A future Constitutional Court Judgment on matters of eviction/illegal occupation of land is summarized below. An interesting footnote suggests that municipal officials should be far more circumspect in discharging their duties.
LAND EVICTIONS
Shack Attack
THE CONSTITUTIONAL Court has considered a High Court’s refusal to grant various appellants leave to intervene in proceedings in which they had not been cited and where an interim order had been granted, so they claimed, affected their rights in that it related to land on which they had been living. The interim order authorised the South African Police Service (SAPS) and the municipality where the land was situated to “take all reasonable and necessary steps” to “prevent any persons from invading and / or occupying…the immovable properties subsequent to the grant of this order”. It interdicted “any person from invading and/or occupying and/or undertaking the construction of any structures and/or placing of any material upon any of the aforementioned properties.”
The authorisation to take all reasonable steps to prevent any persons from occupying the immovable property seemed wide enough to include the prevention of the continuation of such occupation. That meant that in terms of that part of the order, the appellants could be prevented from continuing to occupy the property. To that extent, it amounted to an eviction order. The interim order was also an eviction order to the extent that its interdicting of any persons from occupying any structures on the immovable property was open to an interpretation that it applied to continuing occupation of structures on the property. The interim order authorised steps which could have the effect of evicting persons who were already living on the property or had completed building their homes on the property when the order was granted.
The Constitutional Court was not impressed by the conduct of the municipality in demolishing structures and the explanations offered to the court “which remain troublingly inconsistent.” The Constitution imposes a positive duty on organs of state to assist courts and to ensure their effectiveness.
“Failing to fulfil these obligations falls short of the constitutional mandate. Further, government officials have a duty not only to discharge their functions, but also to account for when they have not. A court should be able to rely on the submissions of organs of state. Otherwise our very constitutional order would be undermined.”
Zulu and Others v. Ethekwini Municipality and Others 2014 (4) SA
590 (CC).
Source: MacRobert Law Letter
30 January 2015