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, NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 1 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 NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 2 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 NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 3 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. NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 4 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. NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 5 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 NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 6 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 NOMZAMO (LWANDLE) MINISTERIAL ENQUIRY REPORT 7 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