A PIE in the Face – Comments on the Government’s New Eviction Legislation

Here are three comments on the government’s “Prevention of Illegal Eviction from and Unlawful Occupation of Land” Amendment bill. Shortened to PIE, the bill seems to be a manifesto for landowners, and a kick in the teeth for shackdwellers. These comments are by Stuart Wilson, of the Centre for Applied Legal Studies at Wits University here, Jean du Plessis of the Centre on Housing Rights and Evictions, here, Koni Benson of the International Labour Research and Information Group (ILRIG) (here) and Marie Huchzermeyer of the University of the Witwatersrand (here).
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Comment on General Notice 1851 of 2006

PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND AMENDMENT BILL 2006

by
Stuart Wilson

CENTRE FOR APPLIED LEGAL STUDIES
UNIVERSITY OF THE WITWATERSRAND

30 January 2007

Contact details:
Mr. Stuart Wilson
Centre for Applied Legal Studies
University of the Witwatersrand
Private Bag 3
WITS 2050
011 717 8609
stuart.wilson@wits.ac.za

A INTRODUCTION

1. The Centre for Applied Legal Studies (CALS) is a non-profit research, advocacy and public impact litigation institute attached to the University of the Witwatersrand, Johannesburg. CALS’ comments on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Bill, 2006 (“the PIE Bill”) are based on its extensive engagement in housing rights research in, and public interest litigation on behalf of, poor, informal and inadequately-housed urban communities in the Johannesburg area.

2. CALS’ recent research work has encompassed the following housing rights-related themes:

• The impact of urban renewal on access to housing and basic services for poor and inadequately housed communities in the inner city of Johannesburg;

• The structure and dynamics of informal settlement populations; and

• The impact of large-scale forced evictions and/or relocations on access to economic opportunities and social services in informal communities.

3. The housing-related legal assistance CALS has provided to its clients (which range from individuals to communities of over 6000 people) has encompassed:

• The defence and prevention of mass evictions, without the provision of alternatives, at the instance of organs of state as part of urban planning and regeneration initiatives;

• Efforts to compel the Johannesburg municipality to effectively implement informal settlement upgrading policies;

• The defence and prevention of evictions, without the provision of alternatives, at the instance of private landowners;

• The reversal of illegal water disconnections effected both by private landowners and by organs of state; and

• The defence and prevention of evictions at the instance of the Johannesburg municipality as part of its efforts to recover incorrectly calculated debt.

4. CALS therefore comments on the PIE Bill from an informed perspective and trusts that its submission will enhance the quality of the public discussion the Bill will undoubtedly continue to generate.

B THE PIE AMENDMENT BILL

Section 3 of the PIE Bill

5. Section 3 of the PIE Bill proposes that the application of the PIE Act be significantly narrowed. If the Bill is passed, the PIE Act will no longer apply to:

• Tenants and persons who occupied land “in terms of any other agreement” so long as the tenancy or other agreement has been validly terminated; and
• Persons who occupied land as its owner and have lost ownership of the land.

6. The explanatory memorandum states that this amendment is necessary in order to reverse the decision of the Supreme Court of Appeal in Ndlovu v Ngcobo; Bekker v Jika, (“Ndlovu”) which confirmed that the PIE Act applies to “holders-over” (i.e. persons who took occupation of land with the consent of the owner and/or the person in charge, which consent was subsequently withdrawn).

7. The memorandum characterises the impact of the Ndlovu decision as undesirable and states that “the Act should cover only those persons who unlawfully invade land without the prior consent of the landowner or the person in charge”. The memorandum does not say why the Act’s application should be restricted in this way.

CALS submits that Section 3 of the PIE Bill will create undesirable and constitutionally unjustifiable inequalities between groups of occupiers who are equally in need of the PIE Act’s protection. It will increase the likelihood and frequency of evictions which lead to homelessness. It may enable organs of state to evict occupiers of state-owned land without considering their needs for alterative housing.

8. The PIE Act is not just any legislation. It is constitutional legislation. Its purpose is to give effect to Section 26 (3) of the Constitution of the Republic of South Africa, 1996. Section 26 (3) states that:

“No-one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”

9. “Arbitrary evictions” may be defined as evictions which take place without due process and/or which take place for the wrong reasons. The constitutional injunction to consider “all the relevant circumstances” is an attempt to ensure that considerations counting for and against the execution of an eviction in a given context will be weighed carefully and judiciously before a person is deprived of access to their current home, or, indeed, to any permanent home. In Port Elizabeth Municipality v Various Occupiers (“Port Elizabeth Municipality”) the Constitutional Court had this to say on the purpose of the provision:

The judicial function [in adjudicating an eviction application] is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case.

10. The PIE Act, correctly, in CALS’ view, identifies a number of circumstances which must be taken into account before a decision is made. These are:

• How the occupier (s) came onto the land in question;
• How long the occupier(s) have lived on the land in question;
• The needs of elderly, disabled, child occupiers, and occupiers in female headed households; and
• The availability of suitable alternative accommodation.

As Port Elizabeth Municipality made clear, other relevant contextual factors can and must, where appropriate, be taken into account if doing so would tend toward a just outcome.

11. In essence, what the PIE Bill says is that if an occupier is a lease or bond defaulter, or occupies land in terms “of any other agreement” (a provision so frighteningly broad its impact can only be guessed at) the mandatory circumstances set out in the PIE Act no longer matter. It does not matter if a land owner wants to evict an elderly, disabled, female lease or bond defaulter supporting 5 children on to the streets in circumstances where she is unlikely to find anywhere else to live, at least in the short term. All that matters is that she defaulted in her lease and/or bond agreement. Moreover the PIE Act’s mechanisms for mediation and/or for the joinder of the municipality as housing provider of last resort are not to be extended to this person, simply because she is a lease or bond defaulter.

12. The PIE Bill envisages that a court will be able to rule that the PIE Act applies to bond or lease defaulter if it is satisfied that “the plight of a person is of such a nature that any act or omission by the owner or person in charge of land was calculated to avoid the application of” the PIE Act. This provision is very vague. It does not state what constitutes evidence of an ulterior motive, which is ordinarily very difficult to allege and prove, especially in application proceedings in which many occupiers are unlikely to be familiar with what is required to prove bad faith on the part of the landlord.

13. However, the fundamental point is that the good faith of an owner or landlord is hardly sufficient to guarantee the fairness of eviction proceedings brought against a bond or lease defaulter. What is required is a consideration of the social and economic circumstances of the occupier in question as well as the obligations that the state may have to provide that occupier with some form of alternative accommodation, at least in the short term. The PIE Act, as it currently stands, creates the framework for such a consideration. The PIE Bill seeks to place lease and bond defaulters beyond the protection of this framework. It does so arbitrarily.

14. CALS submits that the PIE Bill creates a situation which the Constitutional Court has expressly prohibited. It establishes “a hierarchical arrangement between the different interests involved [in an eviction application], privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home”. The PIE Bill says that, assuming the person seeking the eviction is acting in good faith, the existence of a lease or bond agreement (or “any other agreement”) on which the occupier has defaulted is the circumstance of paramount importance. In practice, the narrowing of application of the PIE Act is likely to convince Judges and Magistrates across South Africa that the legislature intends that this is the only relevant circumstance they need to consider before granting an eviction order.

15. This result would be unconstitutional for two reasons. First it would fly in the face of the constitutional injunction to consider all relevant circumstances before coming to a decision. Second, it would create an arbitrary distinction between equally very poor and vulnerable people who are party to lease agreements and those who are not. There is no reason to suppose that a tenant will ordinarily be any less likely to be rendered homeless by an eviction than a non-tenant. What matters is socio-economic status, not abstract legal status. The PIE Bill asks the courts to ignore socio-economic status and concentrate on a highly formalistic distinction between two legal statuses.

16. CALS has represented many hundreds of people against eviction at the instance of private landowners and organs of state. Many have been so-called “land invaders” – people who occupy land unlawfully because they simply have nowhere else to go. Others have been lease and bond defaulters. Because of the complexities of population movements and social change in urban areas over the past several years, many people live on the same land or in the same buildings as so-called “land invaders” in terms of a lease or bond. Alternatively, they live on different land but are often in exactly the same socio-economic position. Usually they are unemployed, informally employed or, at best, employed on the very lowest rungs of the formal labour market. They earn incomes which do not enable them to sustain a bond or a lease in accommodation anywhere within a reasonable distance of where they actually work.

17. Many of the rent or bond defaulters CALS has represented are people who have defaulted on their leases or bonds precisely because their socio-economic status has declined, either because they have been retrenched from their jobs, a major income earner in the household has died (often of HIV/AIDS) or their informal livlelihood strategies have been thwarted by an increasingly formalising and repressive local state, which perceives informal economic activity to be at odds with urban regeneration.

18. CALS submits that the PIE Bill, if passed, may allow many of these peoples’ housing needs to be completely ignored in court proceedings for their eviction, simply because, through no real fault of their own, they have defaulted on their lease or bond. The local municipality will not be asked to consider the provision of alternative housing (even on an emergency basis). A court will be effectively blind to the possibility that its order will leave the occupier(s) homeless.

19. In this regard, the PIE Act, as it currently stands, serves an important accountability function. It envisages that if a landowner is entitled to an eviction, but that eviction would leave the occupier homeless, a municipality will ordinarily be required to assist in the provision of alternative accommodation, or at least justify to a court why it cannot provide an alternative on the occupier’s eviction.

20. This was the situation in Modderklip East Squatters v Modderklip Boerdery (Pty) Ltd (“Modderklip”) , where the Supreme Court of Appeal prevented the execution of an eviction order in respect of 40000 occupiers in circumstances where the Ekurhuleni municipality would not provide alternative land to the occupiers. The Court was dissatisfied with the municipality’s explanation for its unwillingness to come to the occupiers’ aid.

21. All of the occupiers were very poor people who would have been rendered homeless, at least in the short term, if they were evicted. The court held that “to the extent that we are concerned with the execution of the court order, Grootboom made it clear that the government has an obligation to ensure, at the very least, that evictions are executed humanely. As must be abundantly clear by now, the order cannot be executed – humanely or otherwise – unless the state provides some land.” (emphasis added)

22. In these circumstances, the Court stayed the eviction of the occupiers and required the state to compensate the owner for the loss of the use of the occupied land for as long as it failed to provide an alternative. In effect, the municipality was held accountable for the situation for its failure to fulfill its constitutionally mandated function as housing provider of last resort.

23. It is true that the occupiers in Modderklip were not tenants. However, it is hard to imagine that the Supreme Court of Appeal’s ruling would have been unfair or inappropriate if the occupiers in Modderklip were defaulting tenants or bond holders.

24. The PIE Bill as it stands allows municipalities to escape responsibility for dealing with the very real housing crises which can be caused by evictions. Even where the municipality itself is seeking an eviction as landlord in terms of a validly cancelled lease, the PIE Bill does not envisage that it will be required to assist the occupiers it seeks to evict in finding any alternative at all. In circumstances where lease-holding occupiers of state-owned housing are often likely to be very poor and vulnerable people, this is perverse.

25. For all of these reasons, Section 3 of the PIE Bill (provided, of course, that it is not quickly declared unconstitutional once passed) will increase the likelihood of evictions which will render many desperately poor and vulnerable people homeless. As the Constitutional Court has said:

“It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence.”

CALS submits further that the Bill will not significantly alleviate the frustrations property owners and landlords have expressed at the difficulty of obtaining a court order to repossess property occupied by persons who have defaulted on their leases. It will make almost no difference to banks who wish to repossess property from defaulting bond-holders.

26. Although the memorandum to the PIE Bill does not expressly say so, Section 3 is doubtless an attempt to preclude the so-called “affluent tenant” from claiming the protection of the PIE Act. This is unnecessary. As the law currently stands, an “affluent tenant” is not given any substantive protection against eviction.

27. This is clearest from the decision of the Supreme Court of Appeal in Wormald v Kambule (“Wormald”) . There, in considering the nature of the court’s discretion in eviction proceedings to which the PIE Act applies, Maya AJA held that:

“An owner is in law entitled to the possession of his or her property and to an ejectment order against a person who unlawfully occupies that property except if that right is limited by the Constitution, another statute, a contract or on some other legal basis.”

28. The judge held further that “the effect of PIE is not to expropriate the landowner . . . it cannot be used to expropriate someone indirectly. The landowner retains the protection against arbitrary depravation of property under s 25 of the Bill of Rights. PIE serves merely to delay or suspend the owner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions.”

29. In the circumstances of the case, the judge held that it was clear that the occupier “is not in dire need of accommodation and does not belong to the class of poor an vulnerable persons whose protection was obviously in the foremost of the legislature’s minds when in enacted PIE. To my mind, her position is essentially no different to that of the affluent tenant, occupying luxurious premises, who is holding over.”. In the circumstances, the judge ordered the occupier’s eviction.

30. It is therefore clear that the PIE Act, as interpreted by the courts, does not protect affluent tenants. It is also clear that its application cannot lead to an expropriation of property.

31. The potential inconvenience to which the PIE Act does subject property owners and landlords is the cost of, and delay in, their repossession of property. These costs and delays may be occasioned by the court proceedings aimed at the exploration of an occupier’s personal circumstances. South African society is characterised by high levels of poverty, inequality and tenure insecurity. The majority of South Africans do not own land. In these circumstances, CALS submits, at least some delay for the purpose of ensuring a fair an equitable eviction process is not unreasonable.

32. However, the PIE Bill, if passed, will do little to reduce the costs and delays which currently burden property owners and landlords. Even if the PIE Bill is passed into law, owners and landlords will still be required to go to court to effect a lawful eviction. There is no reason to suppose that eviction proceedings after the amendment will be any shorter or less costly than they are now.

33. The solution to the problem of costs and delays in eviction proceedings (if they are really problems at all) is to make lawyers and courts function more effectively. It is not to prejudice potentially desperately poor tenants and former bond holders by removing them from the PIE Act’s protection.

34. Following the line of reasoning adopted in Wormald, it is unlikely that the PIE Act would be applied to protect an affluent bond defaulter, who could find alternative accommodation, in occupation of property repossessed in terms of a bond agreement. Indeed, in Standard Bank of South Africa v Saunderson and Others the Supreme Court of Appeal decided that a bank may execute against immovable property burdened by a bond in its favour, without even pleading its case in terms of Section 26 of the Constitution. All the bank as Plaintiff must do, is draw the Defendant bond holder’s attention to Section 26 (1) of the Constitution in its summons.

35. For all these reasons, CALS submits that the PIE Bill, if passed, will contribute to an increasing cycle of poverty, desperation and homelessness in South Africa. It will not significantly address the difficulties of property owners, banks and landlords who seek to repossess property from defaulting tenants and bondholders, affluent or otherwise.

Section 4 of the PIE Bill

36. Section 4 of the PIE Bill creates the offence of practicing “constructive eviction”. Section 2 of the Bill defines “constructive eviction” as:

“any act or omission, including the deprivation of access to land or to essential services or other facilities related to land, which is calculated or likely to induce a person to vacate occupied land or refrain from exercising access to land”

37. CALS welcomes the addition to the Bill of an inclusive definition of “constructive eviction”. In CALS’ experience, the disconnection of a property’s water or electricity supply is often a tactic employed by unscrupulous landlords or organs of state in order to encourage occupiers to vacate land without having to go to the effort of obtaining an eviction order.

However, CALS submits that the Bill should be strengthened to prevent explicitly the disconnection of water and other essential services to a property by an owner or a person in charge without a court order.

38. If the aim of the PIE Bill is to stop interference with an unlawful occupier’s access to land without process of law, it would be more effective to simply ban service disconnections altogether and explicitly allow for a court to order the reconnection of unlawfully disconnected services. Such a measure would be consonant with, and strengthen, the common law remedy of spoliation, which is itself directed toward the prevention of interference with possession of property without process of law. It would also be commensurate with Section 13 (1) (b) of the Gauteng Unfair Practices Regulations, 2001, made under the Rental Housing Act 50 of 1999, which forbids the termination of water, electricity and gas supplied by a landlord to a tenant without an order of court.

39. This would give occupiers unlawfully dispossessed of access to services a remedy additional to relying on a police investigation and prosecution, which can take many months if it happens at all. Indeed, although Section 8 of the PIE Act makes eviction without a court order a criminal offence, South African Police Service (SAPS) officers are notoriously reluctant to respond to complaints of illegal eviction. CALS is unaware of a single successful prosecution in terms of Section 8 of the PIE Act since its promulgation.

Section 5 of the PIE Bill

40. Section 5 of the PIE Bill repeals the distinction between occupiers living on land for less than six months, and those who have been living on land for more than six months. Its stated purpose is to eliminate unjustifiable discrimination between groups of people who are equally in need. This is welcome.

41. However, for the reasons set out above, the narrowing of the application of the Act envisaged in Section 3 of the Bill simply creates another arbitrary distinction between groups of occupiers who may be in the same socio-economic circumstances. Section 3 of the Bill therefore, to some extent, defeats the underlying purpose of Section 5. CALS submits that this is undesirable.

C SECTION 2 (d) OF THE RENTAL HOUSING AMENDMENT BILL

Section 2 (d) of the Rental Housing Amendment Bill allows for the “repossession of rental housing property” after a ruling of a Rental Housing Tribunal. To the extent that this amendment is intended to remove jurisdiction over evictions in terms of lease agreements from the Magistrates’ and High Courts to a Rental Housing Tribunal, CALS submits that this would be undesirable.

42. Section 2 (d) of the Rental Housing Bill is clearly intended to complement the narrowing of the PIE Act’s application envisaged in Section 3 of the PIE Bill. There are two reasons why it would be undesirable to allow a Rental Housing Tribunal to make a ruling which would have the effect of evicting a defaulting tenant.

43. First, Rental Housing Tribunals are not institutionally equipped to make the far-reaching decisions required to balance out the completing rights and obligations of landowners, landlords, occupiers and the state. Although Section 13 (3) of the Rental Housing Act allows a Rental Housing Tribunal broad powers of subpoena, the Act provides no explicit mechanism for holding municipalities accountable for performing their function as housing provider of last resort.

44. Second, allowing a Rental Housing Tribunal to order an eviction would be a violation of Section 26 (3) of the Constitution, which provides that no-one may be eviction from their home without an order of court. The Rental Housing Tribunal is not a court. Section 26 (3) of the Constitution clearly envisages that only a judicial officer, with the appropriately broad experience of the administration of justice and equity, ought to be allow to make an order depriving a person of access to their home.

D CONCLUSION

45. The PIE Act is an important and sensitive piece of legislation. After several years of application in its current form, the courts have, in theory at least, achieved an equitable balance between the rights and obligations of landowners, tenants, the landless and the state. A degree of legal certainty has also been achieved. Jurisprudence developed under the PIE Act and Section 26 of the Constitution may, in one sense, be summed up as follows:

• A property owner is entitled to possession of his or her property;

• Everyone is entitled to reasonable measure of tenure security – a place to rest their heads and call “home”;

• The state is the housing provider of last resort, at least on an emergency basis;

• Evictions which lead to homelessness will almost never be permitted;

• The state should participate in eviction proceedings in order to prevent evictions which lead to homelessness and to be accountable to property owners whose rights to property are unjustifiably infringed by the state’s failure to ensure adequate tenure security to all.

46. The preservation of these principles is essential to ensure the alleviation of poverty and the maintenance of social stability. The PIE Bill, as it stands, unjustifiably limits their application. In the interests of preserving them, the vague and potentially destructive provisions in Section 3 of the Bill should be expunged altogether.

47. For all of these reasons, CALS submits that that PIE Bill should not be presented to Parliament in its current form.

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Comment on General Notice 1851 of 2006: Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Amendment Bill, 2006 as published in the Government
Gazette No 29501 dated 22 December 2006

by

The Centre on Housing Rights and Evictions (COHRE)

15 February 2007

Contact details:

Jean du Plessis c/o Moray Hathorn
Acting Executive Director Partner
Centre on Housing Rights and Evictions (COHRE) Webber Wentzel Bowens
83 Rue de Montbrillant 10 Fricker Road, Illovo Boulevard, Johannesburg,
1202 Geneva, Switzerland 2196, South Africa
Tel +41.22.7341028 Switchboard: +27.11.530 5000
Fax +41.22.7338336 Direct: +27.11.530 5539
RSA Tel +27.82.5575563 Telefax: +27.11.530 6539
Email address: jean@cohre.org Email address: morayh@wwb.co.za
Website: www.cohre.org Website: www.wwb.co.za

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BACKGROUND

The Centre on Housing Rights and Evictions (COHRE) is a Geneva-based, international nongovernmental human rights organisation founded in 1994 as a foundation in the Netherlands
(Stichting COHRE). COHRE maintains offices in a number of countries around the world,
including South Africa. COHRE’s various offices coordinate global, regional and local
activities in pursuit of its mission, which is to promote housing rights for everyone,
everywhere.

COHRE has been granted Special Consultative Status by the United Nations Economic and
Social Council (ECOSOC, since 1999), and the Organisation of American States (OAS, since
2002). COHRE also has participatory status to the Council of Europe (CoE, since 2003) and
Observer Status with the African Commission on Human and Peoples’ Rights (ACHRP, since
2003).

Working closely with local partners in South Africa, COHRE has carefully studied the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill, 2006
as published in General Notice 1851 of 2006 contained in Government Gazette No 29501
dated 22 December 2006.

We have a number of concerns we urgently wish to bring your attention:

SUBMISSION

1. Municipalities are under an obligation under the Housing Code in Chapter 12: Housing
Assistance in Emergency Housing Circumstances to take a proactive approach to
dealing with people in desperate need whose immediate housing needs cannot be met
by then existing low income housing development schemes. Chapter 12 pertains to
people who find themselves “in an emergency housing situation such as the fact that
their shelter has been destroyed or damaged, their prevailing situation poses an
immediate threat to their life, health and safety, or they have been evicted, or face the
threat of imminent eviction.”
2. Municipalities are under a further obligation under the Housing Code in Chapter 13:
Upgrading of Informal Settlements to take proactive measures to secure the in situ
upgrading of informal settlements where feasible.

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3. Section 9 of the Housing Act and Paragraph 12.4.1 of Chapter 12 of the Housing Code
requires municipalities to investigate and assess the need for emergency housing within
their areas of jurisdiction and to plan proactively therefor. If the circumstances do merit
the submission of such a plan for approval to the Provincial housing department, the
municipality must submit one.
4. The enumerated categories of different Emergency Housing Situations catered for in
Chapter 12 of the Housing Code are listed under Section 12.3.5.1.
5. The guiding principle of Chapter 13 of the Housing Code is the minimization of
disruption and preservation of community within informal settlements. Thus, it
discourages the displacement of households and acknowledges that only in certain
limited circumstances may it be necessary to permanently relocate households that are
living in hazardous circumstances or in the way of essential engineering or municipal
infrastructure. Legal processes for eviction should only be initiated as a last resort.
6. Under either Chapter 12 or 13 of the Housing Code, rather than eviction, a municipality
must purchase the land on which an informal settlement is situated and upgrade the
settlement in situ, alternatively, provide alternative accommodation for the inhabitants.
7. In his judgement in City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006
(6) BCLR 728 (W) the judge summed up the housing policy as follows:
“The Housing Act imposes specific obligations on local government in this regard.
Section 9 requires every municipality to take all reasonable and necessary steps within
the framework of national and provincial housing legislation and policy to: ensure that
the inhabitants of its area of jurisdiction have access to adequate housing on a
progressive basis; set housing delivery goals in respect of its area of jurisdiction; identify
and designate land for housing development4 ensure that conditions not conducive to
the health and safety of the inhabitants of its area of jurisdiction are prevented or
removed; create and maintain a public environment conducive to housing development
which is financially and socially viable; promote the resolution of conflicts arising in the
housing development process; and initiate, plan, coordinate, facilitate, promote and
enable appropriate housing development in its area of jurisdiction.

In terms of section 2 of the Housing Act, municipalities must perform the above functions
in a manner which: gives priority to the needs of the poor in respect of housing
development, involves meaningful consultation with individuals and communities
affected by housing development; ensures that housing development is economically,

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fiscally, socially and financially affordable and sustainable; and ensures that housing
development is administered in a transparent, accountable and equitable manner and
upholds the practice of good governance.

THE EMERGENCY HOUSING PROGRAMME

The National Housing Code’s “Programme for Housing Assistance in Emergency Housing
Circumstances,” was adopted in terms of the Housing Act, (“the Emergency Housing
Programme”) and was a direct response to Grootboom’s ruling that the State’s positive
obligations in terms of section 26 of the Constitution include an obligation to provide
temporary relief for persons in crisis or in a desperate situation

“The Grootboom judgment furthermore suggested that a reasonable part of the national
budget be devoted to providing relief for those in desperate need….Consequently, this
Programme is instituted in terms of section 3(4)(g) of the Housing Act, 9997, and will be
referred to as the National Housing Programme for Housing Assistance in Emergency
Housing Circumstances. Essentially, the objective is to provide temporary relief to people in
urban and rural areas who find themselves in emergencies as defined and described in
this Chapter.”

Clause 12.3.1 of the Emergency Housing Programme defines an emergency as, inter alia,
a situation where

“the affected persons”…owing to circumstances beyond their control … are evicted or
threatened with imminent eviction from land or unsafe buildings, or situations where proactive steps ought to be taken to forestall such consequences or whose homes are
demolished or threatened with imminent demolition, or situations where pro-active steps
ought to be taken to forestall such consequences.”

The Programme makes funding available from the Provincial Departments of Housing for
emergency housing assistance.

The Programme requires municipalities to investigate and assess the emergency housing
need in their areas of jurisdiction and to “plan proactively” therefor. Where an emergency
housing need is foreseen municipalities must apply to the relevant Provincial Department of
Housing for funding for the necessary assistance. After approval by the MEC of the relevant
Provincial Department of Housing, the funding is made available to the municipality for direct
implementation of the assistance. In terms of the Programme the Provincial Department of
Housing may provide support to ensure the successful implementation of the assistance.

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While the Programme is flexible in order to cater for diverse situations, it does lay down
certain minimum standards. It requires that water and sanitation be provided and that
the floor area of a temporary shelter be at least 24 metres squared. Notably an amount
of R23 892.00, including VAT, may be made available to municipalities, per grant.”

8. Chapters 12 and 13 of the Housing Code in the main covers persons falling within a
socio-economic group previously disadvantaged by racial discrimination (and suffering
from ongoing socio-economic disadvantage), certain categories of which would now be
excluded from the protection of PIE, as proposed by the PIE Bill. The following are
categories of such persons (there are no doubt others) who would now be excluded
from the protection of PIE:
8.1 inner-city tenants who had to run the gauntlet of the Group Areas Act, and whose
tenancy has subsequently been terminated following withdrawal of rental payments
because of the failure of landlords to maintain the premises;
8.2 persons (black) who had their site and residential permits upgraded to ownership,
then took out bonds and then found themselves retrenched (and, as a result unable
to make the necessary payment in relation to their bonds). Such persons would
probably have been the victims of inferior education as a result of the operation of
the Bantu Education Act, No 47 of 1953 and thus at a disadvantage in a competitive
economic environment;
8.3 informal settlements which previously had legal status as emergency camps under
the Prevention of Illegal Squatting Act (PISA) and still remain vulnerable to eviction.
The legal history of one such informal settlement, Thembelihle (which is situated in
Lenasia, Johannesburg), is instructive, as other vulnerable communities currently
enjoying the protection of PIE have a similar status. The legal history is set out
below:
8.3.1 In terms of Administrator’s Notice 575 dated 28 November 1990 regulations for
the control and administration of Thembelihle by the administrator of the
Transvaal were published in the Government Gazette in terms of Section 6(6)
of the Prevention of Illegal Squatting Act number 52 of 1951;
8.3.2 In terms of Administrators Notice 633 dated 27 November 1991, Thembelihle
was declared to be a transit area in terms of Section 6(3) of the Prevention of
Illegal Squatting Act;

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8.3.3 In terms of Administrators Notice 311 dated 6 July 1993, Thembelihle was
declared to be a defined area outside a local authority as contemplated in
Section 2(11) of the Black Local Authorities Act 1982;
8.3.4 In terms of Section 2(11) of the Black Local Authorities Act:
“An Administrator may by notice in the official Gazette define for the purpose of
this sub-section an area outside a local authority area and exercise in such
area the powers conferred upon the City Council in a local authority area under
this act.”

8.3.5 On 3 December 1994 the Premier of Gauteng published Proclamation number
24 (Premiers) 1994 in an Extraordinary Provincial Gazette. This proclamation
was made in terms of the powers granted to him in Section 10 of the Local
Government Transition Act. The proclamation dealt with, inter alia, the
dissolution of certain local government bodies and their replacement with new
transitional local authorities. Section 2(2) of the proclamation read as follows:
“Administrators Notice no 310 of 6 July 1993, number 546 of 6 December
1993, number 633 of 27 November 1991 read with number 311 of 6 July 1993,
no 32 of 3 February 1993 and number 272 of 24 June 1992, are as from the
effective date repealed under section 13 (6)(a) of the Local Government
Transition Act, 1993, insofar as they apply to the area of the townships known
as Doornkop/West of Soweto, Finetown/Thembelihle (Lenasia Transit Area),
Alexandra Far East Bank and Diepsloot/Nietgedacht, respectively”;

8.3.6 In terms of Section 9 of Proclamation 24 of 1994 the assets, liabilities, rights
and obligations of the Administrator in respect of Thembelihle were transferred
to the Greater Johannesburg Transitional Metropolitan Council. In terms of the
aforesaid Section 9 as amended by Premier’s Proclamation 42 of 1995 the
assets, liabilities, rights and obligations of the Greater Johannesburg
Transitional Metropolitan Council in respect of Thembelihle were transferred to
the Southern Metropolitan Substructure of the Greater Johannesburg
Transitional Metropolitan Council. In terms of Notice 6766 of 2000 published in
the Provincial Gazette Extraordinary on 1 October 2000 the City of
Johannesburg became the successor in law in respect of all the resources,
assets, liabilities, right, obligations, titles and the administrative and other
records of the Southern Metropolitan Substructure of the Greater
Johannesburg Transitional Metropolitan Council.

.

9. The Thembelihle community was under intense pressure for a number of years to
relocate to Vlakfontein. In 2003, the City brought an application in the High Court for an
order of eviction from Thembelihle and relocation to Vlakfontein. The case was
defended. The City of Johannesburg has never set the application down for hearing.
Although this case is still pending the City now seeks to relocate at least part of the
community to Lehae, a new township some three kilometres away on the outskirts of
Lenasia. (Thembelihle is situated in the heart of Lenasia, a prosperous urban area, and
the community has immediate and easy access to jobs, schools, clinics and other
facilities within Lenasia). The Thembelihle community contends for an in situ upgrading
in terms of Chapter 13 of the Housing Code. A feasibility study in this regard is awaited
from the City of Johannesburg. If the amendments to PIE are made the community will
be precluded from raising any non-compliance by the authorities with Chapter 13 as the
basis for an argument that eviction and relocation would be unjust and inequitable, if
fresh legal action was to be instituted for their eviction. Indeed if the City of
Johannesburg was to proceed with the pending application for eviction and relocation to
Vlakfontein the community may be precluded from relying on PIE in its defence.
10. It is an anomaly that these categories of persons, to whom either or both Chapters 12
and 13 of the Housing Code apply, should now be removed from the protection of PIE
and thus rendered more vulnerable to eviction and the exacerbation of their need before
the benefits of Chapters 12 and 13 can be applied to them. This is in direct
contravention of the tendency of the courts to maximise the protection from forced
eviction of the socio-economically disadvantaged, as demonstrated by the following
judgments:
• Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
• President of RSA and Another v Modderklip Boerdery (Pty) Ltd (2005) (5) SA 3
(CC)
• City of Cape Town v Rudolph 2004 (5) SA 39 (C)
• City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) BCLR
728 (W)
• Property Lodging Investments (Pty) Ltd v The Unlawful Occupiers of Erf 705,
Halfway Gardens Ext 80 and others: TPD case no: 6292/ 2006 (unreported)
In the final two cases, the courts expressly linked eviction to compliance by the
municipality with its obligations under the Housing Code.

.

11. In City of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) BCLR 728 (W)
the judge put it as follows at paragraph 65 of his judgement:
“The facts of the present matter reflect the plight of thousands of people living in the
inner city, in deplorable and inhuman conditions. Our Constitution obliges the State to
act positively to ameliorate these conditions. These obligations have been, and continue
to be designed at a macro level. We now require a coherent plan and the
implementation of this plan at the micro level. The obligation is to provide access to
adequate housing to those unable to support themselves and their dependants.”

12. In consequence thereof the judge included the following paragraphs in his order:
“(3)The Applicant is directed to devise and implement within its available resources a
comprehensive and co-ordinated programme to progressively realise the right to
adequate housing to people in the inner city of Johannesburg who are in a crisis
situation or otherwise in desperate need of accommodation.

(4) Pending the implementation of the programme referred to in paragraph 3 above,
alternatively until such time as suitable adequate accommodation is provided to the
Respondents, the Applicant is interdicted from evicting or seeking to evict the current
Respondents from the properties in this application.”
13. Implicit in such an order is recognition by the court that the existence or implementation
of a plan for the housing of specific occupants is a relevant factor in determining whether
an eviction would be just and equitable in terms of PIE. In short, the courts have been
careful to ensure that before evictions taking place the intended benefits to prospective
evictees of Chapters 12 and 13 of the Housing Code become available to them. The
courts have been careful to ensure that evictions do not exacerbate the conditions that
Chapters 12 and 13 are designed to ameliorate.
14. The occupiers in this case includes persons who have never had the consent of the
owner or person in charge of land to reside on the premises concerned and thus would
continue to have the protection of PIE. Others are former tenants and would, if the
amendment is adopted, fall outside of the protection of PIE. Both categories are from the
same desperately needy socio-economic group.
15. Sachs J in the Port Elizabeth Municipality places the State’s obligations under Section
26(3) of the Constitution in the following historical framework:

.

“PISA, accordingly, gave the universal social phenomenon of urbanisation and intensely
racialised South African character. Everywhere the landless poor flocked to urban areas
in search of a better life. This population shift was both a consequence of and a threat to
the policy of racial segregation. PISA was to prevent and control what was referred to as
squatting on public or private land by criminalising it and providing for a simplified
eviction process. The powers to enforce politically motivated, legislatively sanctioned
and State sponsored eviction and forced removals became a comer stone of apartheid
land law. This marked a major shift, both quantitatively and qualitatively (politically).
Evictions could be sought by local goverment and achieved by use of criminal rather
than civil law. It was against this background and to deal with these injustices, that
section 26(3) of the Constitution was adopted and new statutory arrangements
made…….that a third aspect of section 26(3) is the emphasis it places on the need to
seek concrete and case specific solutions to the difficult problems that arise. Absent the
historical background outlined above, the statement in the Constitution that the courts
must do what courts are normally expected to do namely, take all relevant factors into
account would appear otiose (superfluous) even odd. Its use in section 26(3) however
serves a clear constitutional purpose. It is there precisely to underline how non
prescriptive the provision is intended to be. The way in which the courts are to manage
the process has, accordingly, been left as wide open as constitutional language could
achieve, by design and not by accident, by deliberate purpose and not by omission.”

16. The obligation of the State and its organs to make provision for the housing of those
disadvantaged persons whom PIE is intended to protect is set out in and flows from
Section 26(2) read with Section 7(2) of the Bill of Rights. This obligation must be carried
out in a context in which land holdings in South Africa are skewed as a result of past
racial discrimination. The role of the courts in playing a key mediating role between the
rights of current land-owners and the needs of disadvantaged communities and persons
flows from Section 26(3) of the Bill of Rights. The intended amendments limit the
creative role afforded by the courts and processes of mediation in resolving the tension
between those who currently own land and the homeless, and will thus hinder and
obstruct the implementation of housing policy as contained in Chapters 12 and 13 of the
Housing Code.
17. This exclusion of one category (for example former tenants or mortgagors or occupiers
of former emergency camps under the Prevention of Illegal Squatting Act) and inclusion
of another (persons who have never had the consent of the owner or person in charge
of land to occupy it) in the same disadvantaged group (that is the socio-economic group
previously disadvantaged by racial discrimination and suffering from ongoing socio

.

economic disadvantage) under the protection of PIE is, we submit, unconstitutional.
This is because it offends the provisions of Section 9(1) of the Constitution which
enshrines the right of persons to the “equal protection and benefit of the law.” It is
submitted that any limitation of this principle should be applied against advantaged
persons (that is current landowners) in preference to it being applied against
disadvantaged persons, where their interests conflict (in this case the conflict between
the right to property and the right to have access to adequate housing).

18. To remove the protection of PIE from the categories of persons listed in Section 2(2) of
the intended amendment and to increase their vulnerability to eviction prior housing
becoming available to them in terms of national housing policy may also be in
contravention of the obligation under Section 26(1) of the Bill of Rights of the State to
desist from impairing the right of access to adequate housing, as enunciated by Yacoob
J at 66G-H in Government of the RSA v Grootboom and Others 2001 (1) SA 46.
19. The proposed amendments result in a more limited protection of the right to have
access to adequate housing. This is a retrogressive measure in contravention of the
dicta of Yacoob J at paragraph 45 of the Grootboom judgement: “It means that
accessibility should be progressively facilitated: legal, administrative, operational and
financial hurdles should be examined and, where possible, lowered over time. Housing
must be made more accessible not only to a larger number of people but to a wider
range of people as time progresses”.
20. In addition to these fundamental objections are those which may be described as
matters of detail. We will not deal with these. However, there is one further amendment
which we find disturbing. Currently organs of state can bring eviction proceedings under
PIE for land / buildings within their area of jurisdiction. That would now be amended to
land which organs of state administer or control. The current formulation more clearly
seems to bring eviction proceedings by municipalities under, for example, health,
building and fire by-laws within the purview of PIE. Is it the intention of this amendment
to enable municipalities to invoke health, building and fire by-laws to evict people
outside of the purview of PIE? If not, then what is the purpose of this particular
amendment?
CENTRE ON HOUSING RIGHTS AND EVICTIONS (COHRE)

===========================================

International Labour Research and Information Group

Box 1213, Woodstock, 7915 – South Africa
Tel: (021) 447 6375 Fax: (021) 448 2282
E-mail: info@ilrig.org.za
http://www.ilrigsa.org.za

Mr. R Thatcher
Department of Housing
Private Bag X644
Pretoria, 0001
Tel. 021.421.1629
richard@housing.gov.za

International Labour Research
and Information Group
Contact: Koni Benson
P.O. Box 1213
Woodstock
Cape Town, 7915
Tel. 021.448.6052
koni@ilrig.org.za

February 13, 2007

To Whom it May Concern,

We are writing to comment on the proposed amendments to the Prevention of Illegal Eviction From and Unlawful Occupation of Land Amendment Bill, 2006.

The International Labour Research and Information Group (ILRIG) is an NGO providing education, publications and research for the labour and social movements. ILRIG was founded in 1983. For many years we were linked to the sociology department at the University of Cape Town but since 2003 ILRIG is an independent trust. We study the kinds of socio-economic issues central to housing, homelessness, basic services, land invasions and evictions and we work with social movements trying to deal with repercussions of policies and practices around basic survival issues. It is our belief that the proposed change in legislation will make the situation of the poor and working class worse.

Our overall concern is that the bill has been proposed in response to the “nature and increase in land invasion” as a way to make it easier to evict “invaders” rather than getting at the root of why people are increasingly moving into open spaces, and how these actions can be negotiated or embraced by the state. We are concerned that the Constitutional right to housing is infringed upon by the proposed changes and that the changes offer no room to critique the roles and responsibilities of municipalities, or to include mechanisms that analyse why a particular invasion takes place. In fact, Section 3 of the proposed changes puts default of lease/bond payment over and above consideration of circumstances of occupiers such as length of time of occupation, the needs of the elderly, disabled, child, and female headed households, and the availability of suitable alternatives. Without considering socio-economic factors, the bill makes it a crime to be poor, desperate, and homeless.

The changes will make it easier to evict people, and thus easier to ignore their right to housing. Brazil, for example, also has a housing crisis. The Brazilian Constitution gives people ownership rights to private land peacefully occupied for 5 years. And the effects of legally embracing informal land occupation has been positive for land utilisation, and distribution for the poor, and for planners tasked with waiting lists and hundreds of thousands without homes in the city. Informality has been embraced by the Brazilian Constitution and “land invasions” are seen as a human needs-led development, and a process that can desegregate and positively shape urban space. The proposed changes to the law leave little room for the landless to become active agents of desperate change needed in accommodation policies and practices in South Africa and will rather push people into insecure subdivisions or overcrowded rooms vulnerable to exploitation by landlords.

The consideration of circumstances, and the availability of suitable alternative accommodation is too vague to be supported as an alternative to the way the bill is encoded at present. Likewise, by changing the term “owner” the bill blurs responsibility and gives more power to more people to act on behalf of “the haves” while eliminating someone in particular who needs to be responsible for justifying the eviction. For example, by proposing to change the term “owner” to “administration or control” the bill will make it harder to pin point who is responsible for making decisions about land. Rather, the Bill needs to ensure security of tenure in a way that does not only depend on interpretation of the judge, and in a way that stipulates that alternative accommodation does not disrupt the social networks people form for survival- i.e. alternative accommodation needs to be mandatory close to where people are “evicted” from.

It is our belief that the proposed change to the legislation will make the situation of the poor and working class worse. There will be less access to land, less participation, and the potential for violent conflict between state actors, like the police, and those effected, will increase with state officials having less flexibility to negotiate solutions other than forcibly evicting people from land/buildings.

The public participation process regarding this bill prevented those community organisations that we work with from making a submission. ILRIG would have prefered to make its submission as part of the coalition of social movements known as the Social Movements Indaba. The almost complete lack of publicity and the tight deadline of this process means that such groups are effectively barred and we have to make the submission on our own. Our participation does not mean we view this process as legitimate and fair. Such serious changes to constitutional legislation should not be made without mass based input and participation, especially by those who will be most effected by the changes- if the process continues to exclude the poor and especially their organisations it is fundamentally illegitimate and unfair.

For all of these reasons, ILRIG submits that that PIE Bill should not be presented to Parliament in its current form.

Signed,

¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬___________________________
Leonard Gentle
Director