Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
25 November 2015

SERI – Land claims Court overturns unjust eviction

The Land Claims Court yesterday set aside an order granted in the Roodepoort Magistrate’s Court for the eviction of 79 long-term residents living on farmland in Honeydew.  The Land Claims Court replaced the order of the Magistrate with an order dismissing the eviction application, finding that the owner had provided no basis for interfering with the constitutionally entrenched rights of the residents.

The residents, including 3 pensioners and 27 children, had been living on the property for up to 24 years at the time their eviction was sought. Many of the young people living on the property were born there, and 3 of the households there were headed by women. After failing to evict the residents illegally, the owner brought an application for their eviction under the Extension of Security of Tenure Act (ESTA) in February 2015.

The owner alleged the residents were unlawfully occupying its land and that it would be just and equitable to evict them.

SERI represented all of the residents in opposing the application on the grounds that their rights of residence had not been properly terminated, that the owner had not met the legal standard to justify their eviction and that, based on the residents’ personal circumstances, an eviction would result in their homelessness and so would not be just and equitable. The application was argued on 17 September 2015 in the Roodepoort Magistrate’s Court.

On 29 October 2015, the Magistrate handed down an order for the eviction of all of the residents, setting the eviction date for 30 November 2015. The execution of the eviction order was suspended pending the automatic review of the Magistrate’s Court decision in terms of ESTA by the Land Claims Court.

The Land Claims Court set aside the order of the Magistrate and dismissed the eviction application. The Court found that the Magistrate gravely misdirected himself in certain procedural respects. Further, there was no meaningful enquiry into the allegations of misconduct against the residents, and the evidence before the court did not suggest any illegal conduct on their part. The submissions made by the owner regarding its need for the property over the needs of the residents were vague and unhelpful. The owner failed to produce clear evidence which would justify any interference with the constitutional rights of the occupiers not to be evicted from their homes.

According to SERI’s Bhavna Ramji, “the judgment corrects a grave injustice which arose out the decision of the Magistrate’s Court. It vindicates every argument advanced by the residents and confirms that they still hold rights of residence on the property which they have called home for many years. The judgment rejects the tick-box approach of owners to eviction applications and the perfunctory acceptance of these arguments by judicial officers.  It confirms that the law, properly applied, does not make space for insulting, insensitive and unproven arguments aimed at securing evictions of poor people at all costs.” 

  • Download the judgment here.
  • Read more on the case here.

Contact

Bhavna Ramji, SERI attorney: 011 356 5878/ 079 805 4604/ bhavna@seri-sa.org

 

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