Building solid foundations: The legal understanding of a ‘home’

February 1st, 2022

According to the classic adage, ‘home is where the heart is’, however, the legal standard for determining whether a structure constitutes a ‘home’ is, thankfully, somewhat more sophisticated. It is much more mystifying. The respective courts in South African Human Rights Commission and Others v Cape Town City and Others 2021 (2) SA 565 (WCC) and Davids v City of Cape Town (WCC) (unreported case no 16372/2021, 7-10-2021) (Allie J) have added yet another layer to the slow judicial construction of the legal definition of a ‘home’.

Section 26(3) of the Constitution provides that: ‘No one may be evicted from their home … without an order of court made after considering all the relevant circumstances’ (my italics). The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) was enacted to give expression to s 26(3). In its preamble, the PIE Act mirrors the s 26(3) guarantee against evictions from the home. It is thus very clear the kind of structure, which is afforded constitutional protection – a ‘home’.

The constitutional protection afforded is significant – if a structure qualifies as a ‘home’, it cannot be demolished, or its occupants evicted, summarily. Eviction from, and demolition of, a home may only proceed if countenanced by a court; otherwise, it is unlawful.

In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para 20, Sachs J explained that ‘the landowner cannot simply say: This is my land, I can do with it what I want, and then send in the bulldozers or sledgehammers’. The landowner must apply to court. However, if the structure is not a home, the bulldozer-and-sledgehammer approach is then a viable course of action.

And so, a lot turns on the definition of a ‘home’.

Despite its importance, there is no conclusive all-encompassing definition – either in legislation or advanced by the courts. Presumably, this reluctance is because it may eventuate that a definition now may prove to be too restrictive later. Structures, which ought to be classified as homes may fall beyond the definitional walls of any erstwhile definition.

Instead, there has been a cautious brick-by-brick approach, slowly building up the definition. This article surveys the position as it currently stands of which structures constitute homes, and which do not.

The PIE Act enumerates a limited number of home-qualifying structures. Section one provides that a ‘hut, shack, tent or similar structure’ may all constitute a home, as well as ‘any other form of temporary or permanent dwelling or shelter’ (see Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) for further discussion). The Supreme Court of Appeal (SCA), in the seminal case of Ndlovu v Ngcobo; Bekker and Another v Jika [2002] 4 All SA 384 (SCA), at para 20, reiterated the latter as the determinative test. A structure constitutes a home if it ‘perform[s] the function of a … dwelling or shelter for humans’.

The question then really is: When does a structure perform the function of a dwelling or shelter? When it does, does the structure qualify as a home?

The SCA, in Ngomane and Others v Johannesburg (City) and Another 2020 (1) SA 52 (SCA), found that a dwelling or shelter must take a certain physical form. The case arose from the confiscation of wooden pallets and cardboard boxes. The pallets and boxes were assembled into structures in the evenings, affording the applicants some shelter from the elements, and then disassembled again in the morning. It is while the materials were disassembled that they were confiscated.

It is evident from Ngomane (as well as several other cases – see, for example, City of Cape Town v Rudolph and Others 2003 (11) BCLR 1236 (C)) that there is no restriction on the component materials used to construct a home. A home can comprise of even the most rudimentary materials (eg, carboard boxes and wooden pallets), so long as it is fashioned into a dwelling or shelter.

However, in the instant case, Maya P, writing for a unanimous court, held that the confiscated materials in question did not amount to a home as they were disassembled and scattered. Materials, lying around, notwithstanding the potential to be assembled into a shelter or dwelling, do not constitute a home. A disassembled structure, no matter the frequency of its assembly and disassembly, is not a home. The judgment has come in for criticism (see, for example, Ndivhuwo Ishmel Moleya ‘The plight of the homeless under PIE: A critical analysis of Ngomane and Others v City of Johannesburg’ 2020 (March) DR 39), but still stands as valid law.

There is also then a temporal question – for how long does a structure have to perform the function of a dwelling or shelter to be considered a home? This is highly contested.

According to the SCA in Barnett, a structure only performs the function of a dwelling or shelter if there is an ‘element of regular occupation coupled with some degree of permanence’ (at para 38). In Barnett, the court considered whether a holiday house might be a home in the constitutional sense. The court held that it cannot. The structure must be a primary abode, not merely a destination for an occasional visit. Therefore, a holiday house does not constitute a home.

Unlike a holiday house, a dormitory, however, is occupied with sufficient regularity for most of the year to constitute a home. This was the High Court’s finding in Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant and Others (GP) (unreported case no 67856/14, 22-9-2016) (Wentzel AJ).

Though occupation of the structure must be regular and permanent, it may not need to be long-established.

In Breede Vallei Munisipaliteit v Die Inwoners van ERF 18184 and Others (WCC) (unreported no A369/12, 13-12-2012) (Bozalek J), the High Court was called on to decide the length of occupation required for an occupied structure to be considered a home. The matter arose because of 19 houses that were occupied within the period of 24 – 48-hour period. The applicant municipality argued that the houses had not been occupied for a sufficiently long period to constitute homes. Bozalek J disagreed. He held that ‘where a person’s housing circumstances are dire’ and there is no other shelter available to them, the occupied structure will be considered to be their ‘home’ ‘without the elapse of much time in occupation’ (para 19). As such, 24 – 48 hours’ occupation may be sufficient for a structure to be considered the occupant’s home where the occupant would otherwise be homeless.

This period has been reduced even further in subsequent cases. Fischer and Another v Persons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy Erf 150 (remaining extent), Philippi; Ramahlele and Others v Fischer and Another [2014] 3 All SA 365 (WCC) concerned an archetypal cynical eviction. As obiter, Gamble J ventured a comment about the home (paras 84 – 96). Again, in the context of destitute occupiers, he stated that an intention to occupy on a regular and permanent basis is all that is required. Such intention is satisfactorily evidenced by the structure being completely built. As such, a completely built structure, even if it has not been occupied at all, can constitute a home.

The Fischer judgment, however, was overturned on appeal by the SCA (see Fischer and Another v Ramahlele and Others [2014] 3 All SA 395 (SCA)); not because of Gamble J’s obiter comments, but for his failure to hear oral evidence. Nevertheless, his intention-based assessment for a home was quashed, but only temporarily so.

The latest definitional developments have come in the respective cases of South African Human Rights Commission and Davids. Both cases were decided against the backdrop of ongoing cynical evictions, and given the rise of seemingly unrelenting cynical evictions, the respective judges prescribed an abundantly cautious (but, I submit, a much-needed) approach.

Echoing the obiter comments in Fischer, Meer and Allie JJ both held that if a structure is capable of performing the function of a dwelling or shelter, or even resembles a dwelling or shelter, it is presumed to be someone’s home, regardless of prior occupation or a lack thereof.

This is, by far, the most expansive understanding. Undoubtedly, it is not the end of the perpetual incremental defining, and re-defining, of a ‘home’.

Nevertheless, at this current juncture, the cumulative precedent is this: any completed structure, made of any materials, that appears to be capable of performing the function of a shelter or dwelling, should be regarded as a home. On encountering such a structure, a court order is peremptory before an eviction or demolition can occur.

Jeremy Phillips BA LLB (UCT) LLM (UFH) is a candidate legal practitioner at Cheadle Thompson & Haysom Inc in Johannesburg.

This article was first published in De Rebus in 2022 (Jan/Feb) DR 10.

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