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Illegal evictions Archives | Eviction Lawyers South Africa

Is it legal to evict anyone during lockdown? No, say legal experts

By | Eviction news

An army of red ants members arriving at Kokotela informal settlement in Lawley outside Ennerdale.

An army of red ants members arriving at Kokotela informal settlement in Lawley outside Ennerdale. (Ntwaagae Seleka, News24)

Evicting people from their homes during the national lockdown against the spread of Covid-19 is an offence and should be punishable by a fine or imprisonment.This is the view of legal experts amid the eviction of land occupiers in Lawley outside Ennerdale at the weekend.

News24 reported the Red Ants had demolished scores of shacks and houses in Lawley on Saturday, leaving many people homeless. They returned on Tuesday to continue demolishing structures.

This has led to a public outcry and has prompted Gauteng Human Settlements, Urban Planning and Cooperative Governance and Traditional Affairs MEC Lebogang Maile to clarify the actions of the City of Johannesburg at a briefing on Tuesday.

The government has made it clear that no evictions would be allowed for the duration of the lockdown “regardless of whether it is a formal or informal residence or a farm dwelling”.

But the issue of illegal land occupation during the lockdown could equally not be tolerated, Maile said on Saturday.

Following criticism, he said on Tuesday the destroyed structures were “actually new structures that were not occupied by anyone”.

This is an important consideration when it comes to the legality of destroying dwellings that are already occupied.

According to advocate and former judge Anna-Marie de Vos SC who specialises in socioeconomic and land rights litigation, there was a difference between stopping land invasions and evicting people from their homes.

“If you are in the process of invading land, in other words you’re putting up your structures and materials, that is invasion, and that can be stopped without a court order. That is called counter-spoliation. Spoliation is the concept of taking the law into your own hands.

“The argument of the municipality is that the [land occupiers] are spoliating – in other words, they’re taking land unlawfully, and therefore you can stop them with a counter-spoliation action.”

Catch-22 situation

But, said De Vos, there was a thin line between invading land and already living on it.

“The test would be: Do they already sleep there? Are their possessions there? Do they cook there? 

“Once that has been established – even if it’s just for a day or two – then people can’t be evicted. But if they’re still in the process of erecting buildings, then you are entitled to do that because it’s not an eviction you are stopping a land invasion.”

She added she had dealt with many cases where people have been evicted, even though it was clear from examining their dwellings they lived there – indications such as curtains, mattresses or cooking equipment. “That is not allowed.”

According to her, the situation under the lockdown made it exceptionally difficult for NGOs to determine the merits when it came to evictions, because of restrictions of movement and gaining access to the courts.

“You need to get a letter from the Legal Practitioners’ Council for every case – so it becomes a Catch-22 situation. When people are being evicted unfairly, they have no access to legal practitioners and legal practitioners have no access to them. You can’t get a letter unless you have a client and you can’t get a client unless you have a letter to go there.”

According to Louise du Plessis, the head of the land and housing programme at Lawyers for Human Rights, once people have occupied structures such as shacks, municipalities have to bring a court application to evict them, and the current lockdown regulations did not allow for that.

“Destroying homes where people already live is illegal. There is no way people can be evicted if they already live in those structures – not without a court order. For now, the government cannot touch them. They can bring an application after the lockdown and have them evicted then.”

What is the legal recourse for evictees?

Du Plessis said if it could be proven that people have been living in their structures, even for a short time, removing them was unlawful.

She echoed what De Vos said, adding it was impossible to get a case number without consulting with people, which was restricted during the lockdown.

“Anyone evicted unlawfully during the lockdown will have a good case to take to court on an urgent basis to go back to where they were,” said Du Plessis.

“Civil society – such as Lawyers for Human Rights, the Legal Resources Centre and Socioeconomic Rights Institute – should be able to access these people and assist them,” said De Vos.

“Second, NGOs, which specialise in social matters, should engage with the government – especially on municipal level – to stop them from illegally evicting people. If what I’m seeing is an illegal eviction and not merely stopping a land invasion, it’s a disgrace.”

Structures ‘incomplete, unoccupied’

On Tuesday, Maile said, subsequent to the demolitions in Lawley, “we had engagements with the mayor of the City of Johannesburg seeking clarity on the matter and he explained that the structures that were demolished were actually new structures that were not occupied by anyone”.

“What happened at Lawley last Sunday, was that we had planned a visit to the area along with the mayor of Johannesburg in order to undertake an assessment of the situation on the ground following the demolition of incomplete and unoccupied structures.

“These structures were demolished to prevent land invasions,” Maile said, adding the land was unoccupied.

On Sunday, the chairperson of the Portfolio Committee on Human Settlements, Water and Sanitation, Machwene Semenya, raised concerns over alleged evictions carried out by municipalities in Durban, Lawley in Johannesburg, and Cape Town.

In a statement, Semenya said the evictions were “unfortunate and inappropriate”, especially during the lockdown that was declared by President Cyril Ramaphosa to curb the spread of Covid-19.

“The evictions glaringly diminish the intentions of the lockdown and expose already vulnerable people to Covid-19 and other harmful elements such as crime and rainy weather.

“When the president and the executive announced that there will be no evictions, we understood that those instructions would be respected by all.

“It is therefore unacceptable that municipalities have undermined the spirit of the lockdown and have shown clear disdain and lack of empathy for the people, especially the poor,” Semenya said.

“We urge the municipalities to desist and refrain from any planned evictions henceforth, and to abide by the regulations.”

Semenya cautioned against the illegal occupation of land by communities; however, due to the lockdown, she said she hoped there would be no evictions.

“Illegal occupation of the land undermines the law of the country and should not be tolerated.”

On Monday, the City of Cape Town said it had delivered material to 49 households who illegally occupied a piece of land in Khayelitsha so as to adhere to the interim court order for temporary relief to these illegal occupiers during the remainder of the Covid-19 crisis.

The court will assess the merits of the case after the lockdown ends.

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The sheriff in town: To serve and protect or harm and neglect?

By | Evictions

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.

[Evictions] The sheriff in town: To serve and protect or harm and neglect?

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)

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*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.