GroundUp: When the state neglects property rights

Last year, the community of Lwandle was in the spotlight, when hundreds of informal settlement residents were evicted from SANRAL owned land. During the evictions shacks were torn down and people were dispossessed of their belongings. Some people say they have never got their possessions back.

Veronica Lujabe “lost everything” during the Lwandle evictions and says she still gets emotional when she thinks about that day. “I have gone to the police to fill in an affidavit and lodge a claim for the things that I lost during the evictions, but till today I have heard nothing about my claim.

“I remember just staring that day watching about 30 men tear down my shack which had all of my belongings inside. We lost clothes, furniture, appliances and more important my children lost all their school books and textbooks. Things that could’ve been saved during that day also got lost or damaged because it was raining hard. That day traumatised not only me, but my children too,” said Lujabe.

Xolani Saziwa, who is on the community leadership committee in Lwandle said it was not easy getting belongings back once they had been taken by officials. “We were told that goods would be taken for safe-keeping in a place in Gordon’s Bay. Other belongings are just dumped somewhere. Then it is up to you to go and claim them, but that does not always work out. Goods are not labelled so it is hard to identify what belongs to who. At times during evictions, when the shack is being demolished, things get damaged because the demolishing is done without order or care,” said Saziwa. In such cases, “people need to be compensated.”

Zainab Abrahams, communications officer at the South African Board for Sheriffs, said goods were not confiscated on an eviction order, but merely removed from the premises to allow the owner to take proper unrestricted control over his property.

Abrahams explained that eviction orders should indicate to the sheriff where unclaimed goods should be stored. “If silent on this, it is taken out on the street or public area. Normally on an eviction order the sheriff is not required to remove and store the goods. If so instructed the sheriff should allow enough time for collection. This can have a cost implication, like transport and storage. With mass evictions, record keeping and labelling is problematic. The instruction on the [eviction order] should be clear.”

Councillor Benedicta van Minnen, the City’s Mayoral Committee Member for Human Settlements, said that the City does “does not confiscate any goods at all and will occasionally only remove material, like wood and zinc, as a last resort.” She said, “This will only occur after the Anti-Land Invasion Unit (ALIU) has had to repeatedly demolish the same unlawful structure or structures. The removal of material is usually for safekeeping purposes only and the alleged offenders are free to collect it within a prescribed period, which is usually a month.”

Sometimes goods are damaged too. Lwazi Mlonyeni also lost his belongings during the Lwandle evictions. “I lost appliances, furniture, my bed. Everything. Because during the evictions, some shacks were demolished and some were set alight because they [the officials carrying out the evictions] wanted to make their job quicker. I have claimed for my goods, but since last year June, I have heard nothing about my claim. I have written to the sheriff’s office and I have opened a case with the police, but I have heard nothing. All I want is to be compensated for the things that I lost,” said Mlonyeni.

Sheldon Magardie is the director of the Legal Resources Centre in Cape Town. “This is a very serious problem,” he says. “In all the eviction cases we deal with, when the City stops an eviction as it is happening, or gets an interdict, the ALIU loads the material onto trucks and that’s the last people see of their materials. In some cases when people want their goods back, they are told to contact the ALIU.”

He says, “We never see the goods being catalogued. So there’s no way of determining what belongs to which person. They just take the goods and dump them at the ALIU offices. It’s very difficult for people to identify what’s theirs. Sometimes [the authorities] refuse to return material on the basis that it will spur further occupations.” But he explains that the law is clear on this. “There was a case ruled on by the appellate division that the person executing the eviction has no right to destroy the [occupant’s] materials in an eviction. I’m not aware of a law that allows materials to be confiscated.”

In that case which was ruled on by the Supreme Court of South Africa in 1993, Nigo Mpisi asked the court to award him damages because even though he had occupied land unlawfully, when his shack was taken down, the “constituent materials and the contents of the shack were set alight”. The court found in favour of Mpisi and awarded him R1,521 plus legal costs.

Magardie continues, “The Constitution makes it clear that no one can be arbitrarily deprived of their property. In this case the materials are not being treated with any degree of care or concern for the dignity of the owners. Because these materials are owned by people with meagre resources they [still] should not be treated [with any less respect].”

“The Constitutional Court and international human rights law make it clear that evictions must be carried out humanely,” says Magardie. “It has been difficult for us to litigate on this, because it has occurred in the context of large land occupations. By the time [these matters are] resolved the people who were removed have moved on.”