Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg

More than 400 occupiers of two buildings in inner city Johannesburg faced eviction proceedings initiated by the City of Johannesburg. The City had issued notices under section 12(4)(b) of the National Building Regulations and Building Standards Act 103 of 1977, ordering the occupiers to vacate the buildings on grounds that they were unsafe and unhealthy. The Supreme Court of Appeal had authorized the eviction, ordering the City to provide temporary accommodation only to those desperately in need of housing assistance. The occupiers challenged this decision and applied for leave to appeal to the Constitutional Court. The occupiers also raised broader concerns about the City's housing programme for thousands of people living in desperate conditions in the inner city. The City had made no effort to engage with the occupiers before initiating eviction proceedings. After hearing arguments, the Constitutional Court issued an interim order requiring the City and occupiers to engage meaningfully. Following engagement, the parties reached a settlement agreement providing for interim improvements to the buildings and alternative accommodation for occupiers.

• Whether the Supreme Court of Appeal was correct to grant an eviction order in the absence of meaningful engagement between the City and the occupiers
• Whether section 12 of the National Building Regulations and Building Standards Act is consistent with the Constitution, particularly regarding evictions without a court order
• Whether the City's decision to evict was administratively lawful given that it failed to consider that occupiers would become homeless
• Whether section 26(3) of the Constitution precluded the eviction
• Whether the standards set by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) were applicable
• Whether section 12(6) of the Act, which provides for criminal sanctions for continued occupation without a court order, is constitutional
• What considerations are relevant when a municipality issues a section 12(4)(b) notice
• Whether the City's housing programme complied with section 26(2) of the Constitution

1. Application for leave to appeal granted. 2. Appeal succeeds to the extent set out in the order. 3. The order of the Supreme Court of Appeal is set aside. 4. The order of the High Court is set aside. 5. Section 12(6) of the National Building Regulations and Building Standards Act 103 of 1977 declared inconsistent with the Constitution. 6. Section 12(6) read in with a proviso that it applies only to people who, after service of a court eviction order, continue to occupy the property. 7. The reading-in proviso does not apply retrospectively to completed convictions where the appeal period has expired. 8. The City ordered to pay the costs of the applicants in all three courts, including costs of two counsel.

1. A municipality has a constitutional duty to engage meaningfully with occupiers before evicting them when the eviction may result in homelessness. This duty arises from section 26(2) (progressive realization of access to adequate housing), section 26(3) (protection against eviction without court order), and the rights to dignity and life. 2. Meaningful engagement is a two-way process requiring both sides to act reasonably and in good faith, aimed at determining consequences of eviction, possible municipal assistance, interim safety measures, and the municipality's obligations. 3. Whether there has been meaningful engagement is a relevant circumstance that courts must consider under section 26(3) before granting an eviction order. 4. When making a decision under section 12(4)(b) of the National Building Regulations and Building Standards Act to evict occupiers, a municipality must consider the availability of alternative accommodation and the possibility that occupiers will be rendered homeless. Municipal decisions on building safety and housing provision cannot be made in isolation - a holistic approach is required. 5. Legislative provisions that compel people to leave their homes on pain of criminal sanction in the absence of a court order are inconsistent with section 26(3) of the Constitution. 6. What constitutes a reasonable response by a municipality in the engagement process depends on the circumstances and available resources - it may range from permanent housing to no housing at all, but must be within available resources as contemplated by section 26(2).

The Court made several important non-binding observations: 1. On the scale of engagement: The larger the number of people potentially affected by eviction, the greater the need for structured, consistent and careful engagement. Large municipalities should establish structures with competent, sensitive workers skilled in engagement. 2. On the role of occupiers: People in need of housing must not be regarded as a disempowered mass. They should be pro-active, not purely defensive. Civil society organizations should facilitate engagement. 3. On secrecy: Secrecy is counter-productive to engagement. The constitutional value of openness is inimical to secrecy. Municipalities should provide complete and accurate accounts of engagement processes in eviction proceedings. 4. On court approval of settlement agreements: It will not always be appropriate for courts to approve agreements entered into consequent upon engagement. The deciding factor in this case was that engagement was court-ordered during pending proceedings. Courts would ordinarily consider agreements entered into pursuant to engagement they ordered. 5. On timing of engagement: Engagement should take place before litigation commences unless urgency or other compelling reasons make this impossible or unreasonable. 6. On future consideration of housing plans: The Constitutional Court should not be the court of first and last instance on whether municipalities have acted reasonably in housing provision. Specific challenges should be brought in the High Court. 7. On the relationship between PIE and section 26: The Court noted there was no need to expand on this relationship, suggesting the question may not arise if meaningful engagement occurs.

This landmark case established the constitutional duty of municipalities to engage meaningfully with occupiers before evicting them when such eviction may result in homelessness. It recognized meaningful engagement as a constitutional requirement flowing from sections 26(2) and 26(3) of the Constitution, as well as the rights to dignity and life. The judgment clarified that municipalities must take a holistic approach when exercising different statutory duties, particularly regarding building safety and housing provision. The case demonstrates the Court's willingness to use innovative remedies (the engagement order) and to approve settlement agreements reached through court-ordered processes. It established that meaningful engagement is a relevant circumstance that courts must consider under section 26(3) before granting eviction orders. The judgment also clarified that criminal sanctions cannot be used to compel eviction without a court order, strengthening the protection in section 26(3). The case is significant for its practical, rights-based approach to evictions and homelessness, emphasizing human dignity and the interconnectedness of constitutional rights.