Mxoliseni Zwayi, a community leader, points to Newcastle Informal Settlement. Photo by Barbara Maregele.
12 January 2016
On 14 December, the Western Cape High Court temporarily suspended an eviction order against the group who have been living on the land directly behind the Endlovini informal settlement in Khayelitsha since May 2014.
The area is known as Newcastle informal settlement.
Acting Judge Lister Nuku lashed out at the City of Cape Town for its “failure to reasonably engage” with Newcastle’s residents before obtaining an eviction order against them. He handed down judgment nearly five months after the court battle started, ordering that the eviction be stayed.
Just two months after erecting their structures in May 2014, the residents claimed, they were informed that the courts had granted an eviction order to the City of Cape Town. The residents then lodged a counter application, challenging the City’s compliance with the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act.
The residents insisted that the City did not comply with the eviction order granted in 2014 by Western Cape High Court Judge Thandazwa Ndita. (See Khayelitsha residents challenge eviction in court.)
The City has already submitted an application for leave to appeal and will be challenging the ruling in the Supreme Court of Appeal in Bloemfontein later in January.
Nuku’s judgment said, “In a matter where the municipality applies for an eviction, it is bound to act reasonably.
“The (City) has not only failed to engage with those who are to be evicted to ensure that they are treated with dignity in the process, but also failed to provide reasons why …,” said Nuku.
Nuku said that instead of meeting with residents, the City chose to “dictate” to the residents on what it would be prepared to discuss.
“There was no engagement with the respondents prior to the launching the application for their eviction. The reasons given were that some residents refused to give their details, were hostile, and threatened City officials,” he said.
Nuku said after the City had obtained the eviction order, it did not “deal with the issue of alternative accommodation” or hold a meeting with the residents.
“The other factor that weighed heavily with this court is the [City’s] attitude that it is not obligated to provide alternative accommodation to the [occupants] … In instances where the person is to be evicted from land owned by an organ of state, the protection afforded in the PIE Act must be available even if the person occupied the land for less than six months,” he said.
Nuku also highlighted the resident’s poor living conditions and urged the City to resolve the matter as soon as possible.
He ordered the City to engage with the residents and report back by June.
On Monday, advocate Ashraf Mahomed said the household surveys conducted by the Development Action Group was pivotal to the success of their case.
In a statement this week, Ndifuna Ukwazi welcomed the ruling. NU researchers and attorneys assisted the residents during the court action.
“Land occupations like this are common in a city where security of tenure, access to land and adequate housing is in short supply for many black working class families,” NU said. “This latest judgment enforces the notion that the City purposefully fails to engage meaningfully with poor communities…Attempting to appeal a clear cut order is an undue delay of the City’s constitutional responsibilities.”
Community leader Mxoliseni Zwayi said that the community hoped to discuss their desperate need for sanitation and water services. He added that the residents would be willing to consider relocation if a suitable alternative site was made available.