice tried to evict in 2013.

The 200 families were living in shacks on agricultural land owned by the municipality. They had been on the waiting list for municipal housing since 2002. Many had been renting private dwellings at a cost above their means, and were subject to sudden and arbitrary evictions.

In September 2013, the municipality evicted the families and demolished their homes. Without a place to stay, the families moved into a community hall and then to a primary school. During this time, they repeatedly attempted to meet with officials.

In May 2014, the homeless residents took occupation of another piece of municipal land, earmarked for a new pre-primary school.

The municipality sought a court eviction order and an interdict to prevent the residents from erecting structures. It also sought a  rule nisi which would mean they could obtain an interim order against the residents. This order could be obtained without giving the residents notice of the application or an opportunity to come before the court until the order had already been granted.

The PIE Act

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE Act) seeks to ensure fair evictions by regulating how people who are occupying land unlawfully or without the consent of the owners of land are evicted.

PIE requires the court to only grant an eviction order if it is just and equitable after considering all relevant factors – including the rights of elderly people, children, disabled people and households headed by women.

Section 4 outlines the procedure. First, a notice must be served on the unlawful occupiers 14 days before the hearing. It must state that eviction proceedings are being instituted; give the date and time of the court hearing; set out the grounds for the proposed eviction; and advise the occupiers of their right to appear before court, defend the case, as well as their right to apply for legal aid.

At the outset, the municipality failed to comply. It did not even refer to PIE in its papers at all, which was raised by the residents as a preliminary challenge to the application.

In their court papers, residents showed that the Govan Mbeki Municipality habitually applies for evictions under the guise of interdicts, circumventing the requirements of PIE, specifically the need for notice and consultation.

In upholding the residents’ appeal, the Constitutional Court sought to remedy the municipality’s failure to provide the residents with an opportunity for meaningful engagement and consultation as is constitutionally required.

The court ordered the municipality to meaningfully engage with the residents in order to find a reasonable solution which accords with Section 26 of the Constitution.

The order went further to stipulate that the municipality is required to proactively seek the participation of the residents. The court also ordered that such engagement take place as soon as possible.

It also made clear that if the municipality were to apply for an eviction order in the future, compliance with the above requirements would be relevant.

The judgement closes a loophole municipalities exploited seeking evictions without meaningful engagement. The onus is not on the residents to ensure this engagement takes place.

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TOPICS:  Housing

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