Government housing - a just eviction delayed is justice denied

For two years, my office has been trying to obtain justice for these families, who have waited many years to benefit from government housing, and who were robbed of it at the last minute. 

For two years, our efforts have been frustrated by a broken court system, and a legal framework for evictions which, despite noble intentions, has become absurd.

In late 2021, just weeks after being elected, I got an email from a lady called Daleen*, writing to me on behalf of her mother-in-law, Adel*. She told me that the night before Adel and eight other families were to get the keys to their long-awaited new homes in a government housing project in the Belhar-Pentech development, the doors of their new homes were smashed down and a group of illegal occupiers moved in. 

Daleen’s email conveys her desperation at the time: “Sir I plead with you to please help … in 2 weeks it is Christmas and nobody works that time. My mother-in-law has been on the waiting list for more than 20 years and she is 67 years old already. Please help.” 

Once I had verified the facts, my office launched urgent eviction proceedings to try to restore the homes to their rightful beneficiaries. 

According to South Africa’s eviction law, called PIE (the Prevention of Illegal Evictions and Unlawful Occupations Act), once a structure is occupied, eviction proceedings must be brought before a court. 

In eviction proceedings, the law requires our courts to determine what is “just and equitable” in terms of offers of alternative emergency accommodation, on the rationale that no person should be left homeless by eviction. 

For this reason, the focus mostly tends to be on the evictees and their personal circumstances.

But in many cases, especially building hijackings or coordinated invasions, there is an important voice often missing or unheard by our courts: that of the lawful housing beneficiary who is losing out on their allocated housing opportunity after waiting patiently for the state to deliver. Which is precisely what happened here.

The Pentech-Belhar development is “free” housing aimed at the poorest and most vulnerable. The night before Adel, Daleen and other families were due to move in, a cynical hijacking unfolded, led by people already living in the area.  This was a relocation by people already in homes elsewhere in the neighbourhood, who decided to take new homes that were not theirs. 

That was two years ago, which is how long this matter has hobbled along in the Western Cape Division of the High Court in Cape Town, to the detriment of those who had their new homes snatched away at the last moment. Much of the delays come down to last-minute legal representation; changes no doubt used by the unlawful occupants to delay justice.

Eleventh-hour changes to counsel; failure to secure legal representation despite extensive notice; help from the City to secure legal representation; and now another lengthy delay due to newly appointed counsel. 

When the court mandated that the unlawful occupants talk to the City about their personal circumstances, they resisted, causing yet another delay. 

All the while, the argument the unlawful occupants are making to the court is that, despite admitting to having illegally seized the units, they have now put down roots, with tended gardens and children going to school in the vicinity, and therefore have no intention of leaving. 

They will only leave, they say, when the state (the City) gives them an equal housing opportunity somewhere else.  

They are now using the delays of the court process to their benefit, saying that the length of time they’ve been there (rent-free and with municipal services at no cost) somehow converts their illegal action into a right to stay permanently.

As a matter of principle, the City is not offering alternative emergency accommodation in this matter. Not only because the facts show they will not be rendered homeless, and have the capacity to go back to where they came from, but more importantly, we are arguing that the unlawful occupants cannot be elevated above the many thousands on the waiting list for state-subsidised housing. 

Housing demand far outweighs availability, not only in Cape Town, but in the country as a whole. 

The City has more than 300,000 people lawfully waiting for state-subsidised housing, many of whom are faced with equally dire, if not worse, personal circumstances.

Sadly, the people who lost out on their new homes are, of course, not before the court and their voices go unheard. 

They are represented by the City, which the courts tend to simply view as “the state”, without enough consideration for the affected families and parents, like Adel, and their stories.

As it stands, there is still no court date set to hear this eviction matter, and the City is now resorting to pleading with the Acting Judge President for a priority date in the new year to have the matter heard. 

By this time, the legal system will have unwittingly permitted the illegal hijacking of these homes for two and a half years.

The length of time it takes to secure an eviction order – even in clear circumstances such as these – is an injustice. One of the biggest policy challenges of our time is to enable more private-led affordable housing in the face of rapid urbanisation and dwindling state grant funding.

This is what Cape Town is working to achieve by releasing more of our well-located land parcels for affordable and social housing. We’re also supporting “micro-developers” who are already developing much more affordable rental opportunities than the state could ever deliver.

While the City focuses on new ways to increase affordable accommodation, our courts need to ensure that justice is not delayed in eviction proceedings and that the rights of evictees are balanced with those waiting lawfully to access state housing opportunities. 

I hope this time next year, these families from Belhar will celebrate Christmas in their own homes – rightfully restored to them. DM

*Given the conflict between these two groups, the rightful beneficiaries and the unlawful occupiers, I have changed the names for the protection of their identities.