An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
WE CONDEMN THE DESTRUCTION OF HOMES AND LIVES IN LWANDLE, CAPE TOWN
Joint Press Statement by the Social Justice Coalition, Equal Education and Ndifuna Ukwazi
On 2 and 3 June 2014 a few hundred residents of Cape Town watched their homes being demolished in Lwandle, near Strand. An area as large as six soccer fields was cleared of its human inhabitants.
We have been at Lwandle/Nomzamo these past two days and we feel disappointed and angry. Poor and working class families were pushed behind barbed wire to watch their homes being destroyed. These evictions initiated by SANRAL have left hundreds destitute.
16-year old Xolelwa Pupu, a grade 9 student at Khanyolwethu Secondary School, is a member of Equal Education’s province-wide Leadership Committee. Her home was destroyed on Monday. She is currently writing exams, but sleeping in a community hall in Lwandle. Seventeen students in a similar position have approached EE for assistance.
No Eviction Order was ever granted by a court for the removal of these people. Rather, an Interim Interdict was granted on 24 January against those “intending to occupy” the land. It specifically excluded those “currently occupying the property at the date of the granting of this order”. The Interim Interdict was granted ex parte (without the residents being heard) on the very same day the application was filed. The interim interdict was then extended three times. In terms of the Prevention of Illegal Evictions Act (PIE) evictions require an eviction order, not an interdict. (A judgment of the Constitutional Court is presently pending on this very question. See SERI’s heads of argument.)
Premier Helen Zille has tweeted that “Neither the Province nor the City received prior notice of this eviction”. But in order for this to have been a legal eviction the Act requires that: “The court must send written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.” In any case, the City prompted SANRAL into action, as shown by a letter sent by the City to SANRAL on 22 January. The letter preceded the Interim Interdict by two days. The City’s letter said that the structures “were erected without consent”. The City’s letter then gives SANRAL fourteen days “to rectify the situation”. The letter then cites section 6(5) of the Act which refers to when “an organ of state gives the owner or person in charge of land notice … to institute proceedings for eviction”. In other words, SANRAL were put to terms by the City to evict the occupants.
The application for an interdict by SANRAL did not attach any plans for the N2 development. Rather it attached the City’s letter and letters from better-off South Africans who objected to “squatters”.
Evictions are sometimes necessary for legitimate development purposes. When this is the case there is still a need to provide temporary shelter. In 2011 the Constitutional Court held in the Blue Moonlight Properties case that the City of Johannesburg had the duty to provide emergency housing for evicted people, despite the eviction having been brought by a private company on private land. This same moral and constitutional duty therefore now falls on the City of Cape Town — it has largely failed to fulfil it.
All of the above means that the eviction in Lwandle was unlawful.
The Constitution says in section 26(3): “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.”
Action must be taken by the City to provide emergency accommodation to affected residents. When it was pointed out to SANRAL’s Vusi Mona that the people are facing harsh rain he called this a “red herring”. This typifies the callousness of both SANRAL and the City during the past few days. Snow is now forecast nearby. We are not calling for the evicted residents to jump the housing queue but to be given temporary accommodation. The City’s claim that receiving temporary shelter equates to jumping the housing queue is a real red herring.
We welcome the opening of the community hall by the City, and the provision of food and blankets by Disaster Relief. But hundreds of people cannot be hygienically accommodated in a hall on an ongoing basis. We welcome the apology by Minister of Transport Dipuo Peters, the Minister responsible for SANRAL, and her commitment that people will be allowed to return to the land, but we intend to insist that this commitment be made in writing.
We have set up an emergency relief drop-off point to assist the affected families. Anyone willing to help with relief such as non-perishable food, water-proof clothes, and baby supplies may drop these off at The Bookery, Plein Park, 63-89, Plein Street in Cape Town, between 8h00 and 18h30, every day this week. Telephone: 0214614189.
For further information please contact:
Dustin Kramer (SJC Deputy Gen Sec) 083 674 0552
Nishal Robb (EE Head of Campaigns) 079 511 6790
Axolile Notywala (SJC Project Manager) 074 386 1584
Nombulelo Nyathela (EE Spokesperson) 060 503 4933