Business Day: Balancing rights of owners and the homeless

http://www.businessday.co.za/articles/Content.aspx?id=110665

Balancing rights of owners and the homeless
KATE TISSINGTON
Published: 2010/06/02 07:51:32 AM

THE debate on homelessness and unlawful land occupation has erupted once more. Human Settlements Minister Tokyo Sexwale recently labelled a judgment of the Johannesburg High Court, which required the state to provide housing to unlawful occupiers in Johannesburg, or pay those occupiers’ rent if it cannot, as the “legalisation of illegality”.

Soon after, a judge of the same court handed down a decision in which he claimed to be left “confused” by the law applying to evictions. He argued for removing restrictions on obtaining eviction orders, suggesting this was necessary to achieve the sort of economic growth attained in China in recent years.

In the face of these criticisms, it is important to restate what eviction law is and what it is not. Section 26 of the constitution guarantees three interrelated rights: a right against unjustified infringements of existing access to adequate housing; a right to reasonable state action in achieving the progressive realisation of access to adequate housing for those who do not currently enjoy it; and a right to protection against arbitrary eviction .

Section 25 of the constitution protects against arbitrary deprivation of property.

How these rights apply and are related to one another is decided case by case. The Constitutional Court and Supreme Court of Appeal have set out a framework in which the competing claims of unlawful occupiers and property owners are to be reconciled.

Briefly stated, the law is this: unless an eviction would result in desperately poor people becoming homeless, a landowner is entitled to the eviction of unlawful occupiers once he has satisfied the procedural requirements set out in the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998.

Where an eviction might or definitely would lead to homelessness, things are different. A court will not normally grant an eviction order against relatively settled occupiers unless it is satisfied reasonable alternative housing is available. If it appears an eviction might lead to homelessness, courts must act proactively to establish what measures the state can take to prevent an occupier from being turned out on the streets.

In such cases, courts have ordered the state to provide shelter to unlawful occupiers upon their eviction, and they have declared that unlawful occupiers may stay on land until the state can provide alternative accommodation.

The law does not allow affluent occupiers to remain in luxury accommodation indefinitely. Nor does it condone land invasions. It does not entitle an unlawful occupier to remain on land without the owner’s permission if he can reasonably be expected to find lawful and affordable accommodation through his own efforts. Rather, it works to prevent evictions that would result in social injustice by balancing a variety of individual rights.

The frustration many landowners experience in taking possession of vacant property is not chiefly a result of this legal framework. It is rather the result of the slow pace at which the state has come to appreciate its role in holding the balance between the right to housing and the right against arbitrary deprivation of property.

Most municipalities still lack the basic elements of an emergency housing policy capable of responding to the needs of potential evictees. Some obstinately refuse to provide emergency shelter unless unlawful occupiers aggressively push for such shelter through the courts. Thus, when a landowner must wait to take possession of vacant property, it is not the fault of unlawful occupiers. The blame lies with the state.

The legal framework governing evictions is based on the constitution, which prohibits homelessness. The state bears the ultimate burden and is constitutionally obliged to act to fulfil the right to housing. Of course, it cannot do so overnight. The law recognises that many people will have to remain in informal — and often unlawful — accommodation until the state is able to assist them. In this sense, Sexwale is correct. What would normally be unlawful is made lawful for so long as the alternative would be homelessness.