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Yes, the homeless are also protected by the Constitution

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Professor Zsa-Zsa Temmers Boggenpoel is a full professor in Public Law and incumbent of the South African Research Chair in Property Law at Stellenbosch University.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act is there to protect unlawful occupiers against illegal eviction, but it does not cater for the fact that a ‘home’ is simply not the same for everyone. What constitutes a home may be fundamentally different for different people; this nuance and complexity is sometimes explicitly ignored and often disregarded intentionally.

In 2018, the World Bank, Statistics South Africa and the Department of Planning, Monitoring and Evaluation released a report providing the drivers, constraints and opportunities to overcome poverty and inequality in South Africa. The study also shows that this country is one of the most unequal in the world. Yet, South Africa has aligned itself with the United Nations’ Global Sustainable Development Goals (SDGs), the first of which is to ensure that poverty in all forms is ended by 2030.

In his statement provided on the last day of the Summit at which the SDGs were adopted, former president Jacob Zuma indicated that “South Africa endorses this transformative post-2015 Development Agenda without reservation” but the ability to adopt these goals depended on the particular “national realities, capacities and levels of development”, which required respect for national policies and priorities.

The national reality, policies and priorities in South Africa are increasingly in the spotlight as the number of protests over land increase and the need for access to land is palpable. In the last few months, we have seen a number of instances where land has been at the heart of disputes in courts, and it is becoming clear that there is a disconnect between the implementation of laws that have been described as progressive and the emancipation of vulnerable groups by way of access to land.

When considering the slow pace of land reform, it is impossible to ignore the fact that identifying where the problem lies is complex. 

Non-implementation of laws is loaded with complexity. It can be that the laws are not implemented because there is simply no political will to do so. It may also be that the laws cannot be implemented because they simply do not speak to the particular realities on the ground.

This may be true in the context of evictions, where the landscape changed considerably when the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) commenced. PIE seeks to give effect to section 26(3) of the Constitution, which makes provision for the right not to have your home or shelter demolished without a court order, which may only be granted after all relevant circumstances have been considered. Moreover, an eviction order must be just and equitable. Yet, persons still lose their shelter or homes without a court order.

PIE may be set up to protect unlawful occupiers against illegal eviction, but it does not cater for the fact that a “home” is simply not the same for everyone. What constitutes a home may be fundamentally different for different people; this nuance and complexity is sometimes explicitly ignored and often disregarded intentionally.

In Ngomane & others v City of Johannesburg Metropolitan Municipality & another (734/2017) [2018] ZASCA 57, the Supreme Court of Appeal held that “not even the most generous interpretation of the words ‘building’ or ‘structure’, ‘temporary’ or ‘permanent’, can lead to the conclusion that the material confiscated [in this case] falls within their meaning. There were simply no buildings or structures that could be demolished, and no demolition occurred”. It was only the materials used to erect the overnight shelters that were removed and discarded.

The court also held that no eviction occurred, and that it was consequently not necessary to decide whether the traffic island in question could constitute land that could be subject to occupation in terms of PIE. Nonetheless, the court did find that several constitutional rights were violated when officials of the Johannesburg Metropolitan Police Department confiscated and destroyed the belongings and materials of this group of homeless and destitute people. The court opted for constitutional damages for the violation of constitutional rights.   

This case essentially highlights a particular narrative about how homeless people are to be treated in the new constitutional dispensation. It shows that this vulnerable group should not be considered as social outcasts or disturbances; they too are human beings with the constitutional right(s) to human dignity, privacy and property.

One cannot emphasise enough how important a case like this is in South Africa’s constitutional democracy. It is arguably part of an important story unfolding of how homeless and landless people should be treated in the new constitutional dispensation. In other landmark cases (such as Grootboom, Port Elizabeth Municipality, Tswelopele, and Schubart Park) the respective courts have also vehemently spoken out against the state or state officials who treat vulnerable groups as social disturbances, and in the process disregard their constitutional rights.

This narrative was reiterated even more recently when the Western Cape High Court challenged the City of Cape Town’s practice of demolishing structures that were, in the City’s view, “unoccupied”. The court held that “[i]t is the poorest of the poor, the homeless, downtrodden and unemployed who seek refuge in informal settlements and erect structures to provide shelter. Whether such structures are complete, incomplete, or in the process of being built, they are capable of providing shelter from the elements especially during the winter season we are now experiencing”.

Therefore, the court held that even though structures were incomplete, they were still subject to protection against evictions in terms of existing legislative and constitutional protections, especially under the Covid-19 regulations.

These judgments illustrate something that is amiss in our constitutional democracy, namely an ultimate disconnect between laws that safeguard constitutional rights and the implementation of these laws in reality. In fact, the conduct of some municipal officials in dealing with the homeless and/or landless is shockingly reminiscent of apartheid-style mishandling of vulnerable groups – where no constitutional protection of their rights existed.

The outcome of these judgments is undoubtedly a victory as it signals to those who must engage with these individuals that they are to be treated with dignity and respect so as to uphold their constitutional rights. DM

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