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How magistrates and local government are failing to uphold the rights of the Children in eviction matters

The Constitution and the legislation protect vulnerable people (especially children) from being evicted into homelessness. Section 26 of the Constitution seeks to prevent arbitrary evictions. To give effect to that right the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE) was enacted.  Germane to this analysis is section 4 which prescribes that an eviction order should only be granted if it is ‘just and equitable’. The considerations which the court must have regard to a priori determining that an eviction order is just and equitable are the rights and needs of the “elderly, children and disabled people”.

The trite principle regarding evictions that have emerged from the jurisprudence of the courts is that it is only just and equitable to evict unlawful occupiers who would be rendered homeless as a result of the eviction if alternative accommodation is provided. The duty to provide alternative temporary accommodation for evicted people falls squarely on the local government authority. This is regardless of who the evictor is, be it a state or private entity. This is because, as the Constitutional Court so aptly state, “To differentiate between emergency housing situations caused by eviction by reference to the identity and purpose of the evictor [is] unreasonable, since it matters little to a homeless person what the cause of her homelessness is. Her need is the same” . Corollary thereto, it means that “in an eviction proceeding which is likely to trigger constitutional obligations on the part of a local government authority (i.e. municipality) to provide emergency accommodation, the local authority will be a necessary party to the litigation, and must be joined”.

In a nutshell, a local government authority has a constitutional duty to provide alternative accommodation to people who are likely to be rendered homeless as result of an eviction. This means that the local authority must have in place an emergency housing plan that caters for such instances. If an emergency housing plan does not cater for the most desperate and vulnerable it will not pass constitutional muster.

One factor constituting a component of the ‘just and equitable’ analysis in terms of the PIE Act is the rights and needs of the child. Section 28(1) (c) of the Constitution provides an unqualified right for every child to shelter. Where parents are unable to shelter their children, the court in Grootboom stated that the obligation falls to the State  . The principle is that the obligation to provide shelter rests primarily with parents and families and alternatively, if parents cannot then upon the state. However, it does not mean that ‘the State incurs no obligation in relation to children who are being cared for by their parents or families’. The State must provide the legal and administrative infrastructure necessary to ensure that children are accorded the protection contemplated by section 28.

At an international level, the Convention on the Rights of the Child, 1989 , in Article 27, obliges State Parties to take appropriate measures to assist parents and others responsible for the child to implement the child’s right to an adequate standard of living, and in case of need, provide material assistance and support programmes, particularly with regards to, among other, housing. At a regional level, the African Charter on the Rights and Welfare of Child, 1990  provides in Article 20 that the primary obligation of parents is to secure conditions of living necessary to the child’s development and in case of need, State Parties should take all appropriate measures to provide, material assistance and support programmes, particularly with regard to, among other, the right to housing.

Having noted the preceding, it is clear that no child should be rendered homeless. This constitutional obligation is fortified by section 28(2) which provides that the best interests of the child are paramount in any matter concerning the child. Therefore, it is logical to argue that in an eviction matter which is likely to render the parents of a child homeless, corollary thereto, the child, the courts must be loath to grant an eviction order unless alternative accommodation can be provided by the relevant local authority. This is not to argue that children should be used as ‘shields’ by parents when they have to be evicted from land they have hitherto occupied unlawfully. However, my thesis is that the “best interests” (section 28(2)) of the child requires that where an eviction is likely to result in homelessness then alternative accommodation has to be made available. This is because a child has an unqualified right to shelter and a weaker but larger right of access to adequate housing.  Surely, an eviction order which is likely to render a child homeless cannot be said to be just and equitable.

Therefore, instances where we hear that magistrate courts are handing down eviction orders without having due regard to the constitutional framework as enunciated by superior courts, is disturbing. The doctrine of stare decisis requires lower courts to follow precedents set by the higher courts. Thus, it will be failing, and violating the rights of children, if magistrates are to make an eviction order evincing a scant regard of the best interests of the child.

Thus, if the facts in the Walmer Estates matter as captured by Ground-up , are accurate then the court as well as the local authority have acted unconstitutionally. The facts in that matter are that a magistrate court on 17 June 2014 signed an eviction order. This order was granted not withstanding that the occupiers, who also include children, would be rendered homeless and the City of Cape Town would not provide alternative accommodation. Moreover, it would appear that the rights and needs of the children (as a vulnerable group) were not given the due consideration they deserve. Consequently, an eviction of such a nature will be invalid and must be set aside. This is firstly because of the non-compliance with the “just and equitable” requirement of the PIE Act, and secondly, the local authority must have been a necessary party to the litigation since the eviction was likely to result in homelessness.

Peacemore Mhodi LLB, LLM (UKZN)
Research Associate to Commissioner Ameermia
South African Human Rights Commission

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