OPINION | Anthea Houston: Building hijackings place delivery of social housing at risk

16 May 2022

Criminal syndicates have innovatively found ways to exploit the laws, the courts and the Covid-19 pandemic to hijack buildings while exploiting poor people who are desperate to do anything for decent housing, writes Anthea Houston.

On 3 May 2022, fifteen months after violently invading apartments, building hijackers at the Goedehoop residential complex in Brooklyn, Cape Town were finally removed by the Sheriff of the Courts. This milestone is bitter-sweet for Communicare as property owner.

The hijackers took advantage of the initial inaction by the South African Police Services, the slow pace of the law required by due process and eventually of the State of Disaster’s regulations to continue to live in 22 apartments. Their extended illegal occupation of the apartments threatens the success of social landlords in the continued provision of much-needed affordable housing.

The attempted hijacking began with violent action in February 2021 to occupy the complex owned by Communicare, a non-profit housing enterprise.

 

Forced to approach the courts 

While the invasion was in progress, SAPS erroneously disregarded trespassing laws and prevented Communicare from protecting its tenants and property. The law enforcement officers mistakenly thought that the organisation should first secure a court order to stop the hijackers from grabbing the apartments. They argued that Communicare ought to go through the lengthy Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE) process. This forced Communicare to incur the cost and take the time to approach the courts for an urgent Spoliation Order.

The courts agreed with Communicare and issued a Spoilation Order in May 2021. Spoliation is a legal remedy to return the property to its rightful owner, where the property has been unlawfully acquired. The court ordered the hijackers to leave immediately, dismissing their claims that they had a right to reside at Goedehoop. In its judgment, the court mentioned that the hijackers “conduct can probably be regarded as criminal in the manner that they took occupation of the various units”.

For Communicare and its lawful Goedehoop tenants, this court victory proved hollow when the hijackers proceeded to use the courts to frustrate justice being served. They appealed the Cape High Court’s judgment and when this was denied, they applied for leave to appeal in the Supreme Court of South Africa. In their application, they admitted that their actions were illegal, but attempted to argue for the judgment to be overturned on a legal technicality. For close to a year, they failed to make certain submissions required by the Supreme Court before withdrawing the application in February 2022. In doing this, they deliberately abused the law and courts, buying time to illegally rent out the apartments themselves while Communicare lost over R1.1m in rental income.

Given the hijackers’ appetite for violence, and with the country still being in the State of Disaster, the Sheriff of the courts was cautious in proceeding to carry out the Court order. The Sheriff waited for the High Court Registrar to endorse the original order and for law enforcement to commit to deploying considerable human resources before removing the hijackers this month, nearly a year after the order was granted.

 

Financial costs 

The financial cost of this saga was carried by tenants, tax-payers and a non-profit organisation. The wheels of justice turned slowly, and this resulted in the hijackers living rent-free and/or ‘renting out’ these apartments for more than a year. During this time, they intimidated Communicare’s lawful tenants at the complex to provide them access to water and electricity. All the while, Communicare had to maintain the property and pay its municipal bills to ensure smooth service provision to our lawful tenants at Goedehoop.

Violent hijackings such as what occurred in Goedehoop terrify lawful tenants, driving up security costs phenomenally. Communicare contracted additional security for over a year to enhance the security of our law-abiding tenants at great expense.

Despite additional security, some tenants opted to cancel their leases and move out. The hijacking has also discouraged prospective tenants from considering leasing at Goedehoop which left several units vacant despite the favourable rentals, currently about 30% below market rates for the area. These vacant units become targets for more hijackings, continuing a vicious cycle.

The extended ongoing presence of the non-rent paying hijackers at Goedehoop prompted some previously loyal tenants to withhold their rent due to the perilous state of affairs and perceptions that lawlessness was being unfairly rewarded. This contributed to a further loss of revenue by Communicare. More worryingly, it placed the non-paying lawful tenants into a level of debt that they are unlikely to be able to service, resulting in their credit ratings deteriorating and in their possible unfortunate future eviction.

 

Moratorium on evictions 

Meanwhile, many civil society organisations recently approached President Ramaphosa to implement a moratorium on evictions after the lifting of the National State of Disaster. While it is important to protect vulnerable households that have been hard hit by the Covid-19 pandemic, a blanket moratorium will also shield opportunists such as the Goedehoop hijackers. It is important that any protections implemented by government be sufficiently flexible and discerning so that thugs do not exploit it for illicit gain. Many social housing institutions like Communicare have already provided relief to affected tenants by offering rental discounts, deferring payments and rental holidays, based on each individual case.

The consequences for organisations like Communicare and other social landlords are dire. Most social landlords operate precarious financial models which are dependent on rental income, already set below market rates, to maintain the property and pay for services. Social landlords rent to households with low incomes and operate without grants from government to cover operating costs.

Fortunately, Communicare’s social enterprise approach enables it to ‘ride out this storm,’ however, many social landlords are forced simply cut their losses by abandoning their property and lawful tenants when faced with building hijackings.

Such hijackings also put the much-needed investment and delivery of social housing at risk. Investors find the potential to lose years of rental income too high a risk to bear. This reality places the provision of affordable rental homes, the core mandate of social housing institutions, under threat of collapse.

Regrettably, criminal syndicates have innovatively found ways to exploit the laws, the courts and the Covid-19 pandemic to hijack buildings while exploiting poor people who are desperate to do anything for decent housing.

While Communicare is legally compliant, such experiences are a miscarriage of justice, fuelling criminal activity. Social landlords and innocent tenants are entitled to be protected by the law to ensure that would-be slumlords do not capture the social housing market.

– Anthea Houston is the CEO of Communicare

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