Officers of the court must ensure evictions are carried out in a humane manner and in accordance with the law – which they have failed to do on a number of occasions.
The brutal demolition of homes along the Jukskei River in Alexandra, Johannesburg is by no means an isolated example. In many evictions, the sheriff of the court effects forceful and violent removals of occupiers with the help of the Red Ants Security Relocation and Eviction Services (Red Ants) and the SAPS.
On 22 October 2018, 159 people living in a building on Marshall Street, Johannesburg were evicted by the sheriff, SAPS and private security guards. Most of the people evicted were informally employed as street vendors, domestic workers and taxi drivers. During the eviction, their personal belongings were destroyed, windows were broken, and their lives halted.
A two-plate stove was thrown out of a window on the second floor, a refrigerator was left broken on the stairs of the third floor and its door on the second, food items were left to rot on the floor, and kitchen stands and televisions were damaged.
The occupiers of this building were given no notice that they were about to be evicted. Evidence from the sheriff’s returns of service indicates that between 2016 and 2017, the sheriff was directed on more than one occasion to erect notice boards to inform the occupants of the building about the proceedings. Each of the returns stated that the door to the property was locked, including to the Marshall Street building which has three entrances and was home to more than 100 people. This puts in question whether the sheriff attempted to serve the notice or whether he was negligent in executing the court orders.
The Constitution grants everyone the right to equality, dignity, privacy, freedom and security, and adequate housing. The legal framework protects people from being evicted from their homes without an order of court made after considering all the relevant circumstances. An eviction is only lawful if alternative accommodation is provided to people who would be rendered homeless. If a court finds an eviction order appropriate, the presiding officer may instruct a sheriff to execute it.
A sheriff is an unbiased individual appointed by the minister of justice as an officer of the court with the power to serve court documents, including notices, summons, warrants and court orders, including orders of eviction. The role of the sheriff is inextricably linked to the outcomes of eviction court proceedings. When serving a notice of motion and further processes, the sheriff must inform the occupiers of the nature of their matter in a language they will understand, including their right to present their personal circumstances to the court.
Personal circumstances include information such as the number of women and children who occupy the property, their right to housing and whether they will be rendered homeless by an eviction order. By law, the sheriff must notify anyone with an interest or who may be affected by the outcome of an eviction. Serving notice affords people the opportunity to respond to the allegations against them. This is the only way that people are made aware of pending proceedings and are able to take action to avoid displacement.
As an officer of the court, the sheriff is required by law to treat everyone with dignity and respect, including ensuring that belongings are not destroyed during an eviction. The sheriff, the Red Ants and the SAPS often use violence, intimidation and unjustified threats against occupiers.
Although an eviction requires that the occupiers vacate the property, the sheriff and his entourage acted unlawfully when they used violence and force to remove the occupiers from their homes in Marshall Street. The police opened fire on the occupiers when they attempted to collect their belongings and they were assaulted by private security guards. Because this eviction took place in the morning after some had left for work or school, and before others returned home from night shifts, the occupiers were unable to salvage any of their personal belongings. They were left with the food in their stomachs and clothes on their backs.
Had the sheriff affected proper service in terms of the court order, the occupiers would have had the opportunity to exercise their rights by representing themselves, seeking legal advice, or taking steps to defend their homes. They could have set their personal circumstances before the court and would have been given the right to alternative accommodation.
The process sheriff was negligent in fulfilling his duty to inform the residents of their pending eviction, which made the process illegal. The sheriff, private security and SAPS should be held accountable for the violation of the rights of these occupiers, and of occupiers in other cases where the sheriff has gone as far as to evict the wrong people and damaged their belongings and livelihoods in the process.
No one, including the sheriff, is above the law. Evictions are demeaning and so officers of the court must ensure they are carried out in a humane manner and in accordance with the law.
Facing an eviction is difficult enough; helplessly watching your life and personal belongings destroyed compounds that difficulty and is a deplorable violation of the humanity of the most vulnerable. The sheriff has a duty to uphold justice and to ensure the police and private security understand their obligations to operate lawfully in any court-ordered matter.
As lawyers acting on behalf of marginalised groups in eviction matters, and as members of the public, we all have a role to uphold the rule of law and to hold duty bearers to account. Misconduct can be reported to the Board for Sheriffs. DM (emphasis by SDLAW*)
Tshepo Skosana is a candidate attorney at the Socio-Economic Rights Institute (SERI)
*Simon Dippenaar & Associates is a national law firm with head offices in Cape Town, now operating in Gauteng and Durban, comprising eviction lawyers and property attorneys, specialising in eviction notices and the eviction process for residential, commercial and farm properties across South Africa.