Concourt slams "unacceptable" evictions
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."
Read more about the case and find all the papers here.
Read the Constitutional Court judgment (6 June 2014) here.
Statement issued by Tashwill Esterhuizen, attorney at SERI, June 6 2014
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