Constitutional Hill

evictions

On banks, judges and the right to housing

Apr 13th, 2011
by Pierre De Vos.
43 comments

When Elsie Gundwana (pictured below) went to Nedbank in 1995 to borrow R25 000 to help her buy a house in Thembalethu outside George, she could not have known that the granting of this mortgage bond by the bank would cause her so much pain and sleepless nights. She could also not have known that her fight with Nedbank (“who are those people?”) would end up in the Constitutional Court and that she would eventually win a clear legal victory against one of the mighty banks in South Africa.

For Ms Gundwana her house was literally her life. She stays in the house with family members, but also utilises part of the house to run the only Bed & and Breakfast establishment in Thembalethu. As she wrote in a letter explaining her predicament (reproduced here in full):

I bought this house about eighteen years ago. This is not only a house to me.  This is my home, my source of income, a legacy that I would like to leave for my children.  With this house, I want to break the chain of poverty that has been handed within my family from generation to generation.

ElsieWhen she fell behind with her payments to the bank, the Registrar of the High Court – at the Bank’s insistence – granted default judgment against her for the outstanding amount of the debt. No judge was involved in the decision about whether to grant this order. This judgment meant that the house could be sold in execution, but the bank did not take further action because Ms Gundwana went to the bank and arranged to make two large payments to wipe out her arrears. She says she thought this meant that the bank would no longer seek to sell her house in execution.  

She continued paying the bank – as if the original mortgage bond was still in place – until 2007 when she again fell behind with her payments. She then learnt – on a return from a visit to her sister in Cape Town – that the house would be sold in execution. She promised the bank that she would pay the arrears of more or less R5000 and made an initial payment of R2000 to this effect, thinking that the bank would not go ahead with selling her house. She was wrong. Banks, so it seems, do not always adhere to the ethos represented by their advertisements. Two days after the bank took her R2000, it sold her house to Steko Development CC. An application was then made to evict her from her house.

Ms Gundwana resisted the eviction and also took steps to have the original order to have her house sold in execution rescinded. She was, unfortunately, not well served by various lawyers, but eventually received sound legal advice (even if I have to say so myself) and her case – in which she challenged the constitutionality of the rule that the Registrar of a High Court could declare immovable property specially executable when ordering default judgment under Rule 31(5) of the Uniform Rules of Court and that the house could then be sold – ended up in the Constitutional Court. (Full disclosure: my sister was the advocate who argued this case in the Constitutional Court and I provided legal advice.)

In Gudwana v Steko Development CC and Others the Constitutional Court (Froneman J writing for a unanimous court), declared this rule unconstitutional as it found that the rule infringed on the rights set out in section 26 of the South African Constitution. A similar rule relating to the Magistrate’s court had already been declared invalid in Jaftha v Schoeman several years ago, but banks were circumventing the Jaftha decision by approaching the Registrar of the High Court – even where the amount due would normally mean they would approach the Magistrates Court – to ensure that the Registrar would be able to grant default judgment against defaulters.

The legal problem in this case centred around the Supreme Court of Appeal (SCA) who, in its wisdom, had found in the case of Standard Bank v Saunderson that the principles set out in Jaftha v Schoeman would not ordinarily be applicable to mortgage bonds as such bonds were a very special kind of legal instrument. The SCA found that the Registrar was therefore constitutionally entitled to make execution orders when granting default judgment in cases where the debt arose out of a mortgage bond agreement and that a judge need not be involved in such cases. This reasoning of the SCA in the Saunderson was perplexing. It was almost as if it thought that certain common law rules and principles were so important for the economic well-being of the country that these were not subject to the discipline of the Constitution.

Section 26 of the Constitution clearly states that:

  1. Everyone has the right to have access to adequate housing.
  2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
  3. No one may be 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.

In Jaftha this was taken to mean that only a court (in this case the Magistrates Court) could declare immovable property executable, which they would do unless there were very good reasons not to. The Jaftha decision found that administrators could not make decisions which might lead to an individual losing access to housing or to being evicted from a house as this was prohibited by the Constitution.

Of course, section 26 of the Constitution should not be read as meaning that one would never have one’s house sold in execution if one did not pay one’s bond instalments in time. Bondholders have a duty to keep on paying their mortgage bonds. If one obtains a loan from a bank in the form of a mortgage bond and one does not repay the bond, then the bank would normally be able to convince the judge that default judgment should be granted and that the house over which the bond was registered could be sold in execution. Banks are entitled to take steps to make sure that bondholders pay their bonds.

But where the bank acts in a callous and unreasonable manner to force payment (for example where the bank wishes to sell the house in execution even where the amount outstanding is very small and other mechanism apart from selling a house in execution is available to force the bondholder to pay his or her debt) a court may well find that the granting of default judgment and the sale in execution should not proceed.

What is important is that there will now always be judicial oversight over this process. Banks won’t be able to go to the Registrar in the hope of obtaining a default judgment against the defaulter – even where that defaulter owes a few hundred Rand to the bank and may well pay back the amount owed  to the bank in the near future. Ms Gundwana’s legal battle is not over yet. Her lawyers will have to go back to the High Court to try and convince the court that the default judgment should not have been granted by the Registrar.  

But for now she can stay on in her house. I for one, am rather happy. Ms Gundwana, her attorney informs me, is ecstatic.

The dark side of the Fifa World Cup?

Dec 10th, 2009
by Pierre De Vos.
25 comments

When Adv Geoff Budlender stood up to argue the Grootboom case on behalf of the amicus curiae in front of the eleven judges of the Constitutional Court, they leaned forward in their seats, eager to fire sharp questions at the former Director General of Land Affairs.

By the time Budlender sat down, the judges looked subdued. Budlender had made a brilliant case for the enforcement of the right of access to housing protected in section 26 of the Constitution and when a unanimous court handed down judgment, it finally gave some substance to the social and economic rights contained in the Constitution.

Although many of us felt that the court did not go far enough, the Grootboom judgement nevertheless provided a powerful legal tool later used to great effect by the Treatment Action Campaign in its fight against the irrational and dangerous HIV policy of the then government.

For me the most powerful moment of Budlender’s performance came when one of the judges (I forget which one) asked him whether the court would not be encouraging homeless people to take the law into their own hands if it ruled in favor of the Grootboom community. Would such a ruling not in effect encourage criminality?

Budlender looked the judge straight in the eye and said that the law as it stood already criminalized the homeless merely for not having a home because every single night homeless persons were forced to trespass by sleeping on someone’s property. It was exactly a policy that ignored the plight of the homeless that encouraged criminality, as it forced the homeless to break the law merely to survive.

I was reminded of this fact when I heard that the City of Cape Town has been taking steps to remove the homeless from the streets of the mother city  for the Fifa World Cup draw and were also making plans to ensure that there would be no homeless people in the streets for the actual world cup.

It is unclear what exactly is taking place. I have received reports that the City used a new bylaw to lock up homeless persons during the draw and that it was also forcing homeless persons to sign a letter promising that they would leave Cape Town for the duration of the World Cup. If they refuse to sign, they are threatened with arrest.

I have been unable to confirm these allegations, but if it is true, it would mean that the rights of a particularly poor and marginalized section of our community are being abused in the most flagrant manner by the City. Recently, the Legal Resources Centre lodged papers to challenge similar loitering bylaws in Johannesburg as such bylaws infringes on the right to freedom of movement and in effect criminalizes poverty.

Perhaps officials from the City could clarify their stance towards the homeless. An undertaking that the City would not lock up anyone merely for not having a roof over their heads would be a good start.

Some might argue that the authorities (whether in Cape Town or Johannesburg) have a legitimate reason for locking up the homeless or for taking steps to clear them off the streets for the World Cup. After all, we would not want Sepp Blatter to be confronted by a homeless person when he steps out of his fancy car to enter a Restaurant where he might spend more than a few thousands Rand on a meal.

It seems to me that such a view fails to take cognizance of the fact that our constitution is premised on the idea that every single individual has equal moral worth and must be treated as an equal human being. Steps to clear the streets of homeless people that involve any form of coercion will clearly limit the rights of the homeless. Not unlike the sodomy law, which the Constitutional Court said was so deeply offensive because it criminalized a class of people for doing no more than trying to live a life of dignity and respect, bylaws that in effect criminalize homelessness cannot be squared with the ethos of our Constitution.

I cannot see how such a drastic infringement of the rights of fellow citizens could ever be justified merely on the grounds that South African cities want to present a good image to foreign visitors.

Although I will probably cheer along with everyone else when the World Cup finally starts (despite having misgivings about the morality of spending billions of Rands on Soccer Stadiums that are not needed while many South Africans have no food to eat, no houses to stay in and no access to proper medical care), the rumors about the mistreatment of the homeless reminds me again of the dark side of the Fifa World Cup.

But maybe these rumors are completely false. If they are, I am sure the City of Cape Town will immediately reassure us that they are not planning to force homeless people off the streets to impress rich foreigners who will be visiting for the World Cup. If the city does not reassure us, we will know that it endorses the criminalization of poverty. Anyone with more information, please let us know what is going on.

Sanity and humanity prevails – for now

Sep 8th, 2009
by Pierre De Vos.
30 comments

When the Constitutional Court granted an order in June, allowing the government to remove the residents of Joe Slovo outside the city of Cape Town to Delft 20 km away, some of us wondered quietly whether the government had not perhaps been as untruthful to the court as it had previously been untruthful to the residents of Joe Slovo.

The government had told Joe Slovo residents that they would be moved “for their own good” so that houses could be built for them as part of the N2 Gateway Project, but after the completion of phase 1 of the Project it transpired that few of those removed from Joe Slovo would be able to afford the rent of the new units. Those residents who were gullible enough to believe the government and agreed to move to Delft during phase 1 are mostly still languishing in Delft while others (with political connections?) have moved in to “their” homes at Joe Slovo.

The court was told that the 15000 individuals who had remained in Joe Slovo after phase 1 could be moved to Delft during phase 2 of the project to allow for an “upgrade” of the rest of Joe Slovo and that 70% of the new houses to be built at the site of Joe Slovo (which would not number fewer than 1 500) would be allocated to the residents who had been removed from Joe Slovo.

The eviction order was granted on condition that temporary accommodation - meeting certain basic standards – were provided in Delft  and that 70% of the new houses were allocated to Joe Slovo residents. These conditions considerably softened the heartless order made by the Cape High Court, while still endorsing a mad, farcically bureaucratic, scheme reminiscent of the apartheid era forced removals.

As part of the Constitutional Court judgment the government was ordered to build a new temporary relocation area in Delft, where people would have access to water and electricity. The government was also instructed to set up meetings with residents, who had complained of being ignored, and report back regularly to the Constitutional Court. But as the Sowetan reported recently, on August 24 the Constitutional Court quietly issued a new order suspending the evictions “until further notice”. Maybe sanity will prevail in this matter after all.

The order was suspended after Western Cape MEC for housing Bonginkosi Madikizela – from the DA nogal -submitted a report to the court saying he had “grave concerns” that the “massive relocation” might end up costing more than it would to upgrade Joe Slovo (trust the DA to worry about money first). Madikizela also said the Constitutional Court had not made any plans for people who would be left behind in the temporary relocation area after Joe Slovo had been upgraded because under the N2 Gateway Housing Project there would not be enough new houses to accommodate all the original Joe Slovo residents.

He was also concerned that erecting a new temporary relocation area for Joe Slovo residents could be legally challenged by people who were further up on the waiting list. As The Sowetan reports, Joe Slovo task team leader Mzwanele Zulu described the court order suspending the eviction as “a blessing”. “We were not happy at all about going to Delft. We have plans for Joe Slovo and we just needed this opportunity to talk to the government about development in our community,” Zulu said.

A report commissioned by the MEC will now be delivered to the Constitutional Court by the end of this month after which the Constitutional Court will decide the way forward.

Surely the government will now rethink this mad idea to forcibly remove 15 000 people – some who have lived at Joe Slovo for 15 years – to a dump 20 km away? We all know the N2 Gateway Project was conceived in haste, part of a vanity project dreamed up by heartless officials and politicians. The Project failed to adhere to the very principles set out in the government’s Breaking New Ground policy which requires in situ upgrades of informal settlements where this is at all feasible.

Maybe FIFA officials (who already vetoed the building of the Cape Town stadium in Athlone because the TV pictures of such an opulent stadium in the midst of poverty was not acceptable to them) and the Mbeki cabinet did not like the sight of all those shacks on the road from the airport into the city of Cape Town? It can’t be good for one’s conscience (if any) to drive past such poverty in a R1.3 million car.

Surely this whole idea was madness from the start? Why can’t the people actually LIVING in Joe Slovo be asked what THEY want for their area? Why should government Ministers, rushing past Joe Slovo to the airport in R1.3 million cars, decide FOR people how they wish to deal with the problems of Joe Slovo? Why can’t the residents be asked to help work out a plan to upgrade the Joe Slovo settlement while most of them remain where they are?

Clearly conditions at Joe Slovo are not ideal. Something must be done to improve these conditions in line with section 26 of the Constitution. But moving people 20 km away to little apartheid-style houses that look like cardboard boxes, requiring them to suddenly pay far more for transport to go to or seek jobs, without even asking them what THEY might want, smacks of the kind of bureaucratic arrogance for which the apartheid government was rightly condemned.

Ironically it took a new administration under Jacob Zuma and a provincial government under the white-led DA, to ask questions about the sanity and humanity of this harebrained and heartless scheme. Let us hope they do not lose their nerve and that they will, once and for all, put a stop to the idea of forcibly moving 15 000 people – District 9-like – to far-off Delft.

Better than houses in Joe Slovo?

Mar 18th, 2008
by Pierre De Vos.
14 comments

The Abahlali baseMjondolo (Shack Dwellers) Movement website contains a picture (below) of the site where Joe Slovo residents will be moved if their appeal against the eviction order by Judge President John Hlophe is unsuccessful. The Court accepted that this accommodation was far better than the existing accommodation in Joe Slovo. Must say, it looks rather cosy….

delft.jpg

Maybe there is a reason why the inhabitants of Joe Slovo (pictures below) would not want to me moved 15 km further away to a souless dump from town to a place not accessible by train and hence much more difficult and expensive to travel to and from.

joe-slovo-2.jpg

joe-slovo-3.jpg

 

On housing, Joe Slovo and that Porsche

Mar 17th, 2008
by Pierre De Vos.
13 comments

Some readers seem to think that I was unfair in my criticism of the judgment by Judge President John Hlophe in which he ordered the eviction of Joe Slovo residents to far off Delft. I should not have mentioned his Porsche, some say. And others ask whether it was such a bad judgment – after all if the government does not move those Joe Slovo residents to Delft, they will not be capable of upgrading the informal settlement?

I disagree with both contentions and strongly so.

Maybe I am a prisoner of the remnants of my Calvinist upbringing, but I really do not think it is appropriate for any judge anywhere in the world to drive around in a Porsche. It is more troubling in a country where so many poor black people live in shacks, the divide between rich and poor is so glaring and the Constitution purports to establish a more caring and egalitarian society.

The Porsche is largely paid for by tax payers money and when the Porsche has to be serviced – at tax payers expense – it will cost us about R80 000 a shot. But worse, by driving around in such a flashy and expensive car the judge is displaying a complete lack of sensitivity about the lived reality of the majority of South Africans and is really saying that he does not care two hoots about what anyone else thinks.

How can one trust the judiciary if one of its leaders thinks there is nothing wrong with driving a car that costs more than the average South African would earn in a life time? I think a certain amount of humility is required of judges to ensure their legitimacy in the eyes of mostly poor people. Otherwise what we have are not a legitimate judiciary but merely a feared one.

I think Judge President Hlophe is bringing the judiciary into disrepute by driving such a flashy car and I think it is relevant when one comments on his anti-poor judgments to point out that he might be black but that he has seemingly forgotten the poor. Because this is an anti-poor judgment but now delivered by a judge who might be black but has definitely not struggled to be either humble or poor.

I also strongly disagree with those who argue that it is necessary to move the Joe Slovo residents to Delft so that the informal settlement can be upgraded and that it is the residents own interest to go and live in Delft. How can one improve the country, they say, if one does not do this kind of thing.

When we talk of progress and improvements it might help if we asked the very people in whose name the improvements will supposedly be done for their opinion. And the funny thing is, if we do this in Joe Slovo, we discover that the residents themselves do not want to move because they know that things will be worse in Delft and that most of them will never return to Joe Slovo.

According to Judge President Hlophe this is a “strategic removal” and not a forced eviction because it would be done to upgrade the Joe Slovo informal settlement. But the upgrade will happen in terms of the N2 Gateway Housing Project and the houses that will be built will not be able to house even one third of the people presently living in Joe Slovo and, in any case, they will be rented out to people who can afford to pay the rent.

This means that in effect this is not a strategic removal but an eviction. The end result will be that poor people would be moved further away from town to Delft where there is no access to a train service to make place for lower middle income people who will get access to the new houses. It is therefore in effect an anti-poor eviction.

And there are alternatives. Most of the existing residents could be accommodated if the informal settlement was merely upgraded with installation of water and sanitation facilities and a better road system. Seeing that most people would rather stay in their shacks than in brick houses far away, why remove them instead of making their living conditions more bearable?

The only answer is that this is done to create the impression of dealing with poverty without actually making peoples lives better. The poverty would be removed out of the sight of rich people wizzing by (in their Porsches?) on their way to the airport. This the residents of Joe Slovo understand too well and that is why they are resisting this forced removal.

Constitutional Court cleverly “solves” evictions dilemma – or not?

Feb 20th, 2008
by Pierre De Vos.
6 comments

As I write this, men, woman and children are sitting next to their belongings in the midday sun after being evicted from partly completed houses built as part of the N2 Gateway Project in Cape Town. They have been evicted after the developers obtained an order from the Cape High Court.

The matter has been complicated by the fact that those evicted illegally occupied the houses late last year before they could be completed because they claimed that the houses were corruptly allocated to others who had not been on the housing list as long as they had. There also seems a possible racial element to the occupation as most of the occupiers are “coloured” while it is alleged that those for whom the houses have been earmarked are “African”.

The case of the Delft homeless provides a vivid illustration of how difficult it can be for judges to balance the constitutional right to human dignity and the prohibition against evictions without a court order on the one hand, against the need to uphold the law on the other. It is therefore of great interest and importance to note how the Constitutional Court has dealt with similar issues in a judgment handed down yesterday about evictions by the Johannesburg City Council of people living in the inner city of Joburg.

To my mind, at the heart of the judgment by Justice Zach Yacoob is an understanding that authorities cannot act in a bureaucratic and heartless fashion when they deal with human beings – even when they are called upon to enforce the law and even when those people they are dealing with have acted illegally.

In this case the Johannesburg City Council relied on section 12 of the National Building regulation and Building Standards Act passed in 1977 to justify the eviction of hundreds of people from dilapidated buildings in the inner city of Johannesburg without any regard for what would happen to those inner city dwellers once evicted.

Relying on sections 10 (human dignity) and 26 (right of access to housing) of the Constitution the Court said that the City council had a constitutional duty to act reasonably when it deals with homeless or potentially homeless people and this required them to engage meaningfully with people who would become homeless after eviction.

It also required both sides to act reasonably and in good faith during such negotiations to try and resolve the tensions that invariably exist between the need to enforce the law on the one hand and the need to respect people’s dignity and their right not to be arbitrary evicted on the other.

Significantly, the court stated that the City Council had a constitutional duty to put structures in place “with competent sensitive council workers skilled in engagement” to deal with evictions in a city and required city councils to act in a way that would honour the human dignity of those who would find themselves at the wrong end of an eviction.

As I read it, this judgment does not prevent authorities from evicting people, but emphasize that where such an eviction is required it should be done in a manner constistent with the Constitution. High-handed, secretive actions by the authorities that disrespect the rights of the people involved would not be reasonable.

So even where the health and safety of the inhabitants of a building is at stake (as it was in this case) or even where people have illegally invaded houses (as was the case in Delft) a mere heartless reliance on legal provisions would not suffice. The authorities would be constitutionally required to engage meaningfully with the potential evicted residents to try and arrange a humane solution.

It left open the question of what would be required in a case like that which arose in Delft, where people illegally invaded houses not yet completed and earmarked for other people in need of housing. Perhaps the facts of this case exposes some of the difficulties with the otherwise laudable judgment of the Constitutional Court.

I suspect that if one applies the general principle enunciated by the Constitutional Court yesterday, a court would be hard pressed to prohibit the eviction of the people in Delft. Nevertheless, this is not an easy case because both the invaders and the housing authority seemed to have acted in a way that might not be seen as reasonable.

The judgment is silent on what happens in such a situation where time might be of the essence, where people invade houses earmarked for others and where the housing authority then high handedly approach the courts for an eviction order without trying to resolve the matter through negotiations.

The housing authority could have tried to negotiate with the invaders. This would have then placed the ball in their court to engage with the process in a reasonable manner and not to make impossible or unreasonable demands (like staying in unfinished houses), which would have made it easier for the housing authority to get an eviction order that would comply with the Constitutional Court judgment.

What the Delft case shows is that many South Africans are desperate for access to housing and authorities – even those they are competent, skilled and sensitive as required by the Constitutional Court – will find it difficult to deal with the competing demands. Where authorities are neither competent, skilled or sensitive, it is almost inevitable that they will cause chaos and disaster.

Constitutional Court gets creative with orders

Nov 19th, 2007
by Pierre De Vos.
No comments yet

The Constitution provides the Constitutional Court with extraordinary wide powers to issue orders when it deals with Constitutional matters, merely requiring such orders to be “just and equatable”. The Court has been criticized in the past for the timid way in which it has exercised these broad powers, but since the departure of the ever careful Arthur Chaskalson as Chief Justice there seems to have been a change of attitude by the Court in this regard.

Two weeks ago I wrote about the scandalous behaviour of officials and politicians in the Eastern Cape, who spent millions of Rands in legal fees to challenge the payment of R5000 to a disabled person whose grant was wrongly canceled by the Province. I bemoaned the fact that in a fully functioning democracy the MEC for Social Welfare in the province would long have been fired or otherwise held to account and wondered what could be done to make politicians and officials more responsive to the needs of ordinary poor poeple.

The Constitutional Court seemed also to have been upset by this case because in amended directions issued on 12 November 2007  the Chief Justice issued directions to Sam Kwelita, the MEC for Social Welfare in the Eastern Cape:

to show cause by affidavit why, irrespective of the outcome of the application, he should not be ordered to pay the Applicant’s costs in he application on the scale as between Attorney and Client de bonis propriis. If the Respondent’s affidavit is to the effect that decisions about opposition to the applicant’s case and the way in which the case was conducted on behalf of the province were not taken by him, but by another person or other people, each person identified in the Respondent’s affidavit must also show cause by affidavit why, irrespective of the outcome of the application, they should not be ordered to pay the applicant’s costs on the scale as between Attorney and Client de bonis propriis.

The MEC was given until today to respond. One assumes there might be some incentive for the MEC to respond because if he is ordered to pay the cost as indicated in the directions, he would be liable for far more than a million Rand in legal fees and would have to pay it from his own pocket. That is a lot of money (even judge John Hlophe would not be able to pay such an amount in one go, I presume).

The Court clearly is trying to act to stop the indifference and callousness of officialdom and is trying to punish or at least stop the cavalier way in which officials litigate against the poor for no good reason at all. If the MEC fails to respond, or if the response is inadequate, it would be interesting to see if the Constitutional Court will go as far as actually instructing payment of legal fees from his personal pocket.

If the Court does make a cost order against the MEC or any other person, it would create a huge incentive for officials not to waste taxpayers money and will send a powerful signal to them not to act in a heartless manner against the poor and destitute. The problem, however, is that it would also be politically very complicated to enforce such an order. One cannot imagine an MEC keeping quiet about such a matter and not complaining about the cheek of the Constitutional Court in making such an order. If he refuses to pay, will he really be locked up?

This is however, an extraordinary case because there has been a very long and well documented history of neglect and heartlessness on the part of Social Welfare officials and the politicians supposedly in charge of them and the Constitutional Court must have figured that something had to be done to stop this rot.

If they do issue an order to make him or any other official pay for the legal cost and anyone so ordered fails to pay, they would of course be in contempt of court and could be locked up for this.  The prospect seems rather appetizing, but I suspect the Court will really only go this route as a last, last, last resort.

These directions come on the heels of another innovative and clever move by the Court when it issued a preliminary order at the end of August in the case between the City of Johannesburg and residents of some very dangerous and dirty blocks of flats in the inner city of Johannesburg. The City wanted to evict them and they claimed this could only happen if they were provided with alternative accommodation in the inner city.

The Court obviously wanted to help the residents but were also deeply worried about the state of the buildings in which they lived (and which was earmarked for renovation by the city).  What would happen if they allowed the residents to stay and a fire broke out killing hundreds of residence living in unsafe conditions? The Court would have blood on its hands.

The court thus made an interim order in which it required the City of Johannesburg and the residents “to engage with each other meaningfully… as soon as it is possible…to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned.”

One may wonder why these parties would now engage in negotiations after such a long fight in which they could not reach agreement. That is why the Court added to its order that “account will be taken of the contents of the affidavits in the preparation of the judgment in this matter for the issuing of further directions, should this become necessary.”

In other words, the court told the parties to sort out their differences or else. If one party failed to play ball, this might be held against them when the court made its final order. According to one of the lawyers in the case, the parties actually managed to settle their differences and had agreed on a way forward which is very advantageous to the inner-city residents, allowing them to move to alternative accommodation in the inner city while renovations take place.

This agreement will now form part of the final order issued by the Court at the end of the case. This was an extraordinary move on the part of the Court which seemed to have paid off. It does not mean the Court will not decide the difficult legal issues raised in the case – but it does mean that the inner city dwellers would be assisted.

This kind of remedy places a very strong bargaining chip in the hands of activists taking on municipalities who wish to enact large scale evictions because it seems to suggest that the highest court in the land has now sent a clear message (first mooted in the PE Municipality case by Sachs) that some legal problems are better resolved in a non legal way through negotiations.

The residents of Joe Slovo on the N2 Gateway site will also take heart from these developments, while the Minister of Housing who has shown some intransigence to the residents, might have to rethink her strategy. She would not want to end up paying the legal bills out of her own pocket, surely?