Durban - Shack dwellers in Lamontville, south of Durban, whose homes were allegedly demolished by the eThekwini Municipality a total of 24 times after being rebuilt, may finally have their day in court after a series of setbacks.
on Friday the Constitutional Court granted the 390 appellants leave to intervene in court proceedings initiated by the KwaZulu-Natal MEC for human settlements and public works. Residents of the Madlala village in Lamontville had gone all the way to the highest court after the Durban High Court initially ruled against their application.
In March last year, KZN Human Settlements MEC Ravi Pillay was granted an interim order that allowed the council to demolish structures and evict people who occupy or attempt to invade land earmarked for 37 provincial low-cost housing projects in Lamontville.
The residents brought an application against the MEC, the municipality and the minister of police for leave to intervene in the proceedings. They complained that the MEC had not cited them in the original application, even though the order affected them as it related to the property they lived on.
However, the municipality and the MEC opposed the application, saying the residents had no legal standing in the court proceedings as the interim order did not affect them or their rights because it only related to invasions or attempted invasions that had occurred or would occur after the granting of the order.
The residents said they had lived in Madlala since September 2012 and that the municipality’s Land Invasion Control Unit had demolished their informal homes soon after they were built. They rebuilt their homes but the unit regularly visited the property, evicted them and demolished their homes, they said.
Each time, they rebuilt their homes. They said their homes had been demolished 24 times – without a court order.
The municipality contended that its land invasion unit had found that there were people who were illegally trying to invade the Lamontville property and put up structures.
It also said the shacks that were demolished were half- completed and not occupied.
The municipality denied that the shack dwellers had lived there since September 2012.
The MEC acknowledged that there were people occupying the property, but had said she had only disputed their right to occupy it.
She had also acknowledged that the Legal Resource Centre was representing the residents in negotiations with her officials and said if those negotiations failed she would launch court proceedings for evictions.
After Judge Gregory Kruger dismissed the residents’ application in the Durban High Court in April last year they applied for leave to appeal but this application, too, was refused.
They then petitioned the Supreme Court of Appeal for leave to appeal, but it was also dismissed.
The Constitutional Court, however, granted the application. Justice Ray Zondo, with eight judges concurring, said the interim order had acted as an eviction order. “The high court erred in dismissing their (the residents’) application for leave to intervene. That being the case, the appeal must succeed,” he said.
Zondo said, however, that the lawfulness of the demolitions was pending in the high court and he did not say anything on the issue.
“In my view, this court should allow the high court proceedings to take their normal course. There are already about three cases pending before the high court between the residents and the respondents which are all connected with the demolition of structures on the Lamontville property. The parties must be given an opportunity to find a way of bringing them to finality in one way or another,” he said.
The shack dwellers movement, Abahlali baseMjondolo, which was added as a “friend of the court” in the residents’ application, had been eagerly awaiting the outcome of the appeal as it had a similar pending matter in the high court.
The movement’s attorney, Tashwill Esterhuizen, said Abahlali would definitely attack the validity of the order once the matter was referred back to the Durban High Court.
The Socio-Economic Rights Institute of SA, which represented Abahlali in the matter, welcomed the verdict, but said it was disappointed that the majority judgment had not commented on the lawfulness of the interim order.
“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 institute said in a statement.
“The municipality has shown it has no qualms about evicting poor people repeatedly and without warning.”