Source: Farmersweekly.co.za
The term ‘eviction’ has become a swear word in certain circles, and some non-governmental organisations are quick to make a connection between ‘bad, unfeeling farmers’ who evict people from farms, leaving them without refuge, and the call for expropriation without compensation (EWC) and security of tenure for farm dwellers.
The reality is far more complicated, and this matter therefore deserves to be viewed from all angles.
Land invasions are of great concern to farmers; certain political parties and other groupings have threatened farmers openly with unlawful occupation of land. It is important to understand the legal framework around such occupation, and especially the rights of the landowner.
Not just a rural problem
There are no reliable statistics for evictions in South Africa, but the perception exists that they occur primarily in rural areas and that farmers are mainly responsible. This is not necessarily true.
All land not specifically zoned for other uses is deemed to be agricultural land. However, this does not mean that all land zoned for agriculture is used for farming purposes.
Much land, especially around cities, is zoned for agriculture, but is in fact used for business or industrial purposes. And many large-scale evictions are as a result of proposed property development and urban expansion.
Lawful versus unlawful
Various laws, including the Extension of Security of Tenure Act (ESTA) and the Labour Tenants Act, make provision for eviction.
These laws contain strict requirements and limited grounds for eviction, and strong protection of the rights of occupiers, even unlawful occupiers.
These people may be evicted only with a court order, after proper notice is given, and all relevant factors, including the availability of suitable alternative accommodation, have been considered.
As court rulings have evolved, it has become increasingly difficult for a landowner to obtain an eviction order. The courts do not issue eviction orders lightly.
In the event of an eviction in terms of ESTA, a probation officer’s report is required, setting out the personal circumstances of the occupiers. A court may grant an eviction order only if it is fair and reasonable to do so, taking all circumstances into consideration.
Previous court judgments have emphasised the importance of alternative accommodation. However, the owner’s rights must also be considered. In the case of City of Johannesburg v Changing Tides 74 (Pty) Ltd & Others (2012), Judge Malcolm Wallis ruled that the landowner cannot be expected to provide free housing indefinitely for members of the community.
In a separate ruling, it was made clear that the owners also had an interest not to be deprived of the land without compensation. In the case of a lawful eviction, the interests of both parties must be fully considered, a process which could take years.
A court normally weighs up all relevant factors before it grants an eviction order. Even then, the order is usually not executed immediately.
An illegal eviction is where people are removed from the land against their will, and without the intervention of a court. This is a criminal offence for which a prison sentence may be imposed.
Alternative accommodation
A manual compiled by the Institute of Socio-Economic Rights that deals with evictions and alternative accommodation, states clearly that any limitation on private property rights resulting from the occupation of such property can only be of a temporary nature.
It may continue only until such time as the state intervenes and provides suitable alternative accommodation. In practice, however, this poses a serious problem, as most municipalities do not have the capacity, or are unwilling, to intervene.
Where the state fails to intervene, the landowner in principle has a claim for Constitutional damages based on the curtailment of his or her property rights.
Municipalities have a Constitutional obligation to make land available for alternative accommodation for people who are evicted.
This has been confirmed in various court rulings, in particular the Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another (2010) judgment, which ruled that this duty includes a responsibility to make emergency housing available in cases where people urgently require alternative accommodation.
In terms of ESTA, a landowner must, under certain circumstances, prove that alternative accommodation is available.
Seen from all angles
It is easy to view the sensitive matter of eviction solely from the perspective of the landowner, or that of landless people who have no housing, or that of the municipality.
And it is easy to become emotional and angry: landowners often suffer losses as a result of land invasions. People who stand to be evicted usually have no safety net and may face a life on the streets.
Municipal officials already feel overwhelmed by the enormous demand for housing and services that have to be provided with limited budgets. This means that everyone has to work together to proactively seek solutions.
Demand for housing near cities and towns is considerable and, since the rapid pace of urbanisation is unlikely to be reversed, we shall continue wrestling with such demand for years to come. Where conflict does arise, timely mediation is likely to be of great assistance in stabilising the situation and finding solutions.
Unfortunately, it is not helpful when opportunists use the thorny issue of housing and evictions to lobby for a moratorium on evictions and EWC. Lawful evictions will always be necessary.
Without this, frustrations will increase, resulting in conflict, hampering orderly housing development and stunting economic growth. But it is also vital to approach any eviction with great circumspection and empathy, and to proactively seek alternative accommodation for the people concerned. Municipalities have an important role to play in this regard.
Occupation of land
Until 1998, occupation of land without the landowner’s consent was a criminal offence. After that, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act was passed, which scrapped the criminalisation of unlawful occupation, although certain actions, such as inciting people to occupy land unlawfully, remain criminal offences.
It is now a criminal offence for a landowner to evict unlawful occupiers without a court order. The Trespass Act, however, still applies, which says it is a criminal offence to trespass on someone’s land without their permission.
However, when trespassing becomes unlawful occupation, a court order is needed to remove such person or persons. Swift action is therefore crucial.
Land invasion or illegal occupation occur when there is a degree of permanency, and where the person has already erected a structure with the intent to stay. When this happens, the person is not merely a trespasser, but an illegal occupier.
Agri SA, with the help of attorneys, has compiled a comprehensive information document on the rights of landowners and the process that should be followed in such cases. It is available to all members, and has been cleared with the police.
Shared responsibility
The protection of property rights and the state’s obligations in terms of land reform and providing access to housing are two sides of the same coin.
All parties concerned have rights, obligations and aspirations in this regard. This responsibility remains vested in the state, as has been confirmed in several judgments. The problem arises when a failing state does not act proactively to make land and housing available, and to act swiftly against unlawful land occupiers.
The views expressed in our weekly opinion piece do not necessarily reflect those of Farmer’s Weekly.
Email Annelize Crosby at annelize@agrisa.co.za.
(Emphasis by SD Law*)
* SD Law, is a law firm specialising in evictions. Our specialist eviction lawyers assist landlords and tenants with the legal eviction process. Contact us for help with the evicting a tenant from residential, commercial, or farm property. Our motto is to respect, recognise and ethically fulfil our responsibilities to both landlords and tenants in the high EQ resolution of the eviction equation. Fairness and equity always.
Between June 30 2017 and May 3 2018, 11 inner-city buildings in Johannesburg’s central business district were raided at the behest of the then-minister of police, Fikile Mbalula, and the then-mayor of Johannesburg, Herman Mashaba. Collectively, the buildings were raided more than 20 times, with some being raided as many as five times in 10 months.
The residents of these buildings, represented by lawyers acting on behalf of the Socio-Economic Rights Institute (Seri) are challenging the constitutionality of section 13(7) of the South African Police Services Act, and the grounds on which these raids were conducted. The matter, Residents of Industry House and Others vs Minister of Police and Others, was heard before a full Bench of the high court in Johannesburg on Monday. Judgment was reserved.
At this point, it’s worth recapping the events that led to the court case. In several raids, as many as 80 officials from the South African Police Service (SAPS), the Johannesburg metropolitan police department (JMPD), the department of home affairs and the City of Johannesburg descended on the buildings. Sometimes they would arrive in the early hours of the morning. Residents, some of whom were partially clothed and aggressively woken from their sleep, were forced out onto the streets. The officials demanded that the residents produce identification documentation and, while outside their homes, they were fingerprinted and body-searched. If residents failed to produce documentation, they were arrested.
Residents were made to wait for hours at a time while the police searched their homes. After the searches, residents returned to their homes to find that their doors had been kicked in, locks cut, partitions torn down, groceries and property left in disarray and, in some cases, money and valuables stolen. During the raids, residents were threatened with eviction, arrest and deportation and when they asked on what basis their homes were being raided, no warrant was ever produced.
For all but two of the 20 raids, the police obtained written authorisation to conduct raids in terms of section 13(7) of the SAPS Act. This section authorises the police to conduct warrantless searches on anyone and any property that falls within a cordoned-off area for up to 24 hours “where it is reasonable in the circumstances in order to restore public order or to ensure the safety of the public in a particular area”.
Former mayor Mashaba championed the raids as part of a so-called urban renewal initiative to bring back “law and order” and crack down on criminality in the city. The police used general crime statistics to obtain the written authorisation to conduct the raids. They also relied on commonly held prejudices about the residents whose homes they sought to raid, accusing them of surviving by “begging at robots” and describing them as “foreigners from Zimbabwe and Lesotho”. The police and the City of Johannesburg had neither evidence nor reasonable grounds on which to violate the privacy and dignity of the residents in these buildings.
The raids were used to gather information about the residents of the buildings. They targeted unlawfully occupied buildings with residents who were under threat of eviction and were seeking alternative accommodation from the City, and they specifically targeted foreign nationals.
Police officers motivated for the written authorisation by arguing, as stated in their legal affidavits, that the raids would form part of a plan to “assert the authority of the state” and that they would “aspire for… maximum arrests”. Section 13(7) of the SAPS Act gave the police and the City the power to suspend the constitutional freedoms of the residents to carry out an ill-informed and discriminatory project to “clean up” the City. The residents are litigating the legality and constitutionality of these raids.
But here lies the paradox: those entrusted with upholding the law crossed over into criminality by using the law to bypass existing laws and legal procedures to conduct the raids.
Legal searches
Both the Criminal Procedure Act and the Immigration Act provide the police and immigration officers with powers to conduct searches with a warrant. The purpose of obtaining the warrant is for the courts to make a decision based on provided “information on oath that there are reasonable grounds” to conduct a search.
By using section 13(7) of the SAPS Act, the police bypassed these laws and substituted the safeguards of judicial oversight available in the Criminal Procedure Act and Immigration Act with the mere discretion of an ordinary police officer. Police officers were reported to have arrested anyone who looked foreign and could not provide identification immediately, including South Africans who officials felt “looked too dark”.
The racial and ethnic profiling that formed the basis for these arrests and breached the protections found in both the Immigration Act and the Constitution. But even more harmful is that state-endorsed xenophobia legitimises public violence against foreign nationals.
Police misconduct
In terms of section 205 of the Constitution, the police are mandated “to prevent, combat and investigate crime” and “protect and secure the inhabitants of the Republic and their property”. Their conduct during the raids went against their constitutional mandate.
Residents were treated as criminals: they had their privacy and dignity violated, their homes invaded and property destroyed or stolen by the police. Families with young children, young and elderly people, women and men alike — were terrorised for no reason other than being poor, possibly being foreign nationals and for living in an area that supposedly has high crime levels.
An elderly woman living with her children and grandchildren was accused of operating a creche and selling drugs to make a living. Residents’ committee members were deliberately sought out and accused of hijacking the buildings they lived in and of keeping illegal firearms. In none of the 20 raids were any illegal firearms found. Residents asking the police questions were often met with threats of violence or were promptly assaulted.
Police conduct during the raids epitomises the impunity with which the police have been known to act and illustrates disdain for the rights and humanity of people. Is it possible that the police treated the residents like this because they knew that they would have limited access to justice? The Socio-Economic Rights Institute (Seri) sees this case as an opportunity for the courts to acknowledge that the residents were wronged and to affirm their rights to dignity and privacy.
The legitimacy required for the police to conduct their duties depends, in part, on the public’s perception. Communities that the police serve deserve to trust and feel protected and respected by them. However, their degrading and humiliating treatment of the residents only served to further erode public confidence in the police.
The presumed criminality of those people who are policed and the criminal conduct of the police who raided their homes shines a light on the crisis in policing in South Africa. Section 13(7) of the SAPS Act was used to justify a violation of the residents’ constitutional rights to privacy and dignity as part of a project that envisions Johannesburg as a city that belongs to some to the exclusion of others.
We cannot support an “ends justify the means” style of policing that encourages conduct that tramples on people’s rights. Neither can we accept the othering of groups that the police and the City have decided are simply undesirable. Our history begs us not to.
Thato Masiangoako is a researcher at the Socio-Economic Rights Institute in Johannesburg
Source: Mail and Guardian (some emphasis by SDLaw*)
*SD Law, is a Cape Town law firm, of specialised Cape Town eviction lawyers. Contact us for help with the eviction process, or any violation of constitutional right.