Amid the Covid-19 pandemic, the plague of inhumane evictions is becoming its own epidemic in South Africa. Notwithstanding the lockdown regulations, evictions are, disturbingly, on the rise. There are daily accounts of government agencies pitching up at informal settlements, heavily armed, and razing all shacks (empty or occupied).  

Tyrannising shack dwellers is, seemingly, a shared favourite activity of multiple municipalities across the country. During the “hard” lockdown, nearly 1,000 people were evicted from informal settlements in eThekwini; about 300 shacks demolished in Klipriviersoog in Johannesburg; and 200 people left homeless by evictions at Airport Park in East London.

Not to be outdone, the City of Cape Town’s Anti-Land Invasion Unit (ALIU) has made headlines several times during the lockdown, bulldozing homes throughout the city on numerous occasions, each eviction more brutal than the previous.

In the words of Judge Yasmin Meer, these evictions are “inhumane” and “heartless”. But are they unlawful? The definition of a “home” is the key to answering that question.

All evictions in South Africa are regulated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) and section 26(3) of the Constitution. PIE and section 26(3), read together, provide that one can only be evicted from one’s home if a court has authorised the eviction. Thus, evicting someone from their home without a court order sanctioning the eviction is unlawful.

In the recent string of court cases (and in earlier cases as well), the City of Cape Town has readily conceded that it acted without a court order. It instead attempted a feat of legal gymnastics to circumvent the requirement of a court order.     

The South African Human Rights Commission has secured an interdict against the City, prohibiting these evictions for the time being. The city, however, intends to appeal the interdict. Besides which, a solution which lasts longer than a temporary interdict is desperately needed.     

The city has hinged its defence on the word “home”. It argues that the ALIU does not destroy “homes”. The ALIU, according to the city, goes to the site, assesses which structures are occupied, and only destroys the unoccupied structures (generally shacks). The fact that it is unoccupied disqualifies the shack as being a home, so goes the argument. Therefore, because a “home” is not being destroyed, the demolition does not constitute an eviction. And finally, because no eviction is taking place, no authorising court order is needed. Similar defences have been deployed by the Johannesburg and eThekwini municipalities as well.

Putting aside for the moment the ample evidence that many of the shacks demolished were actually occupied contrary to the city’s claims, the questions remain: is there any merit to the argument? Does this legal somersault land? The essence of the question is this: what is a home? Does the definition preclude unoccupied shacks?

The answer is somewhat murky. There is no definition in legislation nor has the Constitutional Court pronounced on the matter. There is, however, some instructive precedent. In Barnett v Minister of Land Affairs the court held that, for a structure to constitute a home, it must be occupied with a degree of permanence and that the occupiers would otherwise be homeless but for that home. In Breedevallei Munisipaliteit v Die Inwoners, the court qualified Barnett. It found that, though there must be a degree of permanence to the occupation, the occupation need not be long-established for the structure to be considered a home.

Based on Barnett and Breedevallei, it appears that if a shack is genuinely unoccupied then it does not constitute a home and can be demolished without a court order. However, this is a worrying conclusion to arrive at given the current state of affairs. Clearly, municipalities are demolishing unoccupied and occupied shacks indiscriminately. The abundance of video footage alone, showing people, along with their beds, furniture and personal possessions, being removed from shacks (which are bulldozed shortly thereafter) is evidence enough that occupied shacks are equally being targeted. The City of Cape Town’s claim that only unoccupied shacks were demolished is, at best, a blindness to its own misdeeds, and at worst, a sinister attempt to pull the wool over the court’s eyes.

To become part of the law, a court must affirm the wide definition of the home in a judgment. Given all the ongoing evictions and the pursuant cases, the courts now have plenty of opportunities to incorporate the wide definition into the law.   

It appears that municipalities feel emboldened in their contempt and belligerence towards shack dwellers. In a defiant statement by Cape Town Mayor Dan Plato, he insisted that the city is fully justified in its actions and gave all indications that the evictions will continue unabated. No doubt, the city will continue to invoke the tired defence that it “only removes unoccupied shacks” so that it can take shelter from the law and evict with impunity. If these evictions do continue, Judge Yasmin Meer predicts that “thousands of vulnerable people will continue to be subjected to arbitrary demolitions… and face the irreparable harm of being homeless”.

The South African Human Rights Commission has secured an interdict against the City, prohibiting these evictions for the time being. The city, however, intends to appeal the interdict. Besides which, a solution which lasts longer than a temporary interdict is desperately needed.     

One such solution might lie in the obiter of a 2014 High Court judgment. In Fischer v Persons Unknown, the court was faced with yet another set of harsh evictions and demolitions. The facts of the case mirror those of the recent string of evictions, or indeed any of the evictions exacted in Cape Town over the past 50 years. To escape homelessness, individuals occupied a piece of land and began constructing shacks. Noticing the newly erected shacks, the landowner and the ALIU went to the site and purportedly demolished only the unoccupied shacks, leaving the occupied ones untouched. The occupiers approached the High Court for relief, alleging that the ALIU had demolished occupied shacks, as well as unoccupied ones.

Judge Patrick Gamble ultimately decided the case without reference to the “home”. But, hedging his bets, he ventured an obiter comment on when a shack becomes a “home”. He said that there is “no logical basis not to regard [a] completed, but empty, structure as [a] home as well”. By this, so long as the shack is fully constructed, even if it is empty, it is a “home”. Thus, the demolition of even unoccupied shacks would constitute an eviction and accordingly require an authorising court order to be lawful.

The rationale behind Judge Gamble’s dictum is twofold. First, that a shack is empty does not mean that it is unoccupied. It is entirely possible that a shack is empty because its occupant “may have been at work or have taken the children to the clinic”. And secondly, he contends that “the fact that the structure had reached the stage of its completion indicates an intention on the part of the builder thereof to take up residency therein” – and intention to take up residency is sufficient to qualify a shack as a home in his view.

On appeal, however, the judgment was set aside by the Supreme Court of Appeal (SCA). The SCA set it aside not because it necessarily disagreed with any of the findings, but because it was of the opinion that the High Court had not heard enough evidence to decide the matter. Judge Gamble’s position has thus not been judicially contradicted, but neither is it of binding precedent status.

Academics, though, have levelled fair criticisms at the judgment. Certainly, holes can be picked in the two reasons offered for favouring the wide definition of a home. But, it is submitted, there is perhaps a third, more compelling, reason now.

The current situation is dire. Evictions will continue, and either out of the city’s inability to discern the difference between an occupied and unoccupied shack or its utter disdain for the lives of shack dwellers, thousands of people will be rendered homeless. However, if all shacks are deemed to be homes regardless of whether or not they are occupied, then the city can no longer rely on their well-rehearsed defence that they “do not demolish homes, only unoccupied shacks”. The city will be compelled to approach the court before demolishing any completed shack; it will have no room for legal manoeuvring.

To become part of the law, a court must affirm the wide definition of the home in a judgment. Given all the ongoing evictions and the pursuant cases, the courts now have plenty of opportunities to incorporate the wide definition into the law.   

Obviously, under the wide definition, shacks which are genuinely unoccupied and undoubtedly do not constitute homes will also be protected. But, perhaps, the law should rather overprotect to ensure that no one is unlawfully evicted and left homeless. Perhaps it has now come to that. DM