Court ruling places councils in a bad situation {writer: Piet Coetzer}

If the ruling remains standing that the council becomes responsible to either supply immediate alternative accommodation to or pay rent on behalf of squatters who have occupied a building illegally, it will set a precedent that could hold both a serious threat to the financial viability of councils and render housing planning almost impossible.

At the same time, the ruling by Judge Brian Spilg, a former chairperson of the Human Rights Committee of the General Council of the Bar, brings relief to property owners who for years have been financially prejudiced because the country’s courts have been reluctant to evict illegal occupants who have nowhere else to go.

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 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 where they were evicted, or financial compensation to rent elsewhere plus for possible deposits on such rental properties.

In the case at hand, the rent amounted to R850 per month. This makes the Joburg council responsible for the payment of R73 100 per month or R877 200 per year.

A spokesperson for the Joburg council reportedly 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 ruling, if not overturned, could have huge financial implications for municipalities throughout the country, particularly metropolitan councils that 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 were brought before them.

Local authorities now could be ordered to compensate private landowners at market-related levels for land being illegally occupied and/or to pay the rent of those squatters if accommodated elsewhere.

Further, it could become extremely difficult for councils to plan adequately and implement orderly planned housing programmes, as they may be forced to battle to respond to legal action brought against them.

Councils use their 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 fat on the fire of already explosive situations that 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.

Efforts to deploy orderly programmes for the settlement of people could be compromised severely if the implications of the judgment become the norm countrywide.

Judge Spilg, in giving 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.

Further, the city no longer would 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.

The judgment, however, does provide relief for both landowners and squatters who for many years had been left in limbo.

In this particular case, the present owner of the property bought it in 2005 and planned to demolish the building and redevelop it as a new residential block. The plans, however, were forced on hold for years as the company battled to evict illegal occupants.

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 extended only 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.

In the meantime, the judgment has created a mechanism whereby the constitutional rights to housing of both landowners and squatters are catered for. There were, however, immediate indications that the judgment was the end of the legal battle for not only the council (which indicated its intentions to appeal), but also for the squatters.

Toboho Mosikili, from the Centre for Applied Legal Studies at Wits, who acted for the squatters, said although the order was a huge breakthrough, his clients intended to appeal, as they were unlikely to find suitable accommodation for R850.

It can be expected that the judgment by Spilg will linger for some time on the housing scene at the bottom end of the market and where redevelopment plans of old buildings are on the table.