On 20 February 2015 the Mchunu case was settled in the Durban High Court. An order was agreed by consent, with the municipality offering houses at an acceptable location to the residents within 16 months.
The case involves 37 residents of the Richmond Farm Transit Camp who were evicted from the Siyanda informal settlement in 2009 to allow for the construction of a road. One of the conditions of the eviction order against them was that they would be provided with permanent housing within a year. The residents were to be accommodated in permanent housing at the Khulula housing project near KwaMashu, however these houses were allocated to other unknown persons. The residents are still waiting for houses to be provided to them.
In March 2013 the municipality made a proposal to house the respondents at Lovu Housing, which the residents believe is some 50km away from Khulula. The municipality never identified exactly where the houses at Lovu are, and has never made them available for inspection, despite the residents' repeated requests. The municipality wanted the court to declare that it has discharged its obligations by offering these houses to the residents. The residents argued that there is no basis for such an order because they have not seen the housing the municipality refers to, do not know where it is or if it even exists. They launched a counter-application asking the court to order the municipality to comply with its obligations under court orders issued in 2009 and 2012 by providing houses on one of the vacant sites at the Khulula housing project, alternatively on another site within a reasonable distance of Khulula.
On 19 February 2015 application for leave to appeal the Hlophe judgment will be heard in the Supreme Court of Appeal (SCA). This appeal arises from an eviction case where the City of Johannesburg was ordered to provide alternative accommodation to the residents of a building called Chung Hua Mansions in inner city Johannesburg. This did not happen, despite three court orders being issued.
In 2013 judgment was handed down in the South Gauteng High Court directing the Executive Mayor, City Manager and Director of Housing for the City to personally explain why it had not acted to provide shelter, and to take all the steps necessary to provide shelter within two months. 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.
The City applied for leave to appeal this judgment to the SCA. Its appeal is based on the proposition that functionaries 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.
The residents argue that the appeal should be dismissed with costs. They argue that, having endured the continuing breach of three court orders intended to ensure the provision of alternative accommodation, the residents were entitled to pursue mandatory relief against the functionaries in control of the City. The residents are represented in court by Paul Kennedy SC and Stuart Wilson.
Today marks the first day of the relocation of 46 households living at the Taylor Road informal settlement located in Honeydew Manor Ext 27. Sixteen households are currently being relocated to Fleurhof, a mixed housing development located on Main Reef Road in Johannesburg where they will receive full ownership of subsidised flats. The remaining occupiers will relocate on 31 January, some to Fleurhof and others to the Ruimsig informal settlement where they will be allowed to rebuild their homes.
The much anticipated relocation comes after the City of Johannesburg was ordered by the South Gauteng High Court in February 2014 to provide the residents of the settlement (many of whom have lived there for 20 years) with alternative accommodation, following an eviction application by a private developer. The residents are protected by either the Extension of Security of Tenure Act (ESTA) or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). After a number of missed relocation deadlines by the City, the residents are finally relocating with the assistance of SERI.
On 20 January 2015 residents of the Ekuthuleni shelter in inner city Johannesburg filed their answering affidavit to the City of Johannesburg's petition to the SCA for leave to appeal the Dladla judgment.
The judgment, handed down in the South Gauteng High Court on 22 August 2014, found that the City and MES' day-time lockout rule is an unjustifiable infringement of the residents' constitutional rights to dignity, freedom and security of person, and privacy. The court also found that the City and MES' refusal to permit the residents to reside in communal rooms together with their spouses or permanent life partners is an infringement of their constitutional rights to dignity and privacy.
In September 2014 the City filed an application in the South Gauteng High Court for leave to appeal the judgment to the SCA; however the High Court dismissed the application with costs. The residents oppose the City’s latest application, arguing that it is inconsistent with the residents' constitutional rights to dignity, freedom and security of the person and privacy. The City’s rules and conditions corrode the residents' well-being and self-respect, and deprive them of the most fundamental form of social support available to anyone: the company of a loving family. They also severely restrict the respondents’ autonomy by curtailing their ability to make the most basic decisions about how to live their daily lives. The City has simply never offered a basis upon which these clear breaches of the residents' rights can be justified in terms of section 36 of the Constitution. Instead, the City claims that its rules and conditions are convenient, practical and, even, reasonable. But that is not enough. The City nowhere makes a coherent argument that its rules and conditions are constitutional.
SERI is delighted by the ratification by the South African government of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which will enter into force on 12 April 2015. The South African government signed the ICESCR twenty years ago and while it has taken its time to ratify the ICESCR, it is an important step forward that the ICESCR will now have greater force.
SERI looks forward to the government’s speedy ratification of, or accession to, the Optional Protocol to the ICESCR (OP-ICESCR) – an action that will consolidate South Africa's role in advancing the rights of poor people around the world to a decent standard of living.
The OP-ICESCR is an additional treaty that provides an individual complaint mechanism (such as exists for the other major international human rights treaties, including the International Covenant on Civil and Political Rights). This mechanism further promotes a culture of accountability for implementing the ICESCR. It empowers vulnerable and marginalised groups to lodge individual complaints at the international level regarding violations of their socio-economic rights