It isn’t supposed to be this way. Our “never again” Constitution, as the Chief Justice has called it, requires that evictions take place only with the permission of the court – and only where the court has decided that it would be fair, just and equitable to do so, all things considered. An eviction is only fair, in the eyes of our courts, if an evicted person has somewhere else to go – some shelter either provided through their own efforts, or through state support.
Many do not accept this simple, humane principle. Municipalities, in particular, have been scrambling to find ways around it – and to avoid having to provide accommodation for desperately poor people facing homelessness after eviction.
In Cape Town, the City’s Anti-Land Invasion Unit has adopted a novel policy. It has decided that it does not need a court order to evict people living in some shacks, because it has decided that these are not “homes” for the purposes of the law. The City of Cape Town says that a shack is not a home if the person who lives in it is not present when the Anti-Land Invasion Unit comes knocking; or if the Unit finds only a few personal belongings in the shack; or if the shack is built out of new materials; or if the ground around the shack is disturbed, suggesting that it might be newly-constructed. The City does not say which of these factors determine its findings – but does insist that once it has decided that the shack is not a home, it can demolish it without a court order.
In Durban, the MEC for Housing and the eThekwini Municipality have adopted a less subtle approach. In March last year, they convinced a Judge in an urgent sitting of the High Court to grant an open-ended order permitting the municipality and the police to evict the occupants of 1,568 state-owned properties without warning, whenever and wherever they find these properties occupied. A similar order was used to justify the eviction of the Lwandile residents in Cape Town last month. “Eviction on sight” orders of this nature circumvent the requirements of the Constitution and eviction control legislation, which require a careful balancing exercise between the needs of the landowner and the circumstances of the occupiers before an eviction is authorised.
The MEC and the Municipality have argued that their order is necessary to “sterilise” the land to which it applies. The order has been used repeatedly since it was granted. The residents of Madlala Village, an informal settlement in Lamontville, had their homes demolished 25 times before they were finally able to obtain a court order that effectively restrained the municipality from continuing to evict them. The residents of Cato Crest – whose plight received national attention last year – were evicted seven times, and had to go to court five times before the municipality would pause in its attempts to dislodge them from their homes.
Inevitably, there have been attempts to tackle these evasions of the law.
In Cape Town, a group of people who had been fighting a pitched battle with the Anti-Land Invasion Unit for over a year at the Marikana settlement in Philippi, managed to obtain assistance from the Legal Resources Centre. After the City demolished their homes in January this year, they challenged the City’s policies in the High Court. In the decision handed down in this case (Ramahlele v City of Cape Town), Judge Patrick Gamble described the City’s attempts to evade the law as “reminiscent of the well-documented operations conducted by the Apartheid government in the 1980s”.
The City appealed this judgment to the Supreme Court of Appeal, which decided the appeal on procedural grounds. It referred the case back to the Cape High Court for an evidentiary hearing. The residents have now appealed the case again, this time to the Constitutional Court.
In February this year, the Constitutional Court heard the complaints of the residents of Madlala Village. They asked the Court to declare the order authorising their eviction invalid, because they had never been given an opportunity to contest it – and because the order subjects many thousands of other people to eviction without any court oversight. The municipality argued that the order did not authorise their – or anybody else’s – eviction. All it authorised and all it had been used for, was to prevent people from unlawfully settling on land. Therefore, there was no need for court oversight, because no-one had been evicted.
And yet, the day after the hearing in the Constitutional Court, the order was used to evict some of the residents of the Madladla Village once again.
The Court had no difficulty in seeing through the municipality’s claims. In unusually strident language, Justice Zondo criticised the “totally unacceptable” conduct of the municipality in submitting to the Court that the order did not in fact authorise evictions, while at the same time using it to demolish people’s homes, and turn them out onto the street.
The majority of the Constitutional Court found that the order did indeed authorise evictions without court oversight. It referred the matter back to the High Court to determine whether the order was nonetheless valid.
Justice van der Westhuizen wrote a minority judgment, in which he argued that the Court should have gone further, and set the order aside, because there was no conceivable basis on which the order could be valid if it authorised eviction without a hearing. His judgment reminds us of the dark days of Apartheid when “the destitute and landless were considered unworthy of a hearing before they were unceremoniously removed from the land where they had tried to make their homes.” He emphasised that this should not be allowed to happen again.
Despite the Constitutional Court’s clear reproach, the eThekwini Municipality has used the order to justify several more evictions since the Constitutional Court handed down its judgment.
Almost 10 years ago, the Constitutional Court told us that desperately poor people facing eviction are to be treated with “grace and compassion”. In a rapidly urbanising society, where 80% of the population has historically been confined to 20% of the land, we are inevitably facing disputes over land occupation and tenure security – and will for years to come. For the poor and the vulnerable, these are issues of life and death: of whether they will sleep in their homes on a winter’s night, or whether they will freeze on the hard concrete streets.
In this context, the role of the state is to implement the Constitution in both letter and spirit; not to devise ever more elaborate strategies to defeat is objects. To do otherwise is to let the clear and strong principles of our Constitution fall away, and to entrench a mean, evasive approach to the state’s obligations that can seem to the poor as cold as the winter weather they now endure. DM