CCT37/11

[2011] ZACC 33

2012 (2) BCLR 150 (CC)

2012 (2) SA 104 (CC)

Van Der Westhuizen J

1 December 2011

http://hdl.handle.net/20.500.12144/3643

Application for for leave to appeal against a judgment of the SCA: City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2011 (4) SA 337 (SCA). The SCA dismissed an appeal against a judgment of the South Gauteng High Court, Johannesburg: Blue Moonlight Properties 39 (Pty) Ltd v The Occupiers of Saratoga Avenue and Another, Case No 11442/2006, South Gauteng High Court, Johannesburg, 4 February 2010, unreported.

Application for leave to appeal against a judgment of the Supreme Court of Appeal. The issue was whether it was just and equitable to evict unlawful occupiers (occupiers) from a privately-owned building under the Prevention of Unlawful Occupation and Illegal Evictions Act (PIE), more specifically whether the City of Johannesburg (City) had to afford the evictees emergency interim accommodation. The City claimed that it lacked resources and that it was neither obliged nor empowered under Chapter 12 of the National Housing Code to provide alternative temporary accommodation to persons facing eviction by private landowners. Whether it was just and equitable to order eviction under PIE depended on whether the City had made reasonable efforts to provide alternative accommodation to the occupiers. The Court held that the City unreasonably and thus unconstitutionally breached the occupiers’ right of access to adequate housing under section 26 of the Constitution by not providing them with temporary accommodation, in circumstances in which their imminent eviction would render them homeless. Chapter 12 both obliged and authorised the City to provide them with temporary accommodation. The City’s claim that it lacked the resources to do so was rejected. The Court held that it was just and equitable to grant the private landowner the eviction order, taking into account a number of factors: the occupiers had lived on the land for more than six months; their occupation was previously lawful; the private landowner was aware of them when it purchased the property; and there was no competing risk of homelessness on the part of the private landowner. But the City was ordered to provide the occupiers with temporary accommodation two weeks before the date of eviction to ensure the occupiers would not end up homeless. The City’s application for leave to appeal was granted, but the appeal was dismissed. Judgment: Van der Westhuizen J (unanimous).