If a person gives consent without acknowledging, understanding and considering their rights beforehand, is their consent legal and permissible in court? In eviction proceedings, it is questioned whether the granted eviction order may be cancelled after the unlawful occupiers had allegedly consented to it.
Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.
A block of flats, Kiribilly, situated on erven 87 and 88 in Johannesburg was unlawfully occupied by 184 residents consisting of low income earners and unemployed occupiers, where some occupied the residence for a period of 26 years.
The said property was purchased from M L Rocchi, whose attorneys served the unlawful occupiers a letter notifying them of the termination of their right of occupation. The occupiers approached Mr Ngubane to speak on their behalf, and he confirmed with the court that the matter had been settled, as the respondents had been informed.
The High Court granted an order, which was allegedly agreed upon by both parties, to have the occupiers evicted from the property. The question is whether the order is bona fide based on the nature of the consent.
Contesting the order’s legal validity, the applicants submitted that, even if the consent was legally valid, the Court was under constitutional and statutory duties to provide that the eviction would be just and equitable.
Respondents submitted that the applicants failed to provide a defence as to the entitlement of remaining in occupation of the property, thus making the order just and equitable, as stipulated by Section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which says, “If the court is satisfied…that no valid defence has been raised by the unlawful occupier[s], it must grant an order.”
Validity of eviction order based on consent
For consent to be legally effective, it must have been given by the applicants freely and voluntarily with the full awareness of the rights being disregarded. Given that the applicants were not aware of their rights, the factual consent that they allegedly gave was uninformed, therefore not legally binding. Because all information with regards to the conditions of the occupiers was not presented to the courts, the consideration of all relevant factors is disabled, rendering the order invalid. Above all, no information was given as to where the unlawful occupiers would go after the eviction.
In a matter where there is a person claiming to speak on behalf of illegal occupiers in a court appearance, any agreement that s/he has made is not binding to the occupiers because s/he is not the legal representative, nor an occupier. Any statements he makes in court are legally inconsequential, and thus nullified as giving informed or legal consent.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Please feel free to contact Brian Kahn for further information or specific and detailed advice. Errors and omissions excepted (E&OE)