De Rebus

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Evicting unlawful occupants in state-owned housing

Pacta sunt servanda, the sanctity of contractual terms agreed to between parties, is a fundamental principle in South African common law, ensuring that the obligations on parties concerned are not undermined by factors outside the four corners of the agreement (Ndlovu v Ngcobo: Bekker and Another v Jika [2002] 4 All SA 384 (SCA)).

It is for exactly these purposes that the majority judgment in Malan v City of Cape Town (CC) (unreported case no CCT143/13, 18-9-2014) (Dambuza AJ) gave clarification to a necessary contention between the right to housing and sanctity of contract. The majority judgment confirmed that if proper cancellation took place by means of notice, the necessary steps were followed in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) (ie, s 4(2) Ex Parte judgments and stipulated time periods) and cancellation could be justified by breach of contract, there would be no need to further deny the lessor of its eviction order. Concerning, however, was the minority judgment of Zondo J, who failed to see the breach of contract while it was clearly shown that rental arrears was due and various complaints of drug trafficking on the property were reported to the South African Police Service. Zondo J went further to state that a fair balance must be struck between the city’s right to terminate the lease and its obligation under the Constitution and PIE to take certain procedural steps before cancellation. This, in my view, erroneously brings the Constitution into play, when it was not necessary. If any constitutional relevance exists it is merely in s 36 of the Constitution and the limitation to the right to housing.

The abovementioned difference in views has resulted in a blurring of the lines being painted in our courts, who entertain the right to housing and social inequalities in South Africa, when PIE provides us with clear and occupant-friendly procedures to carry out evictions justly and fairly. The unwillingness to approach lease agreements between the public and state-owned housing, whether it is as a direct relationship as municipal/provincial ownership or even as state-owned companies (SOC) such as Transnet, in the same manner as private residential lease agreements merely deprives the lessor of his or her use and enjoyment of the property and forgets the limitations on our municipal resources. When litigating on behalf of a SOC the matter is clear, the municipality in question is cited as a second respondent/defendant and directs the occupant to the housing report, which allows for an application by the occupant to various forms of alternative housing. If the local municipality is the applicant/plaintiff then the eviction should once again be approached in accordance with PIE, and the municipality will provide alternative housing solutions only if their means allow them to do so.

This successfully deals with the obligations placed on our local authorities in regards to the right of housing and requires no further insight by the courts in these matters. It is on this note that the necessity exists for the courts to merely concern themselves with the sanctity of contract and PIE procedures. The primary focus now lies on the protection of the lessors’ rights and whether the eviction is lawful and procedurally sound.

Renand Pretorius,

candidate attorney, Johannesburg