damages claim - Cato Crest informal settlement - Land Invasion Unit - eThekwini Metropolitan Municipality - Minister of Safety and Security
SERI, together with Bowmans in Durban, represents a resident of Cato Crest informal settlement in Durban, Nkosinathi Mngomezulu, in various damages claims against the eThekwini Metropolitan Municipality and the Minister of Safety and Security. Mngomezulu is claiming damages for the physical injuries he sustained when a security officer in the municipality's land invasion unit shot him in the stomach four times, as well as for the desctuction of his shack and his unlawful attest and detention on charges of assault and attempted murder.
On 21 September 2013, the municipality's land invasion unit illegally demolished Mngomezulu and various other Cato Crest residents' shacks, in violation of a series of court orders handed down in the preceding months that restrained the municipality from evicting any person or demolishing any shack at Cato Crest informal settlement (see the Mzimela case). While physically resisting this demolition, Mngomezulu was shot four times by a security officer in the municipality's land invasion unit. Then, after recovering for more than three months in hospital, Mngomezulu was arrested and detained initially on charges of assault and later on charges of atttempted murder. During the entire time Mngomezulu was recovering he was handcuffed to his bed.
It is on the basis of this unlawful attack, destruction of his shack, and the subsequent unlawful arrest and detention that Mngomezulu, assisted by Abahlali baseMjondolo, claims damages. The case was heard between 31 July and 4 August 2017 in the Durban High Court. At the trail, Mngmezulu was represented by advocates Anne Marie de Vos SC, Stuart Wilson and Irene de Vos.
On 20 August 2017, the Durban High Court handed down judgment in the case. Judge Pillay upheld Mngomezulu's claim for unlawful arrest and detention, ordering the Minister of Safety and Security to compensate Mngomezulu for the infringement of his rights. However, the court dimissed Mngomezulu's claims for personal injury and the unlawful destruction of his shack. The court dismissed Mngomezulu's claim for the personal injuries he sustained on the basis that Mngomezulu had "violated the rule of law" when he tried to prevent the municipality's land invasion unit from illegally evicting himself and the other residents of Cato Crest. According to Judge Pillay, this meant that the security officer was acting in self-defence when he shot Mngomezulu in the stomach four times. The court made this finding despite the fact that it recognised that the land invasion unit was acting unlawfully when it carried out evictions and demolitions at the settlement. The court dismissed Mngomezulu's claim for the destruction of his shack because he could not provide a precise address for it. For the court, this meant Mngomezulu must have been lying about having a shack in the informal settlement.
A month later on 20 September 2017, SERI, on behalf of Mngomezulu, filed an application for leave to appeal Judge Pillay's decision. In this application, SERI argues that the court's finding that an informal settlement resident does not have a home in an informal settlement because he or she cannot give a precise address is naive to the realities faced by poor and vulnerable people in South Africa, and that the court's finding that Mngomezulu “violated the rule of law” by defending himself against an illegal eviction cannot be legally supported.