Why do courts have to consider your personal circumstances in an eviction matter?

Are evictions being conducted in compliance with South African Law? Insights from SERI’s research from the Eviction Project team on the importance of considering the personal circumstances of tenants (and landlords) for just and equitable evictions.

On 9 March 2022, the Socio-Economic Rights Institute of South Africa (SERI) hosted a webinar where they shared their research findings on eviction applications in the Johannesburg Central Magistrate's Court and their compliance with the law. Shaun Russell (Project Lead on the Eviction’s Project) and I attended SERI’s webinar and found their research findings aligned with our experiences working on evictions.org.za. This article shares our insights from this webinar and reflects on the importance of considering the personal circumstances of tenants (and landlords) for just and equitable evictions. 

Why did SERI focus their analysis on the just and equitable adjudication of eviction court cases?

In their research, SERI analysed eviction cases in 12 wards in the inner city of Johannesburg and its immediate periphery. The cases were litigated at the Johannesburg Central Magistrate’s Court between 2013 and 2018. The SERI team sought to answer whether the eviction applications included in the analysis were conducted through a just and equitable lens. 

According to the Constitution, housing is a human right, and the state has the responsibility to make housing available within its constraints. Additionally, Section 26 states that no one may be evicted without the court considering all relevant circumstances. 

Section 26 of the Constitution states that: 1. Everyone has the right to have access to adequate housing. 2. The state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right. 3. No one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.1

Parliament placed two statutes to implement this part of the Constitution - the Extension of Security of Tenure Act (ESTA) of 1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) of 1998. While ESTA applies only to agricultural land (outside cities and towns), PIE applies to all land throughout the country. Section 25 and Section 26 of the Constitution are actionable to evict people lawfully. 

PIE Act Section 4 (5)...a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.2

If eviction matters complied with the Constitution, these Statutes and in particular considered the particular circumstances of the respondents, the court would ensure the eviction is lawful and conducted in a way in which the eviction does not further risk the human rights of the respondents. 

What does it mean to share all the relevant facts of the respondent household that the court would need to know for a just eviction matter?

The respondents would provide the court with information such as: 

  • How many people are going to be evicted by this application? 
  • Are there any minor children, disabled or elderly persons in this household? 
  • Are the members of this household unemployed? 
  • Do they rely on government grants? 
  • Do the children attend school in the area? 
  • Does anyone in the household require medical attention close to their current residence? 
  • Do they have somewhere else to go? 
  • Will they be rendered homeless by the eviction?

Evictions Research Report 1, page 24. 

Are evictions being conducted in compliance with South African Law?

According to SERI’s research findings, the requirements of the PIE Act (above) have not been adequately complied with. For example, figure 1 shows that 94% of eviction cases did not consider personal circumstances. 

“The absence of an enquiry into personal circumstances and the severe under-representation of the respondents indicate that in assessing the competing interests between property owners and those seeking a home, the rights of the latter are not duly considered in a manner consistent with the prevailing legislation or larger constitutional principles of dignity, equality and fairness. “ - Evictions Research Report 1, page 27. 

Figure 1: Eviction cases and the consideration of personal circumstances. 

Therefore, most eviction orders considered in their research were granted in a manner regarded as unjust and inequitable. 

‘It is recommended that the judiciary focus on the manner in which the law is implemented in magistrates’ courts. This means that courts should redirect their focus to implementing the law in the manner most consistent with overarching constitutional principles and that deviation from the application of procedure be given appropriate scrutiny. This may require that the Office of the Chief Justice monitor eviction orders issued by the magistrates’ court.’ - Evictions Research Report 1, page 28. 

From our team's personal experiences, as well as conversations with tenants who come to https://evictions.org.za/, we can anecdotally corroborate SERI’s research findings. But unfortunately, courts aren't taking personal circumstances into account, which means many evictions may be unlawful, which is bad news for a country with a massive housing and homelessness problem. Something needs to change; civil society needs to, using this kind of research, put more pressure on the government and the courts to conduct evictions in a just manner and one that does not further jeopardise the human rights of tenants (and landlords). 

Reference: SERI. “An analysis of eviction applications in the Johannesburg Central Magistrate’s Court and their compliance with the law”, in Just and Equitable? Evictions Research Series Report 1, Socio-Economic Rights Institute (SERI) (January 2022).

May 19, 2022
Calyn Pillay

Calyn is a Researcher at OpenUp in Cape Town. At OpenUp you'll find me helping project teams understand and communicate the outcomes of their work.

Calyn Pillay
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