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Lockdown rights enforced for residents of informal settlements in Cape Town

By | COVID 19, Eviction law case summaries, Eviction news, Evictions

The power of social media is immense. So much more than a mere communication tool, it’s a cornerstone of citizen journalism and can be one of the most effective ways in which ordinary people can tell important stories as they happen. What’s more, content posted on social media can be the grounds for legal action and meaningful change, as a case concerning lockdown rights recently heard at the Western Cape High Court clearly showed.

The naked man

On 1 July 2020, a video of a naked man being dragged out of his shack in an informal settlement in Khayelitsha went viral on social media. The man concerned, Bulelani Qolani, was removed from his home by City of Cape Town officials who were members of the Anti-Land Invasion Unit (ALIU). They destroyed his home shortly afterwards.

The ALIU is a specialised unit tasked with deciding which structures should be demolished on land they claim has been invaded. This work is conducted without a court order and typically refers to homes in informal settlements, which means that it usually affects some of South Africa’s most vulnerable people.

The video caused an outcry. It reminded people of the brutal forced removals that took place during apartheid, and demands for the judicial oversight of evictions and demolitions during the national state of disaster were heard. The South African Human Rights Commission (SAHRC), a state institution that is mandated to promote respect for human rights, stepped forward in response.

Together with the Housing Assembly and Bulelani Qolani, the SAHRC brought a case against the City of Cape Town as well as the Minister of Human Settlements, the Minister of Co-operative Governance and Traditional Affairs, the National Commissioner of the South African Police, the Minister of Police and the Western Cape Provincial Commissioner of the SAPS.

Lockdown rights infringed – not an isolated incident

The incident that occurred in Khayelitsha on 1 July wasn’t the only one of its kind. In fact, there were several others that took place during alert levels 3 and 4, despite that fact that evictions were meant to be suspended until the last day of the alert level period.

Some of the demolitions and evictions that occurred were as follows:

  • On 9 to 11 April 2020 in Empolweni Informal Settlement in Makhaza, Khayelitsha, the ALIU demolished structures on land owned by the City. Urgent relief was given by the Western Cape High Court to a number of residents whose structures were demolished. On 17 April, the court granted an interim order, ordering the City to return building materials confiscated from Empolweni and authorising residents to re-erect and occupy structures there for as long as the lockdown continues.
  • On 15 May 2020 in Ocean View, Kommetjie, evictions and demolitions took place on land that is privately owned by the Ocean View Development Trust. The City denied that evictions were conducted at the time, and said that ALIU had acted within its mandate to demolish illegally erected structures provided that they were unoccupied.
  • On 29 June 2020 in Hangberg, Hout Bay, the SAHRC received a complaint alleging that City officials had demolished a structure. The Western Cape High Court declared the City’s conduct unlawful and unconstitutional and emphasised that home demolitions could not be carried out without a court order during alert levels 3 and 4.
  • On 13 July 2020 in Zwelethu, Mfuleni, structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, which joins city-owned land, were demolished. Many of the area’s residents are desperately poor and unemployed and have been the subject of at least seven evictions carried out without a court order.

“Bleeding and in pain”

Of course, there was also the incident that received the most attention – the one that took place in Khayelitsha on 1 July. The official court papers refer to the affidavit that Bulelani Qolani gave, in which he states that while the law enforcement officers were approaching, he went inside his home and prepared to bathe: 

“He stood outside his dwelling naked and asked to be allowed to finish his bath. The law enforcement officers sprayed his neighbour with pepper spray and forcibly gained entry into Mr Qolani’s dwelling, carrying batons and guns. On entering his structure, they were already pushing up the roof to tear it apart. 

“He asked to be shown an eviction order and told them it was illegal to evict during the lockdown period. They ignored his requests, he said, handled him physically and violently, pepper sprayed him and forcefully removed him from his house, whilst still naked and in full view of residents. As Mr Qolani tried to re-enter his house, he states they shoved him to the ground and one official knelt on his back while another held him down to stop him moving.

“Eventually, after quite a struggle, Mr Qolani got back into his house and sat on his bed, his head bleeding and in pain. Whilst he was still inside, he states, the demolition was completed.”

A precedent-setting judgment

On 20 and 21 August 2020, the case between the SAHRC as the first applicant and the City of Cape Town as the first respondent was heard at the Western Cape High Court. And on 25 August 2020, judgment was delivered.

In their judgment, Judges Shehnaz Meer and Rosheni Allie declared that the City of Cape Town ALIU will not be allowed to evict people or demolish occupied or unoccupied structures without a court order while the country remains in a state of national disaster. This landmark ruling is binding in the Western Cape and may set a precedent for other provincial courts too.

What’s more, if any evictions or demolitions are conducted with a court order in place, these must be conducted “in a manner that is lawful and respects and upholds the dignity of the evicted persons”. City officials are expressly prohibited from using force, the judges decreed, and from destroying or confiscating any material on the property concerned.

SAPS members will now have to be present during evictions and demolitions to ensure they are done lawfully, in line with South Africa’s Constitution and “in accordance with the SAPS’ constitutional duty to protect the dignity of the persons evicted”. In addition, the City was interdicted and restrained from considering, adjudicating and awarding any bids or tenders received in response to a tender specifically focused on the demolition of illegal formal and informal structures in Cape Town.

The court ordered the City to return all building material and personal possessions taken by the ALIU since 1 May, and to pay R2,000 to the people identified by the Economic Freedom Fighters.

But there’s more to come. In October, additional hearings will be held to determine whether demolitions or evictions can take place without a court order once the state of national disaster has ended. It’s likely that an important conversation has begun.

Contact us

Simon Dippenaar & Associates, Inc. is a firm of specialist eviction lawyers, based in Cape Town and now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.

Reprinted from sdlaw.co.za

Further reading:

No evictions or demolitions without a court order, judges rule

By | Eviction law case summaries, Eviction news, Eviction orders, Evictions

Reprinted from BizCommunity, by James Stent – 2020-08-27

The City of Cape Town’s Anti-Land Invasion Unit (ALIU) will not be allowed to evict people or demolish their structures, whether occupied or unoccupied, without a court order while the country remains in a state of national disaster.
Bulelani Qolani, who was evicted from his shack in July. The Western Cape High Court on Tuesday ruled that the City of Cape Town must have a court order to evict someone or demolish a home during the state of national disaster. Archive photo: James Stent / GroundUp

Bulelani Qolani, who was evicted from his shack in July. The Western Cape High Court on Tuesday ruled that the City of Cape Town must have a court order to evict someone or demolish a home during the state of national disaster. Archive photo: James Stent / GroundUp

Judges Shehnaz Meer and Rosheni Allie in the Western Cape High Court on Tuesday afternoon granted an interim relief stating that the City must have a court order to evict anyone or demolish a home.

The case was brought by the SA Human Rights Commission following a string of demolitions and evictions by the City of Cape Town in recently-occupied informal settlements. The removal of Bulelani Qolani from his shack by City officers while naked was widely covered in the media. Other respondents listed in the case included the Ministers of Human Settlements, Cooperative Governance and Traditional Affairs, and Police, and SAPS national commissioner.

Judges Meer and Allie also ordered that in cases where a court order is obtained for an eviction or demolition, the City must execute the order in a lawful and respectful manner that “upholds the dignity of the evicted persons”. They said the City is “expressly prohibited from using excessive force” and may not destroy or confiscate material belonging to those evicted.

The court has given the City a week to return “all building material and personal possessions” taken by the ALIU since 1 May and ordered that it pay R2,000 to the parties cited by the Economic Freedom Fighters in its submissions to the court.

The City was further interdicted from “considering, adjudicating and awarding” bids and tenders related to demolition services for the ALIU.

The court also instructed SAPS members present at a court-sanctioned demolition or eviction to ensure that the actions are being lawfully executed and to “protect the dignity of the persons evicted”.

Costs of the application will be shouldered by the City of Cape Town, except for the costs of the hearing of 25 July.

Mayor Dan Plato has said he has instructed the City’s lawyers to appeal the decision. He said that the judgment sets a dangerous precedent for all landowners. “If left unchallenged, the interdict would make it almost impossible for landowners to protect their property from unlawful occupation and to prevent people from establishing homes, albeit unlawfully, on the property of others. The knock-on effect of the large-scale orchestrated land invasions we have seen is simply devastating for Cape Town, its communities, residents in general and the City.”

In October, hearings will be held to determine whether or not the municipality has the authority to execute demolitions or evictions without a court order after the end of the state of national disaster.

This article was originally published on GroundUp.

Some links added by SD Law.
Simon Dippenaar & Associates, Inc. is a firm of specialist eviction lawyers, based in Cape Town and now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.

Further reading:

High court declares the City of Cape Town’s lockdown evictions illegal

By | Eviction law case summaries, Eviction news, Evictions

Reprinted from the Mail & Guardian, by Lester Kiewit – 2020-08-25

The Western Cape high court has found the City of Cape Town had acted illegally in launching evictions and demolitions on what it called “unoccupied dwellings” during the lockdown period.

The case, brought by the South African Human Rights Commission (SAHRC) and civic group Housing Assembly, was laid  after the city and its law enforcement evicted a naked man, Bulelani Qolani, from his shack at the Ethembeni informal settlement in Khayelitsha in July.

During that time South Africa was in level three of national lockdown to mitigate the spread of the coronavirus.

Under lockdown regulations, no evictions can take place. But the city argued the regulations did not preclude dwellings that were not occupied.

In its case, the applicants cited examples in Hangberg, Ocean View, and Khayelitsha, where law enforcement and the city’s anti-land-invasion unit (ALIU) had evicted people and torn  down their homes during the coronavirus outbreak. This, they said, exposed people to the virus.

‘Forced removals’

In the judgment, high court Judge Yasmin Meer, with Judge Rosheni Allie concurring, likened the eviction of Qolani as “reminiscent of apartheid-era brutal forced removals”. She said that law-enforcement officers determined, without a court order, that homes on occupied land should be demolished.

In the judgment in the application in two parts, Meer ruled that the city and the ALIU were interdicted from demolishing or evicting anybody from any shack, hut, tent or dwelling for the duration of the national state of disaster, except when a court order is obtained.

The order reads that, if court permission is granted for any eviction, law enforcement or any contractor appointed by the city should undertake to execute the eviction in a manner that upholds the dignity of the evicted people. They are also prohibited from using excessive force or from confiscating the personal belongings of individuals.

The South African Police Service has also been ordered to ensure that, if they are present, all national laws are obeyed in conformity with the Constitution.

Further down in the judgment, the court was scathing of the City in how it decided whether a dwelling was unoccupied.

“The applicants contend that the City’s position that the ALIU is entitled to demolish structures it has determined unoccupied solely by sight … City officials, in their own discretion, decide whether a structure is occupied and no provision is made for a person affected by the decision to have recourse to a court before the structure is destroyed … Occupiers are deprived of their possession of the structures by City officials who sit in judgment of their own cause.

“The City has in my view not provided a substantial response to the charge of the applicants … that the ALIU determines which dwellings are unoccupied and singled out for demolition in an arbitrary, capricious, and unfettered manner,” Meer’s ruling reads.

Homelessness, poverty and desperation

The ruling sided with the SAHRC and Housing Assembly’s contention that current ongoing land occupation is being driven by homelessness, poverty and desperation.

This is in contrast to the City claiming on several occasions that land occupations are being driven by political characters.

“It is the poorest of the poor, the downtrodden, and unemployed who seek refuge in informal settlements and erect structures to provide shelter,” the judgement reads.

“This is especially so during catastrophic times we are forced to endure while the coronavirus pandemic rages,” it adds.

The court has also declared that although confiscated possessions of evicted people must be returned to them, compensation for the loss of personal possessions should also be paid to individuals who have suffered.

“Compensation for loss of personal possessions in the sum of R2 000 per person would be fair in all circumstances. A list of names of affected persons must be provided to the City.”

The court ruling could have far-reaching consequences throughout the country as municipalities worry about ever-increasing lockdown homelessness and land occupations.

National response

The national department of human settlements, which was a respondent in the case, said it had supported the SAHRC’s efforts to prevent the city from evicting people.

“The department’s views are aligned with the council and with section 26 of the Constitution, [the] Disaster Management Act and lockdown regulations. Arbitrary evictions are illegal: a court order must be sought and must be given effect. Without a court order, after people have lived in a space for over 48 hours, then evictions are illegal. This requires vigilance on [the part of] municipalities but, most importantly, a proper plan for urbanisation and the urban poor,” said department spokesperson Yonela Diko.

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Are you affected by this or other eviction issues?

Simon Dippenaar & Associates, Inc. is a firm of specialist eviction lawyers, based in Cape Town and now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.

Further reading: