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JUDICIAL officers cannot be passive observers in eviction matters

27 August 2017

By Commissioner Mohamed Ameermia

The Constitutional Court in the matter of Occupiers of Erven 87 & 88 Berea v De Wet NO and Another, reaffirmed on June 8, 2017 its previous judgments and held that judicial officers have to play an active role in adjudicating eviction matters.

This judgment makes it clear that the application of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE Act) in eviction matters is not discretionary but rather mandatory, with courts ordered to consider whether it is just and equitable in the
circumstances to order an eviction.

Mojapelo AJ penning, for a unanimous court, held that “a court is not absolved from actively engaging with the relevant circumstances where the parties purport to consent”. This judgment affirms and is in line with the judgment handed down by the Gauteng High Court in Pretoria on June 8, 2016, in the matter of the Residents of Arthurstone Village v Amashangana Tribal Authority and Others where the High Court set aside an eviction order granted by the Magistrate of Thulamahashe.

In that particular matter, the residents had approached the South African Human Rights Commission (the “Commission”) for assistance a day after their eviction and contended that the eviction order was erroneously granted and that their eviction was arbitrary. After conducting an investigation into whether the residents’ right to have access to adequate housing, including their right not to be evicted or have their homes demolished arbitrarily, the Commission was of the view that the eviction application, the eviction order and the eviction process did not comply with the PIE Act and Section 26 (3) of the Constitution. In light of the fact that available alternative dispute resolution remedies had been exhausted, the Commission approached the High Court for appropriate relief.

The High Court found that the Third Respondent, the Magistrate of Thulamahashe, had “clearly derelicted its duties” by failing to ensure that the constitutional principles as set out in Section 26(3) of the Constitution and elaborated on in the PIE Act, were complied with.
This is because, in the magistrate’s court, the eviction order had been granted by the magistrate without giving due regard to a number of factors set out in the PIE Act, such as the rights of children, women, the elderly, the disabled and the vulnerable.

All these are factors determine whether an eviction order should be granted.

These factors are crucial considerations which the court should have regard to, as they will assist the judicial officer in determining whether it is “just and equitable” in the circumstances to grant an eviction order. At an international level, the UN Committee on Economic, Social and Cultural Rights in the case of MBD et al v Spain in a communication made available recently, reinforced the important principle that an eviction which is likely to lead to homelessness triggers the duty of the state to provide suitable alternative accommodation.

At a domestic level, the Constitutional Court in Occupiers of Erven 87 & 88 Berea v De Wet NO and Another has reiterated this essential principle.

According to the Constitutional Court where granting of an eviction order triggers the risk of homelessness, the local authority must be joined in the proceedings since, in law, the local authority has a duty to provide temporary, emergency, alternative accommodation to those that might be left homeless as a result of an eviction.

According to the Constitutional Court, the joinder of the local authority, would assist the court in making a determination on whether it would be just and equitable for an eviction order to be granted.

What this shows is that a judicial officer in eviction proceedings is not a passive arbiter existing only to rubberstamp the application for the eviction order. Rather, the judicial officer must apply his or her “independent judicial mind” to the proceedings and take a proactive role to establish the relevant facts, protect the human rights of those being evicted – especially if they are to be rendered homeless – and apply the delicate balance between the competing housing and property rights during such eviction proceedings. Further, the doctrine of stare decisis requires lower courts to follow precedents set by the higher courts.

Thus, it will be failing in its duties, and indeed be a dereliction of duty, if judicial officers in lower courts grant eviction orders which ignore or fail to adhere to constitutional imperatives and precedent, set by the superior courts.

It will indeed be a travesty of justice and most unfortunate when the judiciary, which is supposed to be the guardian of the law, is seen, as or perceived to be complicit in flouting the law. This will be unfortunate for the justice system, as people will lose trust in the legal system.

■ Advocate Mohamed Ameermia is a Commissioner at the South African Human Rights Commission and is responsible for the Right to Housing and Access to Justice and is recipient of the 2017 Robert G Storey Leadership Award from the Centre for American and International Law in Dallas,Texas.

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