The need for discussion with people living on the city’s street is vital for a just outcome. (Photo by Ziyaad Douglas/Gallo Images via Getty Images)
In the City of Cape Town v Various Occupiers and Another, handed down on 18 June 2024, concerns the rights of some of the most vulnerable people in our society — people living on the pavements of the city centre. The city had sought an eviction order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) to evict the 272 homeless individuals living on seven sites in Cape Town.
The city, as the legal owner of all the sites in question, argued that they are not fit for human habitation. It submitted that the sites are adjacent to busy roads posing significant safety risks. There is no access to water, sanitation or electricity and the structures — often tents or makeshift shelters made of plastic and cardboard — are unsuitable for long-term living, providing limited protection and little security.
The city contended that the living conditions for the homeless on these sites are deplorable. They reside next to busy roads in temporary shelters and are compelled to live their lives publicly and struggle for food, shelter and warmth.
The city raised several risks which arise from the current situation. First, the homeless make fires to cook and stay warm, which can damage state infrastructure such as pavements and bridges. Second, their presence obstructs pedestrians and traffic, forcing pavement users onto the road, creating risks for both pedestrians and motorists. Third, the living conditions are unhealthy and hazardous for the homeless, who suffer from malnutrition, physical and psychological health risks, and diseases caused by food waste, lack of sanitation and exposure to fires and vermin. Last, the conduct of the homeless affects people living and working in the city, as the homeless are forced to conduct normal human activities, including urinating, defecating, bathing and having sex in public.
The court held that the city is obliged to take positive action to meet the needs of those living in extreme poverty, homelessness or intolerably inadequate housing and must remedy their living conditions, take reasonable steps to realise their right to housing and ensure they can live with dignity and privacy. As established in the Government of the Republic of South Africa and Others v Grootboom and Others case, the Constitution requires that everyone be treated with care and concern, especially those whose needs are urgent and whose ability to enjoy all rights is most at risk.
The city offered alternative accommodation in “safe spaces” in the city centre which, though rudimentary, are better than the current conditions of the homeless. These spaces provide toilets, showers, meals, blankets, clothes and services aimed at helping the homeless transition off the streets and into permanent homes. The city submitted that it is committed to assisting those in its safe spaces with overcoming addiction, finding jobs and reconnecting with their families.
While the homeless acknowledged the risks to their well-being because of living on the street and did not claim a right to indefinite occupation of the sites in question, they asserted that eviction should only occur after meaningful discussions with the city and the offer of suitable alternative accommodation.
Despite the city’s efforts, some homeless people argued the city did not adequately talk to them, presenting a binary choice of either safe spaces or nothing. They contended that the safe spaces are not suitable alternative accommodation because of restrictive rules that separate families and limit freedom. The homeless argued that the lockout rule forced them out onto the streets during the day with no place to rest. As a result, people seek refuge on the street while they wait for the shelter to re-open. They also argued that the safe spaces do not make provision for couples and families because of rules to keep single men and women separate.
After discussions, the city offered to ensure that couples’ accommodation would be available. With regard to the lockout rule, the city held that: ”Residents will be encouraged to vacate the site between 08h30 and 17h00 every day unless the personal circumstance of any resident makes this unreasonable on a day or for a period of time.” The homeless expressly accepted in their counsels’ heads of argument that this amended rule “is now consistent with the Constitution”. This was accepted by the homeless.
The court found that the city had met its obligation to hold meaningful discussions with the homeless, having held these pre- and post-application, particularly addressing concerns about the rules of the safe spaces. The court held that failure to reach an agreement or offer different accommodation did not negate the meaningful engagement that had taken place. The court held that suitable alternative accommodation need not be accepted by the homeless. It also found that the safe spaces provided were adequate, offering better conditions than the streets and meeting the standard of adequacy.
In summary, the court found that the eviction of the homeless from the seven sites in question was just and equitable, recognising that the city had complied with its obligation to hold meaningful discussions with the homeless and that the safe spaces constituted suitable alternative accommodation. The eviction order was granted.
The court held in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another, that it is irrefutable that the state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerably inadequate housing. While eviction orders do not offer a sustainable solution to homelessness, they have prevented individuals from becoming backyard dwellers in affluent suburbs. Through eviction orders, the city is also able to fulfil its duty of ensuring a clean and safe environment for all its citizens.
While some may argue that the homeless should be content with being offered a place that provides a roof over their heads during the night and a meal a day, the need for discussions with the homeless is paramount to the granting of a fair and just eviction.Bukhobethu Matyeni is an associate of Herold Gie Attorneys. The article was vetted by senior associate Peter Michaels.