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

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.

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