Magistrate failed to consider that undocumented foreigners would be rendered homeless, High Court rules.
The Western Cape High Court has set aside an eviction order for occupiers of a City of Cape Town property in Observatory. Archive photo: Ashraf Hendricks / GroundUp
The Western Cape High Court has set aside an order obtained by the City of Cape Town to evict the occupiers of a property in Observatory, formerly a circus school. The case has been sent back to the magistrates’ court for reconsideration. The City had offered its Safe Spaces as alternative accommodation, but under its rules “most of the unlawful occupiers”, who are immigrants, could be left homeless if undocumented. The court ordered “meaningful engagement” between the City and the occupants to find suitable accommodation.
A protracted court case between the City of Cape Town and the occupiers of a property in Observatory, previously leased for use as a circus school, has hit another legal snag.
The local magistrates’ court issued an eviction order in May 2023, but some of the occupants (who had called themselves the Willow Arts Collective) appealed. Now, two judges of the Western Cape High Court have set aside the eviction order, directing that the matter be remitted to the magistrates’ court for further consideration.
Acting Judge Michelle Adams with Judge Tandazwa Ndita concurring raised an issue around undocumented foreigners, who in terms of the law cannot be accommodated in emergency or transitional housing provided by the City.
This meant that some of the occupiers would be rendered homeless by the eviction, a fact not properly considered by the magistrate who granted the eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
The City entered into a lease in 2006 in which a trust would pay a nominal rental to run the South African National Circus School. The lease was to expire in January 2016.
The City attempted to cancel the lease in 2015, issuing notices to vacate. These were ignored.
In 2018, City officials inspected the property and discovered that the circus was no longer active and the trust had unlawfully leased the property to about 20 people. The officials reported that the “owner has turned the premises into a business where people are paying him rent to stay”.
In 2019, the occupiers were served with notices to vacate and an eviction application in terms of PIE, which was set down to be heard in the magistrates’ court.
The City made two initial offers for alternative accommodation, but both were rejected by the occupiers because of concerns over crime, the distance from Observatory, access to job opportunities and fears of potential xenophobic violence.
The City then offered accommodation at one of its Safe Spaces. This was also rejected.
The magistrate, after considering the personal circumstances of the occupiers cited in the proceedings before him (although this list was and remains fluid), and the alternative accommodation offered by the City, ruled that their eviction was just and equitable and ordered their eviction by 31 July 2023.
Some of the occupiers appealed the ruling in the Western Cape High Court. They argued that the Safe Spaces shelter they were offered only provided a locker, with no adequate storage for their personal possessions and their “tools of the trade”. Its lock-out rule was prejudicial, forcing them to spend the best part of the day out on the streets. The segregated dormitories violated their right to dignity and interfered with their family life.
They applied to adduce further evidence on appeal so the court had a “fuller and bigger picture” of life at Safe Spaces and their personal circumstances.
The judges allowed new evidence on the occupiers’ updated personal circumstances but refused to hear further evidence on their grievances over Safe Spaces.
Turning to the merits of the appeal, Judge Adams (who penned the ruling) said it was common cause that the procedural requirements for the eviction had been complied with, yet courts had the discretion to decide “what was just and equitable”.
The judge said it was apparent that the magistrate “could have benefitted from additional information and should have called for such information”.
“One instance that comes to mind is that a large number, in fact most of the unlawful occupiers are foreigners … The magistrate was alive to this fact, but he did not follow up or call for information regarding their legal status,” said Judge Adams.
She said this was particularly important as the proposed alternative accommodation ultimately deemed suitable by the magistrate effectively barred entry to undocumented foreigners, “and this opened a real possibility of rendering some or all of the foreigners homeless which the provisions of PIE sought to prevent”.
Sandiso Phaliso and Tori Newby 30 Aug 2024
Judge Adams said even those who were not foreigners were “pursuing professions which require tools and which they would not be able to store at the shelter. There is also a couple who would not be allowed to share the same space in the facility”.
Another concern was that some had children and the facility was not family friendly.
Judge Adams said the magistrate had failed to ask pertinent questions, especially with regards to foreigners and families and had not properly considered the rules of the shelter, which only allowed a maximum stay of six months.
“The undignified way vulnerable individuals who find themselves at the wrong end of an eviction order are treated and the type of accommodation offered has been a source of concern and criticism for years. In this matter, the lack of suitable and appropriate accommodation will have the result of separating families,” she said.
She said it would prevent or make it difficult for those earning an income to keep doing so.
While the City had a right to its property, the eviction would have severe consequences for the occupiers and the magistrate had been wrong in not distinguishing between the respective individuals and the significant differences in their personal and employment circumstances. He should have called for additional information.
Judge Adams referred to a Constitutional Court judgment which pronounced on the rules imposed at shelters in Johannesburg, including the “lock out rule”, which requires people to leave the shelter during the day, and had deemed them unconstitutional.
She said this case raised the same issues.
She upheld the appeal and set aside the eviction order.
She directed that the matter be remitted to the magistrates’ court for reconsideration, with specific instructions “to ensure and oversee a meaningful engagement with the City of Cape Town and the appellants to find suitable accommodation”.
She also directed that the City compile a housing report detailing the temporary accommodation or transitional housing that it would make available to occupiers, the location, and the date it would be made available.
This article was originally published on GroundUp.
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