Tuesday, November 29, 2022

Evictions and emergency housing: Should municipalities dig into their own pockets?

Estimated reading time: 4 minutes

  • Evictions can experience immense delays due to the provision of alternative housing.
  • The Constitutional Court made it clear that occupiers can enforce the right to alternative housing against the state and not against private individuals.
  • All three tiers of government (national, provincial and local) are obliged to provide suitable housing.
  • The municipality’s policy (or practice) of relying mainly on funding from the provincial government in order to provide emergency housing is unlawful.
  • The Supreme Court’s ruling makes it clear that municipalities must use their own financial resources to make emergency housing available to people in need and who have been evicted.

There are often immense delays in eviction proceedings due to differences over who is responsible for providing alternative housing to an evicted occupier.

This issue was, however, addressed in detail in the case of Baron and Others vs Claytile (Pty) Ltd and Another (CCT241/16) [2017] ZACC 24. The Constitutional Court ruled that the ultimate responsibility lies with the state, and not the landowner.

According to Section 26 of The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), everyone has a right to have access to adequate housing and the government must take reasonable measures within its available means to continuously ensure that this is realised. The Constitutional Court made it clear that occupiers can enforce this right against the state, and not against private individuals.

Read more about how evictions should be done here.

Municipal obligations

All three tiers of government (national, provincial and local) are obliged to provide suitable housing. This is especially relevant to municipalities. The Constitutional Court ruled that the municipality cannot shy away from this responsibility by indicating that no temporary alternative housing is available. Municipalities are obligated in terms of both the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) and the Constitution to provide such housing.

In order to meet this obligation, the minister of human settlements, in terms of the Housing Act (Act 107 of 1997), introduced a national housing programme and published a National Housing Code that, inter alia, contains the national housing policy. The Housing Act states that the Housing Code is binding for both provincial and local spheres of government.

Part 3 of the Housing Code comprises an emergency housing programme that is primarily aimed at providing temporary relief to people in emergency situations, as defined in the code. Assistance in the form of a grant is made available to municipalities (after submitting an application to the province), in order to swiftly address emergency situations by, for example, making land or housing available.

Read more about the legal requirements for human settlements here.

Failure to provide housing

It often happens, however, that the municipality fails to submit the application for a housing grant and then, when a situation does arise, simply states that no funds are available to provide emergency housing.

As in the Baron case, the Western Cape High Court recently ruled in the case of Eric Lolo and Another vs Drakenstein Municipality and Four Others, that the municipality may not rely solely on the funding from the provincial government, but is legally obligated to use its own financial resources to provide emergency housing.

The facts in the Lolo case

Mr Lolo (who had already reached the age of 60) lived and worked on a farm in Wellington until he was laid off in 2014. His daughter, Bernice Fransman, who had a minor child, was unemployed at the time of the application to the Cape High Court.

During 2015, the farm owner launched eviction proceedings against Mr Lolo and Ms Fransman, as Mr Lolo’s right of tenure had come to an end along with his employment on the farm. If the eviction order were to be granted, Mr Lolo and his daughter (the applicants in the Lolo case) would allegedly have had nowhere to go.

The applicants mainly wanted the municipality to disclose to the Court the manner in which it implements its obligations to provide emergency housing to people facing eviction and distress. The applicants also challenged the municipality’s emergency housing policy and housing programme, as well as the implementation thereof.

Read more about how the law states regarding trespassing here.

The Supreme Court held that:

  • The municipality’s acts conflicted with its constitutional and statutory obligations since it failed to provide emergency housing to people in its jurisdiction.
  • The municipality’s policy (or practice) of relying mainly on funding from the provincial government in order to provide emergency housing is unlawful.
  • The municipality is legally obligated to use its own financial resources to make reasonable provision for emergency housing.

No more excuses

Municipalities can no longer hide behind the excuse of an alleged lack of housing or funding by the provincial government. The Supreme Court’s ruling makes it clear that municipalities must use their own financial resources to make emergency housing available to people in need and who have been evicted, and that no more excuses will be accepted for non-compliance with the municipality’s constitutional and statutory obligations. – Clarissa Pienaar, Moolman & Pienaar Incorporated

For more information, contact Clarissa Pienaar on 033 032 0421 or clarissap@mmlaw.co.za.