Answer to a question from a reader

My stepmother is evicting us from our late father's house. What are our options?

The short answer

Your municipality must provide emergency housing which is dignified and with access to services.

The whole question

My father was 68 when he caught his step-wife, who was 49, having an affair with a 23-year old man. He then hanged himself.

Three years later our stepmother decided she did not want us in the house any longer, and took steps to evict us. We received a notice to vacate the house by 31 January 2019.

On 2 February 2019, we were sitting on our front stoep with our bags. Our stepmother said we had to leave. I showed her the eviction order, and it says that we must be assisted with emergency housing of a dignified nature, but we are still waiting for the sherif and municipality to assist us.

Officials at the municipality told me that I must go and look for a backyard to live in and they will provide us with a Wendy house (without any services), else they will put us in the nearest informal settlement.

Please help us.

The long answer

Thank you for your email about emergency housing after your eviction.

Section 26 of the Constitution says that everyone has the right to adequate housing and that the state must enable access to adequate housing over time and within the limits of its resources. That means that the government is not required to provide housing instantly where it has no resources to do so.

The Emergency Housing Programme makes municipalities responsible for providing temporary alternative accommodation to people who would be homeless after an eviction. As your eviction order states, the municipality must provide emergency housing which is dignified and with access to services, though they may be communal.

The problem is that what is seen to be adequate temporary accommodation is different in different situations. Where court cases have taken up the cases of communities who have been displaced or evicted, and challenged the lack of accommodation, the Constitutional Court, usually, has laid down what should be provided on a case by case basis.

For example, in 2009, Justice Zak Yacoob said that residents in Joe Slovo informal settlement in Cape Town should be placed in a Temporary Relocation Unit (TRU) that would be at least 24m² and fire-resistant.

Through other court cases, it has been established that:
1. There must be some security of tenure (Port Elizabeth Municipality v Various Occupiers)
2. The structure must have access to water, basic sanitary services and refuse services. It should also be waterproof and able to withstand the elements. (City of Johannesburg v Rand Properties)
3. The location of the alternative accommodation should be “as near as possible” to the area residents were evicted from.
4. The individual office bearers in the municipality can be held personally responsible for not providing alternative temporary accommodation.
5. The eviction order must be given to occupiers by the Sheriff who must explain the eviction order and the occupiers must be given time to move before they are evicted. If the municipality has provided alternative accommodation, the occupiers must be given time to move to that accommodation.

Louise Du Plessis who deals with land and housing at Lawyers for Human rights says that unfortunately because no one can say exactly what alternative accommodation entails, the municipality can provide the most basic accommodation like a temporary shelter with basic services.

But because the Constitutional Court has also recognised that the right to adequate housing is limited by the resources the city has available, you can’t avoid eviction simply by claiming that the alternative accommodation the city offers is unsuitable.

In your case, I don’t know whether a court would find a choice of a 3x6 wendy house or being put in a temporary relocation area adequate emergency housing or not.

I would advise you to contact one or both of the following organisations and ask for advice:

Lawyers for Human Rights: CAPE TOWN OFFICE
Land and Housing Unit
Telephone number: 021 424 8561
Physical address: 4th floor, Vunani Chambers,
33 Church Street,
City Centre, Cape Town

SERI (Socio-Economic Rights Institute) JOHANNESBURG
Reception: +27 11 356 5860

Answered on Feb. 14, 2019, 11:22 a.m.

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