First impressions and feedback from the legal trial for ZRH eviction case

Jessica Thorn

The appeal trial of the community of Zille Raine Heights v. the City of Cape Town case commenced at 10h00 and was concluded at 15h15. It was heard by a bench of three judges, including one woman who is a gender activist. The court was packed to the brim with community members. Outside throughout the day the children sang songs, danced and held placards and the banner of the settlement on the stairs of the High Court. We had good publicity, including interviews from E TV, the Cape Argus, the Cape Times, and Radio 786, who interviewed Gwendoline Botha and Layla Ryklief amongst others. The community also received strong support from organizations including the Anti-Eviction Campaign, UCT, UWC and Plaas. There were also a number of messages received in solidarity from ILRIG and other sources.

Advocate Nyman, who represented the community of Zille Raine Heights, presented a strong argument, and I felt confident that for the most part, she was speaking as the voice of the community. Essentially, she called for the eviction to be reviewed on the grounds that it was not just and equitable.

She explained, using the support of a judgment delivered by Sacks 2005 (Port Elizabeth v. Various Occupiers) that in the case of eviction cases, the court cannot rely solely on common law which attributes full value to the objective facts which are presented on paper, but also needs to engage in ‘judicial activism’, and if need be investigate further on the conditions and permanent housing possibilities in Happy Valley, while taking into account the broader constitutional basis which the judgment of the case would affect.

Her central arguments submitted to the court were on the grounds of whether the City indeed appropriately engaged with the community about the eviction, and what the meaning of meaningful engagement is. There was much deliberation around whether the City had concluded an agreement that a permanent solution for the community’s housing solution– both in the meeting with Mayor Helen Zille, as well as in a meeting with the City of Cape Town around the discussion of available and appropriate land in the Grassy Park area.

The living conditions in Happy Valley were challenged, and she explained that the Constitution confirms the progressive right to housing, which means that people should not be relocated to live in conditions worse than which they are currently faced. This argument also strongly brought across the importance of social networks, as well as the fact that Happy Valley is indeed not a permanent housing solution – but a temporary one. There is currently a shortfall in housing opportunities for the people in Happy Valley, and the City is not clear on when the people in Happy Valley will receive houses. She also addressed the meaning of home.

Essentially the City’s position that the invitation for the community to move to Happy Valley “free of charge” remains, and “this would be a base from which people would be able to live” until they receive housing through the process of the national database if they qualify for a housing subsidy. As expected, Joubert stated that people should not jump the housing waiting list queue, as this would lead to the City eventually stopping housing delivery, as this would perpetuate the cycle of people occupying land in order to jump the queue. According to Joubert, this has not happened yet and so the community still has the opportunity to live freely in Happy Valley.

The argument of Advocate Joubert, who represented the City of Cape Town, challenged Zille Raine Height’s presentation of new evidence to the court relating to Happy Valley. He argued that no agreement had been concluded regarding a permanent housing solution for ZRH in the Grassy Park area, and that the City had conducted a sufficient investigation of the available erfs in the area – concluding that no land was immediately available. Nyman replied on this point, emphasizing the word “immediate” and that the decision that no land was available was influenced by the need for the community to be relocated as a sports development was due to be constructed. Joubert held that the eviction to Happy Valley would be a reasonable solution for the community, by taking in account the available resources of the City, and that sufficient services are provided including sufficient transport lines, schools, etc. He also submitted that the City had engaged meaningfully with the community, but nonetheless it is not necessary in every instance for the City to engage in mediation with the community in an eviction case.

He disputed Advocate’s Nyman discussion of “the progressive right to housing” saying that this would mean that people could occupy land in Constantia, for example, and occupants would not be able to be relocated unless the relocation area would improve the living circumstances of where the people were living. He argued that this would result to people occupying land all over the City. Nyman responded that the circumstances of the specific case needed to be taken into account. I would add that the community was relocated to the assigned land by the City, and thus the conditions of where they currently are living were chosen by the City and not by the community – and so this hypothetical situation would not apply.

Community leaders feel positive about how ZRH had been represented in court, and now we wait for the judgment to be passed. Possible outcomes proposed by Nyman included mediation between the City and Zille Raine Heights, and for the facts around Happy Valley and permanence, for example, to be investigated further. Nevertheless, we wait to see what the judges will decide, and in the mean time the community will remain on the field. It was a good day of unity which supported many people’s fears, and showed the strength of the female leadership of Zille Raine Heights.