The plight of the homeless under PIE: A critical analysis of Ngomane and Others v City of Johannesburg

March 1st, 2020
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The history of forced removals and unregulated evictions in South Africa (SA) under the auspices of the Prevention of Illegal Squatting Act 52 of 1951 is a distressing one to say the least. With this painful history in mind, one appreciates the noble intentions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), which was designed to regulate the eviction of unlawful occupiers from land in a fair manner. The narrow question that arose in Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another [2019] 3 All SA 69 (SCA), was whether homeless people who unlawfully occupied a ‘traffic island’ as a residential area may avail themselves of the legal protection of PIE. The applicants were homeless people who derived their meagre income from recycling garbage and had ‘built’ their ‘home’ on the traffic island from various materials. However, the walls of their ‘homes’ were only erected in the evenings when it was time to sleep and would be dismantled in the morning. The materials used to erect their makeshift homes were confiscated by the city police as part of a ‘clean-up’ exercise in terms of the by-laws. The applicants alleged that the items taken, included, mattresses, blankets, clothing, money, identity documents and other important documents. No inventory of what was taken was made and their belongings were taken without prior engagement or a court order.

The High Court judgment

The applicants lodged an urgent application in Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another [2017] 3 All SA 276 (GJ) seeking the return of all property and material confiscated from their ‘home’. The court found that there was evidence that the officials had visited the island and took the applicants’ belongings. It found that the officials were well aware that they were gathering, not only rubbish but personal belongings as well. It expressed doubt on whether there was any ‘structure’ that was demolished during the incident since these were already dismantled and stored. However, the court acknowledged that the structural materials – dismantled as they were – were used for shelter. It found that the applicants’ vindicatory claim could not succeed because they could not identify or accurately describe the property, which they wished to vindicate.

The court also dealt with the question of what constitutes ‘property’ for purposes of s 26 of the Constitution and PIE and reasoned that it is ‘inappropriate’ and ‘grossly misleading’ for the applicants to label the traffic island as a ‘piece of land’ or ‘property’. The court reasoned further that a ‘home’ may not be made on a traffic island and that the applicants could not, therefore, be ‘evicted’ in violation of PIE. The court found that a traffic island cannot be ‘occupied’ as a home and that it could also not be equated to ‘vacant land’ or a ‘park’. It reasoned that it was absurd to suggest that people may occupy a public space like a traffic island and seek refuge under s 26 of the Constitution or PIE. The court rejected the view that habitual sleeping at a traffic island – in a shelter that could be dismantled every morning – constitutes ‘occupation’ for purposes of s 26 of the Constitution or PIE. The court concluded that there can be no eviction without occupation. Although the application itself was dismissed, the court nonetheless made an order directing how future clean-up operations should be carried out without violating rights of others.

The SCA judgment

The applicants appealed the decision to the Supreme Court of Appeal (SCA) and raised four issues, of which two are relevant for present purposes. The first issue was whether the traffic island constituted ‘land’ in terms of PIE. The applicants had argued that the traffic island was their ‘place of residence or abode’ and their ‘home’ within the meaning of s 26(3) of the Constitution since they had occupied it for periods between two and five years. Another issue was whether the makeshifts constituted a ‘home’ or ‘shelter’. On this issue, they urged the court to adopt a purposive interpretation of the definitions of a ‘building’ or ‘structure’ in PIE to include their makeshifts. They argued that the removal of the plastic sheets, cardboard boxes and wooden pallets used to construct their makeshifts constituted a demolition of their homes or structures and an unlawful eviction from their homes in terms of PIE. The SCA accepted that the respondents knew that the applicants lived in the traffic island. It also noted that no structure was demolished during the clean-up operation. Although it found that the applicants had sought no relief in terms of the PIE Act in the Gauteng Local Division of the High Court in Johannesburg (GJ), it went ahead to deal with the applicants’ arguments in order ‘to dispel the applicants’ misapprehension relating to the protections provided by the PIE Act in light of their belated claim for constitutional damages’. It dealt with the question of whether the applicants’ makeshifts constituted a ‘building’ or ‘structure’ in terms of PIE. The court referred to the Oxford English Dictionary in which a ‘building’ or ‘structure’ is defined as a ‘construction, edifice, erection or other object constructed from several parts or material put together … that has a roof and walls’. The court pointed out that the officials ‘found and took away a pile of loose wooden pallets, cardboard boxes and plastic sheets at the traffic island’ and that ‘not even the most generous interpretation of the words’ supports the conclusion that the material confiscated by the respondents constituted a ‘building’ or a ‘structure’. The SCA concluded that since there were no buildings or structures, there simply could not be any demolition and that there was also no eviction. Regarding the issue of a destruction of property, the court agreed with the GJ that the applicants could not invoke the mandament van spolie. However, it found that the respondents’ conduct was demeaning, disrespectful and in violation of the applicants’ right to privacy and the right to property. It also found the conduct to be in breach of the applicants’ dignity. The court declared the respondents’ conduct unconstitutional and ordered for the applicants to be compensated for the violation of their constitutional rights.

An analysis of the SCA’s interpretation of the meaning of a ‘structure’ and ‘building’

The SCA’s interpretation of the words ‘structure’ and ‘building’ is questionable. It adopted a too literal interpretation, which does not seem to resonate with our constitutional aspirations or the broader objectives of PIE. PIE specifically provides that words must be given meanings ascribed by the Act ‘unless the context indicates otherwise’. It is also axiomatic that statutes must be interpreted purposively. Now, the SCA defined a ‘building’ or ‘structure’ as a ‘construction, edifice, erection or other object constructed from several parts or material put together . . . that has a roof and walls’. In terms of PIE, a ‘building or structure’ ‘includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter’ (my italics) (s 1 of PIE). Firstly, use of the word ‘includes’ connotes expansiveness as opposed to restrictiveness (Gees v Provincial Minister of Cultural Affairs and Sport, Western Cape and Others 2017 (1) SA 1 (SCA)). Secondly, the use of the word ‘any’ underscores the fact that the ‘hut’, ‘shack’ or ‘tent’ need not be of a particular nature or character. Most importantly, the statutory definition makes no mention of ‘walls’ or a ‘roof’. Therefore, the SCA adopted an inappropriately restrictive approach by adopting a dictionary definition which requires a ‘building’ or ‘structure’ to have walls and a roof. This restrictive interpretation is incongruent with the statutory definition. To illustrate the point, a ‘tent’ – which is included in the definition – may be dismantled and folded if not in use. However, this does not mean it cannot be assembled and erected to assume the posture of a structure with walls and a roof. To require a tent to always be erected, with walls and a roof, would diminish the dichotomy between temporary and permanent structures which is clearly recognised by PIE.

It is also important to note that PIE recognises a ‘similar structure’ or ‘any other form of temporary’ dwelling or shelter. Therefore, any other form of temporary structure, which is used as a dwelling or shelter would fall within the ambit of the statutory definition. The last part of the definition is crucial as it shows that the use of the building or structure is more germane than the nature of the building or structure itself. The indisputable evidence was that the applicants lived on the traffic island for years and even stored their personal belongings there. They clearly regarded the place as their ‘home’. The mere fact that the structure, which they used as their ‘dwelling’ or ‘shelter’ was not always within its four walls with a roof on top did not take away its purpose.

The meaning of the word ‘land’ in terms of PIE

Both the GJ and the SCA found that the traffic island on which the applicants resided did not constitute land for purposes of PIE and s 26 of the Constitution. The GJ effectively found that people who reside in a public space like a traffic island – as did the applicants – cannot avail themselves of the statutory protection of PIE and s 26 of the Constitution. It pointed out that the traffic island was functionally designed to facilitate movement of traffic and that it could not be transformed and occupied as a ‘home’ or equated to a vacant land or public park. It also jettisoned the argument that the applicants’ conduct of habitually sleeping at the traffic island constituted ‘occupation’ for purposes of PIE and s 26 of the Constitution.

PIE simply provides that “‘land” includes a portion of land’ (s 1 of PIE). The definition does not require the land to have a certain character or function. What is required is that the land be unlawfully occupied. Therefore, to suggest that the land must be of a character like that of a ‘vacant land’ or ‘park’ is implausible. It is so that a ‘traffic island was functionally designed to facilitate traffic movement’ but this does not mean it cannot be unlawfully occupied for residential purposes like any other public space, such as a vacant public land or a public park. The original function of the land is irrelevant for purposes of PIE. If it were so, the applicants in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) would not have benefited from the provisions of PIE as they occupied ‘dilapidated commercial premises’ as opposed to a residential property. There is simply no indication that the word ‘land’ or ‘property’ must be interpreted in relation to its original function. A restrictive interpretation like that of the GJ would inappropriately deny unlawful occupiers of certain public spaces the legal protection of PIE and s 26 of the Constitution.

Conclusion

The interpretive approaches of the GJ and SCA in this matter eschewed the mischief PIE was designed to redress. They ignored the context and overall objective of PIE. Such an approach unjustifiably deprives deserving unlawful occupiers of the procedural protections of PIE read with s 26 of the Constitution.

Ndivhuwo Ishmel Moleya LLB (UniVen) is a legal practitioner at Cheadle ­Thompson & Haysom Attorneys in Johannesburg.

This article was first published in De Rebus in 2020 (March) DR 39.

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