More News Articles

On 14 October 2014 a Full Bench of the South Gauteng High Court handed down judgment in ABSA Bank v Lekuku. SERI was invited by the court to make a submission as amicus curiae in the case, in which the main issue is whether a requirement in the Gauteng Local Division Practice Manual, that personal service of foreclosure applications against property that might be used as a home be attempted and required where possible, is lawful.

The case forms part of SERI's ongoing work to prevent banks and other lending institutions from abusing court processes dealing with debt collection.

SERI argued that the practice directive does not require that personal service must be effected in all cases, only where it is possible. And that personal service is the preferred method of service because of the risk of the debtor losing their house, and the importance of them being at court in case they can persuade the judge not to declare it executable.

This is against the background of foreclosures being granted in the past in cases where the summons was left under stone outside a property or attached to a gate. ABSA had relied on so-called "domicilium" clauses in bond agreements to argue that service under a stone or by attachment to the outside gate of an address nominated in a bond was sufficient, even if the summons does not come to the attention of a consumer

The effect of the recent judgment is that banks in the Gauteng Local Division must now make “every reasonable effort” to draw foreclosure proceedings to a debtor’s attention, including by personal service where possible.

• Read the judgment (14 October 2014) here.
• Read more on the case here.

On 9 October 2014, SERI filed papers opposing an eviction application brought by a private owner, All Building and Cleaning Services CC, which is a property development company. The company is seeking to evict two elderly occupiers living on a property in Fairlands in Johannesburg. The occupiers include two 71 year-old individuals who had worked for the previous owner of the property and lived on the property for 44 years. The occupiers earn very little and are at risk of becoming homeless if evicted. The property owner is requesting the eviction in order to redevelop the property for higher-income persons.

The occupiers argue that the eviction application should be set aside on equitable grounds. To prevent the threat of homelessness the occupiers argue that the owner should allow them to reside on a small portion of the property, or to accommodate them in the redevelopment through the provisions of the Inclusionary Housing Policy (IHP). Alternatively, the occupiers argue that the City is obliged to provide them with temporary alternative accommodation, and the municipality is also joined to the proceedings.

The eviction application comes in the wake of an attempted illegal eviction which took place on Freedom Day last year on 27 April 2013. On that day, a group of men descended onto the property and attempted to remove the roof of the occupiers’ home.

• Occupiers' written submissions (9 October 2014) here.

SERI, in partnership with the South African Local Government Association (SALGA), hosted a workshop on the law related to evictions, in Durban in the KwaZulu Natal on 2 October 2014. The workshop was aimed at presenting the legal obligations and court judgments in relation to evictions and the provision of alternative accommodation to local government officials in order to enable officials to develop more appropriate and constitutionally compliant responses to housing and eviction-related issues in their jurisdictions. This was the second workshop of this nature, with the first being conducted in East London in the Eastern Cape.

The workshop was attended by over 60 participants from a number of municipalities in the KwaZulu Natal, including national and provincial government officials, ward councillors and local government officials responsible for human settlements, legal compliance, infrastructure and planning. Participants at the workshop identified the need for municipalities to react more proactively to evictions in their jurisdictions. It also became clear that evictions and the provision of alternative accommodation in the event of homelessness pose complex, multi-disciplinary challenges to municipalities which require collective action among all the relevant stakeholders.

SERI’s presentation was based on the findings of a SERI research report published in November 2013 – Evictions and Alternative Accommodation in South Africa: An Analysis of the Jurisprudence and Implications for Local Government – which consolidates and analyses the case law in relation to evictions in South Africa. The report was written as a guide to activists, communities and lawyers caught up in eviction-related struggles, as well as local government officials who are tasked with developing and implementing housing policy.

• Access SERI’s presentation here.
• Access the full research report here, and a summary here

Today the online platform, Open Democracy, published an excellent article by SERI executive director, Stuart Wilson, entitled "Without means, there are no real rights".

The article discusses the indivisibility of socio-economic rights and civil and political rights and the need for socio-economic rights to satisfactorily enforce political action. Wilson argues that for political rights to be useful, there must also be means for persons to enforce those rights. As Wilson writes: "[I]f you really care about political freedom, then you have to care about economic freedom."

The article examines the need for rights-based litigation as well as "political mobilisation and follow-up action" to ensure that opportunities are created for "truly transformative political action". This requires "economic freedom" which Wilson argues should be "understood as a necessary precondition for the exercise of political rights [and] does not entail the absolute protection of property rights. It instead requires the redistribution of economic goods to the extent necessary to ensure that everyone has more or less equal access to the means of self-realisation. For without those means, civil and political rights are empty."

• Read the article (23 September 2014) here.