/ 17 October 2022

Evictions: Law doesn’t protect unlawful occupiers’ economic interests

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The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act requires only that evictees be provided with alternative accommodation. (Flickr)

In the case of Rycloff-Beleggings (Pty) Ltd v Ntombekhaya Bonkolo and Others, the high court ordered the City of Johannesburg on 4 October to provide alternative land to the unlawful occupiers and reclaimers of Portion 971 Randjiesfointein in Midrand. 

Judge J Wright specifically ordered the city to cater for the reclaimers’ economic interests, by providing alternative land that will allow them to continue their recycling business.  

The occupiers argued that the land at issue is both a home and a place where they can make a decent living through collecting, sorting and selling recyclable waste. They argued that the right of access to adequate housing is intertwined with the international right to livelihood and right to human dignity. 

Without denying its constitutional obligation to provide alternative accommodation to the evictees, the city filed a report indicating that it intended to provide alternative accommodation at an informal settlement known as Kya Sands. But, on the basis that it was not “reclaimers’ friendly” the occupiers rejected this and that they will not be able to continue making a living. 

Wright found that relocating the reclaimers to a place where they cannot earn a basic living as they presently do, would leave them at a risk of not being able to effectively maintain their dignity and care for their children. Wright further held that it would be unfair and therefore unconstitutional if eviction will effectively cause the reclaimers to go hungry. Wright ordered the city to provide the reclaimers with land where they can live, and lawfully and safely collect and sort their reclaimed waste.

The eviction was instituted in terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). This gives effect to section 26 of the Constitution . It guarantees unlawful occupiers with the right not to be rendered homeless. The Act further enjoins the municipality to provide alternative accommodation to all evictees facing risks of homelessness. 

Although the Act  provides exclusive protection of people’s housing rights it does not cater for unlawful occupiers’ economic interests.

But, because of the indivisibility of all human rights, Wright adopted the expansive interpretation approach to find that the right to make a living is implied in section 4(7) of Act, section 26 (right of access to adequate housing), and section 10 (right to human dignity) of the Constitution. It is based on this expansive interpretation of law that the city’s obligation to provide alternative accommodation has been extended to cater for economic interests. Wright misdirected himself in this approach.  

The right to livelihood is also strongly protected in the international human rights law binding on South Africa, including articles 6-8 of the International Covenant on Economic, Social and Cultural Rights; ICESCR General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18) and ICESCR General comment No 23 (2016) on the right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights). 

Although the right to livelihood is protected in the various international laws and could be implied in the right to human dignity, such an expansive interpretation is misplaced in the Rycloff-Beleggings case. This is so because our courts have long settled that business or economic activities performed by the unlawful occupiers in the premises where they are being evicted from do not fall within the ambit of the rights protected by PIE. The South African domestic law has, at its apex, the Constitution and the international instruments cannot trump domestic law.

Moreover, there was no suggestion in Rycloff-Beleggings that section 4(7) of PIE is unconstitutional or unlawful for excluding considerations of unlawful occupiers’ economic interest in the law of alternative accommodation. While section 22 of the Constitution affords citizens the right to “choose their trade profession or occupation freely”, there is evidence that the occupiers’ case was ever premised on this provision. The court was not called upon to interpret section 22 of the Constitution in the context of eviction of occupiers who both reside and work in the same premises. Even if the occupiers had relied on section 22 of the Constitution to assert that the city must provide alternative accommodation with the workplace premises, this provision, properly interpreted, cannot sustain that argument. 

 In Turnover trading 191 (proprietary) limited v Mosehla and Others (“Turnover trading”), Judge J Fabricius held that, “The occupiers cannot, therefore, rely on an infringement of their “right to work” as a basis to resist their eviction from the property; the occupiers’ business interests are commercial interests, not protected by PIE, and not part of the relevant circumstances the court is required to consider under section 4(7) of PIE in the discharge of its duties thereunder.” 

I agree with this reasoning. The relevant considerations that the court must consider in PIE evictions are limited to “legally relevant” circumstances. For a circumstance to be “legally relevant” it must be causally tied to the right in question. 

In Rycloff-Beleggings Wright ought to have limited his inquiry to the question concerning the right of access to adequate housing as contemplated in section 26 of the Constitution, not the right to conduct recycling business. In Turnover trading it was argued that there is no precedent in our law that entitles a person unlawfully occupying another person’s property for purposes of business undertaking to resist their eviction simply on the basis that the business undertaking conducted on another’s property is the source of their livelihood. 

In section 4(7) of PIE, it is clear that the legislature intended to strictly protect the unlawful occupiers’ housing interest which was seriously violation in the pre-constitutional dispensation under the Prevention of Illegal Squatting Act and the rei vindicatio (common law eviction remedy). A deep inquiry into the historic intentions of the legislature in drafting PIE shows that the economic interests are excluded from the processes of PIE and the Wright did not have the broad powers to order the city to cater for such interests in Rycloff-beleggings.  

The order that the city must provide “recycling-friendly” alternative accommodation is contrary to the reasoning of Fabricius. In Turnover trading, he held that PIE is legislation that gives effect to section 26(3) and section 25(1) of the Constitution. Therefore, in eviction the court is limited to circumstances that concern the competing rights of access to adequate housing on the one side, and to the unlawfully occupied property on the other. It is only in this context that occupiers can claim access to temporary or alternative accommodation to prevent homelessness. Business activities are not the element of section 26 of the Constitution nor are they protected by PIE.

Fabricius is correct that temporary accommodation provided by the municipality in eviction is aimed at ameliorating the short-term housing emergency that eviction occasions and that it excludes considerations of suitable business premises or economic interest. 

The other notable error of law committed in Rycloff-Beleggings case is that Wright ordered the city to do what in my view is unlawful.  It is common cause that the occupiers started the recycling business in the private landowner’s property without authority to do so. This unlawful conduct continued until the landowner approached the court to evict them. But, on their eviction, the occupiers argued for the protection of this unlawfully created right. Moreover, the court ordered the city to provide land where the occupiers can both live at night and continue with the sorting of reclaimed waste. But the city’s Land Use Scheme does not permit the mixed zoning of residential and waste recycling business, therefore the occupiers cannot demand such rights.  

In the absence of such mixed zone, Wright’s order implies that the city must rezone the alternative land for which it was ordered to  provide to suit the demands of the Occupiers. Ordering the City to do what is not permissible in the Land Use Scheme is unlawful. Making such an order offends both the Land Use Scheme and the principle of Rule of Law. The principle of legality precludes a court from granting legal recognition and enforcement to unlawful conduct. In Turnover tranding , Fabricius correctly found that  the occupiers who happen to be reclaimers in the unlawfully occupied land have neither a right to occupy the property nor a right to conduct business thereon. He argued that to the extent that the occupiers have a right to work, it is a right that must be exercised lawfully and that this is the most fundamental premise of all conduct in our country.

I am of the opinion that in Rycloff-beleggings the high court missed the opportunity to develop a proper content to the ongoing debate: whether the right to “work” can be extended to the law of alternative accommodation. What is unpopular about the  Rycloff-beleggings judgment is that it has created a precedent that whoever is being evicted can allege the potential  loss of business or economic interest as a result of eviction, and demand the state to provide alternative accommodation suitable for his specific business. I do not believe that municipalities have such a budget to do so  and the court cannot order the state to budget for what it is not constitutionally or statutorily obliged to do. 

This development of the content of the law of “alternative accommodation” in the PIE eviction jurisprudence is flawed. In South Africa many people conduct informal businesses within their residential houses such as tuck shops and salons.  This means the Rycloff-beleggings judgment has effectively created a right for those occupiers to demand provision of alternative accommodation that will protect their specific economic interests upon their evictions. 

Sithelo Magagula is a senior commercial attorney in Gauteng and writes in his personal capacity.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.