SCA rules for evicted reclaimers that they have a right to earn a living

The City of Joburg acted unreasonably by seeking to subject the relocation of 71 illegal occupiers to a condition that prevents them from earning a living at the temporary emergency accommodation, the Supreme Court of Appeal (SCA) said on Wednesday. 

The court made this remark as it dismissed, with costs, an appeal by the City against a Johannesburg high court order which had evicted 71 occupiers from a property owned by a private company in Midrand. 

The City was appealing against an order that it provide occupiers with temporary emergency accommodation where the 71 occupiers can live at night, and there lawfully and safely sort their reclaimed waste, and from where they can reasonably go during the day to use their flatbed trolleys lawfully and safely to collect waste. 

The occupiers had been living in farm Randjiesfontein no. 404 owned by Rycloff-Bellegings (Pty) Ltd. In 2019 Rycloff applied for their eviction and the high court granted an order of eviction against the occupiers last year. 

It also ordered the City to provide them with temporary accommodation with the condition that they would be able to store their materials, an order that the City appealed against. 

The SCA said the occupiers eked out a living as waste pickers.

“This they do by extracting from the waste, recyclable materials from industrial sites located near the property and transporting it to the property on flatbed trolleys,” said judge of appeal Billy Mothle in a judgment supported by other judges. 

The appeal court said on arrival at the property, they sort, clean and store the materials in industrial bags, with a view to selling the stored materials to recycling companies.

To do this work, which was their sole source of income, the occupiers had built shacks on the Midrand property, where they resided with their families. 

The City had identified a site at Kya Sands informal settlement as the relocation destination acceptable to the City and occupiers in 2022. 

“However, the City imposed a condition for relocation to Kya Sands, that the occupiers would not be allowed to conduct their waste picking activities on the identified site.”

The occupiers objected to that condition, leading to the high court ordering that the occupiers’ new temporary accommodation allow them to store their goods. 

On appeal, the City argued that the “right to earn a living” was essentially a “commercial interest” and was not relevant to the determination of what was just and equitable in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (Pie Act). 

The City also said the Pie Act did not afford an unlawful occupier the right to choose where they wished to live, upon eviction. It also said the collection, sorting and storing of material from waste by the occupiers was an unlawful activity, as it was conducted in an area zoned “special”, contrary to the relevant zoning regulations.

The occupiers submitted that the eviction would not be just and equitable if it did not take into account their means of earning a living. 

They needed to be relocated close to areas which created high value waste for them to collect, store and sell extracted recyclable material to the recycling companies. They also contended that the City had an obligation to act reasonably, as the right to earn a living was a component of the right to dignity. 

In its judgment, the SCA said the City’s view was contradicted by a letter dated September 26 2022, from the city’s attorneys, addressed to Seri Law Clinic, which represented the occupiers. 

The letter stated that: “The City has endeavoured (as an indulgence to your clients) to find TEA (temporary emergency accommodation) that would cater for your client’s needs. In this respect, and coincidentally, erf 128 Kya Sands is situated next to a recycling facility.”

Mothle said both the SCA and the Constitutional Court have recognised that the right of occupiers to earn a living was a relevant factor to be considered by a court in terms of the Pie Act.   

Mothle said the City misconstrued the conduct of the occupiers as recyclers, when in effect, they were reclaimers who collected and sold waste material to recyclers for re-use.

“Second, the City sought to rely on the municipal zoning as prohibiting the sorting and storing of waste material, when it does not do so.

“Third, the City’s condition is not supported by any law or policy and is thus arbitrary, irrational [and] unreasonable. In the circumstances, the appeal must fail,” Mothle said.

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