Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
21 February 2007

Evictions require new understanding of property law

One might think the City of Johannesburg should be congratulated for its urban renewal programme, under which it aims to renovate many of the run down buildings in the city center.

The city argues that many of the buildings now occupied by poor people are unsafe to the inhabitants of these buildings and that the city therefore has a legal duty not to allow anyone to live in these structures until they are renovated. Such renovated buildings will help to spark an urban renewal and will get middle class people to stay in the city again.

As arguments put forward yesterday in the Supreme Court of Appeal make clear, this clean-up would happened at the expense of the poor, who will be evicted from the buildings without being provided with any alternative accommodation.

In private discussions I hear people say that the original High Court order by Judge Mahommed Jajbhay overstepped the line and showed how unrealistic our Constitution is by guaranteeing for everyone access to adequate housing. How can the city clean up and renew the city center if they do not evict the present inhabitants, people ask?

For me, that is the wrong question. I would rather ask, how can a municipality who supposedly represents the interests of the poor and marginalized even think of throwing people out on the street and making them destitute?

The Constitution – and the relevant legislation – does not prohibit evictions altogether, but it does require that we make a mind-shift away from the traditional common law view of property as an all or nothing right that can be enforced against anyone regardless of the social consequences.

As the Constitutional Court acknowledged in the Port Elizabeth Muniscipality case, the Constitution requires us to acknowledge that property has a social role and that property owners not only have rights but also duties in relation to how they deal with their property. This means that evictions can only take place if the interests of those evicted are also taken into account. What is required is a sort of balancing of interests.

In that sense the Constitution requires the Municipality to also take into account the interests of those poor people living in the buildings that are now targeted for eviction. Thus, the Constitution is a disciplining force, in that the Municipality must achieve its goals without completely disregarding the interests of those directly affected by the evictions.

Because the Municipal Officers are too hard-headed, lazy or unimaginative, they proceeded with evictions without considering the requirements of the Constitution and when they were caught out they threw up their arms and shouted that the courts are out of control. It’s a bit like the police complaining that they cannot do their work anymore because the courts prohibit them from torturing suspects.

Whether the SCA will see things in this way, will have to be seen. Hopefully they have read and internalized the judgment of Justice Sachs in the Port Elizabeth Municipality case…..

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