http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A862603

Shelter for the poor in landmark eviction ruling
Stuart Wilson

THE days of quick and easy money for property investors in the inner city may be over. The Johannesburg High Court recently handed down judgment in the case of Blue Moonlight Properties 39 versus the occupiers of Saratoga Avenue and another.

Judge Thokozile Masipa held that the High Court could not consider an application for the eviction of 80 desperately poor people living in disused warehouses and workshops in Saratoga Avenue, Berea. It could decide on the application only after the city of Johannesburg had reported to the court what it would do to rehouse the occupiers and when such action would be taken.

The Saratoga Avenue judgment develops the already progressive jurisprudence of the Johannesburg High Court on evictions in two important respects.

Importantly, it confirms that the city has duties to provide alternative shelter for people who are under threat of eviction from private land, if that eviction would lead to homelessness. Although the law had been pregnant with this requirement since the Constitutional Court’s decision in the Grootboom case, the Saratoga Avenue judgment makes it explicit.

The judgment also sweeps aside the city’s proposition that its obligations are primarily to people it seeks to evict from properties it considers to be unsafe, or to people displaced as part of its housing and other development programmes. On the contrary, as the judgment states, the city is required to respond to potential homelessness, whatever its source.

In addition, the judgment requires the city to respond to the particular situation of the people threatened with eviction, and not simply to present a court with a general report on its housing policy. The city must respond with plans that engage with and cater for people’s individual circumstances — which it habitually fails to do. If the city refuses to provide shelter at all, it may be held to a very high standard of justification, since its failure to act could frustrate the occupiers’ constitutional right to adequate housing, and a property owner’s common law right to the use of its property.

The judgment is particularly significant in the inner city of Johannesburg. First, the city can no longer — through its urban regeneration strategy — encourage property investors to buy and renovate buildings at a profit , and then turn its back on people who are evicted when those developers carry out the necessary renovations.

Though the judgment does not expressly say so, the city will have to change its housing plans to take account of the likely effect of eviction applications in the inner city and respond to these reasonably . It will have to carefully engage with communities living on private land and respond reasonably to their housing needs. It will also have to justify its policy to property developers, who may feel aggrieved by any failure to deal promptly with the housing needs of occupiers of their land.

One possibility for the city would be to use the recently published chapter 13 of the National Housing Code. In appropriate circumstances, chapter 13 allows municipalities to expropriate informally occupied land and upgrade it for formal housing while the occupiers remain. This would certainly be an appropriate way to deal with the inner city’s many informal settlements and those living in similar circumstances.

Second, property developers seeking a quick buck by buying up derelict buildings on the cheap, evicting the occupiers and redeveloping them at often massive profits, will find themselves having to deal creatively with the occupiers of the buildings purchased. This is unless, of course, they have the stomach for lengthy legal battles in which the occupiers assert their rights against the state, and the patience for the likely delays in the implementation of whatever housing plan the city devises for the occupiers.

These solutions may involve an interim lease pending the implementation of the city’s housing plans, in which poor occupiers pay what they can afford to stay on private land, on the understanding that they will leave when their alternative shelter is provided by the city. In other circumstances, a private developer may be prepared to forgo some of its profits in order to provide alternative housing to occupiers of its land. Whatever the case, property developers, who are often irrationally contemptuous of poor people they “find squatting” on their recently purchased land, will now need to respond more reasonably and constructively.

The judgment and the Johannesburg High Court jurisprudence leading up to it have made real the constitution’s promise
to put the poor first. This entails a wholesale change in the way property developers and the state engage with the poor. Property developers, in particular, will have to appreciate the risks of buying occupied land and factor into their bottom lines the cost of engaging constructively with occupiers who face homelessness as a result of their plans.

The judgment presents the opportunity to strike a fairer balance in the distribution of the benefits and burdens of urban regeneration. The city, property owners and the poor must seize the opportunities presented by it to end the social conflict and desperation caused by the extractive capitalism that has characterised much urban regeneration until now.

# Wilson is head of litigation at the Centre for Applied Legal Studies. He was part of the legal team that represented the occupiers of Saratoga Avenue.