An eviction notice brought before the Constitutional Court last year provides a test case for safeguarding the rights of the vulnerable in society, says attorney Simon Dippenaar.
In this case, an appeal under the Prevention of Illegal Eviction (PIE) Act succeeded in the Constitutional Court after the High Court refused to rescind an eviction order.
The Constitutional Court ruled that, where legal representatives consent to judgments without proper authority, the judgment is not valid.
When is consent legally valid?
The case in question involved an abandoned block of flats in Johannesburg, which was purchased by a new owner following the liquidation of the former landlord. The building was occupied by 184 residents at the time, some for as long as 25 years.
In order to carry out renovations and restore the building to residential letting standards, the purchaser wanted to evict the "occupiers" and served them with an eviction notice after having followed the procedures set out in the PIE Act.
The 184 occupiers were represented in court by four of their peers, who were referred to as the "appearer occupiers". These appearer occupiers asked the court for a postponement of the hearing to give them time to seek legal advice and representation.
However, when they appeared in the High Court, they consented to a draft eviction order, leaving the remaining 180 occupiers stunned. The occupiers sought their own legal advice and applied to the High Court to have the eviction order rescinded.
The High Court turned down the application on the basis that the eviction notice was not in contravention of PIE and the eviction court had discharged its duties faithfully. A further application for leave to appeal was refused by the High Court and the Supreme Court of Appeal.
The appearer occupiers claimed they had not consented to an eviction order. They argued that, even if they had consented, their consent was not legally valid, and the court had an obligation to ensure the fairness of any eviction order in the light of all relevant circumstances.
The respondents argued that the applicants had lost the right to appeal because they had agreed to the eviction order in the first place. They also argued that there was no evidence that the occupiers would be made homeless or that they had made any attempts to find alternative accommodation.
Dippenaar explains that informed consent is a guiding principle of the Constitution. As a result, the appearer occupiers’ consent was not binding on the rest of the occupiers.
The Constitutional Court judgment could, in Dippenaar’s view, signal a new role for the courts in matters of eviction and reinforces the function of the courts in protecting the poor and vulnerable in society.
"This case places an increased burden on the courts and property owners. Property owners are now required to ensure a legally valid and binding mandate exists before anyone representing property occupiers can enter into court-ordered agreements," says Dippenaar.
For Dippenaar, the Constitutional Court has refined its stance on active judicial management of eviction applications. Whether this leads to fairer, more just outcomes for all parties or simply brings the process to a grinding halt remains to be seen, he points out.
Dippenaar explains that property owners and tenants alike have rights under SA law. When an eviction notice must be served, it is, therefore, important to consider the rights and responsibilities of both parties to be sure that fair and just treatment is provided to everyone.
* Sign up to Fin24's top news in your inbox: SUBSCRIBE TO FIN24 NEWSLETTER