Durban - KwaZulu-Natal’s Human Settlements MEC Ravi Pillay has raised the alarm that all land is at risk of invasion after the ruling in the Durban High Court last Thursday that stopped municipalities from evicting squatters without a court’s approval.
To prevent invasions the provincial government would have to throw more resources at protecting property from squatters.
The MEC voiced his concerns to the Daily News about the ruling made, which forbade the eThekwini Municipality from evicting shack dwellers in Cato Manor. It may also not destroy shacks without notice, which had been allowed by a previous ruling.
The MEC said the new court ruling would hamper the government’s housing programme for the poor and have wide-reaching consequences for service delivery across South Africa.
“Planning will become more difficult because we will be dealing with a constantly changing environment.”
He said he strongly believed the ruling would promote queue jumping.
“For our part, we will continue to take all reasonable and lawful steps to prevent land invasions. Just on Sunday we resisted a land invasion in Dundee,” Pillay said.
His comments were echoed by eThekwini Housing committee chairman, Nigel Gumede, who said the city needed to be proactive.
“The implication of this is that you can’t demolish any person’s shack if you don’t have a court order. This ruling says to us as a city that we now have to have people who must monitor all land parcels that we have. We must not allow any person even to put one pole up.
“They have developed such a good skill that they can build at night and by morning sit in these houses. We need to establish a toll-free number where people can phone if they spot land invasions.
“This ruling means that if they do put up houses, it will take time to get them out because of the court processes, because even if we go to court to get them out, we may be told to provide them with alternative accommodation, which means they will jump the queue for housing,” he said.
The shack dwellers organisation, Abahlali baseMjondolo, fought an earlier court ruling – giving police powers to evict people from land without notice or judicial oversight – on the grounds it was unconstitutional.
The issue dates back to March two years ago when, faced with a flood of land invasions, the MEC brought an urgent application in the Durban High Court obtaining an interim order, operational with immediate effect, from Judge Piet Koen directing the city and the police to do all that was necessary to stop invasions on specified provincial government land earmarked for housing.
The Legal Resources Centre went to court arguing that its clients’ voices should be heard, but the application to intervene was turned down.
It turned to the Constitutional Court, which ruled in its favour, ordering that the shack dwellers must be allowed to challenge the order being made final.
The matter was sent back to the Durban High Court where Judge Fikile Mokgohloa agreed with the Constitutional Court’s Johann van der Westhuizen that evictions had to be “just and equitable”.
Legal observers said Thursday’s ruling opened the door to land invasions and would strangle eThekwini’s efforts to clear its 400 000 unit backlog.
However Pillay said the court was not authorising land invasions.
“In fact, the judge saw it fit to specifically state: I do not for a moment doubt the importance of land invasions.
“I do not doubt that our courts will still uphold all the rights enshrined in the constitution and that both government and private landowners will be able to approach our courts for relevant orders in appropriate circumstances,” he said.
But now, Pillay said, landowners needed a court order in all circumstances to resist land invasions.
“We are clear about the rights of people who have been in occupation. In such cases, there have to be specific orders and the opportunity to examine all circumstances to arrive at a just and equitable decision.
“The difficulty in this case was the inability to sharply define the dividing line between stopping a land invasion and an eviction. We disagree with some of the factual conclusions of the court and will most likely appeal subject to final legal advice.”
On the issue of the court’s ruling impacting service delivery, Pillay said: “I believe it will affect our plan to eradicate slums and service delivery generally. It will delay it. We will have to devote more resources to protecting land earmarked for development, indeed all land.”
The Socio Economic Rights Institute (Seri), which represented Abahlali, said after judgment was handed down that the ruling had national implications and sent a clear message to other municipalities and landowners seeking similar interdicts that they were subject to the law.
Abahlali baseMjondolo said the victory would go a long way in stopping municipalities, such as uMsunduzi, who have threatened to evict shack dwellers.
“The rest of the province and our country have a direct benefit to this order. Our struggle to humanise our world is carried out in our families, our communities, in the streets, in the courts and in the media. We do not only occupy land. We occupy sites of power too. We are very clear that it is only by building the power of the oppressed that oppression can be overcome,” the organisation said.