On 4 October 2014, it will be 14 years since the Constitutional Court handed down its landmark judgment in the Grootboom housing case. The judgment explained some of the key duties imposed on the State by the right of access to adequate housing in section 26 of the Constitution.

This ruling has helped to transform evictions law in South Africa. But what do the Grootboom judgment and housing legislation mean in practice for people facing eviction or demolition of their homes?

Of particular importance is section 26 (3) of the Constitution which reads: “No one may be evicted from their homes, or have their homes demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

This article explores the relevant principles applicable to evictions in our constitutional era, and examines the progress that has been made and some of the key challenges that remain.

A history of deprivation

In the Grootboom judgment, Justice Yacoob made a critical observation: that the housing rights in section 26 of the Constitution must be understood in their social and historical context.

In the past, legislation systematically deprived the black majority of formal access to land and housing in urban areas, and entrenched socio-economic and spatial inequality. The common law (the law developed by judges and based on principles established in previous cases) aggravated this situation by favouring existing property rights.

Private landowners could protect their property rights by bringing legal proceedings to evict people from their land. But the courts did not balance property rights against the occupiers’ personal circumstances and housing needs. In some cases, legislation such as the notorious Prevention of Illegal Squatting Act, 1951, authorised the demolition of homes without a court order.

Although apartheid was formally abolished in the 1990s, its legacy remains. This is starkly reflected in the distorted spatial lay-out of towns and cities, and the crisis of landlessness and inadequate housing overwhelmingly affecting black communities.

Housing as a human right

The recognition of housing as a fundamental human right in section 26 of the Constitution has meant that Parliament and the courts have had to develop a completely new set of legal rules governing evictions.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) is the primary legislation governing the eviction of unlawful occupiers from their homes. It specifically aims to give effect to section 26(3) of the Constitution.

PIE replaces the common law action whereby owners can quickly and easily reclaim their property against an unlawful occupier (what lawyers call the rei vindicatio). Ownership in terms of this common law remedy was a very powerful right which trumped other considerations such as the vulnerable circumstances of occupiers and their interest in protecting the space they call home. In its place PIE establishes an overarching test of “justice and equity” which must guide a court in considering whether an eviction would be fair, and if so, under what conditions. Many of the key safeguards for people facing eviction from their homes have occurred through the interpretation of PIE by the courts.

In addition to basic requirements such as proper notice of the eviction proceedings being served on the persons concerned, three major principles have been established by the courts in their interpretation of PIE.

Alternative accommodation

The first principle is that people should generally not be evicted into a situation of homelessness. Temporary alternative accommodation should be provided to those facing homelessness by the relevant public authorities, usually municipalities.

This principle has been confirmed in a range of cases under PIE. It can be traced back to the Grootboom judgment which held that emergency shelter must be provided for those “with no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.”

The government responded to the Grootboom judgment by adopting an emergency housing programme which forms Chapter 12 of the National Housing Code.

The judgment of the Constitutional Court delivered in 2011 in City of Johannesburg v Blue Moonlight held that local authorities are obliged to plan and budget for housing emergencies and ensure adequate provision for alternative accommodation for those facing homelessness. They must consider whether they can provide for emergency housing from their own finances, and if necessary, they must apply to their provinces for help in terms of Chapter 12 of the National Housing Code.

In addition, the Blue Moonlight judgment established that the duty to provide alternative accommodation applies not only when an organ of state evicts people from their land, but also when a private landowner applies for the eviction of an unlawful occupier.

There are still many unresolved questions regarding the nature and standard of the alternative accommodation to be provided, and the processes by which people in temporary accommodation can obtain access to permanent housing. However, certain arrangements for alternative accommodation will not pass the constitutional test.

For example, last week the South Gauteng High Court - in the case of Dladla v City of Johannesburg - ruled that aspects of the City of Johannesburg’s outsourced arrangements to provide temporary alternative accommodation for evicted inner city residents were unconstitutional. Specifically, the Court found that the gender segregation of married couples and the day-time lock out rules for residents violated various constitutional rights. These include the right to human dignity, privacy and security of the person.

Meaningful engagement

The second principle is that people facing eviction from their homes should be given a meaningful opportunity to participate in the resolution of the eviction dispute.

This can take the form of mediation (where a third party tries to assist the parties to reach an agreement), or the more structured processes referred to by the Constitutional Court in cases such as Occupiers of 51 Olivia Road v City of Johannesburg and Residents of Joe Slovo v Thubelisha Homes. These processes involve in-depth negotiations between municipal officials, private landowners, communities and the organisations supporting them aimed at trying to resolve the eviction dispute in good faith.

As with alternative accommodation, whether there has been meaningful engagement is an important factor that a court will take into account in deciding whether it is just and equitable to grant an eviction order. As Justice Sachs held in the case of Port Elizabeth Municipality v Various Occupiers, apart from encouraging innovative solutions to eviction disputes, respectful face-to face engagement or mediation shows respect for the dignity and agency of all the parties involved, particularly those facing homelessness.

The role of organs of state

The third general principle is that evictions which might lead to homelessness are never just private disputes. They always involve the state, whose duties to provide emergency housing may be triggered by an eviction.

When there is a possibility of people being left homeless, relevant organs of state (usually municipalities) must be joined as necessary parties to the legal processes for eviction. The purposes of this is so that the municipality must investigate and present the court with a report dealing with: the potential impact of the eviction on vulnerable groups such as the elderly, children, disabled persons and households headed by women; efforts to facilitate mediation or meaningful engagement between all concerned; and the steps taken to secure alternative accommodation for those who face homelessness as a result of the eviction.

All of these are factors under PIE must guide the court in deciding whether an eviction would be “just and equitable”, and what safeguards must be put in place to protect vulnerable groups.

Apart from evictions in terms of PIE, evictions and demolitions can also occur in terms of legislation aimed at protecting the health and safety of residents or to manage disasters. There have been a number of cases such as Olivia Road, Pheko v Ekurhuleni Metropolitan Municipality and Schubart Park Residents Association v City of Tshwane Metropolitan Municipality where authorities have relied on this kind of legislation to evict or relocate people from their homes.

“health and safety cannot serve as a pretext for bypassing the requirements of the Constitution”

The principle which has been laid down by the Constitutional Court is that health and safety cannot serve as a pretext for bypassing the requirements of section 26(3) of the Constitution.

The most fundamental requirement is that any eviction of people from their homes or demolition of homes can only occur in terms of a court order and the judicial officer must consider “all the relevant circumstances” before making such an order.

Relevant circumstances will, in addition, to health and safety factors, include whether meaningful engagement has occurred, whether the needs of vulnerable groups such as children and people living with disabilities have been adequately catered for, and whether alternative accommodation is available to those facing homelessness.

If people are temporarily evacuated from their homes in a real emergency situation they must be allowed to return to their homes as soon as possible, and the authorities will not be permitted to demolish these homes without a court order.

Recent spate of evictions in Cape Town

However, the recent spate of evictions in and around Cape Town by the City’s Anti-Land Invasion Unit (ALIU) suggests another way in which the constitutional principles outlined above may be circumvented.

The protections in section 26(3) of the Constitutional and PIE are triggered when a person’s home is threatened by an eviction or demolition. But City officials have argued that they are simply preventing the occupation of private land by removing unoccupied and incomplete structures.

In other words, they argue that they have not breached constitutional or legislative provisions as no “homes” were destroyed. However, it is clear from recent evictions at Lwandle and Marikana that what constitutes a “home” to a very poor person with few possessions and literally nowhere else to go might not be a “home” to a City security guard or police officer.

This was essentially the issue in Fischer v Ramahlele. The case involved an application to court by the owner of land in Philippi East, Mrs Fischer, for an order preventing the unlawful occupation of her property by a number of people erecting informal dwellings on her land. In response to that application, members of the community instituted legal proceedings against the City, which they argued had destroyed more than 30 of their structures on the land illegally.

This counter-application was based on a common law remedy known as a ‘mandament van spolie’ which is aimed at restoring possession to people who have been unlawfully deprived of their peaceful and undisturbed possession of property (even if that possession is unlawful). The remedy is aimed at discouraging people or public authorities from taking the law into their own hands by speedily restoring possession without going into the merits of the underlying rights of the parties.

The High Court held that the demolition of the structures on the land was unlawful, commenting that they were reminiscent of apartheid style evictions. Judge Gamble accordingly ordered the City to rebuild the structures. The City then appealed this judgment to the Supreme Court of Appeal. The Appeal Court held that the key issue in the case was whether the affected community members were in fact occupying the structures when these were demolished. If they were, then the City would have taken the law into its own hands and acted unlawfully in demolishing the structures. The residents would be entitled to have the structures rebuilt and restored to them. However, if the structures were vacant and unoccupied (as the City alleged) then the City was entitled to remove them.

The Appeal Court held that the High Court should have heard evidence on whether the structures were occupied or not at the time of their demolition. It referred the case back to the High Court for evidence to be heard on this.

The Fischer case centres on the question of whether the factual requirements for the mandament van spolie (see explanation above) were met. But it also raises the question of what constitutes a “home”. As noted above, the purpose of section 26(3) and PIE is primarily to protect people’s homes.

What counts as a home

The Constitutional Court, the highest court in South Africa, has not finally decided the question of what constitutes a home in these circumstances. However, it is obviously of great importance to those whose structures are being demolished on the basis of the perception of the ALIU staff that no-one lives in them.

The question of whether a structure is a home must be decided by a court which properly evaluates the background and circumstances of the people who built the structure, and the reasons for its construction. As the Socio-Economic Rights Institute (SERI) argued in its amicus curiae (‘friend of the court’) submissions in the Fischer case on behalf of Abahlali baseMjondolo: “The primary determinant of whether a shack is a “home” must surely be what else is available to the person who constructed it. If the person who constructed the shack was homeless before, and would be homeless if it was demolished, it requires little imagination to conclude that the shack itself – however modest or ill-furnished – is his or her home.”

The final judgment in the Fischer case might offer some guidance on the protection available to people whose structures have been demolished on the basis of the ALIU’s opinion that they were unoccupied.

However, further legal challenges to demolitions of this nature will probably be necessary before the legal rules which apply in this situation are fully clarified.

What constitutes a home deserving of constitutional protection is clearly of vital importance to those who continue to struggle for a place in which they can live in peace and security.

Until the general crisis of homelessness and inadequate housing in urban areas is addressed, housing rights and the rights of property owners will continue to clash. The challenge is to provide adequate homes by releasing well-located urban land for residential purposes, upgrading existing informal settlements, and establishing a comprehensive public housing programme.

Meanwhile, officials at all levels of government and private land-owners are required to act towards those facing homelessness in a way that promotes ‘good neighbourliness’ and the value of human dignity which lies at the heart of the housing rights in the Constitution.

As Justice Sachs so aptly stated in the Port Elizabeth Municipality case: “It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when State action intensifies rather than mitigates their marginalisation.”

Sandra Liebenberg is Professor of Human Rights Law, University of Stellenbosch, and Co-Director, Socio-Economic Rights and Administrative Justice Project — SERAJ.