Joburg high court says illegal occupiers ‘can stay’

The Johannesburg High Court last week rejected an application for the eviction of illegal occupants in two formerly commercial buildings in Doornfontein, Johannesburg, saying there does not appear to be any imminent danger to the properties and the City of Joburg is unable to offer them temporary emergency accommodation.

The property owners argued that there was an imminent danger to the buildings and the occupants from fire, and referenced two recent fires in other unlawfully occupied buildings in the city to buttress their case.

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“That a fire occurred elsewhere is insufficient to satisfy the test of imminent danger or harm,” reads the judgment. “A fire could occur anywhere in the city.”

There was no evidence of imminent danger other than “the normal disintegration and crumbling of a building neglected over time and subjected to inappropriate use,” says the ruling by Judge Shanaaz Mia.

The case was brought by the two property-owning companies, White Wall Trading and Opal Wall Trading. 

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There were 40 respondents, including the illegal occupiers, the City of Johannesburg, Joburg’s municipal manager, and the National Department of Human Settlements.

The unlawful occupiers brought a counter-application, requesting the City of Johannesburg to provide them with accommodation in terms of the National Housing Code. 

The illegal occupiers say they have been in the building since 2001.

The building owners first brought an application to evict the occupiers in 2011, and that case is still ongoing.

The latest eviction application by the building owners was based on urgency in light of the two fires in the Joburg CBD last year that resulted in several people losing their lives.

Interesting background

Last week’s ruling provides some interesting background to the case, including the fact that the City of Joburg conducted a raid on the premises in 2017 and declared it unsuitable for occupation.

The building owners obtained access to the building only after the intervention of the Socio-Economic Rights Institute, which has defended the rights of illegal occupiers around the country.

The owners discovered debris, piles of accumulated dirt, and informal electrical connections – which are a potential fire hazard.

Water taps and ablution facilities intended for commercial use were now being used by the occupiers for residential purposes, resulting in blockages.

The occupiers claim in their court papers that they are not paying rent to a slumlord and say they are doing what they can to maintain the building. 

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An architectural engineer’s report found unsafe electrical connections, insufficient water supply and a poorly maintained sewage system with leaks.

The report recommends removing fire hazards such as debris and flammable material used for partitioning, and installing fire suppression equipment as well as a second fire escape.

The judge cited the Prevention of Illegal Occupation and the Unlawful Occupation of Land (Pie) Act, which allows for an eviction order where there is a real and imminent danger or the possibility of injury or damage unless the illegal occupant is not immediately evicted. The Pie Act also requires the court to consider whether the hardship to the building owner exceeds the likely hardship to the illegal occupiers if an eviction order is granted.

The judge found that the occupiers would be homeless if evicted, and the 324 “households” comprising the occupiers included a large number of women, children and unemployed.

The City of Joburg has only tents to offer the occupiers as temporary emergency accommodation, and “in considering the time required to assess the occupiers and to allocate them to alternate accommodation, this hardship exceeds the hardship the owners would endure” if the occupants were evicted.

VMW Inc, the lawyers acting for the building owners, say they will likely appeal the ruling.

Listen to this Moneyweb@Midday podcast where Jeremy Maggs chats with the City of Tshwane’s Kingsley Wakelin about the metro’s plan to eradicate hijacked buildings (or read the transcript here):

You can also listen to this podcast on iono.fm here.

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