City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11  ZACC 33 (1 December 2011)
The South African Constitutional Court has held that the City of Johannesburg had a constitutional obligation to provide emergency accommodation to vulnerable persons evicted by a private landlord.
This case concerned the attempt to evict 86 people from a property called Saratoga Avenue in the City of Johannesberg. The premises are an old and rundown commercial building with office space, a factory building and garages.
The facts revealed that the Occupiers lived on an extremely low income and what little money they had was earned by working in the ‘informal sector’ of the central business district. The group included children and people with disability. All of the Occupiers had lived in the premises for more than 6 months and some of the group had resided there for many years. Some of the group had lived at the property during the 1990s and for a period paid rent with consent of a company, which controlled the premises.
In 2004, Blue Moonlight Properties purchased the property with an intention to redevelop.
In 2005, Blue Moonlight issued a notice to vacate the premises based on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
In May 2006, Blue Moonlight issued eviction proceedings in the South African High Court. The Occupiers opposed the eviction on the basis that it would leave them homeless and they applied to join the City to proceedings.
In February 2010 the High Court ordered the eviction of the Occupiers. In addition, the Court found that the City’s housing policy was unconstitutional and ordered this to be rectified by providing the Occupiers with temporary accommodation.
The City appealed to the Supreme Court and successfully applied to admit new evidence on the basis of an updated housing policy. In this proceeding, the Court upheld the eviction order and found again that the City’s housing policy was unconstitutional. Again, the City was required to provide the Occupiers with temporary emergency accommodation. The City appealed against this finding to the Constitutional Court of South Africa.
The Constitutional Court considered the entitlement of Blue Moonlight to evict the Occupiers.
Section 4 of PIE establishes that unlawful occupiers of land may only be evicted if it is just and equitable to do so, after consideration of all relevant circumstances. The Constitutional Court noted that relevant considerations included:
- the rights of the owner in light of the constitution and PIE obligations;
- the obligation of the City to provide accommodation;
- the sufficiency of City resources;
- the constitutionality of the City emergency housing policy; and
- the appropriateness of an order in light of previous conclusions on the issues.
The Court noted that the Occupiers had occupied the premises for more than 6 months, the occupation had once been lawful, the landlord had been aware of the Occupiers when they purchased the property and eviction would result in homelessness. It was held that Blue Moonlight would have been aware that the occupation may continue for some time and need to be ‘somewhat patient’ [at 40]. In light of such consideration, the Court considered the housing options of the Occupiers in the event of eviction.
The City’s obligation and ability to provide emergency housing for the Occupiers was held to be relevant to the ability of Blue Moonlight to evict. In considering this issue, the Court reviewed the constitutional and legal framework governing the City’s obligations.
The right to have access to adequate housing is set out in section 26 of the South African Constitution that states:
- Everyone has the right to have access to adequate housing.
- The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
- No one maybe evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
The Court also considered the obligations created by Chapter 12 of the National Housing Code which addresses emergency housing for people in emergency for reasons beyond their control (including evictions from unsafe buildings).
In responding to this legislative framework, the City relied on its Housing Report for implementation of its obligations under Chapter 12 of the Housing Code. It is worth noting that while the Housing Report provides for the provision of temporary emergency housing for people being relocated from dangerous buildings, this document does not provide an obligation on the City in respect of people relocated from premises by private property owners.
The City relied on the Grootboom decision and its Housing Report to argue that local government is a point of service delivery and was entirely dependent on national and provincial government for funding.
The Constitutional Court rejected the argument that local government was unable to fund emergency housing and held that the City had failed to demonstrate that it lacked the resources to provide emergency housing for the Occupiers. Further, the Court found there was no justification for the distinction between people being relocated from premises owned by public authorities and those owned by private property owners. Such a distinction was held to offend section 9(1) of the Constitution which provides everyone is equal before the law.
As a result of these findings, Blue Moonlight was held to be entitled to possession and the City’s housing policy was declared unconstitutional. Further, the City was obliged to provide the Occupiers with temporary accommodation.
Relevance to the Victorian Charter
The considerable legislative housing protections available in South Africa must be considered in light of the massive scale of homelessness that these provisions were designed to address. The Constitutional Court in Blue Moonlight noted that in 2001 South Africa had 1.8 million households (each consisting of approximately 3 people) without adequate housing and that the City of Johannesburg has an estimated 423,249 households in this situation.
Leaving aside issues of jurisdiction, the ability to raise Charter arguments in defense of a tenant’s home depends to a significant extent on their landlord. For people at risk of eviction from social housing it is possible to rely on section 38 of the Charter, while those in private premises are excluded from access. In such circumstances it is worth repeating the comments of the Constitutional Court that for those faced with eviction, “it matters little to the evicted who the evictor is” [at 92].
On a general level, this decision demonstrates the centrality of rights in addressing homelessness and weighing government responses to this issue. In Blue Moonlight, the Constitutional Court grappled with the issues of legislative and constitutional interpretation in order to balance resource considerations, reasonableness and hardship of vulnerable people. Such considerations gave rise to the identification of the unjustifiable discrimination in government policy and also to muddled arguments relating to the availability of resources. In order to address and prevent homelessness, such high level judicial engagement is extremely valuable.
The decision can be found online at: http://www.saflii.org/za/cases/ZACC/2011/33.html
Chris Povey is the Manager / Principal Lawyer of the PILCH Homeless Persons' Legal Clinic