The constitutionality of SANRAL’s actions is questionable. The Constitution, while recognising in section 25 that property owners may not be deprived of their property, or the use thereof, except in terms of laws of general application, also provides in section 26(3) that “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”.
In order for evictions of illegal dwellers to be permitted, certain legal requirements in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the Act) must be established. The Act elaborates on section 26(3) of the Constitution by describing the circumstances under which a court may evict illegal dwellers. In this regard, a court needs to take into account various factors, including whether the dwellers fall within vulnerable groups such as the elderly, children or female headed households. The Act provides that courts may not grant an eviction order unless the eviction would be just and equitable. The court should also take factors such as the length of occupation, the availability of alternative accommodation or alternative accommodation to be provided by the state where occupiers are unable to obtain such accommodation themselves.
A well developed body of case law complements the procedural requirements. In PE Municipality v Various Occupiers, the Constitutional Court stated that courts must be fully informed of all the relevant circumstances before deciding whether an eviction would be just and equitable. In addition, there also has to have been meaningful engagement with all the parties concerned. This engagement ought to be of a proactive and honest nature in a bid to find mutually acceptable solutions. Courts may also compel municipalities to be party to litigation so as to provide information on alternative accommodation. This was made clear in a High Court ruling (Witwatersrand Local Division) in Sailing Queen Investments v Occupants La Coleen Court. In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others, the Supreme Court of Appeal found that in instances where an eviction may result in homelessness, the courts should not rush to grant eviction orders when a municipality has not been a party to the proceedings.
In a recent matter before the Constitutional Court, Zulu and Others v Ethekweni Muncipality and Others, the Constitutional court acceded to the Ethekwini Municipality’s concession that an order authorising eviction and demolition, granted outside of the Act, would be unconstitutional. Although not ruling on the constitutionality of a common-law eviction order, Justice Van der Westhuizen, in a separate concurring judgment, stated that “An order of this nature deprives unlawful occupiers of rights enshrined in the Constitution and recalls a time when the destitute and landless were considered unworthy of a hearing they were unceremoniously removed from the land where they had tried to make their homes”. He further stressed that state bodies have a constitutional duty to assist in the administration of justice and should provide reliable submissions in all legal proceedings.
According to reports, SANRAL did not proceed in terms of the Act. Instead, SANRAL obtained an interdict on 24 January (two days after the City of Cape Town informed SANRAL that it had 14 days to clear the land of illegal structures for health and safety reasons). The order obtained on 24 January is a rule nisi, extended to 17 March, which would, amongst others, prevent the continued occupation of the land, as well as allow for demolishing of any illegal structures on the land. The order is arguably in conflict with the Act in that it fails to take into consideration justice and equity. It fails to cite alternative accommodation, it does not seem to be taking into consideration the personal circumstances of the occupiers and it does not reflect any form of engagement amongst the parties. Moreover, the City of Cape Town should have been cited in the proceedings in order to fulfil a procedural requirement in eviction proceedings which lead to homelessness. As such, an interdict (such as one obtained by SANRAL) merely has the power to prevent people from unlawfully occupying land and building informal structures on that land and cannot serve as the legal basis for an eviction. In order for a court to issue an eviction order, it has to have considered all the relevant circumstances as set out in the Act. Given the provisions of section 26(3) of the Constitution and of the Act (giving effect to the constitutional provision), it would be unconstitutional to evict people and demolish structures without adhering to the provisions of the Act.
Following public outcry in the Lwandle-matter – probably emphasised by a rainy cold front in Cape Town – and intervention by the Ministers of Human Settlements, the Minister of Transport, the Western Cape Provincial Government and the Mayor of Cape Town, SANRAL has reportedly offered alternative accommodation and support to the illegal dwellers. Despite this, these evictions remain a violation of section 26(3) of the Constitution.
Speaking on the Lwandle evictions, the Shack dwellers movement Abahlali baseMjondolo remarked that the Lwandle evictions appeared to be given an inordinate amount of media attention. This, in the wake of a spate of evictions within the same period such as in Clare Estate in Durban, where close to 300 shacks were razed to the ground leaving dozens of people homeless, and in First Avenue, Alexandra, Johannesburg where 25 families were also evicted from a plot of land. Abahlali president S’bu Zikode is quoted in the media as saying: “Evictions happen almost every day in Cape Town, Durban and Johannesburg… we have to ask why now? One can only think it is politicking ahead of the local government elections”. Nevertheless, why the residents of Lwandle and others found themselves in such terrible position is, of course, part of the bigger national debate regarding equal opportunities, the right to adequate housing and effective service delivery. In the words of Vuyiswa Swentu, a community leader in Lwandle quoted by the media: “There are no jobs there [the Eastern Cape] so that is why we decided to come to Cape Town”. Whether that is the case and if so, why that is the case, are good questions that remain to be answered. Meanwhile, the legal principles remain: “Everybody has the right to have access to adequate housing” and “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”. In the absence of such housing, the eviction of illegal dwellers must be just and equitable in accordance with the Constitution and the Act – and bearing in mind the constitutional value of human dignity.
By Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights
[Photo credit: Foter-informal-settlement]