The City of Johannesburg will not be able to meet the Constitutional Court’s requirement to provide alternative accommodation to people evicted from illegally occupied buildings, because it simply does not have enough space.
“At the moment, we don’t have the capacity to accommodate people who would still be evicted,” Johannesburg mayor Herman Mashaba told the Mail & Guardian this week.
The Socioeconomic Rights Institute (Seri) confirmed this, saying its research has found that all the available sites for alternative accommodation are currently full.
The City of Johannesburg, along with every municipality in South Africa, is facing a formidable task: a judgment by the Constitutional Court last week means that local government will feel increasing pressure to provide alternative temporary accommodation for evictees who would otherwise be homeless.
The judgment has been hailed as a seminal victory for housing rights by groups such as Seri. If municipalities fail to provide temporary alternative accommodation to people who need it, then judges will be unable to grant an eviction order.
The city has not yet quantified the number of people who currently illegally occupy buildings in the inner city or on private land or in factories in industrial areas.
But Seri does not believe it will be impossible – in the long term – to find alternative accommodation for everyone if proper planning is done.
“It’s possible, but it depends on whether municipalities plan. There needs to be a realistic plan in place and I do think it’s possible,” Seri’s director of research and advocacy, Lauren Royston, told the M&G.
Mashaba’s inner-city plan
Mashaba is confident that the judgment will have minimal impact on Johannesburg’s plans to remodel the inner city. “I’m not that concerned with that judgment. I see it as an opportunity.
“The reason why we want these buildings is for revitalisation and because we want to build affordable housing and give employment to these people,” he said.
Mashaba admitted that – in the meantime – the city did not know how to find accommodation for evictees. But he said the judgment was only a “minor setback” that would be resolved while his inner-city plans were being formalised.
“I have someone who is going to be working in my office on the inner-city plan from July 1. Then, from late July or at the end of August, I’ll start announcing plans for the inner city.”
Royston said the complexity of the problem should not be underestimated: “An inclusionary revitalisation strategy is possible, but it has to accommodate people currently living there [in the inner city].
“I don’t think there is a sense of the extent of poverty of the people living there. Those people don’t have anywhere else to go.
Temporary but permanent
The problem with temporary accommodation, Seri said, is that no one placed in the buildings set aside for this purpose has managed to move out after the stipulated nine months.
“People were occupying buildings because there was no affordable accommodation. For it to be temporary, there needs to be affordable rental accommodation, but it doesn’t exist,” Royston said.
The obvious problem is that there are not enough buildings, meaning people can’t move on from temporary accommodation to permanent housing.
Seri advocates for low-cost rentals as a way to solve this problem.
The 2011 census showed that the average income of households in the inner city is below R3 500 a month. Private rentals in the same area, Seri said, were designed for households that earned R7 500. This makes the rental proposal untenable.
The conditions that people live in at temporary shelters are varied. Those such as Ekuthuleni in the Johannesburg city centre are notorious for the way in which they are managed by the privately run Mould, Empower and Serve (MES) agency.
The agency recently changed its name from Metropolitan Evangelical Services. Although MES did not supply reasons for the name change, court documents reflect that the agency is officially known by its former name.
MES sets the “house rules” in what the city calls a “managed care” facility. The draconian rules at the Ekutheleni shelter are the subject of a separate court case before the Constitutional Court, in which judgment is pending.
These house rules have become the greatest source of frustration for Seri lawyers and residents of the temporary shelters.
The Linatex building behind the Jeppestown police station is one of the city’s temporary sites where people affected by emergencies, such as fires, are housed.
When a fire broke out at the Moth building in 2014, where evictees were being housed, Fredah Motshwana was among those moved to the Linatex building.
The building is fortified with steel burglar bars on its doors and windows, and a fingerprint-controlled turnstile and prominent security stall create the impression of safety. But this is far from the truth, Motshwana said.
At the start of the night shift, the security guard leaves the doors open and doesn’t bother to check who comes in, Motshwana said. She said there have been several cases of people being followed home and attacked.
“One of my cousins was boozing with other friends, then there was a misunderstanding and he decided to leave and come home. That person followed him and attacked him inside the building,” she told the M&G.
Jo’burg must legally provide shelter to evictees, but temporary facilities are full.
(Delwyn Verasamy, M&G)
Motshwana sleeps in a small hallway with about seven other people. She is separated from the others by a curtain.
Intimacy with partners is almost impossible and the noise at night is “uncontrollable”, she complained. The lack of space also forced residents to store their furniture in the basement, until they discovered that flooding was damaging beds and couches and decided to ignore the house rules and keep their furniture with them.
The one advantage to living there, though, is not paying any rent.
In the city centre, the living conditions at Ekuthuleni have improved since gender separation and daytime lockouts were exposed in the ongoing court case against MES.
House rules have been suspended pending the outcome of the Constitutional Court judgment, which could create a framework for norms for all alternative accommodation sites. But residents in the court case say that they are being victimised because of the case.
Inside the icy walls of the building, dormitory-style rooms are framed by burglar bars. Madelene Malindisa speaks of “begging security” to let visitors enter the building to see her, even though no one is barred by the rules from receiving visitors.
Already, she has had to say goodbye to her 23-year-old son: the second mattress in her room is tidily made up, but no one sleeps there. Her son left after tensions between Malindisa and MES flared up when she became increasingly outspoken about the treatment she faced.
“It is easier to just look out for myself, instead of looking out for myself and my son,” Malindisa says.
Relocation policy in theory only
The Special Process for the Relocation of Evictees was supposed to regulate how evictions take place and what happens to people afterwards.
The policy was devised by the City of Johannesburg before the ANC lost power in the local government elections, and was presented to the public at a meeting in Alexandra on August 30 last year after the coalition council was formed.
Seri made written submissions to the city requesting amendments to the policy, but admits it’s all academic for the time being.
“All of the temporary sites were packed before the policy was developed, so it’s all theory for now,” Royston said, adding that, although Seri welcomed the development of the policy, it was disappointed by the city’s posture.
“We were hoping for a more positive embrace of the city’s constitutional obligations and our opinion was that at many points the city was trying to limit people who can access alternative accommodation,” said Royston.
‘Willing’ evictions can still be illegal
In an unprecedented judgment, the Constitutional Court has said that judges may no longer lawfully order the eviction of people if it will leave them homeless – even if they have agreed to be evicted.
Last week’s ruling came after the court heard that 184 people, who had occupied a building in Berea in Johannesburg, had agreed to be evicted without properly knowing their rights, such as the right to temporary accommodation.
The court found that the residents’ consent to be evicted was not informed and therefore not valid.
The onus to provide temporary alternative accommodation is on local government, even in cases where a property is privately owned. This has been established in previous Constitutional Court judgments that have found that local government has a constitutional obligation to ensure people are not homeless as a result of eviction.
With this latest judgment, judges must be satisfied that the municipalities will provide temporary alternative accommodation before they grant eviction orders. – Ra’eesa Pather