Residents of a KwaMashu informal settlement and the shack dwellers’ movement Abahlali baseMjondolo have taken the eThekwini Municipality to court for failing to comply with a court order to provide homes for residents evicted
from the area.
In 2009, residents of the Siyanda settlement near KwaMashu were evicted from their shacks by the Department of Transport and relocated to transit camps to make way for the construction of Dumisani Makhaye Drive.
Despite opposition from residents, an eviction order was granted on March 6, 2009, and the residents were relocated less than two weeks later.
The court order stated that all basic services be provided in the transit camps, and that the residents be moved to formal houses within 12 months.
More than three years later, the movement said residents have no water, electricity or sanitation and are still waiting for houses.
In the Durban High Court on Monday, advocate Geoff Budlender SC, acting for the residents, said: “If the court made an order for the municipality to do something and they can’t, the matter should have gone back to court.
“They [eThekwini Municipality] can’t say they’re not going to comply because they cannot afford it. The municipality has a constitutional obligation.”
Budlender argued that the city was looking for excuses not to comply with the order.
The municipality’s counsel, John Pammenter SC, argued before Acting Judge Nigel Hollis that it was shocking that the order had been granted.
“No one told us that the order sought was to compel the municipality to supply houses. The order should never have been sought,” Pammenter said.
The municipality had found out two weeks after the matter was finalised that the order had been granted compelling it to provide houses, Pammenter said.
“We were asked by the MEC for transport to provide 560 houses and we did that. Out of the blue, we heard that the order asked the city to provide more houses.”
Pammenter said there was no obligation to provide homes for the 38 applicants housed in transit camps on Richmond Farm because the municipality did not provide housing from its own funds.
He said the order was “fundamentally wrong”.
Acting Judge Hollis said: “If the municipality is saying it [the order] should never have been granted, why didn’t they do something about it?”
Pammenter said the city should have been obliged to report on the availability of houses. “No proper investigation was done,” he said.
Acting Judge Hollis said: “It’s all very well to say there’s no money. For emergencies like this they [the city] might be able to ask for special funds.”
The matter was adjourned for a decision.