Can you consent to an illegal eviction order?

Nearly 200 people living on a commercial property in Berea, Johannesburg, are challenging an eviction order, on the grounds that they did not agree to it and that even if they had agreed, the order was unjust, writes Safura Abdool Karim at Groundup.

The 184 applicants have been living for between three and 26 years on the property, which is owned by an insolvent close corporation. Trustees of the insolvent corporation first notified the residents of their intention to evict in March 2013.

In September 2013, an eviction order was granted against the residents, allegedly following an agreement between the trustees and residents. However, the residents are challenging the validity of this order in the Constitutional Court on the grounds that there was no agreement, and even if there was, the order was unjust and inequitable and should not have been granted.

They say only four of the residents were in court on the day the eviction order was granted. The residents say these four were chosen by the group to request a postponement so the residents could find lawyers to represent them. According to the four residents at court, the judge did not hear from them directly or confirm that they had agreed to the eviction order.

They also say they were not given an opportunity to tell their story to the court but had to remain in the gallery, where they could not hear the conversations between the judge and lawyers.

After the order had been granted, the residents approached the Socio-Economic Rights Institute (SERI) which attempted unsuccessfully to have the eviction order rescinded. However, the order has been stayed until the appeal has concluded.

The trustees dispute the version of events put forward by the residents, arguing that they did consent to the eviction order.

They also argue that the residents have had plenty of time to find alternative accommodation but have not taken steps to do so. As a result, the trustees say, the City of Johannesburg has no obligation to provide the applicants with temporary accommodation.

The residents are also challenging the eviction order on the grounds that the City wasn’t made a party to the proceedings. This means they could not get an order compelling the City to provide temporary accommodation as the residents in another case known as Blue Moonlight did. Normally, the City must be joined in eviction cases where the evictees will require housing from the government.

Under the Prevention of Illegal Evictions Act (Evictions Act), a judge should only grant an eviction order if it is just and equitable to do so. The residents are arguing that this applies even if there was an agreement between the parties. It is accepted that if a party is unrepresented, a judge should take extra steps to ensure that they understand the proceedings and order. The residents are arguing that this places an additional duty on the judge to satisfy him or herself that the order is just and equitable.

The events described by the Berea residents are commonplace and highlight the difficulties people face when they do not have lawyers to represent them in court.

Though the Evictions Act contains safeguards to assist people to defend themselves against eviction orders, these safeguards may be inadequate or are not always enforced.

The Constitutional Court’s decision in this case will confirm the specific duties placed on judges when they hear eviction applications, particularly when the people to be evicted are not represented by lawyers.

The case will be heard on 14 February 2017.

This article first appeared in Groundup.