Bapsfontein residents to fight removal in Constitutional Court (Business Day)

Evictions are always a prickly issue and the case due before the Constitutional Court next month is no different.The matter comes weeks after the court reserved judg ment in another case, in which it has to decide whether the City of Johannesburg is responsible for providing temporary housing to residents who have been evicted from buildings that they had occupied illegally.

 

In March this year, the Ekurhuleni Metropolitan Municipality removed hundreds of residents — much to their fury — from the Bapsfontein settlement near Benoni. The municipality had declared that the settlement, which was built on dolomitic land, was unsafe for human habitation and therefore residents had to be relocated — to a settlement 20km away.

 

The relocations went ahead without a court order as required by the constitution. Residents lashed out, with 500 community members protesting against the decision to relocate them. During protests in December last year, some even pelted police with rocks.

 

At the time the Azanian People’s Organisation (Azapo) said the residents of Bapsfontein should "stay put". Azapo’s Gauteng chairman, Samore Herbstein, said: "Government has used the presence of dolomite as an excuse to evict informal residents, then develop the same land for commercial housing after the residents have left."

 

However, the municipality was adamant it had acted within its rights, relying on the Disaster Management Act, which permits it to "evacuate" residents to a temporary shelter due to the declared disaster without their consent and without a court order.

 

After an earlier high court action failed, the Bapsfontein residents have now taken the matter to the Constitutional Court. The court has called for submissions from the municipality and the residents to address the question of what are the circumstances, if any, in which a person could be evicted from his or her home without an order of a court having been made after considering all the circumstances.

 

It also wants the parties to state whether the required circumstances existed in this case. Section 26 (3) of the constitution states that no one may be evicted from their home or have their home demolished without an order of court made after considering all circumstances. The section also states that no legislation may permit arbitrary evictions.

 

In March, the residents of Bapsfontein went to the North Gauteng High Court to stop the municipality from demolishing their shacks and to stop the municipality from intimidating them and forcing to vacate their property. Judge Aubrey Ledwaba dismissed the residents’ application and said this was not a situation where he was dealing with unlawful occupiers and where he would have been expected to deal with the municipality in terms of the legislation to evict residents from a particular area.

 

Judge Ledwaba said he was dealing with a situation of necessity in the sense that the area had been declared a disaster area. "It is a situation where the (inhabitants) are resident in a dangerous area but they resist being moved from that area. It is like a person burning in a fire and refusing to be rescued."

 

The judge also refused the residents’ application for leave to appeal in March. While the residents applied for leave to appeal to the Constitutional Court during the same month, the municipality forcibly removed all the residents and relocated them to a new settlement called Prince Albert Luthuli. In her founding affidavit before the Constitutional Court, Nthabiseng Pheko, on behalf of 777 residents, said that the residents did not wish to be relocated so far away, and therefore had not consented to the relocation.

 

She said the residents were eventually left with no choice and merely became bystanders in the eviction process, regardless of the fact that they were evicted without a court order.

 

In his answer to Ms Pheko’s affidavit, the municipality’s attorney Bongani Khoza said the relief that the residents sought was moot as they had already been evacuated.

 

Ernest Mabuza mabuzae [at] bdfm [dot] co [dot] za