Inner-city housing: Untying the legal knots of evictions
A standoff has developed between organisations representing poor residents in Johannesburg’s CBD and the City of Johannesburg.
On the one side are the metro council represented by mayor Herman Mashaba and City-owned companies such as the Johannesburg Property Company and Johannesburg Social Housing Company. Ranged against them are poor people supported by NGOs such as the Socio-Economic Rights Institute (Seri), South African National Civic Organisation, Wits Law School and other concerned groups and political parties.
At issue is the Prevention of Illegal Eviction Act and, to a lesser degree, an amendment bill that would, if enacted, bring some relief to property owners in the CBD.
According to the Estate Agency Affairs Board, "the proposed amendment seeks to change the definition of unlawful occupier so as to exclude any person who, having initially occupied residential premises with [express or tacit] consent, thereafter continues to occupy such premises once the consent has been withdrawn".
The amendment bill was drafted in 2006 and is still awaiting cabinet approval. "The amendment is a red herring," says advocate Stuart Wilson, executive director of Seri.
"It won’t make much difference even if it is passed because it’s likely to be considered inconsistent with the Constitution. "Section 26.3 of the Constitution says no one can be evicted from their home without an order of court made after considering all the relevant circumstances. Most importantly, no legislation can permit arbitrary eviction," he says.
"The relevant factor [that] the courts will always take into account is whether your eviction is likely to lead to homelessness. If that is the case, then the state has a statutory duty and a constitutional duty — a statutory duty under the national housing code and a constitutional duty under section 26.1 — to provide at least emergency shelter to stop you from being put out on the streets.
"That duty arises no matter what the history of the occupation of the property, and that duty arises both from the [illegal evictions] act and from the Constitution. You can change the act, but you can’t change the Constitution. So, we’re sitting at the moment with a set of legal principles that have developed that require the state to prevent homelessness.
"The act gives effect to the constitutional right not to be left homeless. That, in most circumstances, will trump a property owner’s right to vacant possession of his or her property, at least until alternative accommodation can be found."
There is recourse for property owners. They can engage with the occupiers and provide alternative accommodation, or they can engage with the City to induce, or compel, it to do so.
"The property owners now trying to seek eviction in all likelihood bought the buildings knowing them to be occupied by very poor people after long periods of abandonment by their original owners," says Wilson.
"In these circumstances, property owners have a responsibility to address the needs of the occupiers before seeking to renovate the buildings."
The current law says if property owners take action against illegal occupiers, the property owners must house them. The amendments would have given confidence to investors, importantly the banksPatrick Corbin
Johannesburg Property Company
Had the amendments become law, property owners would have enjoyed greater powers to evict squatters and building hijackers.
"If you legally evict people, you are faced with a string of obligations," says Patrick Corbin, chairman of the Johannesburg Property Company.
"The current law says if property owners take action against illegal occupiers, the property owners must house them. The amendments would have given confidence to investors, importantly the banks, made it easier to raise finance and to find partners to upgrade buildings. At the moment, if you finance a property in town, you’re on a hiding to nowhere. A core problem under the current act is people not paying their rent and there is nothing you can do to make them pay.
"You can’t evict them without jumping through many expensive hoops; you can’t turn off the electricity and water, although the building owner must still pay the utilities. How can you rent out a property without being sure the rent will be paid?" In 2017, the City of Johannesburg offered a variety of options to break the stalemate.
"Additional facilities are required," says Luyanda Mfeka, director of mayoral communications at the City. "However, the further roll-out of temporary emergency facilities, as well as the upgrading of other City housing stock for use as temporary emergency accommodation — such as the Moth building, MBV and Old Perm — was suspended by a legal challenge."
He says the City conducted an audit of about 500 "bad" buildings, 84 of which are confirmed as hijacked. There are 24 such buildings that belong to the City and represent opportunities for creating affordable housing through the Inner City Housing Implementation Plan.
"Public-private partnerships are crucial to this strategic approach," Mfeka says.
"A number of private role players already operate within the City providing social housing. Working together with these private developers, the City will be better able to meet the increasing demand for quality low income housing."
The City has committed
to fast-tracking development approval requirements and providing the bulk infrastructure services required for driving development. Last October, the City invited private partners to submit proposals for the development of 12 buildings.
In assessing the proposals, chief among the City’s considerations will be the investment to be made in developing the buildings; the number of high-density units to be developed in the building; the cost of rentals to be charged given the City’s priority for the provision of accommodation for low-income households and students; the degree of skills development to take place through artisanal training in the construction phase; and the number of jobs created and skills transferred during and after the development.
Seri’s Wilson agrees on the need for incentivising more partnerships and adds a few riders. "A lot of property owners in the inner city are fabulously rich in capital."
"You don’t buy a building in the CBD without having the capital to renovate it. Property speculators and owners ought, in my view, to cater for people who currently live in the buildings they’re buying as a cost of doing business," he says.
"The amount of profit to be earned in the inner city by buying a building and renting it out is huge. People are making bags of money. The cost of providing emergency housing for people who come to live in those houses is relatively minor. And in that way, if property owners wanted to, they could completely cut out the state and the state would be happy if they did that."
Another suggestion is for investors to contribute to the cost of housing homeless people relocated from city buildings identified for regeneration.
The City does intend dealing with the criminal element rampant in the Johannesburg CBD.
"As part of our efforts to reclaim the inner city, we will continue to intensify multidisciplinary raids within hijacked buildings to fight criminal slum lords who live off the desperate need of our residents," says Mfeka. "The City is also conducting socioeconomic and needs audits of those living within those buildings in the hope of providing support."
The Johannesburg metro police has recruited 1,500 new officers to provide enhanced visible policing in the CBD. The City is also trying to identify the real owners of hijacked building to reclaim the spaces.
Where owners cannot be identified, the City will try to expropriate the buildings to use them for housing development. Cleaning up the City and providing access to economic opportunities are other goals.
Some developers watching the confrontation between the City and its poor residents suggest that a "superworkshop" be held, attended by city officials, representatives of the construction industry, architects, property firms, banks and other financial services providers, law firms and pro-poor organisations to chart a way forward.
"I would welcome such a prospect. I believe each and every representative will have something useful to offer," says Bhekisipho Twala, chairman of the Johannesburg Social Housing Company.
"It might be time to recognise that we need some energetic lateral thinking instead of trying to resurrect old and clearly unworkable plans. I would like to see a three-day workshop attended by representatives of all players where we let ideas fly and then wring every ounce of energy out of them. Let’s break down the walls and talk.
"No one believes it will be easy; emotions are tense and attitudes obdurate. But we might be surprised where talk and working together take us."