OPINION - Inner-city regeneration initiatives in Durban, Cape Town and Johannesburg are necessary to ensure the well-being and safety of tenants and occupants in multi-storey residential buildings and other types of accommodation. What is imperative is how these cities prevent the possible evictions and homelessness that often follow when they place the owners and slumlords on notice to make their property safe and humane for occupation. Where evictions are inevitable, these cities must respond to the needs of the poor, destitute occupants.
The City of Johannesburg approached the high court to evict about 400 occupiers from six properties because they were living in conditions that were unfit for human habitation and which posed health and fire risks in some cases.
The dwellings comprised houses with internal partitions and shacks on the property, high-rise buildings and a partially gutted double-storey without a roof that was once used as a commercial property. The application for eviction was necessitated by the city’s Inner City Regeneration Strategy, aimed at reversing inner city decay.
The cases were consolidated, in that the different court applications that affected several owners and landlords were heard together before Judge Jajbhay in 2006 in the Witwatersrand Local Division (City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 (1) SA 78 (W).
The judge, together with the parties, also conducted an inspection of the properties that confirmed the conditions to be “in fact appalling and at times disgraceful”, but not as bad as the city made it out to be.
The judge refused to grant the eviction orders.
The judge viewed the right to housing as a basic human right and, as part of the socio-economic rights provided for in the Constitution. The city had to find the resources to comply with the Constitutional and statutory obligations to address the needs of people who were in “a crisis situation, or otherwise in desperate need of accommodation”.
The city was prevented from evicting the occupiers/tenants until it devised and implemented a comprehensive housing programme that would take adequate account of their housing needs. The city took the matter to the Supreme Court of Appeal (SCA), which overturned the judgment, thereby granting the evictions (City of Johannesburg v Rand Properties (Pty) Ltd and others [2007] 2 All SA 459 (SCA).
The judgment of Acting Judge President Harms was supported by four judges. The SCA, however, made it conditional that the city provide alternative housing to those evictees who may become homeless.
The occupiers/tenants decided to challenge the SCA’s decision by approaching the Constitutional Court (CC). The occupiers triumphed at the apex court, which overturned the decision of the SCA in February 2008 (Occupiers of 51 Olivia Road, Berea Township and Others v City of Johannesburg and Others, 2008 (5) BCLR 475 (CC).
In a unanimous judgment by Judge Yacoob (nine judges agreeing with him), the Constitutional Court made three major findings: -
* There must be a process of meaningful consultation between the city and the people it intends to evict. People are human beings.
* The city must make alternate (sic) accommodation available if eviction leads to homelessness of occupiers of buildings that are unsafe and unhealthy.
* The court amended Section 12 (6)) of the National Building Regulations and Building Standards Act 103 of 1977.
Where criminal sanction could follow for non-compliance to vacate an unsafe building immediately, or within a period specified in a notice issued by a municipality, such action must now follow after the municipality has obtained an eviction order.
What is the impact of the case for other related matters between a municipality and its tenants, or tenants in privately-owned buildings like the occupiers of 51 Olivia Road, Berea?
Can a municipality grant an owner permission to demolish a dwelling without enquiring about occupation by tenants?
Can permission be given to convert a dwelling for non-residential use while tenants occupy it?
Municipalities presently grant such permissions, at great distress to tenants, even rendering some families homeless. They also compel landlords to evict tenants from derelict buildings and “sweatshops”.
Notwithstanding the hazardous condition of the building, in seeking a court order to evict occupiers/tenants or granting permission to owners to demolish, the municipality is responsible for displacing families or occupants when its constitutional duty is to provide accommodation.
It is the responsibility of the officials to investigate an application to demolish, the circumstances that necessitated such an application and the position of both the owner and the occupants.
It is also the duty of officials to engage with other departments, to ascertain the negative consequences, if any, in taking a decision to grant an owner or landlord permission to demolish or to have services disconnected or give consent to convert a dwelling for non-residential purpose.
Yacoob J in the Occupiers of 51 Olivia Road case made the following remarks:
“Municipal officials do not act appropriately if they take insulated decisions in respect of different duties that they are obliged to perform.
“In this case, the city had a duty to ensure safe and healthy buildings on the one hand and to take reasonable measures within its available resources to make the right of access to adequate housing more accessible as time progresses on the other.
“It cannot be that the city is entitled to make decisions on each of these two aspects separately, one department making a decision on whether someone should be evicted and some other department in the bureaucratic maze determining whether housing should be provided. The housing provision and the health and safety provision must be read together.”
The Constitutional Court judgment on the Occupiers of 51 Olivia Road has serious implications for organs of State. And municipalities must adhere to the constitutional requirements of the country. Officials must be accountable for the consequences of their decisions and need to grasp the reality of being public servants.
Dr Sayed Iqbal Mohamed is chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. For advice, contact Pretty Gumede or Loshni Naidoo at 0313046451 / [email protected] or [email protected]