PRESS STATEMENT | High Court Victory for Occupiers Comes in The Nick of Time

Date: 24/01/2022

Pretoria High Court Orders a Suspension of Execution of an Eviction Order Pending the Outcome of the Leave to Appeal

On the 18th of January 2022, The Pretoria High Court heard arguments from Lawyers for Human Rights (LHR) on Behalf of the Borwa Community Action Group, which consists of over two hundred occupied households of government sector housing development.  This matter dealt with the implementation of an eviction order that would render the occupiers homeless if complied with. LHR brought this application on an urgent basis on behalf of the occupiers due to be evicted on 15 January 2022.

LHR highlighted to the Court that it was necessary to pause the eviction against these occupiers until such a time where leave to appeal could be heard by the court. This was a sentiment the court agreed with, especially after considering the vulnerable nature of our clients, the fact that following through with the eviction order would result in a situation where they were left were no alternative housing and their difficulties obtaining adequate legal representation.

The high court drew from an earlier judgement in Johannesburg Metropolitan Municipality vs. Blue Moonlight Properties, where the Constitutional Court stated. “of course, a property owner cannot be expected to provide free housing for the homeless on its property for an indefinite period. But in certain circumstances an owner may have to be somewhat patient and accept that the right to occupation may be temporarily restricted”.

Therefore, the court had to strike a balance between causing an undue economic harm to the respondents and enforcing an order that would leave the applicants homeless. In doing so it considered a legal principle set down in an earlier judgement, Gois t/a Shakespeares pub v Van Zyl which states that it may pause the execution of an order where real and substantial justice requires it to do so.

Although the leave to appeal was filed late (the occupiers were not represented by LHR at the time). The court considered the urgency of the matter and it decided that it was in the interest of justice that these delays did not undermine the urgency of the matter and the right of the occupants to be heard before a court of law. There was a grey area in the law prior this case because, a leave to appeal filed in the prescribed time would automatically suspend the impugned order, however, where the leave to appeal is filed late, the order is not automatically suspended despite the late leave to appeal being accompanied by a condonation application. The court found in this reported judgment that the delay in filing a leave to appeal could be revived if accompanied by an application for condonation – meaning the execution of the impugned court order may be suspended pending the outcome of the leave to appeal.

“This is a significant judgment as it upholds everyone’s right to appear before court according to s34 of the Constitution, “ said LHR’s Land and Housing Attorney, Deborah Raduba. This judgement takes huge leaps in ensuring justice for disenfranchised people is served despite procedural mishaps. We commend the admirable stance taken by the judiciary in this regard.

For further information, please contact:

Deborah Raduba, attorney in the LHR Land & Housing Programme

T: 012 320 2943 / 064 647 4719


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