Rights of illegal foreigners to temporary emergency accommodation December 2016

By MOKGAETSI TLHOKA, Published in Human Rights Law

South Africa has become a home to many immigrants fleeing political and economic turmoil. Each year, thousands of immigrants enter South Africa illegally in search of greener pastures. With no legal documentation regulating their status in South Africa upon arrival, most of the immigrants end up occupying properties unlawfully.

Consequently, illegal immigrants are constantly threatened with eviction by landlords. In the recent case of Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew and Another [2016] JOL 36105 (GSJ) (the Chapelgate Properties case), the courts had to pronounce on the duty of the City to provide temporary emergency accommodation to illegal immigrants upon their eviction from privately owned land.

In this case, the applicant was the registered owner of immovable property zoned for industrial use only. A factory was built on the property but it was occupied unlawfully by a community that initially comprised 300 illegal occupiers. However; the number of occupiers who continued to defend the eviction was reduced to 161 including 21 minors, half of whom were born in South Africa to non-citizen occupiers. The majority of the occupant were foreign nationals who had no legal basis upon which to be in the country. There was one disabled occupant who was being cared for by a relative who was a Zimbabwean national.

In 2012, the applicant had applied for and obtained an eviction order against the illegal occupiers; this order was subsequently rescinded. Later it was conceded that the occupation was unlawful. The court called upon the City to show cause why it should not provide temporary emergency accommodation to all of the occupiers in line with the decision in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and another 2012 (2) SA 104 (CC).

The City filed a report addressing its obligation to provide temporary emergency accommodation to indigent persons. During the course of argument, the Honourable Judge Spilg raised whether foreigners who had not entered South Africa legally, and who had not applied for asylum, were entitled to be provided with temporary emergency accommodation.

Counsel for the occupiers submitted argument on whether it is constitutionally permissible for the City's policy or practice to differentiate between South Africans and foreigners when providing temporary emergency accommodation. The court held that that line of argument would result in the court having to decide whether the City's decision to discriminate between South Africans and non-South African citizens is rationally supportable in a democratic society.

The court focused on the conflict that would arise between the Immigration Act (13 of 2002), which provides that people who are in the country illegally should be deported, and the City's obligation to provide emergency temporary accommodation to those same people. If the City provides temporary emergency accommodation to illegal foreigners, it would be in contravention of the Immigration Act.

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In order to balance the rights of illegal foreigners to temporary emergency accommodation and the City's obligation to provide such emergency accommodation, Spilg J took into account the provisions of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (19 of 1998) (PIE), the Children's Act (38 of 2005), the Immigration Act, Refugees Act (130 of 1998) and the Constitution.

In considering the protection afforded to a person threatened with eviction, Splig J considered s26(3) of the Constitution read with s4(7) of PIE. Section 26(3) prohibits arbitrary eviction of any person from their home without an order of court once all the relevant circumstances have been considered. The protection of this section was further given substantive content through the enactment of PIE.

Section 4(7) of PIE requires the court to evict occupiers only if it is just and equitable to do so. Furthermore, it requires the court to taken into account factors such as whether the occupiers have been occupying the property or land for more six months, and their personal circumstances. This section does not only apply to occupiers who were evicted from land by organs of state but also to occupiers evicted by private owners from their property. This means that if these factors exist, the City will be called upon to provide temporary emergency accommodation to those who are indigent.

Furthermore, the progressive attainment of housing under s26(1) and (2) is also a constitutionally protected second generation socio-economic right (Chapelgate Properties p37 para 65). Such a right is also strengthened by one of the most fundamental rights, the right to dignity under s10. The right to dignity features highly in cases of evictions because of the consequences that follow evictions. In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and others (2010 (3) SA 454), the court emphasised that evictions must be carried out in a manner which respects human dignity, equality and fundamental human rights and freedoms (Joe Slovo at para 231).

The right to dignity in eviction matters is also recognised in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. These treaties place an obligation on the state to maximise their resources to provide adequate temporary emergency accommodation to ensure that people are not rendered homeless in cases of evictions.

The counsel for the occupiers based its argument on the case of City of Johannesburg v Changing Tides 74 (Pty) Ltd and others (Changing Tides case) where the SCA had to consider whether the City was obliged to provide temporary emergency accommodation to illegal foreigners. In this decision, the most important consideration was whether the City should review the status of persons seeking temporary emergency accommodation before or after providing them with such accommodation. The court held that if the eviction is necessitated because the occupiers' living conditions pose a risk to life and health, the City should review their status after it has provided them with temporary emergency accommodation.

The reasoning behind the judge's decision in Changing Tides was that occupiers needed to be removed from living conditions that pose a danger to their life and health as soon as possible, instead of delaying the eviction process unnecessarily. Counsel for the occupiers also relied on the Housing Code (2009) which provides that the City may provide temporary emergency accommodation to illegal foreigners on conditions prescribed by the Department of Home Affairs on a case-by-case basis.

In the Chapelgate Properties case, the judge agreed with the argument advanced by the occupiers' counsel that illegal foreigners cannot per se be excluded from being provided with temporary emergency accommodation in desperate situations. However, the court imposed a condition in terms of s4(12) of PIE that the illegal foreigners must regularise their status before or on the date set by the court prior to being provided with temporary accommodation.

In terms of s21 of Refugees Act, regularisation involves applying for asylum at the nearest Refugee Reception Office or producing a visa or permanent residence permit in terms of the Immigration Act. The court emphasised that the provision of temporary emergency accommodation to illegal foreigners will not result in them receiving permanent housing, because this depends on them regularising their status.

The effect of this condition is that, should the illegal foreigners fail to provide proof that they have regularised their status, the City can apply for an order declaring that they were not entitled to temporary emergency accommodation. In Chapelgate Properties (p47-50 at para 89-91), unlike in Changing Tides, the illegal foreigners were ordered to regularise their status prior to the City providing them with emergency accommodation. The reason for the deviation could be that their living conditions did not pose any risk. The provision that empowered the court to impose the condition was s4(12) of PIE. This section grants the court the discretion to impose reasonable conditions to an eviction order with the proviso that the court may alter these conditions on good cause (Chapelgate Properties case at page 47 at para 88).

The occupiers have applied for leave to appeal against the condition imposed by Spilg J, on the basis that the pre-screening condition is unconstitutional as evictions are by their nature always an emergency, especially if it will result in the evictees being homeless. At the time of writing, the application for leave to appeal was still pending before Spilg J.

Tlhoka is a Candidate Attorney with Fasken Martineau. The article was overseen by Sushila Dhever, a Partner.