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The court judgment relating to City of Cape Town vs Various Occupiers & Another, handed down on June 18, concerned the rights of some of the most vulnerable people in our society — people living on the pavements of Cape Town.

The city sought an eviction order in terms of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act (PIE) to evict 272 homeless individuals residing on seven sites located within the metro.

As the legal owner of all the sites in question, the city argued that the sites were not fit for human habitation. They are adjacent to busy roads, thereby posing significant safety risks, there is no access to water, sanitation or electricity, and the structures — often tents or makeshift shelters made of plastic and cardboard — are unsuitable for long-term living, providing limited protection and little security. 

The city contended that the living conditions for the occupiers of those sites were deplorable. They reside next to busy roads in temporary shelters and are compelled to live their lives with little privacy, struggling for food, shelter and warmth. 

The city also raised several risks rising from the current situation: the occupiers make fires to cook and stay warm, which can damage state infrastructure such as pavements and bridges; their presence obstructs pedestrians and traffic, forcing pavement users onto the road and creating risks for both pedestrians and motorists; and the living conditions are unhealthy and hazardous for the occupiers, who suffer from malnutrition, physical and psychological health risks, and diseases due to food waste, lack of sanitation and exposure to fires and vermin. Finally, the conduct of the occupiers affects people living and working in the city, as the occupiers are forced to conduct normal human activities such as urinating, defecating, bathing and having sex, in public. 

The court held that the city is obliged to take positive action to meet the needs of those living in extreme poverty, homelessness or intolerably inadequate housing, and that it must remedy their living conditions, take reasonable steps to realise their right to housing, and ensure they can live with dignity and privacy.

As established in the Government of the Republic of SA and Others vs Grootboom and Others case, the constitution requires that everyone be treated with care and concern, especially those whose needs are urgent and whose ability to enjoy all rights is most at risk. 

The city offered alternative accommodation in “safe spaces” developed in the city centre, which, though rudimentary, are better than the current conditions of the occupiers. These safe spaces provide toilets, showers, meals, blankets, clothes and services aimed at helping the homeless transition off the streets and into permanent homes. The city submitted that it was committed to assisting those in its safe spaces with overcoming addiction, finding jobs and reconnecting with their families. 

While the occupiers acknowledged the risks to their wellbeing due to living on the street, and did not claim a right to indefinite occupation of the sites in question, they asserted that eviction should only occur after meaningful engagement with the city and the offer of suitable alternative accommodation.

Despite the city’s efforts, some occupiers argued that the city did not adequately engage with them, presenting a binary choice of either safe spaces or nothing. They contended that the safe spaces were not suitable alternative accommodation due to restrictive rules that separate families and limit freedom. They argued that the lockout rule forced them out onto the streets during the day with no place to rest. As a result, people sought refuge on the street while they waited for the shelter to reopen. Furthermore, the occupiers argued that the safe spaces did not make provision for couples and families and their rules kept single men and women separately. 

After various engagements, the city offered to ensure that couples accommodation would be made available. With regard to the lockout rule, the city held that ''residents will be encouraged to vacate the site between 08h30 and 17h00 every day unless the personal circumstance of any resident makes this unreasonable on a day or for a period of time”. The occupiers expressly accepted in their counsels’ heads of argument that this amended rule “is now consistent with the constitution.” This was accepted by the occupiers. 

The court found that the city had met its obligation to meaningfully engage with the occupiers, having had extensive engagements pre- and post-application, particularly addressing concerns about the rules of the safe spaces. It held that failure to reach an agreement or offer different accommodation did not negate the meaningful engagement that had taken place. The court said suitable alternative accommodation need not be accepted by the occupiers, and found that the safe spaces provided by the city were adequate, offering better conditions than the streets and meeting the standard of adequacy.

In conclusion, the court found that the eviction of the occupiers from the seven sites in question was just and equitable, recognising that the city had complied with its obligation to meaningfully engage with the occupiers and that the safe spaces constituted suitable alternative accommodation. The eviction order was granted. 

The court held in City of Johannesburg Metropolitan Municipality vs Blue Moonlight Properties 39 and Another, that it is irrefutable that the state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerably inadequate housing. While eviction orders do not offer a sustainable solution to homelessness, they have prevented individuals from becoming “backyard dwellers” in affluent suburbs. Through eviction orders, the city is also able to fulfil its duty of ensuring a clean and safe environment for all its citizens. 

While some may argue that the occupiers should be content with being offered a place that provides a roof over their heads during the night and a meal a day, the need for engagement with occupiers is paramount to the granting of a fair and just eviction. 

• Matyeni is an associate at Herold Gie Attorneys.

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