Backyarders vs City of Cape Town in court

Judgment was reserved in the Western Cape High Court in a matter between the City of Cape Town and backyarders who moved into unoccupied houses in Belhar. Archive photo: Masixole Feni

• The City of Cape Town has applied to the Western Cape High Court for the eviction of eight families who moved into a new housing development in Belhar.
• The City says the families, former backyarders, have displaced people who have been on the housing list longer.
• The backyarders say the houses were empty and had been vandalised when they moved in.
• Judgment was reserved.

Judgment was reserved on Friday in the Western Cape High Court in a matter between the City of Cape Town and eight backyarder families who took over unoccupied houses in Belhar in May 2021.

The City of Cape Town is seeking to evict the eight families from the Pentech housing development in Belhar in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998.

In its court papers the City says

• the respondents occupied the houses unlawfully, taking the places of people to whom the houses had been allocated and who have been on the housing list much longer;
• the respondents all had accommodation which they chose to leave; and
• they have not proved that they can’t afford to rent elsewhere, so the City should not have to provide alternative accommodation.

In their papers the respondents say:

• they moved into houses which were incomplete and empty and had been vandalised;
• they were told to stay there by the Pentech project manager;
• they can’t go back to their previous accommodation which is no longer available; and
• they can’t afford to rent elsewhere.

They say when they first occupied the houses in 2021, the units had been badly vandalised.

They had moved out when told to do so by security guards. They then camped in the street until the Pentech project manager told them to move back into the houses while he found housing for them in Delft.

The City denies this and says in any case the manager did not have the authority to offer them the houses. Anyway, the City says, the respondents were served with a notice to vacate in January 2022, rendering their occupation of the houses unlawful.

But the respondents say even if the Court finds that the manager did not have authority, they had “a plausible belief that they did have permission to take occupation, and accordingly ought not to be seen and treated as ‘invaders’ of the properties”.

The City says accommodation was found for the eight families originally displaced from the housing list. But as long as the respondents stayed in the houses, “there will always … be eight lawful beneficiaries who are being denied access to the homes that ought to be lawfully allocated to them and their families”. There is no merit, the City says, in the assertion that the continued occupation “does not harm anyone”.

Among those waiting for the houses, the City cites the case of a 55-year-old man who is a wheelchair user and lives in a zinc house without wheelchair access. One of the eight people on the waiting list for the houses has been on the list for 30 years, and all have been on the list longer than any of the families, the City says.

Alternative accommodation

The City says it should not have to provide alternative accommodation but if the court finds otherwise, two solutions are offered: materials for an emergency housing kit to be constructed on private land, or emergency housing which the City will construct on a site in Leonsdale in Elsies River.

The City claims the Leonsdale site is well situated with respect to schools and transport.

But the families say they “are members of the Belhar community, have lived there for many years, have put down roots there and their children attend schools in the area. Their lives, and the children’s schooling, will be disrupted if they are obliged to move to Elsies River.”

They say the housing options offered by the City are not as good as those offered in other situations, and they say the Elsies River site, 15 km away, is not suitable as it is “crime-ridden, with gangsterism and drugs”.

Mayor Geordin Hill-Lewis, who was in the courtroom on Friday, said in a statement: “Due to many delays, the legal system has already unwittingly permitted the grave injustice of the illegal hijacking of these homes for two and a half years. It is my hope that the court will not permit any further delays in issuing an eviction order so that these families can finally have their homes restored to them.”

One of the respondents, Brenda Murphy, told GroundUp that she had been on the waiting list for 22 years. She said she had been living in the Belhar area for 40 years, and her children had grown up there. She said she hoped “justice must take place”

Acting Judge Mas-udah Pangarker reserved judgment.

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