In 1986, Robert Cover of Yale Law School wrote, ‘Legal interpretation takes place in a field of pain and death’. In South Africa the question of inhumane evictions and eviction rights for occupiers runs rampant in the wake of the legislations enforced during apartheid, as well as the slow pace of reform experienced by many communities since the fall of this regime.
Section 26 of the Constitution of the Republic of South Africa, 1996, affords everyone the right of access to adequate housing.
Has there really been a change for the better?
This provision is a decisive break with the apartheid past, where forced evictions banished black people to the periphery of society. However, even today there are impoverished people evicted from makeshift dwellings and, in some cases, robbed of dignity entirely, with no alternative housing. The rights of occupants during evictions are in place to protect the vulnerable and marginalised, as well as safeguard the large-scale development and industry that is our economic future as a nation.
Good defence makes good neighbours.
In South Africa, the PIE Act expressly calls upon the court to balance competing interests in a principled way. This is aimed at promoting the constitutional vision of a caring society that shares concern and neighbourliness, while encouraging growth and development.
Similarly, in terms of Chapter 12 of the National Housing Code, authorities – such as municipalities – are required to provide housing assistance in appropriate emergency circumstances. Yet in South Africa there are several cases where local governments have consistently disputed their constitutional and statutory obligations regarding the housing situation in their respective jurisdictions. This is a major hindrance when it comes to enforcing occupier rights during an eviction and ensuring that proceedings remain humane.
Simon Dippenaar writes, ‘Hundreds of thousands of poor people live in abandoned buildings or informal settlements in urban areas because their meagre income, derived from informal street trading and insecure seasonal or domestic work, is insufficient to obtain better accommodation. Inner city accommodation is often not fit for human habitation because it is harmful to their health and dangerous.
Their occupation is a double-edged sword to the extent that they have to live in the city to conduct their informal trading and to take any other available employment, but while doing so, they expose themselves to dangerous, unhealthy living conditions and the occasional police raid, aimed at identifying illegal immigrants.
This is exacerbated by the fact that an increasing number of local authorities in the big urban centres of South Africa – Johannesburg, Cape Town and Durban – prefer to distance themselves from the housing crises that prevail in their areas of jurisdiction, by consistently disputing the fact and the extent of their constitutional and statutory obligations to provide access to adequate housing for people living in abject poverty’.
The recent Lwandle evictions have been prevalent in the media, with the City of Cape Town coming under widespread criticism for inhumane action, even with a court order in hand from February 2014. This is due to the delayed timing of the evictions, which left people stranded in the worst kinds of weather.
Balancing landlord and occupier rights.
When it comes to property owner rights when evicting, landlords can make things easier on themselves by observing due diligence. They’re urged to display grace and compassion regardless of how strenuous the eviction proceedings become. Section 23(3) of the Constitution states 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. No legislation may permit arbitrary evictions.’
Finding just and equitable outcomes for both the landlord and the occupiers.
Every landlord should have recourse to an expert property lawyer; one who can successfully navigate an eviction process, in line with the constitution. Each case needs a context-sensitive analysis to identify and action concrete solutions. Contact us today and get up-to-date legal advice regarding inhumane evictions and proceedings. Your first consultation is free. Fill in our form now and look forward to peaceful sleep.
