The ongoing demolition of shacks at the Cato Crest informal settlement in Durban, despite several court interdicts preventing it, has raised the concern of South Africa’s advocates’ body.
The General Council of the Bar of South Africa (GCB) has criticised the eThekwini Municipality for sending its Land Invasion Unit to destroy the shacks.
Advocates who are members of the GCB are competitive specialist advocates who are experts in trial, motion court, appellate and opinion advocacy.
Each province has a Bar association that is affiliated to the GCB.
Over the past two weeks, the affected residents had been evicted and left homeless three times, said council chairman, advocate Ishmael Semenya.
At least one shack dweller was wounded in skirmishes with the unit at the weekend.
“The residents have urgently approached the high court on no less than five occasions, claiming that their eviction was unlawful. They have obtained three interim court interdicts, restraining the Durban municipality from evicting them again without a court order, and have subsequently rebuilt their homes,” he said.
Despite this, the Land Invasion Unit had returned to the settlement and once again destroyed homes.
“The General Council of the Bar notes reports that the residents were driven to occupy land at Cato Crest earlier this year after they were excluded from a project intended to provide housing to them and others in a nearby informal settlement.”
Semenya said section 26 of the constitution entrenched the right of access to adequate housing and protection from arbitrary eviction.
“It is a matter of grave concern that, despite their repeated attempts to follow due process of law in enforcing their constitutional rights, the residents, including many women and children, have been left homeless and destitute,” he said.
Constitutional law expert, Professor Pierre de Vos, said the municipality was required to obtain an interdict to demolish the shacks if people were living in them.
“There was a similar situation in Cape Town until the municipality established a law that they had a right to demolish houses,” said De Vos, who is a lecturer at the University of Cape Town.
“The large problem here is that the (eThekwini) municipality is not respecting the law. This appears to be a systemic problem where the municipality does not seem to understand or recognise that there’s a legal framework and they can’t just demolish homes.”
De Vos suggested that the lawyers acting for the Cato Crest residents should try to get a “structural interdict” to prevent the municipality from demolishing any shacks.
The municipality would be required to justify its actions if it persisted in tearing down the shacks, he said.
The municipality’s spokesman, Thabo Mofokeng, said the Bar’s concerns were noted but suggested that a meeting be set with the Bar and the city to discuss the issue privately.
“We have respected the court process and have always complied with the court orders. We have never touched the court applicants’ homes,” Mofokeng said, referring to the 30 Cato Crest shack dwellers that had gone to court.
Mofokeng also hinted at the city’s holding a media conference on the issue, adding that it would not stop dealing with land invasions.
“We have done all the available remedies to deal with these land invasions,” he said. “We cannot allow invasions to continue.”