Forceful eviction of inhabitants from their homes amounts to violation of their right of access to adequate housing and right to dignity
February 21, 2022
Mtolo and Another v Lombard and Others  ZACC 39
Case CCT 269/21
Constitutional Court of South Africa
Madlanga, Majiedt, Mhlantla & Tshiqi JJ; Tlaletsi, Pillay, Madondo & Rogers AJJ
November 8, 2021
Reported by Faith Wanjiku
Constitutional Law –Bill of Rights - right of access to housing, right to dignity and right to basic education – where the roof and windows of a house had been removed forcing the inhabitants to live outside in the open thereby forcefully evicting them-whether by failing to restore the applicants’ home such that it was suitable for human habitation violated the applicants’ right of access to housing and, relatedly, their right to dignity, as well as their children’s right to basic education.
Mr Alias Mtolo and Mrs Maheneng Mtolo(1st & 2nd applicants), lived with their children on property owned by Mrs Maria Helentje Lombard, (4th respondent). The 1st applicant was employed by Mr Theunis Christoffel Lombard (1st respondent). The property was sold to Mr Jacobus Hunter (3rd respondent). The applicants claimed that, despite an assurance by the 1st respondent that they could reside on the property until they secured alternative accommodation, the 1st respondent removed the roof and windows of their house, effectively evicting them. The applicants averred that as a result, they lived in the open, with their eight children sleeping in the car. All that had affected the children’s schooling, in particular that of two of the children who were in grade 12.
The applicants approached the South Gauteng High Court challenging the lawfulness of the eviction. The trial court ordered the 1st and 4th respondents to restore the house to a state fit for human occupation and allow the applicants to resume possession of it. The trial court also granted the applicants leave to approach it on an urgent basis in the event of non-compliance with the order. Subsequently, the applicants brought an urgent High Court application, alleging that the house remained unfit for human occupation. In response, the respondents alleged that they did comply with the court order. They also averred that the applicants had since secured alternative accommodation. The urgent High Court application was struck from the roll for lack of urgency.
The applicants approached the Constitutional Court persisting in their assertion that the trial court’s order was not complied with.
Whether by failing to restore the applicants’ home such that it was suitable for human habitation violated the applicants’ right of access to housing and, relatedly, their right to dignity, as well as their children’s right to basic education.
- By their very nature, some cases called for the striking of a balance between compliance with practice directives on the conduct of urgent matters and the clamant needed to come to the assistance of a litigant whose rights were severely being violated. To have the instant matter heard in due course, that was, not as one of urgency, meant it would be heard not earlier than the second quarter of 2022 and that could not be. It was not without some significance that before two judges of the same court the matter was entertained as one of urgency. And the trial court went so far as, upfront, to grant the applicants leave to again, apply to the court by way of urgency in the event of non-compliance with its order. That did not give the applicants carte blanche to then be lackadaisical in making an approach to court if that became necessary. But that demonstrable urgency twice recognised by judges of the same court could not easily be swept aside by reason of the applicants possibly being out by a few days in complying with the practice directive.
- Entertaining the matter did not mean the court was readily available to hear direct appeals in matters where applications had been struck from the roll for lack of urgency. The court would entertain similar direct appeals as an exception rather than the norm and as a last resort. The facts had to unequivocally cry out for urgent intervention.
- In so far as the applicants were concerned, throughout the focus of the proceedings was that the respondents rendered the home uninhabitable by removing the roof and windows. For their part, the respondents also focused on the roof and windows, although they said it was the 1st applicant, assisted by his brother-in-law, who removed those items. That explained the specific mention of the roof and windows by the trial court. Nothing was ever mentioned to him about anything else that had rendered the home unfit for habitation by human beings. It was unlikely therefore that his mind could have strayed beyond what had been brought to his attention. After all, context was key in the interpretation of documents.
- Most words could bear several different meanings or shades of meaning and to try to ascertain their meaning in the abstract, divorced from the broad context of their use, was an unhelpful exercise. The expression could mean no more than that, when the provision was read in context, that was the appropriate meaning to give to the language used.
- It would be straining the language of the order to say it required that any aspect whatsoever that bore relevance to human habitability even if unrelated to the fixing of the roof and windows had to be fixed. Nothing in the pleaded case placed the respondents on notice that they were at risk of doing restorative work that went beyond, and was unconnected to, replacing the roof and windows. One did not know what they might have pleaded before the High Court if they had been placed on notice in that regard and what impact that might have had to the outcome of the case. In the circumstances of the case, it would be unfair and unjust to extend the meaning of the order to the wider reaches contended for by the applicants. And that was antithetical to the ruling epithets in section 172(1)(b) of the Constitution of the Republic of South Africa, 1996 – just and equitable.
- One could not be overly restrictive on what fell within the ambit of the restorative task. The respondents’ argument appeared to suggest that it was enough for them to plonk the roof, secured of course, on top of the wall, yet that could not be the case. Anything that was integral to the fixing of the roof had to also be fixed. It mattered not that ordinarily that other thing could seem unrelated to the fixing of the roof. It could be possible to affix the roof securely, but if the last two courses of the brickwork just beneath the roof were for whatever reason so unstable that they posed a risk of collapse of the roof, then those two courses had to be fixed to remove the risk. After all, the order required that the roof of the dwelling had to be replaced to make it fit for human occupation. With that risk, the house was simply not suitable for human occupation. Although the order was tied to the roof, its broader purpose was to ensure the safety of the occupants and to safeguard their health and general welfare. Defects connected to the fixing or replacement of the roof that in any way detracted from that purpose had to be fixed.
- The respondents bore a responsibility to fix any such defects. It was up to them to see to it that they identify and fix them. The reason for that was simple: it was they that had to comply with the order. And if what they had done fell short of what the order required, that constituted non-compliance with the order.
- Coming to the factual question whether the order of the trial court had been complied with, that was a hotly contested issue and the fact that that was a matter brought on affidavit did not assist. Each side was supporting its position on the disputed issue with photographs. The respondents’ denial of the applicants’ assertion that the roof had not been restored to a state suitable for human habitation fell to be rejected on the papers as untenable. That was the only remaining material factual issue. The respondents made much of the fact that the roof was not removed by them, but by the 1st applicant and his brother-in-law. That was immaterial because what the court was concerned with was that regardless of who removed the roof and windows the trial court ordered that the respondents had to restore them. What was at issue presently was only the roof.
- Where there was a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justified such an order. Where it was clear that facts, though not formally admitted, could not be denied, they had to be regarded as admitted.
- There was a lot odd in what was depicted in photographs taken on the day the applicants and their attorney went to inspect the house after it had supposedly been fixed pursuant to the trial court’s order. The flat roof appeared to be made of corrugated iron sheeting. That much appeared from a picture proffered by the respondents which showed the roof from inside the house and from one corrugated iron sheet which was visible from the outside. There was nothing the matter with a roof made of corrugated iron sheeting but then beyond that a lot looked unusual.
- On all the elevations of the building (front and sides) depicted on the photographs, the corrugated iron sheeting was not visible; it did not make an overhang beyond the wall. There was one exception, and that was what appeared to be one corrugated iron sheet that jutted out like a sore thumb on one side only. Without the overhang and nothing appearing to act as a sealant between the roof and the wall, it seemed that rainwater falling at an angle from the sides could seep through onto the inside of the house. That appeared to be exacerbated by a number of holes at the top end of the wall that were plainly caused by the removal of roof trusses that were previously embedded into the wall. Without an overhang, those holes were completely exposed as seen in the photographs provided by the respondents and annexed to their affidavits in the earlier litigation.
- According to the respondents, those photographs depicted the house after the roof had been removed. What was worth noting was that the trusses were in place, sticking out and embedded in the top end of the wall. On the photographs that both parties agreed depicted the house with the roof having been fixed, the trusses were not visible. And where they were, were gaping holes. Through those holes, it seemed rainwater would not even seep through; it would gush in.
- The respondents claimed that the roof had been properly secured but right on the edge of the roof there were small bricks. When the applicants queried that, even stating that the bricks posed a risk of causing physical harm to them, the respondents contented themselves with saying the applicants had no cause for complaint as there were big rocks on the roof even before it was removed. Even assuming that that was so, that does not answer the point of substance: if the roof was secure, the respondents wouldn’t have placed the bricks on top of it. The question was whether they were doing it purely as an attempt at matching what was there before or it was a for-the-sake-of-it exercise. Absent a cogent explanation from the respondents, the presence of the bricks was indicative of an attempt by the respondents to weigh down and keep the roof in position. It was doubtful that those small bricks could achieve that purpose. Also, those bricks were an eyesore. If the respondents truly believed that they had secured the roof properly, it made no sense for them to place the bricks on top of it.
- The respondents had not complied with the order. They had to do so soonest so that the dignity of the applicants and their children could be restored. From the photographs, it was plain that that was a modest home though it mattered not. A home was more than brick and mortar; it was often a place of comfort and safety. To the applicants their modest home was home nonetheless and for the past 11 or so years the applicants and their children had enjoyed a dignified family life, assured of a roof over their heads and protected from the indignity and pain of homelessness. All that the trial court’s order did was to temporarily keep that situation in place and guarantee that its termination would be done under judicial supervision.
- The appropriate order was for the respondents to comply with the trial court’s order and a suitably qualified official of the Emfuleni Local Municipality had to inspect the house for compliance. Because that had been necessitated by the respondents’ failure to comply with the order, the 1st and 4th respondents had to bear costs, if any, reasonably incurred by the Municipality in that regard. The Municipality was not party to the proceedings. Should it be unwilling to act as required by the order, it would be granted leave to apply to the High Court and give reasons for the unwillingness. The application had to be made to the High Court for the same reasons given in the next paragraph.
- In the circumstances of the case and as the High Court ought not to have struck the application from the roll, it was only fair that it had to be remitted to that court to ensure compliance with the order of the Constitutional Court. For all practical purposes, the order sought to enforce compliance with the High Court’s own order. That was not foisting the instant court’s process on the High Court. That should not be read to have a subtext that said the instant court was averse to make orders of remittal.
- The applicants did not seek costs. They said, instead, that the parties had to each pay their own costs. The respondents, on the other hand, sought costs de bonis propriis (out of one’s own pocket) against the applicants’ attorneys. Now that the respondents had not succeeded in their opposition of the application, their contentions in that regard had to fail and so, no order would be made as to costs.
On appeal from the High Court of South Africa, Gauteng Local Division, Johannesburg:
i Leave to appeal directly to the Constitutional Court was granted.
ii The order of the Gauteng Local Division of the High Court (High Court) of August 25, 2021 striking the applicants’ application from the roll for lack of urgency was set aside.
iii The 1st and 4th respondents had to repair the roof of the applicants’ home situate at Plot 8, Ardenworld, Vanderbijlpark, Gauteng (house) within seven calendar days of the date of the order.
iv In compliance with paragraph (iii), the 1st an 4th respondents had to repair the roof in a manner that rendered the house fit for human habitation, including effecting repairs to such defects as could be necessary in order to repair the roof.
v If satisfied with the repair work referred to in paragraph (iii), the applicants could take occupation of the house as soon as the repairs had been effected.
vi To give full and meaningful effect to paragraph (v) or to any order that could be granted by the High Court pursuant to its supervision of compliance with the order in terms of paragraph (x), paragraphs (iii) and (v) of the order granted by the High Court on August 5, 2021 continued to apply.
vii If the applicants were not satisfied with the repair work referred to in paragraph (iii) of the order, the Emfuleni Local Municipality, using a suitably qualified person, had to inspect the house and prepare a report, within four calendar days of being requested so to do by the applicants, as to the safety and fitness of the house for human occupation in relation to the repair work envisaged in paragraphs (iii) and (iv) of the order.
viii The applicants’ attorneys had to file the report referred to in paragraph(xvii) with the High Court and serve it on the respondents’ attorneys.
ix Costs incurred by Emfuleni Local Municipality towards compliance with the order, if any, had to be borne by the 1st and 4th respondents.
x If the Emfuleni Local Municipality was unwilling to comply with the order in paragraph (xvii), it was granted leave to apply to the High Court and give reasons for the unwillingness within three court days of being requested by the applicants to inspect the house and prepare a report.
xi The matter was remitted to the High Court for supervision of compliance with the order.
Relevance to Kenya’s legal system
The Constitution of Kenya, 2010 provides in article 28 that every person has inherent dignity and the right to have that dignity respected and protected. It also provides for economic and social rights in article 43 and further states in sub-article (1) (b) that every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.
There is also the Kenya National Commission on Human Rights Act, No.14 of 2011 which provides in section 8 functions of the Commission to include to promote respect for human rights and develop a culture of human rights in the Republic; promote the protection and observance of human rights in public and private institutions and monitor, investigate and report on the observance of human rights in all spheres of life in the Republic.
Internationally, there are several instruments that provide for the right to adequate housing and right to have one’s dignity protected. The Universal Declaration on Human Rights, 1948 provides in article 1 that all human beings are born free and equal in dignity and rights and are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 25 (1) that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The International Covenant on Economic, Social and Cultural Rights, 1966 provides in article 3 that the states parties to the Covenant should undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the Covenant. Article 11 provides that the States Parties to the present Covenant should recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. The UN Basic Principles and Guidelines on Development- Based Eviction and Displacement, 2007 under its general obligations provide that according to international human rights law, everyone has the right to adequate housing as a component of the right to an adequate standard of living. The right to adequate housing includes, inter alia, the right to protection against arbitrary or unlawful interference with privacy, family, home, and to legal security of tenure. They also provide for compensation during forced evictions to include restitution and return and further provide that when return is possible or adequate resettlement in conformity with these guidelines is not provided, the competent authorities should establish conditions and provide the means, including financial, for voluntary return in safety and security, and with dignity, to homes or places of habitual residence. Responsible authorities should facilitate the reintegration of returned persons and exert efforts to ensure the full participation of affected persons, groups and communities in the planning and management of return processes.
The UN Committee on Economic, Social and Cultural Rights adopted two General Comments which clarified the interpretation of the right to adequate housing and the nature of the State Parties’ obligations. Those were General Comment 4 on the right to adequate housing and General Comment 7 on forced evictions. General Comment 4 established that the right to adequate housing should not be interpreted narrowly, as a right to basic shelter or roof over one’s head; but rather as the right to live somewhere in security, peace and dignity. General Comment 4 had also clarified that the right to adequate housing was internally linked to other human rights including the inherent dignity of the human person.
The CESCR, in adopting General Comment 7, noted that forced evictions frequently violated other human rights such as the right to life, the right to security of the person, the right to non- interference with privacy, family and home and the right to the peaceful enjoyment of possessions. The CESCR’s authoritative comments made the right to adequate housing and security fundamental preconditions to exercising and enjoying other civil, political, social, economic and cultural rights.
In Kenya, the courts have interpreted and applied the law on the right to adequate housing through various judgments. In Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others the court held that it did not matter that the petitioners did not hold title to the suit premises. Even if they had been occupying shanties, the 1st respondent was duty bound to respect their right to adequate housing as well as their right to dignity. Wherever and whenever evictions occurred, they were extremely traumatic. They caused physical, psychological and emotional distress and they entailed losses of means of economic sustenance and increased impoverishment. Therefore, the eviction of the petitioners from the suit premises without a plan for their resettlement would increase levels of homelessness. The court was required to strive to uphold the rights of the petitioners, especially the right to be treated with dignity.
In Kepha Omondi Onjuro & others v Attorney General & 5 others  eKLR the court held that housing entailed more than bricks and mortar. It required available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of those, including the building of the house itself. For a person to have access to adequate housing all of those conditions needed to be met: there had to be land, there had to be services, there had to be a dwelling. Access to land for the purpose of housing was therefore included in the right of access to adequate housing. A right of access to adequate housing also suggested that it was not only the state who was responsible for the provision of houses, but that other agents within the society, including individuals themselves, had to be enabled by legislative and other measures to provide housing. The state had to create the conditions for access to adequate housing for people at all economic levels of the society.
In Mitu-Bell Welfare Society v Attorney General & 2 others eKLR the court held that although the right to adequate housing does not expressly say so, there was, at the very least, a negative obligation placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing.
It is clear that the right to adequate housing and its access is a fundamental right recognized internationally and also in Kenya. The South African case therefore imparts jurisprudence on right to adequate housing and its access, to be provided by the state and even individuals, failure to which leads to violation of human rights.