illegal eviction - Bapsfontein informal settlement - Ekurhuleni Metropolitan Municipality - amicus curiae - Constitutional Court

SERI has been admitted as amicus curiae in the above matter, heard in the Constitutional Court on 15 September 2011.

The applicants, represented by Lawyers for Human Rights (LHR), are several hundred former occupiers of the Bapsfontein informal settlement who were evicted and relocated over a distance of approximately 30 kms. There was no court order authorising their eviction. The Ekurhuleni Metropolitan Municipality claimed the authority to do so in terms of a directive issued section 55 (2) of the Disaster Management Act 57 of 2002, mandating the applicants’ evacuation to temporary shelter. SERI submits that the directive did not provide a lawful basis for the relocation of the occupiers because: the occupiers did not consent to the relocation; there was no court order authorising the relocation, contrary to section 26 (3) of the Constitution; and the Disaster Management Act does not purport to limit the right not to be evicted without a court order and would not, if it did, meet the requirements for a limitation of rights set out in section 36 of the Constitution.

SERI submits that the directive issued under the Disaster Management Act should have triggered the application of section 6 of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (PIE Act) in the circumstances of this case. The relocation of the occupiers should have been applied for in terms of that provision.

On 6 December 2011, judgment was handed down in the Constitutional Court. The Court found that the actions of the municipality - in forcibly removing the residents of Bapsfontein and demolishing their homes without a court order, allegedly as a result of the imminent danger created by sinkholes in the area - was unauthorised in law and contrary to section 26(3) of the Constitution. The Court declared the municipality's removal of thousands of people from Bapsfontein unlawful, and ordered the municipality to provide land to the evictees “within the immediate vicinity of Bapsfontein”.

Enforcement and contempt proceedings

A series of events and non-compliance led to the Constitutional Court enrolling the matter for hearing on 12 August 2014. The decision arose out of the extraordinary events which have occurred since the judgment was handed down in 2011.

• Directions were issued by the Court on 21 November 2013, requiring the municipality to file a report on the progress made in respect to undertakings made to the N12 Highway Park Community and the Mayfield Community. These were not implemented by the municipality.
• Subsequently, on 12 March 2014, further directions were issued by the Court which should have been complied with by 14 April 2014. These directions were also not complied with.
• It was in these circumstances that the present directions were issued. They have also not been complied with.
• The directions of 15 May 2014 required the municipality to submit its affidavit by no later than 17 June 2014 explaining why it should not be held in contempt of court. By 17 June 2014, no affidavit had been filed by the municipality. The municipality’s affidavit was only filed on 25 July 2014. The report however fails to satisfy the terms of the order of 12 March 2014.

SERI has been admitted as amicus curiae in the matter. We argue that it is equitable for the Court to issue a declaratory order that the municipality is in contempt of the order of 12 March 2014. Any punitive or structural consequences of the declaratory order cannot be addressed without a joinder of the Mayor or the Municipal Manager, the functionaries who bear constitutional and statutory obligations to ensure compliance with court orders. SERI submits that a rule nisi calling upon the Mayor and the Municipal Manager to show cause why they should not be joined as parties to the application and why the orders have not been complied with would be a just and equitable order.

The matter was heard in the Constitutional Court on 12 August 2014. SERI was represented by Adv Tembeka Ngcukaitobi. On 28 August 2014 the Court handed down an order, declaring the municipality in breach of its constitutional obligations by failing to abide by the two court orders. The Court ordered the Mayor and City Manager to show cause why they should not be joined to proceedings and for the municipality to identify to the court any other office-bearers or officials who are responsible for compliance with orders of the court.

On 17 September the municipality brought an application seeking to join the MEC in the proceedings; however before he had a chance to respond to the application, the municipality withdrew it stating that it and the MEC had addressed and resolved the issues pertaining to the necessary financial resources and the implementation of a comprehensive plan to provide these resources to the municipality. On 5 December the Chief Justice filed directions in terms of which the MEC was directed to show cause why he should not be joined to the proceedings. On 12 December the MEC filed an affidavit, stating that under the circumstances he does not feel he should be joined to the proceedings.

On 7 May the Constitutional Court handed down a unanimous judgment, endorsing SERI's submission as amicus and joining the Executive Mayor, Municipal Manager, Ekurhuleni Head of Department for Human Settlements and the Gauteng MEC for Human Settlements to the proceedings for the purpose of implementing the supervisory order.

• Constitutional Court judgment here and media summary (7 May 2015) here.
• MEC's affidavit (12 December 2014) here.
• Order (28 August 2014) here.
• SERI's amicus curiae written submissions (6 August 2014) here.
• SERI press release (6 December 2011) here.
• LHR press release (6 December 2011) here.
• Constitutional Court judgment (6 December 2011) here.
• SERI heads of argument here and practice note here.
• SERI's application for leave to intervene as amicus curiae here.