On Thursday, 6 August 2020, SERI in collaboration with the International Commission of Jurists (ICJ) published an information sheet on key legal principles in protecting housing and home in South Africa. It explains the meaning of “housing” and “home” and highlights the right to housing in the Constitution and International Law. It further explains what the Constitution and Internal Law say about eviction from homes.
In addition to this, ICJ’s Tim Fish Hodgson wrote a complementary op-ed detailing the protections offered by the law to unlawful occupiers. “Unlawful occupiers of land have constitutional protection regarding their right to housing – because of, and not in spite of, the unlawfulness of their occupation. Local government municipalities that continue with evictions are in violation of Level 3 lockdown restrictions, as well as their broader legal obligations.”, he argues.
The Constitution, consistent with international human rights law, entrenches a right to adequate housing. Section 26 of the Constitution protects the right of access to adequate housing and provides that no one may be evicted from their home without a court order made after considering “all the relevant circumstances”
People in South Africa are often forced to make their homes in structures that are not “houses”. Too many people live on the streets, in makeshift structures we call “shacks”, or in houses which are unsafe, undignified and lack access to basic services like water, electricity and toilets.
People who are commonly described as “homeless” are those who live on the streets. They often have their property unlawfully destroyed, actions which have been condemned as unlawful by the Supreme Court of Appeal in Ngomane v City of Johannesburg. Despite the absence of a legal definition of “home”, “homeless” or “homelessness”, the law acknowledges that having a home and protecting yourself against homelessness is a very important human right central to the protection of human dignity. As the Constitutional Court explained in PE Municipality v Various Occupiers:
“…a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquility in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat.”