Landlords have to pay for housing for evicted people and other myths

Last week, the Constitutional Court delivered a ground-breaking judgement which stipulates that judges may not grant an eviction order if it will leave people homeless. The Concourt made this decision after hearing a case where land occupiers had “agreed” to be evicted, but their consent was not informed and therefore was not considered valid by the Concourt. 

In the wake of that judgement, speculation has mounted that landowners will now have to foot the bill for temporary alternative accommodation – a type of temporary housing for evicted people who may otherwise be homeless – or that tenants will take advantage and no longer pay rent.

We dispel some of these myths using what we already know when it comes to evictions and temporary alternative accommodation.

1. Landlords have to fork out for alternative accommodation
In 2011, a seminal judgement delivered by the Concourt made history: the court found that municipalities are responsible for providing temporary alternative accommodation even when a property is privately owned.

At the time, 86 residents at a building owned by Blue Moonlight Properties had been ordered to leave following an eviction order by the courts. The City of Johannesburg, the Concourt said, was obligated to find temporary alternative accommodation for residents who would become homeless because it has a constitutional obligation to do so.

“The City’s housing policy is unconstitutional in that it excludes people evicted by a private landowner from its temporary housing programme, as opposed to those relocated by the City. Blue Moonlight cannot be expected indefinitely to provide free housing to the Occupiers, but its rights as property owner must be interpreted within the context of the requirement that eviction must be just and equitable. Eviction of the Occupiers would be just and equitable under the circumstances, if linked to the provision of temporary accommodation by the City,” the Concourt said in the judgement.

The good news for property owners across South Africa: it’s not your responsibility to provide housing for evictees.

2. There are no norms and standards for alternative temporary accommodation
Generally, guidelines for alternative temporary accommodation are vague, which means that, yes, people could – and often do – end up living in unhealthy conditions after an eviction.

In a long and protracted court battle, residents at Ekuthuleni shelter in Hillbrow, Johannesburg, have challenged the “house rules” there. In Ekuthuleni, families were separated by gender, and there was a daily lock-out rule where residents could be locked out during the day. Some of the residents came to live in Ekuthuleni after being evicted in the Blue Moonlight case.

A court found that the gender separation rule and the lockout were unconstitutional but reasonable because it is state accommodation. The Socio-Economic Rights Institution (SERI) is challenging this finding at the Concourt.

Other standards and norms that have been developed, as SERI has noted, include: 

1. There must be a measure of tenure security (Port Elizabeth Municipality v Various Occupiers)

2. The structure must have access to water, basic sanitary services and refuse services. It should also be waterproof and able to withstand the elements. (City of Johannesburg v Rand Properties)

3. The location of the alternative accommodation should be “as near as possible” to the area residents were evicted from (City of Johannesburg v Blue Moonlight Properties)

4. Gender segregation and lock-out is unconstitutional, but is currently allowed in state housing pending outcome from Concourt (Dladla v City of Johannesburg)

In a judgement delivered at the Concourt in 2009, Justice Zak Yacoob gave further directions on how temporary alternative accommodation should be built. He said that residents in Joe Slovo informal settlement in Cape Town were to be placed in a Temporary Relocation Unit (TRU) that would be at least 24m² and fire-resistant.

“All the families to be relocated will be provided with alternative accommodation at the expense of the state. This alternative accommodation is situated at Delft, about 15 kilometres away. Each family will occupy a TRU which is at least 24m², which will probably be provided with electricity, and the walls and roofs of which will be constructed of synthetic protective material. This material is fire-resistant. This will mean that the frequent deaths and destruction caused by fire in the Joe Slovo settlement will be averted,” Yacoob said.

3. People get a free-pass to housing
While evictees may have access to housing after an eviction, it does not mean that they won’t have to pay rent. The City of Johannesburg has proposed that residents pay a fee to contribute to the shelters. SERI, in a submission to the City, said that it may be reasonable for residents to pay, but it should not impact their security to a home.

“While we have no in principle objection to payment, we are concerned about the vagueness of the determination of costs,” SERI said.

Temporary alternative accommodation in some shelters around Johannesburg only lasts for 6-12 months, meaning that after a year, a resident could once again be without shelter. They would then have to find a new place to stay.

4. Jumping the housing queue
Temporary alternative accommodation is not permanent and, often, it’s not built for permanent tenure either. The state has in numerous cases, including Blue Moonlight, accused land occupiers of “jumping the queue”: people occupy land or deliberately get evicted to access housing faster.

However, the Supreme Court of Appeal has found that 400 residents in Modderklip in the East Rand had occupied land because they had “nowhere else to go”. The courts have also ruled out “jumping the queue” as an argument because people who would be homeless as a result of eviction are given temporary accommodation and not a home. 

5. ‘Illegal land occupiers’ shouldn’t get housing
There is yet to be a judgement which states that land occupiers can’t have access to housing because they’re occupying land that already belongs to someone else.

Currently, the courts have not differentiated between who is deserving of alternative temporary accommodation and who is not on the basis of “illegal occupation”. The most recent Concourt judgement only says that judges cannot order the evictions of anyone who would be rendered homeless as a result.

“Courts must be alive to the risk of homelessness and the issue of joining the local authority to discharge any duties it may have. All of this may appear unduly burdensome but it is necessary if one has regard to the fundamental importance that a person’s home has to the realisation of almost all human rights,” the Concourt said.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Raeesa Pather
Raeesa Pather
Ra’eesa Pather is a Cape Town-based general news and features journalist.

Related stories

The pandemic will change the electoral process

There’s a backlog of by-elections to get through before next year’s local government elections. Will voters go to the polls even though Covid protocols are in place?

Sticks and stones: Qwelane and the violence of words

Constitutional Court justice says homophobic article did not ignite fire of hate against the LGBTI community but added fuel to it

The Qwelane case: When human rights meet human rights

The Jon Qwelane case brings into focus the tension between hate speech and freedom of expression

Hlophe says ‘assassination plot’ is a bid to sully his name

Allegations that Western Cape Judge President John Hlophe planned to assassinate his deputy, Patricia Goliath, are leading to further instability on the Cape bench

Mmusi Maimane doesn’t want DA’s political ‘superstars’

The leader of the new One South Africa Movement says his former party has set itself on a course away from multiracialism after its recent policy conference

Homegrown vs Big Pharma: Who stands to benefit from the legal market for medical marijuana?

Cannabis is scheduled for its South African parole on September 18. Kelly McQue’s handy medical marijuana producers’ guide is an opening salvo against corporate medicine’s demand for exclusive rights to the plant’s healing powers

Subscribers only

Toxic power struggle hits public works

With infighting and allegations of corruption and poor planning, the department’s top management looks like a scene from ‘Survivor’

Free State branches gun for Ace

Parts of the provincial ANC will target their former premier, Magashule, and the Free State PEC in a rolling mass action campaign

More top stories

Meyiwa murder case postponed amid drama in court

The murder case of Senzo Meyiwa has been postponed to next month after the appearance of the five suspects in the Boksburg magistrate’s court took an unexpected turn

Does the Expropriation Bill muddy the land question even further?

Land ownership and its equitable distribution has floundered. Changes to a section of the constitution and the expropriation act are now before parliament, but do they offer any solution?

Wheeling and dealing for a Covid-19 vaccine

A Covid-19 jab could cost hundreds of rands. Or not. It’s anyone’s guess. Could another pandemic almost a century ago hold clues for handling the coronavirus today?

The European companies that armed the Ivorian civil war

AN OCCRP investigation reveals that Gunvor and Semlex brokered weapons-for-oil deals in early 2011 when Côte d’Ivoire was in crisis, despite a UN arms embargo

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday