In light of the Covid-19 health pandemic, it is appropriate to highlight the challenges that government, businesses, landlords, tenants and individuals are facing.
Some of these challenges are exacerbated by overcrowding, strained services and l lack of income for businesses and individuals resulting in the inability to afford rent or to meet other financial obligations. However, this does not allow for property owners to act outside the provisions of the law and resort to “self-help” in achieving their goals.
In terms of Section 36(1) of Alert Level 3 Regulations, provided in terms of Section 27(2) of the Disaster Amendment Act of 2002 as well as the judicial directives; a moratorium has been placed on evictions.
Accordingly, in the absence of an eviction order expressly stating that it is just and equitable to do so, demolitions of homes cannot be carried out lawfully.
This is a situation that will prevail during both Alert Levels 3 and 4.
In the case of Community of Hangberg & Ginola Phillips vs City of Cape Town & Mayo Dan Plato (7837/2020)  ZAWCHC 66 (15 July 2020), the Western Cape High Court was called to reaffirm this position.
Community of Hangberg & Ginola Phillips vs City of Cape Town & Mayo Dan Plato
It was alleged that Mr Ginola Phillips (“the Second Applicant”) unlawfully erected a wendy house structure on an open piece of land owned by the City of Cape Town (“the First Respondent”) in the area occupied by the Community of Hangberg (“the First Applicant”).
On or about the 11 June 2020, the officials of the First Respondent demolished the wendy house structure. The Second Applicant with the assistance of the of the First Applicant, managed to rebuild the wendy house structure within two days and took occupation thereof.
On or about 19th June 2020, officials from the First Respondent returned to property of the Second Applicant. In his presence, they proceeded to demolish the structure once more.
It was argued that on both occasions, the actions of the First Respondent acting through its officials were tantamount to an unlawful eviction of the Second Applicant from his property without any legal process and that the relevant officials resorted to self-help.
The Respondents contended that the First Applicant was an unlawful occupier in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, no. 19 of 1998 (“ PIE Act”) and the First Respondent had not given any consent for the Second Applicant to erect his structure on the property nor any legal right to do so.
It is trite law that the eviction process in the event of a land evasion is governed by the PIE Act, accordingly the First Respondent in this case is bound by it. The PIE Act safeguards fundamental constitutional rights, such as the right to housing, dignity and the right against arbitrary deprivation of property amongst others.
Therefore, a failure to deliver proper notice and follow the correct process of the law as envisaged by the PIE Act, is tantamount to trampling the bill of Rights.
The Respondents attributed their failure to follow due process to not having access to the Courts due to the Covid-19 lockdown directives which restrained eviction proceedings.
The Court held that the Respondents actions and conduct in demolishing the relevant wendy house structures were unlawful, unconstitutional, and amounted to an unlawful eviction and violation of Section 36(1) of the Alert Level 3 Regulations, made in terms of Section 27(2) of the Disaster Amendment Act of 2002. Therefore, the Respondents were ordered to rebuild a similar structure for the Second Applicant
This case serves as a reminder to Land and property owners that they should always comply with a reasonable and lawful process when they intend on evicting alleged unlawful occupiers.
The Covid-19 health pandemic has brought about unprecedented challenges and hardship that will have long lasting effects on government, businesses, property owners, and property dwellers.
However, the above decision does not mean that unlawful occupants should not be mindful of their duties towards the property owners in terms of an agreement of lease and the landowners in terms of a possessory claim.
Furthermore, the above provisions as per the relevant regulations do not restrict litigants from lodging eviction proceedings against unlawful occupants, it simply entails that the eviction order, if granted, will be effected once the moratorium has been uplifted.
The only exception to the above is when a court grants an eviction order and the order expressly states that it is just and equitable that the enforcement of the order can be carried out lawfully and at present, during Alert Level 3.
Written by Petrus Khumalo, Candidate Attorney, SchoemanLaw Inc.