Chung Hua - enforcement application - contempt of court
On 20 December 2012, SERI launched an enforcement application to declare the Executive Mayor, the City Manager and the Director of Housing of the City of Johannesburg, in their respective capacities, constitutionally and statutorily obliged to take all the necessary steps to make sure that the City complies with the June 2012 order granted by Judge Claassen in the Chung Hua eviction case (see here).
In the wake of this order the City had provided a report claiming, falsely, that it does not have the resources to comply with the order. On 4 February 2013, SERI filed its heads of argument and practice note in the enforcement application, which was heard on 6 February 2013. Judge Lamont handed down an order that suspends the eviction of the occupiers until the hearing on 9 April 2013. The City and its officials - the Executive Major, City Manager and Director of Housing - are ordered to comply with the previous order granted by Judge Claassen i.e. to provide alternative accommodation to the occupiers. The City is also ordered to file a report setting out the nature and location of the temporary accommodation, before the matter goes back to court.
The City stated that it "can't" comply with the order, and would be unable to do so for at least another 9 months. It did not say when it would, ultimately, be able to provide a building for our clients. In this application, SERI seeks an order declaring that the Mayor, the City Manager and the Director of Housing are responsible for taking all the necessary steps to see to it that the City complies with the order, failing which we will be able apply to have them committed for contempt. It is hoped that a positive decision in this case will build on the precedent established in Mchunu v Mayor of eThekwini, where similar relief was granted. Concise heads of argument and a practice note were filed on 8 April 2013 and the case was heard on 10 April 2013.
On 3 May 2013, judgment was handed down by Judge Satchwell. She directed the Executive Mayor, City Manager and Director of Housing for the City to personally explain why the City has not acted to provide shelter to the homeless, over 18 months after a Constitutional Court decision requiring it to do so. They must also take all the steps necessary to provide shelter to the 201 occupiers of Chung Hua Mansions within two months. If they do not, the Mayor, City Manager and the Director of Housing could be held in contempt, and be handed a fine or jail time as a result. In granting the residents' application, Judge Satchwell said that the City could not simply "throw its hands up in horror" every time it had to house people about to be evicted. She also ordered the City to report on what it has done to respond to the Blue Moonlight judgment more generally. The report, which she ordered must be provided by 18 May 2013, must set out what budget the City has allocated to provide shelter to the residents and other poor people facing eviction, and whether it had set up a specific department to deal with people facing homelessness.
The City applied for leave to appeal this judgment to the Supreme Court of Appeal and on 12 June 2013 leave to appeal was argued in the High Court.
On 14 June, Judge Satchwell handed down an interim order directing the parties to "meaningfully engage" with each other in relation to the accommodation at Linatex House, the terms and conditions on which the accommodation will be provided and any objections to them which may be raised by the occupiers, and the procedure and timetable to be followed in relocating to Linatex House. The occupiers are to be given access to Linatex House, for the purpose of inspecting and assessing the accommodation. The parties must file and affidavit or affidavits dealing with what agreements, if any, have been reached during the engagement process by no later than 26 July 2013. The eviction order granted by Judge Claassen is suspended during this time. On 29 July 2013, SERI filed an affidavit to the court setting out the engagement process to date.
In October 2013 an answering affidavit by the occupiers was filed in the leave to appeal application. It argues that, because accommodation has been tendered by the City, and all that remains to be decided is the terms on which that accommodation will be provided, the applicants’ proposed appeal is now academic and should be dismissed.
In July 2014 the occupiers filed their heads of argument in the SCA. The hearing took place on 19 February 2015. Judgment was handed down on 18 March 2015, in which the SCA upheld the appeal only in terms of setting aside paragraph 2 of the order of the court a quo. The appellants were ordered to pay the costs of the appeal.
The City subsequently appealed the judgment to the Constitutional Court. The residents opposed this application, arguing that the City's case has been marred throughout by a fundamental misconception of what the order against which it seeks leave to appeal actually requires. On 29 May 2015 the Constitutional Court dismissed the City’s application for leave to appeal, with costs.
The City finally offered accommodation in portacabins, on open land to the south of the inner city, which it said would be ready by September 2015. The accommodation was not ready by September 2015.
SERI then instituted contempt proceedings against the Mayor of Johannesburg.
In the meantime, the owner of Chung Hua Mansions sold the property. On 30 November 2015, the new owners, together with the police, illegally evicted the residents of Chung Hua again. SERI brought an urgent application against the eviction and the residents were re-admitted to their homes in terms of an order granted by Sutherland J in early December 2015.
Eventually the City identified a small building next to a sports field just to the south of the inner city, to which 93 Chung Hua residents were relocated on 9 and 11 January 2016.