Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
On the recent Con Court eviction judgment: knowing the price of everything, and the value of nothing
A recent Constitutional Court judgement authorising the eviction of an 85 year old women and her disabled son from a dwelling she has lived in for 75 years, raises important questions about the nature of (in)justice and the ability of courts to undo it.
You have probably never heard of Mrs Clara Phillips and her son Adam Phillips. They are neither powerful nor influential, have never met (and may not have heard of) the Gupta’s (or their mascot, Duduzane Zuma), and are unlikely ever to feature in a press release of the Jacob Zuma Foundation. And when Lindiwe Sisulu or fugitive from justice Paul Ngobeni decide to pen another broadside against the South African judiciary or the Constitutional Court, Ms Philips and her son, or the Constitutional Court case they recently lost, are unlikely to be mentioned.
This, despite the fact that the ruling favours the powerful party’s property rights, and, in my view, fails to accord sufficient weight to the interests and dignity of Mrs Phillips and her son. In closely contested cases, South Africa’s Constitutional Court more often than not sides with the more vulnerable party (at least in cases where the legal rules make this possible), against those who wield social and economic power, which makes this case somewhat of an anomaly.
The case I am referring to is Grobler v Phillips and Others [2022] ZACC 32, an eviction case decided in terms of section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The judgment reminded me of the Oscar Wilde quote: “A cynic is a man who knows the price of everything, and the value of nothing.”
For me at least, the “cynics” in this story are the justices of the Constitutional Court who held (in a unanimous judgment penned by Justice Zukisa Tshiqi) that the eviction of Mrs Phillips and her son from the home Mrs Phillips had lived in for more than 75 years was just and equitable and ordered her removal to another property provided by the property owner.
The story of Mrs Clara Phillips would be familiar to anyone with knowledge of the quasi-feudal relationships between apartheid-era farm owners and the generations of farm workers who lived and worked on these farms.
Mrs Phillips’ parents were farm workers, and in 1947 (when she was 11) she moved with them into the house (a labourer’s cottage) that she has occupied ever since. In the quasi-feudal system, it was predictable that Mrs Phillips also became a farm worker on the same farm on which her parents worked, and that she married another farm worker. Her husband has long since passed away, but she has continued to live in the house with her son Adam, who is severely brain-damaged and under curatorship.
Previous owners of the farm had verbally promised her that she had a life right to continue living in the house. She was unaware that to secure that life right against potential future owners, registration in the deeds office was required. Her right to remain in the house would nevertheless have been protected by the provisions of the Extension of Security of Tenure Act (Esta), but for the fact that over the years the farm was subdivided and gradually brought within the urban edge of Somerset West.
The Esta protection only applies to farmland, which means Mrs Phillips could no longer rely on it, and had to rely on the less powerful provisions of PIE.
The efforts to evict Mrs Phillips and her son started towards the end of 2008 after Willem Grobler bought the property on which Mrs Phillips and her son lived. Mr Grobler, who is a businessman with a law degree, and the chief executive officer of a technology company, bought the property (at a low price) as an investment. When Mr Grobler bought the property, he knew that the house on the property was occupied but seemed to have assumed that he would be able to get Mrs Phillips and her son to move out of the property, one way or another.
The matter took many legal twists and turns before it ended up in the Constitutional Court. Before the apex court, the crisp legal question was whether the Supreme Court of Appeal (SCA) was correct to hold that it was not just and equitable to order Mrs Phillips’ eviction. PIE allows courts to order the eviction of unlawful occupiers, but section 4(7) of PIE provides guidance on what considerations have to be considered when a court exercises this discretion, stating that:
If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including… whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
In Port Elizabeth Municipality v Various Occupiers, the Constitutional Court (in a judgment written by Justice Albie Sachs) held that PIE “expressly requires the court to infuse elements of grace and compassion into the formal structures of the law”. What is required is a balancing of “competing interests in a principled way”.
The court noted in Port Elizabeth Municipality that PIE was enacted to replace “the former depersonalised process that took no account of the life circumstances of those being expelled… by humanised procedures that focused on fairness to all”. In applications for eviction, “the courts were to ensure that justice and equity prevailed in relation to all concerned”.
Considering all the factors mentioned above, as well as the fact that Mrs Phillips was accustomed to life in the house she occupies and the fact that she enjoyed not only the freedom and space, but also the environment around it, the SCA had ruled that the eviction would not be just and equitable. The Constitutional Court overturned the ruling on appeal, suggesting that Mrs Phillips had acted unreasonably by not accepting an offer from the owner to be moved to other accommodation.
Writing for the court, Justice Tshiqi argued that the Constitution “does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live”, and suggested that in cases like this what was required was “some give by both parties”, stating that:
In essence, when balancing the interests, compromises have to be made by both parties, in order to reach a just and equitable outcome. A disturbing feature in this matter is that very little effort was made by Mrs Phillips to seriously consider the several offers of alternative accommodation made by Mr Grobler. She also did not make any counter-offers in response to the generous offers of alternative accommodation made by Mr Grobler.
The court expressed concern that the SCA considered the “personal preferences of an unlawful occupier”, which it said are of no relevance in an inquiry on whether an eviction is just and equitable under PIE. It also held that the SCA had erred by placing “too much emphasis on Mrs Phillips’ peculiar circumstances” and not affording sufficient weight to the rights of the property owner.
To soften the harsh consequences of the judgment, the Constitutional Court did order Mr Grobler to provide Mrs Phillips and her son with suitable alternative accommodation “within a radius of five kilometres” from the house she was currently staying in.
The Constitutional Court was correct to emphasise that in eviction cases, courts are required to balance the interests of the parties. It is also true that — as the law stands — in most cases in which alternative accommodation is provided, our courts will sanction an eviction of an unlawful occupier to vindicate the property rights of the owner. (Whether, as a matter of principle, this should be the case, is a different question I do not address here.)
Despite all this, I worry that the judgment failed to infuse “grace and compassion” into the formal structures of the law. Can one really fault Mrs Phillips for resisting being moved from the house she had lived in almost her entire life? Surely, sometimes a house is more than just a house? More, even, than a home.
Sometimes the home where you live gives meaning to your life, becomes part of your identity, gives you a sense of belonging — all things that cannot be measured in rands and cents.
And what should be made of the fact that Mrs Phillips was not legally protected because she did not have the knowledge and access to resources to transform the promise of a life right to live on the property into a legally enforceable right?
Perhaps the problem, in this case, arose from the fact that the court was called upon to balance two competing interests that “belong to completely different conceptual and existential orders”. (I borrow this language from Justice Sachs’ judgment in Christian Education South Africa v Minister of Education.)
What Mrs Phillips valued (and would lose when evicted) is not easily translatable into something concrete and measurable that could be recognised as valuable within the free market system. How does one balance this interest against Mr Grobler’s interests to use his property as he saw fit and to make a profit from it if he so wished?
These are the kinds of questions, I would suggest, that those concerned about the appropriate role (and ability) of our courts to dismantle past injustice, should explore with urgency.
But perhaps because Mrs Phillips is neither powerful nor influential, and because her fate will have no impact on who gets elected to which position within the governing party, or who will get access to tenders and other state resources, this judgment is likely to remain a small footnote in history.
