Judges can no longer play a passive role in eviction cases
The Constitutional Court has ruled that “Courts cannot necessarily restrict themselves to a passive role…Courts are obliged to probe and investigate the surrounding circumstances when an eviction from a home is sought. This is particularly true when the prospective evictee is vulnerable.” — Pitje v Shibambo 2016
This article is a summary of a research paper by legal academics Clireesh Cloete and Zsa-Zsa Boggenpoel (2018), writing out of Stellenbosch Unversity at the time, titled Re-evaluating The Court System in PIE Eviction Cases. This article summarises the paper and discusses what it means for activists working on the ground at South African courts, trying to help those facing homelessness as a result of an eviction.
The focus of their paper was answering whether the promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) in 1998 has forced the courts to re-evaluate their approach to eviction cases. The central question is whether the court system is now required to play a more active role in eviction cases in the pursuit of ensuring that all relevant circumstances are known and therefore considered by the court.
What is meant that the court can no longer play a “passive” role?
Roman-Dutch law, which forms the foundation of South Africa’s common law, used what is known as an “inquisitorial” system — a system that is still favoured in Europe today. In an inquisitorial system, the judge actively leads the trial and asks questions to both sides to find out and understand the facts and then makes a decision based on the information gathered from the inquiry.
Due to the influence of English law in the early part of the 19th century, the South African system changed to what is called an “accusatorial” or “adversarial” system. In an accusatorial system, the judge sits back and lets the parties (more specifically their legal teams) put forward the information they deem relevant and argue the merits against each other. Out of the information gathered from their back-and-forth, the judge will make a decision.
Why is an accusatorial system bad for evictees?
The legal philosophy behind an accusatorial system is that the parties know their cases better than the judge and are thus best placed to argue them. It is also claimed that in this type of system the judge or magistrate is more objective because they are not involved in the investigation where their questions may (unintentionally) be biased toward one side.
In practice, however, there is no onus on the judge to extract information from the respondent in an accusatorial system and so if a respondent is not prepared or does not have good legal representation the judge may not have all relevant facts before them to make a fully informed and thus just and equitable decision.
Low-income tenants who do not know the law or fully understand their rights are at a serious disadvantage in eviction cases because their landlord usually has legal representation, while they do not. This situation can lead to the omission of certain facts from court proceedings — such as tenants’ personal circumstances. And without these facts, it is very difficult for the courts to make any order other than an eviction, usually on terms requested by the landlord.
What has changed since PIE and the recent ruling in Pitje v Shibambo?
Before the Constitution (1996) and PIE (1998), evictions were (almost always) a foregone conclusion. If a property owner did not want you on their land/property they simply applied to the courts (called the rei vindicatio) to have their property returned to them. Before 1998, there was also an apartheid-style law called the Prevention of Illegal Squatting Act (PISA), which was used to remove black people from land in large numbers. It was a legal mechanism to separate people by race and reserve well-located land for white people’s exclusive use.
The Constitution enshrined the right to housing that, in theory, counteracts the almost absolute rights of property owners. Section 26(3) of the Constitution provides that:
‘No one may be evicted from their home, or have their home demolished without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.’
Following this, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) was promulgated. PIE is the main law that regulates evictions and it states that:
“a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women”.
There are two important factors here that challenge the supremacy of property rights and the inevitability of an eviction order. First, if the court feels it is not just and equitable to order an eviction then it must not be granted. And second, to make this decision, the court must take the circumstances of both the landlord and the tenant(s) into account. If the Judge believes that evicting a 99-year-old person living on a state pension would not be just and equitable, then it does not matter that they are unlawfully occupying someone else’s property, this is sufficient grounds not to grant the eviction.
And this leads us to the crux of Cloete and Boggenpoel’s article: in order to take into account “all relevant circumstances” does the judge or magistrate have the power (or indeed the duty) to play a more active role in the case to find out all the relevant circumstances? In Pitje v Shibambo (Pitje) the Constitutional court answered in the affirmative.
Cloete and Boggenpoel argue in their paper that PIE and the Constitution require an order that is just and equitable and therefore in eviction cases, the court must be “context-sensitive”, balanced toward all parties, and take into account all relevant factors.
Pitje is a precedent-setting example of a Constitutional Court case where the court deliberately went beyond the traditional boundaries of the accusatorial tradition of only deliberating on the facts put before it by both parties. The court highlighted the circumstances of the evictee, focusing on her old age and ill health, which was not initially discussed in the pleadings. They argued that these special circumstances — which make the evictee vulnerable — must be considered as a prerequisite of satisfying the provisions of the PIE Act.
In Occupiers of Erven 87 & Berea v De Wet 2017 (Berea), the court’s commitment to justice and equity was taken even further and its practice of the inquisitorial method was reaffirmed. The court held that even in situations where there is a settlement agreement (in this case the tenants had agreed to vacate the property) it still needed to investigate all relevant circumstances, especially the personal circumstances of the evictees. In Berea, the court refused to grant an eviction order because it held that eviting the tenants in homeless was not just and equitable.
The argument can and should be made that when parties to an eviction fail to provide all relevant circumstances, the courts have a duty to inquire and request this information. This means breaking with the accusatorial common law tradition of our courts. Not only must the substance of any law align with the Constitution, but so too must the process of how the law is adjudicated and justice is delivered.
Conclusion of the academic paper
Because of the Constitution and PIE, our courts are no longer restricted to a purely accusatorial system. Rather, courts are allowed — and arguably required — to go beyond what is put before them if justice and equity demand it. They have the power to join interested parties and call for more evidence to make the best order possible. To satisfy the objectives of section 26(3) of the Constitution and the PIE Act, the court has a duty to take into account all relevant circumstances of the parties. If this requires breaking from traditional practice then so be it. The Constitution, PIE, and case law have fundamentally changed judicial practice in South Africa concerning eviction cases.
How do we enforce this at our courts?
The precedent set by the Constitutional Court in the above eviction cases is clear, but does this automatically filter down to the everyday practices of lower courts? My experience of monitoring eviction cases in some of Cape Town’s Magistrate’s Courts where tenants’ personal circumstances are rarely taken into account, says no.
Activists and civil society organisations have an important role to play in our courts, observing how they enforce the law and holding them accountable when they fail to apply the law correctly and in the spirit of the Constitution. Together with tenants, we must educate ourselves and then educate, lawyers, judges and magistrates on the courts’ inquisitorial duties. If magistrates continue to disregard their duties we must take cases on review and appeal while also making complaints to their superiors.
In the end, our actions will not only benefit those who usually suffer injustice at our courts but also the courts themselves as they are challenged to better fulfil their Constitutional obligations.
Send your comments and feedback to shaun@openup.org.za
