Municipalities have a constitutional duty towards the people living in this country and they cannot simply turn a blind eye to the homeless and apply the rigidity of the “move out from my land” approach.
This is according to an acting judge of the Gauteng High Court, Pretoria, in a case where the Madibeng Local Municipality in the North West wanted to evict homeless people who moved on to council land earmarked for low cost housing.
The judge, in coming to the aid of the homeless, said this court finds it difficult to grant an eviction order without a plan that will ensure that the destitute do not continue to suffer humiliation and maltreatment at the hands of the government (applicant) -- a violation of their fundamental rights as entrenched in the Constitution.
While turning down the eviction order, Acting Judge N Ntlama-Makhanya made it clear that her order does not bar any further attempts between the municipality and the homeless to find alternative ways to resolve the impasse on accessing land.
The judge said this court faced the historic manifestation of the legacy of this country regarding lack of access to land. This touches on many of the fundamental rights and responsibilities envisaged in the Constitution.
“The question of access to land has become a contested terrain in South Africa today. The applicant (municipality) as a ‘coal face’ of governance in the local sphere carries the brunt of responding to the imperatives of the new dispensation in addressing the historic imbalances in this area of contestation,” the judge said.
The land in question is at Letlhabile in the North-West.
The invasion came after the municipality invited bids via the tender system to be made by residents in the area for the low-income earners to purchase stands for possible building of their homes.
The price for each of the stands was valued between R40 000 and R50 000 depending on the valuation and size.
While the process was under way for the transfer of the land to successful bidders, homeless people invaded the land in around June 2019.
The occupied land is near an established community that has become agitated by the unlawful occupation which also extended to illegal connections of services. The said community had threatened the municipality to urgently make a plan.
The ward councilor and the police tried to engage with the occupiers only to be met with aggression and violent conduct. The municipality accused the land invaders of “queue jumping” to get preference in the allocation of houses.
The homeless, represented by one of their own in court, said they have been staying there for a few years now. They did not deny the unlawful occupation of the land but justified it on their desperation to access housing.
They contended that due to the way the bidding processes were administered, they were of the view that the municipality was preferring some people over others to be allocated stands.
Judge Ntlama-Makhanya noted that the homeless were represented in court in person by one of their own, a non-legally trained person. On the other hand, the municipality was represented by highly trained advocates
“I am raising this issue to indicate what I consider as an ‘elephant and ant’ approach which indicates the unequal legal and constitutional power imbalances between the parties,” the judge said.
The respondents were “left at the altar” by their representatives (who withdrew) and a lay person appeared in person which limited his ability to engage meaningfully on the interpretation and application of the law, she said.
The respondents found themselves in a position where they had to deal not just with pure legal language but the constitutional language of the courts regarding the interpretation of the principles of the new dispensation, she added.
The judge said it is common cause that the municipality is the face of the general system of governance in concretising the gains attained during South Africa’s democratisation in 1994.
“It is at the forefront in ensuring the delivery of quality basic services as in this case because of its direct contact with the general citizenry and it receives concerns about the lack of compliance with fundamental principles of the new democracy.”
While the judge did not condone “self helping” to land, she said the municipality also has responsibilities.
“I am finding it difficult for an organ of state with an entrusted responsibility to reject its own citizens due to alleged unlawful conduct.
“It is evident that the unlawful occupiers appear to be outcasts who are not entitled to the quality of standard of living as is the case with other human beings.”
While there is no definite plan in place where to relocate them to, they cannot be evicted, the court concluded.
Pretoria News