28 August 2020
LRC WELCOMES LOCKDOWN LEVEL 2 REGULATIONS ON EVICTIONS AND DEMOLITIONS
On 17 August 2020 and in terms of the Disaster Management Act 57 of 2002, regulations taking effect on 18 August 2020 and governing alert level 2 during the coronavirus Covid-19 lockdown were gazetted under gazette 43620.
The Legal Resources Centre (LRC) welcomes the new regulations and specifically the regulations relating to eviction and demolition of places of residence as a positive step forward in the protection of the constitutional right to housing. According to the regulations, a person may not be evicted or have their home demolished for the duration of the national state of disaster without a court order. The LRC has noted the reports of the demolitions of persons’ homes by municipalities during the national state of disaster including the cities of Johannesburg and Cape Town attending to demolishing persons’ homes under the veil of either counter-spoliation or the claim of illegal and unoccupied structures.
On 16 April 2020, the City of Johannesburg ordered the Red Ants (without or with an order – which order has not been seen to date) to demolish shacks and brick houses in the Lawley area, Roodepoort. Three sets of attorneys brought urgent applications to declare the City’s actions as unlawful evictions. The City of Johannesburg then called
for settlement discussions that were attended by all representative attorneys as well as the Centre for Applied Legal Studies as a civil society representative. The City of Johannesburg advised that people in need of temporary accommodation may apply to the city for. The claims were processed but few succeeded. During April 2020, in the
midst of the above process, the City issued a notice of motion and founding affidavit seeking to interdict any person from building any structures on specified properties in Lawley as well as applying for authorisation to demolish any structures built after the date of the Court order. In July 2020 there were reports of residents close to this area
The LRC participated in a process with the Centre for Applied Legal Studies (CALS) to draft submissions that were included in a public statement issued by CALS on 20 August 2020 and endorsed by the LRC and other civil society organisations https://www.wits.ac.za/news/sources/cals-news/2020/social-justice-organisationswelcome-new-lockdown-regulations-on-evictions.html
In Cape Town, the LRC has instituted a court application on behalf of the South African Human Rights Commission and others to interdict the City of Cape Town from carrying out all forms of eviction, including demolishing of informal structures without a court order as well as challenging the City of Cape Town’s Anti-Land Invasion Unit reliance on the common law principle of counter-spoliation to circumvent the moratorium on evictions. This followed a memorandum sent on 5 July 2020 to relevant national departments requesting an undertaking that the Disaster Management Regulations be amended to include a provision that expressly prohibits any demolition of structures, by a municipal body or private entity, identified as ‘illegal land occupation’ under the lockdown period unless a court order is obtained permitting it.
The applicants seek further relief that parties that conduct evictions permitted by court order, to do so in a lawful manner that respects the dignity of the affected persons.
The application extends beyond a moratorium on evictions and demolitions and applies for the South African Police Services to be present during such evictions to ensure a lawful and constitutionally compliant process; interdicting the City of Cape Town from relying on orders previously granted to conduct evictions and demolitions and, finally, that the City be interdicted from adjudicating and awarding a tender related to demolitions of “illegal formal and informal structures” in the City of Cape Town metropole. The hearing was heard on 20 and 21 August 2020 at the Cape Town High Court with judgement being handed down in favour of the LRC.
The LRC wishes to see further improvements in the law with regard to the right to housing which includes:
We remain hopeful that the new regulations will go some way to addressing the problems we record, but recognise that much more is required to secure the objective of equitable access to safe and dignified housing for all South Africans during and after the national state of disaster.