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