EXPLAINER | After the furore over the eviction of a naked man, here's a look at two sides of the incident

  • The City of Cape Town faced fierce criticism when a video surfaced showing a naked man pulled from his home during an eviction. 
  • The SA Human Rights Commission said it intends taking the City of Cape Town to court. 
  • Here is why the City of Cape Town evicted the man, and the rights of occupiers during evictions.

A video showing a naked Bulelani Qolani dragged out of his home by the City of Cape Town's eviction unit on Wednesday has drawn fierce criticism.

The South African Human Rights Commission (SAHRC) said it intends taking the City to court for breaking eviction laws.

The incident has also drawn condemnation from Human Settlements Minister Lindiwe Sisulu.

The City of Cape Town suspended four of the law enforcement officials who manhandled Qolani in Empolweni, Khayelitsha. 

Mayor Dan Plato issued an apology to Qolani on Thursday morning, and admitted the man's dignity was impaired by the incident. 

Here's why City of Cape Town evicted Qolani from his home, and the rights of people during evictions: 

Why did the City of Cape Town evict Qolani? 

In a late night statement on Wednesday evening, the City’s executive director for safety and security, Richard Bosman, said the land in question belongs to the City and that it had conducted various operations to prevent illegal land occupation.

"After the removal of illegal structures, new attempts are made to invade again on a daily basis. There is an interdict in place as well as a recent court order, which allows only 49 households to temporarily remain on the land until after the lockdown," Bosman said.

On Thursday morning, Plato said the national lockdown prohibits any form of eviction, but the courts, as well as Sisulu, have made it clear that municipalities across the country have a duty to prevent illegal land invasions. 

He said the area in question was illegally invaded during the first weeks of the national lockdown when the City responded to requests from the local community to remove the illegally-erected structures. 

The City-owned land has been earmarked for the installation of services for the surrounding community, Plato said. 

A non-governmental organisation (NGO) took the City to court to prevent the removal of the structures in April, and a judge ruled that 49 structures already built may remain temporarily there during the lockdown.

Plato said the judge also emphasised that the City has a responsibility to protect the land against invasion and is allowed to remove any new illegally-erected structures with immediate effect.

"Since then, there have been near-daily attempts to further invade the land."

Did the City break the law with the eviction? 

While the City maintains that it was acting within the law to remove the illegally-constructed structures, Socio-Economic Rights Institute of South Africa advocacy officer Edward Molopi said municipalities across the country are often opportunistic during evictions. 

Molopi told News24 that, as per Section 26 of the Constitution, no person may be evicted without a court order in South Africa. Municipalities, though, often argue that they are only removing empty structures - which is often not the case. 

Furthermore, Molopi said the lockdown regulations are pretty clear that no evictions may occur during the national Covid-19 disaster period. The court ruling in April also forbade the state from removing 49 approved structures. 

Koti Research and Learning Services' Shirhami Shirinda, who has been involved in eviction cases over the past nine years, said he is aware of instances where only newly constructed shelters are allowed to be demolished without a court order. 

The City says it was removing new occupations - but, in an interview with GroundUp, Qolani said he had been living in the structure the past four months.

Bulelani Qolani, who was dragged from his shack
Bulelani Qolani, who was dragged from his shack, naked, by City of Cape Town law enforcement officers. The officers have been suspended.

The Legal Resource Centre's Khensani Motileni, who is helping the Empolweni residents in its eviction matter, said the centre is currently checking whether the City demolished any of the 49 structures when it evicted Qolani. 

Motileni told News24 the manner in which the eviction occurred had certainly infringed on Qolani's constitutional right to dignity. 

Sisulu, meanwhile, said that all evictions require a court order, and no court would have granted an eviction order against explicit lockdown regulations.

"The City must have, therefore, evicted people without authority or lied to the court," she said. 

What rights do occupiers have? 

Motileni said all evictions in the country are governed by Section 26 of the Constitution, which stipulates that no one may be evicted from their home, or have their home demolished, without "an order of court made after considering all the relevant circumstances". 

Evictions are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), which stipulates the process to be followed to evict anyone in the country.

The procedure that needs to be followed includes a notice of a court hearing, the court hearing itself, and a chance to vacate the premises before being evicted. 

The Act differentiates between people who have occupied a piece of land for less than six months and longer. 

In the case of less than six months, a court may grant an order for eviction "if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly and children", among others.

When an occupier has been on the land for more than six months, an eviction order may also be granted, considering whether land has been made available or can reasonably be made available by a municipality, or by someone else for the relocation of the unlawful occupier. 

Shirinda said courts rule on a case by case basis and there is no strict rule on how long an occupier has to be on a property before alternative accommodation has to be provided. Authorities, however, are typically forced to provide accommodation if the occupiers have no alternative. 

If a court grants an order, an occupier also has the fundamental human right to dignity and privacy during an eviction, which were both infringed upon in Qolani's instance, Shirinda told News24.

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