The Gauteng High Court, Pretoria, came to the temporary aid of about 200 households who at the end of last year simply moved into RDP houses in Westonaria, saying they were tired of waiting in vain for decades for houses.
The group were due to be evicted this month. Most of the households are headed by women, many of them elderly.
Judge Selby Baqwa temporarily halted the eviction process so that the families could later approach the court to ask for leave to appeal against the eviction order.
With the help of Lawyers for Human Rights (LHR), the group, however, will have to overcome the first hurdle of asking the court for condonation as they filed their leave to appeal application a few days too late.
Advocate Herman Scholtz, acting for LHR, argued that if the court did not urgently come to the rescue of the residents, they would all be homeless.
He said the organisation was only asking for a temporary order halting the eviction, until another court ruled on the leave to appeal application.
The urgent application was brought by LHR on behalf of the Borwa Community Action Group, which consists of the various families living within the government housing development.
The court last month granted an eviction order in favour of their eviction.
Deborah Raduba, attorney in the LHR land and housing programme, said the people tried to follow the legal route in obtaining housing, but had been waiting for more than a decade to be allocated RDP houses.
The group brought an application against the government around 2014, to obtain housing. At the time, the Department of Human Settlements settled the application by agreeing to give them homes. But nothing has happened since.
They said that they had been overlooked for years, while others jumped the queue due to corruption. So when they saw a number of RDP houses standing empty at the end of last year, they simply moved in as there were no talks as to who these houses were earmarked for.
This was followed by an order for their eviction, granted in December.
LHR highlighted to the court during the recent urgent application that it was necessary to pause the eviction against these occupiers until leave to appeal could be heard by the court.
Judge Baqwa agreed, especially after considering the vulnerable nature of the residents. He said following through with the eviction without giving them the opportunity to voice their concerns, would result in a situation where they were left with no alternative housing.
The residents said they were late in filing their documents for leave to appeal against their eviction because they were cash-strapped. Although they tried to gather money among them for an attorney, they did not have enough money.
LHR subsequently agreed to come to their aid and to fight the battle on their behalf.
In granting the order in favour of the residents, Judge Baqwa referred to a similar Constitutional Court case, where it was said “a property owner cannot be expected to provide free housing for the homeless on its property for an indefinite period. But in certain circumstances an owner may have to be somewhat patient and accept that the right to occupation may be temporarily restricted.”
Raduba said there was a grey area in the law before this case because a leave to appeal filed in the prescribed time would automatically suspend the impugned order.
However, where the leave to appeal is filed late, the order is not automatically suspended, despite the late leave to appeal being accompanied by a condonation application.
“This is a significant judgment as it upholds everyone’s right to appear before court according to the Constitution,” Raduba said.
She added that this judgment took “huge leaps” in ensuring justice for disenfranchised people was served despite procedural mishaps.
“We commend the admirable stance taken by the judiciary in this regard,” Raduba said.