Evictions – a sad reality in South Africa

August 29th, 2016
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Page 30 imageBy Madeleine Truter

South Africa’s history is one where the majority of people have been deprived of land, and have experienced a lack of access to housing.

Our Constitution took effect on 4 February 1997, and s 26(3) provides that no one may be evicted from their homes, or have their homes demolished, without an order of court, made after considering all the relevant circumstances.

On 4 October 2000, the Constitutional Court handed down its landmark judgment in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC). Irene Grootboom, a housing rights activist, was made famous when the Constitutional Court found in her favour and held that the South African Government had not met its obligation to provide adequate housing for the residents of Cape Town’s Wallacedene informal settlement. The ruling provided clear legal support for housing-rights campaigns in South Africa. It is ironic and tragic that at the time of her death in August 2008, she was still living in a shack.

The PIE Act

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) governs the eviction process in the event of a land invasion. The aim of the PIE Act is to protect both the occupiers and the landowners. All residential tenants are covered by PIE, including illegal occupants and defaulting tenants. Satisfactory grounds for eviction under the PIE Act exist when an occupier –

  • did not make payment of rental;
  • is a nuisance to the neighbours;
  • causes damage to the property;
  • has a fixed lease, which has not been renewed, has subsequently expired, and has been properly terminated in terms of the provisions of the lease agreement; or
  • has breached provisions of an existing lease agreement.

An application under the PIE Act can only be launched if the occupant of the property is considered to be in illegal occupation. In the event of a breach of any provision of the lease agreement, the provisions of the breach clause of the lease agreement should be followed.

In addition to basic requirements such as proper notice of the eviction proceedings being served on the persons concerned, three major principles have been established by the South African courts in their interpretation of the PIE Act.

The first principle is that people should generally not be evicted into a situation of homelessness. Temporary alternative accommodation should be provided to those facing homelessness by the relevant public authorities, usually municipalities.

The second principle is that people facing eviction from their homes should be given a meaningful opportunity to participate in the resolution of the eviction dispute. This can take the form of mediation (where a third party tries to assist the parties to reach an agreement), or more structured processes involving in-depth negotiations between municipal officials, private landowners, communities and the organisations supporting them.

The third general principle is that evictions, which might lead to homelessness, are never just private disputes – they always involve the state – whose duty to provide emergency housing may be triggered by an eviction. When there is a possibility of people being left homeless, relevant organs of state (usually municipalities) must be joined as necessary parties to the legal processes for eviction.

What is a ‘home’?

To date, the Constitutional Court has not finally decided the question of what constitutes a ‘home’. The question of whether a structure is a home must be decided by a court, which properly evaluates the background and circumstances of the people who built the structure, and the reasons for its construction. The Socio-Economic Rights Institute of South Africa (SERI) made the following argument: ‘The primary determinant of whether a shack is a “home” must surely be what else is available to the person who constructed it. If the person who constructed the shack was homeless before, and would be homeless if it was demolished, it requires little imagination to conclude that the shack itself – however modest or ill-furnished – is his or her home’ (Fisher and City of Cape Town v Ramahlele and 46 Others (‘Fisher interdict application’) (www.seri-sa.org, accessed 22-7-2016)).

On 4 June 2014, the question as to what constitutes a ‘home’, was considered by the Supreme Court of Appeal (SCA) in the case of Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA). The Fischer case involved an application to court by the owner of land in Philippi East, Iris Fischer, for an order preventing the unlawful occupation of her property by a number of people erecting informal dwellings on her land. In response to that application, members of the community instituted legal proceedings against the city, who they argued had destroyed more than 30 of their structures on the land illegally. This counter-application was based on a common law remedy known as a ‘mandament van spolie’, which is aimed at restoring possession to people who have been unlawfully deprived of their peaceful and undisturbed possession of property (even if that possession is unlawful). The remedy is aimed at discouraging people or public authorities from taking the law into their own hands by speedily restoring possession without going into the merits of the underlying rights of the parties. The High Court held that the demolition of the structures on the land was unlawful, commenting that they were reminiscent of Apartheid style evictions. Gamble J accordingly ordered the city to rebuild the structures. The city then appealed this judgment to the SCA. The SCA held that the key issue in the case was whether the affected community members were in fact occupying the structures when these were demolished. If they were, then the city would have taken the law into its own hands and acted unlawfully in demolishing the structures. The residents would be entitled to have the structures rebuilt and restored to them. However, if the structures were vacant and unoccupied (as the city alleged) then the city was entitled to remove them. The SCA held that the High Court should have heard evidence on whether the structures were occupied or not at the time of their demolition. It referred the case back to the High Court for evidence to be heard on this. The Fischer case centres on the question of whether the factual requirements for the mandament van spolie were met. But it also raises the question of what constitutes a ‘home’. The purpose of s 26(3) and the PIE Act is primarily to protect people’s homes.

Suspension of eviction order relating to Newcastle informal settlement

On 14 December 2015, the Western Cape High Division of the Court (City of Cape Town v Those Persons Occupying and/or intending or attempting to occupy or erect structures on erf 18370, Khayelitsha (WCC) (unreported case no 13700/14, 14-12-2015) (Nuku AJ)) temporarily suspended an eviction order against occupants who have been living on the land directly behind the Endlovini informal settlement (known as the Newcastle Informal Settlement) in Khayelitsha, since May 2014 (Barbara Maregele ‘Court stops City from evicting Newcastle residents’ www.groundup.org.za, accessed 22-7-2016).

Nuku AJ lashed out at the City of Cape Town (the city) for its ‘failure to engage’ with Newcastle’s residents before obtaining an eviction order against them. Nuku AJ handed down judgment nearly five months after the court battle started, ordering that the eviction be stayed. Just two months after erecting their structures in May 2014, the residents claimed, they were informed that the courts had granted an eviction order to the city. The residents then lodged a counter application, challenging the city’s compliance with the PIE Act. The residents insisted that the city did not comply with the eviction order granted in 2014 by Western Cape High Court Judge Thandazwa Ndita. The city submitted an application for leave to appeal and challenged the ruling in the SCA. In his judgment, Nuku AJ said the following: ‘[I]n a matter where a municipality applies for an eviction it is bound to act reasonably. Part of acting reasonably is the engagement with those who are to be evicted as that ensures that they are treated with dignity in the process … but has also failed to provide reasons why.’ Nuku AJ continued to state that instead of meeting with residents, the city chose to ‘dictate’ to the residents on what it would be prepared to discuss. There was in other words no engagement with the respondents prior to the launching the application for their eviction. The reasons provided in support of the eviction application were that some residents refused to give their details, were hostile, and threatened officials. Justice Nuku said after the city obtained the eviction order, it did not ‘deal with the issue of alternative accommodation’ or hold a meeting with the residents. The other factor that weighed heavily with Nuku AJ is the city’s attitude that it is not obligated to provide alternative accommodation to the occupants. According to Nuku AJ, in instances where the person is to be evicted from land owned by an organ of state, the protection afforded in the PIE Act must be available even if the person occupied the land for less than six months. Nuku AJ also highlighted the residents’ poor living conditions and urged the city to resolve the matter as soon as possible.

Ndifuna Ukwazi (NU), an activist organisation and law centre that promotes the realisation of constitutional rights and social justice, welcomed Nuku AJ’s ruling. NU researchers and attorneys assisted the residents during the court action, stating in a press statement that: ‘Land occupations like this are common in a city where security of tenure, access to land and adequate housing is in short supply for many black working class families. … This latest judgment enforces the notion that the City purposefully fails to engage meaningfully with poor communities. … Attempting to appeal a clear cut order is an undue delay of the City’s constitutional responsibilities’ (Maregele op cit).

Conclusion

Despite the progress made by the legislature and judiciary to ensure that no South African is left homeless, land evictions are still rampant, and officials on the ground are finding ways to circumvent the overarching test of ‘justice and equity’, introduced by the PIE Act. A case in point is the argument being used by the City of Cape Town’s Anti-Land Invasion Unit that they are ‘simply preventing the occupation of private land by removing unoccupied and incomplete structures’ (Sandra Liebenberg ‘What the law has to say about evictions’ www.groundup.org.za, accessed 22-7-2016), in other words that they have not breached constitutional or legislative provisions as no ‘homes’ were destroyed, because the structures are supposedly not occupied and/or completed.

Given the strong winds which have been destroying homes thus far, we can only hope for strong winds of change that will persuade officials at all levels of government, as well as the private sector, to treat those facing homelessness in a way that promotes the value of human dignity, which lies at the heart of the housing rights enshrined in the Constitution. In the words of Albie Sachs J: ‘It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies, rather than mitigates, their marginalisation’ (Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)).

 

Madeleine Truter BLC LLM (UP) BA (Hons) Political Science (UP) Advanced Certificate in Company Law (Wits) Advanced certificate law of banking and financial markets (cum laude) (Wits) is a legal adviser at The Pivotal Fund Ltd in Johannesburg.

This article was first published in De Rebus in 2016 (Sept) DR 30.