Excluding refugees from the right to work as private security providers simply because they are refugees will inevitably foster a climate of xenophobia which will be harmful to refugees and inconsistent with the overall vision of our Constitution. As a group that is by definition vulnerable, the impact of discrimination of this sort can be damaging in a significant way. In reaching this conclusion it is important to bear in mind that it is not only the social stigma which may result from such discrimination, but also the material impact that it may have on refugees.
When the Pretoria High Court granted an order to evict Mr Isaac Rasepitle Pitje, a 76-year-old man in ill-health, from his primary residence and home at erf 4157, Block M, Mamelodi, he turned to the Constitutional Court to stop the eviction. As is often the case in eviction matters, the Constitutional Court came to his assistance. Although the High Court will now have to decide the case afresh, the Constitutional Court judgment goes a long way to protect Mr Pitje.
Mr Isaac Pitje and his siblings grew up living in their father’s house on erf 4157 in Mamelodi. The property was part of his late father’s estate and after the Pitje’s father passed away, the property was registered in the name of Mr Pitje’s brother in 1992. Mr Pitje’s brother had taken out a bond of R14 000 from Nedbank to finance the purchase of the house.
In 2001, after Mr Pitje’s brother experienced financial difficulties, Nedbank wanted to sell the property in execution. Disaster was averted when Mr Pitje took over the bond payments, having agreed to buy the house form his brother for R63 000. For various reasons, including the terms of this agreement, it was later argued that Mr Pitje never became the owner of the house and that no bond was registered in his name.
Eight years later Mr Pitje’s brother sold the house on erf 4157 to a Mr and Mrs Shibambo for the price of R380 000. The deed of sale contained a hand-written clause which stated that “[e]viction if needed will be done by seller on the seller’s cost”, indicating that Mr Pitje’s brother as well as Mr and Mrs Shibambo were aware that it may be necessary to evict a 76-year-old man in ill health from his family home in order to take occupation of that home.
Mr and Mrs Shibambo eventually launched and obtained an eviction order against Mr Pitje in the High Court. The order was granted by default as Mr Pitje had failed to file opposing papers despite having filed a notice of intention to oppose.
Section 26(3) of the South African Constitution states that “[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
The Constitutional Court has stressed that section 26(3) recognises the importance of having a home. In Port Elizabeth Municipality v Various Occupiers the Constitutional Court stated that:
a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat.
In that case the Court also explained why it was so important to require judicial supervision of all evictions and why the law requires a court order before condoning any eviction.
It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.
Partly in order to give effect to section 26(3) of the Constitution, the South African Parliament in 1998 passed the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). PIE allows the eviction of unlawful occupiers of land, but only in limited circumstances and only if this is permitted by a court order. No one can be evicted from any land or any home without a court order sanctioning such an eviction.
Section 4(7) of PIE lists the factors that a court must take into account before granting an eviction order in cases where the person sought to be evicted has occupied the land for more than six months. This section states that a court may only grant an order for eviction in such a case:
if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
As justice Sachs explained in Port Elizabeth Municipality v Various Occupiers, PIE expressly requires the court “to infuse elements of grace and compassion into the formal structures of the law”. Sachs went on to explain that when considering whether to order an eviction in terms of section 4(7) of PIE a court:
is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy.
One searches in vain in the High Court judgment ordering the eviction of Mr Pitje for any reference to the Constitutional Court judgement of Port Elizabeth Municipality. In fact, one searches in vain for any analysis of PIE and for any reference to section 26(3) of the Constitution.
It is therefore not surprising that when the Constitutional Court reversed this order late last month in its judgment of Pitje v Shibambo and Others it took the High Court to task for ignoring the legal rights of Mr Pitje. As Justice Nkabinde notes in her unanimous judgment, it is clear from the reading of the judgment of the High Court that the requirements of section 4 of PIE were not fully considered by that court.
Specifically, no “consideration was given to the issue of suitable alternative accommodation for Mr Pitje”, despite the fact that section 4(7) of PIE specifically instruct courts to take this into account before deciding whether it would be just and equitable to grant an eviction order.
Quoting from another Constitutional Court judgment (that of Machele and Others v Mailula and Others), the Constitutional Court in effect reprimanded the High Court judge who granted the order, noting that:
Courts must consider PIE in eviction cases. PIE was enacted . . . to ensure fairness in and legitimacy of eviction proceedings and to set out factors to be taken into account by a court when considering the grant of an eviction order. Given that evictions naturally entail conflicting constitutional rights, these factors are of great assistance to courts in reaching constitutionally appropriate decisions.
It also cautioned lower courts not to “restrict themselves to the passive application of PIE”. Courts are “obliged to probe and investigate the surrounding circumstances when an eviction from a home is sought. This is particularly true when the prospective evictee is vulnerable”.
In this case, the High Court completely failed to do so, ignoring the fact that PIE places limitation on normal common law property rights as section 4 of PIE clearly states that the provisions of the Act applies “[n]otwithstanding anything to the contrary contained in any law or the common law”.
The Constitutional Court thus referred the case back to the High Court and instructed that the High Court, when hearing the eviction application anew, should consider any submissions made by Mr Pitje against the granting of the eviction order.
Given the fact that Mr Pitje is a 76-year-old man who has lived his entire life in the house from which the new owners now seek to evict him, that Mr Pitje suffers from ill health and that rendering him homeless would be unconscionable, it is difficult to imagine that the High Court would grant an eviction order unless provision is made for Mr Pitje to move to suitable alternative accommodation.
Some champions of free market principles and the unbridled right to deal with your property as you please, may criticise the PIE legislation and the Constitutional Court’s application of the legislation in this case. They may argue that Mr and Mrs Shibambo, the new owners of the house, are being disadvantaged.
However, my sympathies lie with Mr Pitje. Surely, the law would be unjust if it allowed the new owners of a house from evicting a 76 year old ill man from his family home and turning him out on the street. This is more evidently the case where – as in this instance – the owners were aware of the vulnerable position of the current occupant of the house.
In this case the Constitutional Court indeed utilised the PIE Act to infuse some grace and compassion into the formal structures of property law. Something the High Court sadly failed to do.BACK TO TOP