illegal eviction - urgent interdict - Cato Crest informal settlement - Durban High Court

SERI represents residents of the Cato Crest informal settlement whose shacks were illegal demolished by eThekwini Municipality and the Land Invasion Unit. On 1 and 2 September 2013 the municipality illegally demolished shacks at the settlement, in violation of an undertaking made to the Durban High Court on 22 August 2013 that it would halt evictions pending the finalisation of the application for a final order.

On 2 September 2013 the residents, assisted by Abahlali baseCato Crest - a newly formed branch of Abahlali baseMjondolo - went to court on an urgent basis to stop the evictions. An urgent interdict was granted interdicting and restraining the municipality from evicting the residents or demolishing their structures without a court order. The municipality was ordered to construct “temporary habitable dwellings that afford shelter, privacy and amenities at least equivalent to those destroyed, and which are capable of being dismantled, at the site at which their previous informal housing structures were demolished” to the residents whose shacks were demolished. The residents were represented in court by SERI's correspondent in Durban, Nichols Attorneys, and Advocate David Saks.

Despite this interdict, the municipality continued to demolish shacks. The residents were forced to return to court on 6 September for the third time to apply for a contempt of court order. The High Court granted a rule nisi (an interim order to be confirmed at a later date) which compelled the City Manager and the Head of the Land Invasion Unit to appear at court on 12 September to explain why they should not be imprisoned for 30 days for allowing illegal evictions to continue at Cato Crest in contempt of court. Despite this, demolitions continued at the settlement.

On 12 September the respondents delivered their answering affidavit in respect of the contempt application. A supplementary affidavit was also filed by Abahlali setting out the facts of the most recent demolitions at the settlement. The parties agreed to an order which directed the legal representatives of the parties to meet at the settlement on 17 September to identify and mark the residents' shacks. The municipality was interdicted and restrained from demolishing, removing or otherwise disposing of any of these informal structures pending the finalisation of the application. The illegal evictions at Cato Crest informal settlement continued over the weekend of 14 and 15 September, despite the interdict. On 30 September 17 year old Nqobile Nzuza was shot dead following a protest at the settlement.

The residents discovered that on 28 March 2013 an interim interdict had been obtained by the KwaZulu-Natal MEC for Human Settlements and Public Works from Judge Koen in the Durban High Court. The interdict authorised the municipality and police to take any necessary steps to "prevent any persons from invading and/or occupying and/or undertaking the construction of any structures and/or placing any material upon the immoveable properties" listed, and to “remove any materials placed by any persons upon” that land. This order was used to justify the Cato Crest evictions.

In October 2013 the Cato Crest occupiers and Abahlali served their reply to the MEC’s answering affidavit. They also launched an application in terms of Rule 6(12)(c) of the Uniform Rules of Court to reconsider an order granted on an urgent basis on 10 October which allowed the local ward committee leave to intervene in the application for an final interdict brought by the Cato Crest residents. This was heard on 24 October 2013. There was no appearance on behalf of the ward committee and the order was set aside and the ward committee’s application for leave to intervene dismissed.

On 13 January 2014 the Constitutional Court admitted Abahlali as amicus curiae in the Zulu case, which was heard on 12 February 2014. The main issue to be determined in this appeal was the constitutional validity of the order granted to the MEC on 28 March 2013 (read more the Zulu case here).

In 2014 the Mzimela and Zulu cases were consolidated and on 21 May 2015 they were heard jointly in the Durban High Court.

On 20 August 2015 the presiding Judge set aside the interim order, and refused to amend it in the manner requested by the MEC. The Judge also granted costs against the MEC. This was a substantial victory for Abahlali. The case is likely to have a far-reaching national impact, as so-called land occupation interdicts are regularly used to circumvent PIE across South Africa.

• SERI press statement (20 August 2015) here.
• Durban High Court judgment (20 August 2015) here.
• Application in terms of Rule 6(12)(c) of the Uniform Rules of Court (18 October 2013) here.
• Replying affidavit to MEC's answering affidavit (18 October 2013) here.
• MEC's answering affidavit (8 October 2013) here.
• Court order (28 March 2013) here.
• General Council of the Bar press statement (23 September 2013) here.
• Court order (12 September 2013) here.
• SERI press release on eThekwini contempt of court (9 September 2013) here.
• Rule nisi for contempt of court order (6 September 2013) here.
• SERI press release (2 September 2013) here.
• Court order (2 September 2013) here.
• Interim order (22 August 2013) here.