Page 7 - Notes from LRC's Housing Conference

• Joinder of the municipality and municipal report – in the Blue Moonlight case, the Constitutional Court said that generally speaking, in complex cases where a private owner is involved, the municipality must be joined. The municipality must indicate how it will aid and what resources are available to the community. If the municipality is not joined, then a point of non-joinder can be raised that could be fatal to the litigation.
• Mandate and instructions – make sure that you understand precisely what your mandate is and the instructions that you receive from the community.
F) Evidence
• Evictions are mainly brought on application, where the affidavits are used to place the evidence in front of the court. No oral evidence is allowed unless exceptional circumstances exist.
• Evidence is based on two principles:
- Admissibility
- Relevance
• Hearsay evidence – depends on the credibility of someone other than the person who has the evidence. It is permissible in some circumstances, but the person giving the evidence must have personal knowledge of what happened.
• Affidavits and taking instructions: Need evidence from people who have first-hand knowledge of what occurred. An affidavit is most useful where it records the exact story the client has provided.
• Questionnaires – Important and helpful way to get information but cannot be used as evidence. It is just a way of gathering evidence.
• Expert evidence.
G) Outcome and remedy
• The starting point must be what may be the best outcome for your client. The primary objective is to keep people in homes or on land where they make their homes. The ultimate purpose of the eviction laws is to make sure fairness is achieved in the eviction process.
• Remedy: dismissal of the application.
• Counter-applications.
• Short and long-term outcomes.
H) Significant judgements of the Constitutional Court dealing with evictions and the right of access to adequate housing in terms of PIE
i) Grootboom v Government, RSA (reasonable measures and emergency housing)
ii) PE Municipality v Various Occupiers (interception of PIE, mediation in eviction disputes)
iii) Occupiers of 51 Olivia Road v City of Johannesburg (eviction for health and safety reasons, meaningful engagement)
SUMMARY NOTES FROM THE HOUSING CONFERENCE
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