People don’t choose to live in public parking areas out of malice, wilfulness, but out of desperation or need, according judge
The Cape High Court ruled against Cape Town’s decision to evict people who were living in a tent camp located in District Six.
The City used its bylaws as a justification for the eviction.
The court disagreed, and stated that the eviction was required by the PIE Act and that a court order was needed.
The City stated that illegal occupants were a major hindrance to the construction of houses for District Six beneficiaries.
A ruling by the Cape High Court states that the City of Cape Town can’t use bylaws in order to disregard the Constitution’s Bill of Rights.
The case before Judge Rosheni Alle involved the expulsion of dozens of people who were living in tents or other informal structures on a “parking area” in Sydney Street, District Six
Ruwayda Davids and 42 others, represented by housing rights organisation Ndifuna Ukwazi, complained that they and other residents living in tents and informal structures were unlawfully evicted by City law enforcement.
They said that on Sunday 19 September about ten law enforcement vehicles arrived at the property, followed by a crane and a loading truck.
They were asked to leave their homes and remove all personal effects.
City officials began to demolish tents and other structures and to confiscate personal items, including drivers licenses, identity documents, blankets, toiletries, and food.
Some evictees were notified to appear in front of the municipal court for violating the bylaws. They also had the option of receiving fines.
They were not given a copy a court order authorising eviction.
Davids and co-applicants stated that their eviction could not be authorized under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act.
However, the City stated that tents are impounded pursuant to bylaws relating streets, public places and the prevention nuisances.
Read the judgment here
Judge Allie said the main question she had to answer was whether, under the City bylaws, enforcement officers were permitted to remove tents and makeshift structures.
The applicants claimed they lived in extreme conditions, freezing cold, and were still living as “households”.
“About a month prior to September, the City’s social development department officials approached some of the applicants and offered them accommodation at the City’s Safe Space.
“Davids said she had been on the City’s waiting list since 1991, she had previously used the Safe Space facilities, but it did not allow her to live with her household members,” the judge said.
“The Safe Space in Culemborg requires them to wake up at 6am, have breakfast and leave by 8am and return at 5pm. The Judge stated that this is not a home where household members can stay together during the day. It is a shelter for homeless persons.
Davids stated to the court that the City was using the bylaws in order to circumvent the PIE Act, and “criminalized the poor”.
The City said the applicants were contributing to the demise of the area by making illegal fires, littering, dumping, increasing criminal activity, abusing drugs and alcohol, creating a nuisance by fighting with each other, blocking drains and damaging fire hydrants.
It said the land in District Six had been targeted for unlawful use since 2020 and the illegal occupants presented a major obstacle for the building of houses for District Six beneficiaries.
Judge Allie said in the absence of judicial oversight and fair process, the eviction of a person from their home and the demolition of their home, whether it was an established building or a temporary shelter, violated the person’s constitutional rights to dignity, housing, safety and health and even the right to life.
“Properly interpreted, the provisions of PIE require that if there is any doubt about whether a structure is occupied, or whether it is completely or fully built, an organ of state or a private person must obtain a court order before it may evict a person from or demolish that structure. This applies to any structure that looks like a shack or hut or tent, or any other temporary or permanent dwelling or shelter. The judge stated that this interpretation is the best for the Bill of Rights.
This was boosted by the provisions of the Disaster Management regulations.
” The plight of these applicants is very similar to the situation of millions of South Africans. Therefore, the City cannot enforce the law.
“Parlous financial circumstances are driving people in desperate poverty to set up home on land unlawfully.
“The bylaws, in context, clearly envisaged that a category of people who live on the streets are willfully disobeying the law.
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“There is no doubt that the applicants do not choose to live in a public parking area out of malice or wilfulness … but out of desperation and need. They are willing to risk being attacked by criminal elements, and they endure inclement weather.
“The City cannot compel them to live in places far from the city … . The judge stated that they cannot travel to seek employment or food if they don’t have the means.
“The streets bylaw must be applied with due regard to its purpose and context. It has the effect of evicting occupiers of informal structures, without a court order,” stated the judge.
Judge Allie ruled that the eviction was unlawful, directed the City to return all that was confiscated, and that the City provide all the applicants with their goods or compensate them with R1,700 each.
Danielle Louw, attorney at Ndifuna Ukwazi, said: “Our clients are elated with the outcome of their case. This ruling confirms that street-based occupiers are subject to the PIE Act. Their tents and habitable structures can be considered their home and the City must get a court order to evict them. We are confident that the judgment will dissuade the City from continuing to illegally dispose of and displace street-based occupiers. “
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