As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
“The law is the law,” said Vusi Mona, spokesperson for SANRAL, on Tuesday when he attempted to justify the eviction of hundreds of people from their homes built on SANRAL land. Mona was invoking an interim interdict aimed at unspecified persons intending to occupy SANRAL land to justify the eviction.
The interdict purports to prohibit unspecified persons from unlawfully occupying the land, building structures on the land and inhabiting those structures. It also authorises SANRAL, duly assisted by the SAPS, to remove people from the land, demolish their homes and remove their belongings from the land.
However, the interdict clearly excludes from its ambit those who had already occupied land and were already living in structures on the land at the time that the interdict was granted.
This means that any action taken by the SAPS – on the instructions of SANRAL – against those who were already occupying the land on 24 January would be blatantly illegal.
This does not mean that the eviction of people who occupied the land after 24 January and the demolition of their homes were constitutionally valid.
A court clearly has the power to grant an interdict to prevent people from unlawfully occupying land and building informal structures on that land to house them.
But once they occupy the land and build homes on it, only a court can order an eviction and then only after considering all the relevant circumstances as set out in the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act (PIE).
What the court cannot do, is prospectively order the eviction of unspecified people from their homes and the demolition of those homes by granting an interdict to that effect, as this would be in direct conflict with the Constitution.
The Constitutional Court is currently considering this issue (in the case of Zulu and Others v Ethekweni Muncipality and Others) but in doing so they must be guided by section 26(3) of the Constitution which states that:
No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
In the Zulu case the Ethekweni Municipality conceded before the Constitutional Court that an interdict that actually authorised eviction and demolition would be unconstitutional. However, it argued, quite unconvincingly in my opinion, that an interdict allowing the SAPS to remove existing occupiers from land and demolishing their homes did not in fact constitute an eviction.
Where the court grants an interdict that operates prospectively and allows authorities to prevent occupation of land as well as the eviction of those who have settled on the land and the demolition of their homes, they abdicate their responsibility granted to them by section 26(3) to either private bodies or to organs of state like SANRAL or the Police.
In such a case there would be no judicial oversight over the possible eviction of people who would often be desperate because they would be occupying land illegally because they literally have nowhere else to go.
Neither would there be any consideration of all the relevant circumstances relating the manner in which the land was occupied and the desperation of the occupiers as required by section 26(3) and further elaborated upon in PIE.
As the eviction and demolition of homes at Nomzamo settlement in Strand thisweek demonstrates, a court who grants an interdict that prospectively allows an authority to evict people from their homes and demolish those homes unconstitutionally circumvents the requirements of section 26(3) of the Constitution and sabotages this section of the Constitution.
An interdict such as the one bandied about by SANRAL to justify their heartless action is therefore almost certainly unconstitutional.
In the judgment of Port Elizabeth Municipality v Various Occupiers the Constitutional Court displayed a far more humane and sensitive attitude towards human beings than either the judge who granted the SANRAL interdict or the spokesperson of SANRAL. Discussing the way in which PIE had to be interpreted and applied, Sachs J stated:
PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.
The fact that SANRAL and the SAPS displayed a complete lack of grace and compassion in this case, underscores the need for court involvement in any decision to evict people from their homes.
This is important because a court that considers whether to evict people from their homes in accordance with section 26(3) of the Constitution, read with the provisions of PIE, will have to ask many questions that neither the court who issued the interdict nor SANRAL ever asked.
Section 6 of PIE states whenever an organ of state like SANRAL requests a court to grant an order for eviction the court can only do so if it is just and equitable to do so, having regard to the circumstances under which the unlawful occupier occupied the land and erected the building or structure; the period the unlawful occupier and his or her family have resided on the land in question; and the availability to the unlawful occupier of suitable alternative accommodation or land.
In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties the Constitutional Court said that when considering whether an eviction would be just and equitable, a court must also consider the obligations of the municipality in a case. Even where a third party requests an eviction order a municipality must act reasonably in the circumstances.
In terms of Chapter 12 of the National Housing Code requires authorities like Municipalities to provide housing assistance in emergency housing circumstances. This means that the Municipality has a duty to provide assistance to people who find themselves in a housing emergency for reasons beyond their control. Where they are evicted – legally or illegally – people will find themselves in a housing emergency.
As the Constitutional Court explained in Blue Moonlight Properties a municipality cannot argue that in terms of Chapter 12 it is neither permitted nor obliged to take measures to provide emergency accommodation to those evicted. On the contrary “[t]he City is obliged to provide temporary accommodation”.
Claims by Premier Helen Zille on Twitter to the contrary are therefore false. As soon as the eviction occurred, the City of Cape Town had a duty to assist those evicted by SANRAL.
What remains incomprehensible is that many cities across South Africa still view homeless people who are forced unlawfully to occupy land because they have nowhere else to go as law-breakers – as if homeless people are not human beings imbued with incomparable human dignity.
What is needed is a complete paradigm shift on the part of authorities in South Africa. Millions of South Africans still do not have access to formal housing. Like everyone else, those who have no access to formal housing need shelter from the cold and rain. If they do not have the resources to buy or rent property they must be accommodated, and it is the state that has a responsibility to do so.
But many municipalities and provincial governments as well as the national government seem reluctant to deal pro-actively with those in desperate need of shelter. Instead of devising and implementing drastic and far-sighted policies to accommodate those in need of shelter, authorities often seem to treat the homeless as a nuisance to be combatted.
In the absence of such far-sighted policies to provide those in desperate need with access to forms of housing, many people will be forced to occupy both state and private land unlawfully. When they do, authorities often break the law by evicting the occupiers without obtaining the constitutionally required eviction orders and without providing alternative accommodation.
The result is that the authorities (in both DA and ANC municipalities) are often at war with poor people, the very people they claim to revere during elections. It’s a vicious circle: authorities fail to prioritise the needs of poor people and then rhetorically criminalise people for being poor by blaming them for having the cheek to do what is necessary to survive.
When authorities use the law as an excuse for their war on the poor – as Vusi Mona did this week – they undermine the legitimacy of the law. After all, where the law makes it impossible for poor people to survive with even a semblance of dignity, the law is an ass.