Bapsfontein forced removal 'an evacuation, not an eviction'

The Ekurhuleni Metro says its attempt to remove residents from the Bapsfontein informal settlement without a court order was an emergency evacuation, not an eviction.

Counsel acting for the metro on Thursday afternoon defended the “evacuation” by citing disaster management imperatives at the Constitutional Court.

Advocate Vincent Maleka SC argued that the removal of families—and the subsequent demolition of their homes—which had begun in December 2010, was an evacuation from a declared disaster area.

The city had earlier established that the settlement near Benoni had been built on dolomite stone and was peppered by sinkholes that were dangerous for both structures and their inhabitants.

Declaring the settlement a “disaster area”, the municipality then proceeded to relocate residents from it.

As such, Maleka stated the municipality was not bound by the provisions of the Prevention of Illegal Eviction Act, or the imperatives contained in section 26 of the Constitution which safeguards all citizens rights to adequate housing and requires a court order to be granted before eviction occurs.

As such, the municipality had not performed an illegal eviction without a court order as it had followed section 55 of the Disaster Management Act (DMA) which allows for the emergency removal of the community.

Maleka had argued that the municipality had been compelled to act because “when dealing with dolomitic situations of that kind it is facile to wait for a threat to act. We say that as long as a threat prevails there is always an obligation to act.”

No arbitrary evictions
He also submitted that the municipality read the second part of section 26(3) of the Constitution—which states that “no legislation may permit arbitrary evictions—as allowing for legislation permitting evictions as long as it was not arbitrary”, as was the case with the DMA.

The state, according to Maleka, was within in rights, as per section 26(2) of the Constitution, which states that it “must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation” of the right to adequate housing.

Advocate Rudolph Jansen SC, acting on behalf of the Bapsfontein residents, argued that the reading “rips the heart out of section 26(2)” by leaving the power to decide evictions to administrators.

Noting both Maleka’s earlier argument, that government administrators were empowered to allow for evictions, and the coercive methods used by the municipality, Deputy Chief Justice Dikgang Moseneke noted that the “spectre of officials coercing people to move is a frightful one. Are we not seeking a society of constitutional justifications, of the rule of law—not of coercion?”

Following a North Gauteng High Court ruling that their relocation was lawful because the municipality could not allow the residents of Bapsfontein to live in unsafe conditions, almost 800 people had appealed to the Constitutional Court to overturn that decision.

In their application, residents submitted that their relocation amounted to an eviction and that it was done in a manner that infringed on their rights to property, dignity, their rights to adequate housing and to not being evicted or having their homes demolished without a court order.

The municipality contends that the evacuation does not amount to an eviction and thus a court order was not required.

The Socio-Economic Rights Institute of South Africa, who had joined the application as amicus curiae, submitted that, considering the circumstances, there was no reason to warrant the municipality’s usage of the DMA thus departing from the provisions of the Constitution and laws governing eviction—making their action illegal.

Niren Tolsi

Niren Tolsi

Niren Tolsi is a freelance journalist.His areas of interest include social justice; citizen mobilisation and state violence; protest; the constitution and the constitutional court and football. Read more from Niren Tolsi

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