We should not lose sight of our humanity and our commitment to human rights. The law should not prioritise property rights over the basic human rights to adequate sanitation, health and housing.
The Johannesburg Metro Police Department (JMPD) has dug in its heels and is continuing to evict residents of an informal settlement in Marlboro, despite a court ruling to the contrary.
The evictions have left vulnerable people in an even more precarious situation than they were to begin with.
Athabile Makholwa, a food preparation worker, lost her home, most of her material possessions, and her identity documents in the eviction.
"I have no place to sleep. I managed to salvage some of my clothes but nothing else. I can't go to work because I don't know, even now, where I must go," she said.
Lawyers say the JMPD are acting in contravention of the Constitution, the country's eviction laws and a court order but the department maintains that it is simply enforcing by-laws against trespassing.
According to NGOs working in the area, over 1 000 families have been put out on the street as a result of the evictions. Last week the community instituted court proceedings against the City of Johannesburg and asked for an interdict to stop all other evictions in the area and for the City to rebuild the structures that were torn down, pending the outcome of a legal eviction.
But the case was postponed until August 29. The judge ordered that the affected people be allowed to return to the disputed properties pending the outcome of the hearing next week.
"The City interpreted it as [meaning that] people can sleep on the property, they could not erect any sort of shelter, and that only mothers and children could be there during the day," said Nathaniah Jacobs, an attorney with Lawyers for Human Rights, who is representing the affected Marlboro communities.
The JMPD returned to the area and tore down rudimentary shelters made of plastic and cardboard that people had erected for shelter.
"The community is incredibly upset because they have a court order to say they can go back to sleep on the property," said Jacobs.
"No one is going to sleep out in the open in the middle of winter. You can't say 'Go sleep on the floor.' You have to allow [people] some sort of structure that allows them dignity."
The community's legal representatives are now seeking an interim interdict against further evictions.
City of Johannesburg spokesperson Gabu Tugwana said he could not comment on the matter before it is heard in court.
On Wednesday morning, members of the community protested and burnt tyres in the street in an attempt to prevent the JMPD from returning to the area to carry out further evictions.
"It's a disaster, people are just staying outside. Kids and mothers are outside on the street," said August Tswai, a community leader who has lived in Marlboro for almost a decade.
The distraught community has put its faith in the courts.
"We're still waiting for the judge's decision," said Tswai, of the evicted families. "We're feeling that we can win, that's why people are calm right now."
Situation simmers on
The situation has been simmering since late June, when conflict broke out between the JMPD and a community of informal settlers living on a vacant lot on the corner of Third Avenue and Fourth Street in Marlboro.
The details on who started the violence are in dispute but there's general agreement that shots were fired and a vehicle was set alight.
In early August, with no court order and no formal eviction notices, the JMPD returned to demolish the homes. Some residents believe the demolition was a form of retribution for the earlier encounter.
The JMPD has said that it is simply fulfilling its responsibility to uphold the law.
Spokesperson Wayne Minnaar said the operation was being carried out in the ambit of the City's by-laws management department and that those who had been evicted were guilty of trespassing and the illegal occupation of land.
He confirmed that the JMPD did not have eviction notices or court orders to back up its evictions but said the community had been warned that they would be removed.
Minnaar maintained that the JMPD is acting within the confines of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act – known as the Pie Act.
"The Pie Act stipulates that shacks can be demolished when it's a new shack or people are in the process of building a new shack," he said. "It doesn't state how old it needs to be before they could be removed."
He said that under these circumstances, there's no obligation on the City to provide those who had been evicted with alternative shelter.
Asked if the police had a responsibility to ensure that those who are removed have access to alternative shelter, Minnaar said: "The police have a responsibility to ensure the law is upheld."
The rule of law
But legal experts say the JMPD is operating outside the ambit of the law. A considerable body of case law has shown that even illegal occupants of land cannot be evicted without a court order. If an eviction would otherwise lead to homelessness, temporary alternative housing must be provided.
In 2004, Judge Albie Sachs, ruling on a case in the Constitutional Court, in which authorities sought to evict a community of shackdwellers from private property in the Port Elizabeth Municipality with no adequate alternative housing, 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."
In 2007, after residents of Moreletta Park were evicted by Tshwane Metro and the SAPS without a court order, the Supreme Court of Appeal ordered the City of Tshwane to provide the evicted families with temporary housing.
And last year, the South Gauteng High Court ordered the City of Johannesburg to provide families lawfully evicted from a building in Berea with temporary accommodation.
These cases indicate that, regardless of whether the shack dwellers in Marlboro had been warned of an imminent eviction, the way in which they have been removed is illegal.
Stuart Wilson, director of Litigation at the Socio-Economic Rights Institute of South Africa, agreed that an eviction cannot lawfully be carried out without a court order.
He said the Pie Act dictates that a court must first decide whether it is just and equitable to remove a person from land that they have illegally occupied. Then, the court must make an order for the removal.
"To evict someone without a court order from a shack that they've been living in for six weeks is manifestly illegal. Section 26 (3) of the Constitution requires an eviction order before you can be removed from your home. If you've been living somewhere for six weeks, it's your home," he said.
As part of its application to the court, the Marlboro community has asked for a compulsory education programme for the JMPD.
"The law on this is so clear, this shouldn't be occurring. The only thing we can do is push for the education of officials," said Jacobs.