Eviction by the back door

Such removals happen across the country and amount to an “eviction through the back door”, says Nomzamo Zondo, director of litigation for SERI (Socio-Economic Rights Institute).

SERI represented the shackdwellers and successfully argued that the finalisation of an interdict on the terms sought by the City of Cape Town and landowner Iris Fischer in relation to Erf 150 in Philippi would allow for arbitrary evictions.

The Western Cape High Court order handed down on Thursday will specifically protect shackdwellers already resident on the property, while still interdicting newcomers from erecting further shacks.

Yolanda Maneli is relieved. She has lived at Marikana since April last year and has had her shack demolished by the Anti-Land Invasion Unit (ALIU) on two previous occasions.

“We welcome this, because now we do not have to fear anymore. The evictions were very painful to the community, and many of us lost our furniture and building material, so this is a relief,” she said.

Maneli is one of the settlement’s original occupiers. Specifically since August, the Marikana settlement has grown exponentially and now spreads across several privately owned neighbouring properties. There have been a number of evictions and violent clashes between police, the ALIU and residents.

The court emphasised that only people who settled on the property after 26 November are to be removed. In order to clearly define the households that are protected from eviction, a register of names and photographs of shacks must be completed by 5 December.

This is markedly different from the interdict used to justify the evictions in Lwandle, Strand, on 2 and 3 June. In that instance, the court interdict did not clearly distinguish between existing occupiers and potential, future occupiers on a plot of land owned by the SA National Roads Agency Ltd (Sanral). The sheriff of the court, supported by police, interpreted everyone on the property to be in contravention of the order and evicted hundreds of families. It was therefore crucial that the court not hand down a similar final interdict in the Erf 150 case, argued SERI.

SERI argued that the relief sought by the City and Fischer (the confirmation of an existing interim interdict) would amount to “an eviction in all but name”. It would go “much further than simply restraining people from coming onto the property. It is clearly intended to permit the applicants to remove people who are already on the property”.

The City’s ALIU officers would be able to exercise untested discretionary power in assessing whether a structure is someone’s “home” or merely “vacant” or “incomplete”.

The conundrum of the ALIU’s all-powerful discretion was analysed by GroundUp during evictions which were justified with recourse to such interim interdicts on plots adjacent to the Fischer property in August.

However, the protection against eviction of the original Marikana shackdwellers is only provisional. The City’s Mayco member for Human Settlements Siyabulela Mamkeli confirmed that the land owner is in the process of obtaining an eviction order which, if granted, will allow for the people settled on the plot to be removed.

The issue of the apparent unconstitutionality of interdicts that are used as de facto eviction orders has not been settled in South Africa. In Zulu and 389 Others v eThekwini Municipality and Others the Constitutional Court ruled that such an interim interdict amounted to an eviction order, and was used as such by the municipality. In spite of this, the court did not set the order aside and referred the matter back to the Durban High Court.