Ekurhuleni officials fall foul of top court

Published May 11, 2015


Johannesburg - The Socio-Economic Rights Institute (Seri) has welcomed a Constitutional Court ruling which means that officials of Ekurhuleni municipality and the Department of Human Settlements can be held individually responsible for implementing the court’s orders.

Ekurhuleni metro was found to have violated its constitutional obligations by failing to comply with a 2011 Concourt ruling ordering it to provide Bapsfontein residents alternative accommodation, after it forcibly removed them.

But the Concourt stopped short of finding the metro in contempt of court in a judgment delivered on Thursday.

The Concourt said the municipality’s mayor, manager and head of department for human settlements as well as the Gauteng Human Settlements MEC should be joined to the case to ensure that the court’s orders were followed.

Seri’s executive director, Stuart Wilson, said this remedy, suggested by Seri as friends of the court, would be particularly effective because it held individuals accountable, rather than an abstract entity such as a municipality.

“The mayor, manager and director of housing were all joined. The major effect of that is that they can be held directly and personally liable for the city’s failure to effect the order,” he pointed out.

The order would make it more difficult for the municipality to disobey a court order.

Mayor Mondli Gungubele opposed being linked to the case, saying he was not responsible for the “day to day administrative functions” of the municipality.

The court found that “these disclaimers were unseemly and highly inappropriate”.

“Who in a local authority, if not the mayor and municipal manager, is responsible for its failings of function? It is wrong for them to shrug off responsibility when their own municipal structure, the one at whose symbolic and operational head they stand, conspicuously fails to fulfil a duty imposed by a court order,” it said.

It said the original Bapsfontein court order, issued in 2011, affected hundreds of families and households.

“Their daily living, human dignity and security and comfort were directly at stake. It is precisely because of the leadership entrusted to the mayor and the municipal manager, that they have a duty to undertake responsibility for implementing court orders.”

In 2010, the municipality evicted more than 700 people from their shacks in Bapsfontein after discovering that the settlement was built on dolomitic land – prone to sinkholes – and it was declared a disaster area. The eviction without a court order was declared unlawful by the Concourt in December 2011 and the municipality was ordered to find suitable land for the residents by December 2012.

But Ekurhuleni failed to do this. In Thursday’s judgment, the Concourt also found that the municipality had failed to provide it with progress reports on the relocation of residents. The municipality, however, argued that it had not followed the Concourt’s orders because it had not been made aware of them by its attorney, Bongani Khoza, because Khoza failed to notify the court and the municipality of changes in his contact details.

The court did not find either the municipality or Khoza in contempt of court for not complying with its order. However, it ordered each to pay half of the applicants’ costs.

“Mr Khoza and the municipality are each ordered to pay 50 percent of the applicants’ costs in the contempt proceedings. Accordingly, Mr Khoza must be ordered to pay the costs from his own pocket to mark this court’s displeasure at his gross negligence, particularly as an officer of this court,” it said in the order.

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The Star

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