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lockdown Archives | Eviction Lawyers South Africa

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:

Cape Town suspends metro cops involved in eviction of naked man

By | COVID 19, Eviction news, Evictions

Reprinted from the Mail & Guardian. By Lester Kiewit – 2020-07-01

metro cops suspended over shack evictions
Cape Town’s executive director for safety and security, Richard Bosman, said in a statement on Wednesday night that an investigation into the incident is under way, with disciplinary proceedings expected to be implemented.

 

The City of Cape Town has moved to suspend four law enforcement officers who were shown on video evicting a naked man from his shack during a demolition of informal dwellings in Khayelitsha on Wednesday.

The video, widely circulated on social media, shows several metro police officers surrounding a shack while two officers push the unidentified man out of his home.

The man is tackled to the ground, while another police officer is shown kneeling on his back. Onlookers attempting to assist are pepper-sprayed.

It’s believed the man was bathing at the time of the eviction.

Cape Town’s executive director for safety and security, Richard Bosman, said in a statement on Wednesday night that an investigation into the incident is under way, with disciplinary proceedings expected to be implemented.
“We are in the process of suspending four staff members involved in the incident, pending the outcome of the investigation. The suspension also ensures that staff are not targeted while on duty. We are saddened by the conduct depicted on the video footage, and we do not condone any forceful and dehumanising conduct by our staff members,” Bosman said.

The City said their primary purpose was to carry out anti-land invasion operations to protect land earmarked for housing development, but added that it does not condone violence by law-enforcement staff.

“The City takes these allegations very seriously,” Bosman said.

The land in question in the Empolweni settlement has been subject to a legal battle, with the City acquiring an eviction order to remove people, because the property has been earmarked for development.

The City government came under fire in April after it embarked on evictions in this area, even though lockdown regulations to curb the spread of the coronavirus explicitly ban the exercising of eviction orders.

After a ruling by the Western Cape high court, only 49 households have been given rights to temporarily remain on the land until after the lockdown.

“After the removal of illegally built structures, new attempts are made to invade again on a daily basis … The City must also maintain this recent court order, which the community is aware of,” the Democratic Alliance-led local government’s statement said.

Social justice group Ndifuna Ukwazi — which has been assisting people since the first evictions in April — said that it will be calling for Bosman, and mayoral committee member for safety JP Smith to be held accountable for the “abhorrent violation of the rights to dignity, privacy, and housing” of the man.

*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 want to know the cost of eviction.

Further reading: