SERI has filed heads of argument in a case dealing with the meaning of “unlawful occupier” under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). SERI represents group of 97 adults and 39 children who reside in a series of disused hostels at Coronationville High School. In 2010, the MEC for Education and the School Governing Body applied to evict the residents from the property, arguing that they occupied the property without consent.
The residents argue that their occupation of the property was consented to for a lengthy period of time (the residents pay rent and had an oral lease with the previous Principal); that this consent was never terminated; and that they would be rendered homeless if they were evicted. They argue that the basic requirement of the PIE Act has not been met and they are simply not unlawful occupiers.
On 30 September 2013, the SCA handed down judgment in ABSA v Mkhize and Others, in which SERI appeared as amicus curiae. The SCA struck the matter from the roll as the majority of the bench held that the order of the High Court was not appealable, while the minority argued that the appeal should be dismissed on the merits.
The case concerns the correct interpretation of the decision of the Constitutional Court in Sebola (see here). SERI argued that the High Court judgment in the ABSA case was correctly decided when it held that the Sebola decision precluded it from granting the applications for default judgment. On the facts it was clear that the section 129(1)(a) notices required in terms of the National Credit Act 34 of 2005 did not reach the respondents.
On 23 September 2013 the General Council of the Bar (GCB) issued a press statement expressing concern about the recent evictions of over 100 informal settlers at Cato Crest in Durban. According to the GCB, "it is a matter of grave concern that, despite their repeated attempts to follow due process of law in enforcing their constitutional rights, the residents, including many women and children, have been left homeless and destitute." The statement explains that the residents were driven to occupy land at Cato Crest earlier this year after they were excluded from a project intended to provide housing to them and others in a nearby informal settlement.
On Friday 6 September 2013 Abahlali baseMjondolo and residents of Cato Crest informal settlement approached the Durban High Court for a third time, to prevent the eThekwini Municipality from illegally destroying their homes. They applied for a contempt of court order against eThekwini Municipality.
The Durban High Court granted a rule nisi (an interim order to be confirmed at a later date) which compels the Municipal Manager of eThekwini Municipality and the Head of the Land Invasion Unit to appear at court on Thursday 12 September to explain why they should not be imprisoned for 30 days for allowing illegal evictions to continue at Cato Crest in contempt of an order obtained on 2 September which prohibited the demolition of shacks.
On 2 September 2013, an urgent interdict was granted by the Durban High Court preventing Thekwini Municipality from demolishing the homes of residents of Cato Crest informal settlement without a court order. On 1 and 2 September 2013 the municipality illegally demolished shacks at the settlement, in violation of an undertaking made to the Durban High Court on 22 August 2013 that it would halt evictions pending the finalisation of the application for a final order. Assisted by Abahlali baseCato Crest, a newly formed branch of Abahlali baseMjondolo, the residents went to the Durban High Court on an urgent basis to stop the evictions.
The court order obtained interdicts and restrains the municipality from evicting the named Cato Crest residents or demolishing their structures without a court order. It further orders the municipality to construct “temporary habitable dwellings that afford shelter, privacy and amenities at least equivalent to those destroyed, and which are capable of being dismantled, at the site at which their previous informal housing structures were demolished” to the residents whose shacks were demolished on 1 and 2 September.
Despite this interdict, the municipality continued to demolish shacks. The residents were forced to return to court on 6 September to apply for a contempt of court order. The judge granted a rule nisi (interim order) compelling the Municipal Manager of eThekwini Municipality and the Head of the municipality's Land Invasion Unit to appear at court on 12 September to explain why they should not be imprisoned for 30 days for allowing illegal evictions at Cato Crest in contempt of the order obtained on 2 September.
The residents were represented in court by SERI's correspondent in Durban, Nichols Attorneys, and Adv David Saks.