City of Johannesburg v Changing Tides 74 (Pty) Ltd and 97 others (The Socio-Economic Rights Institute of South Africa intervening as amicus curiae)

Changing Tides 74 (Pty) Ltd owned Tikwelo House, a former factory/warehouse building in Doornfontein, Johannesburg. The building had been 'hijacked' - unlawfully occupied by approximately 97 (or more) occupiers living in squalid conditions with no toilet facilities, water supply, sewage disposal, illegal electricity connections, and inadequate ventilation. The building was described as a 'death trap' posing serious health and fire hazards. Changing Tides acquired the property in 2007 in settlement of debts and wished to redevelop it but could not obtain control due to the hijackers. The City of Johannesburg had issued notices requiring compliance with public health and building regulations. Changing Tides applied for an eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), citing the occupiers and the City as respondents. The application was unopposed. The high court (Wepener J) granted an eviction order and also ordered that the sheriff compile a 'matrix' of information about the occupiers and that the City provide temporary emergency accommodation. The City appealed against the order requiring it to provide accommodation and pay the sheriff's costs.

• What is the relationship between sections 4(6) and 4(7) of PIE regarding the 'just and equitable' enquiry?
• Is joinder of the local authority required or permissible in private eviction applications under PIE?
• What are the procedural obligations of applicants, local authorities and respondents in eviction proceedings?
• Can a court order a sheriff to compile information about occupiers' personal circumstances?
• What is the scope of a local authority's constitutional obligations to provide temporary emergency accommodation to evictees?
• What is the onus of proof in eviction applications under PIE?
• What information must a court have before granting an eviction order?
• What are the obligations of local authorities when joined in eviction proceedings?

The appeal was upheld. Each party was ordered to pay its own costs of appeal. Paragraph 2 of the high court's order (directing the sheriff to compile a matrix) was declared legally ineffective. Paragraphs 3 and 4 (ordering provision of emergency accommodation and costs) were set aside. The application was remitted to the high court to determine: the eviction date, terms for provision of temporary emergency accommodation, and other conditions. Specific interim orders were made: (a) the LRC to provide a list of occupiers requiring accommodation by 30 September 2012; (b) declaration that the City must provide temporary emergency accommodation to all persons on that list at least two weeks before eviction; (c) the City to deliver a detailed report on accommodation by 31 October 2012; (d) occupiers entitled to respond by 30 November 2012; (e) matter then to be set down for hearing. The application by occupiers to lead further evidence on appeal was refused.

1. Under PIE s4, there are two discrete enquiries: first, whether it is just and equitable to grant an eviction order (s4(7)); second, if an eviction order is granted, what is a just and equitable date for it to take effect and what conditions should attach (s4(8)). Both enquiries must be completed before an eviction order can be granted. 2. In private eviction applications, the availability of alternative accommodation is less significant in determining whether to grant an eviction order, but is critical in determining the date and conditions of eviction. 3. Local authorities must be joined as necessary parties when the circumstances raise the possibility that eviction may trigger their constitutional obligations to provide emergency accommodation. 4. The applicant for an eviction order bears the onus of satisfying the court that it is just and equitable to grant the order, and must place relevant information before the court regarding all factors specified in s4(7). 5. It is not a proper function of the sheriff to compile information about occupiers' personal circumstances, and a court order requiring this is ineffective. 6. Local authorities joined in eviction proceedings must file comprehensive reports addressing the specific facts of the case, including information about the building/property, the occupiers, likelihood of homelessness, proposed provision of emergency accommodation, implications of delay, engagement with occupiers, and scope for mediation. 7. Where eviction will create an emergency situation (health/safety risks), temporary emergency accommodation should be provided to all evictees who claim to need it, with individual assessments of entitlement occurring after accommodation is provided, not before.

The Court made several non-binding observations: 1. Property owners could demonstrate that eviction is just and equitable by offering to assist evictees to move themselves and their belongings to new accommodation, thereby infusing 'grace and compassion' into the process and avoiding scenes reminiscent of forced removals. 2. Courts must take care when exercising more active case management powers in eviction cases to ensure they do not go beyond proper judicial conduct or 'enter the arena'. 3. The City should be actively engaged in addressing situations where people live in squalid conditions, rather than simply serving notices on building owners that prompt private eviction applications. 4. Mediation under s7 of PIE may be appropriate in some eviction cases. 5. The Constitutional Court's statement that 'technical questions relating to onus of proof should not play an unduly significant role' does not mean onus can be disregarded entirely - if the court is left in doubt whether eviction is just and equitable, it must refuse the order. 6. The practice of sheriffs dumping evictees and their belongings on pavements is reminiscent of apartheid-era forced removals and should be avoided.

This judgment provides crucial guidance on eviction proceedings under PIE in South Africa. It clarifies the two-stage enquiry courts must undertake (whether to grant an eviction order, and if so when and on what conditions). It establishes that local authorities must be joined when eviction may trigger constitutional obligations to provide emergency accommodation. The judgment sets out comprehensive procedural obligations for applicants and local authorities in eviction cases. It emphasizes that courts must adopt an active case management approach while respecting the boundaries of judicial conduct. The judgment recognizes the constitutional obligations of municipalities to provide temporary emergency accommodation to evictees facing homelessness, and establishes that in urgent cases where occupiers face health/safety risks, the provision of such accommodation should precede individual assessments of entitlement. It reflects the Constitutional Court's directive to infuse 'grace and compassion' into eviction proceedings. The decision balances property owners' rights under s25 of the Constitution with occupiers' housing rights under s26. It provides a practical framework for managing 'bad building' evictions and addressing the phenomenon of 'hijacked' buildings in South African cities.