Today GroundUp News published an excellent article by SERI board member Sandra Liebenberg, entitled "What the law has to say about evictions".
The article discusses progress made in evictions law since the Grootboom judgment was handed down in 2000 by the Constitutional Court. Liebenberg argues that while this ruling has helped to transform evictions law in South Africa, the question remains: "What do the Grootboom judgment and housing legislation mean in practice for people facing eviction or demolition of their homes?" She also discusses the very relevant issue of "what counts as a home" in the eyes of municipalities and the law.
Today SERI will launch an urgent intervention application in the Fischer case, on behalf of those who occupied the Marikana informal settlement in Philippi on or before 30 June 2014. SERI is intervening to ensure that the City of Cape Town does not confirm the interim interdict issued by the Western Cape High Court in January 2014.
SERI argues that the interdict is strikingly similar in wording to the one obtained and used by SANRAL in the eviction of Nomzamo informal settlement. SERI fears that despite the City's assurances, it will use the interdict to circumvent the protections of the Constitution and the PIE Act to illegally evict the families living at the Marikana informal settlement. The case will be heard at 10am on 1 September 2014 in the Western Cape High Court.
In December 2011 the Constitutional Court handed down judgment in the Bapsfontein (Pheko) case, finding the removal of thousands of people from Bapsfontein by Ekurhuleni Metropolitan Municipality unlawful, and ordering the municipality to provide land to the evictees “within the immediate vicinity of Bapsfontein”. The residents are represented by Lawyers for Human Rights (LHR) and SERI made a submission to the court as amicus curiae.
A series of events and non-compliance by the municipality led to the Court enrolling the matter again, a decision that arose out of the extraordinary events which have occurred since the judgment was handed down in 2011.
The enforcement and contempt proceedings were heard in the Constitutional Court on 12 August 2014. SERI was again admitted as amicus curiae, represented by Adv Tembeka Ngcukaitobi. SERI argued that it is equitable for the Court to issue a declaratory order that the municipality is in contempt of an order handed down on 12 March 2014, and that any punitive or structural consequences of the declaratory order cannot be addressed without a joinder of the Mayor or the Municipal Manager, the functionaries who bear constitutional and statutory obligations to ensure compliance with court orders. SERI argued that a rule nisi calling upon the Mayor and the Municipal Manager to show cause why they should not be joined as parties to the application and why the orders have not been complied with would be a just and equitable order.
On 28 August 2014 the Court handed down an order declaring the municipality in breach of its constitutional obligations by failing to abide by the two court orders. The Court ordered the Mayor and City Manager to show cause why they should not be joined to proceedings, and for the municipality to identify to the Court any other office-bearers or officials who are responsible for compliance with orders of the court.
SERI has developed a new research output called Community Practice Notes, in which we document the socio-economic struggles of community-based organisations (CBOs) in different settlement contexts in South Africa.
Published in August 2014, our first community practice notes are a series on informal settlement struggles for development, in which we examine how CBOs in four informal settlements in South Africa have organised and mobilised for development, particularly around the in situ upgrading of informal settlements.
The Informal Settlement Series documents and analyses the relationship between evictions, development, community organisation and mobilisation, local politics, protest and the use of courts. The four settlements profiled are: Makause, Rooigrond, Thembelihle and Slovo Park.
Today the Johannesburg High Court ordered that two house rules being imposed on residents of the Ekuthuleni shelter are an unjustifiable infringement on the residents’ rights to privacy, freedom and security of the person and human dignity. Judge Wepener interdicted the City of Johannesburg and its service provider, Metropolitan Evangelical Services (MES), against enforcing these rules at the shelter.
Ekuthuleni shelter was provided by the City to some of the residents of Saratoga Avenue who were relocated after the Blue Moonlight judgment by the Constitutional Court in 2011. The City outsourced the management of the shelter to MES, a Christian organisation that runs shelters and provides other social services for homeless people in the inner city. The City contracted MES to apply its “managed care model”, which it implements in its own homeless shelters, in Ekuthuleni. The City argued that Ekuthuleni is an overnight facility “akin to hotels, hospitals and student residents” and does not constitute a “home”. However the Judge found that the managed care model primarily caters for the supply of overnight facilities and is “not developed to accommodate persons in an emergency or temporary situation, as ordered in Blue Moonlight.”
The City and MES further argued that because the residents’ stay at the shelter is meant to be temporary and short-term, the infringement of certain constitutional rights was justifiable. The court found that “whether a period of six months twelve months or longer was foreseen is of no consequence as it had turned out that some of the persons who were the beneficiaries of the order of the Constitutional Court are still, some three years later, housed by the City pursuant to that order.”
The court found that “whilst the [Saratoga Avenue evictees] fall in a category of persons who require temporary or emergency accommodation, they do not fall into the category of persons who normally visit an overnight shelter” i.e. homeless and destitute individuals who seek overnight accommodation on an ad hoc basis.
On the day-time lockout rule, which forces all residents out of the shelter between 08:00 and 17:30 during the week (allegedly to encourage them to seek employment opportunities), Judge Wepener found that this rule results in “residents being exposed to dangers inherent in street life and inhibits their freedom in material respects and thus clearly infringes on their right to freedom, security and dignity.” Practically, this means that if the residents “should feel unwell or wish to attend to some private or personal matter, it must be done or suffered elsewhere than the place they stay.”
The High Court also found that the policy that disallows spouses and life partners from living together at the shelter is unjustifiable, with “humiliating consequences” which "compromises and disrupts the family as a unit; it creates emotional distance in a relationship; the inability to live as a family represents a loss of support for them and one another; it creates an additional financial burden on the couple’s limited financial resources; couples must implement ways to mitigate the lack of communication that the rule imposes on them; the most basic associative privileges connected to a marriage or permanent relationship are denied to them."