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
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.
Another great post Pierre. And what a dilemma for a judge!
Pierre, a question for you. Beeld has written a story about a robber, who was forgiven in court by his born-again Christian victims. The prosecutor withdrew the case because of this.
http://www.news24.com/Beeld/Suid-Afrika/0,,3-975_2266659,00.html
The prosecution does have a discretion do withdraw cases, but don’t the they have a general duty to protect the public in a criminal case? Was this legal?
Prof De Vos: I agree with Wessel, a good post indeed, and the law often leaves one (especially a judge) with difficult choices. And, might I add, the Constitution often imposes heavy duties that cannot always be complied with. Every constitutional issue of this kind is therefore subject to a delicate balancing act between what is just and what not, and precedents cannot readily be set. The Soobramoney (kidney-dialysis) case for example?
Wessel: I am with you on this one. It would however appear that the public is largely unprotected in SA because, unlike in some Continental jurisdictions, the prosecution in SA has a ‘discretion’ whether to prosecute a specific case, subject only to a victim’s right to private prosecution i.t.o. ss 7-17 of the Criminal Procedure Act. Thus, where a prosecutor has decided to withdraw a case just because the victim (not the law, or a court) has forgiven the accused, the victim (or family of the victim) will not endeavour to institute private prosecution. It would further appear that the only remedy for aggrieved members of society (who are not victims) in such cases would be to petition the relevant Director of Public Prosecutions (or even the NDPP) to review and reconsider the prosecutor’s decision to withdraw. It would not help much to approach the courts because one would presumably have to show a very real (direct) interest before a court would intervene in the prosecution’s decision not to prosecute and where the victim (or family) is unwilling/unable to institute private prosecution. Although slightly besides the point, I would also like to hear Prof De Vos’ response to this question of yours (perhaps in a separate post) because it is indeed a matter woth debating in some detail. In practice it happens that women/men in co-habitual relationships would lay a charge of assault against their partners, only to later file a withdrawal statement because they have now (again?) become reconciled. Invariably prosecutors withdraw such cases at the request of victims to alleviate the pressure on court rolls, even in cases where the victim was almost beaten to death. A further problem encountered, especially in rural areas where the Constitution ghas not yet had its full effect, is that minor victims of sexual assault either do not lay charges or later request the withdrawal of charges just because the patriarch of the family has been paid damages. Victims appear to have no say in such matters. Again, prosecutors would often withdraw such cases even where charges have initially been laid. The whole ‘interests of justice’ and ‘protection of society’ debates in criminal law should be revisited when the NPA’s power (duty?) to prosecute is concerned.
Thanks for the interesting comments and questions. At the moment I can only point out that the NPA Act requires prosecutors to make decisions based on the prosecuting guidelines agreed to by the head of the NPA and the Minister of Justice. Prosecutors do not have an unfettered discretion to withdraw cases because the victim has forgiven the alleged perpetrator or does not wish to press charges – although it could be one of (but not the only) factor to be taken into account. Often the victim is a vulnerable person who feels overwhelmed and intimidated by the perpetrator and the system and then she will purport to withdraw charges to protect herself. Prosecutors must take this into account and should not merely defer to the (coerced) wishes of the victim. But prosecutors I have spoken to say that it is often difficult to get a conviction in such a case where the victim becomes uncooperative and that they sometimes feel they have no choice but to drop a case because there is no chance of securing a conviction. This is a sad reflection on our criminal justice system and on our society who cannot provide the safe space in which victims feel free to press on with a case against people they know.
So there is a need to amend Natinal Prosecuting Authority Act ?
because its clear that the victims are not using this alternative of private prosecution especially when you consider those who lack education or unsophisticated and in rural areas. I think the legislature have to amend certain provisions of this act.
‘discretion’ cost vulnerable societies.
I think it is the Criminal Procedure Act (not the NPA Act) that needs amendment so that prosecutors are compelled to present a case to the court where the available evidence on the police docket justifies a prosecuition in any specific case. Their discretion should only be allowed to be exercised against prosecution when it is dubious whether the available evidence can result in a successful prosecution. After all, all persons that witness a crime have a duty towards society and the criminal law to testify so that the couirts can decide what to do in a specific matter. In fact, all persons that may have information relevant to a criminal prosecution are competent (subject of course to a few exceptions) and compellable (subject of course to a few privileges) witnesses and may be forced to supply a witness statement before a judge, magistrate or regional magistrate where they refuse to do so for the police; and, they may be forced to testify in accordance to their witness statements to the police (or judicial officer), where they have the choice whether to be punished for perjury or a refusal to testify or to let the law take its course. (See ss 179-206 of the CPA.)Prosecutor’s claim that it is in their experience so that prosecutions will rarely be successful in such cases should not be allowed to cloud their judgment, and it must be left to the courts to decide whether a prosecution has been successful or not and what the reasons therefore are. I agree with ‘Acco’ – ‘discretion’ costs vulnerable societies. However, in the light of the apalling state of the court rolls in especially the lower courts (where 90% or more of all legal controversies are being tried), I realise all too well that this might be wishful thinking. It is nevertheless something I think needs to be debated at the highest levels, in the courts, in the bars and law societies, before the Law Reform Commission and in Parliament – because there are too many travesties of justice being caused because desertful prosecutions are kept out of court for flimsy reasons. Perhaps this is why people are losing trust in the crimimnal legal system and why so many voices go up for re-introduction of capital punishment.