Supreme Court of Appeal upholds Mkhondeni eviction appeal
On 8 May 2009, the SCA upheld the appeal of the Mkhondeni community in Pietermaritzburg and thereby prevented their eviction.
The court further ordered that the Msunduzi Municipality to be joined to future proceedings. The Municipality was also directed to file a report by the 30 June 2009, on what steps it has taken to provide alternative land or emergency accommodation for our clients. The report must also include what the effects of the eviction would be if alternate land or emergency housing is not made available. The matter was also postponed sine die for consideration of the matter, including the possibility of mediation to seek interim relief. The matter was remitted to the Pietermaritzburg High Court, for its further conduct. Full judgment will be handed out later this month.
During October 2006, the occupiers of 112, 101, 102 and 104 Shorts Retreat in Mkondeni were served with a high court eviction application by the owners of the land, Daisy Dear Investments. The informal settlement consists of approximately 500 shacks and about 2500 individuals. About 1500 of these people are children under the ages of 18years. Some of the occupiers have been resident on the land for approximately 15 years.
Lawyers for Human Rights [LHR], acting as attorneys in this matter, defended the community on the basis that there was no alternative accommodation available for the occupiers of the land. LHR relied on the recent Constitutional Court judgments wherein the Court stated that the local authority has an obligation to provide alternate accommodation to the informal dwellers affected by the eviction order.
In terms of the Constitution and Section 4(7) of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998, the Court can only evict after considering all relevant circumstances, which includes considering the position of all elderly persons, disabled people, children including orphaned and vulnerable children and households headed by women and children.
On 20 June 2008, the Pietermaritzburg High Court had ordered the Msunduzi Municipality to submit to the Court a comprehensive report whether land has been made available by the Municipality or other organ of State, to the occupiers of the Applicants properties. The report filed stated that there was no housing project available to accommodate our clients. The Court thereafter found in favour of the private land owner, thereby granting the eviction order. The order was held of until the 15th of February 2008, thus giving the respondents six months to find alternate accommodation.
LHR brought an application for leave to appeal the decision to the Pietermaritzburg High Court, who denied the application. LHR then approached the Supreme Court of Appeal for leave to Appeal which was granted.
The SCA’s order to set aside the eviction order of the High Court has effectively prevented the threatening eviction of the Mkhondeni community. The municipality now has to actively engage with both parties to the above dispute and commit itself to finding some sort of solution to the impending emergency housing crisis that would be brought about if our clients were to be evicted from the above land. The municipality can no longer wash its hands off the matter and in trying to seek some sort of solution between all parties, may use the process of mediation.
LHR is indebted to the Legal Aid Board, who provided significant financial resources in support of this case.
For more information, please contact:
Refugee & Migrant Rights Project
Lawyers For Human Rights
Tel: 031 3010531
Fax: 031 3010538