Landmark eviction judgment in Cape High Court

Legislation such as the Native Areas Act set permit systems and criminal offences to limit the rights of black people to live in urban centres. People living outside racially designated areas were regarded as squatters. Through the criminalisation of squatting and a simplified eviction process they could easily be removed from where they lived.

Section 26 of the Constitution and the provisions of PIE were a marked move away from this, decriminalising “squatting” and making the eviction process subject to a number of requirements under the new rights-based Constitution. Most importantly, evictions could no longer be carried out legally without a court order.

This, according to Judge Gamble of the Western Cape High Court, Cape Town, is the context in which section 26 and PIE need to be understood.

On Thursday, 13 March 2014, Gamble handed down a judgment that makes huge strides in the preservation of the strong substantive and procedural protections afforded by PIE to some of the most vulnerable and desperate people in our society, who also deserve to be treated with dignity and respect.

Where this history and rationale is not considered, where municipalities conduct themselves in a manner “reminiscent of the… operations conducted by the apartheid government in the 1980s in areas such as Crossroads and KTC”, the result is that people’s constitutional rights are violated. Such behaviour is impermissible in a constitutional democracy.

The case related to the property of Iris Fischer, where since April 2013, people have made a number of attempts to erect informal structures.

Timeline of events

In late April and early May 2013, Fischer requested assistance from the City of Cape Town to remove the occupiers that had taken up residence on her property.

On 30 April, the City demolished 73 structures and the following day another 100. The occupiers never challenged the lawfulness of these demolitions.

After May, a small group of people remained and put up four or five structures every night, taking them down again in the morning.

In August, the City gave Fischer notice in terms of PIE to evict the unlawful occupiers.

By January 2014, the number of structures on the property had increased to about 20.

On 7 January at about 3pm City officials saw a number of vehicles offloading large quantities of building material and people starting to build informal structures on the property. The City started demolishing these structures by 6pm that day.

By the time City officials left they had demolished 32 structures and had left between 20 and 30 structures on the property. The demolition squad returned the next day at 9am, and found that 15 more structures had been built overnight, and proceeded to demolished these.

The City and Fischer went to court to request an order preventing any further attempts to occupy the land. The occupiers, described as “persons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy Erf 150 (remaining extent), Phillipi”, were then required to come back to court to show why they should not be interdicted (barred) from, amongst other things, entering and occupying the property.

The order was served on the occupiers by having the contents of the order read out with a loudhailer and with the order pinned on a noticeboard at the entrance of the property.

The occupiers — 42 people joined the court application — requested that the order received by the City be cancelled. In addition to that, they requested an order declaring that the conduct of the City, in demolishing the informal structures, was unconstitutional and unlawful; interdicting the City from demolishing the informal structures or disposing of their materials without a court order; and directing the City to construct temporary structures for the people whose informal structures had been demolished by City officials.

What was argued

The occupiers argued that the City had contravened section 26 and the provisions of PIE.

In response, the City stated it was not bound to observe the provisions of PIE because what the City had demolished were not homes, and that the Anti-Land Invasion Unit (ALIU) had acted within its mandate to prevent invasions that are in progress or imminent. In such circumstances, all the ALIU did was to prevent structures from being erected or removed them while they were in the process of being erected, prior to those structures being occupied by persons (and therefore becoming their ‘homes’).

The City stated that it did not demolish structures that were on the property before 7 January, as those would be protected by PIE; those still remain on the property. Instead, ALIU demolished all the “unoccupied” structures that had been erected on 7 January 2014.

What the court found

The Court had to deal with a number of issues. Most importantly: were the occupiers entitled to the protections afforded by PIE because the structures in question were not ‘homes’?

It had been left largely up to a low-ranking, relatively inexperienced ALIU official to ultimately decide which structures were to be destroyed. He claimed he used “normal [ALIU] procedure” — observing the state of completion of the structure, whether the construction materials appeared to be new, and whether the structure contained any furniture.

Judge Gamble found the City’s emphasis on whether or not a structure was a ‘home’ (as determined by the City) was misplaced. PIE makes it unlawful to evict a person without a court order. In other words, a person cannot be deprived of the occupation of a building or structure (permanent or temporary) or land where that person has no permission to be there, without a court ordering eviction.

The Judge emphasised that a purely textual approach to interpreting PIE is incorrect. Taking into account the social, constitutional and legal context in which PIE was adopted is indispensable. PIE gives the marginalised and vulnerable the right to be heard by a court of law before being evicted. The real question was whether the occupiers were deprived of occupation of the structures or land.

Gamble held that the purpose of PIE would not be served by the haphazard application of arbitrary factors, such as whether occupation was not yet complete, or that the person had given up occupation, or for how long the person had been on the land, to determine whether or not PIE applied. The judge held that an invasion of the land had taken place, occupation had occurred, and the provisions of PIE applied.

In the socio-economic context that the people before the Court existed, where they had managed to scrape together money to buy basic materials to build the most basic structure which would be the only place they could call home, the criteria used by the ALIU did not have the effect of disqualifying those structures from being regarded as homes in terms of PIE.

The Court declared the conduct of the City unconstitutional and unlawful. The City was interdicted and restrained from evicting or demolishing any informal structures, or removing structures or materials from the property. The City was directed to build the occupiers whose homes had been demolished, temporary dwellings capable of being dismantled.

The judgment is almost certainly going to be appealed and will most likely end up before the Constitutional Court for final determination.

Organisations like Equal Education (EE) and the Social Justice Coalition (SJC) had urged Premier Helen Zille to include the City’s Anti-Land Invasion Unit in the Khayelitsha Commission of Inquiry into the Police, but at the time she declined to do so.

The author is a researcher with Equal Education.