When is a structure a “home” for purposes of section 26 of the Constitution?

Returning home, I did not find my home. But then again, I have returned home. Yet, it is true that I am still looking for a home to stay. (Where in this vast country will I finally live?) These contradictions force home the question: what is a home? Surely it is not merely a house. It is a place associated with long memories? Somewhere to dig up roots?”

Njabulo Ndebele “A home for intimacy”

Section 26(3) makes it clear that “no person may be evicted from their home, or have it demolished, without an order of the court made after considering all the relevant circumstances”.

The Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE), as subsidiary constitutional legislation, was promulgated to give effect to this provision, by laying down procedures and substantive requirements that must be followed when someone is evicted from their “home”.

Despite this, there is no (legal) definition of what constitutes a “home”. This means that we must play interpretive Tetris.

Section 4(1) of PIE states that “the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier”.

“Evict” is defined as “to deprive a person of occupation of a building or structure , or land on which such building or structure is erected against his or her will” (own emphasis).

“Building or structure” in turn is defined as “any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter”. The focus is on the nature of the structures, and not on when such a structure will be deemed a “home”.

This was part of the issue in the South African Human Rights Commission case, delivered last week. The City of Cape Town argued that the structures the demolished were unoccupied, and as such do not fall under the provisions of PIE. Being unoccupied, there was nobody to evict. The applicants, however, argued that those evicted have been living in the structures (in other words, it was occupied), and therefore they are entitled to the protection of section 26 of the Constitution.

This raises the question: what is a “home” for purposes of section 26? And who gets to decide that?

Well, to answer like a typical lawyer: it depends.

In the Grootboom case, the Constitutional Court acknowledged “that housing entails more than bricks and mortar”. In Rudolph v City of Cape Town, the court found “that the shelters erected by the respondents are their homes” where “they reside with their families in these shelters and have nowhere else to live”.

The PE Municipality case judge Sachs stated that “a home is more than just a shelter from the elements”. It is a place of intimacy and family security. Often the only place where people can retreat to and rest. It is also this case where he emphasized that “PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of law”.

In the Barnett case (that dealt with holiday homes), the court admitted that the concept of “home” is not easy to define, but accepted that it requires an element of regular occupation with some degree of permanence.

Judge Sachs, this time in Residents of Joe Slovo, focused on what adequate or dignified housing would entail, and linked it to citizenship. Removing the threat of eviction will ground people somewhere, and enable them to participate in civil society (and enhance political participation rights).

In Breede Vallei, a case where people moved out of crowded accommodation into empty houses that were part of a housing project, the courts stated that “squatters who overnight make their home on unoccupied land and who have no other fixed abode” can claim the protection of PIE.

Fischer took a big leap with regards to what a “home” is, in relation to what type of occupation is needed before PIE is applicable. After 40 homeless people erected their structures, it was removed by the Anti-Land Invasion Unit. The City argued that some of the structures “were not yet homes” because they were only there for a short while, and that the City doesn’t need an eviction order to evict the people. However, what was decisive was not how long the occupiers occupied the structures, but whether they had alternative places to stay. The focus was on the intention behind the occupation.

The court relied on the work of legal scholar Prof Lorna Fox to come to its conclusion. Fox draws on various psychological studies relating to the notion of “home”, indicating that the concept of “home” is essentially a subjective phenomenon, that remains largely undefined in law. For Fox, home = house + x, where the house is the physical structure, and the x the social, the psychological and cultural values that one finds in and around the structures. X, being subjective, will not be the same for all occupiers, and therefore remains difficult to define in laws.

But empirical studies have identified four main value-types, namely: material shelter, territory (security, permanence and privacy), a center of self-identity and a social and cultural unit (where relationships with family and friends are formed). While the law is most comfortable with defining the physical structure, the other elements should be incorporated into the legal inquiry. This means that every inquiry will depend on a specific set of facts, which does raise the issue whether the members of the “anti-land invasion unit” can and should make that decision.

In the absence of clearly defined criteria to guide such decision-making, probably not.

Another interesting question that arises is whether an inquiry into these value-types means that a “homeless” person living under a bridge in an elementary shelter might also be protected by PIE, because such a shelter constitute a “home”.

The courts say “no”.

The Ngomane case dealt with constitutional damages that the City of Joburg had to pay to homeless people, after confiscating and destroying their property in a public health clean-up exercise. But the applicants argued that such a removal had to be done in terms of a court order. The High Court stated that since the applicants stayed on a traffic island, this could not be “a home” as envisioned in terms section 26 of the Constitution. They don’t “occupy” the island. The Supreme Court of Appeal found that since what was taken was a pile of loose wooden pallets, cardboard boxes and plastic sheets, there was no “building or structure” to “occupy”.

Be that as it may. These cases show that there is a matrix of issues at play in these cases. For starters, there is a tension between “unlawful occupation” and “unlawful eviction”. When occupation is unlawful, occupiers are entitled to the protection of the Constitution and PIE, that require certain procedures be followed when an eviction takes place, and that eviction only be ordered by a court if it is “just and equitable” to do so.

In these type of cases, the focus is not on the lawfulness. It is on the question whether the building or structure constitutes a “home”, and linked to that is issue of “occupation”. On the facts of the SAHRC case, the City of Cape Town simply failed to convince the court that the structures that were demolished were unoccupied.

The City is up against the pictures distributed on social media of Mr Qolani being dragged from his house, indicated that it was occupied. Similarly, the evictions from Ocean View showed furniture being removed from the dwellings, indicating some form of occupancy.

Even if this was a performance, requiring a court order upon eviction is an important tool to ensure that local government conduct themselves in a way that is consistent with the Constitution.

I want to make it clear that this is not a post regarding the problem of land occupation as such. As stated, it is complex matrix of issues, and it speaks to tight rope that officials and courts often have to walk regarding unlawful occupation and unlawful eviction. Balancing the right to housing, and the right not be arbitrarily deprived of property.

I am also aware that there are people who are politically opportunistic and use the law for political point scoring. This is problematic, but I am not convinced that the Constitution and the law should be disregarded, when vulnerable people are exploited, just because we want to stop political opportunism.

I am also aware that the issue is becoming more pressing, and that land occupations have been rising exponentially during lock-down, though I have not yet seen studies or plausible explanations as to why this is.

But in this matrix we have to be careful not to criminalise the vulnerable people, caught in this crossfire of politics, trying to erect a shelter from the elements close to work opportunities, and occupy it, in order to have a home.

You probably wonder what are the solutions? Well, that might have to be a proper post for another day. But we did do something right in the late 1990s, where an average of 645 houses were delivered per day. We have to ask why it worked, and how we can get there again.

Till then, studies show that when people live in well located places close to city centers, their chances of being employed increase exponentially, enabling them to escape the poverty trap. Which is why victories like to Tafelberg case in court yesterday should be celebrated bigly. Yes, the City has books that must balance, but property also comes with social obligations, and in some instances the scale must tip in favour of a better live for all.

While we ponder on the judicial meaning of home, I leave you with some proverbs and quotes about “home”. For example, we say “Home is where the heart is”, or “a man’s home is his castle”. We can say “East or west, home is best”, or “There’s no place like home”.

There are surprisingly also many songs about home, and they are often love songs, or songs about belonging. Songwriters sing “it feels like home, to me” or “home is wherever I’m with you”, or “you are not alone, I’m gonna make this place your home”. It all points to a space that makes connection and intimacy possible, helping us to make better sense of ourselves.

It is about time that the law joins this choir.

An amateur medley of snippets about home.

(This is a topic that I explored in 2015 in a chapter in the book “Memory and meaning – Lourens du Plessis and the haunting of justice”).