Eviction orders not in line with Constitution, says legal organisation

The Socio-Economic Rights Institute says that Johannesburg’s Central Magistrate’s Court is often not applying the relevant laws

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Philberta Court is a block of apartments in Hillbrow, Johannesburg. The Socio-Economic Rights Institute analysed the eviction orders in this and other blocks. Photo: Masego Mafata

  • The Socio-Economic Rights Institute of South Africa (SERI) has analysed 47 of the 65 evictions granted by the Johannesburg Central Magistrate’s Court from 2013 to 2018.
  • Most of the cases were over non-payment of a monthly rental.
  • In the vast majority of cases the evictees had no legal representation.

Research by the Socio-Economic Rights Institute of South Africa (SERI) argues that the Johannesburg Central Magistrate’s Court has failed to implement the law in its eviction rulings.

SERI analysed eviction rulings by the magistrate’s court from 2013 to 2018 in 12 wards in Johannesburg’s inner-city, where many of SERI’s clients have faced eviction.

Researchers found 65 evictions granted by the court during this period. They were able to analyse 47 of them. Most of the applications were for tenants in Hillbrow and Yeoville.

Researchers analysed whether the court had implemented relevant legislation when granting evictions, including section 26(3) of the Constitution, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act) and case law.

According to the Constitution and the PIE Act, evictions must be carried out using a court order. The PIE Act, which details the eviction procedure, states that occupiers must be served with a 14-day eviction notice and an eviction order from the court. The PIE Act also makes provisions for the City of Johannesburg to intervene and provide temporary emergency accommodation in cases where evictions lead to homelessness.

In its report released on Wednesday, SERI found that eviction rulings by the court failed to “properly apply the law in cases of inner-city evictions”. The report found that eviction rulings during the six-year period did not uphold the right to access adequate housing.

The report is the first output in its Evictions Research Series titled ‘Just and Equitable?’

Court appearance sheets revealed that only in four of 47 cases did both the eviction applicants and the evictees have legal representation. In 42 only the applicants had legal representation.

Without legal representation, many evictees were not able to oppose the evictions by presenting “their version of events or any pertinent information to the courts”, said SERI candidate attorney Nerishka Singh, during the virtual launch on Wednesday. Singh is the lead author of the report.

Under Section 4 of the PIE Act, the court must be made aware of the personal circumstances of the household being evicted. Despite this, personal circumstances of households were not considered in 44 of the evictions ordered by the magistrate’s court.

This meant that eviction orders were often granted without considering whether the households would be rendered homeless by the order, even though a 2017 Constitutional Court ruling holds that evictions that lead to homelessness are unlawful.

Singh said personal circumstances would include the number of people being evicted and whether any of them were minors, disabled or elderly people. These are all protected groups under PIE, said Singh.

The researchers found that 41 of the evictions “relate to the non-payment of a monthly rental as opposed to a building being unlawfully occupied from the onset”.

At the launch, Siyabonga Mahlangu, from the Inner City Federation (ICF), said the procedure followed by the court in eviction rulings in the inner city was an issue it had been challenging for a while. ICF is a group of tenants and unlawful occupiers from buildings in the Johannesburg inner-city advocating for better housing and basic services.

Mahlangu said ICF has dealt with many eviction cases where evictees’ personal circumstances were not considered and they were rendered homeless. He said the eviction rulings by the magistrate’s court – which are the most accessible courts to people from low-income households – “oppressed the poor”.

Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said the report highlighted the need to train magistrates and other judicial officials on the application of the PIE Act.

“Magistrates’ courts are an important part of our judicial system but they are under-researched. This report is useful in thinking about what happens in the magistrates’ court and the challenges people face in the system,” he said.

Based on the report’s findings, SERI made the following recommendations:

  • That the judiciary makes sure the evictions law in magistrates’ courts is consistently applied in line with the Constitution.
  • That both the City and the court consider the personal circumstances of those being evicted, in particular when an eviction may lead to homelessness.
  • That municipalities ensure that temporary alternative accommodation is available to those who need it.
  • That planning for the provision of housing is informed by the high rate of evictions due to non-payment of rent.
TOPICS:  Housing

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