Last week, the Constitutional Court delivered a ground-breaking judgement which stipulates that judges may not grant an eviction order if it will leave people homeless. The Concourt made this decision after hearing a case where land occupiers had “agreed” to be evicted, but their consent was not informed and therefore was not considered valid by the Concourt. 

In the wake of that judgement, speculation has mounted that landowners will now have to foot the bill for temporary alternative accommodation – a type of temporary housing for evicted people who may otherwise be homeless – or that tenants will take advantage and no longer pay rent.

We dispel some of these myths using what we already know when it comes to evictions and temporary alternative accommodation.

1. Landlords have to fork out for alternative accommodation
In 2011, a seminal judgement delivered by the Concourt made history: the court found that municipalities are responsible for providing temporary alternative accommodation even when a property is privately owned.

At the time, 86 residents at a building owned by Blue Moonlight Properties had been ordered to leave following an eviction order by the courts. The City of Johannesburg, the Concourt said, was obligated to find temporary alternative accommodation for residents who would become homeless because it has a constitutional obligation to do so.

“The City’s housing policy is unconstitutional in that it excludes people evicted by a private landowner from its temporary housing programme, as opposed to those relocated by the City. Blue Moonlight cannot be expected indefinitely to provide free housing to the Occupiers, but its rights as property owner must be interpreted within the context of the requirement that eviction must be just and equitable. Eviction of the Occupiers would be just and equitable under the circumstances, if linked to the provision of temporary accommodation by the City,” the Concourt said in the judgement.

The good news for property owners across South Africa: it’s not your responsibility to provide housing for evictees.

2. There are no norms and standards for alternative temporary accommodation
Generally, guidelines for alternative temporary accommodation are vague, which means that, yes, people could – and often do –  end up living in unhealthy conditions after an eviction.

In a long and protracted court battle, residents at Ekuthuleni shelter in Hillbrow, Johannesburg, have challenged the “house rules” there. In Ekuthuleni, families were separated by gender, and there was a daily lock-out rule where residents could be locked out during the day. Some of the residents came to live in Ekuthuleni after being evicted in the Blue Moonlight case.

A court found that the gender separation rule and the lockout were unconstitutional but reasonable because it is state accommodation. The Socio-Economic Rights Institution (SERI) is challenging this finding at the Concourt.

Other standards and norms that have been developed, as SERI has noted, include: 

1. There must be a measure of tenure security (Port Elizabeth Municipality v Various Occupiers)

2. The structure must have access to water, basic sanitary services and refuse services. It should also be waterproof and able to withstand the elements. (City of Johannesburg v Rand Properties)

3. The location of the alternative accommodation should be “as near as possible” to the area residents were evicted from (City of Johannesburg v Blue Moonlight Properties)

4. Gender segregation and lock-out is unconstitutional, but is currently allowed in state housing pending outcome from Concourt (Dladla v City of Johannesburg)

In a judgement delivered at the Concourt in 2009, Justice Zak Yacoob gave further directions on how temporary alternative accommodation should be built. He said that residents in Joe Slovo informal settlement in Cape Town were to be placed in a Temporary Relocation Unit (TRU) that would be at least 24m² and fire-resistant.

“All the families to be relocated will be provided with alternative accommodation at the expense of the state. This alternative accommodation is situated at Delft, about 15 kilometres away. Each family will occupy a TRU which is at least 24m², which will probably be provided with electricity, and the walls and roofs of which will be constructed of synthetic protective material. This material is fire-resistant. This will mean that the frequent deaths and destruction caused by fire in the Joe Slovo settlement will be averted,” Yacoob said.

3. People get a free-pass to housing
While evictees may have access to housing after an eviction, it does not mean that they won’t have to pay rent. The City of Johannesburg has proposed that residents pay a fee to contribute to the shelters.  SERI, in a submission to the province, said that it may be reasonable for residents to pay, but it should not impact their security to a home.

“While we have no in principle objection to payment, we are concerned about the vagueness of the determination of costs,” SERI said.

Temporary alternative accommodation in some shelters around Johannesburg only lasts for 6-12 months, meaning that after a year, a resident could once again be without shelter. They would then have to find a new place to stay.

4. Jumping the housing queue
Temporary alternative accommodation is not permanent and, often, it’s not built for permanent tenure either. The state has in numerous cases, including Blue Moonlight, accused land occupiers of “jumping the queue”: people occupy land or deliberately get evicted to access housing faster.

However, the Supreme Court of Appeal has found that 400 residents in Modderklip in the East Rand had occupied land because they had “nowhere else to go”. The courts have also ruled out “jumping the queue” as an argument because people who would be homeless as a result of eviction are given temporary accommodation and not a home. 

5. ‘Illegal land occupiers’ shouldn’t get housing
There is yet to be a judgement which states that land occupiers can’t have access to housing because they’re occupying land that already belongs to someone else.

Currently, the courts have not differentiated between who is deserving of alternative temporary accommodation and who is not on the basis of “illegal occupation”. The most recent Concourt judgement only says that judges cannot order the evictions of anyone who would be rendered homeless as a result.

“Courts must be alive to the risk of homelessness and the issue of joining the local authority to discharge any duties it may have. All of this may appear unduly burdensome but it is necessary if one has regard to the fundamental importance that a person’s home has to the realisation of almost all human rights,” the Concourt said.