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Court ruling could set new precedent
Councils across the country, property developers and owners whose properties are illegally occupied by squatters, squatter communities and organisations representing them and local tax and ratepayers, will all keep a very keen eye on the pending legal battle of the Joburg council to overturn a recent ruling in favour of landlords and illegal squatters by the High Court in Johannesburg. The ruling could change the power relationships between these groups forever.
If the ruling by judge Brian Spilg, that the council is responsible to either supply immediate alternative accommodation to, or pay rent on behalf of squatters who have illegally occupied a building, remains standing it will set a precedent that could hold a serious threat to both the financial viability of councils and render housing planning almost impossible.
At the same time, the ruling by judge Spilg, a former chairman of the Human Rights Committee of the General Council of the Bar, brought relief to a property owner whose building for years has been occupied by illegal squatters.
In general, property owners have been financially prejudiced over the years because the country’s courts have been reluctant to evict illegal occupants who have nowhere else to go.
The judgment also seems to establish a right for squatters to be either satisfactory resettled, or have their rent paid by councils if and when they are indeed evicted from properties they occupy.
A spokesperson of the Joburg council said in response to the judgment that the city intended to take the matter all the way to the Constitutional Court as there was “not any municipality in any part of the world” which would be able to spend the kind of money proposed in the ruling.
The case concerned the position of 86 squatters who illegally occupied a private residential property in Berea, Johannesburg and who faced eviction because the landlord wants to redevelop the property.
Judge Spilg ruled that the City of Joburg was responsible for compensating the evicted squatters and the owners of the property. While acknowledging that there could be a concern that raising rates and taxes would be “a necessary consequence” in anticipation of such litigation in the future, he found that the municipality had a constitutional duty to provide housing, even in cases where illegal squatters were evicted from private land.
Illegal occupants, if evicted, would have to be given either accommodation as close as possible to the location from which they were evicted or financial compensation to rent elsewhere, including the deposits on such rental properties.
In the case at hand, the individual rent amounts to R850 per month. This makes the Joburg council responsible for the payment of R73 100 per month or R877 200 per year in this instance alone.
The ruling, if not overturned, could have huge financial implications for municipalities throughout the country and especially for metropolitan councils who see hundreds of thousands of people migrating to their jurisdictions from the rural areas.
It is anticipated that the judgment will set a legally binding precedent as courts in other parts of the country are likely to be called on to consider this judgment if similar litigation was brought before them.
Local authorities could now be ordered to compensate private landowners at market-related levels for land being illegally occupied and/or to pay rent of those squatters if accommodated elsewhere.
It could also become extremely difficult for councils to plan adequately and implement orderly planned housing programmes, as they might be forced to battle to respond to legal action brought against them.
Councils use housing policies to allocate housing, but the ruling now seems to allow people to invade unoccupied buildings and thereafter demand council housing, effectively jumping to the top of the housing list. This could be the fat on the fire of already explosive situations, which in the past have led to violent clashes when people who have been on housing waiting lists for many years see newcomers to an area being accommodated before them.
Judge Spilg, in his reasons for the judgment, accused the City of Joburg of shirking its constitutional duties and “hiding behind financial and policy issues”.
Section 26 of the constitution does “not, whether directly or indirectly, permit the State to either abdicate or thrust its responsibilities to provide adequate housing on to the private sector, nor does it suggest that the private sector is obliged to itself indefinitely provide housing without compensation,” he said.
The city would also no longer be able to claim that it was not responsible for providing housing to illegal occupiers of private property, as the judge found this position to be discriminatory.
In this particular case, the present owner of the property bought it in 2005 and planned to demolish the building to redevelop a new residential block on the site. The plans were, however, forced on hold for years as the company battled to get illegal occupants evicted.
The City of Joburg argued that it did not have a duty to provide housing to those evicted from private premises, but that its obligation only extended to those evicted from state-owned property. The court, however, held that the city’s policy was unconstitutional and it has been ordered to return to court in March to report back on how it plans to change its discriminatory housing policy.
The judgment in the meantime has created a mechanism whereby both the landowner and squatters’ constitutional rights to housing are catered for. There were, however, immediate indications that the judgment was not the end of the legal battle for not only the council, but also for the squatters.
The Centre for Applied Legal Studies’ Tebogo Mosikili, who acted for the squatters, said that although the order was a huge breakthrough, his clients intended to appeal, as they were unlikely to find suitable alternative accommodation for R850.
