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Courts WILL and DO still grant eviction orders

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In evictions, it is the municipality’s obligation to seek and provide alternative accommodation to tenants left homeless and destitute.

This is according to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) which states that a court “must” grant an eviction order if the court is satisfied that the provisions of the act have been complied with and if the occupiers would be left homeless and destitute, the local municipality will be ordered to provide alternative accommodation.

Where the confusion startedconfused-man

Last week’s ruling in the Constitutional Court where 184 low-income and unemployed tenants in the Kiribilly building in Berea appealed their eviction has created “chaos in the property industry”, according to Cilna Steyn, managing director of SSLR Inc, due to reports that South Africa’s courts are forbidden from making eviction orders – even if they have been agreed to – until those under threat of eviction are aware of and able to exercise their rights, and until a judge can be sure no one will be left homeless.

“Nothing has changed,” says Steyn, noting that the Constitutional Court order does not change the legal position pertaining to evictions. “It is, however, important to note that the eviction order was initially granted based on an agreement reached between the parties at the initial eviction hearing. The occupants were apparently not properly advised at the time of the effect of this agreement, which is why the Constitutional Court held that it was not satisfied that they were fully aware of their rights to defend the matter.

“We have seen many court orders, including orders from the Constitutional Court, compelling municipalities to provide alternative accommodation to occupants who will be left homeless because of an eviction order being granted. In this particular case, the City of Johannesburg was not a party to the proceedings.


How to buy a home with tenants in place already


“The PIE Act is an extension of Section 26 of the Constitution which prohibits evictions without a court order. Once the court has fully familiarised itself with the personal circumstances of the occupant, it details the process that should be followed to successfully obtain an eviction order. If the provisions of PIE are not followed to the letter, no court will be allowed to grant an eviction order.”

Michelle Dickens, MD of TPN, confirms this, saying, “in practical terms, should you comply with the provisions of the PIE Act and ensure that the municipality perform its constitutional duty to provide alternative accommodation, the court must and therefore will grant the eviction order”.


Case background and summary

Satellite view of the corner of Fife and Soper in Berea, Johannesburg

Satellite view of the corner of Fife and Soper roads in Berea, Johannesburg

[1] The central question that arises in this case is whether in eviction proceedings, where an unlawful occupier has purportedly consented to his or her eviction, the Court is absolved from the obligation to consider all relevant circumstances before ordering an eviction. A closely related question is whether an eviction order may be rescinded at the instance of occupiers who had purportedly consented to it.

[2] On 10 September 2013, the High Court of South Africa, Gauteng Local Division, Johannesburg (High Court), granted an order for the eviction of the occupiers from a block of flats, Kiribilly, situated on erven 87 and 88, at the corner of Soper and Fife Roads, Berea, Johannesburg (property). The order was granted purportedly by agreement between the parties in circumstances that are more fully set out later in this judgment.

[3] The applicants are 184 residents of the property and consist of 47 women, 114 men and 23 children. They are cited simply as “the Occupiers” as their particulars were not known at the time of the institution of the proceedings and until the rescission application referred to below was filed. Some of the applicants have resided at the property for periods of up to 26 years. Most of them are low income earners or unemployed.

[4] The applicants are occupiers of the property which was owned by M L Rocchi Investments CC (M L Rocchi) since 1985. The first and second respondents are the joint liquidators of M L Rocchi appointed with effect from 27 September 2011. Mr Calvin Maseko (Mr Maseko), who is involved in the business of property development, purchased the property from the liquidators of M L Rocchi and intended to spend more than R3 million on its upgrade. It appears that it was his intention that, once he had refurbished the property, he would offer the residential apartments for rent. This offer would be extended to the applicants should they apply, and qualify, for leases in the property. While the liquidators remain the nominal respondents, who are obliged to give vacua possessio (vacant possession), Mr Maseko is the de facto (in fact) beneficial respondent who invested the proceeds of his pension in the property and financed the litigation as the liquidators were, and are still, unable to do so.

[5] The amicus curiae (friend of the court), the Poor Flat Dwellers Association, is a non-profit civic association which was formed in 2009 to resist the exploitation of flat dwellers. It represents the plight of many sectional title flat owners and tenants living in former municipality owned flats that are rented out as residential accommodation. Factual Background

[6] On 31 January 2013, and pursuant to the sale, the respondents’ attorneys served a letter on the applicants notifying them of the termination of their right of occupation or lease in respect of the property. According to the Sheriff’s return of service, the letter was affixed on the principal doors of the property. In July 2013, the preliminary notices in terms of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act1 (PIE) were served and an order was obtained authorising the service of the eviction application on the applicants. On 23 August 2013, the Sheriff filed his return indicating that a copy of the notice of eviction had been served on the applicants at the property, as required in terms of section 4(2) of PIE. 2 Earlier, on the same date, the Sheriff also served a section 4(2) notice on the City of Johannesburg (City).

[7] After receiving the section 4(2) notice, the applicants approached Mr Skhulu Ngubane (Mr Ngubane), a ward committee member, for assistance.3 From the facts, it appears that an initial meeting was held with Mr Ngubane and some of the applicants between July and August 2013, at which meeting Mr Ngubane informed the applicants who were present that he would look further into the matter. At a second meeting held on 6 September 2013, Mr Ngubane visited the property and had a meeting with some of the applicants. At this meeting, it appears as if four of the applicants (appearer applicants) were mandated to attend court and seek a postponement in order to enable the applicants to obtain legal representation. Mr Ngubane would also attend with the appearer applicants and speak on their behalf. Neither the applicants nor the City entered an appearance to defend before the hearing of 10 September 2013.

Litigation history

street view berea

Street view of the corner of Fife and Soper roads in Berea, Johannesburg

[8] The application came before Khumalo J in the High Court, on 10 September 2013. The appearer applicants, Mr Ngubane and the respondents’ legal representatives were present in Court when the matter was called for the first time. The applicants were not legally represented. The matter was stood down for the parties to confer. When it was called for the second time, counsel for the respondents informed the Court that the matter had been settled and presented a draft order to the Court. It was submitted that the order had been agreed to by the parties. When asked by the Court, Mr Ngubane confirmed this and the draft order was accordingly made an order of court by Khumalo J on 10 September 2013. The order provided for the following changes (in favour of the applicants) to the draft order: (a) the date of eviction was changed from 31 October 2013 to 15 November 2013; and (b) a first option to enter into the tenancy was provided for in favour of the applicants who qualified in respect of the property once refurbished. Significantly, there was no request for postponement.

[9] Upon realising that a postponement was not secured and that the eviction had been made an order of court “by agreement”, the applicants approached their present legal representatives, the Socio-Economic Rights Institute of South Africa (SERI), in September 2013.

[10] Shortly after engaging the services of SERI, the applicants launched multiple challenges against the eviction order on the grounds set out below. They started with an application for the rescission of the eviction order, followed by a separate application for leave to appeal against the eviction order. Khumalo J dismissed the application for leave to appeal on the basis that the order was not appealable. A petition to the Supreme Court of Appeal failed for the same reason.

[11] The application for rescission of the eviction order was also dismissed by Adams AJ. The applicants launched an application for leave to appeal against the refusal to grant rescission. Pending leave, they brought a separate application to stay their eviction, which was granted by Mphahlele J. That success was however short-lived because shortly thereafter Adams AJ heard and dismissed the for leave to appeal against the refusal of rescission. A further petition to the Supreme Court of Appeal against refusal of rescission was dismissed for lack of prospects.

[12] It is against the backdrop of these successive failures in both the High Court and the Supreme Court of Appeal that the applicants approached this Court. They seek leave to appeal, in terms of rule 19 of this Court’s Rules, against the whole judgment and order granted by Adams AJ in the matter of Occupiers of Erven 87 and 88 Berea Township.


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david.steynberg@gmail.com

David A Steynberg, managing editor and director of HomeTimes, has more than 10 years of experience as both a journalist and editor, having headed up Business Day’s HomeFront supplement, SAPOA’s range of four printed titles, digimags Asset in Africa and the South African Planning Institute’s official title, Planning Africa, as well as B2B titles, Building Africa and Water, Sewage & Effluent magazines. He began his career at Farmer’s Weekly magazine before moving on to People Magazine where he was awarded two Excellence Awards for Best Real Life feature as well as Writer of the Year runner-up. He is also a past fellow of the International Women’s Media Foundation.

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