Property rights stymied
OWNERS IN LIMBO: CITY HAS NO HOUSING FOR ILLEGAL OCCUPANTS COJ is expecting home affairs to deport mostly foreign evictees.
In a case filed with the Johannesburg High Court, the owners of two illegally occupied Berea buildings say their property rights have been “sterilised” due to inaction by the City of Joburg (COJ).
The court papers say the two properties are unlawfully occupied by scores of occupants who stopped paying rent between 2018 and 2020. The latest case follows an unsuccessful attempt to evict the illegal occupiers, who argued this would leave them homeless.
Property-owning companies are demanding the City of Joburg, and other branches of state responsible for dealing with unlawful occupations, be held accountable under the constitution and other statutes dealing with property rights and emergency accommodation for evictees.
The reasons for the initial rent boycott seem more opportunistic than substantive, starting in one building and spreading to the second. The property owners have attempted for years to evict the occupiers and regain control of the buildings to no avail.
The City of Joburg is required to assess the personal circumstances of illegal occupiers to assess whether they qualify for temporary emergency accommodation (TEA).
The courts require this information as part of an eviction report before considering whether or not to evict.
The city prepared an eviction report in 2021, but it lacked sufficient detail to allow the court to make a proper assessment, and it also emerged from the COJ’s court response that it had no TEA for the illegal occupiers, most of whom are foreigners.
The city’s failure to plan for temporary emergency accommodation for illegal occupants is unconstitutional and invalid, say the applicants in the case. As such, COJ is accused of violating the property owners’ constitutional rights.
COJ is also accused of failing to provide eviction reports and of not cooperating with the department of home affairs (DHA) to resolve the situation of the unverified foreigners in the buildings.
The case was brought by the two property-owning companies, 22 Fricker Road and Snowy Owl Properties 149, that argue the manner in which the COJ is implementing its TEA policy is unconstitutional and invalid.
The respondents include the City of Joburg, Joburg municipal manager, Gauteng and national departments of human settlements, the DHA and the occupiers.
The property owners are asking the court for a structural interdict (meaning the court monitors compliance with its orders) compelling the city, Gauteng province and DHA to fulfil their obligations under the constitution, the Housing Act and the Immigration Act.
The case has been fraught with delays, miscommunication and missed targets.
In May 2023, the court ordered the DHA and COJ to prepare a report on which illegal occupants qualified for TEA. DHA turned up at the properties but then advised it could not do an inspection without the police being present – though this is not required by law.
In COJ’s responses to the court, it indicates a need for 1 500 beds for TEA and it has identified six properties for acquisition. It also emerged that the city’s existing TEA facilities had become permanently occupied.
Andrew Schaefer, deposing for the property owners, said an owner “cannot be expected to provide free housing for the homeless, or for those at risk of homelessness, for an indefinite period”.
COJ’s failure to collaborate with the DHA has allowed the situation to drag on for years, with the city relinquishing its obligations to provide TEA by expecting the DHA to deport illegal foreigners.