Ekurhuleni ordered to restore homes after illegal demolitions

The City of Ekurhuleni has been ordered to implement an interim court order restoring about 570 people and their families to the N12 informal settlement near Cloverdene in Benoni.

This is after Gauteng high court judge Stuart Wilson found the municipality’s prospects of succeeding on appeal were “exceptionally weak”.

Wilson also delivered a scathing assessment of the municipality’s legal strategy, describing its contradictory positions in the matter as potentially “profoundly unethical”.

The dispute follows the demolition of the N12 informal settlement in May, which Wilson said left about 2,000 people homeless.

The South African Human Rights Commission and the occupiers approached the court seeking relief after the demolitions, with Wilson issuing an interim order on June 12 restoring about 570 individuals and their families to the property.

The order also interdicted the municipality and other respondents from demolishing structures at the settlement pending the final determination of the occupiers’ application.

Ekurhuleni was further ordered to erect temporary structures for the affected residents, with the dwellings being capable of being dismantled should the occupiers ultimately lose their application for final relief.

The municipality, however, sought leave to appeal, arguing that the interim order was final in effect and should therefore be suspended.

Wilson rejected that argument, saying the interim order was plainly not final because the occupiers’ right to remain on the land had not been permanently determined.

“If the court hearing the application for final relief concludes that the occupiers are not, for any reason, entitled to restoration of their land and homes at the property, then the occupiers will have to vacate,” he said.

“There are plainly exceptional circumstances in this case, in that the municipality’s prospects of success on appeal are exceptionally weak.”

He found that the circumstances were exceptional, particularly because the municipality had failed to “seriously challenge” allegations that it had illegally evicted about 2,000 people from a long-standing informal settlement over a decade old.

“State action to raze to the ground a settled community the size of a small town, prima facie without any legal authority to do so, obviously qualifies as exceptional,” Wilson said.

He also found that the municipality had failed to demonstrate any irreparable harm that would result from implementing the interim order.

“The municipality identifies no harm, irreparable or otherwise, from the execution of the interim order pending appeal.

“Its answering affidavit raises concerns that illegal mining activity might resume if the occupiers are temporarily re-accommodated on the land from which they were, prima facie, illegally evicted, but it does nothing to suggest that measures short of eviction, such as ordinary law enforcement operations, would not be sufficient to combat any such risk,” Wilson said.

Wilson also found that the residents faced clear and ongoing harm if the order was not implemented. “Every extra day that they must endure in that condition constitutes irreparable harm,” he said, referring to the fact that the residents had been homeless since May.

Wilson said the argument that the order was not final appeared, on the face of it, to have been “contrived merely to wrong-foot the interim execution application”.

“If this was the stratagem, it was profoundly unethical, and the municipality’s legal representatives misconducted themselves in pursuing it,” he said.

“Organs of state such as the municipality and the legal representatives who act for them, have a solemn duty to deal fairly and honestly with the court and with their opponents.”