Legal: Concluding Observations of the United Nations Committee on Economic, Social and Cultural Rights

8 01 2009

Excerpt on South Africa
South African Constitutional Court
Various Occupiers v. City of Johannesburg and others, CCT 24/07
South African Constitutional Court

Facts: The City of Johannesburg has carried out forced evictions in the inner city in the context of the Johannesburg Inner City Regeneration Strategy (ICRS), aimed at creating an ‘African World Class City’ and attracting investment. The strategy includes the clearance of an estimated 235 ‘bad buildings’, which are regarded as being at the centre of developmental ‘sinkholes’. The Johannesburg City Council has obtained urgent eviction orders under the pretence of being concerned for the health and safety of residents. However, evictions have been carried out in the middle of the night and without notice. While conditions in many of the buildings are appalling, the procedures used by the municipality are grossly unfair, including the use of Apartheid-era laws and regulations. In addition, people are not consulted or offered any viable alternatives. In the name of safety and health in the buildings, residents have been made homeless and left on the streets to fend for themselves. The strategy affects approximately 67 000 residents of ‘bad buildings’.

This specific case involved the municipality seeking to evict of some 272 men, women and children from two buildings in Berea, in the Johannesburg inner city. The municipality alleges that the properties are unhygienic and constitute a fire hazard. The municipality has refused to offer the occupiers alternative accommodation. The vast majority of the occupiers have incomes of less than R1000 per month, and many of them have experienced periods of homelessness in the past. Forced eviction would likely result in the residents becoming homeless or having to relocate to slum areas on the far periphery of the city, and thus cut off from livelihood opportunities in the city centre.

Decision(s): In March 2006, the High Court of South Africa, citing international human rights law, found for the residents and ordered the municipality not to evict. The judgment made it clear that the poor people resident in so-called “bad buildings” of the inner city of Johannesburg must be given access to a home in the inner city area if the city wants to evict them from accommodation it considers unsafe.

The municipality appealed this decision to the Supreme Court of Appeal and CALS cross-appealed – asking for a stronger implementation mechanism under court supervision. In August 2006, COHRE began drafting an amicus curiae brief and conducting research in support of the residents. The brief and legal research were incorporated in the “heads of argument” on behalf of the residents and submitted in early 2007.

In March 2007, the Supreme Court of Appeal ordered the residents to vacate the buildings concerned. However, it also ordered the City of Johannesburg to provide those residents who needed it with alternative shelter “where they may live secure against eviction.” While the Court held that the residents did not have a constitutional right to alternative housing in the inner city, it said that the personal circumstances of the residents of the particular buildings concerned would have to be taken into account in consultation with the residents before any relocation took place. The City of Johannesburg was ordered to file an affidavit demonstrating compliance with the Court’s order within four months of this decision.

On appeal to the Constitutional Court, the Court ordered the parties to attempt to negotiate a settlement. In November 2007, the parties reached an agreement that was endorsed by the Court. The agreement provides for the occupiers of both properties to be provided with affordable, safe accommodation in the inner city of Johannesburg where they may live “secure against eviction”, which was one of the key requests of the applicants. While the agreement provided a victory for the residents of the two buildings, several policy issues were referred back to the Court for consideration and decisions in 2008.

With respect to the remaining outstanding issues, on 19 February 2008, South Africa’s Constitutional Court ruled in favour of the occupants, noting that the SCA “should not have granted the order of ejectment … in the absence of meaningful engagement.” The Court further held that section 12(6) of the National Building Regulations and Standards Act is unconstitutional. The ruling is a landmark victory for the more than 67,000 low-income residents of Johannesburg facing eviction threats due to the City’s Inner City Regeneration Strategy.

The case is one of the first to hold that meaningful participation, or engagement, with rights-holders is constitutionally required. The Constitutional Court’s decision emphasized the need for the State always to engage meaningfully with the inner city poor and respond reasonably to their housing needs. Additionally, where it is clear that the proposed clearance of an unsafe building would lead to homelessness, the State (or City) should, within its available resources, provide somewhere safer and better for residents of bad buildings to live.

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