THE LWANDLE EVICTION Ministerial Enquiry 2014
Building the future today, together MINISTERIAL ENQUIRY MEMBERS
Adv. D Potgieter (Chairperson)
Ms J Sosibo Ms N Dambuza
Mr A Steyn Ms A Van Wyk
M Ramotsamai CHAPTER 1
INTRODUCTION
This report provides a detailed account of the investigation in respect of the evictions that occurred on 2 and 3 June 2014, in Nomzamo (Lwandle), Strand. The incident affected hundreds of families, including women and children. These families were evicted from the land owned by the South African Road Agency Limited (SANRAL), earmarked for the construction of the unbuilt section of the N2 national road between Somerset West and Lowry’s Pass.
In mid-December 2013 and early January 2014 a number of people started invading a portion of Erf 32524, Nomzamo, Strand. The invasion was brought to the attention of SANRAL, the owner of the land, by the City of Cape Town in the following manner :
(a) A letter dated 20 January 2014 in which SANRAL was advised that there were 24 structures on the site;
(b) A letter dated 21 January 2014 advising SANRAL that 35 structures were erected, 95 structures were in the process of being constructed and 400 sites were pegged out;
(c) SANRAL was served with a notice by the City of Cape Town on 22 January 2014 giving it fourteen (14) days to rectify the situation,
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failing which it may be held responsible for all legal costs as contemplated in Section 6(5) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (Act 19 of 1998).
SANRAL then proceeded with an ex parte application to the Western Cape High Court, Cape Town under case no. 1114/2014 for an urgent interdict to prevent this land from being occupied. An Interim Interdict was granted on 24 January 2014 and was extended on a number of occasions, finally to 22 June 2015. This order was then used by the Sheriff of Strand to carry out an eviction on 3 February 2014 and subsequently on 2 and 3 June 2014.
The eviction of the community on 2 and 3 June 2014 led to a humanitarian crisis with families left destitute in the dead of a cold and wet Cape Town winter and the examinations of the affected learners being disrupted. This led to the involvement of many stakeholders that provided relief to the evictees. The evictees were temporarily housed in Nomzamo Hall from 3 June 2014 after having spent a night out in the open on 2 June 2014.
Following a huge public outcry and perceptions of violations of human rights in the process of the evictions, and with no one taking responsibility for the disaster, the Minister of Human Settlements, the Honourable Lindiwe Sisulu (“the Minister”) appointed a Ministerial Enquiry (“the Enquiry”) against the following background1 :
“(i) The Minister of Human Settlements, Lindiwe Sisulu, has taken serious note of the eviction of the community of Lwandle in Cape Town by the Sheriff of the Court on behalf of SANRAL pursuant to
1 As set out in the Terms of Reference dated 4 June 2014
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an Interim Order of the Cape High Court. The Minister is of the considered view that all those affected have rights that should be upheld and obligations that must be honoured. She also takes the view that there are laws and attendant responsibilities that are accorded to all and that in all these actions the rubric of the law must be respected.
(ii) The Minister is sensitive to the housing needs of the communities and strongly believes that humane solutions must be found to their plight without compromising the essence of the law.
(iii) The Minister is desirous to establish the real causes of the land occupation, resultant eviction and all legal processes that have been followed leading to the ultimate evictions. The outcomes of this Enquiry must be informative to the continued quest to find humane and lasting solutions to the housing challenges in our country. The competition for access to urban space as a result of rapid urbanization must engender the lawful approach by all the parties involved where both property and individual rights are respected. It is hoped that the outcomes of this Enquiry will help the government to develop a system of educating our communities and other stakeholders in this regard. Government is concerned about unlawful occupation of land because systems have been put in place to deal with the housing challenges.”
The Enquiry comprised of the following members :
Adv. D.O. Potgieter SC (Chairperson) Ms B.N. Dambuza Ms M. Ramotsamai-Kotsi Ms J.E. Sosibo Mr A.C. Steyn
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Ms A. Van Wyk Mr B. Xulu
Mr Xulu resigned from the Enquiry on 14 July 2014.
The Terms of Reference of the Enquiry were as follows: “The Enquiry must :
(i) Investigate all the circumstances under which the evictions took place, and the history of the evictions, including the facts leading to the application for and obtaining of the court order on 24 January 2014 by SANRAL; the execution of the said court order by SANRAL; the role of the relevant Sheriff for the jurisdiction of Cape Town; the roles of the law enforcement officials of the South Africa Police Services, the Cape Town Metro Police and any other official of the national, provincial and local government involved and any other person;
(ii) Establish the identity of the members of the informal settlement community of Lwandle, how the community came to be on the land in question when there is [a] waiting list for the provision of housing in terms of government programmes;
(iii) Report to the Minister on its investigation and findings; and
(iv) Make necessary recommendations to the Minister for consideration.”
The Enquiry was supported by a Secretariat that comprised of a Head, a Media and Stakeholder Liaison Officer, a Researcher, a Logistics Officer and other support staff.
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The term of the Enquiry commenced on 4 June 2014 and was initially scheduled to end on 4 September 2014, but was extended by the Minister to 30 September 2014.
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CHAPTER 2
POLICY AND LEGISLATIVE FRAMEWORK
INTRODUCTION The overarching mandate for the provision of housing is underpinned by Section 26 of The Constitution of the Republic of South Africa 1996 (Act 108 of 1996) (The Constitution). The Constitution directs that access to adequate housing is a basic human right. Government must take appropriate legislative and other steps, to ensure that the environment is conducive to the progressive realization of this right, within the ambit of available resources.
Arising from the Constitutional mandate, prescripts which support access to adequate housing for poor households were set out in the Housing Act 107 of 1997 and the White Paper on Housing (White Paper). The White Paper contains, inter alia, the basic principles for Government’s Housing Policy which is aimed at achieving its housing vision. The White Paper furthermore stipulates that poor households should be provided with houses and basic services (sanitation and potable water) on an equitable basis.2
National Housing Policies and Programmes together with Implementation Guidelines and various technical and other provisions are contained in
2 National Housing Code (2009), pg 9
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the National Housing Code 2009 (Code 2009), which revised and enhanced the National Housing Code 2000.
Ten years into the democratic dispensation, an all-embracing review of the outcomes of the housing programmes within the context of the socio-economic changes in the country was undertaken. This process led to the formulation of the Comprehensive Plan for the Development of Sustainable Human Settlements (Comprehensive Plan), as approved by Cabinet in September 2004.
Some of the applicable polices and legal provisions relevant to housing as well as evictions are dealt with more fully below.
NATIONAL HOUSING CODE
The National Housing Code, 2009 (Code 2009) (as updated) documents National Government’s housing assistance programmes that were instituted since 1994. The Code 2009 comprises of:
the policy and programme principles; minimum norms and standards in respect of housing delivery; qualification criteria for potential beneficiaries; and guidelines for the Expanded Public Works Programme and the Monitoring, Evaluation and Impact Assessment Strategy for the Housing Sector.3
The Code 2009 is more user-friendly than its 2000 predecessor and the current version is less prescriptive. It simplifies the implementation of housing projects and provides clear guidelines for delivery. The Code
3 National Housing Code 2009, pg 53
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2009 is supported by the National Housing Code 2000 in respect of the rules of those programmes not contained in the Code 2009.
COMPREHENSIVE PLAN FOR THE DEVELOPMENT OF SUSTAINABLE HUMAN SETTLEMENTS
The Comprehensive Plan, also frequently referred to as “Breaking New Ground” or (BNG), retained the basic principles of the White Paper. It shifted the focus from the emphasis on the quantity of houses delivered to:
quality housing environments; the upgrading of informal settlements; integrating communities and sustainability of the settlements ; and set new standards for housing, privacy and the incorporation of socio-economic amenities which ensured that sustainable human settlements were being delivered.4
The emphasis on Informal Settlement Upgrading emanated from the quest to meet the Millennium Development Goals (MDGs) of the United Nations to improve the lives of slum dwellers. Implementation of the Comprehensive Plan has been sustained and supported by provincial departments and local authorities together with the restructuring of the Housing Support Institutions.
POLICY PRESCRIPTS APPLICABLE TO EVICTIONS
The applicable policy prescripts for the households affected by evictions, as was the case of the community at Nomzamo (Lwandle), is the
4 National Housing Code 2009, pg 9
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National Housing Programme : Housing Assistance in Emergency Circumstances (Policy Prescripts and Implementation Guidelines), (hereafter referred to as the Emergency Housing Policy), contained in Part 3 : Chapter 12 of the National Housing Code as instituted in terms of Section 3 (4) (g) of the Housing Act.
NATIONAL HOUSING PROGRAMME : HOUSING ASSISTANCE IN EMERGENCY CIRCUMSTANCES
On 14 November 2003, Housing Minmec (a meeting consisting of the National Minister and MECs for Human Settlements) approved the Emergency Housing Policy. This policy determined prescripts and procedures to be followed by the Provincial Departments of Human Settlements (Provinces) and local Government in the provision of immediate relief in emergency circumstance and in cases of “exceptional housing need”. This is determined by the MEC for Human Settlements in the various provinces. Relevant aspects of the Emergency Housing Policy are as follows. i. Emergencies and emergency circumstances
“Emergencies” are defined as either declared or undeclared disasters or emergency circumstances, which are beyond the control of the affected households.
“Emergencies” could be caused by dangerous and disastrous conditions, living in areas below flood lines, on dolomitic land or areas that have been affected by floods, fires, storms, earthquakes, sinkholes, industrial incidents, and the like, all of which would have caused the households to be homeless.
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“Emergency circumstances” also arise in instances of households living in the way of services, being evicted or threatened by eviction, whose houses are to be demolished, being displaced due to conflict or unrest and living in life threatening conditions. ii. Intervention and assistance provided
The intervention and assistance by Government to the households affected by emergency circumstances or emergencies, takes the form of speedy removal and resettlement to other temporary and appropriate accommodation. iii. Eligibility criteria for assistance
Eligibility criteria for qualifying for assistance in terms of the Emergency Housing Policy include:
- whether the affected households can finance their own housing needs from their own financial resources;
- the inclusion of a wide range of affected beneficiaries, and may consist of non-qualifiers of Government’s other housing assistance programmes. This means that :
o the affected household income may exceed R3 500-00 per month; o householders may be non-South Africans; o such householders may be minors and without financial dependents; or o persons who are not first-time home owners.
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iv. Funding
The MEC responsible for Human Settlements approves funding for projects in terms of the Emergency Housing Policy. This can be done either by the reservation of a portion of its allocation of the conditional Human Settlements’ Development Grant (HSDG) or by reprioritizing the Provincial allocation, as emergency circumstances arise.
Such approved funds are allocated to the municipality, in the form of a Transfer Payment specifically to address the immediate needs of the affected households. The transfer payment may only be used for the purposes of assisting the municipality: to compile project applications; purchasing or leasing land where no municipal land is available; settlement planning; land surveying; basic municipal engineering designs and provision; temporary shelter or the supply of materials for the construction thereof; resettlement costs of the households; procurement of goods and services; and the repair and / or reconstruction of existing damaged formal housing.
The Province may set aside per structure a total amount of R1 851-00 for land and planning purposes, R23 892,00 (incl. VAT) for temporary shelter provision and a percentage of the total cost for variations like the geotechnical conditions of the soil.
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It is noted that the funding allocated will be discounted against future permanent subsidy approvals, if applicable and will not be used to promote queue-jumping.
The ownership of the top structures purchased, in terms of this funding mechanism, vests in the Provincial Department and ownership thereof may be transferred to the municipality, if desired. v. Categories of emergency housing solutions
Different categories of emergency housing solutions are identified within the Emergency Housing Policy. Temporary Relocation Areas (TRAs) is the only category that applies to informal settlement depending on the specific and urgent predicament that is encountered. vi. Applicable norms and standards
In view of the nature of the intervention, different norms and standards for services and the top structure from the National Norms and Standards, as set out in the Code 2009, apply. In so far as the services in the temporary settlement is concerned, access to water may constitute one tap per twenty five (25) families, sanitation may comprise five (5) families per VIP toilet and access roads with emergency vehicle access are required. The Emergency Housing Policy makes no provision for household electricity. The norms and standards for the temporary shelter provision do not align with the National Norms and Standards, as prescribed. Minimum standards for temporary shelters should be 24m2 – 30m2 and should be basic, simple units which are easy to construct.
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Where possible, the immediate and temporary intervention by the municipality should be planned as the initial phase of a permanent solution to facilitate the cost-effective use of the allocated funds. vii. Procurement of goods and services
The procurement of goods and services in terms of this Policy must comply with the prescripts of The Constitution, the Public Finance Management Act, 1 of 1999, Municipal Finance Management Act, the Preferential Procurement Policy Act, 5 of 2000 and Regulations 21 and 28 of the Municipal Supply Chain Management Regulations (SCM Regulations). Deviations in the case of extreme urgencies will be allowed. viii. Institutional arrangements
The prescribed institutional arrangements in terms of this Policy, are as follows : a. The Municipality is authorized to: assess the situation confronting the community; plan the intervention to meet the needs of the emergency; prepare the application for approval of funds required; acquire the land required and implement the project; and register beneficiaries on the Housing Subsidy System and manage the settlement processes.
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b. The Provincial Departments of Human Settlements are vested with the authority to:
guide the implementation of the Emergency Housing Policy; evaluate and consider the applications and, if approved, to provide the funds required; monitor the implementation of the Emergency Housing Policy, dismantle and store the shelters; and coordinate the disaster relief efforts.
c. The National Department is empowered to: provide guidance; maintain policy; monitor the overall processes; build capacity; assist with the release of state land, if required; and establish a national coordinating committee that will address large scale emergency housing needs.
Implicit in the general procedures for local project coordination is the formation of a formal Project Steering Committee, comprising representation from the Provincial and Local spheres of Government, affected households, the police and the Department of Home Affairs. This Project Steering Committee is responsible for all negotiations, communication and local decision-making, pertaining to all aspects of the application of the Emergency Housing Policy for that specific project. Other Departments, including the Departments of Rural Development and Land Reform, Cooperative Governance and Traditional Affairs,
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Environmental Affairs and Transport should be coopted onto the Project Steering Committee. x. Implementation guidelines
Implementation Guidelines have been formulated to ensure that the relevant provincial and local authorities adhere to the prescribed substance, processes and procedures for the implementation of the Emergency Housing Policy.
IMPLEMENTATION PROCEDURES ADOPTED BY THE WESTERN CAPE PROVINCE AND THE CITY OF CAPE TOWN
The Western Cape Provincial Department of Human Settlements (the Province)
As indicated earlier in this chapter, the Housing Act enjoins the MEC to ensure that the Emergency Housing Policy is implemented in the province. It is understood that the Province subscribes to the implementation of the Emergency Housing Policy and, in so doing, the Province undertakes various steps to ensure that the victims of emergencies are provided with relief.
In the first instance, the Province does not top-slice its conditional grant from the Human Settlements’ Development Grant (HSDG), but it makes provision for funding for the Emergency Housing Policy in the funding allocations that is disbursed to the municipalities.
In the second instance, the Province allows for upfront approval of flood and fire kits to the value of R10 million to be held in-store by the affected
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local authorities for the November and December months. The Province has taken this decision so as to facilitate expeditious delivery of the kits to the affected areas as these months coincide with the Builders’ and Staff Holidays. If this approach was not taken, extended approval and procurement processes during the summer months would further disadvantage the affected families. The local authorities that use this model of implementing the Emergency Housing Policy include the City of Cape Town, George and Malmesbury.
In those instances where householders do not have insurance and where houses need to be repaired because of damage resulting from, for example, a runaway truck or poor workmanship, the Province will undertake the repairs to the maximum amount permissible in terms of the policy.
In so far as the application of the National Norms and Standards for services in the temporary settlement, access to water, sanitation and access roads with emergency vehicle access are concerned, the prescribed ratios are abided by.
The minimum standards for the temporary shelters in the National Emergency Housing Policy were deviated from in respect of the prescribed 24m2 – 30m2 size of the units. It would appear that Province subscribes to guidance by the tender prices as the cost of the emergency kits can be prohibitive. Arising from this process, Emergency Kits which range between 9m2 – 18m2 , are kept in store by the local authorities. Since the funding is allocated to the local authorities, the procurement of the kits is undertaken by the municipalities as most of the municipalities are the Developers, except for the N2 Gateway Project where the Province is the Developer.
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CITY OF CAPE TOWN
As part of its processes to manage the unanticipated demands of housing communities affected by natural disasters and to provide relief to those households that find themselves in stressful circumstances, the City manages the crises in terms of the following programmes, as approved by the Council. These are : a. Incremental Development Areas5 ; and b. Reblocking in-situ Informal Settlements, where possible6.
a. Incremental Development Areas (IDAs)
The IDAs are defined as “Areas characterized by an IDA-designation, rapid servicing and release to households in urgent need which are :
permanent with respect to services; and consolidated over time with respect to top-structures, either by resident families themselves or by government’s Consolidation program.”
The aim of setting up IDAs was to provide relief to households that find themselves in “urgent need” of housing and not necessarily in “emergency circumstances”. Affected households are initially accommodated in a hall or they request shelter with other family members before being moved to the IDAs.
5 Incremental Development Areas (City of Cape Town’s website) 6 Reblocking Informal Settlements (City of Cape Town’s website)
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IDAs are limited in extent, do not make provision for social amenities and are integrated into the surrounding settlements. The IDAs allow for in-situ upgrading by enhancing the infrastructure and the construction of top- structures and a top-structure that fulfils the criteria for Emergency Housing rather than for the norms and standards as prescribed for Government’s fully subsidized housing programmes. The communities targeted in terms of this intervention are:
i. Evictees who have been uprooted from their current place of residence; ii. People who live in dangerous conditions (eg. flood-prone areas; slopes, etc.); iii. informal settlements; and iv. Backyard shack residents. b. Reblocking in informal settlements The City’s Reblocking in Informal Settlements Policy (RISP) entails in-situ development of land owned by the City, is not a substitute for formal housing development and is only undertaken if there is no need for the relocation of the households. RISP entails reconfiguring the layout of the informal settlements, grouping the informal structures into clusters, formalizing access roads for emergency services and ensuring appropriate distance between structures to minimize the spread of fires.
THE CONSTITUTION
Sections 26(1), (2) and (3) state that:
“(1) Everyone has the right to have access to adequate housing;
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(2) The state must take reasonable legislative and other measures, within its available resources, to achieve progressive realisation of this right. (3) No one may be evicted from their homes, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
The Constitution guarantees the right to adequate housing to everyone. This right forms part of a cluster of socio-economic rights that are expressly included in the Bill of Rights. All rights in the Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society are denied those who have no food, clothing or shelter. THE HOUSING ACT 107 OF 1997
The Housing Act, 107 of 1997 (Housing Act) defines the legislative mandate of housing delivery. In doing so, Section 3 (1) directs that “(T)he national government acting through the Minister must, after consultation with every MEC and the national organisation representing municipalities as contemplated in section 163 (a) of The Constitution, establish and facilitate a sustainable national housing development process.” Clearly this means that all matters relating to the housing delivery processes are undertaken with the cooperation of the three (3) spheres of Government. Section 3(2)(a) then establishes that the “Minister must determine national policy, including national norms and standards, in respect of housing development.” Hence, the role of the National Government is to formulate appropriate policies which will facilitate such housing development.
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Importantly, Section 2(1)(i) of the Housing Act, which provides that the three spheres must “strive to achieve consensus in regard to the policies of the respective spheres of government in respect of housing development”, is based upon Schedule 4 of the Constitution. It proclaims that both National and Provincial Governments have concurrent legislative competence in respect of housing.
Section 4(1) of the Housing Act prescribes that “(T)he Minister must publish a Code called the National Housing Code” while s4(2)(a) provides that the Code “must contain national housing policy”. The applicability of the Code to the three (3) spheres is drawn from s4(2)(b)(i), which specifies that the Code and all policies contained therein are approved, “after consultation with every MEC and the national organization representing municipalities as contemplated in section 163 (a) of the Constitution, (may) include administrative or procedural guidelines in respect of the effective implementation and application of national housing policy”. The directive on the validity of the Code and its pertinence to the three (3) spheres of Government is contained in s4 (6) of the Housing Act which prescribes that “(t)he Code shall be binding on the provincial and local spheres of Government”.
In line with the aforegoing, s3(2)(a) prescribes that “(A)n MEC must administer every national housing programme and every provincial housing programme which is consistent with national housing policy”. Hence, a MEC is empowered to approve a Provincial Housing Policy or Programme to meet the special circumstances of a province, provided that it aligns with the National Housing Policies and Programmes. Section 3 (2) (b) continues that the MEC “for this purpose may, in accordance with that programme and the prescripts contained in the Code, approve, (i) any projects in respect thereof; and (ii) the financing thereof
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out of money paid into the provincial housing development fund as contemplated in Section 12 (2)” of the Housing Act. Hence the MEC is obliged to ensure that applicable policies and programmes contained in the Code, are implemented in the province.
In order to ensure that funds are made available for housing purposes, Section 12 (1) (a) of the Act provides that “(T)he Minister may allocate money out of the Fund for the purposes of financing the implementation in a province of any national housing programme and any provincial housing programme, which is consistent with national housing policy and section 3 (2) (b)”. In this regard, the National Department of Human Settlements’ (DoHS) budget vote allocated from National Treasury as the Human Settlements’ Development Grant (HSDG) is dedicated towards the creation of sustainable human settlements. It facilitates the delivery of an improved quality of life of households’ in all provinces. In this regard, the HSDG is divided and then disbursed to each of the Provincial Departments responsible for Human Settlements as a Conditional Grant. It allows the DoHS to provide effective oversight, and ensure compliance with the Housing Code. It directs portions of the grant to accredited municipalities. The HSDG is to be utilised specifically to administer the National Housing Programme by facilitating the provision of basic infrastructure, top structures and basic social and economic amenities. This must contribute to the creation of the aforementioned sustainable human settlements. Transfer payments to the provinces are contingent on the latters’ performance, as assessed in reports submitted through the Housing Subsidy System (HSS), for project and programme administration as well as quarterly performance reviews by the NDoHS.7
7 HSDG Framework 2012
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In addition to the HSDG, the eight (8) metropolitan municipalities receive the allocations in terms of the Urban Settlement Development Grant (USDG). The USDG is a Schedule 4 National Government Grant, introduced in the 2011-2012 financial year, subsequent to a Cabinet Resolution taken in December 2012. In terms of the provisions of the Division of Revenue Act (DORA) the USDG is transferred directly to the metropolitan municipalities for the development and provision of infrastructure. The USDG is a special capital grant injection which is provided to ensure adequate infrastructure development in urban areas. It addresses the urgent need for accelerated human settlement developments, economic growth stimulation and reduce the costs of access to land and services for poor urban households. The application of the USDG is based on Integrated Development Plans (IDP) of municipalities. The IDP empowers municipalities to manage, properly plan and align resources for development projects and urban growth strategies as opposed to ad-hoc interventions when crises arise.8
INTER-GOVERNMENTAL RELATIONS FRAMEWORK ACT
The Inter-Governmental Relations Framework Act, 13 of 2005, (IGRF Act) notes that while the South African Government “is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated;” the challenges facing our country are “best addressed through a concerted effort by government in all spheres to work together and to integrate as far as possible their actions in the provision of services, the alleviation of poverty and the development of our people and our country”. Delivery of the National Housing Programmes is dependent on collaborative inter-governmental relations. It is noted that while housing delivery is described as a
8 USDG Framework
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concurrent function between the provincial and national spheres, actual delivery occurs at the local sphere. In order to facilitate delivery by different departments and spheres of Government, concerted and combined efforts by the affected departments and spheres of Government are required. The IGRF Act, accordingly enjoins these roleplayers to work together in the spirit of cooperative governance.
THE PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) prohibits illegal evictions and prescribes the procedures for the eviction of unlawful occupiers.
Section 4 provides that eviction of unlawful occupiers can only be done by an owner or the person in charge of the land. It further stipulates the applicable procedures.
At least 14 days before the hearing of the application, the court must serve a written notice of the proceedings on the unlawful occupiers and the municipality having jurisdiction.
The above provision ensures that unlawful occupiers are informed of the application against them and are given proper and reasonable time to prepare and oppose the application. The relevant subsections of s4 provide as follows :
“(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of
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the opinion that it is just and equitable to do so, after considering all the relevant circumstances including the rights and needs of the elderly, children, disabled persons and households headed by women.”
(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine-
(a) A just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and
(b) The date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).
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(9) In determining a just and equitable date contemplated in subsection (8) , the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question.
(10) The court which orders the eviction of any person in terms of this section may make an order for the demolition and removal of the buildings or structures that were occupied by such person on the land in question.
(11) The court may at the request of the sheriff, authorise any person to assist the sheriff to carry out an order for eviction, demolition or removal subject to conditions determined by the court provided that the sheriff must at all times be present during such eviction, demolition or removal.”
Section 6 deals with eviction at the instance of organs of state and provides as follows :
“(1) An organ of state may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, and if-
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a) the consent of that organ of state is required for the erection of a building or structure on the land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or
b) it is in the public interest to grant such an order.
(2) For the purposes of this section, public interest includes the interest of the health and safety of those occupying the land and the public in general.
(3) In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to-
a) The circumstances under which the unlawful occupier occupied the land and erected the building or structure; b) The period the unlawful occupier and his or her family have resided on the land in question; and c) The availability to the unlawful occupier of suitable alternative accommodation or land.”
Section 7 deals with dispute resolution and provides as follows:
“(1) If the municipality in whose area of jurisdiction the land in question is situated is not the owner of the land the municipality may, on the conditions that it may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this
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Act: Provided that the parties may at any time , by agreement, appoint another person to facilitate or mediate a dispute, on the conditions that the municipality may determine.”
Section 8 provides for criminal sanctions as follows :
“(1) No person may evict an unlawful occupier except on the authority of an order of a competent court.
(2) No person may wilfully obstruct or interfere with an official in the employ of the State or a mediator in the performance of his duties in terms of this Act. (3) Any person who contravenes a provision of subsection (1) or (2) is guilty of an offence and liable on conviction to a fine, or to imprisonment not exceeding two years or to both such fine and such imprisonment.
(4) Any person whose rights or interests have been prejudiced by a contravention of subsection (1) has the right to institute a private prosecution of the alleged offender.”
The Act requires a court to have regard to various factors, such as whether the occupiers include vulnerable categories of persons (the elderly, children and female-headed households), the duration of occupation and the availability of alternative accommodation or whether the state can provide alternative accommodation in instances where occupiers are unable to obtain alternatives on their own.
CONCLUSION
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This Chapter set out the mandate for housing delivery and then outlined the policy that underpins National Government’s response to emergency circumstances and emergencies that households may find themselves in. It also made reference to the IDA and RISP, which the CoCT uses in its processes to plan for those households that live in informal conditions.
It is noted that the roll out of service delivery in the public sector is guided by the implementation of Government’s policies. It is therefore incumbent on the three (3) spheres of Government to ensure that such policies are adhered to and executed, as prescribed.
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CHAPTER 3
JURISPRUDENTIAL CONTEXT
BACKGROUND
The Constitution of the Republic of South Africa is the supreme law of the land and sets out the basis for all policies and legislative frameworks.
The right to have access to adequate housing - as well as the right not to be evicted from one’s home, or have one’s home demolished, without an order of court or an order which is decided after consideration of all the relevant circumstances - is a critical right entrenched in s26 of The Constitution without which many other fundamental rights cannot be realised.
Despite the State’s commitment to progressively realising this right and the progressive development of law, this has still remained one of the most contested rights in our courts currently.
Forced evictions threaten a range of human rights. These include the rights to human dignity, security of the person, privacy, health, access to
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adequate housing, education and life, as well as freedom of movement and freedom to choose one’s residence.
This Chapter deals with the jurisprudence concerning evictions developed particularly by the Constitutional Court.
CONSTITUTIONAL COURT CASES REVIEW
A number of cases have been decided in various courts in South Africa in relation to eviction of unlawful occupiers of private and public land. For the purposes of this review focus is mainly on Constitutional Court decisions without disregarding decisions of other courts mentioned in these Constitutional decisions currently under review.
Section 26 of The Constitution provides for the right to have access to adequate housing. This is one of the socio-economic rights which has an internal limitation, namely it has to be progressively realised within available resources. The State has on numerous occasions been found to have failed to ensure that it complied with the provisions of this section. The Constitutional Court, in its application of s26(2), has in a number of cases found the State not to have complied with this section resulting in its actions not passing constitutional muster.
In the case of Government of the Republic of South Africa v Grootboom and Others9, Mrs Irene Grootboom and others were rendered homeless as a result of their eviction from their informal homes situated on private land earmarked for formal low cost housing. They applied to the Cape High Court for an order requiring government to provide them with
9 2001(1) SA 46 CC
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adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief. The appellants were ordered to provide the respondents, who were children and their parents, with shelter. The appellants challenged the correctness of the order in the Constitutional Court.
The court concluded that the national housing programme did not live up to the government’s obligations under The Constitution because it did not provide relief to those in situations of desperate need. The court held that because the problem of these occupiers would not be resolved overnight, and the national housing programme did not offer temporary accommodation, the court cautioned that a government programme cannot ignore the immediate needs of those in desperate situations in order to focus on medium and long-term goals.
The respondents based their claim on two constitutional provisions. First s26(2) and secondly on s28(1)(c) of The Constitution which provides that children have the right to shelter.
The High Court concluded that the Western Cape Government was faced with a massive shortage of available housing and an extremely constrained budget. The High Court further found that although it has pressing demands and scarce resources the Province has implemented a housing programme in an attempt to maximise available resources to redress the housing shortage. The court decided that for this reason it cannot be said that the Province has not taken reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to have access to adequate housing.
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With regard to the claim to provide children with shelter in terms of s28(1)(c), the court, however, granted that relief to the respondents.
The key provisions at issue in this case were the two constitutional provisions mentioned above i.e. ss26 and 28(1)(c). They entrench the right of access to adequate housing and the right of children to basic nutrition, shelter, basic health care services and social services.
These rights, as mentioned, form part of a cluster of socio-economic rights and are expressly included in the Bill of Rights. In this case the court looked at how these rights were enforced and emphasised the importance of carefully exploring these rights on a case by case basis. The court held that s26 must be construed in its context, which requires that the right must first be understood in its textual setting and must then also be understood in its social and historical context
It was held that all rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society are denied to those who have no food, clothing or shelter.
It was further held that the right of access to adequate housing cannot be seen in isolation. There is a close relationship between it and other socio-economic rights. It was decided that the state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing.
The court in its interpretation of these rights also considered s39 of the Constitution which obliges the court to consider international law as a tool to interpret the Bill of Rights. It was submitted that the International
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Covenant on Socio-Economic, Social and Cultural Rights was of significance in understanding the positive obligations created by the socio-economic rights in The Constitution. The Covenant provides for a right to adequate housing while s26 provides for a right of access to adequate housing.
The Covenant obliges states parties, such as South Africa, to take appropriate steps which must include legislation. The Constitution in addition obliges the South African state to take reasonable legislative and other measures to fulfil these rights.
The obligations undertaken by state parties are monitored by the United Nations Committee on Economic, Social and Cultural Rights. This Committee considers that every state is bound to fulfil a minimum core obligation by ensuring the satisfaction of a minimum essential level of the socio-economic rights including the right to adequate housing.
It was also held that housing entails more than brick and mortar. It requires available land and appropriate services. It further suggests that it is not only the State who is responsible for the provision of houses but other agents within society including individuals themselves. However, they must be enabled by legislative and other measures to provide housing.
The State must create the conditions for access to adequate housing for people at all economic levels of our society. It was held that State policy dealing with housing must therefore take account of different economic levels in our society. It was said there is a difference between the position of those who can afford to pay for housing, even if it is only basic though adequate housing, and those who cannot afford. This was the approach
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followed in the case of Machele and Others v Mailula and Others10 where the court held that the protection provided by the Constitution apply to everyone regardless of their socio – economic status.
The court held that for those who can afford to pay for adequate housing, the State’s primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses through planning laws and access to finance. Issues of development and social welfare should be raised in respect of those who cannot afford to provide themselves with housing. It was said State policy needs to address both these groups.
The court held that the poor are particularly vulnerable and their needs require special attention. The court also acknowledged the fact that the State’s obligation to provide adequate housing depend on context and may differ from province to province, from city to city, from urban to rural areas and from person to person.
The positive obligation imposed by s26(2) requires the State to devise a workable plan to meet its obligations. However it is not absolute or unqualified. The extent of the State’s obligations is defined by three elements:
The obligation to “take reasonable legislative and other measures”; To “achieve the progressive realisation” of the right and “Within available resources”
10 Machele and Others v Mailula and Others 2010(2) SA 257 (CC)
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In the three spheres of government, local governments have an important obligation to ensure that services are provided in a suitable manner. A reasonable programme must clearly allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available.
The court held that a coordinated housing programme must be comprehensive and be determined by all spheres of government in consultation with each other. It was held though that National Government bears an important responsibility in relation to the allocation of national revenue to the provinces and local governments on an equitable basis.
It was further held that reasonable measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the state’s available means. National Government must ensure that the measures they adopt are reasonable.
It was said that legislative measures by themselves were not likely to constitute constitutional compliance. Legislative measures must be supported by appropriate, well- directed policies. These policies must be reasonable in their conception and their implementation. The programme must also be reasonably implemented. It was held that an otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State’s obligations.
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This was evident in Occupiers of 51 Olivia Road v City of Johannesburg11 where although the city had its housing programme, it fell short of what was required as it did not cater for those people in desperate need.
The court held that reasonableness must be understood in the context of the Bill of Rights as a whole. The entrenchment of the right to access to adequate housing in the Bill of Rights was due to the value accorded to human beings and the necessity to ensure that they are afforded their basic human needs.
It further emphasised the need by the society to seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity. Hence in Machele’s case12 the court held that “in any event, the sudden loss of one’s home is an indignity for anyone and the protection provided by the Constitution apply regardless of their socio- economic status”.
The State is, however, not required to do more than its available resources permit. In Soobramoney v Minister of Health, KwaZulu-Natal13 it was held that the obligations imposed on the State by ss26 and 27 in regard to housing, health care, food , water, and social security are dependent upon the resources available for such purpose, and that the corresponding rights themselves are limited by reason of the lack of resources.
In Occupiers of Portion R 25 of the Mooiplaats14, the court held that the city has the power and obligation to make reasonable provision for
11 2008(3) SA 208 (CC) 12 supra footnote 2 page 5 13 1998(1) SA 765 (CC) 14 Occupiers of Portion R25 of the farm Mooiplaats 355 JR v Golden Thread Ltd and Others 2012 (2) SA 337 (CC)
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emergency housing from its resources. This therefore means that there is a balance between the goal and means.
The Grootboom case led to the development of the National Housing Programme in 2004. The objectives listed in the chapter emphasize the creation of an appropriate framework, pro-active planning with regard to the provision of land, and a streamlined development and implementation process. Although the programme is limited to those who are in desperate need due to situations beyond their control, it seems to cover also those who are evicted or are threatened with evictions, whose homes have been demolished or threatened with demolition or who are displaced or threatened with imminent displacement.
A closer look at housing programmes has been the subject of scrutiny in a number of cases. The Housing Act15 defines a housing development as:
“The establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities, and to health, educational and social amenities in which all citizens and permanent residents of the Republic will, on a progressive basis have access to- a) Permanent residential structures with secure tenure, ensuring internal and external privacy and providing adequate protection against elements; and b) Potable water, adequate sanitary facilities and domestic energy supply....”
15 Act No. 107 of 1997
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Section 2(1) of the Act provides that: “All levels of government must give priority to the needs of the poor in respect of housing development. It also provides that there must be meaningful consultation with individuals and communities affected by housing development.”
In Motswagae and Others v Rustenburg Local Municipality16 the court held that though the municipality had a development plan and the meetings between the residents and the municipalities did not bear the required outcomes , the municipality still had the duty and obligation to engage meaningfully and should not resort to using undesirable tactics .
In Occupiers of 51 Olivia Road v City of Johannesburg17 more than 400 occupiers occupied buildings belonging to the City of Johannesburg. The latter claimed that the buildings were not safe and healthy for continued occupation and applied for eviction. The order that was granted directed the City to find alternative accommodation for those that would be rendered homeless. The court in this case did not only look at the compliance with s26 of The Constitution, but also looked at the City’s programme for housing the thousands who are said to be living in desperate conditions in the inner city.
In deciding against the City, the court held that it was evident that the City made no effort to engage with the occupiers at any time before the proceedings. It further emphasised that engagement ought to be meaningful and when it is, it has the potential to contribute towards the resolution of disputes. It further held that the fact that evictees are vulnerable and may lack the understanding of a meaningful
16 2013 (2) SA 613(CC) 17 supra footnote 3
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engagement, does not absolve the City to just walk away without making any effort.
It held that the City has a duty to the citizens for their development and for the improvement of their quality of life. It must promote, respect and protect and fulfil the rights in the Bill of Rights in particular the right to human dignity and the right to life.
The court did not only emphasise the duty on the part of the City but also suggested that Civil Society Organisations should facilitate the engagement and that both parties should act reasonably and in good faith. It further stated that occupiers must not make unreasonable demands but that they themselves must also be encouraged to be pro- active in finding solutions.
It was held that the absence of any engagement or unreasonable response of a municipality in the engagement process would ordinarily be a weighty consideration against granting an ejectment order.
It is to be noted how the courts recognise the role that society as a whole should play in issues that affect communities. It does not only place the duty on the State but on communities and society as well.
The same argument was raised in the case of Abahlali Basemjondolo Movement SA and Another v Premier of KwaZulu-Natal.18 The applicants applied to the High Court to declare certain provisions of the KwaZulu- Natal Elimination and Prevention of Re- Emergence of Slums Act, 6 of 2007 (Slums Act) unconstitutional. They argued that the wide discretion given to municipalities under the Act with regard to the upgrading of
18 2010(2) BCLR 99 (CC)
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certain settlements, eviction of certain unlawful occupiers, and provision of alternative accommodation for people who have been evicted, are unconstitutional.
The applicants in this case also argued that the Act is in conflict with the National Housing Act read with the National Housing Code as well as certain provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which provides certain protection to unlawful occupiers. Their application was dismissed and they appealed to the Constitutional Court where it was held that no person may be moved unless the availability of alternative accommodation is considered. It also required individual engagement with households prior to their move.
In the Constitutional Court it was decided that s16 of the Slums Act which obliges eviction without reasonable engagement is inconsistent with section 26(2) of the Constitution and therefore invalid. It was held that reasonable engagement is not only required by section 26 (2) of The Constitution but it is also mandated in all evictions under the PIE Act. It was further said that all applicants for eviction must comply with the requirements expressly stipulated in the PIE Act and The Constitution as well as with all other requirements that have been judicially stipulated. All applicants for eviction must engage reasonably and meaningfully before instituting eviction proceedings.
In Residents of Joe Slovo Community Western Cape v Thubelisha Homes and Others19 the court held that no person may be moved unless the issue of alternative accommodation is considered. It also required individual engagement with households prior to their being moved. It further directed the State to engage meaningfully with residents on the
19 2010 (3) SA 454 (CC)
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timetable and any other matter on which they agree. The Constitutional Court held that the occupiers occupied the land unlawfully and therefore the PIE Act applied to them. It afforded them the protection provided by the Act.
From the judgment it would seem that the State is allowed to move occupiers as long as there is a plan, but several judges criticised the State for not engaging with the community before going to courts. It was said that instead of engaging with the residents and trying to find consensus, the State was in a hurry to evict the residents who did not want to move.
The High Court was criticised for not confronting the issue of the State’s bad plan which would not cater for all those residents that were to be moved. It would move them to a place faraway from the City. The plan did not seem to entail prospects of them returning to Joe Slovo. The Constitutional Court found the plan not to be reasonable because it failed to take account of the most vulnerable and marginalised residents.
The court indicated that meaningful engagement with occupiers cannot be over-emphasised as had been held in all these cases. The court does not seek to impose on the State how to deal with the housing crisis. The State is expected to act in an honest manner and cater for the most vulnerable and poor communities whose area is to be upgraded.
In the most recent case of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties20 poverty stricken occupiers unlawfully occupied a property called “Saratoga Avenue”. The case
20 2012 (2) SA 104(CC)
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dealt with the rights of the owner of the property and with the obligation of the City of Johannesburg to provide housing for the occupiers if they were evicted.
The court lamented the failure of the State at this time in our democracy to provide dignity for all. It was said that the quest for a roof over one’s head often lies at the heart of our constitutional, legal, political and economic discourse on how to bring about social justice within a stable constitutional democracy.
The questions the court sought to answer in this case were: Must occupiers be evicted to allow the owner to fully exercise its rights regarding its property. If so, whether their eviction must be linked to an order that the City provide them with alternative accommodation? The City’s position in this case was that it was neither obliged nor able to provide accommodation under these circumstances. The owner wished to exercise its right to develop the property. All parties relied on The Constitution and statutory law giving effect to the judgments of the Constitutional Court.
The court did not deal directly with a programme, or measures, to realise progressively the right of access to adequate housing. It dealt with the City’s obligations with regard to this right and the implications of the Constitutional protection against arbitrary deprivation of property. The court found the City’s housing programme to be unconstitutional as it discriminated against people in desperate need of housing who are subject to eviction from land by private landowners. It ordered the City to remedy the defect and report to the court. The City was further ordered to provide the occupiers with temporary accommodation. However, the Supreme Court of Appeal set aside the structural interdict
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by the High Court and again found the Housing Policy unconstitutional as it excluded the occupiers from consideration for temporary housing.
The protection of the rights enshrined in The Constitution are very critical in cases of this nature especially where homelessness is a likely result of eviction. Also of note are the constitutional powers and functions of Municipalities and the other spheres of government.
In Port Elizabeth Municipality v Various Occupiers21 it was stated that the court ought to balance and reconcile the opposed claims in as just a manner as possible. It must take into account all the interests involved and the specific factors relevant in each particular case. The court held as follows :
“Thus, 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 to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern”.
21 2005 (1) SA 217(CC) at para [37]
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A court must accordingly consider an open list of factors in eviction cases in the determination of what is just and equitable, which factors would vary from case to case.
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CHAPTER 4
METHODOLOGY
INTRODUCTION
This Chapter outlines the processes through which the investigation of the Nomzamo (Lwandle) Ministerial Enquiry was conducted to determine the issues identified in the Terms of Reference.
The methodology used to gather data included the following: written submissions; public hearings; site visits; consideration of applicable policies and legislation; viewing of video footage and photographs; and interviews with evictees.
All interested and affected parties were invited to provide written submissions relevant to the subject matter and mandate of the Enquiry. The process for submissions commenced on Friday, 20 June 2014 with the publication of a general notice in the Government Gazette.22 The closing date was 27th June 2014. Respondents were urged to include with the submission any relevant documentation and records that would assist the Enquiry in its work.
22 Government Gazette of 20 June 2014, Volume 588, Number 37759. Government Printers, Pretoria.
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The notice was supplemented with extensive communications in newspapers, radio and television. Numerous enquiries from individuals and organisations were attended to.
Before the start of the public hearings 1 000 pamphlets were distributed at Nomzamo Community Hall and in the neighbouring Lwandle community. The pamphlet was written in English on one side and isiXhosa on the other. The objective was to inform communities about the process to be followed regarding the public hearings.
On the days of the hearings a loud hailer was used in the streets of Lwandle and Nomzamo to announce the start of community public hearings and to mobilise members of the community to attend and participate in these hearings. The members of the media were also present.
The Enquiry identified legal and social science research organisations and institutions and invited them to submit papers in pursuance of its mandate. A call for papers requested these organisations to: share research outcomes on mass evictions and illegal occupation of land; identify best practice in managing mass evictions; identify policy and legal loopholes and shortcomings; identify problems with current practice; and make recommendations on appropriate responses to the identified matters.
The Enquiry was flexible particularly when an extension was requested. In cases where the institutions that were invited to submit did not respond,
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follow-ups were made. Additional information was also requested when the Enquiry deemed it necessary. The main aim was not to exclude any organisation whose input might be relevant or who might be directly affected by the outcome of the Enquiry.
The Enquiry continued to gather information from the various resources.
The Enquiry categorised submissions and public hearings in the following manner:
Category A: This category consisted of directly affected organisations.
Category B: This consisted of representatives of communities; nongovernmental organisations; interest bodies, individuals and organizations.
Category C: This entailed the evicted communities. Community members who participated in the public hearings were selected from the pool of community members whose statements were obtained.
Category D: The category consisted of NGO’s and other organisations that could assist the Enquiry mainly with material for formulating recommendations. The category consisted of Higher Education Institutions; Research Institutions; Legal Associations, Organisations and Institutions.
Category E: This focused on inputs for recommendations from non- governmental organisations, political parties, and members of the community not directly affected by the evictions.
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SITE VISITS On 18 June 2014 the members of the Enquiry conducted the first site visit to Nomzamo. This visit was aimed at facilitating access to, and further engagement with the community, introducing the members to the Steering Committee and acquainting the members with the immediate situation by conducting in-loco inspection at various sites.
The first site the Enquiry members visited was the storage facility where the evictees’ construction materials were kept by SANRAL after demolition of structures. This was followed by a visit to the site where the evictions occurred. At the time of the visit the site was being cleared by the Housing Development Agency23 (HDA). The Enquiry members were informed that the evictees would be temporarily resettled on the same site after attempts to move them to alternative land in Macassar failed. The proposal failed due to objections by members of the host community to the establishment of an informal settlement in their neighbourhood. The third site inspected was Nomzamo Community Hall where the evictees were temporarily accommodated.
An Introductory meeting between members of the Enquiry and the Steering Committee representing the evictees was held at Nomzamo Hall on 18 June 2014. The purpose was to communicate the terms of reference of the Enquiry, introduce the members of the Enquiry, inform them about the commencement of the work of the Enquiry and the process to be followed. Members of the Steering Committee present at the introductory meeting were the following: Mbuyiselo Matha : Ward Councillor for Ward 85, Strand Jongizulu Magxeke : Ward Councillor for Ward 86, Strand
23 HDA was appointed by the Department of Human Settlements to assist with resettlement of the Nomzamo (Lwandle) evictees
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Pastor F Gura : Methodist Church Xoliswa Masakala : Siyanyanzela Informal Settlement Mphathisi Tshatu : Siyanyanzela Informal Settlement Lohna Ngqangeni : Buyelikhaya Non-governmental Organisation Krishna Jairam : Access to Social Justice of Southern Africa Kavendren Chetty : Access to Social Justice of Southern Africa Andile Lili : Ses'khona People's Rights Movement Tango Lamani : Office of the Deputy Minister of Human Settlements
This meeting was chaired by the Ward Councillor, Mr Matha as ERF 32542 (the occupied land) was part of ward 85. The meeting informed the Enquiry that the area where the evictions took place was commonly known among the residents as ‘Siyanyanzela’. Furthermore, members of Access to Justice Association of Southern Africa identified themselves as assisting Ses'khona People's Rights Movement in providing legal services to address loss of life, injury to persons and economic loss following the evictions of 2 and 3 June 2014. Ses’khona leadership claimed that the evictees were members of their organisation. Mr Chetty presented a statement to the Enquiry in which he demanded that a restorative justice process be established and objected to the establishment of the Enquiry.
The Enquiry later decided that it needed to communicate directly with the evicted community, and a meeting with the community took place on the eve of 23 July 2014 at Nomzamo Hall.
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The Enquiry established that membership of the steering committee became fluid and no records of meetings were kept as members claimed that the focus was the provision of emergency humanitarian relief. Furthermore, the leadership of Ses’khona People’s Rights Movement chaired and took the lead in the discussions of the steering committee.
COLLECTING EVIDENCE THROUGH COMMUNITY STATEMENTS
The Enquiry resolved that the best technique to collect information from the evicted community was through statement-taking. These were not sworn statements in a judicial sense but were questionnaires to aid the Enquiry in its investigation. A template for taking community statements that adopted a combination of both structured (Parts A to E) and unstructured (Part F) questionnaire format was developed. The design of the statement form was such that it would be easy for anyone to complete, yet it focused on responding to the Terms of Reference. More importantly, the design facilitated analysis. As a result the statement form focused on collecting the following information from the evictees:
Parts A – E: In line with the Terms of Reference the purpose was to collect biographical information to establish the identity of the community.
Part F: The purpose was to determine the history of occupation of Erf 32524, Strand (the occupied site); and the circumstances under which the evictions took place over the 2 days in June 2014.
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The Councillor’s office at Nomzamo Community Hall was identified as a suitable venue for taking statements.
Access to the evicted community was facilitated through Councillor Matha, the Councillor for ward 85, which includes Erf 32524, Strand (the occupied site). The choice of deponents was also arranged through Councillor Matha, the focus having been on individuals who resided in Nomzamo Community Hall. Councillor Matha selected the people for statement taking.
Members of the Enquiry took responsibility for taking statements individually, assisted, where required by an interpreter. The process of taking statements was done over a period of 10 days. Three professional interpreters were procured to assist the members in the taking of statements as the community members were encouraged to give their statements in the language of their choice. A total of ninety six (96) statements were taken.
PUBLIC HEARINGS
The Enquiry resolved that the hearings would be public and legal representation would be allowed. Requests for confidentiality would be considered on merit and allowed where appropriate. It was accepted that the Enquiry did not have the power to compel participation and would thus rely on good intergovernmental relations and positive persuasion to ensure the co-operation of interested and affected parties.
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Preparations for public hearings Apart from those who made submissions, entities that did not submit written submissions but were deemed significant contributors were also invited to the hearings.
Procedure during public hearings The Good Hope Sub-Council Chambers of the City of Cape Town at 44 Wale Street, Cape Town was identified as the best place to hold the public hearings. This venue was utilised for the Category A, B and E hearings while Lwandle Community Hall was utilised for the Category C (community) hearings. A different venue conducive to the specific needs of the meeting was sourced for the Category D discussions which took place in a function room at the Cape Sun Hotel, Strand Street, Cape Town.
Video recording and sound equipment were utilized at public hearings to ensure that all testimony was audible and properly recorded. As a result the record of the public hearings consists of all oral presentations and comments presented at the hearings and all documents submitted to the Enquiry at the hearings. The proceedings at the public hearings have been transcribed and forms part of the Enquiry Record.
The Enquiry adopted a quasi-judicial process for public hearings. This means that although the hearings were structured along similar procedural lines, they were not as formal as court proceedings. The public hearings were required to be fair and were controlled by the Chairperson. The conclusions and findings of the Enquiry are based on all the relevant material that constitutes the Enquiry Record.
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The sequencing of stakeholder hearings The predetermined categories were not strictly adhered to in the sequencing of public hearings, as the availability of presenters played a significant role in planning.
Community hearings Public hearings for Nomzamo (Lwandle) evicted community started on 29 July 2014 at Lwandle Community Hall. The Enquiry allocated three subsequent days to focus on community hearings. About five days before the start of the community hearings communiqué on the impending hearings went out through Councillor Matha to the Lwandle and Nomzamo communities. The Councillor, assisted by the Community Liaison Officer of the HDA, notified the evictees residing at Nomzamo Community Hall. The Enquiry also utilised a range of media communication platforms to inform the members of the public that might be interested in attending the community public hearings.
Opportunities were also given for any attendee at the public hearings who wanted to do so, to participate even though they were not scheduled to make an oral presentation or had not previously made a statement to the Enquiry.
Additional sources of information The Enquiry solicited the services of a police expert to analyse the SAPS video material and to share his analysis with the members of the Enquiry.
A legal opinion was sought from the Chief State Law Advisor on the legality of the court order granted to SANRAL by the Western Cape High Court.
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DATA CAPTURING AND ANALYSIS Electronic documentation and archiving of information was fundamental in ensuring that the Enquiry keep track of all received and collected material. In instances where relevant documents were hand delivered, these were scanned, archived and classified accordingly.
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CHAPTER 5
COMMUNITY PERSPECTIVES
INTRODUCTION
The Terms of Reference of the Ministerial Enquiry directs that the course of investigation concerning the community that was evicted on the 2nd and 3rd June 2014 to:
(a) Establish the identity of the members of the informal settlement community of Lwandle who were evicted on 2nd and 3rd June 2014; (b) Determine how the community came to be on the land in question; and (c) Determine the circumstances under which the evictions took place.
As described in the methodology chapter of this report, the Enquiry agreed that the best possible approach to gather information from the evicted community was through (a) statement taking, and (b) public hearings -interpreters were utilized for both. The community consultative process extended for the period between July and August 2014. The statement taking process was conducted in Nomzamo Community Hall while public hearings were held at Lwandle Community Hall. Generally, 96 statements were taken to give a general idea of this community. In addition, seven students also submitted affidavits.
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THE LOCATION OF THE SITE UNDER INVESTIGATION
The land on which the community affected by the evictions habited is described as a portion of Erf 32524 in the Magisterial District of Somerset West within the jurisdiction of the City of Cape Town. The map below outlines the extent of the occupied land, owned by SANRAL that is the subject of the investigation of the Enquiry.
The area demarcated by the orange boundary is the site from which the community was evicted. This area is 1.5614 ha, and is well located in terms of infrastructure, amenities, and accessibility. It is on the boundary of the Nomzamo suburb, which borders the Guldenland suburb and is part of the Helderberg Municipal area.
Map: Courtesy of the Housing Development Agency (HDA)
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During the course of its investigation the Enquiry leant that the residents of Erf 32524 named the informal settlement ‘Siyanyanzela’ which is an isiXhosa word meaning “we insist” as they insisted in occupying the site despite warnings by their Councillor. Furthermore, the Enquiry learnt that the location of the site of eviction is actually in Nomzamo not Lwandle as was initially understood, but the Erf extends towards Lwandle. The Enquiry agreed that both names, Nomzamo and Lwandle would be used for the investigation in order not to cause confusion for the locals while adhering to the Terms of Reference - thus Nomzamo will be written with Lwandle in brackets. The investigation also established that the site under investigation was in Ward 85, which includes the areas of Asanda, George Park, Nomzamo and Onverwacht and was under Councillor Mbuyiselo Matha of the African National Congress (ANC).
THE IDENTITY OF THE COMMUNITY EVICTED ON 2ND AND 3RD JUNE 2014
While, preliminary information about the evicted community from the leadership and the media indicated to the Enquiry that 849 people were affected by the evictions on Erf 32524, the duration of the Ministerial Enquiry did not allow for a complete examination of all members of the community evicted on 2nd and 3rd June 2014. Therefore, the Enquiry decided that the statement taking would not include all the members of the evicted community and the process would also be used to gather the following information: Name and Surname of family members [Adult(s) and children] Identity numbers Age [Adult(s) and children] Gender [Adult(s) and children] Marital status
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Number of Children Employment Status Household income Status in government housing programme
The Enquiry considered that the information collected would assist in developing an overview of the identity of the evicted community of Nomzamo (Lwandle). The information gathered from the evicted community indicates that the evictions of 2nd and 3rd June 2014 affected 849 people, however the Enquiry was unable to verify this number as information received from the leadership of the evicted community was only compiled post eviction. Furthermore, the available list was contained membership of Ses’khona. As the investigation continued, the 849 evicted people became 849 demolished structures or shacks.
When the ninety-six community statements were analysed the Enquiry found that about 34% of the evictees were unemployed, while those that were employed were either occasionally employed (31%) or employed regularly on a part-time basis (11%) and only 21% were permanently employed. The Enquiry also established that 93% of households had a monthly income that was below R3 500 and 98% had not benefitted from government housing subsidy programme. It was shocking to the Enquiry to find that only 22% of the evicted community had applied for government subsidised housing.
From the 96 statements the Enquiry established that 57% were male and 43% were female, all were South African citizens except one male and one female that were married to South Africans. The information from the statements showed that the average age of the evicted community was about 33 years. The 96 statements also revealed that 98% of the
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community have not benefitted from government housing subsidy while only 22% of them have applied. The Enquiry also asked the community members interviewed during public hearings whether they had applied for government subsidy housing and the response of many was in the negative as they claimed that they did not know how to apply or pointing to the fact that those who applied have actually been waiting for many years – intimating that applying was a waste of time.
Although the information was derived from only 96 evictee statements the Enquire resolved that it gives a general overview of the identity of the community evicted on 2nd and 3rd June 2014 at Nomzamo (Lwandle). In addition the information was consistent with census data of Ward 85, Strand.
HOW THE COMMUNITY CAME TO BE ON THE LAND IN QUESTION?
Emanating from the Community Statements, it emerged that residents of the informal settlement located on Erf 32524 had previously lived, largely as backyarders, in Nomzamo, Asanda Village, Zola, Lwandle, Nomzamo, Wag-n-bietje and other surrounding informal settlements. Reasons provided for leaving their previous places of residence included high rentals, overcrowding and family disputes.
“I left because I could not afford to pay rent as I was working part time” (Nonhlanhla Lujabe)
On the same subject, other evicted community members stated:
“I could not continue paying the rental” (Mzolisi Mayothana)
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“I had a lot of debts and had to pay high rent and have four children to support. I could not afford any longer,” (Nobom Mzimkhulu)
While other evictees echoed a statement made by many as this statement revealed:
I could not continue paying rent because I was unemployed. (Nomsamkele Phephetheni)
I lost my job and did not have money to continue renting” (Daluxolo Voko)
At the public hearing of 29 July 2014, Xoliswa Masakala further explained the problems of affordability as follows:
“I could not afford to pay R500 rent and R300 for electricity. It was too much for me. I couldn’t afford. That’s my reason.”
On further prompt by the Enquiry she explained that although she was working she was not in a full-time job but was working for SAPS as a volunteer. She clarified that under the circumstances it became too expensive to continue renting.
The reasons given in the statements for the occupation of Erf, 32524 in Nomzamo (Lwandle) were affirmed by the evicted community that were interviewed during the public hearings. Largely these included unemployment and inability to afford rental. A few indicated that they saw others occupying the land and they then did likewise.
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“I just noticed that people have been installing shacks” (Mthetho Kwekwana)
The indication of the earliest occupation of Erf 32524 was December 2013 with other families moving into the area steadily thereafter. The length of stay of the occupants of Erf 32524 varied between three (3) and six (6) months not withstanding that there was an eviction on the same site on 3rd February 2014.
When the evictees were asked whether they were aware of the identity of the landowner at the time they occupied the land in question. The information the Enquiry gathered from the statements is that many indicated that they were not aware although some also admitted that the Ward Councilor informed them in January and many times after the February evictions.
“I was not aware at the time. Later Councilor informed us in January and repeatedly after evictions.”(Adries Molupe)
I did not know at the beginning. Afterwards the Councilor said it belonged to SANRAL” (Thembakazi Qhubinkomo)
“Yes, Councilor told us that it is private land” (Sandiswa Shweni)
At the community public hearings the evicted community that were interviewed indicated that Councilor Matha had indeed informed them that the land they wanted to occupy was ‘private land’. The evicted community also argued that no notices were placed on the land
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question, inferring that they would not have occupied it if there were notices.
WHAT HAS BEEN THE HISTORY OF EVICTIONS ON THE LAND IN QUESTION?
In order to respond to the aspect of the Terms of Reference that required information on the history of evictions, the Enquiry utilised the statements to determine whether the evictees of 2nd and 3rd June 2014 were previously affected by any other evictions particularly on the land under investigation.
The information from the statements indicated that a significant number of those evicted in June 2014 was also affected by the evictions on 3rd February 2014. The Enquiry also learnt that when the February eviction occurred, some community members have not been residing at the site. Other evicted community members informed the Enquiry that by the time the evictions of 3rd February 2014 took place they already owned a shack in the site in question but had yet to occupy.
“We were still busy constructing our shack when the evictions occurred.” (Mxolisi Manyothana)
Another evicted community member stated:
I had moved my shack to SANRAL land in February but had not yet moved in. My shack was demolished. I then re- erected my shack and moved in, in March 2014. (Khanyisa Biyana)
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On investigating about what happened in February 2014 evictions the Enquiry learnt that the structures were counted a few days before they were demolished but the community was not informed of the reasons. The following account was gleaned from the information collected from the evicted community members:
“On the 3rd February we saw a man in a bakkie counting the structures. We confronted him but he did not give an answer. We later saw Metro Police with eviction team and they started breaking down structures.... We did not give in and later some of us started rebuilding our structures.” (Albert Masakala)
The other member of the community indicated:
“In February we were not given any notice our houses were only demolished. I moved back to my uncle’s place. In March 2014 I moved back to Siyanyanzela. We had family problems and I moved back to SANRAL land.” (Thembakazi Qhubinkomo)
Another community member stated:
“On 3rd February there was no notice of evictions. They just came and broke the structures down.” (Seiso Lewatle)
The Enquiry also learnt that during the February evictions some community members were at work when the incident took place.
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I was at work in February and when I came home my structure was demolished” (Andreas Khoane)
During the community public hearings the Enquiry heard from Sisanda Mbayimbayi, 26 a student at North Link College who stated that she moved to Siyanyanzela with her child in December 2014. Before moving into SANRAL land she was living with her sister but left because of overcrowding. In responding to the question on why he specifically chose the site, her response was that she had seen other people building structures on the land in Lwandle and decided she would do the same. Like many others she came back to rebuilt within a month of the February evictions. The Enquiry asked whether the site was fenced after the February evictions. The response was that the property was not fenced. She was also asked if anyone tried to stop her from rebuilding and the reasons she went back to reoccupy SANRAL land. Her response was:
“Yes, there was a gentleman by the name of Chris who was stopping us, blocking us from erecting our structures but we then refer him to the five structures that were left standing and questioned him as to what is the reason for him to leave the five structures standing after he has demolished our structures. And we just continue on erecting our structures.”
The Enquiry asked Sisanda whether she has applied for government housing assistance. Her response is that she did not know how to apply.
The Enquiry learnt that in February, similarly to June the community of Siyanyanzela was not informed about the evictions but there were warned not to rebuild on the land. In addition, there were notice boards
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or security fence on the land. The only reference of a warning not to occupy that the community made was from a certain Chris whom the enquiry later discovered was employed by SANRAL to demolish the structures during evictions. The Enquiry was also informed that Councillor Matha warned them of the consequences of occupying SANRAL land but some claimed that they had already invaded the site.
WHAT WERE THE CIRCUMSTANCES UNDER WHICH THE EVICTIONS OF 2ND AND 3RD JUNE 2014 TOOK PLACE?
The Terms of reference required the Enquiry to investigate the circumstances under which the evictions particularly of 2nd and 3rd June took place. A response to this aspect of the ToR will be narrated from the perspective of the evicted community.
The information collected by the Enquiry included determining the form and content of communication received by the evictees about the eviction incident of June 2014 and personal accounts on what transpired during the eviction. More importantly they were asked to inform the Enquiry whether they have any knowledge of a court order or they were fore warned about vacating the land or about the evictions.
Communication about evictions
The information gathered from the statements indicated to the Enquiry that there was no communication to the community of ‘Siyanyanzela’ about the pending evictions of the 2nd and 3rd June 2014. The community members that were evicted also gave similar responses about the absence of prior information about the June evictions while a few indicated that there were rumours about the evictions.
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“We were not informed but there was a rumour about evictions on the Sunday. The people in the formal houses on the street then removed the electricity connections from their houses to the informal structures.”(Thamsanqa Siziba)
The information below shed light about how the rumours might have originated:
“On Sunday, June 2014 a message came from a friend who knows a policeman who told her that the eviction will take place the next day. A friend said I should remove my belongings. I told the other people and also the Councillor who said he knows nothing about that and we should not be afraid.” (Xoliswa Masakala)
Another resident of ‘Siyanyanzela’ informal settlement informed the Enquiry of the following:
“I didn’t know of any communication. I only saw that morning” (Yandiswa Sogayise)
The information gathered at public hearings also confirmed to the Enquiry that there was no notification received by the community about the evictions and the community got to know about the evictions on the morning of 2nd and 3rd June 2014.
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What happened during the 2nd and 3rd June eviction?
The Enquiry investigated how the day of eviction unfolded from the point of view of the evicted community. The Enquiry learnt that on 2nd June 2014 at around 08h00 a word got around that police were arriving and were parking their vehicles on the periphery of the settlement and this started a panic and pandemonium among the members of the community.
“On 2nd June 2014 while sleeping, local people loud hailed informing us there are police to evict us.” (Yandisa Sogayise)
Another resident of ‘Siyanyanzela’ stated: “I was evicted on 2nd June 2014. It was around 09h00 when we saw Caspers coming. We were told to vacate the premises.” (Sikelela Soka)
The Enquiry also learnt that when the evictions started some people were still sleeping and were woken up by loud noises heralding the arrival of the police and the demolition team. “On the morning of 2nd June 2014 while I was asleep I heard noises that the police have arrived to evict us. There was so much confusion and fear.” (Nosicelo Charles)
Some people reported to the Enquiry that they were at work when the demolition started. Their story is similar to the following resident who stated:
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“On 2 June I was phoned at work and told that there were evictions. I went home and saw the police who fired rubber bullets at us”. (Seiso Lewatle)
According to the community members when they realised that the police were there to evict them they called Councillor Matha for help. When he arrived he requested Captain Lucas to provide him with the court order but he was refused instead people were given ten minutes to disperse.
One resident summarises the events as follows:
“... On 2 June at about 08h00 the City Police arrived followed by the SAPS with Hippos. Councillor Matha arrived and spoke to the police. We heard the police speak on loudspeaker giving us 10 minutes to disperse. We blocked the road with a contained. The police removed the container and came on to the area and shot teargas and rubber bullets...” (Nosamkele Phephetheni)
Another resident of ‘Siyanyanzella’ stated: “On the 2nd June they arrived at 08h00. The Hippo was driving rounding the informal settlement. They used the teargas and water. I, as a leader, I went to them, requesting that we talk. They did not allow me, instead they told me that they are giving me two seconds to take my possessions.” (Lwazi Mlongeni)
Nolusindiso Plum a student narrated her story to the enquiry that during the February evictions she lived at Siyanyanzela with her grandmother,
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brother, and her child. She previously lived at Zola with her parents and siblings but moved to SANRAL land due to overcrowding. She informed the enquiry that she did not witness the demotions in February because she was not present. She moved back to the site in April but her grandmother had gone to the Eastern Cape. Like others she heard rumours that they would be evicted and in the morning of 2nd June she realised that they were true. She informed the Enquiry of the pandemonium of that day where the community was throwing stones and the police shooting with rubber bullets. She also told a similar story about how Cllr Matha was denied a court order and how Andile Lili demanded the same and was given by Captain Lucas. Nolusindiso told the Enquiry that on the first day not all shacks were destroyed and she offered some fellow community members a place to sleep. In the morning of 3rd June she went to school, when she came back her shack was demolished and she lost some of her books. In response to the questions by the members of the Enquiry about observing anyone manhandled by the police. She responded by indicating that many people were harassed, shoved at, and badly manhandled. Nolusindiso argued that some residents were arrested for an illegal march but were charged with public violence. In response to the question on how she get by she informed the Enquiry that she is taken care of by her parents but cannot put up a shack at her parents’ backyard as they are renting the space out.
The information received by the Enquiry indicated that the police shot teargas, rubber bullets, and stun grenades and sprayed water cannons while the majority of the evicted community were silent about the throwing of rocks, petrol bombs and the barricading of access roads. In the chaos that ensued some residents feared the worst for their young children.
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“...There was so much confusion and fear. I picked up my six year old and ran to the formal houses opposite. The SAPS police together with municipality police were knocking at the doors and demanding that people should move out so that demotion should take place.” (Nosicelo Charles)
The community informed the Enquiry that the 10 minutes given by the police was totally insufficient to allow them to remove their belongings. Some indicated that they specifically requested the police to remove their belongings but were refused.
“On 2 June 2014 I was informed that structures were broken down. I ask policeman Potgieter because I wanted to break down my structure and take my material but was not allowed. I could only take a few things for my kids and police threatened that I would be arrested…”(Daluxolo Voko)
The Enquiry heard from other residents who expressed anguish about losing all their prised possessions:
“On the 2nd of June, while I went to work my house was demolished and all my belongings except two mattresses and one couch were left on the street. That night, I slept outside with my children.” (Nosisa Mzulwa).
Anelisa Manga a 17 year old student who resided at Siyanyanzela narrated her heartbreak story of being unable to retrieve her belongings:
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“On Monday (2nd June 2014) morning, I returned home from school that afternoon to find a barbed wire barricade had been set up by the police. The entrance to Siyanyanzela had been blocked and it was impossible for me to cross the barricade. I was frantic because I could not reach my mother, neither could I get into my home nor was I able to obtain any of our things. I approached a police officer and asked to be allowed to get some of my things from my home. He moved the barricade and let me into the site because I was wearing my school uniform. I broke the window of my home and got inside. I got a few of my mother’s and my things but I could not get all my books.”
Similar stories of the inability to retrieve identity documents, schoolbooks, clothes, and many other belongings are told by the community of Siyanyanzela.
“...My home was destroyed on that very day 2nd June. They did not tell us that they would be coming back the next day. We saw them coming – there were just too many of these police. They told us to get out with our stuff. They were with the law enforcement people who had destroyed our houses the previous day…” (Lungiswa Mhlabeni)
The Enquiry established that on the second day (that is 3rd June 2014) of evictions, once again the community did not know that the evictions would continue, as they believed that Andile Lili had stopped the evictions. According to the evicted community, the events of that day pretty much unfolded in the same pattern as the previous day.
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“On 3 June I went to work and thought the evictions were done. I got a message at work that evictions were taking place. When I got home my house was demolished. I have none of my belongings. I did not see what happened to my house and belongings. I heard that people are being accommodated in the community hall and I also came to hall. My children stayed with me at Siyanyanzela but I sent them to my mother and I stayed alone in the hall.” (Thembakazi Qhubinkomo)
Nonhlanhla Lujabe was evicted on 3rd June 2014. She was residing with her four children whose age range between 16 years to 19 months. She informed the enquiry that she moved to SANRAL land in February 2014. When the February evictions took place Nonhlanhla had just moved in at the site. She went back to rebuild at the end of February. Nonhlanhla informed the Enquiry how she pleaded with the police to allow her to remove her belongings but was refused and how she believed her children were suffocating because of the teargas. She also informed the Enquiry that her children were left with the school uniform they wore on the morning of 3rd June. She narrated to the Enquiry of the manner in which the shacks were demolished – that a number of men wearing orange attire would topple the shack over with all contents inside thus destroying all their belongings. She also believed that it was Andile Lili who stopped the demolition on 2nd June. In responding to questions from the Enquiry she informed them that she applied for a government housing subsidy in 2006 in Grabouw and she was on the waiting list. When she was asked about the number of shacks at Siyanyanzela her response was that they were 849. She also informed the Enquiry that on day one her children and herself slept outside in the cold.
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Another resident narrated a similar story of uncaring and inhuman actions where people’s possessions were blatantly destroyed:
"They demolished the structure with my property inside and took it, loaded it onto the truck and left with it," (Sisanda Mbayimbayi)
During community public hearings the community allowed the members of the public who wanted to make oral presentation regarding the Nomzamo (Lwandle) Evictions to voice their opinion. One of the people who took this opportunity was Sisana Conjwa (44) who reside at Lwandle informed the Enquiry that at about 11h00 the leaders of SANCO were called by Councillor Matha to inform them of the situation. She informed the Enquiry on arrival at the site under investigation she witnessed people being manhandled including a pregnant women. Sisana spoke of her disappointment of the inability of those in authority to give Cllr Matha the court order. She also stated that there were pockets of open spaces in Lwandle but there are no notice boards that indicate that the land is private.
SUMMARY OF INFORMATION GATHERED FROM THE COMMUNITY
The following is a summary of information the Enquiry ascertained from the community of Siyanyanzela informal settlement aka Erf 32524:
The identity of the community evicted on 2nd and 3rd June 2014 The community moved into the site in December 2013, Although it is common knowledge that 849 people were evicted, the number cannot be verified.
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The full extent of the identity of the evicted community cannot be established except for the information the Enquiry assembled from the statements.
The history of evictions on the land in question The community was evicted in February but started to rebuild a few weeks later. The land was not secured even after the February evictions and there were no notices placed on the site. During the evictions in February no prior notice was given as a result some people were away on the day. When February evictions took place some people have built but had not yet moved in. Although the community was not informed about the evictions, they reported to have seen someone counting the structures before the evictions in February.
How the community came to be on the land in question The people evicted on 2nd and 3rd June 2014 were backyarders in Nomzamo, Asanda Village, Zola, Lwandle, Wag-n-bietjie and other surrounding informal settlements. They named the new settlement Siyanyanzela. They moved to SANRAL Erf 32524 because they could not afford to pay high rentals because of unemployment, overcrowding, family problems, etc. They majority indicated that they saw others building and decided to do likewise. Only a small percentage had applied for government housing subsidy and are thus on the waiting list.
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Circumstances under which the evictions took place During the evictions in June they had received no prior notice. There was no communication about the evictions as a result panic and chaos ensued. On the days of eviction, there was a pandemonium caused by the throwing of stones by the community and shooting of teargas and rubber bullets by the police. The community was unable to remove their belongings as a result some lost everything including schoolbooks. On 2nd June 2014 the community slept in the open, as they had nowhere to go.
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CHAPTER 6
SOUTH AFRICAN NATIONAL ROAD AGENCY LIMITED
INTRODUCTION
The South African National Road Agency Limited (SANRAL) is a state owned company and was incorporated in 1998 in terms of section 3 of Act 7 of 1998. Its duties include the construction and maintenance of national roads. SANRAL is also an organ of state as defined in The Constitution.
SANRAL is the registered owner of Erf 32524 Strand, which is 25,4551 hectares in extent, by virtue of Deed of Transfer T86580/2005 dated 28 October 2005.
In response to the call for submissions by the Ministerial Enquiry, SANRAL provided a written submission on 30 June 2014. On 22 July 2014 SANRAL made an oral presentation through its legal representative Ms. Fiona Bester of Chennells Albertyn Attorneys, assisted by Mr. Sean Hornby, the Property manager for the Manco-Aurecon Joint Venture (MAJB), a service provider to SANRAL.
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Both Mr. Hornby and Ms. Bester’s oral presentations were summaries of what was contained in the written submission submitted by SANRAL.
SUBMISSION
Mr. Hornby began his presentation by providing the background of the occupation of the property SANRAL owns in general. Although some of the history referred to does not specifically relate to the portion of land the Enquiry focussed on, the background in general shed some light on what SANRAL did to alleviate the challenges it had been confronted with.
The history dates back from the 1960’s when the Department of Transport (DoT) investigated the re-alignment of the N2 national road. The first section was designed, built and opened to traffic in 1971, whilst the second section was intended to commence in July 2003. This section got delayed because of environmental disputes that ended up in court.
During the 1990’s the land acquired for the Onverwacht Interchange, which is part of the area which the Ministerial Enquiry is focusing on, was invaded by unlawful occupants. At that time the rest of the undeveloped road reserve, including the site of the June evictions, was unoccupied.
When SANRAL came into existence in 1998, the illegal occupation of the land had already started and, according to SANRAL, they had been proactive throughout assisting people to get access to housing. During the year 2000, SANRAL sought the assistance of the City of Cape Town (CoCT) and the Western Cape Department of Human Settlements (WCPDoHS) to relocate the occupiers of the Onverwacht Interchange.
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Considerable progress was made over time with the process to relocate the approximately 1,500 structures at the Onverwacht Interchange.
There was good co-operation amongst the parties to the extent that SANRAL was willing to transfer a portion of its land holdings in order to assist the WCPDoHS to relocate the unlawful occupiers of the Khayelitsha rail reserve.
The occupied site where the evictions occurred on 2 and 3 June 2014, is a portion of Erf 32524. This land is situated approximately 400 metres from the area in the road reserve that was earmarked for the Onverwacht Interchange. Mr Hornby stated that ongoing interactions between different spheres of government (that started in 2000 and ended in 2011) resulted in SANRAL managing to relocate 1900 households in the area in 2007 where they also acquired land from private owners. As part of the continued cooperation with the CoCT to assist in relocating the people who were occupying the affected area, some were relocated to Bardale. He also stated that throughout these interactions SANRAL showed its commitment to contribute to the solution relating to relocation of the occupants and housing development in the area.
It was further said that had it not been for the intergovernmental dispute over e-tolling that the CoCT and SANRAL became embroiled in, the remaining people occupying the area would have long been relocated to the serviced sites.
SANRAL stated that the first invasion of the site of the June evictions occurred during January 2014 when eleven (11) structures were unlawfully erected on the site. All the structures were removed without the intervention of the court. On 19 January 2014, a further fourteen (14)
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structures were erected on the site, but were again removed by SANRAL’s security agent and the South African Police Service (SAPS).
According to SANRAL, their security company, which was contracted to safeguard the property, could no longer prevent the invasions. From 19 January 2014 a large scale invasion took place even though the number of security guards increased substantially from one (1) to fifty (50) during the day and fifty (50) during the night. This was brought to SANRAL’s attention by the CoCT through various forms of communication including -: Letters on various dates in January 2014, informing SANRAL about the increasing number of structures on the land, including sites pegged out for future structures; Letters of complaints from neighbouring residents, including the Strand Ridge Residents Association, that were directly addressed to the Premier of the Western Cape; A notice in terms of the PIE Act, which was served on the regional offices of SANRAL on 22 January 2014, wherein SANRAL was given fourteen (14) days to rectify the situation failing which it may be held liable for the legal costs.
Based on these facts, SANRAL stated that it had no option but to proceed and apply for the court interdict on 24 January 2014. The CoCT provided SANRAL with an example of a court order that was used by the City in similar applications. The legal representative, Ms. Bester, then explained the nature of the court order. She stated that although the word “draft” appears on the order, it is actually a binding order of court. It is common practice for judges to “scratch out” the word draft and sign next to it when making a draft order an order of court.
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She continued and explained the contents of the order in terms of paragraph 2, relating to what a rule nisi is. This was calling on the Respondents, or any interested parties, to show cause on the return date as to why a final order should not be granted, interdicting and restraining the Respondents from entering the said area in Nomzamo, Strand. This order excluded those persons that were already occupying the land at the time of the granting of the order.
The order also restrained the Respondents from erecting, completing and/or occupying any structures there or extending the current structures.
Paragraph 3 of the order authorised the applicant to be assisted by the Sheriff, and in so far as needs be, by members of SAPS to give effect to the provisions of the order by: -
“ - removing any persons found to be in breach of the order subsequent to service of the order; - demolishing any structures unlawfully erected on the property subsequent to the service of the order, and - removing any possessions found at or near such structures, including any building materials, which possessions and/or building materials shall be kept in safe custody by the Applicant until released to the lawful owner”.
Service and execution of the order They stated that by 3 February 2014 there were 245 structures erected on the property but when the order was granted on 24 January 2014 only 9 structures were erected on the property, which according to them fell
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outside the stipulations of the order. She further stated that on 3 February 2014 the order was served together with the notice of motion and founding affidavit on the Respondents who then appointed an attorney. The latter had been communicating with the Applicant’s legal representatives until his withdrawal on 4 June 2014.
She said that when the order was served on the Respondents on 3 February 2014, the provisions of the order in terms of paragraph 6 were complied with. She went further and said that since the execution of the order in February 2014, the same people that were in unlawful occupation of the property were made aware of their contempt of court through their legal representative. She contended that since it was still the same people that were again removed on 2 and 3 June 2014 there was no need to go through the same process of service as was done in February in relation to paragraph 6 of the order.
She said that communication of the contempt of court by the Respondents was sent to their legal representatives although no response was ever received from them.
Humanitarian issues Ms Bester explained that the order was obtained during summer months but could not be fully executed due to Respondents returning and erecting structures. She further said that when SAPS was approached for assistance in April and May they were unavailable due to the up-coming National elections at the time. She further stated that they decided on the month of June for the evictions, because they realised that the winter school holidays were approaching and they did not want to execute the order whilst school children would be at home for holidays and witness the removals.
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She also said that weather conditions were considered. Since the Western Cape winter is known for rains, they decided to look at the weather predictions on the internet. There was no rain predicted on 2 and 3 June 2014. She, however, conceded that weather predictions could not be completely relied upon but said that they did all they could possibly do in their power.
Issues arising When asked about why they went to court, Ms Bester said:
“What further instigated us to go to court is we received quite a few emails from the city of Cape Town advising us that SANRAL as the landowner should ensure that the property is not invaded and the residents from the neighbouring properties especially Strand Ridge complained writing letters even a letter to the Premier was written some time ago.”
And when further asked about the main reasons for the urgent application, Ms. Bester stated clearly that the notice from the City of Cape Town was the main reason for the urgent application.
She said:
“What really created the urgency is that on the 22nd day of January 2014 the City of Cape Town served a notice by hand on the regional offices of SANRAL in the Western Cape in terms of section 6 of the PIE Act and that is also an annexure.”
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It also transpired that the CoCT through various communiqué to SANRAL suggested that SANRAL apply for an interdict and even offered to assist should SANRAL need such assistance. The City went further and sent SANRAL copies of court orders they have used in similar circumstances.
She highlighted the importance of understanding the nature of the court order by pointing out that the order was not a draft order but had the effect of a final order. She went further and highlighted the importance of paragraph 2 of the order on how the Respondents should be restrained.
When asked why SANRAL went to court and applied for an interdict when they were served with a notice in terms of section 6 of the PIE Act, Ms Bester said that the CoCT was in fact notifying SANRAL that they were not protecting their property and in turn created a problem. She went further and said that before they went to court she called an official of the CoCT, Mr Steve Hayward from the Anti-Land Invasion Unit, whom she asked what CoCT wanted them to do. He answered that the matter was now a land invasion and they needed to go to court and at that stage sent them examples of orders the CoCT obtained in similar circumstances. Ms Bester referred to the notice as the tipping point that led SANRAL to go to court.
She was then asked why they did not apply for an eviction order since by that time there were established structures already and why they did not apply their mind independently but seem to have acted on the instruction from the CoCT.
Ms Bester pointed out that in the letter dated 21 January 2014 from the CoCT, SANRAL was alerted to the rising number of structures on their
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property. It was also stated that there were 400 sites that were not constructed yet but only pegged out and some structures were nearly completed.
Ms Bester’s explanation for applying for an interdict and not an eviction order, was that they wanted to prevent further invasion but does not explain why they did not foresee that by the time they obtain the interdict, the probability would be that the structures that were nearly completed would have been completed by then and would fall under PIE Act and could not be removed in terms of the interdict they applied for. Although she also said that the reason why they went to court was that the security company contracted by SANRAL could no longer control the property by way of preventing further invasions, she maintained that there were still only 9 structures on the property, which was not problematic for SANRAL.
She was asked to comment on the affidavit from Mr. Lowe who said that from 21 January 2014 between seven and 13 illegal structures were constructed daily, that on 24 January, 2014 he went and inspected SANRAL’s property and noted that 35 structures were completed and occupied and 95 structures were constructed but were not occupied and 400 further sites were pegged out for construction. She responded that from 21 January 2014 the situation became out of control and on 24 January 2014 on the day that they were in court it changed dramatically throughout the day.
Ms Bester was again questioned about the basis for the urgency of the application when SANRAL was not constructing the road on the property but had in fact agreed to relocate people back to the property and whether the urgency was only created by the CoCT. She conceded
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that that was the case although people were being relocated on a temporary basis only.
She also pointed out that SANRAL together with the CoCT and the National Department of Human Settlements are now cooperating and have found a temporary solution to the problem. She conceded that had the relevant state organs co-operated with SANRAL from the beginning, the problems that they find themselves faced with would never have occurred.
When asked whether SANRAL considered that its conduct would render people homeless, she answered that the problem started as early as in January leading up to June and was a serious land invasion that was out of control and had to be stopped. She further said that as they applied to court they were pleased when they found out that the Respondents appointed an attorney but it was unfortunate that the relationship did not last. She was further questioned on why SANRAL allowed itself to be used by the City of Cape Town when it could have easily asked the City to move the people themselves.
At this stage Mr. Hornby answered that the people knew that they were not allowed to move onto the property. He also said that there was a period when the land was cleared and there were no structures, so people knew they were not allowed there. But he failed to answer the question why was SANRAL prepared to evict the affected people without taking some steps to address what was going to be an obvious consequence, namely the homelessness of the evictees.
SANRAL’s representatives also could not explain why they did not give the court the full picture about the new developments regarding the
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property where the number of structures had risen to 448 according to the Respondents’ answering affidavit.
They could also not explain why the interdict that they obtained in January and that was used in June did not have the names of the people that they wanted to remove. It was said that it would have been different if the interdict had the names of the people it was meant to restrain or prevent from invading the property, but that things were made difficult by the absence of the names. In normal circumstances these people could have been served with the interdict and in ignoring it they would then have accepted the consequences of their conduct. Ms Bester again conceded that she understood the proposition.
She was then asked about whether she even considered that the people that were in occupation in January when they first obtained the order might have changed after the evictions on 3 February 2014. She answered that she thought that since the Respondents had a legal representative by then, he would have informed SANRAL’s representatives about any change which he did not and therefore they assumed it was the same people. She also indicated that the security company that was on the property communicated with the occupiers and at all times SANRAL was under the impression that it was the same people and were never informed to the contrary.
She said the reason why they did not see the need to communicate the order to the people was that they were of the impression that the people knew about it since February when SANRAL first went to execute the order. But she again conceded that this was a problem in this case.
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When referred to the similarities of the facts of the case to the Constitutional Court case of Jabulani Zulu and 389 others v the Ethekwini Municipality, where Justices Van der Westhuizen and Froneman found that a similar interdict was contrary to the provisions and the pre-scripts of the PIE Act. The Justices held that it was unconstitutional and unlawful to grant an eviction order under the guise of an interdict. The presentation concluded with Ms Bester conceding that the Zulu case will change the way forward tremendously.
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CHAPTER 7
SHERIFF OF THE STRAND
The Enquiry received a written submission from the Sheriff of Strand, Mr Deon Burger, on 18 June 2014, in relation to the evictions that took place in February and June 2014 respectively at Erf 32524 Nomzamo Strand. Following his written submission, Mr Burger made an oral presentation on 22 July 2014 at the Sub-Council Chambers, 44 Wale Street, Cape Town.
The presentation by Mr Burger was delivered in Afrikaans and translated by Ms Malherbe, the interpreter, into English. His presentation referred to his submission of the 18 June and he summarised it.
The Sheriff received an instruction to execute the court order from Chennells Albertyn Attorneys from Stellenbosch on 28 January 2014. A written acknowledgement of receipt was sent to the instructing attorney, Ms Fiona Bester, on the same day.
Mr. Burger stated he viewed this instruction as a huge task and convened a meeting at his offices on the 28 January 2014. Present at the meeting was Colonel van Wyk from the local SAPS, head of Lwandle SAPS Captain du Toit and also the heads of the Public Order Police (POP) Unit, Colonel Lucas and Captain de Graaf. Representatives from the
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City of Cape Town’s Law Enforcement and Land Invasion unit, Mr Vivian Henry and Mr William Guntara respectively, and Mr Lesley Shuler from the Traffic department were also present. The consequences of the court order were discussed.
The meeting decided to reconvene on the 31 of January 2014 and to invite Ms Fiona Bester, the instructing attorney and Mr Salie Davids, the contractor appointed by SANRAL to demolish the structures. The property manager for SANRAL, Mr Sean Hornby, was also invited.
At this meeting, on 31 January, it was decided to execute the court order on 3 February 2014, as SAPS and the POP Unit would be available to assist. It was agreed that the demolished building material removed by Mr Davids, would be stored at SANRAL land at Firlands in Gordons' Bay. Col Lucas requested that the Fire Brigade and ambulance be on standby during the eviction process.
The court order was then executed on 3 February 2014. Members of all units involved met at 07h30 at Strand police station. Upon their arrival at Erf 32524 Nomzamo, the court order was read out in three (3) languages, iSiXhosa, Afrikaans and English. Eight (8) notice boards displaying the court order were also erected. The demolition of the structures then followed, with five (5) structures that fell under the PIE Act remaining.
The Sheriff was accompanied by Ms Bester, the instructing attorney and Col Zelman from SAPS Strand on a visit to the eviction site on 6 February 2014. The purpose of the visit was for Ms Bester to verify the extent of the eviction operation.
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On 10 February 2014, an instruction was received from the attorneys to remove any new structures that were being built and to remove previously demolished building material.
A meeting was held on 11 February 2014 at the Sheriff’s office in Strand. The meeting was attended by all the heads of Department from the CoCT, Ms Bester, SANRAL’s contractors, SAPS and the POP Unit. SAPS and the POP Unit confirmed their availability to assist on 19 February 2014.
On 19 February 2014 all the parties concerned met at Strand SAPS from where they left for Lwandle to remove the structures and building material.
On 28 March 2014 the Sheriff yet again received new instructions from the instructing attorneys to remove new structures that had been erected on the same land post the February evictions. The Sheriff once more convened a meeting of all role players on 10 April 2014. At this meeting Col Lucas informed the meeting that the POP Unit was not available to assist, due to the General Elections scheduled for 7 May 2014, and the subsequent parliamentary activities following the election. It was agreed that the meeting would reconvene at the police station at Faure SAPS on 14 May 2014 to discuss the availability of the POP Unit.
At this meeting the POP Unit suggested that alternative arrangements must be made to prohibit people from entering the property after the eviction. SANRAL would deploy 100 security officers and it was decided to fence off the site. By this time the illegal structures had increased from nine (9) on 28 March 2014 to one hundred and eighty three (183).
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A final meeting was convened on 26 May 2014 at Faure police station. Concern was expressed about the weather and a detailed weather forecast was downloaded from the internet which showed no forecast of rain for 2 and 3 June 2014. The POP Unit was available on these dates and it was agreed that the eviction would take place then. Also present at this meeting was Mr Warner from the fencing company contracted by SANRAL, as well as the security company responsible to mark and remove personal possessions of those people who were not at home during the evictions. The possessions were to be stored at Heritage Park in Somerset West. ESKOM had expressed concern about the evictions and the anticipated effect on power supply in light of illegal power connections in the area. Also of concern was the overhead cables, i.e. structures that were erected directly under the overhead electrical cables.
On 2 June 2014 all role players met at Strand police station at 08h00 from where they proceeded to Nomzamo (Lwandle), where they were met with petrol bombs, rocks and burning roadblocks. The crowd was addressed with a loud hailer in iXihosa and English. They were warned and informed that the eviction would take place. On the property were 233 structures of which 10 were unoccupied. At 15h30 all the role players left the site. Approximately 80 structures had been removed. The building material was removed to Firlands Park in Gordon’s Bay and personal belongings to Heritage Park in Somerset West.
On 3 June 2014 all parties met again at 08h00 at Strand police station and they arrived at Nomzamo at approximately 09h00. Once again they were met with petrol bombs, rocks and burning roadblocks. The crowd was given time to disperse and remove all personal belongings. Inhabitants would remove their belongings and set fire to the structures
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afterwards by throwing petrol bombs into the empty structures. The Fire Brigade was on hand to douse the flames. Demolished material of approximately 150 structures was removed to Firlands in Gordon’s Bay. By 15h50 all parties left the site.
At approximately 18h00 on 3 June 2014 the Sheriff received an email from the instructing attorneys to stop all actions related to the court order.
The sheriff concluded by thanking all the units involved for their professionalism and cooperation. He indicated that the police went out of their way to preserve the peace and to ensure the safety of everybody.
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CHAPTER 8
SOUTH AFRICAN POLICE SERVICE
BACKGROUND Following an invitation from the Ministerial Enquiry for submissions, the South African Police Service (SAPS) submitted the following:- i. A written submission, dated 23 July 2014, on the role of SAPS in the Nomzamo/Lwandle evictions prepared by its legal representatives; ii. An affidavit dated 7 August 2014 and supplementary affidavit dated 19 August 2014 of Colonel Jimmy-Dean Lucas; iii. Nineteen (19) Compact Discs (CDs). These included photographs and audio-visual footage taken on 3 February 2014 and 2 and 3 June 2014; iv. One (1) CD containing twenty (20) minutes of audio-visual footage. This was submitted as a shortened version of the nineteen (19) CDs; v. Written submissions of the SAPS in the Eviction of the Informal Settlement Community of Lwandle, Cape Town;
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vi. Affidavits from the following members of SAPS: Andre de Graaf dated 15 August 2014; and Daniel Theodorus Potgieter dated 15 August 2014.
Advocate Ncumisa Mayosi (Counsel for SAPS) appeared on behalf of SAPS who attended the public hearings on 8, 26 and 28 August 2014. Counsel for SAPS was accompanied on 8 August 2014 by Colonel Lucas, the Operational Commander of the SAPS Public Order Police (POP) Unit during the evictions on 2 June 2014, Warrant Officer Payne who was responsible for taking the video footage of the events on 2 and 3 June 2014 and Warrant Officer Gowker, who was responsible for taking the video footage during the earlier eviction on 3 February 2014.
Counsel indicated that an additional affidavit by Colonel Lucas, which he attested to on 7 August 2014, was now available, and her presentation would be based on that affidavit and the written submission. She requested that the affidavit be accepted by the Enquiry.
The Chairperson ruled that since the affidavit was handed in late, Counsel should limit her presentation to the written submission of 23 July 2014, and that he would later make a ruling concerning the affidavit.
Counsel indicated that the video footage of the two days that the Enquiry requested was with her and that she wished to submit nineteen (19) CDs to the Enquiry. This is video material from the February and June 2014 evictions.
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She further indicated that there was an edited twenty (20) minute video of the evictions in February and June 2014 that SAPS have compiled.
She explained the obligations imposed on SAPS in general, and in particular, in situations where public order policing is required as in the case of Nomzamo (Lwandle).
She referred to the constitutional mandate of the SAPS as derived from s253 of The Constitution.
She explained that section 17 of the South African Police Service Act, obliged the National Commissioner to establish and maintain a public order policing unit, and that it is this unit that provided an essential role in executing the Court Order. She then referred to National Instruction 4 of 2014 relating to public order police, which is relevant to crowd management during public gatherings and demonstrations. The purpose of this instruction is to regulate the crowd management environment and to restore public order, if violence had occurred during any gathering or demonstration.
It provides that together with the community, Metropolitan Police Services and other agencies, effective methods must be devised to promote public safety as well as reassuring the relevant community to be protected.
It further provides that SAPS must play a pro-active role to identify and defuse any possible conflict before it escalates into violence. This must be done by communicating with the public, organisers and the participants of such public events. It also states that the combating of serious and violent crimes includes stabilising the outbreak of violence at
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incidents of (and the combating of) serious and violent crimes as well as dealing with any occurrences of crowd gathering during the management of crime incidents to protect public property.
Counsel further stated that If an incident escalates to the extent that public violence erupts and the necessity to restore order is required, as was the case in Nomzamo (Lwandle) during the evictions, the POP unit must take full operational command and stabilize the situation. She explained that it is against this framework of internal police policy obligations that the role of the police in the evictions must be understood.
SAPS’ involvement in the eviction was as a result of the court order obtained by SANRAL during January 2014, which authorised SANRAL to enlist the assistance of SAPS.
She stated that: SAPS understood the position to be that the property belonged to SANRAL and one hundred and fifty (150) structures were illegally erected on the property; and The Sheriff for the Strand area made contact with SAPS and requested assistance from them in executing the order.
SAPS classified it to be a situation that would require, amongst others, crowd management functions. A threat assessment was therefore required based on available operational information, taking into account the level of the risk, discussions and arrangements in place, a history of peaceful or violent protests by the parties involved, and past experiences of the parties in terms of alleviating or aggravating the risk.
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On 27 January 2014, the POP Unit attended a security meeting with all the role players at Mr Deon Burger’s (Sheriff’s) office, i.e. Metropolitan Traffic and Law Enforcement, including SANRAL representatives, being present.
SANRAL then requested SAPS’ assistance in terms of paragraph 3 of the Court Order. It was made clear that SAPS’ mandate, in particular the POP Unit, was not to demolish or remove any structures or property, but to maintain public order and ensure the safety of contractors, members of the public present and the affected community.
The first evictions took place on 3 February 2014. The Sheriff read out the order to the occupants of the site and at 10h30 the eviction process started. Rocks were thrown at SAPS members and SAPS vehicles, and seven (7) people were arrested for public violence. All the structures were demolished but the building material was not removed from the site.
On 19 February 2014 the Sheriff and other personnel removed the remaining building material and rubble from the site. During this exercise there were no incidents of violence.
During April 2014 the Sheriff again contacted the POP Unit and advised once again that the area was occupied with approximately one hundred and fifty (150) structures, and that he again needed SAPS’ assistance to remove the structures in terms of the court order.
Three (3) further planning and security meetings followed where the following parties were present: SANRAL, the Sheriff, Cape Town Law
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Enforcement, Traffic and Metropolitan Police, fencing and demolitions contractors and representatives of SANRAL’s security company.
At the first meeting on 12 May 2014, the POP Unit was not satisfied with the measures SANRAL and their private security company had put in place before proceeding with the evictions. Colonel Lucas, from the POP Unit, requested SANRAL to revert to them with a proper plan on how the evictions were to take place. The meeting adjourned so that SANRAL could present a proper plan agreed to with all its agents, including the fencing and demolitions contractors and the private security company.
The second meeting was held on 14 May 2014. The private security company could not provide reasons for having failed to put measures in place to contain the illegal erection of additional structures on the site. The POP Unit instructed SANRAL to put measures in place to prevent further structures being erected.
At the third meeting held on 26 May 2014, the POP Unit expressed further concern regarding the storage of personal belongings of the occupants, measures to be taken to prevent further structures being erected and raised concerns about security. Colonel Lucas said that security must be increased, which was agreed to.
SANRAL agreed that perimeter fencing was to be erected to prevent further illegal occupation. The issue of the weather was discussed for the planned days of the evictions and if it rained whether the eviction would proceed or not. It was said that a seven (7) day weather prediction was obtained and no rain was expected for the days identified.
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The following possible threats were identified by SAPS: Possible attacks on the police, Sheriff and his staff; Possible damage to municipal properties and state vehicles; Occurrence of public violence, i.e. disruption of traffic, the throwing of stones and associated riotous behaviour, including marches by disgruntled community members, and the blockade of major routes, namely the N2, Broadlands and Onverwacht Roads. SAPS therefore intended to deploy the POP Unit members with armoured vehicles in the road parallel to the occupied area as well as placing Visible Policing members on foot patrols.
The post eviction plan was to control the area of Lwandle with Visible Policing, POP, Law Enforcement and Metro Police members, preventing criminal activities from taking place. The plan included patrolling the N2, Broadlands and Onverwacht Roads to prevent blockades or tyre burning.
At 08h00 on 2 June 2014 all role players met at Strand police station where a briefing as per the National Instruction requirements took place. Present at the briefing were POP and Visible Policing members, Metro Police, City Law Enforcement and traffic officers. Colonel Lucas described in detail the tasks of all role players involved.
As per the requirements of the National Instruction, POP members present were inspected to ensure that every member had the required equipment. This included body armour, bullet resistant vests, leg, chest and arm protection, a helmet with gas mask and filter, a shield, handcuffs, teargas grenades, stun grenades, a shotgun and approved rounds of ammunition.
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Counsel emphasised that members of POP were issued with rubber bullets and that no live ammunition was issued for 2 or 3 June 2014.
Everybody then proceeded in convoy to Nomzamo. On their way there, information was received that the major entrances had been blocked. Upon arrival at 08h45, they were confronted by angry residents throwing bricks, petrol bombs. Tree stumps, huge drainage pipes and other material were used to block the entrances. Three POP Unit members were injured and the Operational Commander, Colonel Lucas, assessed the situation as being dangerous and instructed the Sheriff and contractors to leave the area until it has been stabilised.
Counsel said that a loudhailer was used to communicate with the community in both English and isiXhosa. The crowd were asked to desist and disperse. They were given ten (10) minutes to do so. The ward Councillor was also asked to address the community and request them to desist from acts of public violence.
The crowd, however, continued to throw stones, bricks and petrol bombs at POP members. Barbed wire was deployed to separate the crowd from the Sheriff’s personnel and contractors. This was done with enough space for people to safely enter and exit the occupied area.
As the crowd continued to throw bricks, stones and petrol bombs at POP members, Colonel Lucas gave the order that the area be stabilised. POP members used their shields to push back the crowd. A water canon was used to put out burning fires on the road.
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Counsel explained that rubber bullets, stun grenades, tear gas and crowd management manoeuvres were used, firstly to maintain public order, and then to ensure that the Sheriff and his staff could proceed to execute the order. Six (6) members of the public were arrested for various acts of public violence and three petrol bombs were seized.
Approximately 80 structures were demolished on 2 June 2014 and removed by contractors. She then said that the contractors moved off the site around 15h30 and that the furniture and other belongings removed were stored at a protected site next to the BP garage on the N2.
According to Counsel, the Operational Commander from the POP Unit for the second day was Captain De Graaf, who was not present at the hearing because he was on leave in the Eastern Cape.
On 3 June 2014, a briefing meeting was again held at the Strand police station with all role players. Mr Gubuza, a representative of the MEC for Human Settlements arrived asking about arrangements for alternative accommodation for persons that were evicted. Mr Gubuza and the SANRAL representative engaged and a copy of the court order was shown to Mr Gubuza.
Counsel said that the legal representative from SANRAL and Mr Gubuza discussed the matter and SANRAL insisted that the eviction proceed. Mr Gubuza advised SANRAL that the MEC for Human Settlements would attend later in the morning.
She said that SAPS members and the contractors arrived at the site at 09h20. Entrances were blocked again with burning tyres and other
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obstacles. Approximately 80 protesters who were armed with sticks, knobkerries and pick axes were warned in English and isiXhosa to desist with their actions and to disperse. When they refused POP members pushed them forward with their shields.
She said that the crowd then threw stones at POP members and POP members dispersed the crowd by means of teargas and stun grenades.
She further said that at approximately 10h30 six (6) unoccupied structures were set alight by angry residents. The water cannon and fire brigade were used to extinguish the burning structures. She explained that the community was able to set the structures alight because they were allowed onto the property to remove their belongings.
She stated that, one (1) female was arrested for arson and assault on SAPS members, four (4) further arrests were made for public violence and one (1) petrol bomb was seized.
Counsel said that during the day various groups visited the area including the EFF, ANC and DA, church groups and the MEC for Human Settlements.
She further stated that one hundred and seven (107) structures were demolished and 81 removed by the contractors. The last truck with material left the area at 15h00.
Counsel concluded that SAPS’ role during the evictions was strictly in accordance with the assistance that was requested for SANRAL and the Sheriff following the Court Order of 24 January 2014.
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The Enquiry requested the documents that were used to inform the affidavit by Colonel Lucas for 3 June 2014. SAPS was then requested to return on 26 August 2014.
The second day of hearings for SAPS continued on 26 August 2014. Captain De Graaf was again absent from the hearings. The delegation consisted of Advocate Mayosi (Counsel for SAPS), Colonel Lucas, Captain Potgieter, W/O Payne (who assisted with the video material on 3 February 2014 and was present on 2 June 2014) and W/O Gowker, from the video unit present on 2 and 3 June 2014.
Counsel indicated that Captain De Graaf was summonsed to be present, but they could not provide reasons for his absence. However, Captain Potgieter, from the POP Unit, who was present on the 3 June 2014, would be able to answer questions on his behalf.
The police continued by playing the edited version of the video. Colonel Lucas indicated that the time reflected on the video was not correct.
Adv Mayosi was asked for her comments about the role SAPS played in the execution of the order with reference to various paragraphs of the interdict, in particular paragraphs 2, 3 and 5.
Counsel was also asked whether she had the same understanding that paragraph 2 meant that you cannot enter on that property of SANRAL for the purpose of unlawfully occupying or invading that property or erecting structures on that property. It was indicated to Counsel that the second thing that they would be interdicted from was to erect or complete and occupy any structures with the exception of certain existing structures on the property at the
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date when the order was granted on 24 January 2014. Paragraph 2.2 says that they cannot erect or complete or occupy any structures except those on the property that were already occupied at that date while paragraph 2.3 prohibits “intimidating or harassing or assaulting the employees or the agents or the contractors of SANRAL or any person involved in law enforcement” and the last form of conduct that is being interdicted is “inciting persons to enter the property or to erect structures on the property”. It was put to Counsel that those four forms of constraints seem to be what is being interdicted or what is likely to be interdicted by a final order that the court might grant. Counsel agreed.
Paragraph 3, which authorizes certain actions to be taken and where her clients are mentioned was then raised. It was indicated that SANRAL “the applicant is authorised, duly assisted by the Sheriff and in so far as needs be, by the members of the SAPS to give effect to the provisions of this order”, and it specified the actions that are authorised or that would be authorised by the final order, to which Counsel agreed.
Paragraph 5 of the order was then dealt with as follows :
“Paragraph 5 is an important one. That one says that pending the return day, 24th Feb 2014, we know that’s the return day. Pending that, paragraph 2 shall operate as an interim interdict with immediate effect. So do you agree that it appears that it is only the terms of paragraph 2 of the order that had become immediately enforceable?”
Counsel replied and said that it would appear that paragraph 2 are the terms that became immediately enforceable in terms of operating as interdictory relief. She was then asked if it would be correct to say that
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given the terms of the court order, paragraph 3 of the court order never became immediately enforceable.
Counsel responded that paragraph 5 operates as an interim interdict, and paragraph 3 gives the applicant the authority to give effect to the provisions of the order. She further said that she would then surmise that that would include the provisions of the interim interdictory relief.
It was reiterated that in the understanding of the Enquiry only paragraph 2 of the order became immediately effective. Counsel submitted that in terms of paragraph 3, SANRAL is authorised to give effect to the provisions of the order. It was indicated to Counsel that paragraph 5 says explicitly that only paragraph 2 is immediately effective and that it does not refer to paragraph 3. It was said that it is quite logical that the only part of the order that is immediately effective is paragraph 2 not paragraph 3. Counsel indicated that she does not read it in that way.
She was then asked :
“How do you get in paragraph 5, where it only limits the part of the order that is immediately effective to paragraph 2, how do you read paragraph 3 into that? What paragraph 3 does - it in fact amounts to an eviction order really and I think we’ve agreed, we’re talking about an interdict here”
It was put to Counsel that paragraph 3 cannot be read into the express terms of paragraph 5 of the order and that only paragraph 2 is immediately effective. No other part of the order – so that is all that should have been done with the order between 24 January 2014 and 24 February 2014 to give effect to paragraph 2 and nothing else.
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Counsel agreed that paragraph 2 was immediately effective as an interim interdict which meant that in the interim pending the return date, the conduct which is specified in paragraph 2 is immediately interdicted. The Enquiry agreed that that was the only conduct that was immediately interdicted. It was further indicated that with people that were already on the land there was nothing that could be done except to follow the correct procedure to remove them. It was stated that where the occupiers had already erected structures, removing them is tantamount to evict them which requires a different process in terms of the PIE Act. It was indicated to Counsel that in the case of the current owner, who was not vigilant enough to prevent invasion, there was nothing it could do with those structures that were already on the land as paragraph 3 was not immediately effective. The only thing that it could stop was an invasion and to remove those structures that would have been in the process of being constructed, as that would amount to being in the course of invading.
Counsel said she had a different reading and that she was not going to defend the cause for the Applicant. She has a different view to the meaning of the order. She disputed that paragraph 3 was not immediately effective.
It was indicated to Counsel that if only paragraph 2 is effective then her clients have actually acted contrary to the law being complicit in effecting an eviction.
Counsel responded as follows:
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“If that is so chair, but that is not an interpretation I agree with. I agree with the interpretation that says indeed paragraph 2 is immediately effective as an interim interdict. Paragraph 3 I submit authorizes certain actions to be taken if the interim provisions are breached and it describes what those actions are, but only in relation to actions that breach paragraph 2.”
It was put to Counsel that the court order obviously has fairly grave consequences for her client and everybody else who were involved in the evictions, because the PIE Act provides, in line with The Constitution, that people can only be evicted if there is a court order that authorises the eviction. If an eviction is done without a court order, then one is committing an offence in terms of the PIE Act and can be criminally charged, apart from the civil consequences of unlawfully evicting people.
Counsel then said that the conduct was ordered by court and that it is at that point where her client entered the fray - all that it had was a court order.
It was enquired from Counsel whether her client considered the terms of the order, to which she replied “save for the purpose of providing the assistance that it was requested to provide, I do not know if it has within its legal department considered the debates we’re having here. I don’t have instructions relating to what consideration they have given to the terms of the order before implementing it”.
Colonel Lucas was then asked about the process followed when the police are given an order to implement, whether it goes to the legal
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department at the provincial office. Col Lucas said that the process is of such a nature that they do provide it to their legal department and after that the operation is executed or planned. He then referred the enquiry to certain paragraphs of his affidavit that raise a lot of concerns from SAPS’ side relating to the evictions that were going to take place, specifically paragraphs 6, 20 and 23. He personally expressed a lot of concerns and every time the legal person from SANRAL assured him that the said court interdict was approved on the highest level.
During interaction with Col Lucas about the discussion he (Col Lucas) had with Mr. Lili on 2 June 2014 regarding the lawfulness of the order where Mr. Lili said that the order was unlawful, Col Lucas said that it is difficult for an operational officer to determine if this order is legal or not legal. He said that he thinks that it is the mandate of the Enquiry “to establish when should the police actually get involved”, and that he thinks “with your conclusions, you can come up with some sort of standard operating procedure in how to deal with this type of incident”.
Col Lucas indicated that the police provided the court order to their legal services unit for consideration and that it was faxed or emailed but that he could not remember who the officer was.
He explained the difficulty for the police to execute its operational responsibility and that he hoped the Enquiry would come up with a standard operating procedure specifying how to deal with this type of incident.
He reiterated that he acted lawfully and that he believed that he would have been held in contempt of court if he did not assist as ordered in executing the court order.
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He said that no representatives of the community were present at the planning meetings and that he raised his concerns around that with SANRAL.
Col Lucas indicated that he did not know if the station commissioner adhered to paragraph 5 of National Instruction 4 of 2014 which refers to conflict resolution and community involvement. This was not the responsibility of the POP Unit, but that of the station commissioner. He further agreed that they also had a responsibility to the very community that were evicted.
He stated that with the 3 February 2014 evictions, the court order was read out to the affected community and sign boards with the order were posted on the site by the Sheriff.
Col Lucas indicated that an operational plan for the June 2014 evictions was developed and went on to explain the purpose of such a plan. He indicated that he sent his intelligence component to the area who reported to him that people are still building in that specific area. He further indicated that there were more structures than prior to the first evictions. The intelligence component also informed him that they would be met with violent resistance by the community.
Col Lucas initially disagreed with a proposition that fewer POP members and less resources were deployed on June 2014 than on 3 February 2014. However, he later admitted that in fact more members were deployed on February 2014. This, he said, was due to the fortuitous availability of Southern Cape POP members who were busy with training in Cape Town at that time.
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Col Lucas indicated that the community did know of the imminent eviction as they waited for SAPS on the day. He also said that he allowed, as a humane gesture, members of the community to go in and fetch their belongings even though he should not have allowed it.
He indicated that there was no formal handover between him and Captain De Graaf for the operation from 2 June 2014 to 3 June 2014, as Captain De Graaf was present on 2 June 2014.
When he was asked about the date and times appearing on the video footage, he agreed that the video footage did not reflect the actual time and that the date stamp of “2006” on the photographs was not correct either.
Captain Potgieter indicated that even though stone throwing by the community is not captured on the SAP video on 3 June 2014, stones were indeed thrown.
When he was asked why did he not give Councillor Matha a hearing, Col Lucas said that he believed he did everything expected of him during his interaction with Councillor Matha.
Col Lucas indicated that he has dealt with numerous situations like this and in his experience Councillors would ask him to defuse the situation and in some instances violence in fact escalated in the presence of the Councillor. He has to make that judgment call depending on the circumstances at that moment.
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Col Lucas indicated that normalisation after the evictions took place through the involvement of senior government officials. The Councillor speaking to the community was part of the normalisation process.
He further indicated that a Joint Operations Centre was established at Lwandle police station during the evictions.
The Enquiry decided to reconvene on 28 August 2014 due to time constraints and to provide the Enquiry the opportunity to interact with Captain De Graaf.
Captain De Graaf was again not present at the Enquiry on 28 August 2014.
Col Lucas indicated that Captain De Graaf has nearly 30 years’ service in the SAPS, 20 years whereof he served as a member of the POP Unit. He was an officer for almost 15 years and has attended all the relevant courses required for crowd management. He went on and said that Captain De Graaf was a well-trained and experienced officer.
Captain Potgieter indicated that while he was not involved in any of the planning meetings prior to the evictions, Captain De Graaf was involved in most of those meetings. Captain De Graaf was involved in the process of drafting the operational plan for 2 and 3 June 2014. The operational plan is a structured plan that is prepared for senior command and is also a briefing document. The plan is used to brief all officers who in turn brief officers on a lower level. Col Lucas was the author of the operational plan for 2 and 3 June 2014. The plan is not always strictly adhered to because the situation on the ground would dictate the actions to be taken.
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Captain De Graaf compiled the operational plan for 3 February 2014, but was not involved in the actual authoring of the operational plan for 2 and 3 June 2014. Captain De Graaf was designated as the overall commander for 3 June 2014 because Col Lucas and Captain Theart, who was second in command, were both required to attend court on 3 June 2014. Col Lucas indicated that in hindsight it would have been better to involve Captain De Graaf in the authoring of the plan for 2 and 3 June 2014.
Captain Potgieter indicated that upon their arrival at the site on 3 June 2014 the police found that the area was barricaded off. The members alighted from the police vehicles and approached the barricades in a platoon formation. There were approximately 60 people standing behind the barricade. The group of people was passive at the time. It was at this stage that the Bishop of the Methodist Church approached the police. The Bishop spoke to Captain De Graaf who explained the situation about the court interdict that had to be executed and that the police needed to secure the area. The Bishop went to the crowd and the police removed the barricade and moved into Mvula Street where the group was gathered lower down in the road where they started to set tyres alight. The police gave the group a warning to disperse within 5 minutes. The police requested the crowd to disperse but they resisted. Stones were thrown at the police who responded by deploying two stun grenades causing the crowd to disperse into the side streets.
Col Lucas indicated that the court interdict had to be executed and the police were compelled to execute the operation. This was a different situation from service delivery protests where there is scope to engage in negotiations with the protesters.
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Although it was a requirement, there was no designated negotiator on the scene. The police would always give an opportunity for discussions and this was not prevented in this case. The Methodist Bishop had an opportunity to speak to the community before police action was taken. The warning to disperse was only given after the conclusion of the discussions with the Bishop.
Col Lucas indicated that he visited the site on three or four occasions just prior to the first evictions in February and about a week before the second evictions in June. On those occasions he spoke to some of the community members. They indicated that they were backyard dwellers who were forced to pay a lot of money for rent.
Captain Potgieter indicated that he did not peruse the operational diary for 3 June 2014 and therefore did not sign the diary off.
According to SAPS the information relied upon to classify the operation as a level 3 threat are specified in paragraph 1 of the operational plan for 2 and 3 June 2014.
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CHAPTER 9
CITY OF CAPE TOWN
INTRODUCTION The City of Cape Town (CoCT) is the local sphere of Government within whose jurisdiction Nomzamo (Lwandle) falls and it was therefore incumbent on the Enquiry to include the CoCT in the scope of its work and deliberations.
WRITTEN SUBMISSION BY THE CITY OF CAPE TOWN
A written submission dated 11 July 2014 was sent to the Enquiry by the Executive Mayor on behalf of the City of Cape Town. However, the CoCT placed on record that it had yet to receive a response from the Minister, indicating which clauses in legislation empowers the Minister to establish a Ministerial Enquiry, and therefore reserved its rights with regards to this Enquiry.
The submission draws attention to allegations from some evictees that they were required to pay a “membership fee” to an organisation called Ses’khona. They also allege that Ses’khona openly encouraged people to violate the court order, and “sold” plots to evictees for as much as R2500. In support of the allegation, they quote from articles in two newspapers published between 3 and 10 June 2014.
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The submission then provides a historical context dating back to 1998 supported by photographic evidence in the form of aerial photographs. This confirms that SANRAL and the CoCT engaged in discussions to find a solution to relocate people residing in a road reserve. In support of this, a schedule of State subsidised human settlements projects in the Helderberg Basin between 1998 and 2012 is included.
During the course of 2011, the CoCT challenged SANRAL on tolling inside the Metropolitan area, which resulted in negotiations stalling. However, notwithstanding the breakdown in communications to find a solution, the CoCT stated that it encouraged SANRAL to manage its land effectively to ensure a fair and just housing delivery system.
The CoCT highlights its concerns with regard to the safety risks posed by the nature of the informal structures to the occupants and the lack of access to basic sanitation, and requested SANRAL to take responsibility for its land.
The submission stated that the CoCT played no role in the actual eviction process, although CoCT officials were present on the eviction site on request by SAPS, as the CoCT has land in the immediate vicinity of the site, which was subject to previous invasion attempts. Furthermore, staff members of the CoCT arrested an adult female on charges of arson, and detained her at the local SAPS station.
The submission details the humanitarian assistance provided by the Disaster Risk Management Unit, in conjunction with SASSA and the SA Red Cross Society after the evictions, including opening the Nomzamo Hall to house those displaced by the eviction process. It is stated that the ward councillor was included in these arrangements. In addition, an
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allegation is made that resources were diverted to the home of a Ses’khona member with the help of Lwandle Councillor, JJ Maxheke.
The CoCT stated that they also proactively sought to mitigate the situation by offering to provide emergency housing kits on a number of occasions, but these were rejected by Ses’khona. In conjunction with the National Department of Human Settlements, an agreement was reached to provide an enhanced structure, i.e. 6m x 3m instead of the conventional 3m x 3m. This was done on the explicit understanding that the National Department will bear the costs thereof.
The Housing Development Agency (HDA) was appointed to manage the building of the new structures. In addition, the CoCT will provide 40 toilets and 8 taps. Full flush toilets will be provided on the periphery of the land once people have moved into the temporary structures.
In its concluding remarks, the CoCT draws the Ministers attention to the rights of people who are legally on the housing waiting list, and that there are approximately 2300 individuals who need to be considered before the evictees.
Following receipt of the written submission from the CoCT, the Chairperson extended an invitation to the City to address the Enquiry at Public Hearings that commenced on 14 July 2014. In response to the invitation, the City replied that it was unable to attend the Hearing as it was unclear about whether the Minister was empowered to establish the Ministerial Enquiry.
A request for further information was then sent to the City dated 26 August 2014 which included a list of questions Members had, emanating
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from their written submission and information provided by other role players.
A written response to the above request, authored by the Acting Mayor, Cllr Ian Neilson, was received on 19 Sept 2014. The written submissions and other communications are contained in the list of annexures that accompany this report.
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CHAPTER 10 WESTERN CAPE DEPARTMENT OF HUMAN SETTLEMENTS
The Enquiry received a written submission dated 27 June 2014 from the Western Cape Department of Human Settlements which sets out the following information: i. During the first week of June 2014, 849 families were evicted from SANRAL owned land. SANRAL proposed to move the affected families to land in Blackheath. ii. The following commitments have been made by the City of Cape Town (CoCT), Ses’khona People’s Rights Movement and the respective ward councillors:
That SANRAL must take responsibility to rebuild the 849 structures of 6x3 metres in size;
The CoCT will provide 45 chemical toilets that will be replaced by flush toilets within two months to be installed on the periphery of the SANRAL owned land; The CoCT will provide water stand pipes and the HDA will consult with Eskom regarding the provision of electricity;
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The Executive Mayor gave a written undertaking to ensure that the recent evictees from the SANRAL land and all the families from the N2 road reserve will receive serviced sites within the broader development plan of the Macassar precinct, of which the first sites will be ready for occupation by November 2015. iii. The Western Cape Department of Human Settlements rendered the following assistance:
The Provincial Department, in collaboration with the National Department of Human Settlements and the HDA have entered into a financial agreement to alleviate the dire conditions and resolve the crisis of the Lwandle families;
The Provincial Department has pre-approved funding for emergency housing kits which could be used for emergencies within the Cape Metro such as the situation of the Lwandle evictees;
The MEC for Human Settlements accompanied the National Minister for Human Settlements during a briefing session with the other stakeholders to explore suitable solutions to the emergency situation of the Lwandle evictees;
There is ongoing liaison between the Provincial Department and the other stakeholders to resolve the crisis.
The MEC for Human Settlements wrote to the Enquiry on 14 July 2014 in response to the invitation to participate in the public hearings of 15 July
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2014 indicating that only one working day’s notice was given of the public hearing. Reference was made to an earlier letter from the Enquiry which was received on 25 June 2014 and which required that written submissions must be made by 27 June 2014. It was indicated that: i. the Western Cape Provincial Government (the Province) questioned the validity of the establishment of the Enquiry and emphasised that the correspondence must not be interpreted as recognition that the establishment of the Enquiry was procedurally or substantively valid. The Province at the very least held the view that the constitutional requirements of co-operative governance have not been adhered to in the establishment of the Enquiry. The belief was expressed that the Minister of Human Settlements should have set up the Enquiry in consultation with the Mayor of Cape Town. The expectation of the Province was that similar enquiries should have been convened into various evictions in other provinces in the intervening months since the Lwandle evictions. ii. Participation in the public hearing would have been a waste of time and money and was potentially legally questionable. It was indicated that the Province has no further available facts or comments on the matter and declined the invitation to attend the public hearing. The view was expressed that giving one day’s notice for appearing at the public hearing was either due to bad planning or was not a genuine attempt to gather pertinent information. iii. It was emphasised that the Province was not a party to the High Court proceedings that resulted in the evictions and that it did not play a role in the actual evictions which were carried out by
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SANRAL with the assistance of the Sheriff and various law enforcement agencies. iv. The role of the Province was limited to rendering support and facilitation in collaboration with the National Ministry in the aftermath to the evictions. The Province would continue to provide a support and monitoring role in respect of further actions that may be deemed necessary in conjunction with both the City of Cape Town and the National Department of Human Settlements.
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CHAPTER 11
NATIONAL DEPARTMENT OF HUMAN SETTLEMENTS
This Chapter summarises the written submissions received and presentations by the National Department of Human Settlements (DoHS) and Housing Development Agency (HDA).
On 24 June 2014, prior to the public invitation for submissions, the Enquiry received a status report on the Nomzamo (Lwandle) evictions from DoHS and HDA. The report was presented by Mr M. Tshangane, Deputy Director-General : Program and Project Management (DHS) and Mr B. Khosa, Program Manager of the HDA. The report set out the progress in resettling the evictees and indicated that :
ground preparation of the site had commenced on 17 June 2014 and in anticipation of the reconstruction of the demolished structures, the site was cleared of debris that remained after the evictions. The ground was stabilised by compacting truck loads of rubble deposited on the site;
there were delays in engaging a service provider to attend to the reconstruction process. The community abandoned its initial demand that a handpicked service provider be engaged and agreed that members of the community would be engaged in the
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rebuilding of the structures. There was a further delay caused by dissatisfaction on the part of the community members about the rate of compensation. An agreement was eventually reached that the emergency housing kits would be erected with the support of the service provider appointed by the CoCT and that HDA would manage the process, provided the procurement was compliant with applicable policies and procedures and that the funding was provided by the CoCT and the Western Cape Province;
delivery of the first batch of 200 emergency kits by the CoCT measuring 6x3 metres together with rudimentary services commenced on 19 June 2014;
the list of affected beneficiaries remained uncertain in that the Sheriff reported that 233 structures were demolished during the evictions while the community contends that the number was 928. Initially the community put the number of structures at 849 but did not furnish a confirmatory list. The list of 928 was compiled from the members of the affected community who were present during a roll-call in the Nomzamo Hall on 15 June 2014. It appeared that certain segments of the community had taken advantage of the situation to push up the figures;
in view of the lack of capacity of the current site to accommodate 928 structures, the prevailing notion amongst the community was that the rest of the land constituting the servitude area will be availed for them;
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while interim measures are being pursued, it is essential to find a permanent solution that will allow the road reserve to be cleared. To this end HDA has endeavoured to identify suitable alternative land in the area.
The DoHS and HDA participated in the public hearings on 14 July 2014. They were again represented by Mr Tshangane and Mr Khosa respectively.
Mr Tshangane informed the Enquiry that the management of the relocation process was delegated to the HDA under the leadership of Mr B. Khoza who would then be responsible for project management and co-ordination and he must ensure that the Enquiry was kept updated on progress.
Mr Tshangane stated that when the Department intervened in matters of emergency, they always use one of their incremental housing policy programmes. In this case they had to use the Emergency Housing Programme. He then handed over to Mr Khoza.
Mr Khoza indicated that the evictions had occurred on 2 and 3 June 2014 but the HDA only became involved on 4 June 2014. At a meeting on 11 June 2014 between the Minister of Human Settlements, the Mayor of the CoCT and the community, a decision was taken that the evicted community should be relocated on the land from where they were evicted. Undertakings were given by the Mayor to provide emergency housing kits and rudimentary services in terms of water and sanitation. In addition, the CoCT undertook to provide flush toilets within two months and that permanent housing opportunities would be provided to the affected parties in Macassar.
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On 17 June 2014 the clearing of the site commenced and construction of the emergency housing units started on 24 June 2014. As at the date of the hearing (14 July 2014) 200 units had been completed, 35 concrete floors cast and 20 chemical toilets provided. The housing kits measures 6m x 3m i.e. 18,0m².
Mr Khoza then spoke about the number of “affected beneficiaries”. The Sheriff’s report stated 233 structures were dismantled. In engagements with the community a figure of 849 families were mentioned. However, according to a preliminary assessment based on the footprint on the ground, he indicated that the land could only accommodate between 400 and 402 structures. The community provided a list of 301 names on the first day. An aerial photograph of the area would also be consulted to reconcile the differing numbers. However, the contention of HDA is that up to 402 structures must be erected and not 849.
In reply to a question about the composition of the Steering Committee, Mr Tshangane said it comprised the Councillor, affected people and members from Ses’khona People’s Rights Movement. When the Department started interacting with the community the Steering Committee was already in place.
The legal status of the Emergency Housing Programme was raised by the Enquiry since the policy was very clear on the minimum size of units to be provided as well as the formation and composition of the Steering Committee under such circumstances. Mr Tshangane confirmed that the policy, although viewed as guidelines, was part of the Housing Code and therefore enforceable. However, he indicated that deviation from the policy was allowed with permission from the National Minister and
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the relevant MEC, and that the driving factor was the funding and need in a particular area.
Mr Tshangane indicated that the size of the structures was a contentious issue. The policy determines that the size of structures can vary up to 30 square metres if conditions so allow. In the present case a size of 18 square metres was allowed which is within the policy. It is allowed to deliver less than 24 square metres in order to accommodate the applicable numbers. Mr Khoza reiterated this position and indicated that funding constraints and the particular circumstances would dictate what can be provided in a given case provided it is within the prescripts of the policy. He indicated that the Emergency Housing Programme which is applicable in this instance is funded from the National Grant which is disbursed to provinces. It is known as the Human Settlements Development Grant. Emergencies are not budgeted for but when they happen, provinces are allowed to use the Human Settlements Development Grant to fund the emergency, which is what had been done in the present instance. The CoCT has provided the material required which is funded by the Province. The contention of HDA that 402 structures of 18 square metres each should be provided, is within both the policy and the budget.
Mr Khoza confirmed that the HDA was unaware of the pending evictions and only became aware of it subsequently. Mr Tshangane indicated that the DoHS was not involved on the day of the evictions and only became involved subsequently.
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CHAPTER 12
COMMUNITY REPRESENTATIVES AND INTERESTED PARTIES
INTRODUCTION
This Chapter summarises the written submissions and oral presentations of the following community representatives and interested parties : Ward Councillor Matha of Ward 85, Strand; Ses'khona People's Rights Movement; Access to Justice Association of Southern Africa; Tim Flack; Representatives of the Methodist Church; Sobahlangula Social Investment Project (SSIP); and African National Congress, Western Cape; Colin Anthony Arendse; and Surrounding communities.
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SUMMARY OF SUBMISSIONS
(a) Councillor Matha (Ward 85, Nomzamo, Strand) On 18 July 2014 the Enquiry received a written submission from Councillor Mbuyiselo Matha of Ward 85, Nomzamo in the Strand which was in response to an invitation for an oral presentation. The Enquiry requested the Councillor to present at a public hearing because the evictions happened in his ward. On 21 July 2014, the Enquiry heard the Councillor’s oral presentation. Mr Matha has been a councillor at ward 85 between 1996 and 2000 and from 2006 to date. i. The informality and inadequate housing in Ward 85, Nomzamo Councillor Matha provided information on the background of twelve (12) informal settlement areas within his ward that dates back to the year 2000. He informed the Enquiry of the history of the 12 informal settlements including the settlement on SANRAL land that is forming the subject of the investigation of the Enquiry. These informal settlements are located on land belonging to the City of Cape Town (CoCT), and some on privately owned land, belonging to SANRAL. All the informal settlements on land belonging to the CoCT have minimum basic services such as water and sanitation, piped water, toilets, refuse removal and electricity supply with the exception of two informal settlements under the Eskom power lines.
These twelve informal settlements have over the years, been affected by disasters such as fires, floods, and others. According to the Councillor, agreements were reached in 2007, that people were to be relocated to three pieces of land around Nomzamo. This
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resulted in the people that were not accommodated at the time of relocation becoming backyarders. According to Cllr Matha numerous promises were made by senior politicians to relocate the people to Macassar but these were unfulfilled.
According to the Councillor a number of engagements with the CoCT political heads, senior managers and officials responsible for human settlements were held to discuss the plight and the living conditions of people in his ward. According to Cllr Matha the reports he received were that SANRAL will provide land where people that are residing on SANRAL’s land earmarked for the development of the N2 interchange, will be relocated to and the CoCT will provide services. Instead of adhering to this agreement the CoCT took SANRAL to court concerning N1 and N2 e-tolls. ii. The occupation of Erf 32524 “Siyanyanzela” or land in question The councillor further stated that, in January 2014, he was approached by people who identified themselves as representatives of the backyarders in Asanda Village. They informed the Councillor of their intention to occupy the piece of SANRAL owned land that is the subject of this enquiry. The main reason for this decision was that they have been waiting since 2007 for land, services and houses promised by the CoCT and were therefore tired of the delay. They argued that they were tired of waiting as they were subjected to paying increasing rentals in the backyards. Cllr Matha in turn informed them that the land was privately owned and belonged to SANRAL, who was planning to extend the N2 National Road using that piece of land. He stated that he warned them about the implications of occupying the land. It would appear that
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regardless of his warnings, people proceeded to invade the land, leading to the first evictions in February 2014. iii. What happened during the evictions on 3 February 2014? The Councillor stated that he was not consulted by SANRAL, SAPS, and the CoCT. He also indicated to the Enquiry that he was not on site when the evictions in February occurred because he feared that the people occupying SANRAL land might believe he was responsible for the eviction because he previously warned them not to occupy the land.
The Councillor stated that he was not given prior notice about the evictions, nor was he involved or consulted during any planning meetings related to the eviction. He was also accused by the evictees of being responsible for the evictions and had to request security protection which was provided by the CoCT. The Enquiry was informed by Cllr Matha that the neglect of the concerned parties to inform him of the impending evictions in order to negotiate with the community resulted in an unpleasant situation. iv. What happened during the evictions on 2 June 2014? As with the evictions in February, the councillor claimed that he had no prior knowledge that evictions would take place on 2 June 2014. Councillor Matha explained that in the morning of 2 June 2014 at about 07h00, he received a telephone call from a gentleman called Jwarha, one of the local residents of Nomzamo, informing him of the presence of the police in the area and their throwing of teargas and stun grenades. According to Cllr Matha, he immediately proceeded to the site where he found ‘police everywhere in Asanda Village and there was a smell of tear gas’.
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He spoke to the leader of the operations Col Lucas who according to the Councillor was ‘surrounded by heavily armed police with big guns’. He introduced himself as the ward councillor and asked Col Lucas about their presence in the area. He also requested Col Lucas to explain the reasons why (a) he was not informed about the action of the police and (b) tear gas was thrown at the people including children. Col Lucas informed him that the police were acting on the strength of an order from the High Court to evict people on SANRAL’s land.
He appealed to Col Lucas to negotiate an amicable solution but this was refused. Cllr Matha then requested to see a copy of the court order so that he can show the people and convince them that the police were acting on the court order. Col Lucas could not provide him with the court order instead he gave people ten minutes to disperse. They defied his instructions and the police fired teargas. According to the councillor, the pandemonium escalated resulting in some people being arrested, assaulted and kicked including a 9 month pregnant woman. According to Cllr Matha while all this was happening the demolishing of shacks, thus evictions, were underway.
In his oral presentation Cllr Matha stated that he left the scene to look for Captain du Toit of the local police station to request intervention because he feared the worst. On his way back to the scene he met Andile Lili and other members of the leadership of Ses’kona. He learnt that they managed to get the draft order from Col Lucas. They informed him that they determined that the court order was a draft used in the first eviction on 3 February 2014. The
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contingent also informed him that after being exposed by Lili that the operation was illegal, the police immediately stopped and left the scene.
According to Cllr Matha, later that same day he tried to get access to the municipal-owned community hall to arrange shelter for the evictees but the CoCT official refused. This resulted in people having no choice but to sleep outside in the open on the evening of 2 June 2014. Cllr Matha described how he was sent from pillar to post by the CoCT when requesting assistance to open the community hall and how young children slept outside in the dead of winter. v. What happened during the evictions on 3 June 2014? According to Cllr Matha the following day, 3 June, another eviction took place. He was informed about the events of 3 June at about 09h00 by Saziwa. Cllr Matha explained to the Enquiry that more houses were destroyed and some were burnt and more arrests were made. He stated that there were cries everywhere and the last time he experienced such a situation was during apartheid years. He stated to the Enquiry that the police were brutal and inhumane in their actions and did not yield even when Church leaders, non- governmental organisations, local leaders and everyone appealed for calm and mercy. Various church leaders, NGO’s and politicians visited the affected community. vi. Humanitarian assistance offered immediately post evictions of 2 and 3 June 2014 According to the Councillor, the evictees were given access to the hall on the 3rd day. He confirmed in his oral presentation that the
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hall was made available from the 3rd day, meaning 4 June 2014. In his oral submission, Cllr Matha mentioned that 849 people were accommodated at the hall.
Cllr Matha informed the enquiry that the evicted people started receiving aid in the form of food, blankets and mattresses, provided with the assistance of the National Minister of Transport, Ms Peters, Deputy Minister of Human Settlement Ms Zou Kota, officials from their departments, church leaders and CoCT Disaster Management. Later that day, the Minister of Human Settlement together with the MEC of Human Settlements in the Western Cape, Mr Madikizela visited the people at the hall. vii. The relocation of the evicted community On the immediate days after the evictions, a meeting took place between local councillors, the Housing Development Agency (HDA), Department of Transport and SANRAL to discuss alternative arrangements for relocation.
Cllr Matha stated that at this meeting SANRAL offered a portion of land for relocation that extends from Blackheath to Mfuleni. This was identified and scouted as the most suitable as it would also accommodate the other informal settlements on SANRAL land. The evictees were confronted by an unyielding resident community in Blackheath who claimed that there was a lack of consultation and were opposed to the building of the structures in their neighbourhood as this would lower the value of their properties. A meeting between the Minister, the Mayor, HDA, SANRAL, the Department of Transport, and the local councillors (wards 85 and 86) to discuss the matter, resolved that the evictees would remain
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on the SANRAL-owned land while alternative land in Macassar was being prepared for relocation in 2015.
Councillor Matha informed the Enquiry of another meeting between the Mayor, Ses’khona, CoCT senior officials and the Councillors for Wards 85 and 86. In this meeting the Mayor undertook to provide temporary services such water pipes and forty-five (45) chemical toilets that would be converted into flush toilets after two months. The HDA was to assist in making arrangements for the installation of electricity. Soon after this meeting, a joint statement was issued by Ses’khona, and the CoCT. Cllr Matha handed a copy of the statement to the Enquiry.
According to the Councillor the relocation committee further agreed that the temporary units would be 18m² (6x3 square metres), with concrete flooring and basic services will be provided for the entire settlement. It was in these meetings that a decision was made that the affected community members would in the interim remain in the local hall and the provision of meals and basic sanitation services would be overseen by the CoCT.
The Councillor also informed the Enquiry of progress made in relocating the evictees on SANRAL land. At the time of the hearings 200 (18m2) shacks were built, 80 of them with concrete flooring. He also advised that another portion of land in the same area was being prepared in order to accommodate the outstanding number of people.
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viii. Councillor Matha’s response to questions by the Enquiry Cllr Matha confirmed to the Enquiry that after the evictions on 3 February 2014 the people re-occupied the land and were the same people from the backyards of Asanda Village and Nomzamo that were not accommodated in 2007. He also informed the Enquiry that immediately after the evictions some of the evictees went to their families and most went back to the site where they were evicted from.
He informed the Enquiry that he occasionally went to the SANRAL land under investigation and noticed that the number of structures was increasing gradually. He also clarified to the enquiry that there was no mass occupation of the land. When asked by the Enquiry, Cllr Matha was unable to confirm the actual number of structures and he stated that he did not record or count the structures. He also confirmed that he received a list from the community containing 849 names a week or so after the evictions.
The Enquiry was also informed that there were two steering committees, one that was set up by the Minister Madikizela specifically to investigate possible land for relocation with SANRAL and the other set up by the Minister of Human Settlements to look after the immediate needs of the community evicted from the land. According to Cllr Matha the latter steering committee comprised of two ward councillors (Councillors for wards 85 and 86), two members of Ses’khona, church leaders and NGO’s.
Cllr Matha confirmed that people would not just erect structures in a new settlement without informing the leader of that particular area.
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The tradition is that newcomers would go to the leaders and if acceptable, they would be registered after everybody was consulted and agreed that this person should be given accommodation there. A register would be kept where names are written down. He had no knowledge that land was sold to people.
On being questioned about the numbers, Cllr Matha argued that he cannot agree with the number given by SANRAL or the Sherriff as he was never part of their discussion and counting process. On the other hand the community claimed that there were 849 structures and he is inclined to believe them. Cllr Matha also explained that he depended on the leadership of the informal settlement under investigation to know the number of families that occupied the land and did not have any reason to doubt this number. He had not conducted any audit of his own.
On being questioned about the frustrations he conveyed in his written and oral submissions regarding the CoCT and the Provincial Department of Human Settlements, Cllr Matha indicated that service delivery in the informal areas had improved except in the areas that the CoCT considered as private land – this according to him includes SANRAL land. The settlements that are on this land include Siyanyanzela, Masikhane, Pholile A & B and New Village.
The Councillor explained that the talks between SANRAL and the CoCT were abandoned when the CoCT took SANRAL to court regarding the N1 and N2 e-tolls.
On being questioned about access to the hall, the Councillor explained that he did not get the hall immediately on the first two
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days of evictions. He also mentioned that the pastors from the Methodist Church can attest to what he was saying, ‘that we had to fight to get the hall from the City of Cape Town’.
In response to other questions Cllr Matha stated the following: He never saw the Sheriff but was informed that he was on site.
There were notice boards on site.
The Sheriff did not inform him about the impending evictions.
He received the notice of the February 2014 evictions 3 or 4 days after the event.
Law enforcement agencies were directly involved in the evictions.
The number 849 was given to him by the community post evictions.
The correct name of the township where Erf 32424 is – is Asanda Village.
Homeowners at Siyanyanzela i.e. Erf 32524 numbered their shacks.
He received a copy of the court order from Mr Andile Lili.
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He questioned the reliability of the CoCT housing database when the Enquiry stated that about 90% of the evictees were not registered.
He mentioned the use of excessive force by the police and that as a result he sought the assistance of the local police Captain.
The 18 year olds that were part of the evictees have lost parents.
He is not aware of the selling of land but is aware of the people joining Ses’khona in numbers, because people are convinced that Ses’khona is the only organisation that is fighting for their rights in terms of services, land and housing.
(b) Ses’khona People’s Rights Movement (Ses’khona)
Ses’Khona was represented by one of its leaders, Mr Loyiso Nkohla, who made an oral submission to the Enquiry on 21 July 2014. In his introductory remarks, Mr Nkohla informed the Enquiry about the nature and purpose of his organisation, as well as the role it played in the evictions that took place on 2 and 3 June 2014. He indicated that Ses’Khona is a community based organisation involved in the struggle, fighting for adequate housing provision and improved living conditions of the communities of Cape Town, in particular those living in informal settlements. He indicated that, according to his knowledge, there was no court order granted to evict people on the days in question. Moreover, there was no consultation
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undertaken nor notice boards erected prior to or during the eviction process. i. The role of Ses’khona on 2 June 2014 The leadership of Ses’Khona arrived on the scene on 2 June 2014 and discovered that the situation was very volatile between the communities and the police. At that juncture, they decided to intervene and tried to calm the situation. Having interacted with the commander of police operations and having questioned the validity of the court order, the operation was stopped immediately. ii. The role of Ses’khona post evictions Post evictions, Ses’khona played a facilitative role between the affected communities and government, including the CoCT, Provincial and National Departments of Human Settlements as well as SANRAL. The purpose was to ensure that there was utmost consensus on the immediate temporary housing solution for the destitute community members. Mr Nkohla also praised the role played by other community based civic and religious organisations, Red Cross and SASSA as well as the Department of Home Affairs, in responding to the situation. iii. How Ses’khona responded to the questions of the Enquiry Responding to questions from the members of the Enquiry, Mr Nkohla indicated that the Minister of Human Settlements was misled regarding the number of structures demolished. According to their understanding 849 structures were demolished and they are pretty sure about that number because structures were very congested with no living space in between them. The list of evictees was prepared by HDA while all the affected persons were present in the hall. In regard to allegations that they sold land to evictees, Mr
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Nkohla denied such allegations. However, he confirmed that people voluntarily joined the organisation and paid a subscription fee of R25 for membership and nothing else.
(c) Access to Justice Association of Southern Africa
Access to Justice Association of Southern Africa responded to a general call for written submissions made by the Enquiry and was then invited for an oral presentation. The Association participated in the public hearings on 21 July 2014 and was represented by its founder, Ms Jonker. It is a registered non-profit organisation providing dispute resolution and legal resources to the poor. Its work is directed by the principles of restorative and transformative justice and it is looking to accomplish healing and restoration instead of retribution. It engages both victims and offenders to achieve restoration, healing and ultimately behavioural change. i. How the organisation became involved The Association became involved in the Nomzamo (Lwandle) evictions through Ses’khona People’s Rights Movement. Ms Jonker stated that according to her understanding there were two sets of evictions during February and June 2014 respectively on the strength of an interim court order. The affected community members were never given any notice prior to the granting of the court order. ii. Collecting information from the community During a visit in the week of 9 June 2014 Ms Jonker consulted with various parties and members of the community. She was informed of a 4 month pregnant woman who was kicked by the police and
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who miscarried her baby later the same day. She was also informed of a 21 year old man who committed suicide when he returned from work to discover that his home and all his possessions had been destroyed. She had not yet consulted with these individuals but would be doing so shortly. She had, however, consulted with a 9 month pregnant woman who was kicked in the hip by the police when she attempted to recover her identity document and her child’s birth certificate from her structure during the evictions. When Ms Jonker consulted with her a week after the incident, she could still not walk and was found lying down and being unable to get up by herself. She described the events as highly traumatic for herself, her baby daughter and her mother who was admitted to hospital with stress.
Ms Jonker was informed that over the two days of the evictions in June the police opened fired which was not limited to rubber bullets only but that there was evidence that live rounds were used. However, when concluding her presentation, Ms Jonker indicated that she had not advanced as a fact that live ammunition was used by the police but only conveyed what she understood from her consultations.
(d) Tim Flack
Mr Flack responded to a general notice calling for written submissions made by the Enquiry and was then invited for an oral presentation. He appeared at the public hearings on 15 July 2014. He provided the Enquiry with a written submission, photographs and a map of the area. His chronological account surrounding the evictions in Nomzamo is as follows:
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he first engaged with the Nomzamo community after the February 2014 evictions.
through twitter and the photographs of Murray Williams he became aware of the evictions on 2 June 2014.
on learning about the evictions, he left his place of work and drove through to Nomzamo. On arrival a section of the structures was already demolished.
when he arrived home that evening he made a call to the Disaster Management Unit of the CoCT requesting them to provide food and blankets to the evictees.
Disaster Management refused and said that they were instructed not to assist in any way also that he should not request NGO’s for blankets because that would deplete the stock.
he went onto social media and asked the social media community to assist.
on the evening of 2 June, he spoke to the National Secretary of the South African National Defence Union (SANDU), Adv. Pikkie Greef, who instructed him to try and get a copy of the court order.
on the morning of 3 June 2014 he arrived at the Strand police station to try and get the court order.
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on arrival at Strand police station there were about six nyalas and various Boland POP (Public Order Police) vehicles. Police were heavily clad in riot gear.
he was told by the Sheriff that a representative of SANRAL is inside the Strand police station and would be able to provide him with a copy. Inside the police station he was sent from pillar to post.
he decided to drive through to Nomzamo. At that stage the police were getting ready to leave the station as well.
he arrived at Nomzamo before the police at 09h27.
on his arrival a group of people were blocking the roads with logs. Nothing was set alight at this stage. There were not many people around. About 60 or 70 people.
people were busy clearing out their homes.
SAPS arrived on the scene at 9h28. Various people were trying to negotiate with the POP officer in charge including a Methodist Reverend, Ngura. At 09h38 the police moved into the area.
they (SAPS) moved on foot and tried to clear the area. There were still people inside their houses. No shots were fired at this stage.
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by 09h40 a Nyala and water cannon moved in. There were not many people and the atmosphere was not very tense.
the people were saying that they were not going to move.
he referred to a photograph, picture 19, which depicts the moment the people were told that they had 5 minutes to disperse.
the announcement over a loudspeaker was not very audible. There was a man trying to wave people to come back.
he saw a SAPS officer whose hand was bleeding. He asked the officer what happened and the officer said he was hit by a rock.
three minutes after the announcement of the 5 minute order to disperse, a thunder flash (stun grenade) was thrown.
after a moment of absolute silence all hell broke loose and the police started firing rubber bullets at people running away.
he saw the police arresting two men.
at 10h09 a construction company vehicle appeared and parked in the area. A City of Cape Town official also arrived. The construction company engaged in dismantling the structures.
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at 10h27 he saw City law enforcement officials at the scene. at this point some of the structures were set alight – it was mainly the wooden structures. Some people said that it was the people themselves that set the structures alight while others were saying it was the workers from the construction company. He took a photograph, picture 38, depicting the first structure to be set alight.
at 11h09 he finally got hold of a court order and took a photograph of the order.
he indicated that he does not know whether the order was read out at the scene. They did not read it out while he was there.
he indicated that he saw no notice boards on the site.
he indicated that barbed wire, though on the scene, was not used on the 3rd although it was used on the 2nd. the construction company workers were mocking people as they were taking houses down.
people started throwing rocks at the construction workers, more stun grenades went off and rubber bullets were fired. people ran away. Rubber bullets were fired in all directions.
teargas was fired and Mr Flack moved towards his car and tried to get out of the area.
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he saw a few teenagers with petrol bombs. They hit a Toyota with a petrol bomb but it did not explode.
he left the area. Thereafter he continued to be involved in providing humanitarian assistance to the evictees.
(e) Representatives of the Methodist Church
The first contact between the Enquiry and the clergy of the Methodist Church was during the initial introductory meeting at Nomzamo Community Hall on 18 June 2014. Reverend Fumanekile Gura was introduced as a member of the steering committee. Bishop Michel Hansrod was absent but was also introduced as a member of the steering committee.
After viewing the police video of 2 and 3 June 20l4, the Enquiry decided to meet with Bishop Hansrod and Reverend Gura on 9 September 2014. Bishop Hansrod indicated that he submitted a written report to the leaders of the Western Cape Religious Forum following the events at Nomzamo (Lwandle). He obtained information about the evictions only on the second day - that is, 3 June 2014 - from the television news. He then proceeded to Lwandle to determine the nature of assistance he could offer. He and Reverend Gura arrived in Nomzamo (Lwandle) before the SAPS. The CoCT officials and city police were already on site. The first person they spoke to was Vuyiswa Swetu who informed them about the events of 2 June 2014. At that time, none of the members of the community had a copy of the court order.
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When the police arrived Bishop Hansrod requested to see a copy of the court order. He was directed to the command centre at the Strand Police station. He witnessed seven (7) people being arrested, three people who were taken to hospital and over a hundred shacks having been demolished.
Bishop Hansrod witnessed the actions of the police during the evictions, which in his view instigated more violence from the community. He and Rev. Gura expressed the view that the police “were at war” and showed no humanity when dealing with the community. Initially, the police denied the people an opportunity to remove their belongings, but later a few were able to take away their possessions. The Bishop described a situation of chaos where homes were burnt down by the community, escalating violence and police retaliation.
An official, Mr Gubuza who identified himself as working with Mr Madikizela, Minister of Human Settlements in the Western Cape ultimately showed him the court order. Bishop Hansrod called SANRAL’s attorney who was at the command centre at Strand Police Station. The attorney assured the Bishop that the court order was legal. Bishop Hansrod spoke on the phone to Minister Madikizela who also assured him that provincial officials were on site. In the meantime the possessions of the community were loaded on trucks. By the end of the day, all structures except five were demolished. The structure of Xoliswa Swetu was one of those that was not demolished.
According to Bishop Hansrod it appeared that there was an absence or lack of leadership in the community who desperately
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needed guidance and reassurance. Various political parties visited the area but offered no resolution to the situation. By 17h00 on 3 June 2014, the Bishop and Reverend Gura had already organised a soup kitchen to provide sustenance to the evictees that had not had any meal since the start of the eviction earlier in the day. During this time the leadership of Ses’khona was absent and seemed disinterested in assisting the evicted community.
The Bishop approached the CoCT in an attempt to deal with the crisis of a large number of people who were rendered homeless. The CoCT refused to take responsibility as the officials stated that “the eviction was a national matter and thus the CoCT will not be opening any halls”. When he further enquired from Mr Stuart Pringle, a Councillor about the use of Nomzamo Community Hall, he was told that the hall cannot be opened and was asked why the church does not open its buildings. The Bishop indicated in response that he will open the Methodist Church hall to the community but will inform the media of the situation. The Nomzamo Community Hall was later opened but an official of the Disaster Management Unit, emphasised that this was only for three days.
The Bishop stated that about 800 people were accommodated at Nomzamo Community Hall on 3 June 2014. Shortly thereafter the Minister of Transport and the Deputy Minister of Human Settlements came to address the people. The community was informed that they would be allowed to rebuild on the site they were evicted from while alternative sites for permanent relocation were explored.
CoCT only provided one meal a day. The Western Cape religious community, non-governmental organisations that includes the
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Social Justice Network, Equal Education, Ndifuna Ukwazi, the Western Cape Christian Ministers Association undertook to set up a relief centre based at Lwandle Methodist Church coordinated by Reverend Gura and Nishan Robb to facilitate the feeding of the displaced people and the provision of basic care needs. The evicted community received meals, blankets, toiletries, baby goods and other utilities through the relief centre. Every day, over the duration of their stay at Nomzamo Community Hall, the religious community and non-governmental organisations provided between 200 – 250 people with meals.
Responding to the questions from the Enquiry, Bishop Hansrod stated the following:
he felt that the Police Commander or Captain he spoke to was intimidating him.
there was no willingness from the police to allow him to negotiate with the community in order to calm the violence.
about 200 shacks were demolished on day 2.
he never saw the Sheriff on site.
the South African Police Service was in charge of the operation not the Sheriff.
only when the fires started the police showed a willingness to interact.
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(f) Sobahlangula Social Investment Project (SSIP)
Sobahlangula Social Investment Project (Sobahlangula) made a presentation at the public hearings on 21 July 2014, represented by Mr Mgwebe and Mr Mayana. Sobahlangula is a human rights organisation that deals more with social than legal issues and gets its mandate according to its representatives from the poorest of the poor. Their submission stated that their members have interacted with grade twelve learners in the area of Nomzamo and Lwandle to assist with mathematics and science.
Sobahlangula argued that black South Africans are called refugees in the Western Cape Province by the Premier and as a result they are subjected to the brutality that took place in Nomzamo (Lwandle).
Sobahlangula emphasised that the reasons why people like the evictees find themselves in adverse circumstances, is the need to search for employment. The submission emphasised the issue of unemployment amongst young people with reference to relevant statistics. Sobahlangula submitted to the Enquiry that e-tolls must be introduced in the Western Cape for the purpose of ensuring that there is job creation. As part of reducing unemployment Sobahlangula recommended that as the Western Cape is a large producer of waste, employment opportunities could be created through a manufacturing consortium based on recycling waste.
Sobahlangula also made recommendations on the merger of Eastern Cape, Northern Cape and Western Cape Provinces to counter the understanding among some people that provinces that
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are historically poor are a burden to the historically advantaged. This according to their submission will assist in sharing resources and requisite skills.
Sobahlangula pointed out that while they do not encourage land invasion, government is not doing enough to ensure expropriation of land. They compared the conditions in some informal settlements to concentration camps because they are so overcrowded. They highlighted the adverse living conditions in Nomzamo Community hall.
The submission by Sobahlangula expressed the view that the residents of Strand Ridge contributed to the evictions by lodging various complaints against the evictees. Sobahlangula submitted that the Enquiry should look at the constitutional rights that have been violated by SANRAL, CoCT and SAPS. Sobahlangula also proposed that those found accountable and responsible for the acts of 2 and 3 June 2014 should pay a fine of R10m that should be administered by the community.
(g) African National Congress, Western Cape
The African National Congress in the Western Cape (ANC) made a written submission to the Enquiry and the organisation was invited to an oral presentation on 26 September 2014. The written submission was prepared by the Provincial Secretary, Mr Songezo Mjongile. At the public hearings Siyazi Tyatyana, Rhoda Bazier, Wesley Seale, Sharon David, Abe Bekeer and Khaya Magaxa represented the ANC. Their presentation entailed the following matters :
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i. Legislative and Policy Obligations According to the ANC, its submission is founded on three documents; namely the Freedom Charter (1955), the Constitution of the Republic of South Africa (Act 106 of 1996) and the Resolution of the 53rd ANC National Conference held in Mangaung (2012). The ANC argued that the occurrence in Lwandle/Nomzamo, is in sharp contrast to the Freedom Charter and its ideals. The following extracts from the Freedom Charter form the backbone of their submission:
“There shall be houses, security and comfort! All people shall have the right to live where they choose, be decently housed, and to bring up their families in comfort and security; Unused housing space to be made available to the people; Rent and prices shall be lowered, food plentiful and no-one shall go hungry;... Slums shall be demolished, and new suburbs built where all have transport, roads, lighting, playing fields, crèches and social centres; ... Fenced locations and ghettoes shall be abolished, and laws which break up families shall be repealed.”
Reference was made to s26 of The Constitution that states:
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“(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) 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.”
The submission argued that the CoCT is failing “...to make reasonable provision within its available resources for people in the Metropolitan area with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations.” The ANC postulated that there is a direct link between this failure by the CoCT and the evictions on Erf 32524.
The ANC pointed out that the Provincial Government of the Western Cape (PGWC) and the CoCT was directly responsible for the exacerbated situation that led to the evictions and the subsequent disaster that followed the evictions because they failed to execute the competencies assigned to them in Schedule 4 of The Constitution.
As part of addressing the Mangaung resolution to ensure land is made available for housing, building decent and integrated human settlements which have decent sanitation, running water and electricity the National Minister
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and Department made available budgets to the CoCT and PGWC. ii. A need for adequate shelter The Enquiry was informed by the ANC that the majority (73%) of the housing needs in the Province are in the CoCT. Of these 143 823 (65%) reside in informal dwellings in informal settlements and 74 957 (34%) are in informal dwellings in backyards. The ANC argued that the delivery of housing and the establishment of integrated human settlements have been deliberately slowed down in the Western Cape.
A quasi-influx control into the Western Cape had been established by the non-delivery of houses, the non-delivery of services and the poor investment in informal settlements. The ANC argues that in the Western Cape, particularly in the CoCT, just enough houses are built for the poor to fight over. This pitted the poor against one another along racial lines. This is what happened in Khayelitsha and Tafelsig, Isiqalo and Colorado Park, Lwandle/Nomzamo and Blackheath and Macassar. iii. The opinion about Nomzamo (Lwandle) Evictions The ANC believed that it was incumbent on the CoCT, as required by The Constitution and other legislation, to have prevented the evictions. It had to provide adequate housing and basic services to the people of Lwandle/Nomzamo. Incidences such as that which occurred in Nomzamo (Lwandle) will continue if land, housing and sanitation issues are not addressed.
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The ANC made the following recommendations:
The outcome of the land audit of the Western Cape and the CoCT of private and public land be made public as soon as possible;
Closer co-operation between the National Minister of Human Settlements and her counterparts in the PGWC and the CoCT be established. The National Minister should make the necessary intervention;
Closer co-operation and programmes be devised by the National Ministers of Human Settlements and Water Affairs and Sanitation to address sanitation challenges, particularly the bucket system in the Western Cape;
A moratorium should be placed on all evictions by all municipalities in the Western Cape;
A proper study and audit be done of all informal settlements so that the necessary investment is made in those.
(h) Colin Anthony Arendse
Mr Arendse made a written submission and participated in the public hearings on 26 September 2014. He is a paralegal and community activist who had been working with homeless people for approximately 20 years. He does not have personal knowledge of the evictions on 2 and 3 June 2014. His views on the evictions are based on media reports.
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He expressed the view that the evictions were unlawful, because the court order of 24 January 2014 was an interim interdict and not an eviction order.
He recommended that the evictees should receive reparations and be assisted by legal aid and/or pro bono legal representation. The officials involved in the evictions should pay any compensation personally. An Enquiry should be appointed with wider terms of reference to deal with numerous other evictions.
(i) Surrounding Communities
The Enquiry received a submission from Rawson Properties on behalf of the surrounding communities. These include, but are not limited to, Die Bos, Onverwacht, Nomzamo, Lwandle and Strand Ridge, the formal housing development closest to Erf 32524. The submission included e-mails from individual home owners. In various ways the submission focused on the belief that the occupation of Erf 32524 have led to the devaluation of their properties and increased crime levels.
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CHAPTER 13
EXPERT GROUPS
A call for submissions, requesting a contribution to the development of recommendations concerning the mandate of the enquiry, was sent out to various organisations and institutions. The prospective contributors were requested to focus on the following aspects:
Share research outcomes on mass evictions and unlawful occupation of land; Identify best practice in managing mass evictions; Identify policy and legal loopholes and shortcomings; Identify problems with current practice; and Provide suggested recommendations for consideration by the Enquiry.
The following institutions and organisations submitted papers and were invited for oral presentations : i. South African Human Rights Commission; ii. National Association of Democratic Lawyers; iii. Lawyers for Human Rights; iv. Community Law Centre, University of the Western Cape; v. Socio-Economic Rights Institute; and
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vi. South African Shack Dwellers International (SDI) Alliance.
This chapter presents the outcomes of the engagement and papers submitted and presented at a seminar themed “Illegal occupation of land and mass evictions - understanding policy gaps, legal loopholes, shortcomings and implementation challenges”, held on 10 September 2014.
SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC)
The South African Human Rights Commission (SAHRC) submitted a paper entitled:
“A cursory note on the law and obligations surrounding the eviction of unlawful occupiers in South Africa”.
The presentation was made by Commissioner M. Ameermia and Mr. P Mohodi.
The overall focus of the submission was the law regarding the right of access to adequate housing. The Constitutional and Legislative Framework
SAHRC explained that the current jurisprudence of the courts puts the emphasis on the right to housing and the centrality of human dignity. The submission of SAHRC started by highlighting the provisions of s26 of The Constitution:
s26(1) provides that “everyone” has a right to have access to adequate housing.
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s26(2) requires the State to take reasonable steps to progressively realise the right to access to adequate housing. s26(3) proscribe arbitrary evictions by mandating that evictions be authorised by a court order after having regard to “all the relevant circumstances”.
The submission explained that the provisions of s26 was further clarified through the adoption of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 19 of 1998 (PIE Act). SAHRC argued that while the ambit of the PIE Act is broad it outlines the procedures that must be followed when evicting unlawful occupiers. These include:
Court order requirement; Unlawful evictions criminalised; and Special consideration to the rights of elderly, children, disabled persons and women headed households.
According to SAHRC the influence of international law in the drafting of the South African Constitution is enormous. Relevant to this submission is the right to adequate housing as this is recognised in the international human rights instruments. In addition, ss39 and 233 of The Constitution provide that courts must consider international law when interpreting the rights in the Constitution. The case of S v Makwanyane was cited as an example. The international law expects that governments must ensure that eviction is not carried out in a manner that violates human rights.
The Jurisprudence of the Courts
SAHRC referred to the following cases:
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i. Grootboom: This was a case concerning 900 individuals who had set up a rudimentary camp on private land following their eviction in mid-winter in Cape Town. The germane ruling of the court was that “at the very least” evictions had to be conducted “humanely”. ii. Port Elizabeth Municipality: The court found that unlawful occupiers must be treated with “dignity and respect”, and not as “obnoxious social nuisances”. A home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. iii. Olivia Road: The courts found that meaningful engagement is a prerequisite to the institution of eviction proceedings. More importantly, engagement must be both individual and collective. It must be without secrecy and aimed at providing alternative accommodation where needed. iv. Joe Slovo: This is a case that amplified that meaningful engagement must occur even when a housing project is put in place. Government must make an effort to engage with communities rather than impose decisions taken at a political level. The goal in engagement is to find a mutually acceptable solution to the difficult issues that confront the government and residents in providing adequate housing. v. Abahlali: This was a challenge to the KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act, 6 of 2007. The Act allowed for evictions without meaningful engagement. Section 16 of the Act was found to be unconstitutional because it gave too
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much power to the MEC and seriously undermined the protection provided for in s26(2) of The Constitution.
Crystallised principles
The SAHRC highlighted the following principles that have to be taken into consideration in circumstances where mass eviction is carried out:
Alternative accommodation: It is just and equitable to evict unlawful occupiers if alternative accommodation is provided where an eviction would otherwise result in homelessness. The duty to provide alternative accommodation applies not only when an organ of state evicts people from their land, but also when a private landowner applies for the eviction of an unlawful occupier or occupiers.
All relevant circumstances should be considered: The PIE Act amplifies this. The court must have regard to a number of factors including but not limited to: whether the occupiers include vulnerable categories of persons (the elderly, children and female- headed households), the duration of occupation, availability of alternative accommodation, and the state provision of alternative accommodation in instances where occupiers are unable to obtain accommodation on their own.
The law of joinder: Any party that wishes to apply for an eviction order where eviction is likely to result in homelessness, must join the Local Authority as a necessary party to the litigation.
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Meaningful engagement: In the opinion of the SAHRC, the owner and the relevant municipality have to meaningfully engage on all aspects related to the eviction, including the provision of temporary shelter to those who require it.
Personal accountability of municipal officials: where municipal officers appeared indifferent to court orders, municipal office bearers must be held personally accountable for the State’s failure to perform.
Recommendations
(a) General i. There must be a synergy between all the relevant stakeholders to ensure that the letter and dictates of the law are followed in eviction matters. ii. Where a court order authorising eviction has been granted, such an eviction must be done humanely and in a way that does not impinge on the human dignity of those being evicted. iii. Develop new normative legal requirements to eviction matters. iv. Develop new cluster of relationships between the parties involved in eviction proceedings. v. All parties must understand that an eviction is a traumatic experience. vi. Recognise that if evictions are carried out in a violent manner people’s valuables such as ID books, birth certificates, school uniforms and medicine and medical prescriptions get damaged.
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vii. Whenever a municipality or private owner is faced with the situation of unlawful occupiers in his or her property, the remedy is not to unlawfully evict them. Rather, the solution lies in meaningful engagement and proper consultation to find a lasting solution which does not adversely violate the rights to human dignity, security of the person, the rights of children and any other relevant rights. Such a lasting solution invariably includes the state seeking alternative accommodation for the unlawful occupiers who would otherwise be rendered homeless as a result of such an eviction.
(b) Sheriffs of the Courts i. Sheriffs should conduct their actions in accordance with the Code of Conduct in the Sheriffs Handbook. ii. Sheriffs should at all times treat the affected people with dignity and respect in the execution of their duties, and they should not cause unreasonable damage to their property.
(c) Board of Sheriffs South African Board of Sheriffs should be more accessible to the public.
(d) South African Police Service i. SAPS must act in accordance with the strictures of The Constitution. ii. SAPS must treat those to be evicted in a dignified and respectful manner, ensuring that they do not cause unreasonable damage to property.
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THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL)
The National Association of Democratic Lawyers (NADEL) submitted the following documents to the Enquiry:
A written submission Supplementary written submission Presentation
Background
NADEL is a voluntary organisation of legal practitioners and its vision is a South Africa that has a legal system based on the rule of law, transformation of the judiciary through diversity in judicial appointments, and access to justice for all particularly the poor, vulnerable and marginalized from disadvantaged communities. The objectives of NADEL are:
To develop, promote and sustain a system of law which shall be fair, just, equitable, accessible to and understood by all; To render, and co-ordinate the rendering of, legal assistance to persons and organizations involved in matters affecting, inter alia, human rights; To assist members in matters relating to and arising from their professions; To assist those who wish to study, research or teach law either through financial grants, law clinics or other institutions; and
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To promote the study of and research into transformation of the legal profession, including the judiciary and magistracy.
According to NADEL, the members of the organisation have provided and continue to provide legal representation in a range of land, housing and eviction matters. NADEL informed the Enquiry that the submission was drawn from extensive theoretical, legal and practical experiences of practitioners of the organisation.
Submission NADEL explained that its submission examined the transformative vision of The Constitution in the context of s26(3) and the PIE Act which regulates evictions. It also explored the principles crystallised through a number of cases relating to evictions in terms of the PIE Act. The submission also sets out the international and regional standards and guidelines in respect of the granting, enforcement and implementation of eviction orders as a form of best practice and makes recommendations and proposals in respect of future mass evictions and relocations. The written submission had three parts, namely, Executive Summary of the Full Submission; Part B : Full Submission and NADEL Recommendations; and Part C Addendum: Highlighting the legal status of the Court order dated 24 January 20145 and the unlawfulness and unconstitutionality of the evictions and demolitions in Nomzamo (Lwandle) on 2nd and 3rd June 2014.
The oral presentation was made by Dr. J Moses and Ms Samaai.
Constitutional and Legislative Framework
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NADEL submitted that the State has given effect to Section 26(3) by enacting enabling legislation, the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act which provides protection to people who are vulnerable to eviction and who live in insecure tenure arrangements. Section 26(3) of The Constitution was enacted specifically to address the issue of evictions and it prohibits evictions without a court order. It further requires the courts to consider all relevant circumstances before issuing an eviction order.
According to NADEL all the three spheres of government are required to interpret the provisions of the Bill of Rights in such a manner that it promote[s] the values that underlie an open and democratic society, which includes the values, standards and guidelines laid down by international law.
NADEL submitted that the Enquiry must take cognisance of the resolutions of the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR). General Comment 7 (UNCESCR General Comment 7) requires states parties to ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force. In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality.
The Jurisprudence of the Courts
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The Jurisprudence NADEL selected in its submission included the following: Grootboom case: The Constitutional Court found the state’s housing programme to be unreasonable as it made no provision for access to housing for people in desperate need. Regarding the children, it held that the primary obligation to provide for children’s needs lies with their parents and on the state only when the children have been removed from the care of their parents.
Port Elizabeth Municipality: The Constitutional Court denied the eviction order on, among other grounds, the basis of the length of occupation of the land, the fact that the land was not being put to some other productive use, and the lack of suitable alternative land.
Modderklip Boerdery: The Constitutional Court held that by failing to provide an appropriate mechanism to give effect to the eviction order, the state violated the landowner’s right to an effective remedy as required by the rule of law and entrenched in s34 of The Constitution. The state was ordered to pay compensation to the landowner. The Court further held that the occupiers were entitled to occupy the land until alternative land was made available to them by the state or the provincial or local authority.
Olivia Road: The Constitutional Court held that it is essential for a municipality to engage meaningfully with people before evicting them if they would become homeless after the eviction. The Court also held that while the City has obligations to eliminate unsafe and unhealthy buildings, its constitutional duty to provide access to adequate housing means that potential homelessness must be considered by a city when it decides to evict people. The Court also
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found s12(6) of the National Building Regulations and Building Standards Act, 103 of 1977 which makes it a crime to remain in buildings after an eviction notice is issued by the City, but before any court order for eviction is granted, to be unconstitutional, as it infringes s26(3) of The Constitution. The Court thus reinforced the requirement that a court order issued after considering all the relevant circumstances must be obtained before evicting people.
Joe Slovo: The Court ordered that the parties must meaningfully engage on the date upon which the relocation will commence, determine a timetable for the relocation process and any other relevant matter upon which they agree to engage. The Court also ordered the respondents to provide alternative accommodation in the form of temporary residential units to those applicants who vacate Joe Slovo. Each household that is moved must receive a temporary residential unit. The Court detailled the minimum specifications of each temporary housing unit.
eThekwini Municipality: The Court found the MEC used the invasion interdict to circumvent the provisions of the PIE Act.
The key considerations in respect of evictions from local jurisprudence highlighted by NADEL are: i. The need for a humane approach to evictions that acknowledges the dignity of those to be affected; ii. The emphasis on how, notwithstanding certain commonalities, each eviction is unique and how there exists an obligation on the
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State to place before the Court tailored information relating to the circumstances of all occupiers that stand to be affected; iii. The obligations of the State to properly appraise the Court on the circumstances of every occupier cannot be deflected on the basis that the eviction was instituted at the instance of a private land-owner; iv. A consideration of whether emergency housing ought to be provided by the State must be factored into a court's justice and equity determination regardless of who the party is that is seeking an eviction; v. The length of occupation, whilst relevant to the justice and equity enquiry, can never serve as a complete bar to the possible need for the State to secure emergency housing arrangements and to place information on these arrangements before the court; vi. The Constitutional Court has made clear that the six month mark mentioned in the PIE Act is not meant to draw a definitive line in the sand allowing for the State to simply dispense with any potential responsibilities relating to the provision of emergency accommodation on the basis that those to be affected have resided on the land for less than six months; vii. The local municipality must place information before the Court on its ability to put in place emergency housing arrangements. viii. The municipality plays a facilitator role so as to mediate between the private land-owner and the occupiers concerned.
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ix. The local municipality must aid the Court’s determination as to what would be just and equitable in circumstances where private landowners seek to evict a large group of people in destitute circumstances. x. The local municipality must investigate the details of the occupiers’ housing situation for the purpose of appraising the Court.
Commentary on Nomzamo (Lwandle) evictions
According to NADEL, reading from the Court papers it is clear that no eviction order was granted by the Court for the removal of the people in Nomzamo (Lwandle). According to the organisation, SANRAL merely obtained an interdict on 24 January 2014 from the Western Cape High Court against those “intending to occupy” the land but it also specifically excluded those “currently occupying the property at the date of granting of this order‘. NADEL submitted that the constitutionality of the actions of SANRAL as well as all the different stakeholders involved were questionable.
NADEL argued that the provisions of the PIE Act including a plethora of case law were not followed in the evictions at Nomzamo (Lwandle). NADEL also stated that the interdict was arguably in conflict with the provisions of the PIE Act in that it failed to take into consideration justice and equity. According to NADEL the papers filed by SANRAL to obtain the interdict failed to cite alternative accommodation, does not seem to be taking into consideration the personal circumstances of the occupiers and does not reflect any form of engagement amongst the parties.
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In addition, the City of Cape Town should have been cited in the proceedings in order to fulfil a procedural requirement in eviction proceedings which lead to homelessness. As such, an interdict (such as one obtained by SANRAL) merely has the power to prevent people from unlawfully occupying land and building informal structures on that land and cannot serve as the legal basis for an eviction. In order for a court to issue an eviction order, it has to have considered all the relevant circumstances as set out in the Act.
NADEL further submitted that given the provisions of section 26(3) of the Constitution and of the PIE Act it would be unconstitutional to evict people and demolish structures without adhering to the provisions of the PIE Act.
Key Recommendations
NADEL made the following recommendations to the Enquiry: i. Government must develop a protocol and/or regulation and/or guideline in respect of evictions and temporary relocations/displacement to ensure that all government departments, private land owners and other role players are collectively guided in the implementation, enforcement, administration, monitoring and evaluation of the PIE Act. Underpinning this protocol and/or regulation and /or guideline MUST be the various International and Regional Instruments, the Constitution of the Republic of South Africa, legislative framework and the related jurisprudence. The Protocol document must be signed by relevant Departments and Stakeholders (Board of Sheriffs, Legal Aid South Africa, etc).
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ii. Amendment to the PIE Act to incorporate a report similar to the s9(3) report of the Extension of Security of Tenure Act. The court must be required to request a probation officer’s report. The report must provide information on the availability of suitable alternative accommodation, how the eviction will affect the constitutional rights of vulnerable groups, any undue hardships which the eviction will cause and any other relevant factor. Landowners to show cause of measures they have put in place to avoid invasions; iii. The National Minister of Human Settlements must establish an Inter- Sectoral Stakeholder Forum incorporating key departments in the Justice, Crime Prevention and Security Cluster and the Social & Economic Cluster. This Forum must be tasked to draft the interdepartmental protocol document and establish provincial forums within all the Provinces. The Forum to include, inter alia, the Departments of Housing, Land Affairs, Justice & Constitutional Development; the National Prosecuting Authority; SAPS; Local Government, and Social Development; Legal Aid South Africa and the Sheriff’s Board. iv. The National Minister of Human Settlements must consult and engage with the Minister of Justice and Correctional Services and the Office of the Chief Justice (South African Judicial Education Institute )in respect of a comprehensive training programme for judges and magistrates in respect of the PIE Act and other land tenure related legislation. v. The Department of Human Settlements in collaboration with the Justice Crime Prevention Cluster departments to conduct inter- sectoral (civil society organisations) and interdepartmental training
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on evictions. Training to concentrate on the implementation of the eviction legislation and the various departments Circulars/ Policies/ Regulations/ Protocols relating to evictions. vi. The need for better records to be kept on evictions is essential to establish the number of evictions, eviction trends in the country and for planning purposes. A proper monitoring and evaluation tool to be developed which will provide guidance on data that must be collected by all relevant departments and/or stakeholders. The Departments to include the Department of Justice and Constitutional Development and Courts, Sheriffs, Rental Housing Tribunals (these would most often be cases that may lead to evictions later on, or are “constructive evictions”), local municipalities, Provincial Departments of Housing and the National Department of Housing, or other agencies such as SANRAL, SANPARKS, etc. vii. The Department of Human Settlements to engage with the Department of Justice and Constitutional Development (and departments of the JCPS Cluster) regarding rights based training. There is a need for more targeted know your rights information to be available to communities, tenants, residents, occupiers and landlords and distributed widely in different languages in conjunction with a campaign to inform occupiers about their rights and recourse regarding attempted evictions, services cut-offs, lockouts etc. viii. Chapter 12 of the National Housing Code dealing with the Emergency Housing Programme to be amended in so far as concern the findings of this Enquiry within 1 year after the adoption
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of the Enquiry Report by the Minister. The amendment to include a provision relating to Temporary Relocation Sites as part of the Emergency Housing Programme provision. The review/amendment process must also look at the Social Distress of Relief Awards granted by the Department of Social Development and it should be linked to the Emergency Housing Programme. The provincial departments should liaise around this provision in conjunction with municipalities. The review process must also take into account the policy guidelines of the Department of Provincial and Local Government (DPLG) and the National framework for Municipal Indigent policies to ensure that social goods and basic services are targeted to those who need them and whose housing circumstances may depend heavily on free basic services subsidies; ix. The National Minister of Human Settlements must host and coordinate a multi-stakeholder, inter- and intra-governmental eviction indaba within one (1) year after the completion of the Lwandle Enquiry to address the issues raised in this report, to learn from current initiatives occurring in municipalities (i.e. City of Cape Town, Johannesburg, Tshwane, etc.) and explore problems being experienced elsewhere and to consider the development a National Framework relating to evictions; x. In the short term that, for the reasons set out above and in the addendum to this report, all the people who had been unlawfully evicted from the property and their homes on the property, and had their structures demolished, be allowed and assisted to return and remain on the property. They should be compensated for the
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damages they have suffered and those who have acted unlawfully should be held criminally and civilly liable; and xi. That SANRAL as an organ of state, should be directed by the responsible Ministry to meaningfully engage and consult with the affected Lwandle community and/or their duly elected representatives, as well as other relevant and interested roleplayers/state parties, in advance and before any eviction is contemplated by it in respect of the affected Lwandle community.
LAWYERS FOR HUMAN RIGHTS (LHR)
The Lawyers for Human Rights (LHR) made a submission in response to an invitation by the Enquiry. LHR was represented by Ms Hlengiwe Mtshatsha who delivered an oral presentation based on the paper.
Background
Lawyers for Human Rights (LHR) is an independent human rights organisation with a 30-year track record of human rights activism and public interest litigation in South Africa. LHR uses the law as a positive instrument for change and to deepen the democratisation of South African society. To this end, it provides free legal services to vulnerable, marginalised and indigent individuals and communities, both non- national and South African, who are victims of unlawful infringements of their constitutional rights.
Submission
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The submission of the LHR questioned the utilisation of the term ‘mass evictions’ as the organisation argued that the correct term is rather mass relocation. The reason put forward is that the court requires relocation to appropriate alternative land irrespective of whether the occupation was shorter or longer than 6 months. LHR informed the Enquiry that invasion of land is often out of desperation for shelter. It is therefore incumbent on the state to negotiate voluntary relocations in order to eliminate acrimonious and expensive litigation. LHR also maintained that local government should accept that informality exists and thus plan for it.
LHR submitted that the best practice in managing mass evictions are:
Notice: Giving effective notice to all the occupiers, or as many of them as possible. People must be given enough time to respond to the notice before being evicted – they need to obtain legal advice and representation. Keeping in mind that evictees are often poor and barely educated, court officials and law enforcement officers must be slow in enforcing such orders.
Joinder of a local authority: According to LHR giving notice to the occupiers is not sufficient in evictions affecting large numbers of occupiers. The local authority must be joined, and not merely given notice in these matters as it has a substantial interest in them. Further the local authority is under an obligation in terms of The Constitution and other legislation, such as the Housing Act to provide alternative accommodation to the occupiers. Despite the fact that the PIE Act does not require joinder of the local authority, but only requires notice to the local authority, a number of decisions in our courts have established the principle that the local
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authority must be joined in cases where a large number of persons stand to be evicted.
Unknown occupiers: LHR argued that the common practice of allowing the eviction of unidentified people is problematic. Courts must no longer grant eviction orders in such matters. This places already vulnerable groups in the increasingly precarious position of discharging the burden of proof in terms of their right to occupy the land.
Alternative accommodation: The Enquiry was informed that suitable alternative accommodation must be available - at the very least there must be emergency accommodation according to section 12 of the Housing Code. Children, disabled people and the elderly (vulnerable groups) must be prioritised. Basic services, security, privacy, dignity and hygiene are all required in the alternative accommodation. The occupiers cannot be in worse off conditions than they were prior to the eviction.
What are the problems with current practice? i. A lack of judicial oversight of court orders. ii. The establishment of Anti Land invasion units (and their wilful circumvention of the legal process) among various other problems in respect of the manner in which mass evictions are dealt with throughout the country. iii. The most serious consequence of unlawful evictions is the homelessness due to an absence of alternative accommodation. It is not only the obligation of the state to provide suitable alternative accommodation.
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iv. Private land owners tend to relinquish all responsibility even in cases where they are the direct cause of the eviction, for example when they sell the land in a private transaction. The constitutional court has addressed this issue in the Blue Moonlight judgment. v. Lack of implementation of constitutional court jurisprudence. The most prevalent example of this is the Grootboom judgment that prescribes that organs of state must guarantee the progressive realisation of the right to housing in section 26(1), within their available resources. The Blue Moonlight judgment in the SCA (para 40) clarified that it was not only the responsibility of national and provincial government to achieve the progressive realisation of the right of access to adequate housing, but that local government is also in a position to discharge this duty. vi. Meaningful engagement is aimed at alleviating the hardship suffered by evictees and allowing the local authority to discharge its constitutional and statutory obligations in the eviction process
COMMUNITY LAW CENTRE, UNIVERSITY OF THE WESTERN CAPE
The Community Law Centre, forming part of the Law Faculty at the University of the Western Cape (‘the Centre’), was established in 1990 and works to realise the democratic values and human rights enshrined in South Africa’s Constitution. It is founded on the belief that our constitutional order must promote good governance, socio-economic development and the protection of the rights of vulnerable and disadvantaged groups.
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This brief paper on mass evictions and illegal occupation of land was submitted as a contribution to the Lwandle Commission of Enquiry being held in Cape Town August - September 2014. It is divided in to three broad sections. The paper commences with an analysis of the framework of evictions from international and national perspectives. This section also evaluates current policy and legal challenges with regard to evictions. The third section provides a brief overview of the context of the evictions that took place in Lwandle in June 2014. This section concludes with recommendations to the Lwandle Enquiry.
This paper emphasised the undermentioned issues.
International and regional standards on forced evictions
The right to adequate housing is recognised in a number of international human rights instruments, some of which South Africa has ratified (thus agreeing to be legally bound by them under international law). Various international bodies have developed detailed standards on evictions.
Section 39(1) of The Constitution requires the courts to interpret the Bill of Rights so as to promote the values that underlie an open and democratic society. Section 39(1) also requires the courts to take international law and foreign law into account in interpreting the rights. In addition, s233 of The Constitution requires every court to interpret legislation as far as possible to be consistent with international law.
The procedural protections to be applied in relation to forced evictions include the following: An opportunity for genuine consultation with those affected;
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Adequate and reasonable notice for all affected people before the scheduled date of eviction; Information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;
Government officials or their representatives to be present during an eviction, especially where groups of people are involved;
All people carrying out the eviction to be properly identified;
Evictions should not take place in particularly bad weather or at night unless the affected people consent.
Basic Principles and Guidelines on Development-Based Evictions and Displacement Before an eviction, the guidelines include:
Giving appropriate notice to all people likely to be affected that an eviction is being considered and that there will be public hearings on the proposed plans and alternatives. The effective dissemination by the authorities of relevant information in advance, including land records and proposed comprehensive resettlement plans specifically addressing efforts to protect vulnerable groups. Providing opportunities and facilitating the provision of legal, technical and other advice to affected people about their rights and options. Holding public hearing(s) that provide(s) affected people and their advocates with opportunities to challenge the eviction
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decision or to present alternative proposals and to articulate their demands and development priorities.
During an eviction, the guidelines include:
The carrying out of evictions in a manner that does not violate the dignity and human rights to life and security of those affected. The taking of steps by states to ensure that women are not subjected to gender-based violence and discrimination in the course of evictions, and that the human rights of children are protected.
After an eviction, the guidelines include:
The immediate provision, upon eviction, of just compensation and sufficient alternative accommodation, or restitution when feasible by states and other parties responsible for doing so. Alternative housing should be situated as close as possible to the original place of residence and source of livelihood of those evicted . Ensuring, at the very minimum, that evicted people or groups, especially those who are unable to provide for themselves, have safe and secure access to: essential food, potable water and sanitation; basic shelter and housing; appropriate clothing; essential medical services; livelihood sources; fodder for livestock and access to common property resources previously depended upon; and education for children and childcare facilities.
Lwandle evictions
A ‘just and equitable’ eviction order is about balancing the needs of the landowner and that of unlawful occupiers in dire need of adequate
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accommodation. The process and procedure of carrying out the eviction as provided for in the PIE Act was not followed in the Nomzamo (Lwandle) evictions.
There was no alternative accommodation provided for the Lwandle residents nor was there meaningful engagement between the city and residents before the evictions took place.
The circumstances leading to the Nomzamo (Lwandle) eviction, which was characterised by acts of violence is a clear infringement of the constitutional rights of the residents. Recommendations
In the light of South Africa’s legal and policy framework and its international and regional obligations, the South African courts have played a significant role in ensuring substantive and procedural protections to those facing evictions from their homes, particularly vulnerable and marginalised persons and communities.
It remains a cause for concern that evictions processes have continued despite the array of laws and policies on this issue. Organs of government should endeavour to follow proper procedures before embarking on eviction processes.
There is a need for government officials to engage meaningfully with community members and civil society groups before embarking on eviction processes. This will help in resolving differences regarding suitable alternative accommodation and other issues.
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Government- local, provincial and national - should consciously plan and allocate resources in preparation for temporary residence or accommodation for victims of forceful evictions.
Despite the protections in legislation and jurisprudence, many people are unaware of their rights or face significant obstacles in enforcing them through the legal system. There is accordingly a need to increase awareness of the substantive and procedural standards that have to be respected prior to, during and after evictions, so that people have the relevant information to advance housing rights.
There is need for government to improve its housing allocation system by adopting a holistic approach to the housing process. Local government must, as part of its process of integrated development planning, take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to ensure that the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis.
SOCIO-ECONOMIC RIGHTS INSTITUTE (SERI)
SERI is a registered non-profit organisation and public interest law clinic that provides socio-economic rights assistance to individuals, communities and social movements in South Africa. SERI conducts applied legal research, litigates in the public interest, facilitates civil society mobilisation and coordination, and conducts popular education and training. SERI’s core work relates to the advancement and protection of access to socio-economic rights in socio-economically marginalised (poor) communities. SERI’s main focus areas are protecting and fulfilling the right of access to housing, defending and promoting
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access to basic services, and protecting political space for peaceful organisation, expression, participation and articulation. It has the following aims:
To advance the currency of human rights and particularly socio- economic rights in South Africa.
To promote the fulfilment of socio-economic rights by vulnerable communities.
To assist poor and marginalised groups to realise an adequate standard of living.
To contribute to public governance through empowering local communities to understand their rights, government processes and to effectively engage in such processes, thereby holding government accountable.
SERI is involved in legal, research and advocacy work around evictions, rental housing, allocation of state-subsidised houses, and informal settlement upgrading. Over the past five years SERI has also been involved in a number of important court cases dealing with land occupations, evictions and alternative accommodation.
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Eviction Law and Jurisprudence in South Africa
The most important aspects of the relevant law and jurisprudence are : • The right of access to adequate housing enshrined in section 26 of the Constitution is undoubtedly the most contested and frequently litigated socio-economic right.
• This is unsurprising given SA’s grossly unequal society in which the (overwhelmingly black) poor majority population is disproportionately denied adequate housing opportunities & basic amenities.
• In 1998 the PIE Act was passed to give effect to section 26(3), replacing the Prevention of Illegal Squatting Act.
• The PIE Act requires a court to consider all the relevant circumstances before making an eviction order, requires the eviction of an unlawful occupier to be “just and equitable”, having regard to a range of factors, including the personal circumstances of the occupiers and whether alternative accommodation can be made available by the state.
• The PIE Act sought to invert the legal order in relation to evictions: from a legal framework that targeted unlawful occupation and “land invasion”, to one that sought to prevent illegal evictions.
Obligations on Local Government
The most important considerations in this regard are :
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• Municipalities have been hesitant, unable or unwilling to act on the obligations laid down in case law (particularly Blue Moonlight). More generally, across the country municipalities have failed to devise and implement proactive, programmatic and coherent responses to evictions and the provision of alternative accommodation in instances of eviction within their jurisdictions.
• Instead, municipalities have often responded in a largely uncoordinated ad hoc manner by providing alternative accommodation only after being ordered (sometimes several times) by courts to do so.
• In cases where the municipalities have sought to implement a more coordinated response, the strategies have often failed to adequately internalise the substantial protections encapsulated in jurisprudence and human rights law.
• Recently, there have been a number of attempts by municipalities and other state parties to circumvent the PIE Act and the principles laid out in the evictions jurisprudence of the Constitutional Court – Zulu, Fischer and Lwandle.
Attempts to circumvent the PIE Act
It is to be noted that:
• It is clear from the Constitutional Court’s jurisprudence that it strongly disapproves of strategies used to undermine the eviction frameworks set out in the Constitution and the PIE Act.
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• Even in cases where the PIE Act does not or might not apply – for example, Olivia Road, Abahlali, Pheko and Schubart Park – the Court has found that the dignified framework that it has established must be respected.
• The constitutional principles of meaningful engagement, due notice, dignity and alternative accommodation (where an eviction would lead to homelessness) still apply even in cases where the PIE Act does not.
• Recently, a number of cases challenging the de facto eviction of unlawful occupiers through urgent interdicts have come before the courts.
Commenting on Lwandle Evictions
An important aspect of this case is the fact that on 22 January 2014 the City issued a notice to SANRAL in terms of section 6 of the PIE Act. Section 6 gives an organ of state permission, under certain circumstances, to institute eviction proceedings against unlawful occupiers living on privately owned land. If the organ of state issues a notice to the owner in terms of section 6(4) of the Act, the owner has fourteen days to respond, failing which a court may, at the request of the organ of state, order the owner to pay the costs of the eviction proceedings. While the City acted lawfully when it issued the section 6(4) notice to SANRAL, its acquiescence when SANRAL acted illegally and instituted other proceedings is cause for concern.
In terms of the section 6 notice, either SANRAL should have brought an eviction application in terms of the notice issued to it by the City, or, if
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SANRAL did nothing, the City should have instituted eviction proceedings against the unlawful occupiers, joining SANRAL. A public authority must meaningfully engage with unlawful occupiers, as set out in the Grootboom and Olivia Road judgments.
Recommendations
(a) Organs of state must refrain from using land occupation interdicts This Enquiry should recommend that organs of state, particularly municipalities and provinces, refrain from requesting or using land occupation interdicts – as used in the Zulu, Fischer and Lwandle cases – which are directed at unknown persons and are often abused to remove people from land where they have made a home. These interdicts are unlawful and unconstitutional in that they operate as de facto eviction orders, without affording occupiers due notice and a chance to put their personal circumstances in front of a court. Organs of state should instead attempt to secure their land with fences and security guards, to prevent unlawful occupation in the first instance. Where land occupation has already taken place, they should engage with occupiers and follow the PIE Act. (b) Multi-stakeholder process to develop guidelines on the PIE Act It is clear that the policy and legislative framework as set out in the PIE Act and Constitutional Court jurisprudence is not being implemented properly. While this is often due to a lack of political will, there is the need for a set of guidelines or regulations that set out the different roles and processes in terms of the PIE Act, as well as guidance on how to operationalise the underpinning principles that have developed over the years. We propose that a high- level, consultative multi-stakeholder forum be constituted by the
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Minister of Human Settlements in order to develop these guidelines. This process should include representatives from the national department, HDA, South African Local Government Association (SALGA) and the SAHRC as well as civil society organisations like SERI, the Legal Resources Centre (LRC), Lawyers for Human Rights (LHR), Centre for Applied Legal Studies (CALS), NADEL etc.
(c) Develop minimum standards for compliance with the EHP The Department of Human Settlements (DHS), in collaboration with SALGA and the HDA, should develop minimum standards for municipal compliance with the EHP. An instruction should be issued to municipalities that, within a year of this Enquiry’s recommendations, all municipalities in South Africa must report to the Minister on how they intend to comply with the EHP. An ongoing monitoring process should then be implemented.
(d) Political clarity on informal settlement upgrading The importance of in situ informal settlement upgrading cannot be overstated. There is the need for the Minister to come out strongly in favour of this approach: the importance of assisting people with access to services and tenure security where they are and the need to minimise relocations, as clearly articulated in the UISP, the recent human settlements Medium Term Strategic Framework (MTSF) and the Constitutional Court in the landmark Abahlali judgment
(e) Improve data collection and monitoring of evictions Currently there is almost no data on the number of evictions or forced relocations taking place in South Africa. Data does not
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appear to be collected by municipalities, provincial departments, Sheriffs, the Department of Justice or Rental Housing Tribunals. Neither does Statistics South Africa (Stats SA) collect this kind of information in any of its surveys. According to a recent report published by the Studies in Poverty and Inequality Institute (SPII) on the monitoring of the progressive realisation of the right of access to adequate housing in South Africa, a data “wish-list” should include, inter alia, the number of evictions and relocations carried out per year and the percentage of these that were forced. The Department of Human Settlements, in collaboration with Stats SA and other relevant stakeholders, needs to prioritise the collection of this data for monitoring and analysis purposes.
(f) Investigation of housing databases and allocation processes The “housing waiting list” – or, more accurately, the housing databases and needs registers that have and are being developed to register housing needs and allocate housing opportunities - need to be investigated in terms of their usefulness, efficacy and cost. The DHS and provincial housing departments must also report on what steps have been taken to address the myriad challenges with the Housing Subsidy System (HSS) and corruption in the allocation of houses. The department must investigate the current de facto allocation processes at municipal level across the country. There is a critical lack of transparency in housing allocation processes and thus the need to look at which points in this complex process greater transparency is most urgently required. At present, perceptions of corruption in housing allocation process - particularly the influence of ward councillors and community liaison officers (CLOs) - are extremely high. These must be proactively addressed so that there is greater information
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on, understanding of, and buy-in around government housing programmes, budgets and projects.
Currently, development planning processes, such as municipal IDPs, are not linked to housing needs and demand capture processes and systems. This means that very little information is available to households about when and where they can expect to get access to a state-subsidised housing opportunity, if they qualify in terms of the criteria set out in the National Housing Code. People “can’t live in the waiting list” and therefore there need to be options available for people, including serviced sites (where land is deliberately unlocked for occupation) as well as low- income public rental options at scale.
SHACK/SLUM DWELLERS INTERNATIONAL (SDI) The South African SDI Alliance which is affiliated to Shack/Slum Dwellers International (SDI) made a written submission and oral presentation to the Enquiry. Mr C Ziervogel made a presentation on “Meaningful Engagements as an Alternative to Evictions”.
The South African SDI Alliance is composed of the following organisations: The Federation of the Urban Poor (FEDUP) is a nationwide federation of slum dwellers whose core activities are women-led daily savings, enumerations, pragmatic partnerships with the state, practical community-led housing developments and land acquisition.
The Informal Settlement Network (ISN) is a bottom-up agglomeration of settlement-level organisations that form a national network of the urban
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poor whose core activity is incremental informal settlement upgrading and mobilization around land, evictions, basic services and citizenship. ISN is represented at the citywide scale in the municipalities of Cape Town, Ekurhuleni, eThekwini (Durban), Johannesburg, Nelson Mandela Bay (Port Elizabeth), Stellenbosch, and Mangaung.
The Community Organization Resource Center (CORC) is a NGO that supports the social processes of FEDUP and ISN, community-based organizations that want to work for themselves. It facilitates engagements with formal actors like the state and supports the development of FEDUP and ISN “rituals” of savings, enumeration, and community-led development strategies
The uTshani Fund is a formal bridging finance institution, which provides loans for community-led initiatives regarding house construction, land acquisition, and incremental informal settlement upgrading. The Community Upgrading Financing Facility (CUFF) is currently administered by uTshani, and funds small-scale incremental upgrading projects of the ISN.
Summary
There should be an engagement between the City of Cape Town and the evictees on their concerns;
The State should be proactive in terms of land management and administration;
Suitable, well located land should be provided to house people on a permanent basis;
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Serviced land is required to achieve high density housing;
Rental housing opportunities should be made available for youth and single households;
Relocation in consultation with communities should be emphasized rather than evictions;
Communities should be involved from the planning phase and throughout the maintenance and implementation phase;
Communities should be trained on various housing programmes;
The Ministerial Enquiry should have sustainable outcomes and should ensure that its findings and recommendations are taken forward for implementation and transformation of the lives of people living in informal settlements;
Sustainable inter-sectoral stakeholder forums should be created;
Concrete measures should be put in place to prevent future unlawful occupation of land and evictions.
Recommendations i. Alternatives should be sought to evictions. This is not only possible but vitally needed to progress to more integrated and equitable societies.
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ii. The five (5) processes that usually drive evictions – increasing urbanisation, large infrastructure projects, market forces, city beautification, and ineffective laws and policies – need to be revisited in the process of building more equitable cities. iii. Communities should be seen as active partners in development projects, not passive recipients.
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CHAPTER 14
POLICE EXPERT’s REPORT
The Enquiry recognised that it would require “expert” assistance when analysing the actions of the SAPS on the days of the eviction. It therefore solicited the services of a police expert to analyse the SAPS video material and to share his analysis with the members of the Enquiry.
In addition, a legal opinion was sought from the Chief State Law Advisor on the legality of the Court Order granted to SANRAL by the Western Cape High Court.
MR DE KLERK - POLICE EXPERT REPORT
The first section of the Position Paper states the position and conclusions arrived at following a study of the photographic and video footage taken and provided by the SAPS of their operations during the evictions on Monday 03 February 2014 and Monday 02 June and Tuesday 03 June 2014, in Lwandle, Strand.
The position and conclusions offered are in furtherance of specific part of the Mandate of the Ministerial Enquiry on the Removal of Illegal Occupants of SANRAL Land at Nomzamo/Lwandle, Cape Town as
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established by the Honourable Minister of Human Settlements, Minister Lindiwe Sisulu, Parliament June 05 2014.
The limited section of the mandate of the Commission that forms the focus of the position is as follows:
The roles of law enforcement officials, and the duties and responsibilities of local government or municipalities with respect to managing public protest, dissent and disorder.
The second section of the Paper considers the type of source material used to inform the position, namely, photographic and video footage taken and provided by the SAPS. The question is asked as to the reasons why photographs and video footage is “shot”?
The third section of the Paper uses the photographic and video footage provided to proffer an option on the policing of the evictions over the course of the three days in question, namely, Monday 03 February 2014 and Monday 02 June and Tuesday 03 June 2014, as measured against the applicable regulatory and conceptual framework and practical wisdom born out of experience.
The fourth section of the Paper provides a set of recommendations with respect to the roles of law enforcement officials, and the duties and responsibilities of local government or municipalities with respect to managing public protest, dissent and disorder, and the overall management of police-community relations and community-based conflict more generally.
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The conclusion roots the position offered in the Paper in the ideological framework that ‘should’ inform the operational planning and decision- making, and actions of our law enforcement agencies and the evaluative lens through which said should be reviewed, namely, community policing. The report is reproduced below.
“A Considered Opinion
With respect to the roles of law enforcement officials, and the duties and responsibilities of local government or municipalities with respect to managing public protest, dissent and public disorder, I humbly proffer the following opinion: The South African Police Service (SAPS) acting in consort with other law enforcement agencies and local government institutions did the best they knew how.
What do I mean by this? The command and members of the South African Police Service (SAPS) acting in consort with other law enforcement agencies and local government institutions did what they believe was expected of them given their understanding of the relevant regulatory guidelines and the institutional expectations as they understood it. In effect, they did what they believed to be the right thing to do given the circumstances as they saw it following the examples and practice as they knew it.
Essentially then we, you and I and the ordinary public cannot expect them to act differently and to make different choices, if they have no working examples to follow and or have not experienced anything different. Furthermore, can it be assumed
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that our law enforcement agencies are institutions that readily and expeditiously institutionalise the lessons it learns from practice?
It is important to distinguishing police and policing quality in itself and the contextual issues confronting our police and law enforcement agencies. Doing so allows us to stress that the police might be good and committed to doing the ‘right’ thing but still not effective or justified when the necessary education, example, leadership and support and other agencies, procedures and practices are not in place. Law enforcement is a question of more agencies than the police might be one of the lessons learnt here. Without others active the police will always find themselves in an impossible position. Consequently, perhaps the sequence of necessary interventions preceding the use of force highlights and stresses the need to institutionalise not only a workable multi-agency but also multidisciplinary approach. In doing so consideration need also to be given to the care given to members of law enforcement agencies and those in affected communities in the aftermath of the use of force.
The Regulatory Prescripts, Conceptual Framework and Practical Wisdom
Accepting that following the Court Order issued on January 24 2014, a pre-planning meeting between government role players was convened to discuss the execution of the order of court, and where such a meeting happens before the meeting envisaged in Section 4 of the Regulations of Gathering Act [Act 205 of 1993], which deals with ‘consultations, negotiations, amendment of
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notices, and conditions’: how was the following covered and decided upon in an effort to facilitate the peaceful execution of the task at hand and to prevent the possibility of the violent expression of dissent and or dissatisfaction:
How the affected occupants of the land were to be notified of the intended action? Knowing or establishing whether the affected occupants were any way organised with a discernible leadership? How to involve any influential organised civil society and or local structures or groups, recognised leadership and or representatives of community based organisations or institutions? What the common approach would be to executing the order of court including agreeing to all the final arrangements for the proposed operation? How to deal with expected public dissent, protest and or disorder?
For me essentially what emerges from a reading of the Regulation of Gatherings Act and supported the National Instructions, is the necessity for negotiations concerning any aspect of, or any condition about the proposed operation with those directly affected. At the very least the intention, spirit and ‘natural consequences’ of the planned operation must be communicated to those directly affected.
Now it might be argued that ‘forewarned is forearmed’ and given that the occupation of the land was deemed illegal, there was no need to engage, let alone negotiate with those directly affected.
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Again, to my mind, practice and experience failing to engage is contrary to the ideological underpinnings of police work in South Africa, namely, community policing and not in the spirit of the Constitution [Act, No. 108 of 1996], White Paper on Safety and Security [1998] and Regulations of Gatherings Act.
Yet others would contest that the mandate of the Service is set out in Section 205(3) of the Constitution of the Republic of South Africa and is inter alia, to maintain public order, protect and secure the inhabitants of South Africa and to uphold and enforce the law. The assertion being that the peculiar response and management of public gatherings has been to do exactly this; maintain (law) and order.
My contention is that maintaining public order is best served by the effective and astute prevention and management of incidents of public disorder and this contention seems to be supported by the very prescripts issued by the Service. Nothing is normal after the use of force since badly managed conflict and public violence and the, so called, normalisation of an area where public order was restored by the use of force comes at a cost: It destroys police-community relations It diminishes trust and confidence in State institutions It undermines good public governance Stifles and destroys communication It skews resources away from development and building community to damage control It fills communities with a sense of hopelessness and helplessness leading to increased alienation, disaffection and anger
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Regulations dictate that public order policing requires the maintenance of public order by, firstly ensuring public order during public gatherings and demonstrations and secondly by intelligence driven crime combating and prevention operations.
The South African Police Service (the Service) must, in partnership with the community, metropolitan police services and other agencies, devise effective methods to promote public safety, as well as reassuring the community that they are protected. To ensure this, the Service must play a pro-active role in attempting to identify and diffuse any possible conflict before it escalates into violence. This is to be done by communicating with the public, organisers and participants (Information Note 3/34/1 SAPS).
Where there is perceived to be a real threat of the violent expression of dissent and protest, the assessment of the said threat level must be based on all available information and not only, so called, operational information. After all, there is much information to be gleaned by directly engaging those affected and the history of the process to date, the nature of the relationship between the affected community and State institutions including the police and the level of organisation and the integrity and credibility of the leadership within the affected community.
Information management:
It is incumbent on the Public Order Police (POP) commander to ensure that information is managed effectively towards the
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envisaged regulatory objectives and to ensure a ‘successful’ operation.
Regulatory prescripts suggest that the first line of information gathering would be the local police Station Commander and information officers. Information so gathered and collated would then be passed on to the Provincial Head: ORS who must as soon as practically possible inform the relevant authorized member, POP unit commander, station commander, provincial commissioner and the Section Head: POP Operations (at the Division: ORS) regarding his or her assessment of the threat level involved in a gathering or demonstration [NI 1 of 2014 (9)].
Given that a senior officer of the Public Order Policing (POP) unit was designated to be the Operational Commander, the threat level must have been determined to be a Level Three threat where there is confirmed information regarding a likely threat to lives and property. In these situations the POP unit takes operational command with Visible Policing at station level and the Metro Police service providing assistance with the policing operation [NI 1 of 2014 (9)(c)]. Information then is to be used to develop a comprehensive written operational plan, while established information networks are to be used to supply up to the minute information of a tactical nature to provide the Operational Commander and the Joint Operation Centre (JOC) with a decisional advantage and quality information to effectively apply the available resources or means.
The available information must also allow the Designated Officer and or the Responsible Officer and the Operational Commander
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to engage in ongoing negotiations with those directly affected and or their representatives and other leadership elements before, during and after the operation in an effort to resolve issues before they escalate [13 (2) NI 1 of 2014]. Furthermore, it is responsibility of the Operational Commander to work to build trust with those directly affected and their representatives. It is envisaged that trust building can be achieved by adhering to undertakings given and by displaying the highest degree of tolerance. The use of force must be avoided at all costs and its use and the dispersal of crowds must comply with the requirements of section 9(1) and (2) of the Act.
Pro-active conflict resolution:
Given that a Senior Officer of a POP Unit was designated as Operational Commander, it would be safe to assume that there was seen to be a real threat to public safety. When this is the case, the Station Commander concerned, supported by his or her cluster commander must initiate a facilitation process to resolve the factors that underlie the potential for disorder peacefully. Together they need to identify role players and stakeholders who can play a role in resolving potential problems, bring them together, if possible, for talks and identify and implement problem solving initiatives. The instruction then is to engage in conflict resolution processes to prevent any form of physical conflict or the eruption of violence [NI 1 of 2014(5)].
There is though a distinct disconnect between the intent of the regulatory guidelines and the specific tasking of command staff. It is the Station Commander who needs to support and act in
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partnership with local communities. They are required to do so through: a) Building positive and constructive relationships with event organizers, community leaders and non-governmental organizations; b) Participating in safety advisory groups of local authorities to deal with issues relating to public safety, and c) Exploring the potential for establishing formal liaison panels, to prevent and defuse community disorder in conjunction with institutions such as local authorities, civic associations, community policing forums and non-governmental organizations.
How then are these relationships and networks, trust and confidence, and communication made available to the Operational Commander and or put to use before, during and after operations such as those in January and June 2014?
Microaggression:
Everyone is equal before the law and has the right to equal protection and benefit of the law. Members of the Service may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth. The Service respects that everyone has the right, to assemble peacefully and unarmed, to demonstrate, picket and present petitions [NI 4- 2014: 1 (2)].
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It would be hard to suggest that the South African Police Service (SAPS) institutionally discriminate against others based on one or more grounds as stated above and this based on the video and photographic material provided. What is present though is a much more subtle, almost passive aggressive hostility in their policing of the specific public order situations viewed.
What can only be described as a form of microaggression is present in the chatter, remarks, shoves, attitude and offensive manoeuvres employed by police members during the operations.
Microaggression is said to be communications that subtly send hurtful or dismissive messages toward an individual due to their group identity, often automatically and unconsciously. And are usually committed by well- intentioned individuals who are unaware of the hidden messages being communicated [Sue 2010].
Individuals though even unwittingly pickup on these messages no matter how subtle and might be hard pressed to articulate what they are experiencing. Instead, accusations of racism and or undignified treatment are banded about, confrontation engaged in and feelings of frustration, helplessness and anger expressed often violently.
Normalization of an area where public order was restored by the use of force:
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Violence and the use of force come at a cost, which has already been said. However, if the use of force is unavoidable, the purpose of any offensive actions must be to de-escalate conflict with the minimum force needed to accomplish the goal of normalizing the situation and therefore the success of the actions will be measured by the results of the operation in terms of loss of life, injuries to people, damage to property and cost [NI 1 of 2014: 14 (3) (a)].
It is then said to the responsible officers that following the outbreak of any kind of violence or where members of the Service have been compelled to use force, it is of vital importance that the area should be restored and normalized as soon as possible [NI 1 of 2014: 16 (1)].
It falls to the member in command at the scene (of violence) to involve all relevant role players from all other departments or institutions to maintain public order, for example, ward councillors and other community and church leaders may address the people and urge them to remain calm. How then is it that the Ward Councillor, Samuel Mata was given 10 minutes to speak to and calm down the jeering crowd? Furthermore, he was told that ‘if he was the Ward Councillor, he should go to speak to the people. The point was then further made that if he was leader, he would not be condone violence and should take leadership and speak to the people [Jonker CD2: 2014-6-2: 00024.MTS and Capture (0) AVI].
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The video footage raises a further point in that Colonel Lucas is heard stressing that it is the fourth (4) time that he was on site. Yet he does not seem to have a relationship with the local leadership engaging him. Who then did he meet and engage with over the course of his previous visits to the area and what agreements, if any, were made with these individuals?
It might be that Colonel Lucas felt that he had his back to the wall. Not only had he and his members responsibility to execute an order of court, their guiding regulations stresses that it is of vital importance that no violence should be tolerated and that perpetrators should be dealt with in terms of the law [NI 1 of 2014: 16 (2)(b)]. And given that any form of violence or group forming must immediately be handled by POP in accordance with the prescripts, which would involve dispersing any group, stopping any violent protest and arresting any identifiable perpetrators in accordance with the law, he had no option (read discretion) but to act.
How though, if at all, could the situation that arose early morning Monday 02 June 2014 have been avoided? And in this case where violence did breakout, was the area summarily handed over to local police after peace had been restored to the area through the use of force?
The local police are assumed to be part of the immediate community and thus it fell to them to start to restore the police community relationships in the area and establish
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peace support to ensure peace building. The role of the POP then is to remain in reserve nearby in order to handle any eventuality should violence flair up again [NI 1 of 2014: 16 (2) (c)].
The assumption of course being that the local police have established and credible relations to draw on; have lines of communication with community structures and leadership and have the necessary competencies to establish peace support (operations) to ensure peace building.
Is post-conflict peace building indeed common practice, and in the case of Lwandle, has any such operation been launched or is the assumption underlying the prescript erroneous and therefore unattainable?
Reporting and record keeping:
The premise of the relevant regulatory guidelines is that intelligently managed information should inform well-planned and co- ordinated actions before, duration and after an operation. It is thus the responsibility of dedicated information gathers and designated record keepers to gather and collate said information for analysis by senior command staff.
Information is collected and records kept in accordance with regulatory frameworks determined by guidelines of the Division: ORS for a number of reasons, among other:
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To provide an informational advantage in the planning and executing operations To populate planning framework (doctrine) which in turn is integrated into and taught as part of a formal learning programme aimed at the development of command leadership To inform tactical consideration before, during and after an operation To provide a permanent record of all public order incidents, events or operations and to ensure a constant flow of accurate information on the incident, event or operation To serve as evidence in apprehension of suspected persons and the prosecution of arrested persons following a public order incident
Though the Commission can ensure that the following additional reasons for policing operations to be accurately and diligently filmed and photographed are given effect to:
For administrative review Review of procedural and regulatory guidelines Assessment and performance review (training and competencies) Judgement and impact (discipline and legality)
Exercising professional discretion:
Colonel Lucas laments that the police was on the scene to protect the Sheriff of the Court and in so doing was trained, willing and able to deal with any disorder and to arrest those who disturb the
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peace and or who have broken the law. He adds that the court order had to be served that day and without delay. Serving the court order was seen as constituting a Level Three threat with the confirmed possibility of violent public dissent.
What role, if any at all, do the SAPS play in informing and or influencing the court seeking to issue an order in a situation where the execution of said order is likely to be met with public dissent and possible public violence? Furthermore, what professional latitude does the SAPS have in adapting and or even ‘failing’ to execute an order of court when the threat or actuality of overt public violence and or loss of life and or damage to property outweighs the merit of enforcing an order at a given time?
The contention being that the command staff and senior members of the South African Police Service (SAPS) are trained, experienced and seasoned professionals competent to exercise the discretion vested in them and to make sound operational decisions in light of the de facto conditions confronting them on the day or in a given situation.
Also, questions have to be asked of the SAPS, SANRAL, the local municipality and other stakeholders as to what engagement happened with the affected communities between the period when the matter first went to court and the Court Order being obtained, and subsequently what processes were followed between the first demolition of informal dwellings on 2 January 2014 and the fateful days of 02 June and 03 June 2014?
Conclusion
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Policing public disorder involves going slow to go fast with police sweating the small stuff and working deliberately and conscientiously to prevent violent public disorder. The cost of violence and the unbridled use of force include:
Broken relationships; Destroyed trust and confidence; Broken or ceased communication; Commitment of resources towards continuing the fight, and A diminishing sense of a shared future
There is an inherent indignity in being forcibly removed from your home. And while it is accepted that our local police cannot directly impact the socio-economic plight of our people, we do need to guard against them being used once against as a blunt instrument to deal with our social challenges. Not really knowing any different and with a real dearth of skills, are police will continue to do the best they can with very little positive and lasting effect.
Land invasions and the erroneously entitled ‘service delivery’ protest in fact has its genesis in a lack of good public governance, a breakdown in public trust, weak and ailing local government and weak generative mechanisms at a local level.
Policing and facilitating public harmony are not the preserve of the local police alone. It requires ‘joined-up’ government with State institutions working in concord to realise shared goals through a common strategy and with shared budgets.”
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OPINION OF STATE LAW ADVISOR
The opinion obtained from the State Law Advisor is contained in the schedule of annexures to this report.
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CHAPTER 15 FINDINGS
INTRODUCTION
1. This Chapter sets out the findings of the Enquiry. The findings are based on all the information, sources and other records that were available to the Enquiry as indicated in this report.
HISTORY OF THE OCCUPATION
2. The occupied land is a portion of Erf 32524 Strand which is 1.5614 hectares in extent (the site) and is registered in the name of the South African National Road Agency Limited (SANRAL). The site falls within the designated N2 Road Reserve.
3. The Enquiry is satisfied that the occupation of the site started in December 2013. This is confirmed in the statements of the local ward Councillor and the evictees.
4. The Enquiry finds that the persons who occupied the site were living as backyarders in surrounding formal and informal areas. The local ward Councillor had indicated that during January 2014 he was approached by a group of people who stated that they were the representatives of the backyarders in the area. They informed him of their intention to occupy the site. Colonel Lucas, the overall commander of the POP Unit that was present on the site on 2 June
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2014 visited the site shortly before the evictions on 2 and 3 June 2014. He spoke to some of the occupiers and ascertained that they were previously living as backyarders in the surrounding areas. The City of Cape Town (CoCT) also confirmed in its written submission of 11 July 2014, that the occupiers were backyarders from the surrounding areas. The CoCT staff working in the area had confirmed that they had seen people carrying material and possessions from the neighbouring formal area to the site.
5. The evictees occupied the site due to high rent, adverse living conditions and family disputes.
6. The Enquiry also found school going young people seeking independence from home and access to their own housing amongst the evictees.
7. The occupiers were first evicted from the site on 3 February 2014. The Enquiry finds that the occupation of the land was unlawful. The site was subsequently gradually re-occupied.
8. The CoCT stated in its written submission that “many of those residents who settled on SANRAL land … were actively encouraged by Ses’khona”. This was denied by Mr Loyiso Nkohla, one of the Ses’khona leaders, during the public hearings on 21 July 2014. The Enquiry took statements from the individuals identified in the City’s submission who was said, according to media reports, to have paid Ses’khona for plots. This was denied by the deponents. The Enquiry found no proof that Ses’khona sold plots to the evictees.
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Number of structures demolished
9. Given the conflicting information provided and various lists of names produced, it is not possible to determine the exact number of individuals or families that were evicted on 2 and 3 June 2014.
10. Based upon the report of the Sheriff, the invoice from the contractor appointed to demolish the structures, the size of the site and the police video footage, the Enquiry finds that 233 structures were
11. demolished on the site on 2 and 3 June 2014.
Obtaining the court order
12. The Enquiry accepts SANRAL’s right to approach the court for an urgent interdict to prevent the illegal occupation of its land.
13. The Enquiry finds that by 21 January 2014 there was an imminent invasion of the site. There were 35 completed structures on the site, 95 in the process of being erected and 400 plots pegged out for construction.
14. On 22 January 2014 the CoCT gave SANRAL 14 days notice in terms of section 6 of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 19 of 1998 (PIE Act) to evict the occupiers from the site.
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15. SANRAL applied for an urgent interdict on 24 January 2014. According to the court papers, the application was based on the following grounds :
14.1 The occupied site is part of Erf 32524 Nomzamo, Strand which is the property of SANRAL;
14.2 The site was unlawfully occupied. The first invasion had taken place on 5 January 2014 when 11 illegal structures were erected on the site but were all removed without the intervention of the court;
14.3 On 19 January 2014, 14 new structures were erected on the site but were again removed by SANRAL’s security agent and the police;
14.4 On the morning of 21 January 2014, 35 structures were completed and 95 were in the process of being constructed, while 400 plots were pegged out for construction. SANRAL’s security company endeavoured to remove these structures, but were attacked by the invaders and prevented from removing the structures;
14.5 Given the resistance encountered from the invaders as well as the notice in terms of section 6 of the PIE Act received from the CoCT, SANRAL had no other alternative but to approach the court for the necessary relief.
16. The interdict was granted on 24 January 2014 in the following terms:
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“Having read the papers filed of record and having heard the counsel for the Applicant ex parte an order is hereby made in the following terms :
1. The application is heard as one of urgency and the provisions of Rule 6(12) in respect of notice and service are dispensed with.
2. A rule nisi is issued calling upon the Respondents or any other interested person to appear and show cause, if any, to the above Honourable Court on 24 February 2014 at 10h00 or as soon thereafter as the matter may be heard, as to why a final order should not be granted interdicting and restraining the Respondents from :
2.1 entering or being upon Erf 32524 Nomzamo, Strand for the purpose of unlawfully occupying or invading that property or erecting structures there except for those Respondents currently occupying the property at the date of the granting of this order; and
2.2 erecting, completing and/or occupying a structure there or extending their current structures save except those Respondents currently occupying the property at the date of the granting of this order are not interdicted from occupying the property; and
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2.3 intimidating, harassing, assaulting or in any way interfering with:
2.3.1 the employees, agents or contractors of Applicant; or
2.3.2 any person involved in or connected with law enforcement at the property and service of process;
2.4 inciting persons to enter the property or to erect structures on the property for the purpose of unlawfully occupying or invading the property or erecting, completing, extending and/or occupying any structures thereon.
3. Authorising the Applicant, duly assisted by the Sheriff and insofar as needs be, by the members of the South African Police Services to give effect to the provisions of this order by :
3.1 removing any person found to be in breach of this order subsequent to service as recorded in paragraph 6 below;
3.2 demolishing any structure unlawfully erected on the property subsequent to the service of this order;
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3.3 removing any possessions found at or near such structures including any building materials, which possessions and/or building materials shall be kept in safe custody by the Applicant until released to the lawful owner thereof and to take all reasonable steps necessary to give effect to this order.
4. Any Respondents who oppose this application are to pay the costs jointly and severally, the one paying the other to be absolved.
5. Pending the return day, paragraph 2 above shall operate as an interim interdict with immediate effect.
6. Service of this order shall be effected upon Respondents by the Sheriff attending at the property and serving a copy of this order, duly assisted in so far as needs be, by the members of the South African Police Services, in the following manner :
6.1 by reading aloud the contents of this order by the loudhailer in Xhosa, Afrikaans, and English at the property;
6.2 by erecting 8 notice boards on the property, each containing copies of the order with Xhosa and Afrikaans translations.”
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17. The return day of the interim interdict was 24 February 2014 and was subsequently extended to 17 March, 14 April, 12 May, 23 June 2014 and finally to 22 June 2015.
18. The interim interdict was executed on 2 and 3 June 2014 when 233 structures were removed from the site.
19. The Enquiry is satisfied that the action taken on the SANRAL site on 2 and 3 June 2014 falls within the definition of an eviction as envisaged in the PIE Act. This Act defines an eviction as follows :
“evict means to deprive a person of occupation of a building or structure, or the land on which such building or structure is erected, against his or her will, and eviction has a corresponding meaning.”
20. In terms of s26(3) of The Constitution and section 8(1) of the PIE Act, evictions without a court order are illegal. SANRAL’s application was for an interdict and not an eviction order in terms of the PIE Act which regulates all evictions. The interdict could not lawfully have been used to effect the evictions that occurred on 2 and 3 June 2014.
21. The terms of paragraph 3 of the interim interdict that authorise the removal of persons and material from the site were not made immediately effective as an interim interdict. The interim interdict itself therefore did not authorise the removal of any person or material from the SANRAL site on 2 or 3 June 2014.
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22. The Enquiry finds in the result, that the evictions on 2 and 3 June 2014 were illegal.
SANRAL
23. SANRAL, as an organ of State, failed to execute its responsibility towards the affected community to respect, protect and promote the rights as contained in ss7(2), 10, 26(1), 26(3) and 28(1)(c) of the Bill of Rights.
24. The Enquiry is of the opinion that it is unlikely that an urgent eviction order would have been granted in this case since there was no alternative accommodation available, no meaningful engagement with the occupiers took place and the land was not immediately required by SANRAL.
25. The Enquiry finds that SANRAL failed to take reasonable steps to protect its land. Notwithstanding the fact that the site had been invaded previously, SANRAL failed to monitor and secure the property after it regained control of the site pursuant to the evictions on 3 February 2014.
26. The Enquiry finds that the failure to keep or ensure that minutes of stakeholder meetings and decisions are kept, was a serious shortcoming during the planning phase of the evictions.
27. The Enquiry finds that the conduct of SANRAL was unjustifiable and that it is liable for the consequences of the illegal evictions.
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SHERIFF OF THE STRAND
28. Sheriffs are officers of the court who are appointed in terms of section 2 of the Sheriffs Act, 90 of 1986 (“the Act”). Sheriffs are guilty of improper conduct in terms of section 43(1)(a) of the Act, if they are negligent in the execution of any court process.
29. In terms of the Code of Conduct for Sheriffs :
28.1 Sheriffs are an integral part of the justice system. As a judicial officer of the court, each Sheriff is responsible for the effective service or execution of any court processes;
28.2 When performing the function as a Sheriff or Deputy Sheriff, Sheriffs acknowledge that they are a part of the constitutional democracy;
28.3 All Sheriffs are obliged to respect the rights of the citizens of South Africa when performing their functions;
28.4 The appointment as a Sheriff is a fiduciary position which creates fiduciary obligations between the Sheriff, the courts, the legal profession and members of the public, all of whom are served by the Sheriff.
30. The Enquiry finds that the Sheriff effected the evictions on 2 and 3 June 2014 without an eviction order, and therefore failed to comply with the above duties.
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31. The Enquiry furthermore finds that the Sheriff failed to ensure that the property of the evictees that was removed from the site, was properly marked and registered.
32. The Sheriff failed to ensure that a copy of the court order was available during the evictions and was not visible on 2 and 3 June 2014 to oversee the evictions.
33. Proper channels of communication were not followed between the Sheriff and the Public Order Police (POP) Unit. The Sheriff instead engaged directly with the operational commander of the POP Unit and in the process the role of the Station Commander of Lwandle police station was diminished.
34. The Enquiry finds that the failure to keep or ensure that minutes of stakeholder meetings and decisions are kept, was a serious shortcoming during the planning phase of the evictions.
SOUTH AFRICAN POLICE SERVICE (SAPS)
35. In terms of the interim interdict the South African Police Service (SAPS) was authorised, insofar as needs be, to assist SANRAL to give effect to the provisions of the order.
36. The Enquiry, however, finds that the interim interdict did not empower the police to assist in effecting the evictions on 2 and 3 June 2014. Reference is made to the finding that no eviction order
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was granted and that the provisions of paragraph 3 of the interim interdict were not made immediately effective.
37. The Enquiry finds that the failure to keep or ensure that minutes of stakeholder meetings and decisions are kept, was a serious shortcoming during the planning phase of the evictions.
38. During the stakeholder meetings, the operational commander (Colonel Lucas) of the POP Unit raised the issue of alternative accommodation for the evictees. He, however, failed to satisfy himself that the matter was satisfactorily dealt with.
39. Colonel Lucas also raised the issue of the absence of the local councillor in the stakeholder meetings, but failed to ensure that the councillor was involved.
40. The Enquiry finds it disturbing that there is no National Instruction for evictions and that National Instruction, 4 of 2014 for “Crowd Management” is being used instead.
41. It is unsatisfactory that the author of the operational plan for the 2 and 3 June 2014 evictions differed from the operational commanders on the two days.
42. SAPS failed to comply fully with National Instruction, 4 of 2014 during the evictions in that there was no meaningful engagement with the local ward Councillor or the church representatives who were present, nor any facilitation of engagement by them with the community.
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43. The Enquiry finds that no live ammunition was used on either 2 or 3 June 2014.
44. Images in the media on 2 June 2014 that portrayed the impression that SAPS undressed a female evictee were misleading. The video footage that was available to the Enquiry showed that the person in question actually undressed herself.
45. The time reflected on the video footage provided by SAPS did not correlate with real time. Furthermore, the date on still photographs incorrectly reflected the year as 2006. This is a matter of concern as the weight of this evidence for court purposes, could be diminished.
46. The actions of the POP Unit on 2 June 2014 was unjustified in that, having given the community 10 minutes to disperse, action was taken against the community without justification before the 10 minutes had elapsed.
47. Given the fact that there were different operational commanders for the two days, it is a matter of serious concern that no official handover took place between the operational commander for 2 June 2014 and the operational commander for 3 June 2014.
48. It is a shortcoming that no evaluation of the first day’s operation took place in order to adapt or confirm the operational plan for the following day.
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49. Due to a lack of human resources, the number of POP members deployed in the operation kept on diminishing. This is less than ideal and should be avoided.
50. The Enquiry finds that there were far fewer evictees present on the second day of the evictions and they appeared to be resigned to their fate.
51. Despite the community appearing to be more subdued on the second day (this was evident from the images and the conversations recorded on the police video) the POP Unit appeared to be more aggressive in their approach.
52. National Instruction 4 of 2014 requires that after an operation, the relationship between the community and the police be normalised. The Enquiry is not satisfied that this took place.
53. The operational commander for the second day, Captain De Graaf, was afforded three opportunities to appear before the Enquiry, but he failed to do so. As a result, the Enquiry was unable to clarify some of his actions. The Enquiry finds his non-co- operation inexcusable.
54. The Enquiry finds the absence of a negotiator during the two days of the evictions a serious shortcoming.
55. The Enquiry notes that the operational diary for the second day was not signed off.
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56. The Enquiry questions the necessity for SAPS to have submitted a report to IPID since no live ammunition was used in the operation.
57. SAPS did not provide the Enquiry, as requested and undertaken by them, with the correspondence between the POP Unit and the SAPS Legal Services Division relating to the effect of the court order of 24 January 2014. The mandate of SAPS as set out in section 205(3) of The Constitution is to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. This, at the very least, would have required SAPS to determine, independently from the views of SANRAL who obtained the interim interdict, that the evictions were legal. In the absence of the correspondence, the Enquiry is unable to determine the basis upon which the Legal Services Division might have concluded that the evictions were legal or whether any communications with the Legal Services Division had occurred at all.
THE CITY OF CAPE TOWN (CoCT)
58. The Enquiry finds that the CoCT was not only aware of the pending evictions, but also actively participated in the stakeholder meetings prior to the evictions. The Enquiry therefore finds it hard to believe that the political leadership of the CoCT could claim that it was not aware of the evictions.
59. The CoCT gave SANRAL notice in terms of section 6 of the PIE Act on 22 January 2014 to institute eviction proceedings against the occupiers of its land. This prompted the interim interdict
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application on 24 January 2014. CoCT actively assisted SANRAL by providing it with precedents of court orders that it had obtained and which it proposed SANRAL should follow, which SANRAL did.
60. The CoCT failed to ensure that the local ward councillor be invited and participated in the stakeholder meetings prior to the evictions.
61. The Enquiry finds that the failure to keep or ensure that minutes of stakeholder meetings and decisions during the planning phase of the evictions are kept, was a serious shortcoming.
62. The CoCT was present and involved on the two days of the evictions in June 2014.
63. The Enquiry finds that, given the illegal eviction of the affected community, the CoCT failed in the circumstances in its duties as an organ of state to respect, protect or promote the fundamental rights of its citizens. Specifically, its citizens’ rights of access to adequate housing, not to be evicted without a court order, to dignity and shelter.
64. The Enquiry requested the recordings of calls made to the emergency number of the Disaster Risk Management Centre for 2 June 2014 from the CoCT. It failed to provide the Enquiry with the recordings. Under the circumstance the Enquiry finds, in accordance with the statements of the local ward Councillor, the church representatives, and others, that the CoCT refused the evictees access to the Nomzamo Community Hall on 2 June 2014. On that date many of the evictees spent the night in the open.
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The Enquiry finds that the CoCT thus failed in its responsibility in terms of the Emergency Housing Programme.
65. Subsequent to the evictions, the CoCT, through its Disaster Management Unit, provided basic emergency relief necessities to the evictees.
66. The Enquiry finds that the CoCT provided 20 of the agreed 45 chemical toilets, 18 taps and solid waste removal services to the evictees. The construction of 70 flush toilets to be provided by CoCT has not yet commenced.
67. The Enquiry finds that very few of the evictees were registered, planned to register or saw the need to register for housing projects.
THE PROVINCIAL DEPARTMENT OF HUMAN SETTLEMENTS
68. The Enquiry could find no proof that the Western Cape Department of Human Settlements (the Province) was aware of, or was involved, in the evictions of 2 and 3 June 2014.
69. The Enquiry finds that there is inadequate communication between provincial and local governments regarding evictions.
70. The Enquiry finds that there is a need for provincial governments to improve their oversight over municipalities regarding human settlement issues.
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THE COMMUNITY
71. The Enquiry acknowledges that the occupation of Erf 32524 was unlawful and does not condone the unlawful occupation of the land.
72. The Enquiry finds, in accordance with the statements of the local ward Councillor and members of the affected community, that the evictees were aware that the land belonged to SANRAL when they occupied it.
73. The Enquiry finds that most of the evictees unlawfully occupied the land notwithstanding having been aware of the evictions that took place on the same land on 3 February 2014.
74. Although the affected community was not officially given notice, many of them were aware of the pending evictions on 2 and 3 June 2014.
75. Given the fact that the Enquiry was not able to select interviewees, and the fact that there were significant similarities in detail in their statements, it is likely that the evictees discussed and agreed upon certain aspects of their version concerning the evictions. Nevertheless, the Enquiry managed to interview other evictees who provided different details of the evictions.
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76. The Enquiry finds that the majority of the evictees were of a relatively young age and would under normal circumstances at this stage, not qualify for housing assistance.
77. The vast majority of evictees did not appear on any government waiting list.
THE HOUSING DEVELOPMENT AGENCY (HDA)
78. Subsequent to the evictions, the HDA was appointed by government as the implementing agent and project manager for the resettlement of the evictees.
79. The Enquiry finds that the HDA did not ensure that a proper Steering Committee be put in place in terms of the requirements of the Emergency Housing Programme.
80. Proper minutes of Steering Committee meetings and decisions taken were not kept.
81. The HDA allowed lists of evictees to be drawn up by third parties without paying due attention to the accuracy and the authenticity of these lists.
82. The HDA had no role in the compilation of the final allocation list for the relocation of the evictees, which the Enquiry was informed
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by HDA was provided by the legal representative of the affected community. The Enquiry was unable to determine the criteria used to compile the list. Furthermore, the names on the list were not checked against any form of identification when occupation certificates were issued to individuals in order to verify the identity of the actual occupants of the relocation units.
83. The Enquiry finds, on the face of it, anomalies, such as duplications of beneficiaries and incomplete and incorrect identification numbers on the allocation list.
84. The Enquiry finds, under the circumstances, that the allocation list does not comply with the prescribed criteria.
85. HDA informed the Enquiry that 301 relocation structures were going to be built. However, an in-loco inspection on 9 September 2014 revealed that 483 structures had been completed and allocated. Notwithstanding this, there are a large number of families still living in the hall, waiting to be relocated.
NATIONAL DEPARTMENT OF HUMAN SETTLEMENTS (DoHS)
86. The Enquiry finds that the National Department of Human Settlements (NDoHS) became involved in the matter after the evictions.
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87. Given the fact that the DoHS became actively involved in this instance, the Enquiry finds that it was not adequately monitoring the activities of the HDA as the implementing agent.
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CHAPTER 16
RECOMMENDATIONS
The Terms of Reference require the Enquiry to make necessary recommendations consequent upon its investigation and findings. This Chapter contains the recommendations.
1. The Enquiry recommends that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE Act) be amended as follows :
1.1 To require the court to request a probation officer’s report (similar to the report provisions contained in section 9(3) of the Extension of Security of Tenure Act, 62 of 1997) providing information on –
the availability of suitable alternative accommodation to the occupier;
indicating how an eviction will affect the constitutional rights of any affected person, including the rights of children, if any, to education; pointing out any undue hardships which an eviction would cause the occupier; and
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on any other matter as may be prescribed.
1.2 Providing that the local authority in whose area of jurisdiction the occupied land is situated be joined as a party in all applications for an eviction order;
1.3 Compelling the local authority, in cases of mass evictions, to report to the court on the same matters that must be dealt with in the probation officer’s report;
1.4 Providing that the relevant MEC for Human Settlements be given notice of all eviction applications;
1.5 To provide that one of the factors that the court should take into account in deciding to grant an eviction order, is whether and to what extent measures have been taken by the land owner to protect the property to avoid unlawful occupation thereof;
1.6 Requiring the land owner and the occupiers of the land to engage meaningfully in respect of all relevant issues such as those set out in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010(3) SA 545 (CC) para [7].
2. It is recommended that the National Minister of Human Settlements consult with the Minister of Justice and Correctional Services and the office of the Chief Justice (South African Judicial Education Institute) in respect of a comprehensive training programme for
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judges, magistrates, the police and sheriffs in respect of the PIE Act and other land tenure related legislation.
3. It is recommended that the Department of Human Settlements :
3.1 engage with the Department of Justice regarding rights based training. There is a need for targeted “know your rights” as well as “your duties” information to be made available to communities, tenants, residents, occupiers and landlords which is to be distributed widely in different languages in conjunction with a campaign to inform occupiers about their rights and recourse regarding attempted evictions and their duty to respect the property rights of land owners; 3.2 engage with the Department of Justice in respect of paralegal assistance at a local level to assist those threatened with evictions and to find alternatives to eviction wherever possible.
4. It is recommended that organs of state should refrain from using land invasion interdicts as de facto eviction orders.
5. Land owners must proactively identify and secure their property and/or vacant land, so as to discourage invasion thereof.
6. Land owners must engage, with the assistance of the local authority, with illegal occupants in order to find alternative solutions to avoid evictions.
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7. The Board of Sheriffs need to develop a monitoring mechanism to establish full compliance with the Code of Conduct as contained in the Sheriff’s Handbook. Non-compliance in the execution of evictions by Sheriffs, should carry consequences.
8. When carrying out an eviction order, the Sheriff responsible must ensure proper recording and safekeeping of individuals property.
9. The Sheriff must be even-handed with all stakeholders when dealing with evictions.
10. SAPS must ensure that an order is lawful before they get involved in the execution thereof.
11. The approach of the SAPS in the execution of an eviction order, must be one where they also protect the community involved and their property.
12. SAPS must develop separate National Instructions to deal with evictions, taking into account the humanitarian aspects around evictions.
13. SAPS must adhere to all administrative requirements concerning evictions with the understanding that failure to do so could have legal consequences.
14. SAPS must ensure that trained negotiators are present during execution of evictions.
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15. Local Authorities must comply with court judgments, especially relating to evictions handed down against them. Provincial Departments of Local Government must monitor and ensure compliance.
16. A system must be developed where waiting lists for subsidised housing are publicised, a reasonable period for comments to be allowed, and thereafter the lists must be gazetted.
17. Local Authorities must develop processes that facilitate the registration of citizens that qualify for housing.
18. The alignment of policies across all three spheres of government regarding emergency housing must be ensured.
19. The National Minister must develop an early warning system in the National Department of Human Settlements to alert the Minister of impending evictions across the country.
20. Minutes, decisions and attendance records of intergovernmental and inter-departmental meetings must be properly recorded.
21. Given the conflicting numbers of evictees provided to the Enquiry, and the resources committed to this eviction, the Enquiry recommends that the National Minister initiate an independent audit and full investigation by the relevant law enforcement agency into the relocation process of the Nomzamo (Lwandle) evictees.
22. The National Minister must ensure that :
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22.1 monitoring and evaluation systems are reviewed and strengthened to foster, track and enhance implementation of policies, legislative framework programmes and projects as well as ensuring that there is value for money;
22.2 the capacity of NGO’s and CBO’s is unleashed, so that, they can play a role in the training and education of communities and land owners on their rights and responsibilities regarding land and housing issues;
22.3 a national awareness campaign be developed and rolled out to inform communities of the different housing opportunities available and how to access and participate in them in order to realise the individual needs of beneficiaries. Coupled with this campaign there should be the dissemination of information regarding the consequences of unlawful land invasion. 23. While it is mindful of the devastating effects of human rights abuses that might accompany steps to address land invasions, the Enquiry does not support or condone “queue jumping” by means of land invasions which should be avoided at all costs.
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