Property owners take CoJ to court over illegal occupations

A case before the Johannesburg High Court provides a fascinating insight into the uphill battle faced by property owners trying to reclaim possession of residential buildings taken over or hijacked by illegal occupiers.

What’s interesting about this case is that, if successful, it opens the door to a damages claim against the city and possibly the state. That should get the attention of thousands of property owners around the country, whose buildings have been hijacked or illegally occupied in a similar manner.

In this case, the City of Johannesburg is among several respondents being taken to court for failing to provide temporary emergency accommodation to scores of illegal occupants who stopped paying rent in two Joburg residential buildings, both in Berea, comprising 28 residences believed to be occupied by 100 or so tenants.

It started with a rent boycott for unknown reasons.

The building owners have not received rent for more than three years, and it is suspected that some tenants are paying rent – but not to the owners.

Despite being granted eviction orders by the Joburg High Court, the occupiers claimed they were at risk of homelessness if evicted and were entitled to temporary emergency accommodation from the City of Joburg.

Requests

Now, the companies – 22 Fricker Road and Snowy Owl Properties 149 – are asking the high court to declare the City of Joburg’s failure to plan and budget for temporary emergency accommodation unconstitutional and invalid.

The companies also want the court to order an assessment of the personal circumstances of the occupiers and to determine whether the occupiers, many of them foreign, are compliant with the Immigration Act. It then wants the court to compel the city to provide temporary emergency accommodation to occupants who qualify for it. The City of Joburg previously argued that it could not provide temporary emergency accommodation and, therefore, the building owners could not carry out the eviction orders.

The companies claim in their court papers that their property rights have effectively been sterilised, due to a rent boycott that began in 2018.

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According to eviction reports before the court, most illegal occupiers are foreign nationals, which requires collaboration between the city and the Department of Home Affairs (DHA) – which has not happened.

Also cited as respondents are Joburg’s municipal manager, the national and Gauteng Department of Human Settlements (DHS) and the DHA.

What the city says

In its court filings, the city argued that it had suspended its obligations to provide temporary emergency accommodation to illegal occupiers during the Covid national state of emergency.

It emerged through court submissions that the city has 11 temporary emergency accommodation facilities, all of which are full, with a need for a further 1 500 beds.

The solution is to perform a property audit to see whether the city owns properties in the area, and if not, it will have to either purchase or expropriate a property for this purpose. The property will need refurbishment, which could take up to three years before it is ready for occupation as emergency accommodation.

In reality, the city will only be able to provide temporary emergency accommodation, as required by law, at some indeterminate date in the future, say the property owners.

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Before eviction is granted, the law requires an eviction report to assess the circumstances of the affected individuals and whether the responsible municipality can provide alternative accommodation. The eviction reports submitted by the DHA were at odds with those given by the city and the occupiers.

“The named occupiers, of course, simultaneously rejoice in the incompetence of the reports and continue to reside at the properties rent-free, alternatively to collect their own ‘rent’ from their illegal subtenants, as they have done for all these years,” reads an affidavit by Andrew Schaefer, a director for the property owners.

The property owners want the court to compel the city and the DHA to take whatever steps are necessary to resolve the discrepancies in their respective reports so the evictions can proceed and the properties can be restored to the owners.

Easier said than done

This may be easier said than done. Previous attempts to conduct assessments on the occupiers proved difficult, with some apparently making themselves unavailable for interviews. The case has been further delayed by bureaucratic and legal obstacles and, on occasion, outright incompetence as the DHA, years after the case commenced, professed ignorance of the properties in question.

The DHA carried out a raid on one of the buildings in June, but the inspection was improperly executed because the occupiers’ legal representative was not given sufficient notice to prepare. The DHA also brought members of the SA Police Service along for the raid, resulting in some foreign occupiers avoiding DHS officials for fear of arrest, detention or deportation.

“Obtaining an order like this will be a crucial stepping stone in obtaining a damages order against the state,” says Greg Vermaak of Vermaak Marshall Wellbeloved Inc attorneys. “But we first have to get through this case so that we can execute the evictions. Sadly, this is a problem that has spread across the country and undoubtedly impacted the values of properties in many places.”

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