Durban - A “blanket” court order which empowered police and city officials to evict “land invaders” and destroy their shacks with no notice to those affected and no judicial oversight has been declared unconstitutional.
Members of the shack dwellers organisation Abahlali baseMjondolo sang and danced victoriously outside the Durban High Court after Judge Fikile Mokgohloa’s finding was handed down on Thursday.
The Socio Economic Rights Institute (Seri), which represented Abahlali, said the judgment had national implications and sent a clear message to other municipalities and landowners seeking similar interdicts that they too were subject to the law.
“Had the order been confirmed, it would have resulted in many thousands of people being made homeless.
“Our constitution demands that people who are driven to occupy open land because they have nowhere else to go must be treated with dignity and respect,” it said.
Faathima Mahomed of Durban’s Legal Resources Centre, who represented residents of Madlala Village in Lamontville, said: “The judgment reaffirms that evictions and demolitions must be undertaken in line with the law and underlying constitutional rights. This unassailable legal position ensures complete protection for poor and vulnerable people who would be rendered homeless.”
But Human Settlements MEC Ravi Pillay said there seemed to be difficulty in defining “the dividing line between stopping land invasions and effecting an eviction”.
“We have always been clear about the state’s constitutional obligations regarding evictions.”
He said his department disagreed with some of the factual findings and would seek guidance from its legal team.
The issue dates from March 2013 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 affect, from Judge Piet Koen directing the city and the police to do all necessary to stop invasions on specified provincial government land earmarked for housing.
Although the city was in talks with the Legal Resources Centre about the Madlala residents at the time – and the land on which they lived was affected by the order – they were not cited as respondents.
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.
When the matter came before Judge Mokgohloa earlier this year, Abahlali was also given leave to intervene.
Lawyers for the MEC pushed for the order to be confirmed, arguing that it was not intended to be an eviction order, but to prevent threatened land invasions.
But the shack dwellers said it flew in the face of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) which sets out rules for evictions.
Judge Mokgohloa said the MEC, at the last minute, had tried to amend the order by including a provision that it did not apply to those already in occupation.
But she said this still did not give guidance to those enforcing it as to who was an invader and who was an occupant.
“Evictions are governed by PIE. The rules and requirements are not optional.”
While the majority of Constitutional Court judges did not deal with the merits of the matter, Judge Johann Van der Westhuizen had pointed out that PIE ensured evictions were “just and equitable” and while land invasions were serious, so were the rights of vulnerable people who might have nowhere else to live.
“I fully agree with this,” Judge Mokgohloa said.