Residents of Mpola informal settlement at Marrianridge, near Pinetown, spent Thursday rebuilding and repairing their shacks. This was after a group of armed municipal security guards had ransacked and demolished more than 20 shacks, leaving about 100 people homeless. The guards were acting on the orders of ward councillor Derrick Dimba.
The residents said that the evictions were illegal because the guards did not have an eviction court order. One, Lindiwe Ndlovu, said the guards ordered people out of their shacks before breaking them down. Sipho Hlambisa said he had to take time off from work to rebuild his shack. "If they want to evict us, they must be prepared to take us somewhere else. "They should not just remove our furniture and demolish our shacks." Dimba said he had sent the guards to demolish the shacks because the residents were occupying the land illegally. "The people invaded that land. "The area is not designed to be a residential area - the place is steep and it is near a stream. "The municipality has no plans to build houses or for any projects in that area." Dimba said eviction orders were necessary only where people had built proper houses.
Centre for Applied Legal Studies researcher Kate Tissington said, however, that an eviction without a court order was illegal, "and this most definitely is". "The occupiers of Mpola informal settlement are protected by the Prevention of Illegal Eviction Act and if the municipality wants to evict those living there, it needs to go through the eviction application process and get an order of court."
Tissington said the city had acted illegally by bypassing the act's provisions.
The eThekwini council speaker, James Nxumalo, said he understood that the city had to obtain a court order to evict people. He said although councillors acted as the eyes of the municipality, they did not have the right to evict people.
Source: Cape Times
Showing posts with label PIE Act. Show all posts
Showing posts with label PIE Act. Show all posts
Thursday, November 26, 2009
South Africa: Illegal Evictions at Gunpoint
The eThekwini Municipality is currently illegally evicting families at gunpoint in Mpola. Thirty people already have been left homeless. The community requests all press to rush to the scene and to witness the rampant criminality of the eThekwini Municipality for themselves.
Five cars from the municipality arrived at 10am, with Blue Ants armed with rifles and shotguns. The demolition team is now breaking down brick houses. according to the demolition team the evictions were ordered by the notorious local ward Councillor Councillor Dimba. The evictions, happening now, are illegal and criminal acts. There was no notice, no consultation, no court order, and no alternative accommodation provided. Some families, whose homes already have been demolished, are at school and at work, and will return to find they have nowhere to sleep tonight. The eviction team demolished all the materials of the houses, including the roofs.
Some of the registration numbers demolition team’s cars are: NDM6904, NDM6902, NDM6903. The demolition team says the municipal official overseeing the eviction is Mr. Zulu (076 354 8921)
Source: anarkismo.net
Five cars from the municipality arrived at 10am, with Blue Ants armed with rifles and shotguns. The demolition team is now breaking down brick houses. according to the demolition team the evictions were ordered by the notorious local ward Councillor Councillor Dimba. The evictions, happening now, are illegal and criminal acts. There was no notice, no consultation, no court order, and no alternative accommodation provided. Some families, whose homes already have been demolished, are at school and at work, and will return to find they have nowhere to sleep tonight. The eviction team demolished all the materials of the houses, including the roofs.
Some of the registration numbers demolition team’s cars are: NDM6904, NDM6902, NDM6903. The demolition team says the municipal official overseeing the eviction is Mr. Zulu (076 354 8921)
Source: anarkismo.net
Wednesday, October 14, 2009
Abahlali baseMjondolo Movement of South Africa & Another v Premier of KwaZulu-Natal & Others (Concourt)
Abahlali baseMjondolo Movement of South Africa, an organisation representing thousands of people who live in informal settlements, and its President, Mr Sibusiso Zikode, approached the KwaZulu-Natal High Court, Durban, challenging the constitutionality of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. The High Court dismissed the challenge.
The applicants made two contentions before this Court. They claimed first that the whole provincial Act was invalid because the KwaZulu-Natal legislature had no provincial power to make the law because it trespassed into land tenure a legislative competence reserved for the national legislature.
They also contended that section 16 of the Act was inconsistent with the Constitution and invalid. Section 16 gives the Member of the Executive Council of the province power to publish a notice in the provincial gazette determining a period within which an owner or person in charge of land or a building that is occupied by unlawful occupiers mustinstitute proceedings to evict the occupiers under the PIE Act. If the owner or person fails to comply, the municipality must bring proceedings to evict the occupiers.
Yacoob J, writing for a unanimous Court on the legislative competence issue, found that the Act was within the power of the province to pass laws on housing. He pointed out that the Act is not concerned with evictions alone but with the elimination of slum conditions by upgrading and relocation. He also pointed out that the Act placed detailed responsibilities on municipalities as well as the Member of the Executive Council responsible for housing in the province. A slum is a home in which people live. An Act concerned mainly with improving the circumstances in which people lived is concerned with housing. The Court therefore rejected the first contention and held that the provincial legislature had the power to pass the provincial Act.
On the constitutional validity of section 16 of the Act, Moseneke DCJ, writing for the majority (with Langa CJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van der Westhuizen J concurring), held that section 16 of the Act is inconsistent with the Constitution and invalid.
Moseneke DCJ found that section 16 compels an owner of a building or land or the municipality within whose jurisdiction the building or land is located to institute eviction proceedings against unlawful occupiers even in circumstances where the requirements of the PIE Act, which protects unlawful occupiers against arbitrary evictions, may not be met.
Moseneke DCJ noted that section 16 of the Act will make residents of informal settlements, who are invariably unlawful occupiers, more vulnerable to evictions should an MEC decide to issue a notice under section 16.
Moseneke DCJ also concluded that the power given to the MEC to issue a notice is overbroad and irrational because it applies to any unlawful occupier on any land or in any building even if it is not a slum and is not properly related to the purpose of the Act, which is to eliminate or to prevent the re-emergence of slums.
Accordingly, the majority judgment granted an order declaring that section 16 of the Act is inconsistent with section 26 of the Constitution and invalid.
Yacoob J dissented on this second issue. He found that the contested provision could be read subject to all the safeguards provided by the Constitution and the PIE Act. He held that, on a proper construction of the Act, an owner or municipality had to comply with the PIE Act and all other relevant legislation before an eviction could be ordered.Neither the municipality nor the owner could evict unless the evidence at their disposal satisfied these requirements. The section was therefore consistent with the Constitution.
A copy of the judgment can be found here.
Source: Polity.org
The applicants made two contentions before this Court. They claimed first that the whole provincial Act was invalid because the KwaZulu-Natal legislature had no provincial power to make the law because it trespassed into land tenure a legislative competence reserved for the national legislature.
They also contended that section 16 of the Act was inconsistent with the Constitution and invalid. Section 16 gives the Member of the Executive Council of the province power to publish a notice in the provincial gazette determining a period within which an owner or person in charge of land or a building that is occupied by unlawful occupiers mustinstitute proceedings to evict the occupiers under the PIE Act. If the owner or person fails to comply, the municipality must bring proceedings to evict the occupiers.
Yacoob J, writing for a unanimous Court on the legislative competence issue, found that the Act was within the power of the province to pass laws on housing. He pointed out that the Act is not concerned with evictions alone but with the elimination of slum conditions by upgrading and relocation. He also pointed out that the Act placed detailed responsibilities on municipalities as well as the Member of the Executive Council responsible for housing in the province. A slum is a home in which people live. An Act concerned mainly with improving the circumstances in which people lived is concerned with housing. The Court therefore rejected the first contention and held that the provincial legislature had the power to pass the provincial Act.
On the constitutional validity of section 16 of the Act, Moseneke DCJ, writing for the majority (with Langa CJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van der Westhuizen J concurring), held that section 16 of the Act is inconsistent with the Constitution and invalid.
Moseneke DCJ found that section 16 compels an owner of a building or land or the municipality within whose jurisdiction the building or land is located to institute eviction proceedings against unlawful occupiers even in circumstances where the requirements of the PIE Act, which protects unlawful occupiers against arbitrary evictions, may not be met.
Moseneke DCJ noted that section 16 of the Act will make residents of informal settlements, who are invariably unlawful occupiers, more vulnerable to evictions should an MEC decide to issue a notice under section 16.
Moseneke DCJ also concluded that the power given to the MEC to issue a notice is overbroad and irrational because it applies to any unlawful occupier on any land or in any building even if it is not a slum and is not properly related to the purpose of the Act, which is to eliminate or to prevent the re-emergence of slums.
Accordingly, the majority judgment granted an order declaring that section 16 of the Act is inconsistent with section 26 of the Constitution and invalid.
Yacoob J dissented on this second issue. He found that the contested provision could be read subject to all the safeguards provided by the Constitution and the PIE Act. He held that, on a proper construction of the Act, an owner or municipality had to comply with the PIE Act and all other relevant legislation before an eviction could be ordered.Neither the municipality nor the owner could evict unless the evidence at their disposal satisfied these requirements. The section was therefore consistent with the Constitution.
A copy of the judgment can be found here.
Source: Polity.org
Thursday, October 1, 2009
South Africa's Poor Targeted by Evictions, Attacks in Advance of 2010 World Cup Democracy Now
Thousands of South Africans are being displaced in preparation for the 2010 World Cup. While Durban completes the finishing touches on its new stadium, thousands of the citys poor who live in sprawling informal settlements are threatened with eviction. On Saturday, an armed gang of some 40 men attacked an informal settlement on Durbans Kennedy Road killing at least two people and destroying 30 shacks. We speak to two South African activists who are fighting back.
Source: Democracy Now
Source: Democracy Now
Monday, September 28, 2009
Violent mob attacks at Kennedy Road settlement target leaders of Abahlali baseMjondolo
In the early morning hours of September 27th, 2009 an armed mob of about 40 men unleashed a night of intimidation and terror at the Kennedy Road shack settlement in Durban, South Africa. The mob was armed with guns and bush knives and was calling out the names of the President and Vice President of the Abahlali baseMjondolo movement, threatening them with death. In the morning 3 were dead, many injured and over 1,000 of the residents fled the settlement with all they could carry.
Source: You Tube
Source: You Tube
Sunday, September 27, 2009
The ANC Turns to Fascim in Durban
Abahlali baseMjondolo leaders have been subject to well organised violent attacks since last year. Now the movement has been attacked in a surprise ambush. At least three people are dead.
Last night at about 11:30 a group of about 40 heavily armed men attacked the Abahlali baseMjondolo office in the Kennedy Road settlement where the movement was holding an all night camp for the Youth League. The men who attacked were shouting: 'The AmaMpondo are taking over Kennedy. Kennedy is for the AmaZulu.” Some people were killed. We can't yet say exactly how many. Some are saying that three people are dead. Some are saying that five people are dead. Some people are also very seriously injured. The attackers broke everything that they could.
The Sydenham police were called but they did not come. This has led some people to conclude that this was a carefully planned attack on the movement and that the police knew in advance that it had been planned and stayed away on purpose. Why else would the police refuse to come when they are being called while people are being openly murdered? When the attack happened one officer from Crime Intelligence was there in plain clothes. This morning the police arrived under the authority of Glen Nayager and made arrests. As far as we can tell only members of the Kennedy Road Development Committee (KRDC) have been arrested. If this is true it indicates clearly that the police are part of this attack on the movement. It also seems that the police are only taking statements from the people that attacked us! Some of the people that they have arrested were not even at Kennedy Road when we were attacked. These arrests feel to us like the Kennedy Six scandal all over again.
We believe that this attack has been planned and organised by Gumede, from the Lacy Road settlement, who is the head of the Branch Executive Committee of the local ANC. There has never been political freedom in Lacy Road. Since 2005 we have been told that anyone wearing the red shirt of Abahlali baseMjondolo in Lacy Road will be killed. But anyone can wear any shirt of any politics that they like in our settlements. You will see COPE, ANC and SACP shirts in our settlements. We are democracts. Our politics is a politics of open and free discussion - not violence and intimidation. This is not the first time that our movement has been attacked. Last year both Mzonke Poni, head of AbM in the Western Cape, and S'bu Zikode, head of AbM in KwaZulu-Natal, were attacked and seriously beaten by well organised and mysterious groups of young men. These attacks happened a few days apart. The men who attacked Zikode also said that he was selling Kennedy to the AmaMpondo. Some time after the attacks on Mzonke and S'bu Mashumi Figland, Deputy President of Abahlali baseMjondolo and Chairperson of the Kennedy Road Development Committee, was also attacked and seriously beaten. Again the attack was very well organised and carried out by a mysterious group of young men. During the attack Mashumi, who is Xhosa, was told that the AmaMpondo must leave Durban and go back to the Eastern Cape.
Gumede, head of the local BEC of the ANC, has been trying by all means to undermine the movement for many years. He has failed. Every year we have open elections in Kennedy Road and ever year people vote for Abahlali baseMjondolo. We believe that Gumede, with the support of ward councillor Yakoob Baig, has tried to build a coalition against the movement in order to attack it violently. This coalition is now a milita. They have found 3 types of people that want to attack the movement:
1. People who want to follow an ethnic politics: The movement accepts all shack dwellers on an equal basis. We do not care where a person was born or what language they speak. This has caused those who want an ethnic politics to oppose us.
2. Criminals: We have a Safety & Security committee and we have been working to get the criminals out of our settlement. In recent months we have been working very well with the local police to get them arrested. We have also put a time limit on the shebeens saying that they must close at 10:00 p.m. so that people can sleep properly and that there is no violence, especially violence against women, when people get too drunk. The criminals and some shebeen owners do not like what the movement is doing to make the settlement safe for everybody.
3. People who want Gumede's patronage: Every time the movement wins a small victory, like getting toilets built or even cleaned, Gumede tries to ensure that the jobs go only to his people. We are opposed to development becoming misused for party politics. The people who want to get Gumede's jobs are also unhappy with what we are doing.
The next Kennedy Road AGM is coming soon. Once again the people of Kennedy Road can vote for ever they want to represent them. The people who attacked us last night do not want democracy. If they felt that they had support they could just have waited for the AGM and put up candidates. What Gumede, and Baig are doing is not just an attack on Abahlali baseMjondolo. It is also an attack on democracy. They have now set set up a militia to destroy the movement. We have no armed wing. We have never attacked anyone. Our politics is a politics of open meetings and popular democracy. It is a politics of debating and discussing together. The politics that is being used to attack us is a politics of war. We see no difference between what is being done to us and what the apartheid regime did with the Witdoeke in the shack settlements in Cape Town in the 1980s.
After what has happened many people are saying to us that they do not trust the police. They are asking for the army to be sent in as the army might be neutral. As we write the attacks and threats continue. We are under attack. We are not armed. Gumede and his militia are not just a threat to us and our community. They are a threat to democracy in South Africa. It is very clear that democracy is under attack. As we are sending this statement a helicopter and many more police officers are arriving. We hope that they will be neutral and follow the law – not Gumede's politics of war. But as far as we can tell the police that are here are just looking for statements against the KRDC - those who were ambushed in the night! The violence is continuing. Gumede's people are saying that if Mashumi Figlan returns to Kennedy he will be killed. We do not have confidence that he and others will be protected by the police.
Things are still confused. If there are any errors in this statement we will correct them when we can talk to everyone safely and send out a more detailed statement.
Source: anarkismo.net
Last night at about 11:30 a group of about 40 heavily armed men attacked the Abahlali baseMjondolo office in the Kennedy Road settlement where the movement was holding an all night camp for the Youth League. The men who attacked were shouting: 'The AmaMpondo are taking over Kennedy. Kennedy is for the AmaZulu.” Some people were killed. We can't yet say exactly how many. Some are saying that three people are dead. Some are saying that five people are dead. Some people are also very seriously injured. The attackers broke everything that they could.
The Sydenham police were called but they did not come. This has led some people to conclude that this was a carefully planned attack on the movement and that the police knew in advance that it had been planned and stayed away on purpose. Why else would the police refuse to come when they are being called while people are being openly murdered? When the attack happened one officer from Crime Intelligence was there in plain clothes. This morning the police arrived under the authority of Glen Nayager and made arrests. As far as we can tell only members of the Kennedy Road Development Committee (KRDC) have been arrested. If this is true it indicates clearly that the police are part of this attack on the movement. It also seems that the police are only taking statements from the people that attacked us! Some of the people that they have arrested were not even at Kennedy Road when we were attacked. These arrests feel to us like the Kennedy Six scandal all over again.
We believe that this attack has been planned and organised by Gumede, from the Lacy Road settlement, who is the head of the Branch Executive Committee of the local ANC. There has never been political freedom in Lacy Road. Since 2005 we have been told that anyone wearing the red shirt of Abahlali baseMjondolo in Lacy Road will be killed. But anyone can wear any shirt of any politics that they like in our settlements. You will see COPE, ANC and SACP shirts in our settlements. We are democracts. Our politics is a politics of open and free discussion - not violence and intimidation. This is not the first time that our movement has been attacked. Last year both Mzonke Poni, head of AbM in the Western Cape, and S'bu Zikode, head of AbM in KwaZulu-Natal, were attacked and seriously beaten by well organised and mysterious groups of young men. These attacks happened a few days apart. The men who attacked Zikode also said that he was selling Kennedy to the AmaMpondo. Some time after the attacks on Mzonke and S'bu Mashumi Figland, Deputy President of Abahlali baseMjondolo and Chairperson of the Kennedy Road Development Committee, was also attacked and seriously beaten. Again the attack was very well organised and carried out by a mysterious group of young men. During the attack Mashumi, who is Xhosa, was told that the AmaMpondo must leave Durban and go back to the Eastern Cape.
Gumede, head of the local BEC of the ANC, has been trying by all means to undermine the movement for many years. He has failed. Every year we have open elections in Kennedy Road and ever year people vote for Abahlali baseMjondolo. We believe that Gumede, with the support of ward councillor Yakoob Baig, has tried to build a coalition against the movement in order to attack it violently. This coalition is now a milita. They have found 3 types of people that want to attack the movement:
1. People who want to follow an ethnic politics: The movement accepts all shack dwellers on an equal basis. We do not care where a person was born or what language they speak. This has caused those who want an ethnic politics to oppose us.
2. Criminals: We have a Safety & Security committee and we have been working to get the criminals out of our settlement. In recent months we have been working very well with the local police to get them arrested. We have also put a time limit on the shebeens saying that they must close at 10:00 p.m. so that people can sleep properly and that there is no violence, especially violence against women, when people get too drunk. The criminals and some shebeen owners do not like what the movement is doing to make the settlement safe for everybody.
3. People who want Gumede's patronage: Every time the movement wins a small victory, like getting toilets built or even cleaned, Gumede tries to ensure that the jobs go only to his people. We are opposed to development becoming misused for party politics. The people who want to get Gumede's jobs are also unhappy with what we are doing.
The next Kennedy Road AGM is coming soon. Once again the people of Kennedy Road can vote for ever they want to represent them. The people who attacked us last night do not want democracy. If they felt that they had support they could just have waited for the AGM and put up candidates. What Gumede, and Baig are doing is not just an attack on Abahlali baseMjondolo. It is also an attack on democracy. They have now set set up a militia to destroy the movement. We have no armed wing. We have never attacked anyone. Our politics is a politics of open meetings and popular democracy. It is a politics of debating and discussing together. The politics that is being used to attack us is a politics of war. We see no difference between what is being done to us and what the apartheid regime did with the Witdoeke in the shack settlements in Cape Town in the 1980s.
After what has happened many people are saying to us that they do not trust the police. They are asking for the army to be sent in as the army might be neutral. As we write the attacks and threats continue. We are under attack. We are not armed. Gumede and his militia are not just a threat to us and our community. They are a threat to democracy in South Africa. It is very clear that democracy is under attack. As we are sending this statement a helicopter and many more police officers are arriving. We hope that they will be neutral and follow the law – not Gumede's politics of war. But as far as we can tell the police that are here are just looking for statements against the KRDC - those who were ambushed in the night! The violence is continuing. Gumede's people are saying that if Mashumi Figlan returns to Kennedy he will be killed. We do not have confidence that he and others will be protected by the police.
Things are still confused. If there are any errors in this statement we will correct them when we can talk to everyone safely and send out a more detailed statement.
Source: anarkismo.net
Wednesday, March 25, 2009
Concourt to rule on Jeppe Street evictions
A group of Johannesburg flat dwellers will hear on Thursday whether they have succeeded in their Constitutional Court challenge against a decision to evict them.
Residents of Angus Mansions, in Jeppe Street, were to be evicted on December 15 even though their court challenge against the move was pending.
Arguing before the Constitutional Court on December 3, they contended that evicting them before their appeal was heard - and could be won - would cause them irreparable harm. They also challenged the merits on which the eviction order was granted.
The High Court in Johannesburg granted an interim order allowing the evictions of the 62 residents to be carried out on December 15, pursuant to its granting of an eviction order.
Source: SAPA
Residents of Angus Mansions, in Jeppe Street, were to be evicted on December 15 even though their court challenge against the move was pending.
Arguing before the Constitutional Court on December 3, they contended that evicting them before their appeal was heard - and could be won - would cause them irreparable harm. They also challenged the merits on which the eviction order was granted.
The High Court in Johannesburg granted an interim order allowing the evictions of the 62 residents to be carried out on December 15, pursuant to its granting of an eviction order.
Source: SAPA
Friday, November 21, 2008
Red Ants 'cornered man, killed him'
A resident was brutally killed at an RDP settlement in Ekurhuleni, allegedly by Red Ants guarding new houses against illegal occupation.
But this assertion has been denied by the Gauteng Department of Housing, which had contracted the Red Ants and who said the death was a result of a fight between members of the community about occupation of houses.
The incident has resulted in a furious standoff between the Red Ants and the enraged community of Eden Park Extension 5, who called for the guards in red overalls to be taken out of the area yesterday.
Meanwhile, a police statement said the Red Ants had attacked 34-year-old Alfred Ngubeni shortly after they had assaulted his 25-year-old wife, Ayanda Zulu.
Source: The Star
But this assertion has been denied by the Gauteng Department of Housing, which had contracted the Red Ants and who said the death was a result of a fight between members of the community about occupation of houses.
The incident has resulted in a furious standoff between the Red Ants and the enraged community of Eden Park Extension 5, who called for the guards in red overalls to be taken out of the area yesterday.
Meanwhile, a police statement said the Red Ants had attacked 34-year-old Alfred Ngubeni shortly after they had assaulted his 25-year-old wife, Ayanda Zulu.
Source: The Star
Thursday, November 20, 2008
SECURITY OF TENURE: DEFINITION OF ‘OCCUPIER’ AND CALCULATION OF THRESHOLD INCOME
Halle & another v Downs (LCC78R/2007) [2008] ZALCC 15 (20 November 2008)
This judgment deals with the scenario where an elderly couple had breached the terms of their lease agreement. When the property owner applied for their eviction, they relied on the provisions of the Extension of Security of Tenure Act 67, 1997 (‘ESTA’) and alleged that they were ‘occupiers’ for purposes of this Act and that they should therefore be provided the benefits of ‘security of tenure’ as contained therein. On the facts, the court found that they were not ‘occupiers’ as defined in the Act, that their continued occupation of the land constituted unlawful occupation as defined in the Prevention Illegal Eviction from and Unlawful Occupation of Land Act 19, 1998 (‘PIE) and that they should therefore be evicted from the property in terms of the latter Act.
The judgment is an interesting example of the application and interaction between the ESTA and PIE Acts and is a worthwhile read for practitioners specialising in the application of these acts.
The judgment can be viewed here.
Facts:
Mr and Mrs Halle, both over 60 years old, were married out of community property. Mrs Halle purchased a farm in [1983] and they have lived on the farm [since 1966]. Due to financial difficulties [1], Mrs Halle sold the farm to Downs in 1994. The agreement included the provision that Mr & Mrs Halle could remain in residence on the farm and would for a period of 5 years have the right to buy back the farm at the same price that Downs had paid for it. Subsequently Mr Halle and Downs entered into a lease agreement in respect of a portion of the farm. At some stage Mr Halle fell into arrears with the lease and subsequently also refused to re-negotiate the terms of the lease with Downs.
Downs accordingly applied to Court for an order evicting Mrs & Mrs Halle from the premises. Their defence was that they are long-term occupiers, over the age of 60 and had resided on the farm for longer than 10 years - and that they accordingly are protected in terms of the Extension of Security of Tenure Act 67, 1997 (‘ESTA’).
The Magistrate’s Court found that they did not fall within the definition of ‘long-term occupiers’ as provided for in ESTA and granted the eviction order in terms of ESTA. Mr & Mrs Halle then appealed to the Land Claims Court.
Held:
ESTA defines an occupier as a person residing on land that belongs to another and who had consent to so reside on 04/02/1997 or thereafter, but excluding a person who uses the land mainly for industrial, mining or commercial farming and excluding a person who has an income in excess of R 5000 a month.
In this matter however the Court agreed with the Magistrate's Court finding that Mr and Mrs Halle did not fall within the definition of an 'occupier'. In the first place, with regard to the position of Mrs Halle, the Court found that she was not an ‘occupier’ in her own right since it was her husband who had concluded the lease agreement with Downs; Mr Halle was the ‘occupier’.
Secondly, with regard to the income requirement in the definition of ‘occupant’ the Court held that in order to avoid absurdities the income referred to in the definition should be interpreted as the income accruing to spouses jointly. To hold otherwise would result in the situation that spouses can claim the protection of ESTA in circumstances where one spouse has the required consent to occupy property but receives a minimal income, while the other (who may not be an occupier in his own right) is wealthy and earns a substantial income.
Furthermore, in order to qualify as an occupier, the spouses must have had a joint income of less than R 5000[2] for a full period of at least 10 years.
On the facts is was apparent that at least for certain periods Mr and Mrs Halle earned an income in excess of R 5000 per month which they earned from running business activities from the farm.
However, the Court noted that even if it was found that Mr and Mrs Halle were ‘occupiers’ for purposes of ESTA, the action would still not succeed because they had committed breaches as contemplated in section 10 of ESTA. The section reads as follows:
“10
(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if -
(a) the occupier has breached section 6(3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach;
(b) the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar month’s notice in writing to do so;
(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or …”
On the [available] evidence, Mr Halle breached the terms of the lease agreement by refusing to tender payment in terms of the lease agreement. He thereafter also refused to enter into consultations with Downs to re-negotiate a lease agreement and has thereby breached the relationship with the property owner.
Taking the above into account the Court held that the Halle pair could not avail themselves of any of the protection afforded under ESTA.
How should they then be dealt with? The Court held that in the circumstances Mr and Mrs Halle are ‘unlawful occupiers’ for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19,1998 (‘PIE’). Since Downs had complied with the necessary notification procedures as laid down in PIE, the Court was at liberty to grant an eviction order. It was also shown that Mr & Mrs Halle were not destitute in that their children were willing to and in a position to accommodate them.
The order was accordingly granted and Mr and Mrs Halle were evicted from the farm.
Moral of the story: It is important to be aware that for purposes of the definition of 'occupier' in ESTA, the joint income of the spouses are used as a guideline. Moreover, applying for protection in terms of ESTA requires fair play on the side of the occupier. In terms of section 10 of ESTA the occupier is obliged to maintain bona fides in his or her dealings with the property owner failing which he or she may forfeit the protection that the Act can provide.
Source: gqwetha Training Academy
[1] The court did not inquire as to the nature of the financial difficulty
[2] This threshold has not been amended since the inception of ESTA, despite cost of living increases
This judgment deals with the scenario where an elderly couple had breached the terms of their lease agreement. When the property owner applied for their eviction, they relied on the provisions of the Extension of Security of Tenure Act 67, 1997 (‘ESTA’) and alleged that they were ‘occupiers’ for purposes of this Act and that they should therefore be provided the benefits of ‘security of tenure’ as contained therein. On the facts, the court found that they were not ‘occupiers’ as defined in the Act, that their continued occupation of the land constituted unlawful occupation as defined in the Prevention Illegal Eviction from and Unlawful Occupation of Land Act 19, 1998 (‘PIE) and that they should therefore be evicted from the property in terms of the latter Act.
The judgment is an interesting example of the application and interaction between the ESTA and PIE Acts and is a worthwhile read for practitioners specialising in the application of these acts.
The judgment can be viewed here.
Facts:
Mr and Mrs Halle, both over 60 years old, were married out of community property. Mrs Halle purchased a farm in [1983] and they have lived on the farm [since 1966]. Due to financial difficulties [1], Mrs Halle sold the farm to Downs in 1994. The agreement included the provision that Mr & Mrs Halle could remain in residence on the farm and would for a period of 5 years have the right to buy back the farm at the same price that Downs had paid for it. Subsequently Mr Halle and Downs entered into a lease agreement in respect of a portion of the farm. At some stage Mr Halle fell into arrears with the lease and subsequently also refused to re-negotiate the terms of the lease with Downs.
Downs accordingly applied to Court for an order evicting Mrs & Mrs Halle from the premises. Their defence was that they are long-term occupiers, over the age of 60 and had resided on the farm for longer than 10 years - and that they accordingly are protected in terms of the Extension of Security of Tenure Act 67, 1997 (‘ESTA’).
The Magistrate’s Court found that they did not fall within the definition of ‘long-term occupiers’ as provided for in ESTA and granted the eviction order in terms of ESTA. Mr & Mrs Halle then appealed to the Land Claims Court.
Held:
ESTA defines an occupier as a person residing on land that belongs to another and who had consent to so reside on 04/02/1997 or thereafter, but excluding a person who uses the land mainly for industrial, mining or commercial farming and excluding a person who has an income in excess of R 5000 a month.
In this matter however the Court agreed with the Magistrate's Court finding that Mr and Mrs Halle did not fall within the definition of an 'occupier'. In the first place, with regard to the position of Mrs Halle, the Court found that she was not an ‘occupier’ in her own right since it was her husband who had concluded the lease agreement with Downs; Mr Halle was the ‘occupier’.
Secondly, with regard to the income requirement in the definition of ‘occupant’ the Court held that in order to avoid absurdities the income referred to in the definition should be interpreted as the income accruing to spouses jointly. To hold otherwise would result in the situation that spouses can claim the protection of ESTA in circumstances where one spouse has the required consent to occupy property but receives a minimal income, while the other (who may not be an occupier in his own right) is wealthy and earns a substantial income.
Furthermore, in order to qualify as an occupier, the spouses must have had a joint income of less than R 5000[2] for a full period of at least 10 years.
On the facts is was apparent that at least for certain periods Mr and Mrs Halle earned an income in excess of R 5000 per month which they earned from running business activities from the farm.
However, the Court noted that even if it was found that Mr and Mrs Halle were ‘occupiers’ for purposes of ESTA, the action would still not succeed because they had committed breaches as contemplated in section 10 of ESTA. The section reads as follows:
“10
(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if -
(a) the occupier has breached section 6(3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach;
(b) the owner or person in charge has complied with the terms of any agreement pertaining to the occupier’s right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar month’s notice in writing to do so;
(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or …”
On the [available] evidence, Mr Halle breached the terms of the lease agreement by refusing to tender payment in terms of the lease agreement. He thereafter also refused to enter into consultations with Downs to re-negotiate a lease agreement and has thereby breached the relationship with the property owner.
Taking the above into account the Court held that the Halle pair could not avail themselves of any of the protection afforded under ESTA.
How should they then be dealt with? The Court held that in the circumstances Mr and Mrs Halle are ‘unlawful occupiers’ for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19,1998 (‘PIE’). Since Downs had complied with the necessary notification procedures as laid down in PIE, the Court was at liberty to grant an eviction order. It was also shown that Mr & Mrs Halle were not destitute in that their children were willing to and in a position to accommodate them.
The order was accordingly granted and Mr and Mrs Halle were evicted from the farm.
Moral of the story: It is important to be aware that for purposes of the definition of 'occupier' in ESTA, the joint income of the spouses are used as a guideline. Moreover, applying for protection in terms of ESTA requires fair play on the side of the occupier. In terms of section 10 of ESTA the occupier is obliged to maintain bona fides in his or her dealings with the property owner failing which he or she may forfeit the protection that the Act can provide.
Source: gqwetha Training Academy
[1] The court did not inquire as to the nature of the financial difficulty
[2] This threshold has not been amended since the inception of ESTA, despite cost of living increases
Saturday, August 9, 2008
Irene Grootboom dies homeless and penniless
Irene Grootboom was the woman whose name became known around the world for enforcing the state's obligation to respect socio-economic rights, especially of the homeless.
Yet, when she died this week in her forties, she was still homeless and penniless.
Eight years ago the Constitutional Court ruled in Grootboom's favour, saying that she and others living in an informal settlement on Wallacedene sports ground near Kraaifontein could not be evicted without being given alternative accommodation.
Crucially, the court found that the primary failure by the state was the inadequate housing programme, which didn't make sufficient provision for people in urgent need.
"She was a true hero, a genuine leader of her people, a hero of the working class, a symbol of hope to the poor, homeless and marginalised. Her courage and commitment to the creation of a society in which all enjoy a better life will be sorely missed," Skwatsha said.
Source: Mail and Guardian
Yet, when she died this week in her forties, she was still homeless and penniless.
Eight years ago the Constitutional Court ruled in Grootboom's favour, saying that she and others living in an informal settlement on Wallacedene sports ground near Kraaifontein could not be evicted without being given alternative accommodation.
Crucially, the court found that the primary failure by the state was the inadequate housing programme, which didn't make sufficient provision for people in urgent need.
"She was a true hero, a genuine leader of her people, a hero of the working class, a symbol of hope to the poor, homeless and marginalised. Her courage and commitment to the creation of a society in which all enjoy a better life will be sorely missed," Skwatsha said.
Source: Mail and Guardian
Tuesday, July 29, 2008
Families out in the cold after farm eviction
Barely two metres from the busy R512 road leading to Lanseria Airport and Hartbeespoort dam, eight families have braved the inclement weather after they were evicted from the farm on which some had lived for more than 60 years.
The group ranges from the elderly to small children.
On Sunday night when the Pretoria News visited the evictees,65-year-old Priscilla Masilo and Jeremiah Mokoena, 73, sat on plastic chairs with the others, huddled around a fire to keep warm.
Scattered around them were their only belongings - blankets, mattresses and a few pots and pans. They remembered the many years they worked on the nearby Botesdal from early morning until late. Masilo was born on the farm in 1943. Her father worked there until he died in 1954 and Masilo and her grand-daughter had lived in a house their father built shortly before he died. Mokoena, who was born in 1935 took over from Masilo's father and took care of the pigs on the farm.
The group includes 63-year-old Louisa Sibeko, who is now confined to a wheelchair and who worked on the farm as a tomato picker. She had to stop work 10 years ago following a stroke. The families were evicted from the farm about a week ago and the City of Johannesburg wanted to relocate them to Adelaide Tambo Emergency settlement next to sewerage works.
But Masilo and her group refused to be relocated to a place where the stench is so pungent that they can barely eat their meals. "We will stay here until they say we can go back to the farm. That is our home and we worked on the farm for most of our lives,"Masilo said. An eviction order was sought against Masilo and the group as thefarm is earmarked for further development. The issue went to court in 2007 and the lawyer representing the group agreed to the eviction order without their consent .
Masilo said nobody would listen to their objections and their lawyer at the time merely told them to keep quiet. Masilo said they were told afterwards that they had to vacate the farm, but were able to remain there until when they were evicted with the help of Jumbo Security. Lawyers for Human Rights turned to the Land Claims Court in Randburg on Monday where they sought an urgent order to allow the people to return to the farm until the matter was resolved. The matter was however postponed for a week.
Louise du Plessis, the lawyer acting on their behalf, said these people have been living on the farm for years - some even for decades - and qualified as long-term occupiers under the Extension of Security of Tenure Act. The act gives occupiers a number of rights, including that if a tenant is older than 60 years and had been living on the particular property for longer than 10 years, he or she cannot be evicted, or in the alternative, must be suitably compensated. Du Plessis said the situation whereby the people were now living next to the road,was a disaster waiting to happen.
Source: Pretoria News
Scattered around them were their only belongings - blankets, mattresses and a few pots and pans. They remembered the many years they worked on the nearby Botesdal from early morning until late. Masilo was born on the farm in 1943. Her father worked there until he died in 1954 and Masilo and her grand-daughter had lived in a house their father built shortly before he died. Mokoena, who was born in 1935 took over from Masilo's father and took care of the pigs on the farm.
The group includes 63-year-old Louisa Sibeko, who is now confined to a wheelchair and who worked on the farm as a tomato picker. She had to stop work 10 years ago following a stroke. The families were evicted from the farm about a week ago and the City of Johannesburg wanted to relocate them to Adelaide Tambo Emergency settlement next to sewerage works.
But Masilo and her group refused to be relocated to a place where the stench is so pungent that they can barely eat their meals. "We will stay here until they say we can go back to the farm. That is our home and we worked on the farm for most of our lives,"Masilo said. An eviction order was sought against Masilo and the group as thefarm is earmarked for further development. The issue went to court in 2007 and the lawyer representing the group agreed to the eviction order without their consent .
Masilo said nobody would listen to their objections and their lawyer at the time merely told them to keep quiet. Masilo said they were told afterwards that they had to vacate the farm, but were able to remain there until when they were evicted with the help of Jumbo Security. Lawyers for Human Rights turned to the Land Claims Court in Randburg on Monday where they sought an urgent order to allow the people to return to the farm until the matter was resolved. The matter was however postponed for a week.
Louise du Plessis, the lawyer acting on their behalf, said these people have been living on the farm for years - some even for decades - and qualified as long-term occupiers under the Extension of Security of Tenure Act. The act gives occupiers a number of rights, including that if a tenant is older than 60 years and had been living on the particular property for longer than 10 years, he or she cannot be evicted, or in the alternative, must be suitably compensated. Du Plessis said the situation whereby the people were now living next to the road,was a disaster waiting to happen.
Source: Pretoria News
Sunday, April 20, 2008
An executive-minded decision
The issue of land claims and homelessness continues to be one of the most pressing of our social problems. Unsurprisingly, the courts have been drawn into the intricacies of this problem, particularly when it comes to squatters and their removal.
Recently, in the Johannesburg City case, the Constitutional Court sought to guide authorities confronted with the dilemma of the removal of a large group of people who reside in unsafe buildings but who have nowhere else to live. The court's judgement ruled that the relevant authority engaged with the affected dwellers before eviction could take place: "Engagement is a two-way process in which the city and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives." This follows earlier qualifications to the previously absolute right of an authority or land owner to evict persons, but its full implications do not appear to have reached Cape Town.
On March 10, the Cape High Court ordered the eviction of about 20 000 residents from the Joe Slovo settlement. The residents argued that the parties that sought their removal -- a company charged with the task of transforming the settlement into formal housing and the provincial and national ministries -- had no legal standing to bring an application for eviction. They also argued they had a expectation that 70% of the opportunities afforded by the new housing at Joe Slovo would be awarded to their community.
The decision on the argument regarding legitimate expectations is illuminating. Their claim on 70% of Joe Slovo was not denied by the applicants for their eviction. The court accepted this and the entitlement would act as a defence against eviction. But the court also found that the initial occupation was unlawful, which can never give rise to a legitimate expectation, so the residents could not rely in law upon the undertaking that had been given to them.
This is surely a controversial judgment. It cites but one decision as authority for this finding. Although there is no unanimity on the point, there is alternative authority that supports the argument that there is a substantive legitimate expectation, where such an undertaking is given, except if the undertaking is made in violation of a statute or when it is not in the public interest. Neither was the case in this dispute; hence there appears to be a significant injustice if people were removed from land where clear promises had been made to them.
But more problematic is the absence of any engagement as set out by the Constitutional Court. Though the Cape High Court found compliance with the Johannesburg City case, the residents asserted that no meaningful consultation had taken place. The applicants conceded that consultation had been limited. No evidence of such engagement was shown.
A unilateral decision was made to move the residents more then 37km, far from where their children went to school and where many were employed.
Of course a court must seek to balance the state's attempt to give effect to its constitutional obligation to provide housing with the rights of those who are homeless but whose actions may frustrate the housing programme. That will often prove to be a difficult balancing exercise, hence some sympathy for the judicial dilemma. But in this case the court manifestly glossed over the undertaking given to the residents and the legal implications of meaningful engagement before any removal could take place. It is this deference to developers and the diminution of the importance of consultation that makes this judgement so problematic.
This case must raise a debate about the meaning of legal transformation.
Recently, in the Johannesburg City case, the Constitutional Court sought to guide authorities confronted with the dilemma of the removal of a large group of people who reside in unsafe buildings but who have nowhere else to live. The court's judgement ruled that the relevant authority engaged with the affected dwellers before eviction could take place: "Engagement is a two-way process in which the city and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives." This follows earlier qualifications to the previously absolute right of an authority or land owner to evict persons, but its full implications do not appear to have reached Cape Town.
On March 10, the Cape High Court ordered the eviction of about 20 000 residents from the Joe Slovo settlement. The residents argued that the parties that sought their removal -- a company charged with the task of transforming the settlement into formal housing and the provincial and national ministries -- had no legal standing to bring an application for eviction. They also argued they had a expectation that 70% of the opportunities afforded by the new housing at Joe Slovo would be awarded to their community.
The decision on the argument regarding legitimate expectations is illuminating. Their claim on 70% of Joe Slovo was not denied by the applicants for their eviction. The court accepted this and the entitlement would act as a defence against eviction. But the court also found that the initial occupation was unlawful, which can never give rise to a legitimate expectation, so the residents could not rely in law upon the undertaking that had been given to them.
This is surely a controversial judgment. It cites but one decision as authority for this finding. Although there is no unanimity on the point, there is alternative authority that supports the argument that there is a substantive legitimate expectation, where such an undertaking is given, except if the undertaking is made in violation of a statute or when it is not in the public interest. Neither was the case in this dispute; hence there appears to be a significant injustice if people were removed from land where clear promises had been made to them.
But more problematic is the absence of any engagement as set out by the Constitutional Court. Though the Cape High Court found compliance with the Johannesburg City case, the residents asserted that no meaningful consultation had taken place. The applicants conceded that consultation had been limited. No evidence of such engagement was shown.
A unilateral decision was made to move the residents more then 37km, far from where their children went to school and where many were employed.
Of course a court must seek to balance the state's attempt to give effect to its constitutional obligation to provide housing with the rights of those who are homeless but whose actions may frustrate the housing programme. That will often prove to be a difficult balancing exercise, hence some sympathy for the judicial dilemma. But in this case the court manifestly glossed over the undertaking given to the residents and the legal implications of meaningful engagement before any removal could take place. It is this deference to developers and the diminution of the importance of consultation that makes this judgement so problematic.
This case must raise a debate about the meaning of legal transformation.
Monday, March 10, 2008
Anger at Cape eviction order
The Cape High Court has given the go-ahead for the eviction of several thousand residents of the Joe Slovo informal settlement to make way for a housing development. The order, handed down by Judge President John Hlophe on Monday, followed an application by state-owned developer Thubelisha Homes, Housing Minister Lindiwe Sisulu and Western Cape minister of housing Richard Dyantyi. Hundreds of Joe Slovo residents, who had gathered in the street outside the court, chanted angry slogans after the judgment was handed down.
Anti-Eviction Campaign coordinator Mzonke Poni said: "We really do not welcome the judgement because we are saying there's no way a judge can issue an order to evict more than 20 000 people without considering the impact it will have on their livelihoods. The residents are being evicted to make way for the construction of the N2 Gateway housing project.
Source: Mail & Guardian
Anti-Eviction Campaign coordinator Mzonke Poni said: "We really do not welcome the judgement because we are saying there's no way a judge can issue an order to evict more than 20 000 people without considering the impact it will have on their livelihoods. The residents are being evicted to make way for the construction of the N2 Gateway housing project.
Source: Mail & Guardian
Monday, February 18, 2008
Cape High Court confirm evitions
The Cape High Court on Monday dismissed an application for leave to appeal against an eviction order that compelled illegal occupiers of unfinished homes in Delft on the Cape Flats to vacate their houses by 6pm last Sunday.
Grounds for the application for leave to appeal were that the court had erred in treating the eviction application as urgent, in the first instance, and in making the provisional eviction order that was granted final. A third ground was that the scheduled eviction of about 1 600 people was not just and equitable, and a fourth was that the court should instead order mediation through the authorities and the illegal occupiers.
Judge Deon van Zyl ruled late on Monday that the grounds were altogether without merit and that no other court would reach a conclusion different to his.
Earlier on Monday, the Western Cape Anti-Eviction Campaign said: "The residents have vowed not to stop the fight. They are now preparing to petition the Supreme Court of Appeal in Bloemfontein and thereafter will take their fight to the Constitutional Court. "The judge and African National Congress government and Thubelisha Homes are treating the residents of Delft as if they have alternative accommodation. Yet not one of them has any place to go. All of those who moved into the new houses were either homeless or backyard dwellers."
Asked when evictions would get under way, Thubelisha general manager Xhanti Sigcawu said he was expecting to hear from the sheriff before the end of the day. "We'll take our cue from the sheriff," he said.
Source: Mail & Guardian
Grounds for the application for leave to appeal were that the court had erred in treating the eviction application as urgent, in the first instance, and in making the provisional eviction order that was granted final. A third ground was that the scheduled eviction of about 1 600 people was not just and equitable, and a fourth was that the court should instead order mediation through the authorities and the illegal occupiers.
Judge Deon van Zyl ruled late on Monday that the grounds were altogether without merit and that no other court would reach a conclusion different to his.
Earlier on Monday, the Western Cape Anti-Eviction Campaign said: "The residents have vowed not to stop the fight. They are now preparing to petition the Supreme Court of Appeal in Bloemfontein and thereafter will take their fight to the Constitutional Court. "The judge and African National Congress government and Thubelisha Homes are treating the residents of Delft as if they have alternative accommodation. Yet not one of them has any place to go. All of those who moved into the new houses were either homeless or backyard dwellers."
Asked when evictions would get under way, Thubelisha general manager Xhanti Sigcawu said he was expecting to hear from the sheriff before the end of the day. "We'll take our cue from the sheriff," he said.
Source: Mail & Guardian
Monday, August 21, 2006
CORRUPTION AND ARMED INTIMIDATION AS MOTALA HEIGHTS EVICTIONS CRISIS DEEPENS
On Saturday 17 June 2006 Ward Councillor Derek Dimba arrived at the Motala Heights settlement in Pinetown with municipal officials and 5 car loads of municipal security guards to mark out shacks that would then be destroyed by the militarised police Land Invasions Unit. They had probably chosen the Youth Day weekend thinking that many people would be away at their rural homes. They were wrong. The community was able to mobilise quickly and see off this first threat.
The Motala Heights Development Commitment spent the next day gathering detailed information from residents and preparing affidavits and were at the Legal Resources Centre first thing on Monday morning. They then moved on the Municipal offices in New Germany where they were able to win an unscheduled emergency meeting with Mr. Geoff Nightingale. Nightingale confirmed that the Municipality planned to move 63 families with ‘numbers’ to a new housing development at Nazareth Island and to evict the other residents. The Council’s ‘one shack = one house’ policy means that many families who are sharing shacks face eviction with no prospect of relocation. Nightingale also confirmed that Cllr Dimba had asked the Municipality to immediately destroy all new structures that had been erected. The eThekwini Municipality does not allow the construction of new shacks or the expansion or development of existing shacks. The Development Committee pointed out that all the new shacks and developments (all well made wooden cabins) had been built by long standing residents who needed more space for growing children, had got married, wanted to move out of over crowded shared shacks after finding work and so on.
On Women’s Day, 9 August 2006, Cllr Dimba returned with pistol holstered to each hip and flanked by his usual cohort of armed men. He summoned the community to a meeting where he began by gesturing to his weapons and promised to ‘chase away’ named individuals on the democratically elected committee. He then said, in a chilling echo of high apartheid language, that people in shacks without numbers would have to ‘hamba khaya’ and ‘go back where they came from’. He said that after those people with numbers were relocated to Nazareth Island on 27 August 2006 the houses of the others would be demolished.
The Motala Heights settlement lies amongst the gum tress on the hill behind Motala Heights suburb which is, in turn, just behind the many factories in Pinetown’s industrial area. It was founded in 1992 by Mr. Richard Nzuza and the residents mostly come from Zululand, the Eastern Cape and Ixopo although some are from as far away as the Free State. Almost everyone came here to work or to reunite families divided by migrant labour. Most of the men work in the nearby factories and most of the women work in the houses in the adjacent suburb. There is a school, clinic, library and shops within walking distance which means that living in Motala Heights has the tremendous benefit of radically cutting down the time and money that poor people usually have to spend on transport.
There are almost 300 shacks in the settlement. The land is owned by local tycoon Ricky Govender who has developed cottages for rent on adjacent land and also owns the local bottle store and supermarket as well as a trucking company amongst other businesses. It is rumoured that he has many government contracts too. People in the Motala Heights settlement have excellent relationships with most of the residents in formal houses. They often work in their homes and share the same taxis. The local taxi boss, just known as Leon, is widely respected in the settlement. But the conflict with the Govender family goes back to 1997 when Ricky’s father, Harry, used industrial earth moving equipment to dig up the road leading into the settlement. The shack dwellers responded by building their own road with their own tools and labour. It is now widely believed that Govender is aiming to extend his private development, including housing and a petrol station, up the hill in a large private development after the shack dwellers have been evicted. Cllr Dimba appears to report directly to Govender usually visiting him before and after his armed visits to the Motala Heights Settlement. The Housing Department have told the Motala Heights Committee that they cannot buy the land from Govender as he is demanding a completely unreasonable price. The Community is demanding the expropriation of the small section of Govender’s large land holding where they have built their community in order that there can be an upgrade where people are already living.
The 63 families scheduled to move to Nazareth Island would rather stay in Motala Heights where they are close to work, schools, the local clinic, shops and the other benefits of being near to Pinetown and where they are part of an established community. Many amongst them refused to register for the tiny badly built houses in Nazareth Island for these reasons and many also refused to register in solidarity with others who don’t have ‘a number’ and face eviction without relocation. Numerous people in the community allege that the ‘numbers’ of the people that didn’t register have been sold off to people from elsewhere, especially KwaMashu The Committee is currently making the arrangements to pursue vigorous legal action against this alleged corruption. The more than 200 families who now face eviction and the destruction of their community, their houses and their access to urban opportunity are determined to resist eviction by all means. They will explore all legal options but will also use mass mobilisation and will draw on the support of shack dwellers elsewhere to defend their homes, their community and their right to live near the city. The resistance is being organised by the democratically elected and mandated Motala Heights Development Committee which is affiliated to the Abahlali baseMjondolo movement.
For comment on the particular situation confronted by Motala Heights please contact the following members of the Motala Heights Development Committee:
Mr Bhekuyise Ngcobo 0769212891, Chair
Ms Lousia Motha 0781760088, Deputy Chair
Mr Alson Mkhize, 0827608427
Mr Sizwe Nkwanyana 0839951351
For comment on the general situation confronted by shack dwellers in the eThekwini Municipality as they face the onslaught of the Municipality’s looming mass evictions and forced removals under its World Bank/UN designed ‘slum clearance’ programme that aims to ‘clear the slums by 2010’ please contact the following members of the Abahlali baseMjondolo secretariat.
Mr S’bu Zikode 0835470474, Chair
Mr Mnikelo Ndabankulu 073565241, Media Liason
Ms Fikile Nkosi 0842501446
Mzuyanda Ngthobane (24), Nkosinathi Gabella (28) and Slethiwe Ngcobo (3) all confront eviction from their home in the Motala Heights Settlement. They are pictured outside Mr Ngthobane’s home. Mr Ngthobane is a long time resident of Motala Heights and has just built his own wooden home after years of sharing a shack with 6 others.
Mr. Richard Nzuza, founder of the Motala Heights Settlement.
“I will not be moved. I will die here.”
Source: abahlali.org
The Motala Heights Development Commitment spent the next day gathering detailed information from residents and preparing affidavits and were at the Legal Resources Centre first thing on Monday morning. They then moved on the Municipal offices in New Germany where they were able to win an unscheduled emergency meeting with Mr. Geoff Nightingale. Nightingale confirmed that the Municipality planned to move 63 families with ‘numbers’ to a new housing development at Nazareth Island and to evict the other residents. The Council’s ‘one shack = one house’ policy means that many families who are sharing shacks face eviction with no prospect of relocation. Nightingale also confirmed that Cllr Dimba had asked the Municipality to immediately destroy all new structures that had been erected. The eThekwini Municipality does not allow the construction of new shacks or the expansion or development of existing shacks. The Development Committee pointed out that all the new shacks and developments (all well made wooden cabins) had been built by long standing residents who needed more space for growing children, had got married, wanted to move out of over crowded shared shacks after finding work and so on.
On Women’s Day, 9 August 2006, Cllr Dimba returned with pistol holstered to each hip and flanked by his usual cohort of armed men. He summoned the community to a meeting where he began by gesturing to his weapons and promised to ‘chase away’ named individuals on the democratically elected committee. He then said, in a chilling echo of high apartheid language, that people in shacks without numbers would have to ‘hamba khaya’ and ‘go back where they came from’. He said that after those people with numbers were relocated to Nazareth Island on 27 August 2006 the houses of the others would be demolished.
The Motala Heights settlement lies amongst the gum tress on the hill behind Motala Heights suburb which is, in turn, just behind the many factories in Pinetown’s industrial area. It was founded in 1992 by Mr. Richard Nzuza and the residents mostly come from Zululand, the Eastern Cape and Ixopo although some are from as far away as the Free State. Almost everyone came here to work or to reunite families divided by migrant labour. Most of the men work in the nearby factories and most of the women work in the houses in the adjacent suburb. There is a school, clinic, library and shops within walking distance which means that living in Motala Heights has the tremendous benefit of radically cutting down the time and money that poor people usually have to spend on transport.
There are almost 300 shacks in the settlement. The land is owned by local tycoon Ricky Govender who has developed cottages for rent on adjacent land and also owns the local bottle store and supermarket as well as a trucking company amongst other businesses. It is rumoured that he has many government contracts too. People in the Motala Heights settlement have excellent relationships with most of the residents in formal houses. They often work in their homes and share the same taxis. The local taxi boss, just known as Leon, is widely respected in the settlement. But the conflict with the Govender family goes back to 1997 when Ricky’s father, Harry, used industrial earth moving equipment to dig up the road leading into the settlement. The shack dwellers responded by building their own road with their own tools and labour. It is now widely believed that Govender is aiming to extend his private development, including housing and a petrol station, up the hill in a large private development after the shack dwellers have been evicted. Cllr Dimba appears to report directly to Govender usually visiting him before and after his armed visits to the Motala Heights Settlement. The Housing Department have told the Motala Heights Committee that they cannot buy the land from Govender as he is demanding a completely unreasonable price. The Community is demanding the expropriation of the small section of Govender’s large land holding where they have built their community in order that there can be an upgrade where people are already living.
The 63 families scheduled to move to Nazareth Island would rather stay in Motala Heights where they are close to work, schools, the local clinic, shops and the other benefits of being near to Pinetown and where they are part of an established community. Many amongst them refused to register for the tiny badly built houses in Nazareth Island for these reasons and many also refused to register in solidarity with others who don’t have ‘a number’ and face eviction without relocation. Numerous people in the community allege that the ‘numbers’ of the people that didn’t register have been sold off to people from elsewhere, especially KwaMashu The Committee is currently making the arrangements to pursue vigorous legal action against this alleged corruption. The more than 200 families who now face eviction and the destruction of their community, their houses and their access to urban opportunity are determined to resist eviction by all means. They will explore all legal options but will also use mass mobilisation and will draw on the support of shack dwellers elsewhere to defend their homes, their community and their right to live near the city. The resistance is being organised by the democratically elected and mandated Motala Heights Development Committee which is affiliated to the Abahlali baseMjondolo movement.
For comment on the particular situation confronted by Motala Heights please contact the following members of the Motala Heights Development Committee:
Mr Bhekuyise Ngcobo 0769212891, Chair
Ms Lousia Motha 0781760088, Deputy Chair
Mr Alson Mkhize, 0827608427
Mr Sizwe Nkwanyana 0839951351
For comment on the general situation confronted by shack dwellers in the eThekwini Municipality as they face the onslaught of the Municipality’s looming mass evictions and forced removals under its World Bank/UN designed ‘slum clearance’ programme that aims to ‘clear the slums by 2010’ please contact the following members of the Abahlali baseMjondolo secretariat.
Mr S’bu Zikode 0835470474, Chair
Mr Mnikelo Ndabankulu 073565241, Media Liason
Ms Fikile Nkosi 0842501446
Mzuyanda Ngthobane (24), Nkosinathi Gabella (28) and Slethiwe Ngcobo (3) all confront eviction from their home in the Motala Heights Settlement. They are pictured outside Mr Ngthobane’s home. Mr Ngthobane is a long time resident of Motala Heights and has just built his own wooden home after years of sharing a shack with 6 others.
Mr. Richard Nzuza, founder of the Motala Heights Settlement.
“I will not be moved. I will die here.”
Source: abahlali.org
Friday, June 5, 1998
PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT
PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998
Commencement Date of Act: 5 June 1998
Date Modified by Sabinet: 20080925
Category: Property, Land and Environment - Land
Note: Decided Cases updated
Description: To provide for the prohibition of unlawful eviction; to provide for procedures for the eviction of unlawful occupiers; and to repeal the Prevention of Illegal Squatting Act, 1951, and other obsolete laws; and to provide for matters incidental thereto.
Database: Netlaw: SA Legislation
A copy of the Act can be found here.
Source: Sabinet, info.gov.za
Commencement Date of Act: 5 June 1998
Date Modified by Sabinet: 20080925
Category: Property, Land and Environment - Land
Note: Decided Cases updated
Description: To provide for the prohibition of unlawful eviction; to provide for procedures for the eviction of unlawful occupiers; and to repeal the Prevention of Illegal Squatting Act, 1951, and other obsolete laws; and to provide for matters incidental thereto.
Database: Netlaw: SA Legislation
A copy of the Act can be found here.
Source: Sabinet, info.gov.za
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