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Reprinted from News 24, by Jan Gerber. First published 13 December, 2019.

The City of Cape Town does not think that more than 600 people living in squalor in a church on Greenmarket Square constitutes an emergency.

This emerged during arguments in the City’s court application for an urgent interdict against foreign nationals living in the Central Methodist Mision church on Greenmarket Square.

The more than 600 foreign nationals sought refuge in the church after police forcefully dispersed a sit-in protest near the offices of the UN High Commission for Refugees (UNHCR) in October. They want the UNHCR to remove them from South Africa because of the xenophobic attacks.

On Monday, the City described the recent “sit-in” of refugees and asylum seekers in Greenmarket Square as a lawless action, a crisis and a situation which was damaging to tourism and reputation.

The City wanted an order prohibiting the sit-in and the flouting of health and safety by-laws, alleging that the group was affecting business in the area.

It also alleged that people had urinated and defecated in the streets, cooked over open fires, washed clothes and bathed around the church area, contributing to fire risks.

But Judge Kate Savage said everyone’s rights needed to be balanced and that those involved needed to find “an overarching solution”.

She ordered that a meeting be held between the parties, including the City, the Department of Home Affairs and the police.

However, when the matter was heard again on Friday, Savage was informed that a solution could not be reached.

“My Lady, it seems as if there is a deadlock,” advocate Adiel Nacerodien, for the City, told Judge Savage.

‘Human dignity has no nationality’

The sticking point proved to be finding alternative accommodation for the refugee and asylum seekers.

Nacerodien said the housing code prescribed that alternative housing could only be provided for evictions and homelessness or in cases of emergencies, such as fires and floods.

Advocate Seth Nthai, for the Department of Home Affairs, said he was “surprised by the stance of the City of Cape Town”.

He said they had a responsibility to provide housing and a safe environment.

“Human dignity has no nationality, it is inherent in all people,” he said.

Nthai also said the department was ready to begin with the verification of the refugees’ and asylum seekers’ identification, which would take about five days.

However, they couldn’t do it under the circumstances in which the refugees and asylum seekers were currently living.

The courtroom was packed with refugees and asylum seekers, most of them with tired, despondent expressions on their faces.

Judge Savage said it was an “untenable situation” that they were staying where they are.

Their spokesperson Jean-Pierre Balous told the court that they were about 500 refugees and asylum seekers, 90 undocumented foreign nationals, 68 asylum seekers who had lost their papers, and 268 children.

“If a solution can be found where people are treated as human beings…” he said.

Savage asked Nacerodien why it wasn’t an emergency.

“We all know this is a protest, my Lady,” he said.

He likened it to a situation of a hunger strike, saying if people refused to eat, they gave up their right to food.

“It is not an emergency in terms of the housing code,” he said.

“Is it not an overly technical approach?” Savage responded.

‘They have homes to go to’

Nacerodien said accommodation was a scarce resource and was supposed to be dealt with in an extraordinary situation.

“They’re not at risk of homelessness. They have homes to go to,” he said, while many in the public gallery shook their heads.

Savage said this allowed a situation where there was a “worrying lack of human rights”.

Nacerodien said that providing accommodation to refugees and asylum seekers was a core function of the Department of Home Affairs.

Balous disputed that the refugees had homes to go to, adding that they were homeless.

He said they couldn’t be prohibited from making fires, because they didn’t have another way to cook their food, and they didn’t have ablution facilities. He said the City had instructed neighbouring business not to allow them to use their bathrooms or provide them with water.

He also disputed that the refugees had harassed tourists and members of the public. Judge Savage said she viewed the situation as an emergency.

She asked Nacerodien if the City had accommodation available.

‘Implied eviction’

He said he would have to take instructions on it, and Judge Savage adjourned the court for an hour.

After the adjournment, Nacerodien said: “At the moment, the City is finding great difficulty in finding alternative housing.”

He said there had been an earlier offer from Gift of the Givers to provide the refugees and asylum seekers food, but he didn’t know if this offer still stood.

He said he could not get “firm instructions” from the City on providing ablutions.

Judge Savage said if she were to grant the City’s proposed order, it would be an “implied eviction”, as people couldn’t live without food or ablutions.

“What the applicant seeks is upholding the rule of law,” Nacerodien said.

“It was never the intention to create an eviction order by the backdoor.”

Judge Savage said: “It is of course very frustrating for the court to be faced by so intractable a situation.”

“We are not living there because we are happy with the conditions,” Balous said.

Judge Savage said they were back to where they were on Monday.

She asked Balous if he would like to file papers responding to the claims that they had harassed the public, to which he agreed.

“I remain of the firm view that this intractable situation must be resolved,” she said.

She also said she was “most dissatisfied” with the state of affairs.

Counsel, Balous and Judge Savage agreed in chambers to postpone the matter to January 22. Balous must file his papers by December 27.

Further reading:

Gauteng government in court over land invasions

Court declares shack eviction unlawful

Land occupation eviction process to come under spotlight

Evicting the homeless – municipality wrong