The case concerns 300 residents who occupy six buildings in the Johannesburg inner city. The buildings are four houses on Joel Street in Berea, a multi-storey building known as “San Jose”, also in Berea, and a disused panel beating workshop on Main Street, in the city centre.

The SCA ordered the residents of San Jose and the Main Street properties to vacate the buildings concerned. It also orders the City of Johannesburg to provide those residents who needed it with alternative shelter “where they may live secure against eviction”. While the SCA held that the residents did not have a constitutional right to alternative housing in the inner city, it said that the personal circumstances of the residents of the particular buildings concerned would have to be taken into account in consultation with the residents before any relocation took place. The City of Johannesburg was ordered to file an affidavit demonstrating compliance with the SCA’s order within four months of today’s date.

“The judgment constitutes a partial victory for the inner city poor”, said Stuart Wilson of the Centre for Applied Legal Studies. “The law is now clear on the point that the inner city poor cannot be evicted without any alternative accommodation.”

In terms of the judgement, “… the eviction of occupants triggers a constitutional obligation upon the City to provide at least minimum shelter to those occupants who have no access to alternative housing”.

Jean du Plessis, Acting Executive Director of the Geneva-based Centre on Housing Rights and Evictions (COHRE), said: “International law emphasises consultation and the provision of alternatives to forced eviction as a fundamental human right. Today’s judgement by the SCA goes some way in confirming this as a right in terms of South African law, which is a major step forward. We call on the City of Johannesburg to commence negotiations at a very early stage of any planned eviction, and to work with inner city residents on developing viable alternatives to eviction.”

The SCA also held that the National Building Standards and Building Regulations Act, 1977 (NBRA) was consistent with the Constitution, and that the decisions to seek the eviction of the occupiers concerned were procedurally fair. The NBRA allows a municipality to issue a notice ordering residents to vacate a property it considers unsafe without any consideration of the availability alternative accommodation. The City of Johannesburg issued the notices in respect of the San Jose and Main Street buildings without first consulting with their residents.

Wilson said “We are concerned that the judgment does not go far enough in protecting the occupiers of so-called “bad” buildings in the Johannesburg inner city from arbitrary exercises of state power. The court record shows that the inner city poor are routinely marginalised by the City of Johannesburg and denied an adequate hearing by the City’s officials before decisions to evict are taken. The judgment appears to condone this practice and effectively leaves it to the City to decide if and when the occupiers of “bad” buildings should be consulted prior to future eviction applications.”

Wilson added, “I do not understand how the SCA can require alternative shelter to be provided to the most desperate, but not require that residents of all “bad” buildings be consulted in order to find out whether or not they are desperate”, Wilson said. “It is no answer to say that the evicting Court will decide this issue. Unless residents are represented (and only a very few can access legal representation), a court will not normally investigate their personal circumstances”.

COHRE’s Du Plessis said: “We are deeply worried that this judgement has effectively denied the right of inner city residents to live near their place of work. Our research in Johannesburg has clearly shown that the affected residents are too poor to travel to and from far-flung settlements to their work places in the inner city. Relocating them to places far away from the city centre will have disastrous implications for the survival strategies of many families.”

Wilson said: “We are concerned that the judgment appears to condone the City of Johannesburg’s decision to exclude the poor from its Inner City Regeneration Strategy. We are studying the judgment carefully and considering an appeal to the Constitutional Court on these points.”