Illegal land evasions and evictions during the national state of disaster.

By S Mnisi 010 592 2321
 
One of the challenges facing South Africa is poverty and the country’s associated housing problems, thus leading thousands of people to occupy land or properties illegally. 1
 
According to the Socio-Economic Rights Institute of South Africa since the country has entered lockdown more than 800 evictions have taken place.2
 
Eviction of any person during lockdown may render them destitute and without a home, thereby threatening the health and wellbeing of those individuals as well as their constitutional rights to access to justice and adequate housing.3
 
In light of this, Minister Lindiwe Sisulu stated that while evictions are not permitted during the national lockdown, land invasions will not be tolerated. Further, while land invasions are illegal no person may be evicted during lockdown. 4 The Minister also made mention that all provinces are prohibited from evicting people in terms of the National Coronavirus Command Council guidelines.
 
It is important to take into consideration whether dwellings are occupied or not when determining the legality of destroying structures. 5 There is a difference between stopping land occupations and evicting people from their homes. If a person is in a process of invading land, meaning that individual is putting up structures and materials, that is invasion, and therefore, that can be stopped without a court order. That is known as counter-spoliation, spoliation is the concept of taking the law into your own hands. 6 This simply means that Municipalities argue that the land occupiers are spoliating, they are taking land unlawfully and as a result they can be stopped with a counter-spoliation action. 7
 
A thin line exist between people invading land and already living in it. The test would be, do they already sleep there? Are their possessions there? Do they cook there? Once that has been established although it is for a couple of days, a person may not be evicted. However, if it becomes apparent that an individual is still in the process of erecting a structure, that person may be evicted because it is not recognised as eviction but rather stopping land invasion. 8 People who are evicted unlawfully during the period of the national lockdown have a good case to take to court on an urgent basis in order to go back where they were before the eviction took place. Shacks which are occupied cannot be demolished without an eviction order, it is particularly important in lockdown, when evictions are expressly forbidden. 9
 
Applicable legislation: It is important to note that unlawful occupiers have rights in terms of the Prevention of Illegal Evictions and Unlawful Occupation of Land No.19 of 1998 (PIE) and the Constitution of the Republic of South Africa, 1996. According to PIE, an eviction can only be authorised by a court after taking into account the rights of all people involved. 10 PIE defines a building or structure as “any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter”. An unlawful occupier is “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”. There is no definition of when a shack is occupied and when it is not. 11
 
In terms of section 6(3) of PIE before a court grants an eviction order it is required to consider the following: 12
 
  • Whether the occupiers include vulnerable people (such as the elderly, people living with disabilities, children and woman-headed households);
  • The duration of occupation;
  • Whether the occupiers will be homeless as a result of the eviction, in which case the state must provide alternative accommodation if the occupiers cannot afford to do so.
Section 8(1) of PIE provides that “no person may evict an unlawful occupier except on the authority of an order of a competent court.” 13
 
The National Housing Code 2009 contains the Emergency Housing Programme. Evictions and demolitions are covered under the Emergency Housing Programme. In terms of this programme Municipalities are responsible for providing temporary alternative accommodation to individuals who would be homeless as a result of an eviction. 14 There is an obligation for Municipalities under this programme to budget for emergency housing situations and apply to the provincial government for funding. 15
 
Section 10 of the Constitution of the Republic of South Africa, 1996 states that everyone has inherent dignity and the right to have their dignity respected and protected. 16 Section 25(1) of the Constitution provides that no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. 17 According to section 26(3) of the Constitution no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. 18 The Constitution further states in section 34 that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. 19
 
Regulations for level 2, item 53 of the Disaster Management Act: Regulations provides that- (1) A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.” 20
 
(2) A competent court may suspend or stay any order for eviction or demolition contemplated in sub-regulation (1) until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order having regard, in addition to any other relevant consideration, to- 21
 
  • the need, in the public interest for all persons to have access to a place of residence and basic services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons;
  • any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these regulations;
  • the impact of the disaster on the parties;
  • the prejudice to any party of a delay in executing the order and whether such prejudice outweighs the prejudice of the person who will be subject to the order;
  • whether any affected person has been prejudiced in his or her ability to access legal services as a result of the disaster;
  • whether affected persons will have immediate access to an alternative place of residence and basic services;
  • whether adequate measures are in place to protect the health of any person in the process of a relocation;
  • whether any occupier is causing harm to others or there is a threat to life; and
  • whether the party applying for such an order has taken reasonable steps in good faith, to make alternative arrangements with all affected persons, including, but not limited to, payment arrangements that would preclude the need for any relocation during the national state of disaster.
 
In the recent case of South African Human Rights Commission and Others v City of Cape Town and Others (8631/2020) [2020] ZAWCHC 84 (25 August 2020) 2: the SAHRC has asked the court to interdict the City of Cape Town from demolishing structures without court oversight during the National State of Disaster. The court application comes after the forced removal of a Khayelitsha man while naked.
 
Factual background: A video of naked Bulelani Qolani a man from Khayelitsha went viral on social media as he was seen being dragged from his shack by officials of the City of Cape Town, who thereafter demolished the shack. Those dragging him were members of the Anti-Land Invasion Unit (“ALIU”), of the City of Cape Town, a specialised unit tasked inter alia with determining, without a court order which structures should be demolished, primarily in informal settlements and on land that becomes occupied. The application seeks inter alia to inject judicial oversight into evictions and demolitions during the national state of disaster in informal settlements in particular where the most vulnerable reside.
 
During Alert Level 4 on 9 to 11 April 2020 the ALIU and private contractors instructed by the City demolished structures in the Empolweni Informal Settlement in Makhaza Khayelitsha. The land on which these informal dwellings were erected, Erf 18332 Khayelitsha, is owned by the City. Urgent relief was sought and granted by this Court to a number of occupiers whose structures had been demolished. The application for such relief, which was opposed by the City. On 17 April 2020 this Court granted an interim order inter alia ordering the City to return building materials confiscated from the Empolweni property and authorising the occupiers to re-erect and occupy structures on the property for as long as the lockdown continued.
 
On 19 June 2020, during Alert Level 3 City officials demolished a structure located at Erf 5606, Hout Bay and evicted residents without obtaining a court order and in contravention of the COVID-19 DMA Regulations. On 15 July 2020 this Court declared the City’s conduct to be unlawful and unconstitutional stating that in the absence of an eviction order expressly stating that it is just and equitable to do so, demolitions of homes cannot be carried out lawfully during Alert Levels 3 and 4. The Court harshly condemned the demolitions categorising them as inhumane, heartless and done with scant regard to safety, security and health particularly in the light of’ the COVID- 19 pandemic.
 
On 1 July 2020 City officials and the ALIU demolished further structures at the Ethembeni Informal Settlement in Khayelitsha. One of the structures demolished was occupied by Mr Bulelani Qolani. Commission directed a letter to the City stating that it contravened section 8(1) of PIE. On 15 May 2020 City law enforcement officials and the ALIU in the informal settlement on Erf 5144 Kommetjie township, Ocean View demolished structures and confiscated material. On 13 July 2020 the City demolished structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, commonly known as Zwelethu.
 
Interdictory Relief sought at Prayer 2.1: Relief to interdict evictions from and demolitions of occupied or unoccupied structures without a court order during the national state of disaster. The Applicants relied on these rights, the provisions of section 8(I) of PIE, section 26(3) of the Constitution, section 34 of the Constitution and the provisions of Regulation 36 of the DMA Regulations. The Court held that the City has not provided a substantial response to the charge of the Applicants and Intervening Applicants that ALIU determines which dwellings are unoccupied and singled out for demolition in an arbitrary, capricious and unfettered manner. The City has failed to point to any policy, rule or legislation that sheds light or how it determines what is occupied and unoccupied. The Court stated that there is merit in the submission that the manner in which ALIU determines what should be demolished, should not be countenanced, especially during the national state of disaster.
 
The court held and found that occupiers are deprived of possession of their structures by a City official who sits in judgement of his or her own ease. As was stated in S v Mamabolo 2001 (5) BCLR 449 (CC) at para 55, a procedure which rolls into one the complainant, prosecutor, witness and judge or appears to do so is irreconcilable with standards of fairness. The Court further held that the balance of convenience is clearly in favour of granting the interdict and preventing thousands of vulnerable persons being rendered homeless during the catastrophic era of the COVID-19 pandemic. The court found and held that the Applicants and Intervening Applicants have established the requirements for interim relief in relation to prayer 2.1 of the Notice of Motion, as well as that a court granting an order pertaining to evictions and/or demolitions would in any event be required to consider the aspect of emergency housing.
 
Interdictory relief sought at prayer 2.2 of the Notice of Motion: The relief sought is an order to ensure that when evictions and demolitions are carried out in terms of a court order, the City and its agents conduct themselves in a manner that is lawful and respects and upholds the dignity of the evicted persons, and that they are expressly prohibited from using force and/or from destroying/confiscating the material which is the property of the evictee. The court held that the treatment of Mr Qolani was inconsistent with human dignity, therefore a clear right to the interdict sought has been established. Furthermore, the court held and found that the evidence pertaining to the Hangberg, Empolweni, Mfuleni and Ocean View evictions has established prima facie that the constitutional rights to dignity, security and freedom of the person and life were infringed. The pattern of violent behaviour and the absence of any evidence that it will not be repeated is a reasonable apprehension of irreparable harm.
 
The relief sought at prayer 2.3: Conduct of SAPS Relief to compel SAPS to ensure that evictions and/or demolitions are done lawfully and in accordance with the SAPS’ constitutional duty to protect the dignity of persons evicted. The court stated that reasonable apprehension of harm in the light of the evidence of excessive force and failure to respect the dignity of residents, and the balance of convenience favours the granting of the relief. The court also held that vulnerable people who risk being rendered homeless will suffer intensely. The Applicants and Intervening Applicants are accordingly entitled to the relief.
 
Prayer 2.5: Interdicting the demolitions tender : Applicants seek an interim interdict preventing the City from considering or adjudicating any bids or awarding Tender No 308S/2019/20 for the Demolition of Illegal Formal and Informal Structures in the City of Cape Town. The Court held that the absence of an express requirement in the tender document that PIE must be complied with threatens rights to housing, dignity, security and health and these rights are also threatened by the payments and penalties structure which the Applicants take issue with. If the tender is awarded and executed affected occupiers will in all likelihood continue to suffer the irreparable harm of the violation of their constitutional rights to icier alia housing and dignity occasioned by arbitrary conduct without judicial oversight. The City will suffer minimal harm if the interdict is granted, therefore the Applicants and Intervening Applicants are accordingly entitled to the interdict they seek.
 
The return of the building material and personal possessions as sought by the Intervening Applicant at paragraph 5 of its Notice of Motion:
The Court held that the building materials of the Second Intervening Applicants should be delivered to the site it was removed from by the City. Further, that compensation for loss of personal possessions in the sum of R2000 per person, as sought, would be fair in all the circumstances.
 
Order :
First Respondent, its Anti-Land Invasion Unit are interdicted and restrained from evicting persons from, and demolishing structures. To the extent that the First Respondent and its authorised agents evict and/or demolish structures in terms of a court order, that they do so in a manner that is lawful and respects and upholds the dignity of the evicted persons, and prohibited from using excessive force and/or from destroying and/or confiscating the materials which is the property of the evictees. The First Respondent is interdicted and restrained from considering, adjudicating and awarding any bids or tenders received response to Tender 3085/2019/20 Demolition of illegal and informal structures in the City of Cape Town. The First Respondent is directed to return within a week of the date of this order all building materials and personal possessions seized by its Anti-Land Invasion Unit from the Second Applicant between the period 1 May 2020 to date.
 
In South Africa every year a number of families are evicted from their homes by government officials, municipalities and private individuals. It goes without saying that evictions are a common occurrence in the country. However, it must be noted that the law protects everyone against illegal evictions. For an eviction application to succeed, the owners must prove to the Court that such an order would be fair, especially to vulnerable people such as the elderly, disabled people, women and children, so that they will not be left homeless. To prevent unlawful evictions during the global Covid-19 pandemic, government, in an unprecedented move, has issued regulations to stop unlawful evictions.

Footnotes: 1.CBNAfrica “S.A – Fine line in dealing with land disputes and illegal occupation” 2017.2.Makhubela L “OPINION | The plight of unlawful evictions in South Africa” 2020.3.Komana K “The legality of evictions during the lockdown” 2020.4. Komana K “The legality of evictions during the lockdown” 2020.5. Grobler R “South Africa: Is It Legal to Evict Anyone During Lockdown? No, Say Legal Experts” 2020.6. Grobler R “South Africa: Is It Legal to Evict Anyone During Lockdown? No, Say Legal Experts” 2020.7. Grobler R “South Africa: Is It Legal to Evict Anyone During Lockdown? No, Say Legal Experts” 2020.8. Grobler R “South Africa: Is It Legal to Evict Anyone During Lockdown? No, Say Legal Experts” 2020.9.Stent James “South Africa: Evictions – When Is a Shack Occupied and When Is It Not?” 2020.10. Marongo M “Know your rights: when can you be evicted and how?” 2018.11. Prevention of Illegal Evictions and Unlawful Occupation of Land Act No.19 of 1998.12. Section 6(1) of the Prevention of Illegal and Unlawful Occupation of Land Act No.19 of 1998.13. Section 8(1) of the Prevention of Illegal and Unlawful Occupation of Land Act No.19 of 1998.14. Incremental Interventions: Emergency Housing Programme Part 3 (of The National Housing Code) 2009.15. Incremental Interventions: Emergency Housing Programme Part 3 (of The National Housing Code) 2009.16. Section 10 of the Constitution of the Republic of South Africa, 1996.17. Section 25 of the Constitution of the Republic of South Africa, 1996.18. Section 26(3) of the Constitution of the Republic of South Africa, 1996.19. Section 34 of the Constitution of the Republic of South Africa, 1996.20. Item 53(1) of the Disaster Management Act: Regulations (Gazette 43620 of 17 August 2020).21. Item 53(2) of the Disaster Management Act: Regulations (Gazette 43620 of 17 August 2020).22. South African Human Rights Commission and Others v City of Cape Town and Others (8631/2020) [2020] ZAWCHC 84 (25 August 2020).

 

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