Between 2007 and 2011 there were a number of important court decisions affecting laws around access to land, land tenure and eviction. While the details and implications of these decisions are too broad to detail here an important general principle concerns the role of municipal government. Many of the rulings give the sense that in situations where eviction is going to make groups of poor people homeless, the municipality must be brought into the case and report to the court on the availability of alternative accommodation.

In the case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and others in February 2008, the Constitutional Court found that while the municipality may not necessarily be able to find suitable alternative accommodation for evictees of council property it must make a good faith attempt to do so. The court stated in such cases that municipalities must at least “meaningfully engage” with the residents being evicted. Municipalities must, therefore, work closely with such residents, determine what their housing needs are and make every attempt within their available resources to prevent the residents from becoming homeless.

In February 2010, the Constitutional Court also ruled that a municipal housing policy which provided temporary accommodation only for those evicted from unsafe buildings owned by the municipality itself, was unconstitutional. This was because such a policy excluded tenants evicted from unsafe privately-owned buildings from consideration for emergency accommodation. Municipal housing policy concerning temporary accommodation for tenants evicted from unsafe buildings must also therefore, cover tenants renting privately.

In May 2010, the Constitutional Court declared the Communal Land Right Act (11 of 2004) (CLRA) unconstitutional. CLRA made provision for new land tenure forms for people living in old “homelands” and other communal land. But the court found that there had been inadequate consultation with communities and provincial structures prior to the adoption of the Act. Concerns were also given that CLRA did not take into account ‘living customary law’ practices in many communities and that rural voices were not heard.

In December 2011 the Constitutional Court ruled that City of Johannesburg was obliged to provide temporary emergency accommodation to the occupiers of a privately-owned building who were being lawfully evicted and who would consequently become homeless. The Court rejected the City’s argument that the National Housing Code did not oblige the City to fund emergency accommodation and ruled the City’s housing policy was inconsistent with the City’s housing obligation. It was not reasonable, the Court said, for the City to provide temporary accommodation to people relocated by it from hazardous buildings (see February, 2010 ruling above) and not to people who would be made homeless through a lawful of eviction by a private owner. The Court rejected the City’s claim that it did not have the necessary funds to provide accommodation for the occupiers, and ruled that the City had incorrectly budgeted based on the belief that it was not obliged to provide them with temporary emergency housing. The important precedent set in this case is that when very poor residents are lawfully evicted, through no fault of their own, and such eviction is likely to make them homeless, the government must intervene and at least provide them with temporary emergency accommodation.

(See: Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [PIE])