Not out of Harms way…

Do all the judges in the Supreme Court of Appeal (SCA) read, understand and embrace the jurisprudence of the Constitutional Court, or do some of them still chafe at the idea that another court, applying another document, now really acts as the supreme court of South Africa?

This thought struck me as I read the judgment of justice Harms in the case of City of Johannesburg v Rand Properties and Others, handed down today by the SCA. The case deals with the question of whether it was constitutionally permissible for the Johannesburg City Council to get rid of the occupiers of dangerously dilapidated inner city buildings without providing such occupiers with alternative accommodation in the inner city or elsewhere.

The City Council relied on section 12 of the National Building Regulations and Building Standards Act, which allows a local authority to “order any person occupying or working or being for any other purpose in any building, to vacate such building immediately or within a period.” Failure to obey such an order is a criminal offence

It would be instructive to compare the tone and content of this SCA judgment with that, say, of the 2004 judgment of Justice Sachs in the Constitutional Court case of Port Elizabeth Municipality v Various Occupiers. In the latter judgement, Sachs had to interpret the provisions of the PIE legislation, but did so only after sketching the “broad constitutional matrix” within which such an interpretation should occur, referring to the “transformative public law view” that should be taken when interpreting such legislation.

Harms, on the other hand, is not a fan of any matrix or of transformation. He starts his formalist magnum opus by stating that this case is “only peripherally about the constitutional duty of organs of state towards those who are evicted from their homes”. What this case is about, according to Harms, is enforcing the LAW in all its might. None of the namby-pamby, hoity-toity constitutional values that the Constitutional Court seem to prattle on about.

There is much criticism one could level at the Harms judgment – and not only because it essentially found in favour of the City of Johannesburg. However, I would like to focus on the argument put forward by the applicants that section 12 of the Act was unconstitutional because it allowed for evictions without a court order as required by section 26(3) of the Constitution.

In rejecting this argument, Harms relied on what seems to me an outrageously formalistic argument. He states that section 12 allows the City to issue a notice telling occupants that they must vacate a building and then continues:

The law assumes that law-abiding citizens will comply with valid administrative notices without court orders compelling them to do so. Voluntary compliance with an administrative notice does not amount to a proscribed eviction. It is only in the event of a failure to comply that the need for a court order arises.

Thus, according to Harms, this is not a eviction that falls within the ambit of section 26(3). In effect, of course, if a person fails to comply with the notice he or she will be evicted without a court order, but that won’t count because the person should never have disobeyed the notice in the first place. To me this argument places form over substance. It is far removed from the contextual arguments made by Sachs who would never use such a false argument in favour of the City.

One might well make a valid argument that legislation aimed at protecting the lives of people living in a dangerous building could limit the right in section 26(3) and that it might not always be constitutionally required to get a court order to evict people if it is necessary to save the lives of innocent people. But to claim that a law that, in effect, will force people to leave their home is not really an eviction because it is only a notice that will usually be obeyed by ordinary people, is quite frankly, dishonest.

If one has nowhere to go and one has no money and one receives a notice from the City Council that the building one lives in is dangerous and that one must leave, it would be stupid to actually just pack up and go and live on the street corner. If Harms cannot see that, he has been living in Bloemfontein for just a bit longer than is healthy for any human being. Maybe they should invite him up to Braamfontein for some fresh air?

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