Bapsfontein residents to fight forced removal in Constitutional Court

On Thursday, 15 September 2011 the Constitutional Court will hear the direct appeal of Nthabiseng Pheko and the Occupiers of Bapsfontein Informal Settlement and the Ekhuruleni Municipality. LHR has brought this appeal on behalf of the residents of this informal settlement who were forcibly removed in terms of disaster management legislation avoiding the protections against evictions which exist in law and in the Constitution. 

The matter concerns the forced relocation of the Bapsfontein Informal Settlement, in terms of the Disaster Management Act 57 of 2002, to a location approximately 30 km away.

The whole Bapsfontein area is located on an area prone to sinkholes. In January 2004 a sinkhole appeared near the Bapsfontein Hotel and triggered a series of geological studies of the land where the Bapsfontein Informal Settlement is located. The most recent study was completed in 2009. A year later, despite no new sinkholes appearing in six years, the Municipality declared a local state of disaster. It was only in February 2011 that a directive to evacuate was issued, but only for the informal settlement. This directive was not applied to the formal Bapsfontein area.

In March 2011 the Red Ants began demolishing the dwellings in the Bapsfontein Informal Settlement, despite a promise by the municipality to LHR that no one would be moved without their consent.  As a result, the settlement of over one thousand people and which had existed for many years, was demolished within a week. No social impact assessment was conducted and no comprehensive relocation plan was put in place. The Municipality thereby avoided the provisions and protections afforded to the residents of the Bapsfontein Informal Settlement by the Constitution, the Prevention of Illegal Occupation and Unlawful Eviction (“PIE”) Act and the Extension of Security of Tenure Act (“ESTA”).

LHR approached the North Gauteng High Court, Pretoria, on an extremely urgent basis, in an attempt to halt the demolition and relocation process. The High Court, however, held that the use of the emergency provisions in terms of the Disaster Management Act was justified, despite no new sinkholes appearing in the area since 2004 and no changed circumstances to indicate an immediate danger to the safety of the Bapsfontein Informal Settlement and its residents.

LHR will argue that the actions of the Ekhuruleni Municipality were in violation of section 26(3) of the Constitution and were an abuse of the provisions of the Disaster Management Act. 

The Bapsfontein Informal Settlement community is particularly poor and vulnerable. Following their relocation many residents have lost their employment due to transportation difficulties and the associated logistical problems of being moved almost 30km away. Many simply cannot afford the transportation costs. LHR will therefore ask that suitable state land, which exists close to the settlement, be identified and the community be assisted to relocate to that property.

LHR would like to express its gratitude to Legal Aid South Africa for its ongoing financial support of this and other cases.