Author: Maryna Botha – STBB
27 July 2017
OCCUIER’S CONSENT TO EVICTION NOT THE END OF THE ENQUIRY
OCCUPIERS OF ERVEN 87 AND 88 BEREA V DE WET N.O. AND ANOTHER (CCT108/16)  ZACC 18 (8 JUNE 2017)
The Constitutional Court held in this matter that even where there was a purported consent by an illegal occupier to eviction, this did not absolve the Court from its duty to consider all the relevant circumstances and satisfying itself that it is just and equitable to grant the eviction order. It was required of a Court, as a first step, to be satisfied that the parties freely, voluntarily and in full knowledge of their rights agreed to the eviction. In addition, courts had to be alive to the risk of homelessness and the issue of joining the local authority to discharge any duties to provide alternative housing it may have.
SUMMARY OF JUDGMENT:
This matter deals with an appeal to the Constitutional Court against a judgment and order of the Gauteng High Court (Johannesburg). The High Court refused to rescind an eviction order that had been granted against 184 men, women and children (the occupiers) who (illegally) occupied a block of flats situated in Berea, Johannesburg.
The property was owned by ML Rocchi Investments CC (ML Rocchi) since 1985. After the affairs of ML Rocchi were placed under liquidation two liquidators were appointed to realise the assets in the corporation’s insolvent estate.
The property was subsequently sold to one Maseko, who had the intention to spend more than R3 million on the upgrade thereof and to lease the property as residential accommodation.
In January 2013, the liquidators served a letter on the occupiers notifying them of the termination of their right of occupation of the premises. After the service of preliminary notices in terms of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE), an order of court was obtained authorising the service of the eviction application on the occupiers.
After receiving the application, the occupiers approached a ward committee member to assist and accompany them to court. The occupiers contended that those present in court were only authorised to obtain a postponement of the application for the eviction. When the application came before the High Court on 10 September 2013, the ward councillor and four occupiers were in court. Counsel for the Liquidators told the Court that the matter had been settled privately and a draft order was then presented to the Court and made an order of court “by agreement”. In terms hereof the occupiers agreed to the eviction.
After realising that a postponement was not secured and that the eviction had been made an order of court by agreement, the occupiers secured legal representation and made application to rescind the eviction order. The High Court dismissed the application for rescission and held that the eviction Court had discharged its statutory obligations under PIE. As a result, the application was dismissed and leave to appeal was refused by the High Court and the Supreme Court of Appeal.
The occupiers then appealed to the Constitutional Court. There they submitted that, in fact, there never was an actual agreement and that even if they had consented, that consent was not legally valid. They further submitted that the Court dealing with their eviction was under constitutional and statutory duties to satisfy itself that the eviction would be just and equitable after considering all the relevant circumstances, even if it appeared that there was in fact agreement. The occupiers argued that the eviction order had to be rescinded.
The liquidators submitted that the occupiers did not have any right to occupy the property and had failed to disclose any defence. They also submitted that the occupiers had failed to take any steps to secure alternative accommodation and had representation when the matter was heard in court. Lastly, the liquidators contended that the occupiers had failed to establish sufficient cause for rescission of the consent order.
The Poor Flat Dwellers Association (Association), a non-profit civic association, was admitted as a friend of the Court. The Association submitted that even in cases where parties in eviction proceedings seek to have an eviction order by agreement granted, such consent does not relieve a court of its obligation to perform the judicial oversight function imposed by PIE.
• The central issue in this case was whether in eviction proceedings, where an unlawful occupier has purportedly consented to his or her eviction, the Court was absolved from the obligation to consider all relevant circumstances before ordering an eviction.
Was the factual consent legally effective?
• It was probable that the mandated occupiers in fact consented to the eviction order. However, neither the four mandated occupiers nor the ward councillor had the requisite mandate to bind the absent occupiers regarding the eviction order. Also, for the consent to be legally effective, it must have been given by the occupiers freely and voluntarily and with the full awareness of the rights being waived. It had to be an informed consent in order to be valid. In the present matter, a consent to an eviction order would entail the waiver of, at a minimum, the constitutional and statutory rights to—
i. an eviction only after a court has considered all the relevant circumstances (s 26(3) of the Constitution);
ii. the joinder of the local authority and production by it of a report on the need and availability of alternative accommodation;
iii. a just and equitable order in terms of the provisions of PIE; and iv. temporary alternative accommodation in the event that eviction would result in homelessness.
• If these rights were capable of waiver, such waiver would need to be free, voluntary and informed. It was unlikely, given that they had no legal representation at the time, that they would have been aware of the full extent of their rights under PIE and the Constitution. Since it was undisputed that all the occupiers were not informed of any or all of these rights, it had to be accepted that they were unaware of the rights. The consent that they gave was therefore not informed and therefore not legally valid or binding on them.
As to duties of a court dealing with purported consent to eviction
• The duties of a court when dealing with proceedings for eviction from residences generally, and when faced with actual or purported consent to eviction, arose from the protection of the rights of residents and were therefore inextricably intertwined with the issue of informed consent and waiver. The starting point was s 26(3) of the Constitution, which enjoined courts seized with eviction matters to ‘consider all relevant circumstances’.
• PIE gave effect to this provision by further enjoining courts to order eviction only ‘if it [were] of the opinion that it [would be] just and equitable to do so, after considering all the relevant circumstances’, and if so, to determine under what conditions.
• It was apparent from the nature of this twofold enquiry that a court would need to be informed of all the relevant circumstances in each case. In discharging the duty imposed by s 26(3) of Constitution and PIE—to consider the justice and equity of eviction—courts were required to be proactive in establishing the relevant facts. Where no information was available, or only inadequate information, the court must decline to make an eviction order.
• In this context it was clear that the purported consent by the parties did not absolve the Court from its duties in terms of PIE. This did not mean that a court was precluded from making a settlement agreement an order of court where that order will result in eviction. When faced with a settlement agreement, a court may take this into account as one of the relevant circumstances in its just and equitable interrogation. In this instance, the Court must as a first step be satisfied that the parties freely, voluntarily and in full knowledge of their rights agreed to the eviction. However, the enquiry did not end there. Courts must also be alive to the risk of homelessness and the issue of joining the local authority to discharge any duties it may have.
• Here the High Court took a passive approach to the eviction proceedings and assumed, incorrectly, that where there was consent to eviction, the Court was relieved of its duties under PIE. The Court that granted the eviction order failed to appreciate that it was obliged to be proactive in gathering information about all the relevant circumstances, considering that information and arriving at a just and equitable order in the circumstances of each case.
Duties of a court when risk that eviction may result in homelessness apparent
• The High Court was also wrong to conclude that the eviction was just and equitable. This was so because, on the facts, resulting homelessness was an undisputed risk in this matter. The risk of homelessness triggered a local authority’s duty to provide temporary emergency accommodation. This duty must be read together with the provisions of section 4(7) of PIE, that one of the circumstances which may be relevant to the just and equitable enquiry was ‘whether land has been made available . . . by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier’.
• It followed that where there was a risk that eviction may result in homelessness, the availability of alternative accommodation became a relevant circumstance that had to be taken into account.
The eviction order was therefore set aside.
The Judgment can be viewed here: