Authored By: Kananelo Dimpho Mphuti
Introduction
The right to adequate housing and the right private property is protected by the South African Constitutional. When unlawful occupiers face eviction from privately owned land, both these rights come into dispute. This is discussed on the Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another 2012 (2) SA 104 (CC).
This article gives reasons on how the decision of the Constitutional Court on Blue Moonlight Properties case reached proper constitutional balance by recognizing that municipalities have a responsibility to give emergency housing while making sure that private landowners are not unjustly burdened with succeeding in the State’s constitutional obligation. This articles also investigates the legal framework, the Court’s reasoning, assess the importance of the discernment for housing rights and property law in South Africa
The legal framework
Section 25 protects property rights by disallowing arbitrary deprivation of property. While section 26(1) of the constitution provides for a right of access to adequate housing, it doesn’t provide assurance of housing but only the right of access to adequate housing.[1] Blue Moonlight bought a property occupied by unlawful residents and evicted 85 occupiers from Saratoga Avenue in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) which controls evictions and needs the courts to contemplate whether eviction would be just or equitable.[2]
At that time the housing policies for the City of Johannesburg only helped people who were evicted from state land or in known disaster zones. People who were evicted by private owners were kept out. The City stated that it was not it’s responsibility to help persons evicted from private land and it had no budget. Constitutional rights of unlawful occupiers must be balance with the interests of landowners and while courts are doing that, Municipalities must develop and implement not only housing programmes but emergency shelters for homeless people since it’s their responsibility. However, no one is entitled to receive free housing from the government.
Case Law Analysis
The occupiers stated that if they were to be evicted, they would become homeless because they won’t be able to find an affordable accommodation because the City of Johannesburg failed to supply emergency shelters. The Constitutional Court stated that the City was required to give out temporary emergency accommodation for the occupiers.[3] The City’s housing policy was found to be erratic with the City’s housing obligation. The City failed in succeeding it’s constitutional obligation to provide temporary emergency shelter.
The court was not convinced that the City didn’t have enough resources to provide temporary accommodation for the occupiers, it also stated that City must make plans and budget for temporary shelter regardless of whether occupation occurs on private or public land. The reasonableness test from the Grootboom case was applied because the policy did not succeed in being comprehensive and flexible as needed by Grootboom. The order given to the City was accurate. The Constitutional Court ordered that the occupiers must evict the building, 14 days after the City has provided temporary accommodation so that no one is left homeless.[4]
The right to access to adequate housing is a right that is associated with socio-economic goods and amenities such as access to land, sanitation, water, roads, electricity, a livelihood, transport, clinics and hospitals, schools, universities and recreational amenities such as libraries, sports fields and parks.[5] The Court stated that unlawful occupiers have dignity and must be protected from homelessness.
Critical Analysis
Since the Grootboom, the Blue Moonlight case is the most notable development of socio-economic rights. The decision taken on the Blue Moonlight case is noteworthy because it nourishes the enforcement of socio-economic rights while the private property rights are also represented. Vulnerable occupiers are protected by the judgement from immediate eviction and state that property owners keep important constitutional protection. The Court balances fairly on both rights. The City must take accountability and not avoid it’s constitutional obligation by relying on not having enough resources to provide temporary housing. They must have a better budget plan of how they’ll provide temporary shelter for homeless people.
Not running away from the fact that in South Africa most municipalities are having problems with housing shortage, this leads to unlawful occupation and eviction. To achieve constitutional vision of adequate housing for all besides better budget plan, municipalities must invest in affordable housing. This case also depended on the Constitutional Court’s decisions on the Government of the Republic of South Africa v Grootboom by strengthening that housing policies must provide shelter for persons who are desperately in need. Both these judgement shows how the Court is responsible in ensuring that socio-economic rights are important and rather than only aspirational.
Conclusion
In South Africa the Blue Moonlight Properties case symbolize a significant development in the constitutional law. It shows that constitutional rights must be balanced in a way that protects dignity, equality and social justice, and they can’t be separated. This case also shows that even though private property rights need protection, they can’t be forced to disregard the constitutional rights of unlawful occupiers. The Constitutional Court protected both the right to property and the right to adequate housing by, stating that municipalities are responsible for providing temporary emergency housing to those in desperate need. This changed the housing rights from how people viewed restrain on eviction into a positive process.
Till this day the South African Courts are still guided by the facts and decisions made on the Blue Moonlight which balance property rights, human dignity and social justice. However, most municipalities are faced with challenges so for solving eviction disputes in future, the judgement supply a significant constitutional framework. The housing litigation’s future lies upon municipalities not only invest in improving long-term housing policies but also invest in making affordable houses and emergency housing programs to avoid homelessness and have a proper budged planning this is to lessen arguments which include unlawful occupiers, evictions and it will ensure that private property rights are protected and desperate person are given adequate housing.
Reference(S):
Cases
Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue ZACC 33, 2012 (2) SA 104 (CC)
Government of the Republic of South Africa v Grootboom ZACC 19, 2001 (1) SA 46 (CC)
Legislation
Constitutions of the Republic of South Africa, 1996.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
[1] LAH3701, Study Guide, page 76.
[2] LAH3701, Study Guide, page 86.
[3] LAH3701, Study Guide, page 86.
[4] LAH3701, Study Guide, page 86.
[5] LAH3701, Study Guide, page 76.
