On Monday, 29 June 2020, the full bench of the High Court in Johannesburg delivered a judgment declaring section 13 (7) (c) of the South African Police Services Act 68 of 1995 (the SAPS Act) constitutionally invalid.
The full bench found that the former Provincial Commissioner failed to apply her mind to the template-based applications for the authorisations which led to the warrantless raids of the applicants’ homes and simply rubber stamped the applications brought to her. The raids in the residents’ homes were “carried out in a manner that was cruel, humiliating, degrading and invasive” and demonstrate an egregious abuse of, and infringement of the residents’ constitutional rights to privacy and dignity, the court held.
The full bench held that the decisions to issue the authorisations fall to be set aside, in terms of sections 6(2)(e)(i) and (ii) of PAJA respectively, as they were issued for a reason not authorised by section 13(7) of the SAPS Act and for an ulterior purpose or motive which is to intimidate the applicants into vacating the so-called ‘hijacked buildings’.
In its judgment, the court ordered the legislature to cure the constitutional defect within 24 months and pending the correction the section is to be read as excluding any private home and/or any person inside such private home.
Khululiwe Bhengu, SERI attorney representing the residents said: “The courts continue to interpret the constitution in a way that vindicates the rights of the poor. Because of this judgment poor residents of the inner city can enjoy their homes without the fear of being raided by the police.”
On 19 June SERI made a submission to the State Attorney in response to his call for civil society organisations to make written and oral submissions concerning the challenges faced by those in Rental Housing Schemes as a result of the COVID-19 pandemic and subsequent lockdown.
SERI’s submission advocates for an appropriate response for tenants in the inner city of Johannesburg, raises concerns with the cancellation of lease agreements due to rental arrears and addresses the on-going unlawful evictions or threats of evictions faced by tenants during lockdown. The submission further engages with appropriate interventions by the South African Police Services, the Rental Housing Tribunal and the municipality.
In conclusion, SERI proposes the following pragmatic solutions:
Read the full submission here.
On 12 June 2020, SERI researcher Thato Masiangoako spoke to New Frame's Musawenkosi Cabe for a podcast episode about police brutality for Radio New Frame. In the podcast, Masiangoako and Cabe discussed the excessive use of force by law enforcement during the nationwide lockdown instituted in terms of the Disaster Management Act, 2002. In the discussion, the nature of abuses witnessed during the lockdown were analysed in relation to other examples of police violence post-1994.
Masiangoako argued that the lack of accountability for previous incidents of police violence has contributed to the public being desensitised to acts of police brutality. She argued that the middle and upper class have been able to be shielded from the reality of police brutality because it is largely meted out against poor and marginalised groups in South Africa who are predominantly black. What the lockdown did was shine a harsh light on the issue of police brutality in a way that was not been possible before.
In the podcast, Masiangoako and Cabe also discussed why the South African public's outrage at the death of George Floyd in the United States helped to draw attention to local incidents police brutality and why it was a catalyst for South Africa's government to finally address the issue publically.
SERI’s work in the ‘Securing a Home’ theme involves protecting and fulfilling the right to adequate housing by challenging unlawful evictions, and promoting access to basic services such as water, sanitation and electricity. SERI has been at the forefront of efforts to prevent evictions which lead to homelessness, to press for the in situ upgrading of informal settlements, and to prevent unfair water and electricity disconnections.
This thematic area has always been central to SERI’s research, litigation and advocacy work. SERI assists over 80,000 people to resist unlawful evictions from their homes in informal settlements, private homes and inner-city buildings. As a result of the lockdown, all South Africans who do not work in essential services were required, by law, to stay at home. Staying at home, practicing physical distancing, and following a strict hygiene regimen remain the best methods of stopping the spread of COVID-19. However, as noted by the UN Habitat, these simple preventive public health measures are almost impossible to follow for those who are homeless, or who live in unsafe or overcrowded conditions. Evictions that lead to homeless further aggravates this vulnerability.
Calls for Moratorium on Evictions and Disconnection of Basic Services
In mitigating the impact of the pandemic, SERI has partnered with various social justice organisations to initiate and support calls for a moratorium on evictions during lockdown. This collective effort successfully resulted in the imposition of a blanket moratorium on evictions through Regulations enacted by the National Command Council. The moratorium was, however, subsequently limited at Alert Level 4 to allow parties to apply for and be granted eviction orders, provided that any order of eviction shall be stayed and suspended until the last day of Alert Level 4. This position has since been retained in terms of the Level 3 Regulations.
SERI endorsed and contributed to recommendations made by the Centre for Applied Legal Studies (CALS) and Ndifuna Ukwazi respectively, to the National Command Council that Regulation 19 (of the Alert Level 4) and Regulation 36 (of the Alert Level 3) be amended to reflect a full moratorium on the institution and hearing of eviction proceedings. The moratorium should also extend to the execution of eviction orders and all home demolitions, for the entire duration of Alert Level 3 and 4.
The call for a moratorium on evictions was further supplemented by an urgent call for immediate action to suspend and resolve water and electricity disconnections. On 23 April, SERI in collaboration with Ndifuna Ukwazi, Lawyers for Human Rights, Consortium for Refugees and Migrants in South Africa, Legal Resource Centre and ProBono.Org addressed a statement to the National Command Council, relevant Cabinet Ministers and respective Provincial Departments of Human Settlement. The statement addresses the insufficient measures currently in place to safeguard against landlords disconnecting a tenant’s electricity and water connection during the lockdown. The organisations called on the National Command Council and the relevant provincial and municipal task teams to suspend all water and electricity disconnections (even in instances where accounts are in arrears) until the lockdown is lifted.
Litigating against evictions
SERI has been concerned of the prevalence of evictions that were instituted by various municipalities despite the explicit prohibition of evictions under Alert Level 5.
On 22 April 2020 , the City of eThekwini and its contracted security agency, Calvin Family Security Services demolished 14 homes in the eKhenana informal settlement. The eKhenana informal settlement was established in August 2018 on a piece of vacant land in Cator Crest. Following their occupation, the City attempted to demolish and unlawfully evict the occupiers on several occasions. On 27 December 2018, SERI challenged these on-going evictions against the occupiers. The matter was postponed to allow for both parties to file their supplementary affidavits. In the interim, the court interdicted the municipality and its land invasion unit from continuing with evicting or demolishing homes in the eKhenana Informal Settlement. The court also restricted the residents from erecting any new structures.
However, the municipality continued to illegally demolish homes in the settlement. On 13 February 2019, Abahlali, represented by SERI, approached the Durban High Court on an urgent basis to interdict eThekwini Municipality from demolishing homes in the settlement. The court granted the interdict and instructed officials of the Land Invasion Unit together with leaders from Abahlali to convene a joint inspection in the settlement in order to seek agreement on the demarcation of the site.
The evictions on 22 April 2020 were conducted without a court order and while the interdict was still in effect. SERI filed an urgent application to the High Court for an interdict, contempt and compensation for the damage to the property. The matter was settled and an undertaking was signed on 24 April 2020 wherein the City undertook to “refrain from demolishing, burning and removing or disposing of the Applicant’s informal housing structures in the informal settlement or from causing this to take place”. However, minutes after the judgment was issued the eThekwini Municipality’s Anti-Land Invasion Unit attacked the occupation and shot one of the occupiers who was rushed to hospital with serious injuries.
Between April and May 2020, SERI has participated in a series of panel discussions looking at how Covid-19 is effecting South African society. The discussions, hosted by The Forge, are aimed at exploring and expanding our understanding of the socio-political issues being highlighted by the COVID-19 pandemic. SERI has facilitated a discussion on illegal evictions during the COVID-19 lockdown.
In the discussion SERI's Edward Molopi was joined by S'bu Zikode, the founding president of Abahlali baseMjondolo and Kelly Kropman of Kropman Attorneys. The discussion traced illegal evictions in South Africa to a long history of various modes of forced removals. The participants noted a distressful trend of a growing list of private owners and municipalities showing little regard for the ban on evictions laid down as part of the COVID-19 response package. Centrally, the discussion highlighted individual and collective rights that people have and how they can go about enforcing those rights. Kropman argued that, in eviction cases, the interest of justice should always take precedence over whether or not someone has paid for their occupation, "we shouldn't view people's values, around evictions, as purely as that of an economic story", she added. Zikode argued for a more equitable distribution and access to land through "realising the right to land" and "the removal of land as a commodity."
Other relevant media engagements
On Tuesday, 9 June 2020, SERI’s Lauren Royston made a presentation to the UN-Habitat’s Participatory Slum Upgrading Programme (PSUP) webinar session on COVID-19 response in informal settlements. The PSUP strives to provide a platform of exchange and learning from cases around the world that can be adapted and applied in developing integrated and inclusive responses to COVID-19. This session formed part of the second series of webinars on COVID-19 response by the PSUP.
Royston’s presentation framed land administration in off-register contexts and highlighted the COVID experiences in Informal Settlement and inner-city context. People living in dense informal settlements and occupied inner-city buildings are among the most vulnerable in a crisis. Any crisis, especially one of the magnitude of the COVID-19 global pandemic, brings inequality into sharp focus. It is the most vulnerable who are at high risk due to their living conditions: tenure insecurity, densely populated areas, inadequate household water and sanitation, little or no waste management, and invisibility in official data systems.
The PSUP will host two other sessions in the series focusing on livelihoods and community empowerment and the third focusing on environmental sanitation and health protection