12 November 2016
By Advocate Shafie Ameermia, SAHRC Commissioner responsible for Access to Justice and Housing.
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. The rights which were infringed by such an arrangement were found to include the right to human dignity, privacy and security of person.
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”.
This was affirmed in Pheko and Others v Ekurhuleni Metropolitan Municipality where the court stated that section 26(3) does not permit legislation authorising eviction without a court order. 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. 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.
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.
The distinction made in section 4(6) and 4(7) 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.
5. Meaningful engagement
A new development in the field of evictions is the requirement of “meaningful engagement”. 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”. 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. 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. 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’. These objectives include the need to determine the following: what the consequences of the 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.
In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes (Joe Slovo) , 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. 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. 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’. .
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. In the Mchunu 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 Hlophe 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”.
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.’
It cannot be again said that an eviction is a traumatic experience. Muller notes the following about an eviction :
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 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.
It has been noted above that the mandate of the Commission is to carry out research and educate on human rights and related matters. 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 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 Conduct, which were framed in terms of section 16(k) of the Sheriff Act. According to the Code of Conduct the Sheriffs must act in an impartial, unbiased and fair manner. 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’.
Therefore, the ‘spirit of ubuntu’ 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 construed as objects.
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