Evictions by Municipalities

Given the severe housing shortage in South Africa, a situation frequently arises where illegal informal settlements spring up in urban areas. The need for municipalities to eject people from their homes, in such circumstances, frequently arises. In Occupiers of 51 Olivia Road and 197 Main Street Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC) the Constitutional Court dealt with the City of Johannesburg’s attempt to evict 400 unlawful occupiers from two buildings in the inner city of Johannesburg. The Constitutional Court unanimously held that before granting an order for eviction which could result in homelessness a the instance of a municipality, the court had to satisfy itself that the municipality had made reasonable efforts towards meaningfully engaging those threatened with eviction, in attempts to find a solution. Such meaningful engagement required “the parties to engage with each other in a proactive and honest endeavour to find mutually acceptable solutions. Whenever possible, respectful face to face engagement or mediation through a third party should replace arm’s length combat by intransigent opponents”. The City of Johannesburg had not followed this process and was not entitled to evict the occupiers from the buildings.

The judgment, although understandable from a human rights point of view, gives rise to severe practical problems. The growth of inner city informal settlements is frequently rapid, and uncontrolled. Establishing channels of “meaningful engagement” are not easy in townships where there are no structures, and representative bodies. There is considerable force in the view that the Constitutional Court is striking out in a direction which does not properly take into account economic realities, or the rights of municipalities and property owners.