Evictions Must be Just, Equitable and Reasonable

Residents of Joe Slovo Community v Thubelisha Homes & Ors [2009] ZACC 16 (10 June 2009) The South African Constitutional Court has upheld a High Court decision to grant an application to evict approximately 20,000 residents of the informal settlement known as the Joe Slovo settlement.  The eviction was sought by Thubelisha Homes (a government company), the Minister for Housing and the Minster of Local Government and Housing (together, the ‘Respondents’) for the development of an affordable housing project in the Western Cape (the ‘Project’).

The Court held that the Respondents had complied with laws and acted reasonably and in accordance with the Constitution.  However, the Court granted the eviction order subject to certain conditions, to ensure that the eviction would be conducted in a just and equitable manner.

Facts

The Joe Slovo settlement

The Joe Slovo settlement began in the early 1990’s and is situated at the start of the N2 Highway, Western Cape.  The land which the settlement is built on is owned by the City of Cape Town.

In the initial years of the settlement during apartheid, security operatives would forcibly evict the Joe Slovo residents and destroy their dwellings.  However by 2002, following a fire at the settlement, the City had provided tap water, toilets, refuse removal, drainage and electricity.

In 2005 another fire struck the Joe Slovo settlement and destroyed the homes of 996 families.  The victims of the fire were informed they could not rebuild their homes but that they would be catered for through the Project.  The Project was formally launched a month later.  By this time, the land had been occupied by the Residents for over 15 years.

The Project

The Project is a pilot project of the South African government, which is aimed at upgrading all informal settlements along the N2 Highway, of which Joe Slovo was the starting point.  The Project required that the Residents be relocated to Delft, 15 kilometres away, where temporary accommodation had been set up.

Project implementation issues and community disenchantment

In 2006 the Joe Slovo settlement suffered another fire and as a result most victims were transported to temporary accommodation in Delfit.  A large number of the Residents voluntarily relocated to Delfit after encouragement to do so by the Respondents.

By mid 2006, however, cooperation between the Joe Slovo community and the authorities had broken down for a number of reasons, in particular:

• the government had increased the rent for new housing at the Project by four times (or more) that which was initially indicated;
• the government had reneged its promise that most of the Residents would be able to return to Joe Slovo; and
• the Residents felt that the authorities had not adequately communicated with them about the Project.

In early September 2007, the Respondents initiated eviction proceedings.

Decision

The Court delivered 5 separate judgements each of which considered two main issues:

• whether the Residents were ‘unlawful occupiers’ under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE Act’); and
• whether the Respondents had acted reasonably in accordance with s 26 of the Constitution in seeking the eviction.

Were the Residents ‘unlawful occupiers’?

As the Respondents sought an eviction order pursuant to the PIE Act, it was first necessary to establish whether the Residents were unlawful occupiers and subject to eviction under that Act.

The PIE Act defines an unlawful occupier as a person who occupies land without the express or tacit consent, or some other legal right to do so.  If there was consent, there can be no eviction until the right to occupy is terminated.

The Residents argued that the City had tacitly consented to their occupation, pointing to indicators such as the fact they had been on the land for over 15 years and that the Council provided facilities such as water and electricity.

The Court held that at the time eviction proceedings were launched, the Residents did not have consent to occupy the settlement and were therefore unlawful occupiers.  The Court differed in opinion about whether this had always been the case.

Justice and equity

The Court then considered, as required by the PIE Act, whether it was just and equitable to grant an eviction order.  The PIE Act specifically requires the Court to consider the availability of suitable alternative accommodation as part of its analysis.

Availability of accommodation

The Court underscored the vital importance of ensuring suitable alternative accommodation where the State seeks to evict people from their homes.  In the present case, the Court considered that the temporary accommodation at Delfit would be physically better, less dangerous and more hygienic than the current informal dwellings at the Joe Slovo settlement.

The Court also noted that the prospect of securing adequate housing after the temporary relocation was an important consideration.  In this regard, the Court considered that the Respondents’ undertaking to allocate 70% of the new housing to the Residents was sufficient to render the relocation just and equitable.

Concerns were raised about the hardship associated with the relocation, such as community dislocation, interrupted schooling and limited transportation to employment.  However, the Court noted that the Constitution does not guarantee a person a right to government funded housing at a locality of their choice.  In any event, the Court expressed the view that the Respondents had ameliorated hardship by undertaking to provide transport to relocated Residents.

Other relevant factors

The Court followed its decision in Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7, which requires the Court to consider all relevant circumstances including the extent and nature of negotiations, the reasonableness of offers of alternative accommodation and time scales relative to the disruption which would be caused.

Requirement of engagement

The Residents argued that the Respondents had broken numerous promises and that the level of community consultation and engagement was inadequate.  The Court held that while these factors are highly relevant, the promises were not broken deliberately but as a result of changing circumstances.  Furthermore, while being critical, to varying degrees, of the community consultation process undertaken by the Respondents the Court held there had been a reasonable level of community engagement.

Reasonableness and justice of implementation choice

It had been argued that the Residents should not be relocated as in situ development of the Joe Slovo settlement was feasible.  The Court held however that relocation was not an unreasonable implementation choice by the Government.  Justice Sachs emphasised that the relevant enquiry is not whether there is a more desirable or favourable option.

Constitutional right to adequate housing

Section 26(2) of the Constitution imposes an obligation on the State to take reasonable measures, within its available resources, to achieve the progressive realisation of the right to adequate housing.  The Court examined whether the Project and the actions of the Respondents in implementing the Project were reasonable and in accordance with the right to adequate housing.

The Court as a whole held that the Project had overall been implemented reasonably, despite any failings in regards to community consultation.

The Court recognised that reasonableness must take into account the interests of all people who are affected by the conduct of the Respondents.  In this case the resistance to relocation was stalling the Project and affecting the interests of the thousands of Residents who had already voluntarily relocated.

In discussing the reasonableness of the Respondent’s engagement with the community, O’Regan J held that the requirement to engage meaningfully should be understood together with the obligation to act fairly imposed by s 33 of the Constitution.  Her Honour held, however, that it would be unduly burdensome to require that a fair hearing be given to the Residents each time a decision needed to be made.  Instead fairness required that the Residents were aware of the Project generally and given a reasonable opportunity to comment on the fairness and reasonableness of the relocation process.  Similarly, Yacoob J acknowledged that the principle of reasonableness requires realism and practicality.

The eviction order

In granting the eviction order, to ensure the eviction was just and equitable, the Court also ordered:

• that no person may be moved unless alternative accommodation is provided;
• that the alternative temporary accommodation meets minimum standards, including requirements as to size, materials and availability of essentials such as roads, electricity, water and toilet facilities;
• that there be meaningful engagement on the relocation timetable and any other matters arsing from it, such as transportation needs; and
• that 70% of the housing which is to be constructed at Joe Slovo be allocated to qualifying current and former Residents.

Relevance to the Victorian Charter

Whilst there is no explicit right to adequate housing in the Victorian Charter, this decision may inform the interpretation and application of s 13, which protects individuals against unlawful or arbitrary interferences with their home.

In particular, the factors relevant to the Court’s determination in this case of whether an eviction is reasonable and just in the circumstances (namely the availability of alternative accommodation and the level of consultation and engagement) may also be relevant factors to be considered by a Victorian Court when determining whether an interference with the right to home is reasonable under s 7(2) of the Victorian Charter.

The decision is available at http://www.saflii.org/za/cases/ZACC/2009/16.html.   

Julian Wan is on secondment to the Public Interest Law Clearing House (Vic) from Corrs Chambers Westgarth