Residential evictions continue to be a traumatic experience for vulnerable people facing financial difficulties across the country.
Exacerbated by the COVID-19 pandemic, we have noticed an increased number of residential evictions being granted by magistrates and judges alike despite the exceptional circumstances we are facing. It is notable that municipalities have a constitutional duty to engage with evictees meaningfully and provide adequate alternative accommodation in instances where they face a real possibility of homelessness.
Legislation protecting evictees
The abovementioned constitutional duty is a response to the common law residential eviction procedure followed during apartheid. To rectify this approach, section 26 of the Constitution of South Africa, 1996 (the Constitution) was enacted to enshrine the right to adequate housing. Section 26(3) of the Constitution provides that no one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances.
Flowing from section 26(3) of the Constitution, the Prevention of Illegal Eviction and Unlawful Occupation of Land Act of 1998 (the PIE Act) was enacted to consider the personal circumstances of evictees in order to ensure that evictions are just and equitable.
Section 4(7) of the PIE Act states that if an unlawful occupier has occupied land for more than six months at the time of the court proceedings, a court may grant the eviction order if it is just and equitable to do so. The content of the concept “just and equitable” includes considering whether land has been made available or can reasonably be made available for the evictee by a municipality.
Section 4(7) of the PIE Act is amplified by the recent adjusted Alert Level 1 COVID-19 regulations (Gazette 45253 of 30 September 2021 read with Gazette 45297 of 11 October 2021) which state that a court may request (in addition to any other report that is required by law) a report from the municipality regarding the availability of emergency accommodation, quarantine or isolation facilities.
Disappointingly, the unfortunate reality is that due to an exhaustive waiting list for State housing and limited State resources, oftentimes municipalities can only provide emergency housing kits comprising corrugated iron. Alternatively, municipalities offer to relocate evictees to crime-ridden, underresourced Temporary Relocation Areas (TRAs) such as Blikkiesdorp and Wolverivier in Cape Town, for instance. Can it then be said that the alternative accommodation provided by municipalities is adequate?
What is adequate alternative accommodation?
In Baron and Others v Claytile (Pty) Ltd and Another 2017 (5) SA 329 (CC) (Baron), a group of unlawful occupiers (the group) who were being evicted refused to accept the offer from the City of Cape Town to reside in the Delft Temporary Relocation Area because the structures are built from corrugated iron. The group also refused to relocate to Wolwerivier because the area was far from their children’s schools. Additionally, the group rejected the offer to relocate to Blikkiesdorp because the structures were built from corrugated iron and they did not have access to basic services.
The Constitutional Court emphasised that the right to adequate housing should be progressively realised. This means that the municipality can only provide alternative accommodation within its available resources.
When considering the refusal of the group to accept the options for alternative accommodation, the Court made reference to The City of Johannesburg v Changing Tides 2012 (6) SA 29 (SCA) where it was held that an eviction is just and equitable if alternative accommodation is made available.
Perhaps it was the particular circumstances in the Baron case where the group resided on private property for five years (prejudicing the property rights of the landowner) that led to the decision of the Court, but the approach taken by the Court in the above case can be contrasted to the approach in Occupiers of Erven 87 & 88 Berea v De Wet NO and Another 2017 (5) SA 346 (CC) (Occupiers).
In this matter, the Court highlighted that the judicial officer presiding over eviction proceedings must apply his/her independent judicial mind and take an active role to understand the personal circumstances of the evictees, protect their human rights and balance the housing rights of the evictees with the property rights of the landowner. The Court further clarified that judicial officers in lower courts must adhere to constitutional imperatives and precedent set by the superior courts when determining whether an eviction is just and equitable. It can be argued that adequate housing would be one of these constitutional imperatives.
What is adequate housing?
South Africa ratified the 1966 United Nations International Covenant on Economic, Social and Cultural Rights (the Covenant) on 12 January 2015. Article 11.1 of the Covenant states that the States Parties to the Covenant recognise the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions. It further provides that States Parties will take appropriate steps to ensure the realisation of this right.
As such, the Covenant recognises that conditions such as availability of basic services and infrastructure (e.g. durable building structures, safe drinking water, adequate sanitation and adequate refuse disposal), habitability (e.g. physical safety and adequate space) and location (e.g. housing in close proximity to employment opportunities, educational institutions, healthcare institutions) must be fulfilled in order for the housing to be deemed as “adequate”. It can be argued that these conditions are as significant as the basic supply and availability of housing. South Africa’s TRAs have faced constant criticism for failing to adhere to some of the abovementioned conditions.
Although the provision of alternative accommodation by municipalities is commonplace during eviction proceedings, it may be time to examine the adequacy of the alternative housing provided. South African courts have not expressly defined “adequate housing” but it is clear from Occupiers that judicial officers must take an active role when considering constitutional imperatives and precedent set by superior courts. Section 26 of the Constitution and the Covenant emphasise the significance of “adequate” housing. It is understandable that the right to adequate housing is to be progressively realised (especially in light of limited State resources), but considering the inextricable link between the right to adequate housing and the right to human dignity one can acknowledge that the pace of this progressive realisation is too slow for many vulnerable people in South Africa.