The judgment followed an application by the council to evict 300 people from six inner city buildings, which it argues are a health hazard to the illegal occupants. The judge ruled in favour of the illegal occupants, saying that the city can't evict residents from derelict buildings unless Government can find alternative accommodation to house them.
The judge also took the city to task for not yet having a housing plan in place, as required by SA's Housing Act. The judge said that, in these circumstances, it could not justify using violations of safety or health by-law regulations to enforce the evictions. The city is currently taking legal advice on whether or not to appeal.
The ruling is regarded as a setback for the Johannesburg Property Company's plans to revitalise the inner city. But of even more concern is that the ruling could make it increasingly onerous for private landlords to evict illegal or defaulting tenants.
However, property lawyer Russell Warner says that the recent judgment shouldn't affect private landlords, as the rationale for that particular ruling was based on the failure of the city council to comply with its constitutional duty to provide its residents with adequate housing.
Says Warner: "The City of Johannesburg has been rapped over the knuckles ? not so much for wanting to evict the occupants but rather for not providing access to alternative accommodation."
The judge found that in seeking to evict the occupants of the buildings without having first provided alternative housing, the city was acting unconstitutionally. Warner says you may argue that it was a case of the State violating the rights of its citizens ? an example of the so-called vertical operation of the Constitution in protecting the citizens from the State.
Warner says that the ruling shouldn't have any negative implications for property owners, as it wasn't based on the legislation that usually comes into play in cases dealing with eviction orders between private landlords and tenants ? the so-called PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act) and the Rental Housing Act.
Though the PIE Act was initially supposed to apply only to illegal land invaders, an appeal court ruling four years ago suggested that the Act could also apply in cases where a legal tenant stops paying rent and refuses to vacate the property.
In terms of the PIE Act landlords don't have to find alternative accommodation for a defaulting tenant before eviction, provided that the tenant has occupied the property for less than six months. In cases where an unlawful tenant occupies the property for more than six months ? particularly if the occupants are elderly, disabled or single mothers with young children ? they can't be evicted until the municipality has found them alternative accommodation. Note that it's the municipality's duty to find alternative housing and not that of the landlord.
Nevertheless, property owners were up in arms when the appeal court ruling was made in August 2002, as it implied that defaulting tenants would have the same rights as illegal squatters.
In response to the uproar, then Minister of Housing Sanki Mthembi-Mahanyele undertook to amend the PIE Act to ensure that legislation regulating landlords and tenants became more user-friendly.
However, Neville Schaefer, chairman of national residential property letting group Trafalgar, says that though such draft amendments were made, they have yet to be implemented. He concedes that the recent Johannesburg High Court ruling doesn't change the law between landlords and tenants, but argues that the case again highlights the shortcomings of current legislation governing eviction applications.
Schaefer says that private landlords continue to be prejudiced by the application of the PIE Act in its current form, particularly in cases where defaulting tenants have been occupying a property for more than six months.
Says Schaefer: "The recent ruling gives added urgency to amending the PIE Act so that property owners will be ensured of a simple application process to the magistrates' court when an eviction order is needed against unlawful occupants."
Warner agrees that until the PIE Act is amended, it places greater onus on bodies corporate and landlords to implement strict credit control measures to ensure that timeous action is taken against illegal or defaulting tenants before they're afforded the protection of the Act.
Finweek understands that the Parliamentary portfolio committee on housing considered a number of amendments to the PIE Act in November 2005 but decided to put these on hold pending further consultations with the Housing Department.
Article courtesy of Finweek.
