Pretoria - The State has a constitutional obligation to engage with unlawful occupiers before seeking an eviction, to ensure that the poor are treated with dignity and that their rights are not trampled on. This is according to a judge sitting in the Mahikeng High Court in the North West, who turned down an application by the JB Marks Municipality in Potchefstroom to evict about 255 squatters from land zoned for “open space”.
Judge AJ Morgan stressed the fact that it was vital that evictions were carried out justly, and those being evicted were treated with the dignity that the Constitution has granted to each and every individual in South Africa regardless of their social standing, whether they are property owners or unlawful occupiers.
“It is trite that South Africa is experiencing a housing crisis, with its harsh consequences being felt the most by those who are indigent and financially marginalised. This housing crisis has rendered a sundry of constitutional rights and promises hollow and illusionary.
“The right to housing is interlinked with the enjoyment of many rights – such as the right to dignity, the right to privacy, and the right to sufficient water and food,” the judge said.
The municipality, which is under business rescue, turned to the court to have the illegal occupiers evicted and their shacks demolished.
According to them the people did not occupy the shelters, and if they did, then they had done so for less than six months.
Thus, the municipality argued, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act did not apply. Their conclusion was that under these circumstances they did not have to provide them with alternative accommodation.
The homeless, on the other hand, claimed they had been staying there for longer than six months. They said they had nowhere to go and they – including women and children – would be rendered homeless, as the municipality had not offered them alternative accommodation.
They told the court that the government was failing them, as many of them had applied for RDP houses as far back as 25 years ago.
Recognising the crucial nature of the right to housing as entrenched in the Constitution, former Judge Albie Sachs earlier said in a similar matter that the Constitution acknowledged that a home was more than just a shelter from the elements.
He said: “It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world.”
Judge Morgan noted that while the Constitution recognised the rights of the homeless, the persisting housing crisis rendered some of these ideals nugatory (of no value).
“It is well-documented that the housing crisis that now characterises post-apartheid South Africa can be traced back to a conglomeration of legislation enacted during colonisation and under apartheid,” he said.
The judge added that the government's inefficiency and corruption over the past two decades had exacerbated the housing crisis.
He further said that being a country birthed from severe inequality and land dispossession, courts and landowners could not be blind to the legacy of colonisation and apartheid.
“The common law rights of landowners are not ignored and disregarded, as they are enshrined and protected under the Constitution. The Constitution merely ensures that the rights are not exercised to the detriment of others, especially since homelessness is prevalent in South Africa.”
The judge said proper consultation and meaningful engagement between landowners and unlawful occupiers were central to a dignified eviction process.
In turning down the eviction application, the judge said the municipality’s conduct resembled that of many local authorities during apartheid.
While the local authority owned the property, it was not akin to a private landowner, and ownership was no longer as central as it was under apartheid.
Pretoria News