High Court case could be a plus for owners of hijacked buildings

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

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

However, they say, they have not been able to evict the unlawful “tenants”, who pay no rent, because of the failure of the CoJ to properly assess the circumstances of these occupiers to determine whether they qualify to be placed in TEA, and its failure to provide reports of its 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 any proper TEA reports from the CoJ, the illegal occupiers of the Berea buildings have several times been able to resist eviction simply by claiming that any such action would leave them homeless.

Then a year ago, the DHA and the CoJ were ordered by the court to conduct a thorough assessment at the properties and prepare a report on their findings, and specifically note who among the illegal occupants qualified for TEA. The DHA went to the buildings but then said it could not complete an assessment without a police escort.

Meanwhile, the owners note, the CoJ has claimed that it is not responsible for providing TEA for any of the many undocumented foreign migrants living in their buildings, but has failed to work with the DHA to find a solution to this problem. The CoJ has also stated that it does not actually have any TEA available currently for any of the illegal occupants, whether local or foreign, and that it could take two or three years for this to become available.

“This has left the owners of the buildings in an untenable position,” says 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 keeps getting bounced back and forth between the CoJ and the DHA, as well as the provincial and national departments of human settlement.

“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 CoJ and DHA 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.”