constitutional validity of court order - amicus curiae - Constitutional Court

In January 2014 the Constitutional Court admitted Abahlali baseMjondolo as amicus curiae in the Zulu case, which concerns the interpretation of the interim interdict obtained by the KwaZulu-Natal MEC for Human Settlements and Public Works from Koen J in the Durban High Court in March 2013. The case was brought by the Legal Resources Centre (LRC) on behalf of 390 occupiers living on property in Lamontville, known as Madlala Village.

The order permits and obliges eThekwini Municipality and the police 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. It is this order that was used to justify the Cato Crest evictions in 2013 (see the Mzimela case), and Abahlali has thousands of members with an interest in any case dealing with the validity of the MEC's order.

The case was heard in the Constitutional Court on 12 February 2014. On 6 June 2014, the Court handed down judgment. The Court found that the interim order amounted to an eviction order, finding that the 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 stated that this dishonest submission was “unacceptable”. Despite these findings, the Court did not set the interim order aside, instead stating that the case be referred back to the Durban High Court. The minority judgment of van der Westhuizen J found that the order was invalid because it was granted in breach of the Constitution.

In 2014 a decision was taken to consolidate the Zulu and Mzimela cases. SERI represents Abahlali and 30 Cato Crest residents as applicants in Mzimela, and as interveners in the Zulu case. The two cases were heard on 21 May 2015 in the Durban High Court.

Abahlali and the residents argue that the interim interdict granted by Koen J is a nullity because the order was granted against a party which had not been joined or served, and was in breach of the applicable statute. Further, the residents argue that the interdict purports to authorise the eviction of thousands of people living on 1 568 properties throughout the municipality without the occupiers of these properties having been joined to, or given notice of, the proceedings that led to it being granted, and without compliance with section 26(3) of the Constitution or the PIE Act. The municipality claims that the evictions it carried out against the Cato Crest residents between 13 August and 15 September 2013 were lawful because they were carried out in compliance with the interim interdict; however because it was a nullity it follows that the evictions carried out in terms of it were unlawful.

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.

The MEC applied for leave to appeal in the Durban High Court. On 19 October 2015, the court considered whether the MEC's scheme had prospects for success in an appellate court. SERI, acting for Abahlali, contended that the MEC's plan, if implemented, would give authorisation to carry out thousands of illegal evictions without court orders. The court dismissed with costs the MEC's application. It found that the scheme had no prospects for success in large part because f the broad scope of the order and its failure to notify the vast majority of individuals who would face eviction.

• SERI press statement (19 October 2015) here.
• SERI's heads of argument in the MEC's application for leave to appeal (19 October 2015) here.
• SERI press statement (20 August 2015) here.
• Durban High Court judgment (20 August 2015) here.
• Heads of argument here and practice note (12 May 2015) here.
• Constitutional Court judgment (6 June 2014) here.
• Amicus curiae's written submissions here, practice note here and list of authorities here (23 January 2014).
• Application for leave to intervene in Constitutional Court: notice of motion here and founding affidavit (4 December 2013) here.
• Read more on the Cato Crest evictions here.