Mchunu and Others v Executive Mayor of eThekwini and Others ('Mchunu')
implementation of court order - Siyanda - Durban High Court
In this matter, SERI and Abahlali baseMjondolo (AbM) 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 it's 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 seems, however, that the location of the housing tendered rules it out.
- 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.