Occupiers of Erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.

184 residents (47 women, 114 men, 23 children) occupied a block of flats called Kiribilly in Berea, Johannesburg. They had resided there for periods of up to 26 years and most were low-income earners or unemployed. The property was owned by M L Rocchi Investments CC since 1985 and went into liquidation in 2011. The joint liquidators (the respondents) sold the property to Mr Maseko, a property developer who intended to spend over R3 million on refurbishment. On 10 September 2013, an eviction order was granted by Khumalo J purportedly by agreement. Four occupiers (appearer applicants) attended court with Mr Ngubane, a ward committee member, with a mandate only to seek a postponement to obtain legal representation. However, they did not request a postponement and the eviction order was granted after the matter was stood down for parties to confer. The occupiers subsequently obtained legal representation through SERI and launched multiple challenges to the eviction order, all of which were dismissed by the High Court and Supreme Court of Appeal.

• Whether a court is absolved from considering all relevant circumstances when an unlawful occupier has purportedly consented to eviction
• Whether an eviction order may be rescinded where occupiers consented to it without informed consent
• Whether consent to eviction was validly given in the absence of legal representation and full knowledge of rights
• What duties does a court have in eviction proceedings under section 26(3) of the Constitution and PIE
• Whether a local authority must be joined in eviction proceedings where there is a risk of homelessness
• Whether the eviction order should be rescinded under rule 42(1)(a) of the Uniform Rules or common law rescission based on iustus error

1. Leave to appeal granted. 2. Appeal upheld. 3. The order of Adams AJ dated 12 November 2015 set aside and substituted with an order rescinding the eviction order granted by Khumalo J on 10 September 2013. 4. Matter remitted to the High Court, Gauteng Local Division, Johannesburg with direction that it be case-managed and dealt with on an expedited basis. 5. City of Johannesburg joined as a further respondent in the High Court proceedings. 6. Applicants directed to serve on the City within 5 days a copy of the record and judgment. 7. City directed to file a report within 30 days on what steps it has taken or intends to take to provide alternative land or emergency accommodation and when such can be provided. 8. Applicants and respondents may file affidavits in response within 15 days of the City's report. 9. No order as to costs.

The binding legal principles are: (1) Even where parties purport to consent to eviction, courts are not absolved of their constitutional duty under section 26(3) of the Constitution and statutory duty under PIE to consider all relevant circumstances and form an independent opinion that the eviction is just and equitable. (2) Consent to eviction is only legally valid if it is informed, free and voluntary - occupiers must have full knowledge of their constitutional and statutory rights for consent to be effective. Factual consent without informed consent is not legally binding. (3) The application of PIE is mandatory and non-discretionary in all eviction proceedings. Courts must adopt a proactive, investigative role to gather all relevant information about the circumstances of the occupiers. (4) Where there is a risk that eviction will result in homelessness, the local authority must be joined as it has a duty to provide temporary emergency accommodation (following Blue Moonlight). The availability of alternative accommodation is a relevant circumstance that must be considered. (5) An eviction order granted without informed consent may be rescinded under rule 42(1)(a) of the Uniform Rules (where the affected party was absent) or under the common law based on iustus error (just mistake) where consent was not validly given.

The Court made important observations about access to justice in eviction proceedings: (1) Where unlawful occupiers are unrepresented, courts should consider issuing a rule nisi served with a notice explaining the right to temporary emergency accommodation and the right to apply for legal aid, directing them to specific legal aid clinics with addresses. (2) Attorneys and advocates as officers of the court have a duty to furnish courts with all relevant information in eviction matters to enable proper consideration of justice and equity. (3) The spirit of ubuntu suffuses the constitutional order and PIE - the Constitution requires human interdependence, respect and concern. Courts must infuse elements of grace and compassion into the formal structures of law. (4) The effect of PIE should not be to effectively expropriate landowners' rights - properly applied, PIE serves to delay or suspend exercise of property rights until a determination is made whether eviction is just and equitable and under what conditions. Courts must balance the interests of both occupiers and landowners. (5) The judgment noted with approval the owner's intention to offer refurbished apartments for rent to applicants who qualified, demonstrating constructive engagement between parties. (6) The Court emphasized that matters should be resolved expeditiously to avoid prejudice to both parties - the seeping in of unintended consequences from delay can cause irreversible harm to property owners' legitimate interests.

This judgment is of fundamental importance to South African eviction law and the protection of vulnerable occupiers. It establishes critical principles: (1) Courts cannot abdicate their constitutional and statutory duties even where parties purport to consent to eviction - the application of PIE is mandatory and non-waivable. (2) Consent to eviction must be informed - occupiers must have full knowledge of their constitutional rights under section 26(3), their rights under PIE including the right to have all relevant circumstances considered, the right to joinder of the local authority, and potential entitlement to temporary emergency accommodation. (3) Courts must adopt a proactive, investigative approach in eviction matters, not a passive one. They must actively gather information about all relevant circumstances. (4) Where unrepresented occupiers appear in court, courts should explain their rights, direct them to legal aid, and consider issuing rules nisi with explanatory notices. (5) Local authorities must be joined where there is a risk of homelessness arising from eviction. (6) The judgment reinforces the ubuntu values underlying PIE and the constitutional imperative to balance property rights with housing rights in a manner that promotes human dignity and prevents arbitrary evictions. It demonstrates that procedural protections in eviction matters cannot be contracted away and serves as important protection for vulnerable occupiers who may be pressured into "agreeing" to eviction orders.