OPINION: Judges sidestep the law and fail to protect the vulnerable


It is a matter of grave concern when judges ignore the laws of our country. Unfortunately, despite a significant improvement in South African law relating to evictions — through legislation and Constitutional Court decisions — the courts often fail to extend these protections to poor and vulnerable people.

Millions of South Africans do not have access to adequate housing.

Despite large-scale government projects since 1994, there remains a housing backlog of about 2.1-million households.

The Constitutional Court has recognised that it is this housing crisis, and not the intention to steal land, that is the major reason why many people "find themselves compelled by poverty and landlessness to live in shacks on the land of others".

Section 26(3) of the constitution provides that no law may permit arbitrary evictions and also that one may not be evicted from one’s home, or have one’s house demolished, without a court order.

To provide further protection against arbitrary evictions, the National Assembly passed the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998, which provides for a detailed process to be followed by a judge considering an eviction. It also requires judges to take into account a number of factors, including the needs of the elderly, children and disabled, and whether alternative land has been made available by the state for relocation.

The Constitutional Court has, in the past 10 years, developed the case law on evictions to provide significant protections for poor people. Most cases, however, do not reach the Constitutional Court and, thus, for its judgments to be meaningful, they must be followed by our lower courts.

Since our legal system operates on the basis of precedent — in which lower courts are bound by the decisions of higher courts — this should not be a problem. However, several recent judgments suggest that the protections offered by our law are not being translated from principle into practice.

In the Schubart Park case, a community of between 3,000 and 5,000 people was evicted from four high-rise buildings in Pretoria without an order of court after protests about living conditions in these buildings.

Judge Bill Prinsloo of the North Gauteng High Court refused to order that the occupants of these buildings are entitled to return, citing expert evidence about safety concerns. In a recent judgment, the Constitutional Court found several defects in the orders of the high court and, in particular, its willingness to dispense with the important protection — that the city would have to acquire an order of court before any eviction became permanent.

An even worse example of judicial failure was evident in the Marlboro Crisis Committee case, which dealt with a situation in which a large number of occupiers of land in Marlboro, Johannesburg, had their homes bulldozed by the police. The police, however, did not acquire a court order before the eviction. The occupiers approached the South Gauteng High Court, seeking an order to be restored to the possession of their land and for the rebuilding of their shelters.

Judge Nare Kgomo dismissed the application, finding that the lack of a court order did not render the police demolition of the occupiers’ structures and the subsequent eviction unlawful (despite the occupiers having lived on the land between at least May 17 and August 3 last year).

Kgomo held that the police were simply doing their job of enforcing the law and the occupiers had never enjoyed peaceful and undisturbed possession of the land.

This judgment is particularly disturbing for a number of reasons.

First, the judge in effect ignored the constitution, the act and the case law in this area, which provide protections for those unlawfully occupying property. Instead, he relied on pre-1994 case law to justify his decision.

What is the point of legal developments if they are simply disregarded in favour of judgments made during apartheid, when rights were regularly violated and arbitrary evictions were the norm?

Second, the judgment bristles with harsh and unsympathetic language, branding the occupiers as "invaders" and "land grabbers". The Constitutional Court has previously strongly criticised the use of these terms in describing unlawful occupiers, as "it detracts from the humanity of the occupiers, is emotive and judgmental, and comes close to criminalising the occupiers".

The judge, in an inappropriate reference to a personal encounter with a "vibrant choir" of poor people outside the high court, appears to question the bona fide existence of landless and despoiled persons.

The judgment also, at several points, expresses disdain for those who are seeking to protect the interests of the vulnerable, referring to them as "so-called human rights activists and/or experts" and as "superdemocrats who stand at the rooftops and scream, ‘murder’ when unlawful occupiers or invaders or grabbers of land belonging to others are removed from their ill-begotten spoils".

Finally, while the judge appeared to be legitimately concerned with deliberate schemes to occupy land unlawfully, the act could have been used to address this, as it specifically declares it an offence for anyone to solicit payment for arranging for people to occupy land without an owner’s consent. The judge did not adequately distinguish between those in desperate circumstances needing a home and those who try to profit from these people’s desperation.

The Marlboro case went on appeal to the Constitutional Court and was settled just before the hearing.

In what appears to be a clear recognition of wrongful action, the City of Johannesburg accepted, in the conditions of the order, that if it sought a future eviction of the occupiers, it would first have to institute legal proceedings in court.

The unlikelihood of the city’s success in the higher courts led to a settlement; in the meantime, the actions of the police and the retroactive approval thereof by the high court must have caused untold misery and destitution for those involved.

In general, evictions lead to more unlawful occupations, which lead to further evictions, perpetuating the cycle of homelessness.

That is why the act requires judges to think carefully whether to order an eviction and, if so, how to structure it.

These cases (and others) raise important concerns about continued evictions of poor people by the government and the private sector, but also about the commitment of some high court judges to the transformative vision of the constitution.

More fundamentally, however, serious questions must be asked about the action that should be taken when judges pen judgments that fall so far outside the boundaries of precedent and result in an abrogation of the rights of the most vulnerable.

• David Bilchitz is a professor at the University of Johannesburg and director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law. Mackintosh is an independent legal researcher.