South Africa’s legal and political history, based on the deliberate land dispossession of Black people, makes housing one of the country’s most contentious rights.
In eviction cases, the courts are tasked with balancing the rights of property owners against the duty of redressing historic dispossession through a transformational interpretation of the law.
While the legal framework for evictions is in place and the jurisprudence is clear, little is known about how the courts adjudicate eviction applications. A research series recently launched by the Socio-Economic Rights Institute gives insight into how the courts respond in eviction cases to the constitutional considerations that the legislation requires.
Our findings on the Johannesburg magistrate’s court show that the way in which residential evictions are adjudicated is not just and equitable because the court has not been adequately implementing evictions law.
Evictions in South Africa are regulated by The Prevention of Illegal Eviction From And Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), which gives effect to Section 26 (3) of the Constitution. What sets the PIE Act apart from the common law approach to property rights is that it specifically acknowledges and protects the rights of unlawful occupiers.
This means that even people who have no legal right to be on the property have certain levels of protection under this act in order to address the historic dispossession from land and property, as well as the dire need for accommodation and the potentially devastating consequences of homelessness.
For an eviction to be lawful, the procedure and the considerations set out in the PIE Act must be compiled with. The act responds to the socioeconomic realities of the country by providing that the needs of women-headed households, minor children as well as the elderly and disabled are especially protected by the courts. The PIE Act therefore does not make evictions impossible, but holds the conduct of all parties to a just and equitable standard, which should be determined on the merits of each case.
Circumstances of the evicted
The geographic focus of our research is 12 wards in the Johannesburg inner city. Census data from 2011 suggests that 42 500 households (105 000 people), which make up more than half of the households in the inner city, earned less than R3 200 a month at the time, raising questions about the ability of households in this income bracket to access safe, affordable accommodation.
Data was collected from the Johannesburg magistrate’s court on 47 eviction applications brought between 2013 and 2018. Overwhelmingly, the results indicate that eviction matters were not decided in a manner consistent with the provisions of the PIE Act.
Most notably, 44 out of the 47 cases (94%) did not consider the personal circumstances of the evicted household. In every case an order for an eviction was granted, but there was no evidence to suggest that essential information was placed before the court, such as how many people were being evicted, whether there were minor children, disabled or elderly persons in the household, whether the children attended school in the area or whether the eviction would render residents homeless.
In 41 cases (87%), the application to evict was brought on the basis of unpaid monthly rent. Further, in 40 of the cases (85%), matters were entirely undefended. There was no indication that the unrepresented respondents who appeared in court were adequately accommodated and advised of their rights to facilitate the required assessment of their personal circumstances.
The findings reveal that in many cases eviction orders are granted in a manner not compliant with the PIE Act. The most pressing departure from the legislation is the requirement of placing the personal circumstances before the court. Without this, it would be impossible to understand what chance there may be of coming to a solution that would not result in eviction. Essentially, personal circumstances empower the court to make an order, even granting an eviction, in a manner that protects the basic human dignity of the people being evicted from their home.
They further enable the evictee household to communicate their version of events to the court to allow for a balanced understanding of the circumstances that led to the application for eviction in the first place. It is during this process that a court is able to determine whether the household being evicted comprises a vulnerable group and, most importantly, whether or not the eviction will result in homelessness.
In cases where homelessness is the likely outcome, the municipality is obliged to provide temporary emergency accommodation to the affected household. Determining whether or not the municipality is obliged to provide such accommodation cannot be attained without the personal circumstances of the household facing eviction being placed on record, and therefore an eviction order granted in its absence should attract deep scrutiny.
In fact, the Constitutional Court in Occupiers of Erven 87 & 88 Berea v De Wet NO and Another (Kiribilly) clarified that where the court has insufficient information, it must refuse to grant an eviction order stating that “the absence of information is an irrefutable confirmation of the fact that the court is not in a position to exercise this important jurisdiction”.
The need for a hands-on approach from the judiciary in adjudicating eviction applications is clear. This may require revisiting training provided to magistrates, monitoring by the Office of the Chief Justice of eviction orders issued by the magistrate’s court and directions from the judges president at each high court to address the systemic failings. The courts should redirect their focus to implementing the law in a manner most consistent with overarching constitutional principles to ensure a just and equitable outcome and to afford the protections offered by the PIE Act to the impoverished and vulnerable.
Yvonne Erasmus is a senior researcher at Socio-Economic Rights Institute (SERI). She holds an interdisciplinary social science PhD from St George’s, University of London and an MA in Development Studies from the University of the Witwatersrand.
Nerishka Singh joined SERI as a candidate attorney in January 2020 after working as a research intern at SERI from February 2019. She holds BA (Political Studies) and LLB degrees from the University of the Witwatersrand.