Today SERI filed its heads of argument in the Hlophe case, to be heard in the SCA later in 2014. The City of Johannesburg is appealing a High Court judgment handed down in 2013 after residents of Chung Hua Mansions instituted proceedings to obtain an order directing the Executive Mayor, City Manager and Director of Housing ("the functionaries") to take steps in terms of their constitutional and statutory obligations, to make the City comply with its court-ordered obligations to provide accommodation to the residents.
On 3 April 2013 the High Court directed the functionaries to “take all the necessary steps” to see to it that the City discharged its court-ordered obligations. Just over a month later, the City tendered accommodation to the residents, despite having insisted for nearly a year that this was “impossible”. Once the functionaries faced the likelihood that they would have to account for the City’s consistent refusal to obey orders of court, the “impossible” became “possible”.
The main issue in this appeal arises in this context. It is whether, having endured the breach of three court orders intended to ensure the provision of alternative accommodation, the residents are prohibited, in principle, from pursuing mandatory relief against the functionaries in control of the City. The latter argue that they can never be directed to perform their constitutional and statutory duties to see to it that the City obeys court orders, no matter how protracted or severe the disobedience, and no matter how severe the consequences of non-compliance.
SERI argues that this extreme claim relies on a fundamental misconception. The functionaries suggest that the order of the High Court imposed “direct and personal” liability on them to perform obligations that properly fall on the City. But that is simply not the relief the residents sought, or what the High Court ordered. The functionaries were ordered to take the necessary steps in terms of their own constitutional and statutory obligations, to cause the City to obey a court order against it. In other words, the functionaries were not directed to perform the City’s obligations themselves. They were directed to discharge their own statutory obligations as the senior officials responsible for the City’s operations, to ensure that those operations brought about compliance with the relevant court orders.