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 trial, 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.
On 29 June 2018, SERI, on behalf of Mngomezulu, filed heads of argument to the Supreme Court of Appeal (SCA), arguing that the High Court erred in dismissing Mngomezulu’s claims for personal injury and unlawful destruction of his shack. SERI is appealing the High Court’s failure to apply the requirements for self-defence to the municipality’s use of force against Mngomezulu in determining that he did not have a claim for personal injury. SERI argues that the municipality failed to show that the officer who shot Mngomezulu was under attack which was already in the process or imminent, that such attack was unlawful, and the act of self-defence was reasonable and proportionate to the circumstances and that the officer did not have any time to resort to a different, less violent form of protecting himself. Without these elements, the attack on Mngomezulu cannot be considered self-defence but an unlawful attack. However, the High Court dismissed his claim for personal injury on the basis that his refusal to back down in the face of illegal force “violated the rule of law”, this proposition is obviously deeply problematic on its face, and our case on appeal is essentially that Mngomezulu was not required to back down in the face of illegal force and that the force used against him was in any event disproportionate.
Secondly, SERI argues that it was not necessary for Mngomezulu to establish that he had a home at the settlement, or that he had a close association with it, to sustain his personal injury claim. And lastly, that Mngomezulu’s claim for unlawful destruction of his shack should have succeeded and that the High Court erred by refusing the claim for unlawful demolition of his shack on the basis that he had not established that he had a shack in Cato Crest that was destroyed by providing an address for the shack.
The case was heard in the SCA on 3 May 2019 and judgment has been reserved.