Mchunu and Others v Executive Mayor of eThekwini and Others ('Mchunu')
implementation of court order - Siyanda - Durban High Court
In this matter, Abahlali baseMjondolo (AbM) and 37 residents seek an order against the Executive Mayor of eThekwini (Durban), together with two other senior officials in their personal capacities, to take all the steps necessary to implement a court order requiring housing to be provided to 37 occupants of the Richmond Farm Transit Camp in KwaMashu. The occupiers were evicted from the Siyanda informal settlement in March 2009 in order to allow the construction of a road. One of the conditions of the eviction order was that the occupiers would be provided with permanent housing within a year. The deadline for doing so expired almost two years ago and nothing has been done to comply with the order.
This is an important case because it establishes whether individual officebearers can be held personally responsible for the state’s failure to perform on specific obligations. SERI served the application in February 2012, and filed a replying affidavit in May 2012. Heads of argument were filed on 4 September 2012, and the case was heard in the Durban High Court on 17 September 2012.
On 19 September 2012, Acting Judge Nigel Hollis granted an order and delivered an ex tempore judgment in the Durban High Court. His decision requires the Mayor of eThekwini, the City Manager and the Director of Housing to take all the necessary steps, within three months, to provide permanent housing to the 37 families. They are “constitutionally and statutorily obliged to take all necessary steps” to comply with the 2009 order. If they do not, they may be held in contempt and fined or imprisoned.
In April 2013 the eThekwini municipality tendered some houses on the South Coast of Durban; however it is unclear exactly where they are. It appears that they may be some 40km away from the Khulula housing project (where the families were meant to be moved in the first instance). The municipality has brought an application for an order declaring that it has complied with its obligations as ordered by Hollis AJ. On 30 April 2013, SERI filed opposing papers and a counter application. SERI opposes the municipality's application on two bases. First, we say that the order of Hollis AJ requires the municipality to accommodate us at Khulula, if possible. It is common cause that there are up to 70 vacant sites at the Khulula housing project, on land where bulk infrastructure appears to have been installed. We accordingly say that it is possible to provide us with housing at Khulula. Secondly, the order of Hollis AJ states that, if we are not to be accommodated at Khulula, then we are entitled to houses which are “commensurate with” houses at Khulula. We say that “commensurate with” means “as near as reasonably possible to”. We also argue that we are unable to accept or reject the tender of housing on the South Coast, because we do not know exactly where it is, and so we are unable, at this stage to assess whether it is “commensurate with” the houses at Khulula. It would seem, however, that the location of the housing tendered rules it out.
The municipality is asking the court to declare that it has discharged its obligations by offering houses to the residents (Lovu Housing). The residents argue that there is no basis for such an order because they have not seen the housing and do not know where it is or if it even exists. The residents have launched a counter-application asking the court to order the municipality to comply with their obligations under the March 2009 and September 2012 orders by providing houses on one of the vacant sites at Khulula, alternatively on another site within a reasonable distance of Khulula.
The matter was heard in the Durban High Court on 20 February 2015, where it was settled. An order was agreed by consent, with the municipality offering houses at an acceptable location within 16 months.
- Draft court order (20 February 2015) here.
- Occupiers heads of argument (17 February 2015) here.
- Occupiers' short heads of argument here and practice note (16 February 2015) here.
- Notice of counter-application (30 April 2013) here.
- Answering affidavit (30 April 2013) here.
High Court judgment (19 September 2012) here.
SERI and Abahlali baseMjondolo media statement (19 September 2012) here.
Draft order (19 September 2012) here.
- Occupiers' supplementary heads of argument (14 September 2012) here.
Respondent's heads of argument (13 September 2012) here.
- SERI and AbM press release (29 February 2012) here.
- Short film entitled "A Fish in a Tin" about the eviction and relocation to Richmond Farm Transit Camp here.
- Notice of motion (12 December 2012) here.