Discussing the Crisis
Update, 24 January 2008: A court interdict was secured preventing the Municipality from continuing to evict illegally. Click here for the full details.
Update, 17 January 2008: The Land Invasions Unit returned this morning. 3 shacks went down before the attack was stopped. Click here for the full details.
Update, 9 December: The contested shacks still stand. At 9:00 a.m. today a meeting was held to elect the Arnett Drive Abahlali branch secretariat for 2008. The whole community turned out in a strong show of support.
Update, 25 October: The X’s remain. The shacks still stand. No word of explanation from the City about if or when the men with guns will come to demolish the 19 marked homes. People remain acutely stressed.
Update, 12 October: At 9:26 this morning 3 men from the Municipal Protection Services came to the Arnett Drive settlement in a car with the registration number NDM 6996. The two black men were in blue overalls. The white man was in army clothes. People ran to leave the work to run and come here when we saw the car come. The men said that they don’t want the new shacks here and they marked 19 shacks to be demolished. They didn’t say when they would come to break them they just put the X.
Our chairperson Sam Jaca asked them if they had a court order. They said they don’t worry about those things. They just follow instructions from the office. We told them that two of the shacks that they had marked are old and had numbers. When we showed them that we were right they crossed out these X’s leaving 17 X’s. 79 people live in those 17 shacks. All of them have lived in Arnett Drive for years except for some few that came here from Juba Place after they were left homeless after the evictions there last year.
We are left confused and worried. We will ask our lawyer to get an interdict to stop the demolitions like at Motala Heights.
We have been here since 1972. It is only natural that our families will grow in that time. This is not right. Also, we still have no toilets here. No toilets from 1972 till 2007. That is also not right.
Contact Zodwa Magwaza on 072 468 1156 or Musa Jaca on 082 738 4322.
Click here for pictures of the 17 shacks now marked for (illegal) demolition.
Municipal Criminality Rampant as City Threatens Illegal Evictions in the Arnett Drive Settlement
On Friday 28 September Abahlali baseMjondolo attempted to march on Obed Mlaba. That march was illegally attacked by the police and a number of people, including elderly women and clergy, were assaulted by the police. This police criminality was condemned internationally and by a group of South Africa church leaders.
One of the demands made to the Mayor on that march was that the city immediately cease its blatantly illegal attacks on shack dwellers in the form of eviction by demolition at gun point.
The Arnett Drive settlement in Reservoir Hills supported the march. In fact the elderly man standing before the police with his arms folded in the picture in the Independent on Saturday is Mr. Sam Jaca, the chairperson from Arnett Drive committee. The older people in Arnett Drive know a lot about evictions. For instance Clement Mtshali was evicted from Umkhumbane (Cato Manor) in 1959. He remembers his parents participating in the famous women’s protests (his father dressed in women’s clothes). After that his parents moved to a shack in Newlands. They were evicted from Newlands in 1971 and in 1972 he moved to the Arnett Drive settlement where he has lived ever since.
Section 26 (1) of the Constitution of this country states that “Everyone has the right to have access to adequate housing”. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was developed to give force to Section 26 and to replace the Prevention of Illegal Squatting Act (no. 52 of 1951) which was a mechanism to enable apartheid municipalities to evict shack dwellers.
The PIE Act applies to everyone who occupies land without ‘the express or tacit consent of the owner or the person in charge’ (Section 1). The PIE Act renders illegal the eviction of an unlawful occupier, unless the eviction complies with a number of procedural requirements the most important of which is that no eviction can take place without a court order.
The land owner, not less than 14 days before a court hearing of the eviction proceedings, must serve ‘written and effective notice’ of the eviction proceedings on the unlawful occupier and the local municipality. The notice must set out the grounds on which the eviction is being sought, the date and time at which the eviction proceedings will be heard and inform the unlawful occupier of her or his right to appear before the court, defend the case, or apply for legal aid.
The Act requires that a court must consider the rights and needs of certain vulnerable groups of unlawful occupiers, including the elderly, children, women-headed households and the disabled. If the unlawful occupier(s) have been in occupation of the property for longer than six months,the Act requires that the court must consider whether land is available, or can reasonably be made available, by the owner or the local municipality to which the unlawful occupier(s) can be relocated. If the court is satisfied that all the relevant circumstances have been considered, and that the unlawful occupier has raised no valid defence against the eviction, then it may grant an eviction order. The order must determine a ‘just and equitable’ date on which the unlawful occupier must vacate the land in question, and the date on which the eviction order may be carried out if the unlawful occupier(s) does not vacate the land.
Section 8 of the PIE Act makes evictions without a court order a criminal offence.
However the eThekwini Municipality routinely and regularly evicts without a court order. In these evictions people are routinely and regularly assaulted and they are routinely and regularly left homeless. The eThekwini Municipality is therefore a criminal municipality. If the rule of law is to be upheld officials responsible for the ongoing illegal evictions must be arrested.
Five days after the march on Mlaba, on Wednesday last week, the city illegally evicted people in the Siyathuthuka settlement in Sea Cow Lake. They had decided not to join the march on Mlaba. The next day people blocked the road in a desperate attempt to draw attention to what was happening to them. They were assaulted by the police and 11 people were arrested. They are still in detention. They are political prisoners in what Abahlali refer to as the University of Westville Prison. The next day in the Mercury Freedom Mncama, was quoted as having said, the following just before his arrest:
“We have been living here for 13 years, but they are demolishing our homes without giving us alternative accommodation. We have children here. Where must they go?”
Indeed.
Both the City and the Province tried to justify these evictions in the media in terms of the Slums Act. The Slums Act is a patently illegal piece of legislation which Abahlali will soon be challenging in the Constitutional Court. But while it remains on the statute books it most certainly does not, as spokespeople for the Provincial and City Housing Departments seem to assume, invalidate the Constitution or PIE.
On Friday, exactly one week after the march the Municipality’s descended onto the Arnett Drive settlement to inform people that they would be evicted on Monday. They had no court order. They were threatening an illegal action. This latest outrage was discussed at an all night Abahlali baseMjondolo meeting on Saturday. People in Arnett Drive spent Sunday rushing around and getting the names and ID numbers of the 77 people at risk of being rendered homeless and rallying each other to defend their homes and their community.
The 15 shacks that the Municipality wants to illegally demolish were built between December last year and March this year. They were built by and for people who have been established members of the Arnett Drive community for many years. The main reasons why new shacks had to be built are that:
* Families have expanded through marriage or the arrival of relatives
* Children are now grown and need their own homes
* Old people need their own rooms to keep their dignity
* People who formerly rented rooms in old shacks are now in a position to have their own places
* It is unsafe (especially from the point of view of fires) to have too many people crowded into one shack.
The Municipality’s long standing attempt to stop all attempts to expand existing shacks or to allow new shacks to be built simply forces people to live in ever more crowded and dangerous conditions. It is inhumane. This was well explained by the Pemary Ridge Development Committee in a letter to the Land Invasions Unit in July this year.
On that same Sunday as people from Arnett Drive were preparing for a legal challenge to the threatened demolistions, 9 days after the march on Mlaba, 1 200 street traders were forced away from their precarious livelihood by the police. Obed Mlaba told the Daily News that: “It is happening everywhere. We have cleaned many areas in the city and also townships. This [2010] is a wonderful opportunity for us to clean up areas that have become unsavoury.”
On Monday morning Arnett Drive approached the Legal Resources Centre for help. Most people stayed at home waiting for the City to come and evict. But the City didn’t come to evict. Perhaps they stayed away because of the rain. On Tuesday the LRC sent the City a letter explaining, once again, that if these evictions are carried out they will be illegal and will result, again, in court action. So far the homes are still standing. But there has been no reply from the City and no guarantee that the threat to evict will not be carried out at any time. No one knows what will happen tomorrow, or the next day. No one knows whether to go to work or to stay at home.
Interdicts have been won in the past against private land owners and the Municipality. In fact both kinds of interdicts have even been won in the same place – Motala Heights.
Getting the Municipality to obey the law is not as easy thing. When they came to smash up people’s homes in Motala Heights Bheki Ngcobo tried to show them a lawyer’s letter explaining that their actions were illegal. They assaulted him. Then Bheki went to court. The judge gave him and the people he represented an interdict against the City. But the City just ignored it and came back to keep on smashing up homes in casual violation of the court order. It was only when Bheki was, with the help of the LRC, able to persuade the police that they were obligated to arrest municipal staff if they violated an order of the court and to get the police to make this clear to the municipality staff that they finally left Motala Heights in peace.
What do you do when you are poor and the people with the guns and the jails and the machines that can smash your home are criminals? What do you do if you live in a shack in Durban?
To stay in touch with the situation in Arnett Drive contact Zodwa Magwaza on 072 468 1156. Tonight she doesn’t know if she’ll have a home tomorrow.