In December 2011 the Constitutional Court handed down judgment in the Bapsfontein (Pheko) case, finding the removal of thousands of people from Bapsfontein by Ekurhuleni Metropolitan Municipality unlawful, and ordering the municipality to provide land to the evictees “within the immediate vicinity of Bapsfontein”. The residents are represented by Lawyers for Human Rights (LHR) and SERI made a submission to the court as amicus curiae.
A series of events and non-compliance by the municipality led to the Court enrolling the matter again, a decision that arose out of the extraordinary events which have occurred since the judgment was handed down in 2011.
The enforcement and contempt proceedings were heard in the Constitutional Court on 12 August 2014. SERI was again admitted as amicus curiae, represented by Adv Tembeka Ngcukaitobi. SERI argued that it is equitable for the Court to issue a declaratory order that the municipality is in contempt of an order handed down on 12 March 2014, and that 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 argued 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.
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.