The homeless have always been a particularly vulnerable group in South Africa and across the world. The Covid-19 pandemic has further highlighted this vulnerability, especially in the intersection between disease outbreaks and homelessness. As noted by Leilani Farha, given that housing has become one of the main defences against the virus, being homeless during Covid-19 is potentially a death sentence. Consequently, the United Nations has appealed to countries to urgently address the housing needs of the homeless to ensure they are also protected from the virus.

In this regard, governments are advised to provide accommodation to all homeless people and to ensure that this accommodation makes provision for social distancing, self-isolation and quarantine. Additionally, access to water, sanitation, food, health services and Covid-19 testing must be ensured. Forced evictions and demolishing of “encampments” should also be prohibited and it should be ensured that the homeless are not criminalised or punished in any way when enforcing any of the regulations, for example, curfews. But what has South Africa’s response been in the context of the homeless?

The South African government has implemented various measures in response to the pandemic. This includes a nationwide lockdown in which everyone is required to stay at home, exercise social distancing and ensure regular handwashing. These measures are extremely difficult to implement for those who do not have a home or for those living in informal settlements where houses are closely packed together and there may not be access to running water to wash hands regularly.

On this basis, Regulation 11D(2) of the National Disaster Management Act 57 of 2002 compelled the state to identify temporary shelters, quarantine sites and self-isolation sites for homeless people, in line with health protocols. This results in relocations of homeless people and it becomes important to understand what the law prescribes in relation to relocations, especially given the historical negativity that surrounds them.

Guiding principles for relocations of informal settlements

Guiding principles on relocations, which would also apply during a global pandemic, can be derived from various policies and programmes. Ordinarily, the affected household/community must consent to the relocation and its terms and conditions. The process should try to minimise disruptions as far as possible and the area to which those affected are relocated should have proper shelter and municipal services such as running water and sewerage.

Municipalities should provide relocation assistance to those being relocated. Importantly, relocations should be undertaken on a voluntary and co-operative basis with cognisance taken of the right to dignity of those affected.

A relocation strategy should be developed in collaboration with affected parties. In this regard, meaningful engagement with those affected is of extreme importance, both before and after the relocation. Moreover, engagement should be conducted in good faith with a willingness to listen to the concerns of those affected, and the engagement should be open and transparent with proper record keeping.

While these guiding principles are of utmost importance, it is concerning that there have been some reports of alleged violations of rights including human dignity, health and privacy during Covid-19. Although there have been numerous reports of similar violations of rights prior to this pandemic, these alleged violations have occurred specifically in relation to attempts by government to relocate people to temporary shelters – a measure that should protect the homeless, not expose them to further harm. These allegations have been made by health workers, civil society members and by some of those who’ve been relocated to quarantine sites.

Some issues were raised in Cape Town’s Strandfontein Sports Ground site, where approximately 2,000 homeless people were relocated during the lockdown. At this site, a number of incidents were reported, including:

• Lack of proper social distancing; 
• Inadequate healthcare access;
• Lack of food, water and ablution facilities; and Allegations of sexual assaults.

Additionally, there have been allegations of people being “dumped” in shelters without proper consultation processes and access to information. It was reported that conditions were so appalling, that the South African Human Rights Commission recommended the site be closed immediately.

Over and above the fact that the Strandfontein site contravenes the UN guidelines, regulations and the guiding principles for relocation, it is concerning that the government failed to facilitate proper meaningful engagement, especially given how disruptive the relocation process was.

While this is only one example, it is unclear how many other sites had similar conditions and how many relocation processes failed to ensure the involvement of those affected. It is unacceptable that an already vulnerable and historically silenced group on the margins of society have once again had their rights violated — this time in the middle of a global health pandemic.

Adhering to the guiding principles of relocation during pandemics

The principles regarding the constitutionally sound relocation of homeless people centre on meaningful engagement and a voluntary and transparent process being followed. These principles were not suspended during the lockdown and should still have been (and should be in future) followed by the state. The Strandfontein example shows how devastating human rights violations can be if the guiding principles set out above are not adhered to.

Ultimately, even though more urgency and haste are required when organising relocations during a state of disaster, the approach embodied in these principles is in line with the right to human dignity, access to information as well as rights to socioeconomic and political inclusion. These are all rights that cannot be suspended – even in this time of a global health pandemic. DM

Sameera Mahomedy an LLD candidate and a research intern at the South African Research Chair in Property Law at Stellenbosch University (SU). She holds an LLB and an LLM (cum laude) from SU.

Prof Zsa-Zsa Boggenpoel holds a BComLaw, an LLB and an LLD from SU. In 2016, she was awarded the National Research Foundation (NRF) rating in the category Y1. She is a full professor in the Department of Private Law at SU, where she specialises in Property Law, Constitutional Property Law and Property Theory.

Dr Elsabé van der Sijde is a research fellow of the South African Research Chair in Property Law and the department of public law at SU. She holds an LLB (cum laude) and LLD from SU and an LLM degree (cum laude) from the University of Pretoria.

Dr Mpho Tlale is a post-doctoral research fellow at the South African Research Chair in Property Law. She holds an LLB from the National University of Lesotho, an LLM from North West University in Estate Law, and an LLD from NWU.