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Civil society calls for extension to evictions moratorium


Dozens of organisations have endorsed a letter to the National Command Council asking for the moratorium on evictions to continue during alert level four

The Centre for Applied Legal Studies (“CALS”) is a civil society organisation based at the School of Law at the University of the Witwatersrand. CALS is also a law clinic registered with the Legal Practice Council. As such, CALS connects the worlds of both academia and social justice. CALS’ vision is a socially, economically and politically just society where repositories of power, including the State and the private sector, uphold human rights.

Since the declaration of the ongoing National State of Disaster, CALS has sought to assist and support government in ensuring the continued respect, protection and fulfilment of the human rights and freedoms guaranteed in the Constitution of the Republic of South Africa, 1996 (“the Constitution”), while containing the spread of COVID-19. CALS continues to support the roll-out of government’s programmes to combat COVID-19, and addresses this correspondence in the spirit thereof.

This correspondence is the product of engagement by CALS with its partner organisations, and follows on from previous similar correspondences. These include –

  1. An initial letter proposing an urgent moratorium on evictions signed by such organisations (including CALS) dated 20 March 2020; and
  2. A letter from the C19 People’s Coalition, an alliance of over 290 social movements, trade unions, community organisations and NGOs dated 4 April 2020, which proposed various amendments to a previous version of the Regulations issued in terms of section 27(2) of the Disaster Management Act, 2002.

Since the publication of the Regulations issued in terms of section 27(2) of the Disaster Management Act, 2002, published as GNR 480 in Government Gazette 43258 of 29 April 2020 (“the Regulations pertaining to Alert Level 4”), CALS and its partner organisations have raised and received numerous queries and concerns about the application thereof. Of particular concern is Regulation 19 regarding evictions.

The correspondence of 20 March 2020 emphasised that –

“[E]victions and displacement will place a greater number of vulnerable people at risk. One cannot practice physical distancing should you find yourself and your belongings on the side of the road or in and open space and exposed to the public with no means of protection. One cannot practice a heightened level of hygiene by washing hands in the recommended manner where the only access to water is a communal standpipe and shared ablution facilities in an informal settlement or in a transitional relocation area.

...It cannot be disputed that the lack of stable housing is a major barrier to being healthy. In the context of a crisis of unknown proportions, housing is more important now than ever before and the State must take measures to prioritise protecting the most vulnerable by preventing evictions into homelessness. Research worldwide has shown that homelessness is closely linked to exposure to infectious diseases, specifically respiratory illnesses such as Tuberculosis and immunodeficiency. Covid-19 is no exception.”

We note that government responded favourably to this argument, including through the introduction of a broad moratorium on evictions in the Regulations pertaining to Alert Level 5. This was necessary to inter alia support the need for persons to remain in their dwellings to combat the spread of COVID-19.

However, in the Regulations pertaining to Alert Level 4, that moratorium has been narrowed in Regulation 19, which reads as follows –

“A competent court may grant an order for the eviction of any person from land or a home in terms of the provisions of the Extension of Security of Tenure Act 62 of1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: Provided that any order of eviction shall be stayed and suspended until the last day Alert Level 4. unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 4 period.”

Given that the premise of a national lockdown remains the status quo under Alert Level 4, the relaxation of the moratorium on evictions appears unjustified. In the circumstances, CALS respectfully believes that Regulation 19 requires amendment, clarification and/or further detail.

In particular, we submit that –

  1. Any execution of an eviction order during Alert Level 4 of the national lockdown could never be deemed ‘just and equitable’ by a court; the continued restrictions on inter alia movement and transport are underscored by the need to “Stay at Home”, and thus necessarily render any eviction unjust in the current context. For this reason, the reference to this possibility in the Regulation is irrational and thus unlawful;
  2. Even the institution of eviction proceedings during Alert Level 4 of the national lockdown would operate unjustly against the defendant; the continued restrictions on inter alia movement and travel operate to prevent defendants from accessing legal services to aid their defence during Alert Level 4. Any institution and hearing of an eviction application would thus violate the defendant’s right of access to the courts. For this reason, the Regulation’s implied reference to this possibility is irrational and thus unlawful; and
  3. Alert Level 4 of the national lockdown was instituted on 1 May 2020. The government has not communicated the date on which Alert Level 4 shall conclude. Moreover, it remains possible that this period will be succeeded by a further period of Alert Level 5, rather than a relaxation into Alert Level 3. This uncertainty renders the Regulation’s reference to a stay of eviction orders until “the last day of the Alert Level 4 period” irrational and thus unlawful.

Given the above, we recommend that Regulation 19 be amended to reflect a full moratorium on the institution and hearing of eviction proceedings, as well as the execution of eviction orders and all home demolitions, for the entire duration of Alert Level 4. We accordingly propose that Regulation 19 be replaced in its entirety by the following:

“No person may have their home demolished or be evicted from their place of residence, including in terms of the Extension of Security of Tenure Act 62 of 1997 or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, and regardless of whether it is a formal or informal residence or a farm dwelling, for the duration of the Alert Level 4 period.”

CALS continues to offer our support to government, and trusts that our input on the Regulations will be given the urgent consideration we feel is due in the spirit of this engagement.

Please note that the following organisations have endorsed this correspondence:

  1. Scalabrini Centre of Cape Town
  2. Nkuzi Development Association 
  3. Masifundise
  4. Association for Rural Advancement
  5. Socio-Economic Rights Institute of South Africa
  6. Alliance for Rural Democracy
  7. Transkei Land Service Organisation
  8. Built Environment Support Group NPC
  9. Lawyers for Human Rights
  10. Equal Education Law Centre 
  11. Ndifuna Ukwazi
  12. Land Network National Engagement Strategy of South Africa
  13. Siyanqoba Rural Transformation Forum
  14. Qina Mbokodo
  15. Landless Peoples Movement
  16. Surplus People Project
  17. Tshintsha Amakhaya
  18. Phuhlisani NPC
  19. Centre for Urbanism and Built Environment Studies, School of Architecture and Planning, University of the Witwatersrand
  20. Support Centre for Land Change
  21. Institute for Poverty, Land and Agrarian Studies (PLAAS), University of the Western Cape
  22. Natural Justice
  23. Legal Resources Centre