Alberts Farm evictions: City of Joburg and Chief of Police acted unlawfully

SAPS and JMPD confer with friends of the homeless in the centre of Alberts Farm on the day of evictions. The SAPS has said in court papers that it was present only to ‘monitor’ an inspection by the city of the park. (Photo: Mark Heywood)

By Naledi Sikhakhane and Mark Heywood

18 Sep 2022

A small victory for the 33 homeless Alberts Farm Conservancy residents as they settle for compensation of R1,800 each after their shelters were ‘unlawfully’ destroyed by ‘law enforcement’ in violation of a court order permitting them to live there.

The Gauteng Local Division of the High Court approved an order on Thursday 15 September that states that the City of Johannesburg Metropolitan Municipality and the Chief of Police of the JMPD acted unlawfully when they “dispossessed” 33 homeless people living in the Alberts Farm Conservancy (AFC).

The order also states that the eviction was “unlawful in terms of section 25(1) of the Constitution and section 26(3) of the Constitution, read together with section 8(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.”

However, the court hearing against two of the respondents, the Minister of Police and the Gauteng Commissioner of Police, continued after the SAPS, in an answering affidavit, had claimed that they had no direct role in the evictions, were only there to monitor and that the homeless people’s legal application was an “abuse of process”.

A SAPS vehicle parked in the heart of AFC on the day of the evictions.
(Photo: Mark Heywood)

In an argument before Acting Judge Manyathi the SAPS attempted to absolve itself from responsibility by claiming it just “observed” the JMPD operation and was not a part of it.

However Kelly Kropman, attorney to the homeless, argued that the SAPS could not have believed that; particularly as what was meant to be an “inspection” turned into a “raid and seizure” and because the law enforcement groups arrived armed and with trucks ready to take people’s belongings.

Kropman argued that if indeed the SAPS was there to prevent illegal activities during the operation then the illegal dispossession should have been stopped by SAPS, especially as residents repeatedly advised the police about the standing court order.

Unidentified armed guards, with uniforms marked Tactical Response, guarded a private security firm involved in demolishing shelters and removing property.
(Photo: Mark Heywood)

Instead, Kropman argued that SAPS had failed to protect the homeless people stating in their Head of Arguments that:

“Inhabitants of South Africa depend on the police service to protect them from violence and crime. JMPD undertook a violent operation to steal the Applicants’ possessions and SAPS, on their version, observed in approval of this operation. The Applicants had no way of approaching any police service to protect them from harm. The police have a duty in terms of section 205(3) of the Constitution to prevent, combat, and investigate crime.”

Occupiers of Alberts Farm Applicants' Heads of Agrument by janet on Scribd

Counsel for the police would have none of it.

Adv Zwelakhe Mokatsane told judge Manyathi “I’ll call them squatters as they have no right to be in the park.” Arguing that “what SAPS did that day should be applauded” he insisted their role was only to monitor and that the “court was being asked to circumscribe the powers of a constitutional body”.

Misinterpreting the famous Biowatch judgment, and quoting from former Constitutional Court justice Albie Sachs, Mokatsane ended by asking the judge to impose a costs order on the “squatters” even though they were indigent, as the litigation was “vexatious, frivolous and professionally unbecoming”.

After a fractious afternoon judgment was reserved.

Pattern of continuing violations against the homeless

Homelessness is rife in Johannesburg. In some communities non-profit organisations assist homeless people with basic sanitation, shelter, and food; but, say activists, arbitrary eviction sets the homeless and the friends of these communities back.

With the current state of the economy, even big organisations such as the Red Cross Society are struggling to garner donations and help as many as they previously could, so a dispossession like this can leave the homeless destitute with little to no assistance.

SAPS and JMPD confer with friends of the homeless in the centre of AFC on the day of evictions. The SAPS has said in court papers that they were only present to "monitor" an inspection of the park by the City.
(Photo: Mark Heywood)

The Covid-19 pandemic exacerbated homelessness as people lost their means of income, especially those in the informal sector. Increasingly more people have been left homeless or without formal homes and with no choice but to occupy spaces such as those on AFC.

Even before Covid-19 research, including by the Human Sciences Research Council, has estimated that up to 200,000 people are homeless in South Africa – mostly situated in the urban areas – due to internal economic migration. The Johannesburg Homeless Association (JHA) estimates the numbers in Johannesburg at up to 20,000 people.

What occurred at AFC, both in August 2021 when four homeless men were first evicted and then granted a court order allowing them to continue to reside in the park, and on 30 August 2022, when a much larger group (33 people) were dispossessed again, happens frequently to many communities such as this.

Read: High court strikes down 'unlawful and unconstitutional' eviction of homeless people from Alberts Farm — City of Joburg to help restore destroyed dwellings

Read: Police move in on homeless people in Alberts Farm Conservancy despite court order

In their Heads of Argument Kropman Attorneys, the law firm representing AFC residents, claim that the dispossession violates a plethora of Constitutional rights, including to privacy, dignity, property and housing. They refer the Court to a similar 2018 case against the City of Johannesburg (Ngomane & others v City of Johannesburg Metropolitan Municipality & another), whose judgment was written by then SCA President Mandisa Maya, in which a group of homeless people were awarded compensation to “protect the applicants and others similarly situated against violations of their rights to dignity and property…” In that case Maya declared:

“that the confiscation and destruction of the applicants’ property was a patent, arbitrary deprivation thereof and a breach of their right to privacy enshrined in s 14(c) of the Constitution, ‘which includes the right not to have … their possessions seized’. The conduct of the respondents’ personnel was not only a violation of the applicants’ property rights in their belongings, but also disrespectful and demeaning. This obviously caused them distress and was a breach of their right to have their inherent dignity respected and protected.”

Ironically, in making her argument Maya also said that “hopefully in future [the award of damages] will have the desired effect and prevent a recurrence of conduct of the kind in question”.

It clearly didn’t.

In the end the R1,800 settlement was lower than the R5,000 which the application had initially sought. However, given their dire circumstances, the homeless applicants voted to accept the offer, which must be paid before 28 September.

In the meantime most of them have also been provided with a tent and sleeping bag as part of an interim agreement made with the City within a day of the evictions.

The settlement agreement also sees the City and JMPD pay the lawyers’ costs.

Private law firm commended

The 33 homeless residents were represented pro bono by Kelly Kropman of Kropman Attorneys. Kropman’s firm won the respect and trust of the homeless people, many of them traumatised, with their tireless and rapid work to put together the affidavits and legal arguments about the JMPD and SAPS raid.

In less than two weeks, working hand in hand with a small committee of concerned residents, a local church and the JHA, they were able to track down all the homeless people who had been evicted, compile lists of stolen and destroyed property and gather evidence.

In a small corner of Johannesburg it was a model of public interest litigation, carried out with urgency and integrity.

Lisa Chamberlain, the Executive Director of the Environmental Justice Fund, commended the fact that “a small practice like that has limited resources yet immediately recognised the injustice and was prepared to step up and run an urgent”.

She said that while the R1,800 compensation might seem like a small amount “litigation can be valuable in all sorts of other ways as well, like recognising Matthew Tamodi (the first applicant) and other residents of the park, and sending messages to bullies who don’t respect people’s dignity”.

Chamberlain, who has been a public impact lawyer for many years, added: “I think it’s really interesting the kind of role that ‘ex-NGO lawyers’ like Kropman and Michael Power trying out different models of practice – are playing in social justice struggles.”

Unfortunately, although there has been justice of sorts for the AFC homeless it seems that the JMPD and SAPS are undeterred.

Maverick Citizen has received reports of continuing unlawful evictions, destruction and theft of property in suburbs of Johannesburg where the homeless have less protection from activists and residents with a conscience, sense of empathy and compassion.

For example, on Friday 16 September JHA received reports of police destroying property around Zoo Lake and Rosebank, leading the JHA to say it is seeking an urgent meeting with the MMC Public Safety and the heads of JMPD and their regional heads. According to Mary Gillett-de Klerk of the JHA “This is violence upon the vulnerable. It HAS to STOP!” DM/MC

Disclosure: Mark Heywood is an advocate for the homeless in AFC. He also witnessed the 30 August eviction and has deposed an affidavit in the ongoing legal proceedings.

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South Africa

Pattern of continuing violations against the homeless

Private law firm commended