Philippi: an eviction by any other name

“Five children. Five children,” shouts Doyi Bambiso, 58, Nqiba’s partner, extending an open palm. He leads journalists into the room that was spared, it is virtually filled by a double bed. Nqiba and her 2-year-old daughter, Asemahle, are seated on it. She weeps. Bambiso shouts.

“Where will they all sleep now? Five children! Where has our material gone? What shall we eat?”

The City’s ALIU did not stop at breaking down the walls and removing the material used to build the shack’s extension. A kitchen cabinet was kicked over and broken. The family’s groceries, food to feed seven people, were also taken away.

The court interdict invoked in the shack demolition states that residents can claim their building materials back in three months. The City has not responded to GroundUp’s queries about the possibility and process for recovery.

The land occupation which started on Erf 149 in Philippi East last week has grown exponentially. The influx of material and shack building continues along Symphony Way. Word has spread, and those too poor to afford rent as backyarders have come from near and far to stake their claim. Evictions, violent clashes and arrests also remain the order of the day.

It presents a crisis for the City’s policy of containing the sprawl of informal settlements.For the City, the fledging community is a zone of destitution, lawlessness and a “fire risk” and the occupiers are pawns in a political campaign to destabilise the ruling DA’s stronghold.This will not be “tolerated”, JP Smith, the Mayoral Committee Member for Safety and Security, has said. The “only” solution, he told the Cape Argus, is to “start arresting people”.

Law Enforcement, backed up by riot police, have pulled down and removed more than 200 hundred structures since Sunday. The City however denies that any “evictions” are taking place.

The City maintains that it merely prevents further occupation by removing “unoccupied and incomplete” structures. No “homes” (the right to which is protected in the Constitution) are being destroyed, City officials say.

Since there are no definitional guidelines for what, in law, constitutes a “home” - an occupied or completed structure, the decision is often up to the whims of Law Enforcement officers on the scene.

The ALIU modus operandi was on display on Monday, 11 August. A Law Enforcement officer leads a pack of yellow-bibbed labourers through the shacks. He peers into into shack doorways as he goes. He shakes the foundation posts of structures to test their resilience. Some shacks are passed by. At others he gestures with a nod of his head: “this one”. Maybe there is method in the decision making, but to a lay observer it appears random and unmotivated.

With every decision there is a palpable release of suspense and tension from dozens of shackdwellers who follow the procession. The condemned occupier often wails as the ALIU members hone in on the structure that the shackdweller calls a “home”. Sometimes the shackdweller resists, but this is futile. The decision is always final. It takes 30 seconds to bring down a shack that took two days to build. It takes 60 seconds to spirit away R4,000 in material that may never be recovered. Again, this routine has been repeated more than 200 times since Sunday.

On the periphery, armed Metro Police and SAPS look on. They are kitted out with shotguns, body armour, stun grenades, shields and helmets. Metro police pounce on and neutralise individual resistors. SAPS dispense rubber bullets and grenades when the resistors are numerous, out of reach and throwing stones. At such times mothers, scrambling to recover their children, are the only ones who run towards - rather than away from - the gunfire. When the flare up subsides, the cops gather in posses to taunt and jeer at women who sit crying in the pathetic ruins of their “homes”.

But, is what the ALIU doing legal? This is what Bambiso wants to know. It is not an easy question to answer. In short, the City acts on the assumption of innocence until guilt is proven.

The land occupiers are breaking the law. The land being settled (Erf 149) is private and the owner has obtained an interim interdict from the High Court on Thursday, 7 August. It interdicts against structures, apart from 69 marked and existing ones, from being erected and settled.

But, an interdict is not an eviction order and cannot be used as such. The SA National Roads Agency Ltd (Sanral) was widely condemned for evicting hundreds of people from Lwandle informal settlement in Strand on the eve of a winter storm in June. Yet, there was less acknowledgement that the evictions, carried out on the basis of an interdict, and not an eviction order, were unconstitutional.

In January, and on the basis of an interdict, the ALIU demolished 47 shacks at Marikana informal settlement next to where the current evictions are taking place. The evicted shackdwellers took land owner Iris Fischer and the City to the High Court. Central to the City’s defence, via an affidavit by ALIU head Steven Hayward, was that the ALIU did not need an eviction order because no “evictions” took place. Again, only “unoccupied” structures were apparently demolished. In Hayward’s words, the structures were not yet “homes”. Yet, in that instance too, furniture was broken and dozens of people were rendered destitute and homeless.

In handing down judgement in this case on 13 March, Judge Patrick Gamble wrote that the City’s approach in deciding which structures were “homes” and which were not was “fundamentally flawed”. The decision, Gamble noted, ultimately lay with the ALIU’s senior field officer on site. Gamble ruled against the City. The evictions were “unlawful and unconstitutional” and reminiscent of “operations conducted by the apartheid government in the 1980s”.

On appeal by the City to the Supreme Court of Appeals (SCA), this judgment was set aside and the matter referred back to the High Court for oral evidence. The Constitutional Court has denied shackdwellers leave to appeal the SCA decision.

Until the High Court rules again, and recourse to appeals is exhausted, occupiers remain vulnerable to the ad hoc, yet omnipotent, opinions of Law Enforcement officers on site. A whimsical nod of the head - without oversight or explanation - can relegate the status of a family’s “home” to that of a “vacant” structure.