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The government and residents of Lenasia, whose homes have been demolished, can only reach an amicable settlement if the government recognises its fault in demolishing the homes, say human rights experts.
And it also has to compensate those whose homes have been demolished and future victims.
On Friday, Johannesburg High Court Judge Phineas Mojapelo stopped any further demolition of illegally built homes in Lenasia, but granted an indefinite postponement until an out-of-court solution was found.
The South African Human Rights Commission, representing the residents, approached the court two weeks ago after 50 homes were demolished. The houses had been built on land belonging to the Gauteng Department of Housing.
The commission wanted to stop the government from demolishing a further 113 homes.
The commission and the department have since agreed to meet tomorrow to try to resolve the dispute.
But constitutional law expert Pierre de Vos says the government will “have to meet the people halfway”.
“They will need to be compensated and there has to be some form of admission by the government.”
He said it was a difficult case as the court had, in the past, said people could not be treated in a heartless fashion, but had also insisted on respect for the rule of law.
“There is a law but there is also a constitution prohibiting arbitrary evictions,” said De Vos.
“I would think that in this case, since it is government land, the best solution is for the people to stay on the land and for the government to work around that.
“It would be a waste of money and resources [to move the people]. They have already built the houses. It would have been ideal to stop the building from the start.
“That was a fault on the government’s part.”
De Vos said that unless there was evidence that the residents were crooked in acquiring the land, the court would side with the people and not the government.
Stuart Wilson, director of litigation at The Socio-Economic Rights Institute of South Africa, said destroying people’s homes was an “immoral” thing to do.
Wilson said the people bought the land in “good faith”.
“They can’t be treated like someone who just went and constructed a house on land they don’t own.”
Wilson said if the department recognised that “it failed to control its own officials from selling land fraudulently” an amicable solution could be reached.
Expelled ANC Youth League leader Julius Malema, who also attended the court case, has called for the people to be compensated.
On Friday he told residents
“South Africans are hungry for land”.
“People must use all the pieces of land they can find. There is no mickey mouse who is going to demolish your houses,” Malema said to a cheering crowd outside the court.
Malema called on Housing Minister Tokyo Sexwale to intervene.
Malema visited the areas where houses were demolished, flanked by suspended ANCYL spokesman Floyd Shivambu and suspended secretary-general Sindiso Magaqa.
Malema assured Lenasia residents that the court order would be enforced and asked for corrupt housing officials to be found and dealt with.
Commission spokesman Isaac Mangena said after the site visit on Monday the department would meet with the commission on Wednesday, when they would discuss the scope of an agreement. “We will go to Lenasia together on Monday. The most important thing is that we have found each other,” said Mangena, adding that there was no time frame for when the resolution would be reached.
“As the Human Rights Commission we have always said the only solution to this is a mediated settlement. On Monday we will make headway into what we want to achieve.
“A mediated approach recognises that our legal framework is built on the values enshrined in the constitution, which are reflective of our history and struggle as a country.”
A statement released by the department said Housing Minister Tokyo Sexwale, Gauteng MEC Ntombi Mekgwe and members of the portfolio committee on human settlements would be part of the team that would be visiting the area of the demolitions. Sexwale’s involvement comes after the cabinet asked him to intervene.
Earlier this week acting cabinet spokeswoman Phumla Williams said Sexwale had been asked to “urgently interact” with the Gauteng provincial government.
At court on Friday, the Legal Resources Centre (LRC) joined the commission as friends of the court.
Thabiso Mbhense, one of the lawyers representing the centre, said they wanted to intervene in support of the relief sought by the commission.
Meanwhile, the department and the Banking Association of SA have teamed up to investigate the illegal sale of land in Lenasia. At least 10 of the homes were registered on its members’ books, the association said on Thursday.
It is believed the plots were fraudulently sold for amounts ranging from R2 500 to R95 000 and buyers were given forged deeds of sale bearing the department’s logo.
- Additional reporting by Sapa and Gcwalisile Khanyile