High Court case could assist owners of hijacked buildings

Johannesburg CBD.

In a move that could have significant implications for inner-city property owners that have ‘hijacked’ buildings, two companies recently lodged an application in the Johannesburg High Court to compel the City of Johannesburg and the Department of Home Affairs, among others, to fulfil their statutory obligations in providing temporary emergency accommodation for illegal occupants.

The companies, which are subsidiaries of Trafalgar Properties, own two apartment buildings in Berea which have been illegally occupied for several years and have been at the centre of several court actions as the owners attempted to regain control of them.

According to the property owners, they have been unsuccessful in evicting the unlawful ‘tenants’ who do not pay rent because of the failure of the City to properly assess the circumstances of these occupiers, to determine whether they qualify to be placed in temporary emergency accommodation, and the municipality’s failure to provide reports of these findings to the Court – despite being ordered to do so a year ago.

Section 26 of the Constitution provides that no one can be evicted from their home without an order of Court that has considered all relevant evidence and alternative housing solutions, and in the absence of proper temporary emergency accommodation reports from the City, the illegal occupiers of the Berea buildings have resisted eviction on several occasions by claiming that any such action would leave them homeless.

A year ago, the Department of Human Affairs and the City of Johannesburg were ordered by the Court to conduct a thorough assessment of the properties and to prepare a report on their findings, specifically noting who among the illegal occupants qualified for temporary emergency accommodation. The Department went to the buildings but claimed it could not complete an assessment without a police escort.

The property owners have noted that while the City claimed that it is not responsible for providing temporary emergency accommodation for any of the many undocumented foreign migrants residing in the buildings, it has failed to work with the Department to find a solution to this problem. The City has also stated that it does not have any temporary emergency accommodation available currently for the illegal occupants, whether local or foreign, and availability could take two to three years.

This has left the property owners in an untenable position,” comments Andrew Schaefer, MD of the Trafalgar property group. “Unable to take any action to get their properties back as the problem of where to rehouse the scores of illegal occupants who live there keep getting bounced back and forth between the City of Johannesburg and the Department of Human Affairs, as well as provincial and national Department of Human Settlements.”

Their constitutional rights are being infringed and at the same time, there are severe health and safety risks associated with hijacked buildings that can all too easily end in tragedy, as we have repeatedly seen in Johannesburg. These risks are being exacerbated by the fact that many tenants are capitalising on the current situation by subletting to additional illegal occupants and charging them rent.”  

The building owners cannot, however, be expected to provide free housing indefinitely for those currently occupying the building, which is why they have now applied for a structural interdict to get the court to ensure that the City of Johannesburg and the Department of Human Affairs comply with its previous order and meet their legal obligations”.

And if this application succeeds, it could be a very positive step forward for many other owners of residential buildings in SA’s inner cities that have similarly been illegally occupied.”