No recourse for Jo'burg's inner city evictees
Kwanele Sibiya turned six months old on Thursday. He was born on December 27 last year on Sivewright Avenue, Doornfontein, under a bridge.
He came into the world eight days after his mother Lungisile Makhanya and more than 100 other people were evicted from a building known as the "Radiator Centre”, on the corner of Main and Berea streets in Johannesburg. It appears that the building had been hijacked and that the residents were paying rent to someone other than the owner.
His mother decided to name him Kwanele (Enough) to signal this was the last time she was having a child.
Makhanya and the others who were evicted spent two months living under the bridge and were then taken in at the Ekhaya shelter in Hillbrow on February 8.
Makhanya said they had first been told that they would be staying at Ekhaya for three days, after which they would be found proper accommodation.
They are still at the shelter, which has one room with rows of narrow double- and triple-level metal bunks.
Their possessions are in plastic bags like those used by hawkers, and there are two communal stoves.
The many toddlers and grey-haired pensioners all live together. Normally, people stay at the shelter for a few days before moving on. Men sleep on one side of the room, women on the other.
"We are raising families and children under very horrible conditions. This is not what we want. We want to be able to live with our families under normal conditions, not this,” Makhanya said.
Mandla Mntjali from KwaZulu-Natal, another resident of the shelter, said: "The problem now is that we can't even enjoy conjugal rights with our wives because, for the last three months, we are forced to sleep separately. This is already straining relationships and families. We want out of this place.”
When lawyers for the Centre for Applied Legal Studies went to court on January 29 to ask that the tenants be taken back to Radiator Centre, they cited the birth of Kwanele, among other factors, as motivation for their case. But the case was dismissed and the centre has appealed the ruling. The case was meant to be heard this week but has been postponed.
"We went to court and we said we urgently need to get an order allowing the occupants back in the building,” said Professor Bonita Meyersfeld, the director of the legal centre. "The first judge said there's no basis for urgency because there was an eviction order – a legal technicality. A real concern, and I'm not minimising that aspect of it, but it wasn't related at all to the human imperative and this new mother living under the bridge.”
Meyersfeld said they went back to court and asked that the tenants be allowed to return to the building and for the court to comply with a Constitutional Court ruling stating that tenants cannot be evicted unless the government has found suitable alternative accommodation.
"We pointed this out to the judge, who was indifferent to it. He said: ‘Somebody has to look after the interests of the property owners.'
"We then pointed out that there were vulnerable groups, including an infant recently born under a bridge. And his response to that was that many people in South Africa live under a bridge and this is not the problem that he was prepared to address. He wants to look after the rights of the property owner, who, as far as they were concerned, followed the proper legal process.
"The Constitution most definitely does protect the right to property. This is not an abstract or legally incorrect notion,” Meyersfeld said. "Equally, it protects the rights of individuals – everyone in South Africa. And that's important. It's not every citizen who is entitled to shelter, it's everyone in South Africa. The right to housing has to be balanced.”
The eviction of the homeless is common in Johannesburg, as is the failure to provide alternative accommodation.
The Constitutional Court ruled 18 months ago that a group of homeless people removed from a building on Saratoga Avenue, owned by Blue Moonlight Properties, should be provided with alternative accommodation by the city.
Most of those removed from the building then sought refuge in a dilapidated and abandoned building, Chung Hua Mansions, on Jeppe Street.
The South Gauteng High Court set a deadline – May 18 2013 – for mayor Mpho Tau, city manager Trevor Fowler and director of housing Thabo Mayisela to state what steps they had taken to carry out the court order.
The city missed the deadline and then missed another deadline, set in another high court order, directing it to say where and when it would provide accommodation. The city said it would not provide accommodation to the residents at Chung Hua Mansions in the foreseeable future, although it originally agreed to.
The residents then brought an application for an order directing the three municipal officials to take all necessary steps to provide them with shelter or face being held in contempt of court. The matter is pending and the people are still living in Chung Hua Mansions.
"The city's disobedience of the Blue Moonlight judgment and other court orders requiring [the city] to house the homeless is a threat to the rule of law,” said Teboho Mosikili, the director of litigation at the Socio-Economic Rights Institute (Seri). "It must come to an end. The mayor, the city manager and the director of housing must now do what they should have done well over a year ago: plan and budget for the city's obligations to the poor.”
The institute is launching an inner-city housing campaign to ensure that evicted tenants receive alternative accommodation.
"At the core of Seri's inner-city housing campaign is the problem that the city of Johannesburg does not have a proactive, coherent or programmatic response to the provision of temporary alternative accommodation in cases of eviction from so-called bad buildings,” said Seri's Kate Tissington.
"This problem, however, is itself a symptom of a deeper problem of structural poverty, which goes to the heart of why people are forced to live in bad buildings in the first place. The reality is that there are no affordable formal housing options available,” she said. "It is this web of causes and effects that we are trying to unravel in developing a campaign strategy.”
The city would not discuss the issues of providing accommodation with the Mail & Guardian but said that it had appealed the judgment that would see the city officials being held for contempt of court.
"This matter is currently sub judice, given our appeal,” said Gabu Tugwana, the city's spokesperson. "We are therefore not at liberty to entertain any question raised on a matter still under judicial deliberation.”
Manqoba Nxumalo is the Eugene Saldanha fellow in social justice journalism sponsored by the CAF Southern Africa.