CONTRIBUTION TO THE MANDATE OF THE LWANDLE MINISTERIAL ENQUIRY

A cursory note on the law and obligations surrounding the eviction of unlawful occupiers in South

Africa

ISSUED BY THE OFFICE OF COMMISSIONER AMEERMIA

1

Acknowledgments

We would like to acknowledge the Office of the Chairperson of the South African Human Rights

Commission; the Office of the Deputy Chairperson; the Office of the Chief Executive Officer; the

Office of the COO and the entire staff of the Commission for the Support they have expended.

2

Table of ContentsTable of Contents..................................................................................................................................3

A. The mandate of the South African Human Rights Commission.........................................................4

B. Background to the matter.................................................................................................................4

C. Introduction.......................................................................................................................................5

D. The Constitutional and legislative framework...................................................................................5

1. Section 26......................................................................................................................................5

2. Evictions under PIE........................................................................................................................6

E. The International law standards on evictions...................................................................................6

F. The Jurisprudence of the courts........................................................................................................8

1. Grootboom....................................................................................................................................8

2. P E Municipality.............................................................................................................................8

3. Olivia Road.....................................................................................................................................9

5. Joe Slovo........................................................................................................................................9

6. Abahlali........................................................................................................................................10

7. Blue Moonlight............................................................................................................................10

A.The crystallised principles................................................................................................................11

1. Alternative Accommodation........................................................................................................11

2. Consideration of all relevant circumstances................................................................................12

3. The law of joinder........................................................................................................................12

4. Onus of Proof...............................................................................................................................13

5. Meaningful engagement..............................................................................................................13

6. Personal accountability of municipal officials..............................................................................15

B. Conclusion and Recommendations.................................................................................................15

1. General Remarks.........................................................................................................................15

2. Recommendations......................................................................................................................16

Bibliography.........................................................................................................................................19

Court judgments..............................................................................................................................19

Research reports and journals.........................................................................................................20

Legislation........................................................................................................................................20

International Instruments................................................................................................................21

3

PART 1

A. The mandate of the South African Human Rights Commission

The South African Human Rights Commission (Commission) is an institution established in terms of

Section 181 of the Constitution which is specifically mandated to:

i. Promote respect for human rights;

ii. Promote the protection development and attainment of human rights; and

iii. Monitor and assess the observance of human rights in South Africa.

Section 184(2) (c) and (d) of the Constitution empowers the Commission to investigate, monitor and

report on the observance of human rights in the country. Section 182(2) (c) and (d) affords the

Commission authority to carry out research and to educate on human rights related matters. The

Human Rights Commission Act, 54 of 1994 (Human Rights Commission Act) further supplements the

powers of the Commission.

It needs to be emphasized that the SAHRC does not represent any particular party at an individual

level, nor does it represent any committees representing such parties or other stakeholders. It

engages in this process on the basis of its constitutional mandate to protect and promote a culture

of human rights, as set out in the Constitution and the Human Rights Commission Act.

This paper will be divided into two parts. The first part will l highlight the law pertaining to evictions

and will also note the international best practices in evicting unlawful occupiers. Thereafter, the

paper will note the jurisprudential pronouncements of the courts in South Africa. The second part

will delineate the crystallised principles adumbrated by the courts regarding evictions of unlawful

occupiers. The paper will conclude with recommendations to the relevant stakeholders involved

during the eviction process, these are the municipalities, sheriffs and members of the South African

Police Services.

B. Background to the matter

In June 2014, hundreds of people were left homeless at Nomzamo settlement in Strand after the

South African National Road Agency Limited (SANRAL) initiated the demolition and destruction of

their homes from land owned by SANRAL. During an inquiry commissioned by the Human

4

Settlement’s Minister it was heard that SANRAL had obtained a court interdict in January 2014 to

prevent land invasions.

The Commission commends the Ministry of Human Settlements for establishing a Ministerial Enquiry

on 4 June 2014 which seeks among other things to investigate the circumstances under which the

evictions occurred, and make necessary recommendations for policy and legislative review and

relating to improvement in effecting mass evictions.

C. Introduction

The preamble of the Constitution of the Republic of South Africa, 1996 (Constitution), notes that we

have pledged “to improve the quality of lives of all citizens”.1 Furthermore, some of the founding

values underpinning the Constitution are human dignity and the advancement of human rights. 2 It is

now trite that human rights are inalienable, indivisible, intertwined and interlinked. That is, rights in

the Bill of Rights are interrelated and mutually supporting.3 This report seeks to investigate the law

regarding the right to access to adequate housing. Specifically, the focus is on evictions of unlawful

occupiers. The report notes the jurisprudential pronouncements of the courts, and the crystallised

requirements to be followed when unlawful occupiers are being evicted. This report comes at the

backdrop of the “Lwandle evictions”.

D. The Constitutional and legislative framework

1. Section 26

Section 26 of the Constitution is divided into three sub-sections. First, section 26(1) provides that

“everyone” has a right to have access to adequate housing. Secondly, section 26(2) is couched in

positive terms constituting an injunction on state to take reasonable steps to progressively realise

the right to access to adequate housing.4 Thirdly, section 26(3) proscribes arbitrary evictions by

mandating that evictions be authorised by a court order made after having regard to “all the

relevant circumstances”.5

1Preamble of the Constitution of South Africa, 1996.2Section 1(a) of the Constitution of South Africa, 1996.

3Government of the Republic of South Africa and Others v Grootboom and Others

2001 (1) SA 46 CC.4Section 26(2) of the Constitution of South Africa, 1996.5Section 26(3).

5

Section 26(3) of the Constitution has been given effect to by the following legislations: the Land

Reform (Labour Tenants) Act, 3 of 1996, the Interim Protection of Informal Land Rights Act, 31 of

1996, the Extension of Security of Tenure (ESTA) Act 62 of 1997 and the Prevention of Illegal Eviction

from, and Unlawful Occupation (PIE) Act 19 of 1998. Significantly, whereas the first three other

pieces of legislation intend to apply to specific types of land, PIE Act applies to all land throughout

South Africa, and to occupiers who have no rights of occupation.

2. Evictions under PIE

PIE prohibits unlawful eviction, and adumbrates the procedures to be followed when evicting

unlawful occupiers. It also fortifies the ‘court order’ requirement listed in section 26(3) of the

Constitution. Squatting is decriminalised, and the Prevention of Illegal Squatting Act, 52 of 1951

(PISA), is repealed. The Act further criminalises unlawful evictions and also provides for the special

consideration to be given to the rights of the elderly, children, disabled persons and women headed

households.

The ambit of PIE is broad covering unlawful occupiers who did not have consent to occupy the

impugned land. The Act also applies to all land throughout South Africa.

E. The International law standards on evictions

It is imperative to consider international law because it played an important role in the drafting of

the Constitution, and the right to adequate housing is recognised in some of the human rights

instruments, to which South Africa is party to. Further, sections 396 and 2337 of the Constitution

provide that courts must consider international law when interpreting the rights in the Constitution.

In S v Makwanyane8 the Constitutional Court held that international law provided a framework to

evaluate and understand the rights in the Constitution.

At an international level it has been recognised that the practice of forced evictions violates several

human rights, specifically the right to adequate housing.9 Governments have been urged to: protect

6Section 39(1) (b) provides that “when interpreting the Bill of Right, a court, tribunal or forum – must consider international

law”.7 Section 233 provides that “when interpreting any legislation, every court must prefer any reasonable interpretation of the

legislation that is consistent with international law over any alternative interpretation that is inconsistent with

international law”. 8S v Makwanyane and Another 1995 (3) SA 391 (CC).9 Commission on Human Rights Resolution 2004/28: Prohibition of forced evictions, adopted on 16 April 2004 para 1.

6

all people currently threatened with forced eviction by adopting all necessary measures based upon

effective participation, consultation and negotiation with affected people; and to ensure that any

eviction that is otherwise deemed lawful is carried out in a manner that does not violate any of the

human rights of those evicted.10

The United Nations Committee on Economic Social and Cultural Rights (CESCR) is a body tasked with

monitoring the implementation of the International Covenant on Economic, Social and Cultural

Rights, 1996 (ICESCR) by State Parties. Although South Africa has signed but not ratified the ICESCR,

the general comments made by the UN Committee on CESCR are relevant to the interpretation of

the right to access to adequate housing in the South African context. 11 The UN Committee on CESCR

noted a myriad of factors to be taken into cognisance when determining whether a shelter can be

categorised as falling within the ambit of “adequate housing”.12 These factors include: legal security

of tenure; availability of services; materials, facilities and infrastructure; affordability; habitability;

accessibility; location; and cultural adequacy.13 In General Comment 7 adopted on 16 May 199714,

the procedural and substantive factors in relation to forced evictions were set out. Some of the

salient factors include: all feasible alternatives have to be explored during consultation with the

affected people to avoid, or at least minimise, the need to use force; evictions should not be carried

out during bad weather or at night unless the affected people consent; and information on the

proposed evictions, and where applicable, on the alternative purpose for which the land or housing

is to be used, to be made available in reasonable time to all those affected.15

F. The Jurisprudence of the courts

1. Grootboom

Government of the Republic of South Africa v Grootboom16 was a case concerning 900 individuals

who had set up a rudimentary camp on private land following their eviction in mid-winter Cape

10Paras 3 and 5.11Grootboom para 45.12General Comment 4 UN doc. E/1992/23.13Para 8.14UN doc. E/1998/22, annex IV.15Paras 15 and 16.16Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 CC.

7

Town. The germane ruling of the court was that “at the very least” evictions had to be conducted

“humanely”.17

2. P E Municipality

The case of Port Elizabeth Municipality v Various Occupiers (PE Municipality)18was heard on the

backdrop of the legislature crafting the PIE Act. Sachs J penning for the court reviewed the way in

which the apartheid legal order had deliberately sought to make evictions as easy as possible.

According to Sachs J, section 26(3) was an inversion of apartheid law, requiring unlawful occupiers to

be treated with “dignity and respect”,19 not as “obnoxious social nuisances”.20 Thus a ‘new normality’

has permeated the legal landscape of evictions since it is now recognised that “normal ownership

rights of possession, use and occupation” are now offset by “a new and equally relevant right not to

be arbitrarily deprived of a home”. 21 It was held that section 26(3) of the Constitution, “evinces

special constitutional regard for a person’s place of abode” and that “a home is more than just a

shelter from the elements. It is a zone of personal intimacy and family security”.22 In unison with

Grootboom, Sachs J held that it was not enough to show that a municipality has in place a

programme designed to house the largest number of people over the shortest period of time in the

most cost-effective way.23

Thus, the PE Municipality infused the spirit of “Ubuntu” into the PIE Act, coupled with the

constitutional requirement of reasonableness as propounded by Grootboom.

3. Olivia Road

The case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of

Johannesburg24came as a result of Johannesburg’s inner city regeneration strategy. In this case the

Constitutional Court fledged out the concept of “meaningful engagement”. Yacoob J held that most

17Grootboompara 88.18Port Elizabeth Municipality v Various Occupiers 2005 (1) SA (CC).19PE Municipality para 12.20PE Municipality para 41.21PE Municipality para 23.22PE Municipality para 17.23PE Municipality para 29.

24Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 (3) 208 (CC).

8

significant steps in the implementation of housing policy had to be taken after meaningful

engagement with people affected by it.25 It was noted that where the state intends to remove or

displace people from their existing housing, engagement is normally a prerequisite to the institution

of eviction proceedings.26 The engagement must be individual and collective27, must be undertaken

without secrecy, and should focus on meeting the reasonable needs of an affected community and

providing alternative accommodation where it is needed.28

5. Joe Slovo

The Joe Slovo29case was about the eviction of a large settled community from their homes in the Joe

Slovo informal settlements in Cape Town. They were evicted so that the N2 Gateway Housing Project

could go ahead. This Project was a pilot project to test the implementation of the BNG programme.

A number of important points came out of the case. The Constitutional Court noted that it would be

ideal for the state to engage individually and carefully with each of the families involved.30

Government must make an effort to engage with communities rather than impose decisions taken at

a political level.31 When a housing programme is put into place there must be meaningful

engagement between the government and those involved.32 The goal in engagement is to find a

mutually acceptable solution to the difficult issues that confront the government and residents in

providing adequate housing.33 The government must engage meaningfully in terms of section 26(2)

of the Constitution. It must also act fairly in terms of section 33 of the Constitution as stated in

PAJA.34

6. Abahlali

25Oliva Road para 30.26Olivia Road para 30.27Olivia Road para 13.28Olivia Road paras 14, 18 and 21.29Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 545 (CC) (Joe Slovo).30Joe Slovo para 117.31Joe Slovo para 166.32Joe Slovo para 238.33Joe Slovo para 244.34Joe Slovo para 297.

9

The Abahlali35 case was a challenge to the KwaZulu-Natal Elimination and Prevention of Re-

emergency of Slums Act, 6 of 2007 (Slums Act). This Act aims to eliminate slums in KwaZulu-Natal. It

allows for evictions without meaningful engagement. Section 16 of the Act says a municipality must

start proceedings for the eviction of unlawful occupiers if the owner or person in charge of the land

fails to do so within the time period stated by the MEC. This section of the Act was challenged in the

Abahlali case, with the Constitutional Court holding that section 16 of the Act was unconstitutional

because it gave too much power to the MEC and seriously undermined the protections in section

26(2) of the Constitution.

7. Blue Moonlight

In City of Johannesburg v Blue Moonlight Properties36 the Court had to deal with the duties of the

municipality where the evictor was a private landlord and eviction was likely to lead to

homelessness. The germane facts of this matter were that 86 people faced the eviction from a

disused set of factory buildings and warehouses in Saratoga Avenue, Berea, Johannesburg. The

occupiers alleged and proved that an eviction would leave them homeless as such joined the City in

the proceedings. The City denied that it had any obligation to provide accommodation to occupiers

facing eviction by a private landowner.37 The City stated that the obligation lay with provincial

government, to which it had applied for funding in terms of the Emergency Housing Policy and had

been refused.

In the Constitutional Court, Van der Westhuizen J, found that the PIE Act limited the rights of

owners to undisturbed use and enjoyment of their property.38 It was held that, if homelessness

would otherwise result, section 26 of the Constitution and the PIE Act required that the owner

patiently wait to vindicate her property until the State has given a reasonable opportunity to

discharge its obligations, grounded in Grootboom, to provide alternative accommodation.39

Further, it was held that the municipality could not deflect its obligations onto national and

provincial government. The municipality had an obligation to plan and procure resources to meet

emergency housing needs within its area of jurisdiction. It was held that the municipalities were

35Abahlali baseMjondolo Movement of South Africa and Another v Premier of the Province of KwaZulu Natal and Others

2012(2) BCLR 99 (CC).36City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104

(CC).37Blue Moonlightparas 48-49.38Blue Moonlight paras 37 and 40.39Blue Moonlight para 40.

10

better posited to react, engage and plan to fulfil the needs of local communities.40 Also, a

municipality could not pick and choose which housing crises it responds to. Rather, it had to

prioritise its response to emergency housing situations in a reasonable manner. The court noted that

to differentiate between emergency housing situations caused by eviction by reference to the

identity and purposes of the evictor was unreasonable, since it matters little to a homeless person

what the cause of her homelessness is. Her need is the same.41

PART 2

A.The crystallised principles

1. Alternative Accommodation

It is now trite principle that it is only just and equitable to evict unlawful occupiers if alternative

accommodation is provided where an eviction would otherwise result in homelessness. The duty to

provide alternative accommodation applies not only when an organ of state evicts people from their

land, but also when a private landowner applies for the eviction of unlawful occupier/occupiers.

Although the nature and standard of the alternative accommodation to be provided has not been

clearly resolved, it is clear that certain so-called alternative accommodation will not pass

constitutional muster. This was made clear in the recent ruling in the South Gauteng High Court

where the court held that the gender segregation of married couples and the day time lock-out for

residents imposed by the City of Johannesburg’s outsourced arrangements to provide alternative

accommodation impinged on various constitutional rights.42 The rights which were infringed by such

an arrangement were found to include the right to human dignity, privacy and security of person.43

2. Consideration of all relevant circumstances

Section 26(3) provides that no one may be evicted from their home or have their home demolished

without a court order authorising such eviction after having due regard to “all the relevant

circumstances”. 40Blue Moonlight paras 47 and 50.41Blue Moonlight para 95.42Dladla v City of Johannesburg Metropolitan Municipality Case number: 39502/12 (Unreported).43Ibid para 38.

11

This was affirmed in Pheko and Others v Ekurhuleni Metropolitan Municipality44 where the court

stated that section 26(3) does not permit legislation authorising eviction without a court order. 45 The

PIE Act amplifies this by providing that a court may not grant an eviction order unless the eviction

sought would be “just and equitable” in the circumstances. The court thus has to have regard to a

number of factors including but not limited to: whether the occupiers include vulnerable categories

of persons (the elderly, children and female-headed households), the duration of occupation and the

availability of alternative accommodation or the state provision of alternative accommodation in

instances where occupiers are unable to obtain alternatives on their own.

3. The law of joinder

Another principle that has crystallised is the law of joinder, viz. municipalities must be joined where

eviction is likely to result in homelessness, is now part of our law.46 Wallis JA amplified on this in

Changing Tides:

Whenever the circumstances alleged by an applicant for an eviction order raise the possibility

that the grant of that order may trigger constitutional obligations on the part of a local

authority to provide emergency accommodation, the local authority will be a necessary party

to the litigation and must be joined.47

This is because section 26 of the Constitution’s positive obligations in respect of the provision of

alternative accommodation to evictees who would otherwise be rendered homeless lie primarily

with the state rather than private parties.

4. Onus of Proof

The onus of proof in eviction proceedings has been altered with the property owner now required in

terms of the PIE Act to satisfy the court that the eviction would be just and equitable. It has been

held that a property owner is required to put such information as she is able to before a court to

demonstrate that an eviction would be just and equitable in the circumstances.48

44Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC).45Pheko para 35.46Sailing Queen Investments v Occupants La Collen Court 2008 (6) BCLR 666 (W).47In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA) (Changing Tides) para 38.48Changing Tides para 30.

12

The distinction made in section 4(6)49 and 4(7)50 of the PIE Act has been obliterated. These sections

differentiated between unlawful occupiers based on the duration of occupation. The Constitutional

Court in Skurweplass and Mooiplaats notwithstanding that the group of occupiers had resided on

the properties for short periods held that the state was obliged to provide alternative

accommodation to the occupiers as the eviction would likely render them homeless.51

5. Meaningful engagement

A new development in the field of evictions is the requirement of “meaningful engagement”. 52 The

Court noted that the best way to ensure reconciliation between parties in a dispute would be to

“encourage and require the parties to engage with each other in a proactive and honest endeavour

to find mutually acceptable solutions”.53 Content to the concept of meaningful engagement was

developed in the Olivia Road case where the Court clarified that meaningful engagement is a salient

component of a reasonable state response to the housing programme.54 Meaningful engagement

means that the occupiers, owner and the relevant municipality have to meaningfully engage on all

aspects related to the eviction and the provision of temporary shelter to those who require it. 55 It

was said that meaningful engagement is ‘a two-way process in which the City and those about to

become homeless would talk to each other meaningfully in order to achieve certain objectives’.56

These objectives include the need to determine the following: what the consequences of the 49 Section 4(6) of the PIE Act reads:

“If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are

initiated, a court may grant an order for eviction if it is of the opinion that it is just an equitable to do so, after considering

all the relevant circumstances, including the rights and needs of the elderly children, disabled persons and households

headed by women.”50Section 4(7) of the PIE Act states:

“If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are

initiated, a court may grant an order for eviction if it is of the opinion that it is just an equitable to do so, after considering

all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage,

whether land has been made available or can reasonably be made available by a municipality or other organ of state or

another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children,

disabled persons and households headed by women.”51Occupiers of Skurweplaas v PPC Aggregate Quarries 2012 (4) BCLR 382 (CC) para 14; and Occupiers of Portion R25 of the

Farm Mooiplaats v Golden Thread and Others 2012 (2) SA 337 (CC) para 16.52PE Municipality paras 39-47.53PE Municipality para 39.54Olivia Road para 17.55Olivia Road para 14.56Olivia Road para 14.

13

eviction might be; whether the city could help to improve those consequences; whether it was

possible to make the buildings safer and less of a health risk for an interim period; whether the city

had any obligations to the occupiers; and when and how the city could or would carry out its

obligations.57

In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes (Joe Slovo)58, the State was

castigated for taking a ‘top-down’ approach to engagement, whereby the state officials would

unilaterally make decisions without consultation or inclusion of the community.59 Meaningful

engagement is an expression of ‘bottom-up’ participatory democracy promoting transparency and

accountability in the realisation of socio-economic rights leading to the resolution of disputes. 60 In

the Joe Slovo case it was held that ‘the requirement of engagement flows from the need to treat

residents with respect and care of their dignity’.61

Meaningful engagement is not only required by section 26(2) of the Constitution but it also required

in all evictions under the PIE Act.62 If engagement takes place after there has been a decision to

institute eviction proceedings, it cannot be genuine or meaningful.63 Proper engagement includes

listening to the wishes of the people who are evicted. It also includes thinking about whether the

areas where they live may be upgraded in situ and whether alternative accommodation will be

provided. The engagement would also include discussions on the way the eviction will take place and

the timeframes for it.64

6. Personal accountability of municipal officials

Unfortunately, municipal officers have appeared indifferent to court orders mandating them to

provide alternative accommodation. However, the courts have dealt with this attitude by providing

that municipal office bearers may be held personally accountable for the State’s failure to perform.

57 L Chenwi and K Tissington Engaging meaningfully with government on socio-economic rights: A focus on the right to

housing Socio-Economic Rights Institute in South Africa (SERI) & the Community Law Centre (CLC) Research Report (2010)

http://www.communitylawcentre.org.za/projects/socioeconomicrights/Research%20and%20Publications/SER

%20Publications (accessed on 21 August 2014).58Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 545 (CC) (Joe Slovo).59Joe Slovo para 378.60L Chenwi and K TissingtonEngaging Meaningfully with Government 17-18.61Joe Slovo para 238.62Abahlali para 69.63Abahlali para s 69 and 120.64Abahlali para 114.

14

In the Mchunu65 it was found that the Mayor of eThekwini, the City Manager and the Director of

Housing of eThekwini are constitutionally and statutorily obliged to take all necessary steps” to

ensure that court orders are complied with, failing which, they may be held in contempt and fined or

imprisoned. These principles were reiterated in Hlophe66 where Satchwell J ordered the Executive

Mayor, City Manager and Director of Housing for the City of Johannesburg to personally explain why

the City had not acted to provide shelter. The Court lambasted the City’s lackadaisical attitude,

noting that the City “cannot continue to sit back and throw up its hands in horror every time it had

to house people about to be evicted”. 67

B. Conclusion and Recommendations

1. General Remarks

This report has set out the jurisprudential pronouncements of the South African courts in relation to

the constitutional right of access to adequate housing. It has been identified that the courts through

giving content to the substantive provisions in the Constitution, and through their interpretation of

the progressive legislative framework have infused new normative legal requirements to eviction

matters. These legal requirements include inter alia the need to meaningfully engage and the state’s

obligation to provide alternative accommodation where the unlawful occupiers would be rendered

homeless as a result of eviction. Further, as a result of the innovative interpretation the courts have

created a ‘new cluster of relationships between the parties involved in eviction proceedings.’68

It cannot be gainsaid that an eviction is a traumatic experience. Muller notes the following about an

eviction69:

An eviction will cause many people to lose the support structure that they have established for

themselves as well as for others who have come to rely thereon. An eviction will furthermore,

perhaps most dramatically, destroy the livelihoods of individuals and their families because relocation

65Mchunu and Others v Executive Mayor of eThekwini and Others 2013 (1) SA 555

(KZD).66Hlophe and Others v Johannesburg Metropolitan Municipality and Others 2013 (4)

SA 121 (GSJ).67Hlophe para 26.68 M Clark Evictions and alternative accommodation in South Africa: An analysis of the jurisprudence and implications for

local government Socio-Economic Rights Institute Report (2013)

http://www.seri-sa.org/images/Jurisprudence_summary_web.pdf (accessed on 21 August 2014).69 G Muller ‘Evicting unlawful occupiers for health and safety reasons in post-apartheid South Africa’ (forthcoming in the

South African Law Journal).

15

to another area brings with it various uncertainties. These uncertainties vary from their ability to earn

an income as informal traders or take up other unskilled employment that depends on living in close

proximity to those employment opportunities; the general safety of the new area or the prevalence of

gang related violence; the closeness of health care facilities, recreational facilities, religious

institutions and schools; infrastructure; and service delivery. These circumstances should be taken

into consideration by any court in determining the justice and equity of an eviction because a failure

to do so may perpetuate or even exacerbate the vulnerable position of the occupiers.

During evictions a lot of things often go wrong. It has been noted that when evictions are carried out

in a violent manner people’s valuables such as ID books, birth certificates, school uniforms and

medicine and medical prescriptions get damaged.70

2. Recommendations

It has been noted above that the mandate of the Commission is to carry out research and educate

on human rights and related matters.71 Further, the Commission under strategic objective 4 seeks to

advance the realisation of human rights. In fulfilling the role of advancing the realisation of human

rights, the Commission deems it fit to make some recommendations to the various stakeholders

concerning the matter of evictions. It is noted that it is now trite law that an eviction without a court

order is impermissible. An individual or a community can only be evicted based on a court order.

Such a court order must be made after all the ‘relevant circumstances’ have been considered. It is

now a prerequisite that there must be meaningful engagement between the parties before a court

order authorising eviction is granted. The court will be hesitant to order the eviction of vulnerable

and poor occupiers if such an eviction would render them homeless.

Therefore, in the light of the above it should be noted that human rights in the Bill of Rights are

indivisible, intertwined, interrelated and interlinked. As such, wherever there is an issue on the right

to access to adequate housing, there always is a possibility that a number of other rights are directly

or indirectly adversely affected. This is because the right to have access to housing is a critical right

without which many other fundamental rights cannot be realised. The right to housing is an

indispensable means of realising other rights.

Therefore, whenever a municipality or private owner is faced with the situation of unlawful

occupiers in his or her property, the remedy is not to unlawfully evict them. Rather, the solution lies

70Holding your Ground: Revisiting Evictions in South Africa, http://abahlali.org/files/Holding_Your_Ground.pdf (Accessed

on 29 August 2014).71Section 182(2) (c) and (d) of the Constitution of South Africa, 1996.

16

in meaningful engagement and proper consultation to find a lasting solution which does not

adversely violate the rights to human dignity, security of the person, the rights of children and any

other relevant rights. Such a lasting solution invariably includes the state seeking alternative

accommodation for the unlawful occupiers who would otherwise be rendered homeless as a result

of such an eviction.

It cannot be gainsaid that Sheriffs play a vital role during the eviction process. After the court orders

eviction the sheriff is tasked with implementing the decision of the court. It is submitted that in that

process the sheriffs should treat people with dignity and respect. They should conduct their actions

in accordance with the Code of Conduct72 which were framed in terms of section 16(k) of the Sheriff

Act.73 According to the Code of Conduct the Sheriffs must act in an impartial, unbiased and fair

manner.74 Further, the Sheriffs should at all times not only treat the affected people with dignity and

respect, but also ensure that they do not unreasonably cause damage to the property concerned.

This should also apply to private security companies when operating as agents on behalf of sheriffs,

municipalities and/or private persons. Moreover, the South African Board of Sheriffs should be more

accessible to the public. This will help the public in knowing how and where to lodge complaints of

misconduct against the Sheriffs.

In relation to the South African Police Services (SAPS) they must act in accordance with the strictures

of the Constitution. Further, they must treat those to be evicted in a dignified and respectful manner

ensuring that they do not unreasonably cause damage to property.

Thus, the Commission invites a synergy between all the relevant stakeholders to ensure that the

letter and dictates of the law are followed in eviction matters. Where a court order authorising

eviction has been granted, such an eviction must be done humanely and in a way that does not

impinge on the human dignity of those being evicted. Sachs J, noted that ‘the integrity of the rights-

based vision of the Constitution is punctured when governmental action augments rather than

reduces denial of the claims of the desperately poor to the basic elements of a decent existence’.75

Therefore, the ‘spirit of ubuntu’76 must permeate eviction of unlawful occupiers. This is because we

are not islands to ourselves but are part of the rainbow nation. The unlawful occupiers must not be

72Code of Conduct of South African Board for Sheriffs, 1990.73Sheriff Act 90 of 1986 (as Amended by the Sheriffs Amendment Act 14 of 2012).74Section 10 of the Code of Conduct, 1986.75PE Municipality para 18.76S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 308.

17

construed as objects. This is because as Justice Sachs so aptly stated in the Port Elizabeth

Municipality:77

“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.”

.

Bibliography

Court judgments Abahlali baseMjondolo Movement of South Africa and Another v Premier of the Province of

KwaZulu Natal and Others 2012(2) BCLR 99 (CC)

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and

Another 2012 (2) SA 104 (CC)

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA)

Dladla v City of Johannesburg Metropolitan Municipality Case number: 39502/12

(Unreported)

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 CC

Hlophe and Others v Johannesburg Metropolitan Municipality and Others 2013 (4) SA 121

(GSJ)

Mchunu and Others v Executive Mayor of eThekwini and Others 2013 (1) SA 555(KZD)

77PE Municipality para 18.

18

Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of

Johannesburg and Others 2008 (3) 208 (CC)

Occupiers of Portion R25 of the Farm Mooiplaats v Golden Thread 2012 (2) SA 337 (CC)

Occupiers of Skurweplaas v PPC Aggregate Quarries 2012 (4) BCLR 382 (CC)

Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC)

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA (CC)

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010

(Sailing Queen Investments v Occupants La Collen Court 2008 (6) BCLR 666 (W).3) SA 545

(CC)

S v Makwanyane and Another 1995 (3) SA 391 (CC)

Research reports and journals

G Muller ‘Evicting unlawful occupiers for health and safety reasons in post-apartheid South

Africa’ (forthcoming in the South African Law Journal)

L Chenwi and K TissingtonEngaging meaningfully with government on socio-economic rights:

A focus on the right to housing Socio-Economic Rights Institute in South Africa (SERI) & the

Community Law Centre (CLC) Research

Report(2010)http://www.communitylawcentre.org.za/projects/socio-economic-rights/

Research%20and%20Publications/SER%20Publications (accessed on 21 August 2014)

M Clark Evictions and alternative accommodation in South Africa: An analysis of the

jurisprudence and implications for local government Socio-Economic Rights Institute Report

(2013) http://www.seri-sa.org/images/Jurisprudence summary web.pdf (accessed on 21

August 2014).

Holding your Ground: Revisiting Evictions in South Africa,

http://abahlali.org/files/Holding_Your_Ground.pdf (Accessed on 29 August 2014).

Legislation

19

Constitution of the Republic of South Africa, 1996

Code of Conduct of South African Board for Sheriffs, 1990.

Extension of Security of Tenure Act 62 of 1997

Human Rights Commission Act, 54 of 1994

Interim Protection of Informal Land Rights Act 31 of 1996

Land Reform Act 3 of 1996

Prevention of Illegal Eviction from, and Unlawful Occupation Act 19 of 1998

Sheriffs Act 90 0f 1986 (as Amended bySheriffs Amendment Act 14 of 2012)

International Instruments

Commission on Human Rights Resolution 2004/28: Prohibition of forced evictions, adopted

on 16 April 2004

UN doc. E/1992/23

UN doc. E/1998/22, annex IV

20