On 6 June 2014, the Constitutional Court handed down judgment in Zulu and 389 Others v eThekwini Municipality and Others (Zulu). SERI represents Abahlali baseMjondolo (Abahlali) who acted as amicus curiae in the case. The case concerned the interpretation of a court order obtained by the KwaZulu-Natal MEC for Human Settlements and Public Works on 28 March 2013 from the Durban High Court. The order permits the Durban municipality to “prevent any persons from invading and/or occupying and/or undertaking the construction of any structures” on specified land within the municipality’s area of jurisdiction and to “remove any materials placed by any persons upon” that land. The order was used to justify the Cato Crest evictions in 2013.
SERI welcomes the Constitutional Court’s finding that the order amounted to an eviction order, and its finding that the eThekwini Municipality had used the order to evict people. The municipality had argued that the order could not and was not used to evict people, even though the municipality had relied on it to evict the appellants 25 times. The court correctly found this dishonest submission to be “unacceptable”. SERI also welcomes the judgment of van der Westhuizen J, which found that the order was invalid because it was granted in breach of the Constitution.
However, the majority judgment did not pronounce on the lawfulness of the order, and referred the matter back to the High Court for further proceedings. This is unfortunate. The order applies to potentially thousands of people on 1 568 properties. These people are at risk of summary eviction until it is set aside. The municipality has shown that it has no qualms about evicting poor people repeatedly and without warning.
Tashwill Esterhuizen, attorney for Abahlali, the amicus curiae in the case, said: “We welcome the judgment. Our client has always been of the view that the interim order obtained by the MEC amounts to an unlawful eviction order. It's a pity that the majority judgment did not deem it necessary to pronounce on the constitutionality of the interim order. We are in agreement with separate judgment of van der Westhuizen J in which he held that the interim order is unlawful and it violates the residents rights under PIE and section 26(3) of the Constitution. Our client will certainly attack the validity of the order once the matter is referred back to the Durban High Court.”
On Friday 30 May 2014, SERI partnered up with the directors of the full-length documentary film "Dear Mandela" and Local Government Action (LGA) to host a pilot Dear Mandela audience engagement workshop for approximately 40 people in Lindelane informal settlement outside Daveyton. Lindelani residents face a severe lack of basic services and are subject to constant threat of eviction.
The workshop consisted of a screening of the film, which portrays the struggles of a number of young activists that are members of the shackdwellers social movement Abahlali baseMjondolo as they resist illegal evictions. The screening was followed by a discussion facilitated by the directors' of the film. Using the film as a springboard for discussion and learning, SERI engaged the community about defending themselves from illegal evictions, their right to protest and ways to engage local government officials. Further workshops will be organised based on this model in future.
Today SERI convened a civil society roundtable discussion on municipal indigent policies and the provision of free basic services (FBS) in South Africa. The roundtable marked the official launch of a SERI research report entitled "Targeting the Poor? An Analysis of Free Basic Services (FBS) and Municipal Indigent Policies in South Africa". A summary of the report is available here.
The report provides an overview of the law and policies relevant to free basic services (FBS) and municipal indigent policies in South Africa. It details the regulations and strategies around FBS - which includes free basic water (FBW), free basic electricity (FBE), free basic sanitation (FBSan) and free basic refuse removal (BRR) - and examines the framework policy and implementation guidelines for municipal indigent policies.
SERI's research highlights problems with the implementation of indigent policies, around the following issues: targeting methods for FBS, municipal systems of indigent application, conditionalities attached to indigent status and FBS, and FBS amount provided. While the policy aim of the FBS programme is ensure that poor households are able to access basic services, its current implementation has the overall effect of targeting poor households for exclusion.
Abahlali baseMjondolo has filed its heads of argument as amicus curiae in the Marikana land occupation appeal. The appeal will be heard on 27 May 2014 in the Supreme Court of Appeal (SCA). The occupiers are represented by the Legal Resources Centre (LRC), while SERI represents Abahlali as amicus in the appeal.
The case involves the occupation of a piece of privately-owned land, dubbed "Marikana", located in Philippi, Cape Town. The property owner and the City of Cape Town are appealing an order handed down by the Western Cape High Court in March 2014, which found that the City's Anti-Land Invasion Unit had unlawfully demolished informal structures on the land. The City was ordered to rebuild the shacks. The court rejected the City's argument that it was entitled to demolish structures without a court order if it deemed the structures were unoccupied.
This case raises important issues relating to the circumstances in which an organ of state may take steps to remove people and material from unlawfully occupied land, and/or demolish structures erected on that land, without an order of court authorising an eviction.
SERI's May 2014 newsletter is now available here. This is the first edition for 2014 and highlights SERI's research, advocacy and litigation work over the past 6 months. To sign up for SERI newsletters, press statements etc, fill out the mailing list form here.