SOCIAL MOVEMENTS & ORGANISATIONS CALL FOR NATIONAL EVICTION MORATORIUM TO BE EXTENDED TO PREVENT A CATASTROPHIC RISE IN HOMELESSNESS

7 April 2022

Following President Cyril Ramaphosa’s announcement that the government would lift the Disaster Management Act regulations with regard to the COVID-19 pandemic on 4 April 2022, 32 social justice movements, civil society organisations and activists fighting for land and housing rights have called on the Presidency and the National Command Council to extend the national moratorium on executing evictions until the state produces a sustainable solution to mass foreclosures, evictions and the resultant homelessness.

The President’s statement is silent on what the state’s position is with respect to the moratorium on evictions.

The last two years have been testament to the importance of the home in the preservation of human life. The reality is, the economic fallout of the pandemic will continue to pose a very real threat to hundreds of thousands of poor and working class families of losing the roof over their heads.

Instead of viewing housing as a commodity, the state has a renewed obligation to protect the social function of housing. In keeping with the imperative to save lives, distressed families and ensuring social stability, the government has a duty to ensure individuals, families and communities emerge from this pandemic whole; without crippling debts and without facing eviction or homelessness.

As social movements, community based organisations and civil society, we have repeatedly stressed, the pandemic has only exacerbated the endemic systems, lack and dispossession manifest in asset and income insecurity. The surge in homelessness in municipalities like the City of Cape Town, is indicative of an acute shortage of affordable housing and/or economic security towards housing. Observations from global institutions show that the manner in which people have been disenfranchised by the pandemic could overwhelmingly be linked to a lack of adequate and affordable housing.

Housing is a basic human need. It is also a universal human right enshrined in the South African Constitution, the Universal Declaration of Human Rights, and the International Covenant on Economic, Social and Cultural Rights. Despite this, the need to enact and protect this right has been severely undermined by the state - at all levels.

The lifting of the national moratorium on evictions will have disastrous consequences for those living with precarious tenure. Specifically, regulation 70 empowered courts hearing eviction proceedings to delay the execution of evictions until after the National State of Disaster lapsed. In terms of the PIE Act and regulation 70, courts can only grant an eviction order if an eviction would be just and equitable after considering all the relevant circumstances, including any pandemic-related circumstances like families losing their income as a result of the pandemic.

Crucially, the availability of alternative accommodation to house evictees must be available as our courts have unequivocally pronounced that no eviction may lead to homelessness.

If the government lifts the ban on evictions now, the country will face a secondary crisis of foreclosures, evictions and homelessness in the wake of a global health crisis. And, as has been the case throughout lockdown, we are deeply concerned about the continuing illegal evictions and demolitions as carried out by the government – including municipalities across the country - and private actors.

We call on the government to use empowering legislation to expedite the response to the immediate consequence of pandemic: a crisis of evictions and homelessness, specifically preventing failure to pay rent or bonds while placing mechanisms in place for requisite relief funds for tenants, landlords and bond payers.

Housing is the basis of stability and security for an individual or family. The centre of our social, emotional and sometimes economic lives, a home should be a sanctuary—a place to live in peace, security and dignity.

- United Nations Special Rapporteur on the Right to Adequate Housing, Balakrishnan Rajagopal.

● Read the letter to the Presidency and National Coronavirus Command Council here:

Text of letter:

NDIFUNA UKWAZI

c/o: Aditya Kumar, Executive Director

Mpho Raboeane, Attorney

To: THE PRESIDENCY: NATIONAL COMMAND COUNCIL

c/o: Ms Malebo Sibiya & Mr Mike Louw

7 April 2022

And To: DEPUTY SPEAKER OF THE NATIONAL ASSEMBLY HONOURABLE MS NOSIVIWE MAPISA-NQAKULA

Per Email: [email protected]

THE MINISTER OF JUSTICE & CORRECTIONAL SERVICES: MINISTER RONALD LAMOLA

c/o: Ms Zanele Ndlovu and Mr Bruce Sarela

DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: DEPUTY MINISTER JOHN JEFFERY

THE MINISTER OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS: DR NKOSAZANA DLAMINI ZUMA

c/o: Ms Mandisa Mbele & Ms Pamela Salusalu

THE MINISTER OF HUMAN SETTLEMENTS: MINISTER MMAMOLOKO KUBAYI

c/o: Ms Nompumelelo Madlala, & Ms Zoleka Ndudane

THE MINISTER OF RURAL DEVELOPMENT AND LAND REFORM: MINISTER THOKO DIDIZA

c/o: Ms Nwabisa Kale & Ms Nomtandazo Moyo

Per email: PA.Minister@daff.gov.za & cosmin@daff.gov.za

THE MINISTER OF HEALTH: DR MATHUME JOSEPH PHAAHLA

c/o: Dr Lwazi Manzi

Dear Honourable President Ramaphosa, Honourable Speaker Mapisa-Nqakula and Honourable Ministers,

RE: NDIFUNA UKWAZI SUBMISSION FOR EXTENSION OF EVICTIONS MORATORIUM

1. Ndifuna Ukwazi (“NU”) is a non-profit activist organisation and law centre that combines research, organising and litigation in campaigns to advance urban land justice in Cape Town. Our primary mission is to expand and protect access to affordable housing towards building a more just and equal city.

2. Over the last seven years, Ndifuna Ukwazi has been involved in legal, research and organising work around evictions, relocations, rental housing, the allocation of state-subsidised housing, the management of public land in a manner that prioritises socio-economic needs and the promotion of social, transitional and inclusionary housing. We have published several resource guides and research reports on these issues. Ndifuna Ukwazi has also been involved in a series of important court cases dealing with land occupations, evictions, the provision of alternative accommodation, and the state’s constitutional and legislative obligation to combat spatial apartheid and promote spatial, economic and racial justice and equality through expanding access to land and affordable housing.

3. This submission follows prior correspondence addressed to the Presidency, specifically the National Covid-19 Command Council, namely:

3.1. a letter from NU on behalf of 27 social justice organisations dated 20 March 2020, proposing an urgent moratorium on the issuing and execution of all eviction orders during the declared State of National Disaster. This proposal was made in recognition of South Africa’s national lockdown and stay-at- home policy in order to curb the spread of Covid-19, as well as the dire situation that many households threatened with evictions would face - being at a heightened risk of infection;

3.2. a letter from the Centre for Applied Legal Studies (“CALS”) on behalf of 23 organisations (including NU), dated 11 May 2020, regarding proposed amendments to Regulation 19 of the regulations issued in terms of section 27(2) of the Disaster Management Act, 2002 (“DMA”) on 29 April 2020 detailing Alert Level 4 of the Risk Adjusted Strategy; and

3.3. a letter from NU on behalf of 41 social justice organisations dated 3 June 2020, recommending amendments to Regulation 36 of the regulations issued in terms of section 27(2) of the DMA on 28 May detailing Alert Level 3 of the Risk Adjusted Strategy (“Alert Level 3 Regulations”); and

3.4. written submissions made to representatives from the Departments of Cooperative Governance and Traditional Affairs and civil society organisations in June 2020 wherein we set out:

(i) the measures taken by the Government in response to the Covid-19 outbreak in the context of accessing a home and evictions;

(ii) challenges with these measures and the implementation thereof and the resultant impact on the right to access a home during the national lockdown period; and

(iii) six recommendations to address the various challenges as identified.

4. On 15 March 2020, the Minister of Cooperative Governance and Traditional Affairs issued regulations in terms of the Disaster Management Act, citing the magnitude and severity of the Covid-19 outbreak and the express need to augment measures taken by various organs of state to respond to the unprecedented pandemic. Following international best practice, the South African government in consultation with the specially constituted National Command Council, issued directives and regulations as provided for in the Act in order to safeguard lives as the country navigated its path through a global health crisis. And whilst the health crisis appears to have been relatively contained, all other facets of society are yet to fully recover, with the pandemic having induced increased vulnerability of marginalised and precarious middle-class members of society alike.

5. It is for these reasons that the moratorium on evictions must be extended beyond the cessation of the National State of Disaster, with the current regulations pertaining to evictions and rental housing in place until measures are in place to ensure the adequate protection of thousands facing homelessness as a result of the pandemic. The state and other social partners have a moral duty towards the hardest hit in our society to mobilise resources (financial and vacant or underutilised property assets) toward an immediate humanitarian response toward keeping the vulnerable population housed.

6. It must be acknowledged that the pandemic has taken a significant toll on the country’s economy. This crisis has only foregrounded and exacerbated the effects of the unabaiting socio-economic inequality experienced by millions in this country. It is therefore critical that the period following the National State of Disaster be deliberate in providing adequate safeguards to prevent hunger, inadequate housing and unemployment becoming permanent features of our society.

Economic recovery imperatives must be accompanied by social imperatives

7. Economically, residents have not recovered enough to shoulder both the rising cost of accommodation as well as service increasing debt. Apart from having the highest unemployment figures in the world¹, South Africans are facing crippling debt to income ratios, showing up to two-thirds of income going towards debt payments - and this is in the top two income bands². Interest rates are increasing, the cost of living and inflation increasing markedly, debt levels are increasing, all whilst disposable income stagnates³.

8. The financial support offered by the government during the height of lockdown was practically insufficient for housing expenses, be it rent or mortgage payments. Thus households are effectively becoming poorer and poorer over time. Further, programmes like the UIF Covid-19 temporary employer-employee relief scheme (‘TERS’) and the R350 unemployment grant were fraught with difficulties, with the former having ended. In the context of financial support for housing in particular, the only relief offered by the government was the Residential Rental Relief scheme. This has largely been targeted at social housing companies, rather than tenants who struggled to pay their rent on time. It did not extend beyond social housing. Similarly, small scale landlords in particular have also suffered significant losses to their income, livelihoods and security. Specifically, landlords have been unable to pass on any savings to tenants as their debt commitments such as mortgages had only been temporarily suspended and enjoyed no interruption in rates and taxes⁴.

9. In the government’s Economic Reconstruction and Recovery Plan, significant undertakings are made to prioritise and implement measures that will match the proportions of this unprecedented crisis which had found the country in a technical recession. Yet, despite the objective of spurring the country out of the abyss of entrenched inequality, deepening poverty and spiralling unemployment,⁵ no consideration has been paid to the underlying structural impediments to stability and growth: secure tenure specifically for those thrown into food, income and housing insecurity.

10. The Economic Reconstruction and Recovery Plan’s cornerstones include the principle of protecting low-income workers, the unemployed and vulnerable groups⁶ as encapsulated in the first phase of the Plan’s implementation, that is, “[s]aving lives first; saving distressed households and ensuring social stability and food security”⁷. The last two years are testament to the importance of the home in the preservation of human life. Yet, the measures contemplated in the Recovery Plan are absent targeted support for this fundamental human need. The response currently articulated by the Recovery Plan presupposes access to a home and security of tenure. The reality is, the economic fallout of the pandemic will continue to pose the very real threat of losing the roof over their heads for many families. Instead of viewing housing as a commodity, states have a renewed obligation to protect the social function of housing. In keeping with the imperative to save lives, distressed households and ensuring social stability it is incumbent on the state to ensure communities, families and individuals emerge from this pandemic whole, without crippling debts, without facing possible eviction or homelessness.

11. There can be no economic stability or recovery where the country is on the brink of a secondary crisis of homelessness and a destructive wave of evictions. The centrality of secure housing in any society cannot be gainsaid as:

“Housing is the basis of stability and security for an individual or family. The centre of our social, emotional and sometimes economic lives, a home should be a sanctuary—a place to live in peace, security and dignity”⁸.

12. Housing is therefore invariably at the centre of all recovery efforts. This is undeniable given that such efforts are geared towards people – people significantly affected by the pandemic and who face being plunged further into poverty, unable to afford to shelter, feed and clothe themselves and their families. South Africa in particular cannot hope to foster any real recovery from the destabilising shock that came with the pandemic without addressing the tenure insecurity both preceding and following the pandemic. As we have repeatedly stressed, the pandemic has only served to expose the endemic systems lack and dispossession manifest in asset and income insecurity. The surge in homelessness in the Cape Town Metro, for instance, is testament to the lack of financial security implicit in secure access to adequate housing. As such, observations from global institutions show that the manner in which people have been disenfranchised by the pandemic may predominantly be linked to a lack of adequate and affordable housing⁹. Thus, recovery efforts must necessarily centre the provision and protection of the right to access housing given its ‘foundational societal importance and multiple cross-societal benefits’¹⁰.

13. The fact that housing is a basic human need underlies its recognition as a universal human right as enshrined by our Constitution, the Universal Declaration of Human Rights, and International Covenant on Economic, Social and Cultural Rights¹¹. The centrality of this right to human life was made all the more apparent during the Covid-19 global pandemic with international best practice mandating sheltering at home to prevent the contraction and spread of the virus. The trappings of an adequate home provided the best defence against Covid-19 in lieu of an effective vaccine and for a significant period thereafter in developing countries subjected to vaccine apartheid by wealthier countries as lamented by our President Cyril Ramaphosa¹².

14. Our President rightly called for life preserving vaccines to be “made available to all, not just the highest bidders”¹³ with equitable access being guaranteed to all regardless of socio-economic standing echoing “our commitment to the advancement of equality and human rights, not just in our own country but around the world"¹⁴. This cannot only be the case with vaccines. This very principle must be applicable to the primary source of protection against the spread of the virus – access to adequate housing – even beyond the context of the current pandemic. Recovery and Reconstruction legislation, policy and politics must reflect our reality throughout the pandemic, that is, “the protection of the fundamental right to housing has perhaps never been more important”¹⁵.

Failure to safeguard affordable housing

15. The Residential Rent Relief Scheme was originally touted as providing “temporary financial relief for residential low-income tenants and landlords in circumstances where tenants have been unable and are unable to meet their rental obligations as a consequence of financial distress associated with the Covid-19 lockdown”¹⁶. After an inordinate delay of over a year in the publishing of the requisite policy for this scheme, the conception of intended beneficiaries was narrowed to tenants in state subsidised social housing excluding a significant portion of the low income/affordable rental tenants by relying on a narrow definition of “formal affordable rental housing”¹⁷.

16. At the height of the lockdown, almost a third of tenants were unable to pay their rent at all or in full¹⁸. Studies revealed that many tenants had likely lost part or all of their income, with sectors such as casual and commission-based labour being the hardest hit¹⁹. Yet, the relief scheme was only made available almost a year after the first months of lockdown had resulted in massive job losses and no doubt after many tenants, finding themselves unable to pay rent, had vacated voluntarily or otherwise. The prospects of losing one’s home as a result of the pandemic remain high for low-income tenants in affordable rental accommodation. Effectively leaving the hungry, homeless and poor to shoulder the societal burden occasioned by the pandemic is immoral, contrary to international human rights obligations and the promises held in the Constitution.

17. The legislated blanket moratorium on evictions offered a short-term respite - in theory. Yet in reality, illegal evictions conducted by state and private actors alike continued even throughout the hard lockdown. In addition to weaknesses in the enforcement of the moratorium, no legal protection existed to prevent cancellation of leases leading to tenants being legally declared unlawful occupiers by virtue of the failure to fulfil their rental obligations through no fault of their own.

18. It is against this background that we have, and continue to call for financial support for low-income tenants who are acutely at risk of losing their homes, as this sector of the rental market remains in distress²⁰. This support is in line with the UN Committee on Economic, Social and Cultural and Cultural Rights’ requirement that South Africa provide “social relief and income-support programmes to ensure food and income security to all those in need” in addition to ensuring protection of tenure security during the pandemic²¹.

Consequences of lifting the moratorium

19. Under the current socio economic circumstances of the country, the suspension of the regulations pertaining to evictions and demolitions will have a detrimental effect on those with precarious tenure. Specifically, regulation 70 empowered courts hearing eviction proceedings to stay the execution of evictions until after the National State of Disaster. The regulations also mandated courts to take heed of pandemic-related considerations when deciding whether an eviction order would be just and equitable in the circumstances. These protections now stand to fall away leaving tenants and mortgage payers in a vulnerable position. Similarly, tenants in rental accommodation who are still suffering the economic effects of the pandemic stand to lose substantial protection and bargaining power²² as was provided for in the various Alert Level regulations governing rental housing under the national state of disaster.

20. As a result, we are concerned about an increase in the number of eviction applications following the lifting of the State of Disaster. We are particularly concerned that the country will face a secondary crisis of foreclosures, evictions and homelessness in the wake of a global health crisis. And, as has been the case throughout lockdown, we are concerned about the continuing illegal evictions and demolitions as carried out by both state and private actors. An influx of foreclosure and eviction applications may further seriously undermine the functioning of our already overburdened court system.

21. We are further concerned that vulnerable population groups such as farm dwellers and farm workers will particularly be affected by the lack of protection.

22. Post-pandemic South Africa faces a myriad of challenges, both stemming from and exacerbated by the pandemic. Immediate concerns such as the highest unemployment rate in the world, income and food insecurity and the resultant societal unrest are all equally relatable to tenure insecurity. Restrictive health measures have thrown housing into sharp focus, particularly the need to provide shelter in preservation of life as illustrated through the sheltering of thousands of homeless people at the height of lockdown.

Supportive and preventative measures provided in other jurisdictions

23. In other jurisdictions such as the United States of America (‘USA’), eviction moratoria were accompanied by emergency rental assistance payments that were available to both landlords and tenants thereby providing further protection and housing stability for tenants through supporting affected landlords²³.

24. This emergency fund was created in response to concerns about the economic effects of the Covid-19 pandemic on renters and their landlords. Specifically, Congress created a $25 billion Emergency Rental Assistance (ERA) programme in the Consolidated Appropriations Act, 2021 (Division N of P.L. 116-260). The initial phase of funding was then followed by a second round of ERA funding—$21.55 billion—which was included in Section 3201 of the American Rescue Plan Act of 2021 (P.L. 117-2).

25. The ERA programme is funded through the Coronavirus Relief Fund (CRF) that was established by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act,

P.L. 116-136) and implemented by the Department of the Treasury. The ERA programme directed resources to states, localities, and tribes via a per capita formula allocation. The second round of ERA funding included a set-aside of $2.5 billion for “high need” grantees.

26. P.L. 116-260 established various parameters for how the first round of ERA funding (ERA-1) can be used. Among other requirements, states and localities were mandated to use the bulk of funds for financial assistance, which is defined to include rental assistance and utility assistance (including payment of arrears).

Remaining funds may be used for housing stability services (case management and other supports to help families retain their housing) and administrative expenses. In terms of the criteria for eligibility, beneficiaries must be low-income tenants, experiencing financial hardship, and at risk of homelessness or housing insecurity²⁴.

27. Thus, when state and local moratoria ended, these jurisdictions created temporary “eviction off-ramps” to allow for households eligible for emergency rental assistance the requisite time to access these funds without facing eviction and phasing in eviction processes for households not in need of financial assistance²⁵. Further, to ensure the efficacy of this assistance, several states and local administrations in the USA have implemented policy requirements directing landlords to apply for emergency rental assistance before applying for an eviction order from the courts.

28. The Emergency Rental Assistance programme and the subsequent state and locally implemented “off ramp” approach provides a clear example of how state funded relief may be used to address tenure insecurity that will follow the lifting of the eviction moratorium as rent and mortgage arrears accumulated over the lockdown and beyond become due.

29. Inspired by these preventative measures, we implore the state to include policies to keep people housed as part of its recovery response toward developing these measures into safeguards that protect humanity and promote human dignity after the pandemic ends and well into the future. For the state to experience any measure of success in reaching a social compact with its people hardest hit by the effects of the pandemic, the guiding principle for intervention must be to meet people where they are. At present, it is the poor, working class and marginalised that are acutely at risk of losing their homes while fighting to feed and sustain their families. Moreover, a social response cognisant of basic human needs, especially housing imperatives, is warranted where “[P]ost-pandemic recovery trajectories promise most success if economic and social imperatives can be pursued in parallel”²⁶.

Recommendations

30. In addition to the USA example of effective relief funding programmes directed at limiting evictions and homelessness occasioned by the pandemic, we direct you to the recommendations following the former UN Special Rapporteur on the right to adequate housing’s Covid 19 Guidance Notes.

31. The following recommendations are adapted from the Guidance Notes on Protecting renters and mortgage payers²⁷ and Protecting housing from financialization and building back a better future²⁸. The state is urged to:

31.1. Organise consultations at the national and local level between governments, relevant stakeholders, tenant unions, community housing associations, residents’ and homeowners' associations, housing finance providers, housing developers and construction companies to address housing issues aggravated by Covid-19 and develop rights-based housing strategies at national and local level in line with existing recommendations.

31.2. Use empowering legislation²⁹ to expedite the response to the immediate consequence of pandemic: a crisis of evictions and homelessness, specifically preventing failure to pay rent or mortgage as a result of the pandemic as a lawful premise for eviction while placing mechanisms in place for requisite relief funds for tenants, landlords and mortgage payers.

31.3. Provision of housing by increasing stock through acquisitions. Instructively, the High Level Panel recommends that well-situated urban land be prioritised for low-cost housing and services that target the poor to address the legacy of past exclusion and spatial inequality before it can be released for other purposes. Secondly, the Panel advocates for the expropriation of well-situated private land where landowners are holding it for speculative purposes. Section 25(3) of the Constitution specifies that the current use of a property should be considered when determining compensation³⁰.

31.4. This can also be initiated by enacting the right of first refusal legislation for subnational and national governments to purchase ‘for sale’ properties on the private market. Key opportunities have arisen given the projected rise in asset disposal rates of commercial property. According to STANLIB Property, “disposals have been concentrated mainly in the retail and office sectors... Listed property funds sold office assets with a range of vacancy profiles in 2020 and will continue to do so in the year ahead”³¹ . This may include taking steps to convert commercial real estate into temporary and emergency

housing in the short-term, with a view to converting the units into affordable and social housing in the long-term³².

31.5. Care must be taken to avoid private investors utilising their vast finances, which often exceed those of municipalities, to make bids for real estate that are far greater than the market value knowing these cannot be matched, and then implementing even higher rents to recoup the higher purchase price. Once purchased, these public assets must be used as social and affordable housing. To this end, States should work collaboratively with national and local public housing providers, community housing associations, housing unions and housing cooperatives.

30.6. Create policies and legislation regarding rent and mortgage relief to ensure that tenants and homeowners will not suffer eviction or foreclosure owing to their inability to pay outstanding debts once their rent or mortgage relief terminates.

30.7. Maximise financial assistance for individuals and households, particularly tenants, rather than providing benefits to investor companies and their shareholders for loss of rental income.

30.8. Ensure lenders provide preferential treatment to borrowers wishing to purchase real estate for its social function and create emergency, affordable and social housing to assist those in need both during and after the pandemic.

30.9. Ensure that any public support or stimulus packages directed to the real estate and construction sector is conditional on the building of affordable, accessible and environmentally sustainable housing guaranteeing a social mix. The percentage of units that must be made available as low-income or affordable housing must be calculated so that it meaningfully responds to the demand in the local context.

Conclusion

31. The state cannot in good conscience end the moratorium on evictions without guarding against mass eviction and homelessness where there is already spiraling unemployment and instability. Failure by the state to keep the most vulnerable housed in the current circumstances will have disastrous socio-economic implications. The country is already in the grip of social unrest that has the potential to escalate where people cannot feed their families and ensure that they have a place to call home. The critical acknowledgment that the Covid-19 public health crisis has created is an undue burden on ordinary people in society. Households living in precarious conditions or with insecure tenure cannot be made to bear the cost of the pandemic at the expense of their own lives. There can be no legitimate social compact in those circumstances. Given the centrality of a safe home to any recovery effort, keeping the vulnerable housed is indeed a societal imperative beyond the lifting of the eviction moratorium and is essential in preventing a secondary crisis of evictions and homelessness.

32. Should you wish to discuss any aspect of our submission, please do not hesitate to contact our offices.

Yours faithfully,

Ndifuna Ukwazi

(Per: Mpho Raboeane, Attorney)

[Sent electronically]

This letter has the endorsement of the following organisations, social movements and tenant organisations:

1. Ndifuna Ukwazi

2. Reclaim the City

3. Abahlali baseMjondolo

4. Afesis-Corplan

5. Alliance for Rural Democracy (ARD)

6, Association for Rural Advancement (ARFA)

7. Centre for Applied Legal Studies

8. Centre for Environmental Rights

9. Development Action Group (DAG)

10. Dullah Omar Institute (DOI) at UWC

11. Equal Education

12. 12. Equal Education Law Centre

13. Housing Assembly

14. Institute for Poverty, Land and Agrarian Studies (PLAAS), University of Western Cape

15. Land Access Movement of South Africa (LAMOSA)

16. Land and Accountability Research Centre (LARC), University of Cape Town

17. Movement for Care 18. Nkuzi Development Association

19. Organisation for Civic Engagement

20. Planact

21. Poor Flat Dwellers Association

22. Progressive Health Forum 23. Rural Democracy Trust 24. Right2Know

25. Singabalapha

26. Social Justice Coalition (SJC)

27. Social Policy Institute

28. Socio-Economic Rights Institute of South Africa (SERI)

29. Souper Troopers

30. Stellenbosch Backyard Dwellers Forum

31. Tshisimani Centre for Activist Education

32. Women's Legal Centre

¹ See “South Africa’s unemployment rate is now highest in the world” Aljazeera (24 August 2021) available at: https://www.aljazeera.com/economy/2021/8/24/south-africas-unemployment-rate-is-now-the-worlds-highest ² See “South Africa’s middle class in serious trouble” BusinessTech (February 2022) available at: https://businesstech.co.za/news/finance/554692/south-africas-middle-class-is-in-serious-trouble/ Further, according to Trading Economics, “Households Debt To Income in South Africa is expected to reach 75.00 percent by the end of 2022, according to Trading Economics global macro models and analysts’ expectations. In the long-term, the South Africa Households Debt To Income is projected to trend around 77.00 percent in 2023, according to our econometric models.” Analysis available at:

https://tradingeconomics.com/south-africa/households-debt-to-income#:~:text=Households%20Debt%20To%2 0Income%20in%20South%20Africa%20is%20expected%20to,macro%20models%20and%20analysts%20expecta tions.

³ “South Africa’s middle class in serious trouble” BusinessTech (February 2022) available at: https://businesstech.co.za/news/finance/554692/south-africas-middle-class-is-in-serious-trouble/

⁴ Warby, V. “Landlords strangled by Covid-19 lockdown regulations on evictions” IOL (March 2021) available at: https://www.iol.co.za/news/politics/landlords-strangled-by-covid-19-lockdown-regulations-on-evictions-7daa8 df4-6cbb-42d7-88c1-ca194d9b0608.

⁵ The Presidency, “The South African Economic Reconstruction And Recovery Plan” (October 2020) at 4.

⁶ Id at 8.

⁷ Id at 9.

⁸ United Nations Human Rights Office of the High Commissioner, “The Human Right to Adequate Housing”. Available at: https://www.ohchr.org/en/special-procedures/sr-housing/human-right-adequate-housing.

⁹Dr S Wetzstein et al, “Housing at the Center of Recovery: Building back better through policies and systems in the developing world” Habitat for Humanity International (March 2021) at 4. Available at: https://www.habitat.org/sites/default/files/documents/Housing%20at%20the%20Center%20of%20Recovery-P olicy%20Brief%20Discussion.pdf.

¹⁰ Id.

¹¹ Adequate housing was recognized as part of the right to an adequate standard of living in article 25 of the 1948 Universal Declaration of Human Rights article 11.1 of the 1966 International Covenant on Economic, Social and Cultural Rights. This right is enshrined in section 26 of the 1996 Constitution of South Africa.

¹² See for instance

https://www.reuters.com/world/africa/south-africa-warns-vaccine-apartheid-if-rich-countries-hog-shots-2021- 05-10/

¹³ President C Ramaphosa, “From the desk of the president” (May 2021) available at https://www.gov.za/blog/desk-president-66.

¹⁴ Id.
¹⁵ Dr S Wetzstein et al, “Housing at the Center of Recovery: Building back better through policies and systems in the developing world” Habitat for Humanity International (March 2021) at 14. Available at: https://www.habitat.org/sites/default/files/documents/Housing%20at%20the%20Center%20of%20Recovery-P olicy%20Brief%20Discussion.pdf.

¹⁶ National Assembly, Question 2868 for written reply (27 November 2020) available at: https://www.parliament.gov.za/storage/app/media/Docs/exe_rq_na/7d163d98-3943-49cd-8f35-ae1b3286670 3.pdf.

¹⁷ Minister Sisulu, L., Address by Minister for Human Settlements, Water and Sanitation on the occasion of the Debate on the Human Settlements Budget Vote (33) in the National Assembly (May 2021), available at: https://www.gov.za/speeches/minister-lindiwe-sisulu-human-settlements-dept-budget-vote-202122-18-may-20 21-0000. Further, this narrowly delineated conception of affordable rental housing has the effect of excluding even the state subsidised Community Residential Units (CRU) rental programme which is targeted at households within the R0 - R800 income groups renting as well as the R801 – R3200 income groups.

¹⁸ A cumulative 32% of residential tenants failed to pay the full rental amount: almost 16% of tenants did not pay any rent in April 2020, and a further 16% did not pay the full amount, according to preliminary data from Tenant Profile Network (TPN).

¹⁹ TPN Credit Bureau,TPN Residential Rental Monitor Quarter 2 2020 (10 September 2020) at 2. Available at https://www.tpn.co.za/Group/Home/Media.

²⁰ Mabuza, E.,“Rentals will suffer after lockdown, 'especially at lower end'”, Sunday Times (21 May 2020) available at:

https://www.timeslive.co.za/news/south-africa/2020-05-21-rentals-will-suffer-after-lockdown-especially-at-low er-end/ See also BusinessTech,“Here’s how many South Africans are behind on their rent” (28 March 2021) available at:

https://businesstech.co.za/news/property/478485/heres-how-many-south-africans-are-behind-on-their-rent/. ²¹ E/C.12/2020/1 available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f2020%2f 1&Lang=en.

²² Regulation 71(2) extends conduct deemed to be an unfair practice in terms of the Rental Housing Act 50 of 1999 to include pandemic specific considerations such as:

“(b) The imposition of any penalty for the late payment of rental where the default is caused by the disaster, whether or not the penalty takes the form of an administrative charge or any other form other than interest.

(c) the failure by either party to engage in good faith to make arrangements to cater for the exigencies of the disaster;

(d) Any other conduct prejudicing the ongoing occupancy of a place of residence; prejudicing the health of any person or prejudicing the ability of any person to comply with the applicable restrictions on movement that is unreasonable or oppressive having regard to the prevailing circumstances.”

²³ Drissen G.A., Perl L., McCarty M., “Pandemic Relief: The Emergency Rental Assistance Program” Congressional Research Service R46688 (October 2021) at 1. Available at: https://crsreports.congress.gov/product/pdf/R/R46688#:~:text=The%20Emergency%20Rental%20Assistance%2 0(ERA,Consolidated%20Appropriations%20Act%2C%202021%20(P.L.

²⁴ Id. While the intention of the ERA programme was to assist those most in need, this demographic has also faced significant challenges in accessing the funding. Many point to delays in distribution and arduous application processes. It is therefore advisable to take these challenges and learnings from the Residential Rental Relief Scheme into consideration when formulating a response for the South African context.

²⁵ For instance, Minnesota’s moratorium transitioned to an “eviction off-ramp” on August 13, 2021, allowing a stay for renters with pending rental assistance applications until June 2022. Similarly, the District of Columbia allowed evictions for non-payment of rent to resume in October 2021 where the tenant did not qualify for emergency rental assistance or the application unsuccessful and not under appeal. See National Low Income Housing Coalition (January 2022) “Tenant Protections and Emergency Rental Assistance during and beyond the Covid-19 Pandemic”. Available at:

https://nlihc.org/sites/default/files/Tenant-Protections_Emergency-Rental-Assistance-during_beyond_COVID-1 9_Pandemic.pdf.

²⁶ Dr S Wetzstein et al, “Housing at the Center of Recovery: Building back better through policies and systems in the developing world” Habitat for Humanity International (March 2021) at 14. Available at: https://www.habitat.org/sites/default/files/documents/Housing%20at%20the%20Center%20of%20Recovery-P olicy%20Brief%20Discussion.pdf.

²⁷ Farha, L.,“COVID-19 Guidance Note: Protecting renters and mortgage payers.” (8 April 2020) United Nations Human Rights Special Procedures.

²⁸ Farha, L.,“COVID-19 Guidance Note: Protecting housing from financialization and building back a better future.” (28 April 2020) United Nations Human Rights Special Procedures

²⁹ Empowering Legislation such as the Disaster Management Act s27(2) which provides for the issuing of regulations or directives towards:

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combatting disruption; or

(e) dealing with the destructive and other effects of the disaster.

³⁰ Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change at 55-56.

³¹ Stanlib, The rise of the virtual office: what does this mean for SA property? (May 2021) Available at: https://stanlib.com/2021/05/27/the-rise-of-the-virtual-office-what-does-this-mean-for-sa-property/.

³² The commercial property market is forecasted to recover in 2025 and remains burdened with high vacancy rates from q4 2021 well into the future. See also

https://www.dailymaverick.co.za/article/2022-02-07-sa-landlords-left-to-sweat-on-the-future-of-working-space s/.

ENDS

https://nu.org.za/wp-content/uploads/2022/04/Letter-to-Government_-Effect-of-Moratorium-ending.docx.pdf

Statement issued by Ndifuna Ukwazi, 7 April 2022