Land occupiers in Mayfield intend to bring contempt of court action
About 50 people who occupied vacant land in Mayfield, East of Johannesburg, were left homeless for the third time in two months after being evicted by metro police last week.
All three evictions were done without court orders and despite ongoing litigation between the occupiers and non-profit organisation Mina Nawe Housing Developers, which owns the land.
The first eviction was conducted by SAPS and the Ekurhuleni Municipality Police Department (EMPD) on 6 May, about a week after the land occupation started. The second eviction came three weeks later (28 June). The most recent was on 2 July.
On 25 June, Judge Fiona Dippenaar in the South Gauteng High Court ruled the first eviction unlawful as there was no valid court order. But this did not stop EMPD, SAPS and Mina Nawe from continuing evictions.
One of the occupiers, Khanyisile Mashele, said, “This has been very stressful on us … The court has not assisted us in any way because it has not stopped the EMPD from evicting us … It was just a waste of time and money.”
Mashele said some of the evictees were now living in a church hall nearby as they had nowhere else to go and most of them were struggling to get enough money to buy shack materials to rebuild.
PIE requires a court to consider whether the occupiers include vulnerable people and whether they will be left homeless, in which case the state must provide alternative accommodation.
Nkuna said court papers were never served on the occupiers so they were unaware of the action against them.
Judge Dippenaar said Mina Nawe had approached the court to get an interdict against the occupiers. She had granted an interim order to have the occupiers evicted because Mina Nawe appeared unopposed, but she had instructed Mina Nawe not to use that court order until it had filed supplementary papers.
Mina Nawe filed the papers on 9 May, but the eviction happened three days prior.
“How on earth did that happen?” Judge Dippenaar asked Advocate Msingathi Mlisana, representing Mina Nawe.
Mlisana denied that Mina Nawe had used her draft order to evict the occupiers. “[Mina Nawe] did not give out any instruction to carry out an eviction … It had no role in what the police did and it is up to [the police] to say why they [evicted].”
Judge Dippenaar said she was not convinced that Mina Nawe followed procedure. She ordered the eviction unlawful because there was no finalised court order at the time it was executed, and she set aside the order she had made on 10 May.
Sibusiso Nkomo, one of the directors of Mina Nawe, told GroundUp that the company now intended to evict the occupiers using the PIE act.
After the order was set aside, the occupiers moved back onto the land on 25 June. Three days later, EMPD and SAPS returned to evict the occupiers again without a court order.
The occupiers went back to court after filing an urgent application to stop the evictions.
Judge Ramarumo Monama, presiding, said Nkuna should have brought the matter as one of contempt of court rather than an urgent application, because “the order that you want me to make is already there” (Judge Dippenaar’s ruling on 25 June).
He said the occupiers had a right to be on the land until the owners obtained a court order. Anyone who evicted them was therefore in contempt of court.
Nkuna said metro police had interpreted the setting aside of the order differently – that the occupiers needed an order that explicitly said they had a right to be on the property.
Judge Monama dismissed the application, saying the court could not rephrase an order that effectively existed.
However, Advocate Emmanuel Sithole, representing EMPD, said metro police were misled by Mina Nawe, who gave it the order from 5 May (which was set aside on 25 June).
“When EMPD [evicts people], we are not doing it on our behalf. We are doing it on instruction from the court and on behalf of Mina Nawe … [The occupiers] can nail [Mina Nawe] all they want but it cannot be directed towards EMPD because we are just the messenger,” Sithole told GroundUp.
He said EMPD had been unaware that the matter was in court prior to the eviction.
“We have been made a party here, so now we know about this and we won’t be involved from here on out,” he told GroundUp on 1 July. But the next day, EMPD was on site evicting the occupiers for the third time.
Mashele said the occupiers will proceed with a contempt of court application.
The occupation started on 27 April when about 100 people from surrounding areas started demarcating stands and building structures on the vacant land. Some were unemployed and could no longer afford to rent. Others wanted to build their own homes.
Leader of the occupation, Steven Xulu, said some occupiers had been living on the land for a week, while others, including himself, were busy building when EMPD and SAPS evicted them on 6 May.
“The first thing I did was approach EMPD and ask them to show me a court order, but they couldn’t show it to us,” said Xulu.
He said the police started burning materials. The community retaliated by protesting in the street. To disperse the crowd police fired rubber bullets, said Xulu.
Xulu and ten other people were arrested for trespassing and public violence. Nine were released on R500 bail, but two remained in custody due to complications with their IDs.
Maria Nkosi had spent one night in her shack. She was cleaning when she heard “screaming and loud noises”. “I went to see what was happening and that’s when I saw the police demolishing and burning structures,” she said. “I left with my handbag, ID and some pots … They also took my materials so I don’t know how I am going to rebuild now.”
Victor Matsomane was erecting his shack at the time of the eviction. He and some of the other occupiers are the grandchildren of former farm workers who used to work the surrounding land before it was developed. They say the land was donated to them and the community when the owner relocated in 1991.
“We have suffered for too long. This land belongs to the community so why shouldn’t we live here?” asked Matsomane.
But Mina Nawe’s Nkomo said the former farm workers had been misled. He said the 16,000 hectares of land was bought by Mina Nawe for R7.2 million in 1996 and the occupied land was intended for a new township with 1,700 residential stands.
“When we started Mina Nawe, our aim was to build affordable housing for the community … so we hope that the government will buy about 30% of residential stands for RDP and low cost housing,” he said.
Nkomo could not provide a timeframe for the development, but the aim was to get the sewers and water running by early 2020. He said he was happy that the occupiers took the matter to court because it would show them that the land did belong to Mina Nawe. He also said he was thankful for the support from EMPD in assisting him with evictions.
“I don’t understand how [the occupiers] think they can have a right to be on my dwelling … Let’s say they do have the right, who is going to supply them with water and sanitation? How do I get water connected for my enemy?” asked Nkomo.“You would think talking to them would make them understand but they have just escalated this issue … My biggest mistake was making myself accessible … I have been too lenient on them.”
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)