The Constitutional Court has held that evictions that lead to homelessness are unlawful, even if they are agreed to by all the residents to be evicted.

The court on Thursday set aside the eviction of 184 residents of Kiribilly, a block of flats in Berea in Johannesburg’s inner city. The residents had been evicted following a ruling by the High Court in Johannesburg earlier this year.

People under threat of eviction are to be properly informed of their rights to contest eviction proceedings and claim alternative accommodation, according to the court. In addition, judges must investigate the circumstances of all residents in order to assess the effects that an eviction will have on them, the court said in its ruling.

Kiribilly’s owner said that the residents had agreed to be evicted, but the residents said they had not been advised of their rights to defend the case, and would be left homeless if they had to vacate the flats.

At their initial court appearance, only four residents were present, without any legal representation, or a clear mandate from the remaining residents to consent to an eviction, Nomzamo Zondo, director of litigation at the Socio-Economic Rights Institute of SA, said.

The Constitutional Court found that the residents were unaware of their legal rights and so unable to give true consent to the eviction.

Zondo said the court emphasised "the fundamental importance that a person’s home has to the realisation of almost all human rights".

"Even where it seems a person has agreed to be evicted, a judge must not order that eviction unless he or she is made aware of all the relevant circumstances, including the residents’ needs and attitude to the proceedings, and is sure that no one will be left homeless."

The Constitutional Court set aside the eviction order against the Kiribilly residents, joined the City of Johannesburg to the proceedings, and directed the city to report to the high court on the steps it would take to provide the residents with alternative accommodation.

"This is a momentous decision for millions of poor people across SA who live with insecure tenure and inadequate housing. As of today, our courts are forbidden from making eviction orders, even if they have been agreed to, until those under threat of eviction are aware of and able to exercise their rights, and until a judge can be sure no one will be left out on the streets," said Zondo.

Last week, Johannesburg mayor Herman Mashaba said he planned to open up the city’s hijacked buildings to private developers and would expropriate property if necessary. Johannesburg had "hundreds of hijacked buildings" that had been taken over by residents or abandoned by owners, he said.

As part of developing the inner city and providing affordable housing to its residents, more than 70 of these buildings had been identified for development, and as such, squatters would have to leave the buildings, he said.

In an interview with Business Day, Mashaba said he would announce his plans for the development of the buildings in the next two months. The project would be driven from his office with the aim of providing long-term rentals.

There is a severe shortage of housing in the city, which Mashaba put at 300,000 residences. Various companies are trying to fill the backlog in Johannesburg and Gauteng with affordable housing, including Octodec Investments, Transcend, Indluplace Properties and SA Corporate Real Estate.

Mashaba’s plans come after he criticised the Gauteng provincial government for slashing the city’s housing top structures grant.

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