Durban - Durban shack dwellers who have been evicted and whose homes have been demolished more than 20 times have taken their fight to the highest court in the land.
Residents of Madlala Village in Lamontville, joined by shack dwellers’ movement Abahlali baseMjondolo as friends of the court, made representations before the Constitutional Court yesterday to have a Durban High Court order preventing invasion and/or occupation on 9.5km of land around Durban declared unconstitutional.
Their arguments, made by their representatives from the Legal Resource Centre and Socio-Economic Rights Institute of SA (Seri), were based on section 26 (3) of the Bill of Rights. It states: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
In March the Durban High Court granted the KZN MEC for Human Settlements and Public Works, Ravi Pillay, a provisional order authorising the eThekwini Municipality and the Minister of Police, Nathi Mthethwa, to take all reasonable steps to “prevent persons from invading, occupying and or erecting structures on certain land, remove any materials placed by any person on the land and dismantle or demolish any structures that may be constructed on the property”.
The dwellers claim the order was used to remove them from Madlala Village and was also used to remove residents from Cato Crest. These were backyard shack dwellers who had previously lived in the backyards of main shack residents.
When the main dwellings were demarcated for housing, the backyard shack dwellers were not allocated housing and took up residence on a nearby piece of land owned by the department.
They were evicted from this land by the Municipal Land Invasion Control Unit in the presence of police.
When it came time for the provisional order to be confirmed, the Madlala Village residents launched an application to oppose, represented by the Legal Resource Centre.
They claimed that the order effectively granted blanket permission to evict people and for their property to be demolished without a court order or taking the specific circumstances into consideration.
This was dismissed by the high court, on the grounds that the order was aimed at preventing land invasions. The order was confirmed.
After a failed application for leave to appeal against this High Court decision, the residents approached the Supreme Court of Appeal, which also dismissed their application. Abahlali baseMjondolo joined the Constitutional Court bid as friends of the court.
Acting for Abahlali, Seri’s Tashwill Esterhuizen said the MEC was using the order to give effect to unlawful evictions and gave police and the unit “unfettered discretion”.
“That is a violation of the rule of law. It’s unconstitutional.”
Esterhuizen said they also argued before the Constitutional Court that the order “was granted against the whole world” as it was not directed against a specific respondent.
The opposition to the application, by the city, MEC and minister, was based on their averment that no relief was sought or granted against the Madlala Village residents since the purpose of the order was to prevent land invasions from the date it was granted.
They also argue that section 26 (3) may be limited where persons invade land illegally in order to coerce the State into providing housing for them on a preferential basis.
Judgment was reserved.