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Government housing – a just eviction delayed is justice denied

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Geordin Hill-Lewis is the Mayor of Cape Town.

For eight families in Belhar in Cape Town, this Christmas will be spent much like the last two – wondering when the courts will correct an injustice that has kept them from moving into their new homes.

For two years, my office has been trying to obtain justice for these families, who have waited many years to benefit from government housing, and who were robbed of it at the last minute. 

For two years, our efforts have been frustrated by a broken court system, and a legal framework for evictions which, despite noble intentions, has become absurd.

In late 2021, just weeks after being elected, I got an email from a lady called Daleen*, writing to me on behalf of her mother-in-law, Adel*. She told me that the night before Adel and eight other families were to get the keys to their long-awaited new homes in a government housing project in the Belhar-Pentech development, the doors of their new homes were smashed down and a group of illegal occupiers moved in. 

Daleen’s email conveys her desperation at the time: “Sir I plead with you to please help … in 2 weeks it is Christmas and nobody works that time. My mother-in-law has been on the waiting list for more than 20 years and she is 67 years old already. Please help.” 

Once I had verified the facts, my office launched urgent eviction proceedings to try to restore the homes to their rightful beneficiaries. 

According to South Africa’s eviction law, called PIE (the Prevention of Illegal Evictions and Unlawful Occupations Act), once a structure is occupied, eviction proceedings must be brought before a court. 

In eviction proceedings, the law requires our courts to determine what is “just and equitable” in terms of offers of alternative emergency accommodation, on the rationale that no person should be left homeless by eviction. 

For this reason, the focus mostly tends to be on the evictees and their personal circumstances.

But in many cases, especially building hijackings or coordinated invasions, there is an important voice often missing or unheard by our courts: that of the lawful housing beneficiary who is losing out on their allocated housing opportunity after waiting patiently for the state to deliver. Which is precisely what happened here.

The Pentech-Belhar development is “free” housing aimed at the poorest and most vulnerable. The night before Adel, Daleen and other families were due to move in, a cynical hijacking unfolded, led by people already living in the area.  This was a relocation by people already in homes elsewhere in the neighbourhood, who decided to take new homes that were not theirs. 

That was two years ago, which is how long this matter has hobbled along in the Western Cape Division of the High Court in Cape Town, to the detriment of those who had their new homes snatched away at the last moment. Much of the delays come down to last-minute legal representation; changes no doubt used by the unlawful occupants to delay justice.

Eleventh-hour changes to counsel; failure to secure legal representation despite extensive notice; help from the City to secure legal representation; and now another lengthy delay due to newly appointed counsel. 

When the court mandated that the unlawful occupants talk to the City about their personal circumstances, they resisted, causing yet another delay. 

All the while, the argument the unlawful occupants are making to the court is that, despite admitting to having illegally seized the units, they have now put down roots, with tended gardens and children going to school in the vicinity, and therefore have no intention of leaving. 

They will only leave, they say, when the state (the City) gives them an equal housing opportunity somewhere else.  

They are now using the delays of the court process to their benefit, saying that the length of time they’ve been there (rent-free and with municipal services at no cost) somehow converts their illegal action into a right to stay permanently.

As a matter of principle, the City is not offering alternative emergency accommodation in this matter. Not only because the facts show they will not be rendered homeless, and have the capacity to go back to where they came from, but more importantly, we are arguing that the unlawful occupants cannot be elevated above the many thousands on the waiting list for state-subsidised housing. 

Housing demand far outweighs availability, not only in Cape Town, but in the country as a whole. 

The City has more than 300,000 people lawfully waiting for state-subsidised housing, many of whom are faced with equally dire, if not worse, personal circumstances.

Sadly, the people who lost out on their new homes are, of course, not before the court and their voices go unheard. 

They are represented by the City, which the courts tend to simply view as “the state”, without enough consideration for the affected families and parents, like Adel, and their stories.

As it stands, there is still no court date set to hear this eviction matter, and the City is now resorting to pleading with the Acting Judge President for a priority date in the new year to have the matter heard. 

By this time, the legal system will have unwittingly permitted the illegal hijacking of these homes for two and a half years.

The length of time it takes to secure an eviction order – even in clear circumstances such as these – is an injustice. One of the biggest policy challenges of our time is to enable more private-led affordable housing in the face of rapid urbanisation and dwindling state grant funding.

This is what Cape Town is working to achieve by releasing more of our well-located land parcels for affordable and social housing. We’re also supporting “micro-developers” who are already developing much more affordable rental opportunities than the state could ever deliver.

While the City focuses on new ways to increase affordable accommodation, our courts need to ensure that justice is not delayed in eviction proceedings and that the rights of evictees are balanced with those waiting lawfully to access state housing opportunities. 

I hope this time next year, these families from Belhar will celebrate Christmas in their own homes – rightfully restored to them. DM

*Given the conflict between these two groups, the rightful beneficiaries and the unlawful occupiers, I have changed the names for the protection of their identities.

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  • Martin Neethling says:

    This is an excellent reminder of how the PIE Act has become the major stumbling block to fair provision of state-sponsored housing, public-private partnerships to develop low cost housing, and in fact threatens the constitutionally guaranteed right to private property. To ratepayers the threat of losing your home and the right to live and enjoy it, is massively threatened by a law that is completely ill conceived, regardless of how naively well intentioned the law makers were. The PIE Act has been weaponised by literally an army of NGO’s that will step in to ‘fight’ an eviction under pretty much nearly any and all circumstances. It is absolutely inevitable that privately-led evictions will increase, completing the picture, where the theft of a property will be countered by the illegal eviction of the same people, placing then the onus on the occupiers to seek ‘justice’. Was any of this envisaged one wonders.

  • Sydney Kaye says:

    The way the defendant can delay proceedings by changing his lawyer ,looking for one or not paying him is mind boggling, and can be blamed on weak presiding officers and the interpretation of rights
    The erstwile public protector together with her lawyer led the committee a merry dance on the basis that she was entitked to have her legal fees paid. Even if so,, that should mean your own lawyer with payment on an agreed scale, and if he is nof prepared to accept that one provided by the state. Legal Aid can never mean you get to choose and he gets paid what he wants.

  • R S says:

    If I steal your car I go to jail. If I steal your house the govt had to find me another house to live in. It’s absurd.

  • Geoff Coles says:

    The legal system is infested by unscrupulous lawyers…. not limited to Cape Town, or SA

  • Notinmyname Fang says:

    Stupid, naïve legislation now used by any scum
    Please take it to ConCourt for amendment, please do it!
    It allows every scammer who illegally occupies a property to force the landlord pay huge costs to get an eviction order
    I know it from experience

  • Diane Salters says:

    Is this a job for the Public Protector?

  • Dennis Bailey says:

    It is a disgraceful reminder of how vulnerable we are to judicial delinquency. Come on, Zondo, sort it.

  • Jan Malan says:

    Disgusting is all I can say.
    I recall a situation where a business man bought a piece of land to put up a small business. When he wanted to start building, squatters have taken over his piece of land. His lawyer told him the dismal facts of all the problems he is going to have if he goes to court trying to evict them. The best thing his lawyer suggested is pay them R8000 to share among themselves to leave because going to court was going to cost much more and the hassles and the length of time to get rid of them will leave him bankrupt before he even starts with his business.
    He paid them and they left. He immediately put up a very secure fence to keep other squatters out.

  • Deon Botha-Richards says:

    A depressing example of how the law fails law abiding citizens. People on waiting lists for years get shafted illegal occupation. Those people have to be accommodated in similar abode before they can be evicted. Essentially placing them at the forefront of any list. The courts have erred spectacularly in this regard, giving greater rights to illegal occupiers over legal owners or beneficiaries. And they get legal support from overseas socialist funders who have little respect for property rights of owners.

  • Rod H MacLeod says:

    A clear legislative example of how incompetent meddling socialists stuff things up.

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