Real Estate Investor Magazine South Africa Real Estate Investor Magazine - September 2017 | Page 32

LEGAL

ConCourt ups the ante

Court ruling suggests more active judicial management of eviction applications
BY SIMON DIPPENAAR
The case
The Constitutional Court recently heard the case of Occupiers of Erven 87 & 88 Berea v De Wet , Christiaan Frederick N . O . and Another under the PIE Act . Appeal was made to the ConCourt after the High Court refused to rescind an eviction order . The ConCourt judgement raises some interesting questions and may signal a new role for the courts in matters of eviction , and reinforces the function of the courts in protecting the poor and vulnerable in our society . In this article , we ’ ll look at the facts of the case and attempt to draw some conclusions from the judgement .
History
An abandoned block of flats in Berea , Johannesburg , was purchased by a new owner following liquidation of the former landlord . The building was occupied by 184 residents at the time , some for as long as 25 years . In order to carry out renovations and restore the building to residential letting standards , the purchaser wished to evict the sitting tenants and served them with an eviction notice , following the procedures set out in PIE .
The 184 occupiers were represented in court by four of their peers ( called the “ Appearer Occupiers ”). The Appearer Occupiers asked the court for a postponement of the hearing to give them time to seek legal advice and representation . However , when they appeared in the South Gauteng High Court , with their ward councillor in support , they appeared to consent to a draft eviction order , contrary to what the remaining 180 occupiers were expecting . This led the occupiers to seek further legal advice

on PIE

and apply to the High Court to have the eviction order rescinded . The High Court turned down the application , on the basis that the order was not in contravention of PIE and the eviction court had discharged its duties faithfully .
A further application for leave to appeal was refused by the High Court and the Supreme Court of Appeal .
What happened next ?
It would appear that the original decision was based on a series of misunderstandings . The Appearer Occupiers claimed that they had not in fact reached agreement with the attorneys for the liquidators and had not consented to an eviction order . They argued that even if they had consented ( unwittingly ?), the consent was not legally valid ; and the eviction court had a constitutional and statutory obligation to ensure the fairness of any eviction order in the light of all relevant circumstances . They maintained that the eviction order should have been rescinded under Rule 42 of the Uniform Rules of Court and the common law .
The Respondents in turn argued that the applicants had foregone the right to appeal because they had agreed to the eviction order in the first place . Furthermore , there was no evidence that the occupiers would be rendered homeless by the eviction order , or that they had made any attempts to find alternative accommodation . Therefore , the eviction order was just and equitable and it was not in the interests of justice to grant an appeal .
What ’ s at stake ?
The matter for the Constitutional Court
concerned the judicial oversight functions of the eviction courts under PIE . Do they have a duty to determine the validity of the mandate between the occupiers and their representatives and ensure the consent is legitimate ? In this case , were the non-Appearer Occupiers within their rights to request the eviction order to be rescinded ?
The decision
The Constitutional Court referred to Ntlabezo v MEC for Education , Culture and Sport , Eastern Cape and said that where legal representatives consent to judgements without proper authority , the judgement is not valid . In other words , the Appearer Occupiers knew the main body of occupiers needed a postponement of the eviction application to gain time to seek legal representation , but had not fulfilled this mandate .
In the face of the resulting eviction order , the occupiers “ had no legal representation when the order was obtained against them ,” according to the Court . The Court also held that the occupiers ’ consent to the eviction order should have been given “ freely and voluntarily with the full awareness of the rights being waived ,” and this did not occur . The occupiers were not aware of their rights and therefore the consent they gave to the postponement could not be considered informed consent in the light of the eviction order . As a result , the Appearer Occupiers ’ consent was not binding on the occupiers .
Conclusion
This case signals both a victory for social justice and an increased burden on the courts and property owners , the latter now having to ensure a legally valid and binding mandate exists before Appearer Occupiers can enter into court-ordered agreements . The courts may now have to scrutinise eviction applications carefully to prevent any ambiguities between Appearer Occupiers and the occupiers they represent when resisting an eviction application . It seems to us that with this judgement the Constitutional Court is refining its stance on active judicial management of eviction applications . If you are a landlord facing litigation you have been warned that the courts will be more rigorous in exercising their judicial functions . Whether this leads to fairer , more just outcomes for all parties or simply brings the process to a grinding halt remains to be seen .
Simon Dippenaar is an Attorney at Simon Dippenaar & Associates , Cape Town .
SOURCES evictionlawyerssouthafrica . co . za sdlaw . co . za
30 SEPTEMBER 2017 SA Real Estate Investor Magazine