CoJ inaction over illegal occupation has ‘sterilised’ property rights

Connie Queline

CoJ inaction over illegal occupation has ‘sterilised’ property rights

In a case filed with the Joburg High Court, the owners of two illegally occupied Berea buildings say their property rights have been “sterilised” due to inaction by the City of Joburg (CoJ).

The court papers say the two properties are unlawfully occupied by scores of occupants who stopped paying rent between 2018 and 2020 – amounting to a rent boycott. The latest case follows an unsuccessful attempt to evict the illegal occupiers, who argued in affidavits before court that this would leave them homeless.

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Read:
Joburg high court says illegal occupiers ‘can stay’
Property owners take CoJ to court over illegal occupations

The property-owning companies are demanding the City of Joburg, and other branches of state responsible for dealing with unlawful occupations be held accountable under the Constitution and other statutes dealing with property rights and emergency accommodation for evictees.

The reasons for the initial rent boycott are vague, but it seems more opportunistic than substantive, starting in one building and spreading to the second over three years. The occupants appear to have been diligent in paying rent up to the time of the boycott, though affidavits before the court suggest many are now indigent.

The property owners have attempted for several years to evict the occupiers and regain control of the buildings but to no avail.

The City of Joburg is required to assess the personal circumstances of illegal occupiers to assess whether they qualify for temporary emergency accommodation (TEA). The courts require this information as part of an eviction report before considering whether or not to evict.

The city prepared an eviction report in 2021, but it lacked sufficient detail to allow the court to make a proper assessment, and it also emerged from the CoJ’s court response that it had no temporary emergency accommodation for the illegal occupiers, most of whom are foreign nationals.

The city’s failure to plan for temporary emergency accommodation for illegal occupants is unconstitutional and invalid, say the applicants in the case. As such, CoJ is accused of violating the property owners’ constitutional rights.

The CoJ is also accused of failing to provide constitutionally compliant eviction reports, as required by the courts, and of neglecting to cooperate with the Department of Home Affairs to resolve the situation of unverified foreign nationals living rent-free in the buildings.

The case was brought by the two property-owning companies, 22 Fricker Road and Snowy Owl Properties 149, who argue that the manner in which the CoJ is implementing its TEA policy is unconstitutional and invalid.

The respondents include the City of Joburg, the Joburg municipal manager, Gauteng and national departments of human settlements, the Department of Home Affairs and the unlawful occupiers of the two properties.

The property owners are asking the court for a structural interdict (meaning the court monitors compliance with its orders) compelling the city, Gauteng Province and the Department of Home Affairs to fulfil their obligations under the Constitution, the Housing Act and the Immigration Act.

In the course of the litigation between the property owners on the one hand and the city and the illegal occupiers on the other, several inconsistencies were found to exist, such as the number and identities of the occupiers.

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“The named occupiers, of course, simultaneously rejoice in the incompetence of the [eviction] reports and continue to reside at the properties rent-free, alternatively to collect their own ‘rent’ from their illegal subtenants, as they have done for all these years,” says Andrew Schaefer, deposing for the property owners.

The case has been fraught with delays, miscommunication and missed targets.

In May 2023, the court ordered the DHA and the CoJt to conduct an investigation at the properties and prepare a report on their findings, specifically, who among the illegal occupants qualified for temporary emergency accommodation. The DHA turned up but then advised it could not do an inspection without the police being present – though this is not required by law.

“The DHA plainly lacks understanding of its legislative mandate,” says Schaefer’s affidavit, and the department appeared content to involve “other stakeholders” in what was a purely DHA matter.

In CoJ’s responses to the court, it indicates a need for 1 500 beds to address its TEA requirements and further indicates it had identified six properties for acquisition, a process that could take two to three years to complete.

It also emerged in the court process that the city’s existing TEA facilities – intended to accommodate evictees for no more than six months – had become permanently occupied. This meant further TEA facilities had to be acquired.

Section 26(3) of the Constitution says no person may be evicted from their home without an order of court after considering all the relevant circumstances. Schaefer concedes that there are circumstances where a property owner may have to be patient in exercising property right. Still, a property owner “cannot be expected to provide free housing for the homeless, or for those at risk of homelessness, for an indefinite period.”

CoJ’s failure to collaborate with the DHA has allowed the situation to drag on for years, with the City relinquishing its obligations to provide emergency accommodation by expecting the DHA to deport illegal foreigners.

The illegal occupants have little incentive to provide the City with accurate information, given the threat this poses to their ability to live rent-free.

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