How magistrates and local government are failing to uphold the Constitution

For 31-year-old Michael Pedro, defending his family’s right to a home in court was alienating, heartbreaking. At each court date he and ten of his shack-dwelling neighbours, some of whom have lived on a plot of land in Walmer Estate for decades, walked three and a half kilometres through the grassy plains of District 6 which separate their home from the Cape Town CBD.

In Parade Street they shuffled onto the benches of a Cape Town Magistrates’ Court room. Their names were called out one at a time, at which they raised their hands in turn. Then, they were asked to step outside while lawyers deliberated their fate.

“It was a terrible feeling – having to leave the room,” Pedro says.

“We wanted to speak! But, the magistrate hardly looked up at us when our names were called. From the beginning, it seemed like a lost cause. Money the landowner’s expensive lawyer rules in that court room. We knew that they were just going through the motions. It was frustrating, because we felt confused and helpless. Our lives were essentially at stake.”

In 2009 Ismail Ryklief bought 3B Cambridge Street where Pedro and his neighbours live. In December last year he filed an application for an eviction order.

The court record reflects responding affidavits from most of the occupiers at the property where Pedro has lived for his entire life. The occupiers, with help from Legal Aid South Africa, argued that an eviction order would not be “just and equitable”.

Sections in the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (Illegal Eviction Act) prescribe what considerations a court needs to make before ruling that an eviction order is just and equitable. These include considering the rights and needs of “elderly, children and disabled people” and, for longer term occupiers, whether land has been made available by government for relocation. Read with section 26 of the Constitution, which guarantees the right to adequate housing, these provisions guard against the possibility of evicting someone into a state of homelessness and destitution.

Pedro and his fellow occupiers confirm in their submissions that they do not have alternative accommodation and would be rendered “homeless” by an eviction. Further, Pedro appeals to the court to consider the plight of his two children, seven-year-old Xavier and three-year-old Xavierana.

“Xavier attends school at Rahmaniyeh Primary, in close proximity to the property. Should we be evicted, my son’s development and education would be negatively impacted.”

The personal circumstances of other occupiers confirm poverty and vulnerability.

“I am currently working as a char on average two times per week, and earn at most R70 per day. I do not receive social grants… I would endure a great hardship (if an eviction order was granted) especially due to the fact that I do not have alternative accommodation,” writes Janine Michaels, mother of 3-year-old Moeghamat Hasiem Michaels, in her affidavit.

Michael Simmery, Pedro’s 63-year-old father, tells the court that he has lived there for nearly 40 years.

In all instances the occupiers agree that an eviction would be just and equitable only if the City of Cape Town, a respondent in the case, was ordered to provide alternative accommodation. The City’s submission to the court however held that this was impossible: the occupiers won’t be prioritised for government housing, and the municipality’s emergency housing plan does not make allotment for people evicted into homelessness.

On 17 June 2014 the Magistrate signed an eviction order. The City was not ordered to provide alternative accommodation. Since then, pressure on Pedro and his neighbours has been mounting. In October, visits and threats from the sheriff, tasked with enforcing the eviction, increased. Contracted labourers have carried the occupiers’ belongings and furniture and dumped it on the pavement. So far, they have stopped short of breaking down the occupiers’ homes.

But, an eviction which will wipe Pedro’s ancestral home off the face of the earth is imminent. The court case, the City’s refusal to provide alternative accommodation, the magistrate’s failure to order it to do so, and the threats and harassment by the sheriff do not square with constitutional principle and precedent. In South Africa’s constitutional democracy people may not be evicted into a state of homelessness. State organs, usually municipalities, are obliged to provide alternative accommodation. The Constitution and Illegal Eviction Act’s protections of vulnerable people have been bolstered by judgments in the Constitutional Court.

In 2011, in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties the Constitutional Court ruled that the City of Johannesburg’s housing policy was unconstitutional because it “excluded people evicted from private property from consideration for temporary accommodation in emergency situations”. The court ordered that the municipality must provide the 86 evicted occupiers from Blue Moonlight’s Berea premises with temporary accommodation “as near as possible” to the property.

Three year old Moeghamat Hasiem Michaels plays with a helmet after it was removed along with other possessions from his adopted grandfather’s home by the sheriff of the court. Photo by Daneel Knoetze.

Since then, the City of Johannesburg has been bound to provide alternative accommodation to vulnerable evictees. In some cases they have complied. But, accommodation set aside for this purpose has been occupied to capacity.

A large number of evictions have been stayed indefinitely until such time as the municipality can provide alternative accommodation, says Naseema Fakir Johannesburg’s regional director for the Legal Resources Centre.

“That in itself is hopelessly insufficient. What’s more, magistrates continue to hand down eviction orders with little regard for the Blue Moonlight judgment. Especially in Mpumalanga,” she said.

Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town, confirmed that lower courts have “an absolute duty to follow precedents” set by higher courts.

“If they do not, they are acting lawlessly,” he said.

“Ultimately the onus is on the magistrates themselves. They are independent and not employees of the Department of Justice. I am not practicing and cannot comment on whether this type of failure is endemic. But, if it is it would be a huge problem. It would mean that the Constitution is not being upheld.”

As Sandra Liebenberg, the H.F. Oppenheimer Chair in Human Rights Law at Stellenbosch University, pointed out in an article on GroundUp in September, the Blue Moonlight judgment is binding to municipalities as well. The City of Cape Town’s contention that the Walmer Estate residents would not receive temporary alternative accommodation and do not qualify for emergency shelter upon eviction is unconstitutional, she says.

“This would be in an important test case, one that has the potential to be precedent setting in Cape Town,” Liebenberg said, with reference to the Walmer Estate eviction order and the need for an appeal.

Following GroundUp’s initial report on the eviction, public interest lawyers and activists around South Africa have rallied to find a lawyer to take on the case. But, so far, without success.

Meanwhile, Pedro sits quietly on a broken bed frame next to his shack awaiting the call of the police and the sheriff. He is back-dropped by the pink, hazy sky seen over Table Bay when viewed from the mountain side at dusk. Three-year-old Moeghamat Hasiem, naked and ignorant of the impending hardship, giggles uncontrollably as he plays with the household dog in tall grass nearby.

“We’ll move. We never said that we wouldn’t be willing to do so,” he says.

“But we don’t want to lose everything and live on the streets. All I want is a roof over my head, a place where I can raise and protect my children.”

Knoetze is a reporter for GroundUp. He has been covering evictions.