Bapsfontein community wins court case: Eviction was unlawful

By Max Rambau, CORC

Today, the 6th December 2011 marks the most important victory for the community of Bapsfontein after they won the case against their forced removal that started in December 2010.

Bapsfontein221Feb

The case has dragged on for almost the whole year since the Ekurhuleni Municipality announced on the 16th of December 2010 that families would be relocated from  Bapsfontein.

According to the Municipality, the relocation of about 3 000 families was to be carried out between the 27th December 2010 and January 2011.

BACKGROUND TO THE FORCED REMOVAL:

The Ekurhuleni Metropolitan Municipality had devised a strategy whereby they continued to forcefully remove families from Bapsfontein, albeit at a low profile and the focus of the world and media. This removal had been targeting mostly those families with less resistance.

Some families were removed and taken to a place called Zenzeleni in Daveyton (near Gabon).

The full scale operation of the Ekurhuleni Municipality started in March.

On the morning of the 5th March 2011 I had received calls from the Bapsfontein people who were panicking and sounding emotional informing me that there were a lot of police cars (SAPS and EMPD) as well as trucks with “Red Ants”.

When I got there I found that demolishing of shacks had started taking place. People’s goods and furniture was being loaded onto trucks by the “Red Ants”. I then went to the police to ask them what was happening and demanded to speak to the person in charge. When I was referred to someone from the EMPD I said that I did not want to speak to municipal employees.

Feb28RedAnts

The heavy police presence was clearly a show of power and was meant to intimidate the people.

One SAPS officer indicated to me that they believe that this eviction was illegal and that they were just told to go to Bapsfontein.

I was then given a name of the person who was responsible for this eviction project. Her name was Reena from the Legal Department of the Ekurhuleni Metro Disaster Management. She informed me that what was happening at Bapsfontein was not eviction or relocation but evacuation. I then told her that we would meet in court that very same day.

I then contacted lawyers from SERI, LRH and CALS. They all came and it showed that they were interested in this case. I ended up giving this case to Lawyers for Human Rights (LHR) who then applied for an urgent court sitting. The case was heard at the Pretoria Supreme Court at 15h00.

The Judge of the Supreme Court stopped Ekurhuleni Metro from continuing with their action at Bapsfontein until Wednesday when the case would be heard at the Supreme Court.

Unfortunately, 98 shacks had already been destroyed and some goods and furniture had been taken away without their owners because the people had refused to go.

The community was resisting forced removal by barricading the entrance to their area and burning tyres. The Ekurhuleni Municipality had sent the “Red Ants” to bring down the people’s shacks and relocate them to some temporary (transit) place, about 20 – 22 kilometres away (next to N12) that the Municipality had identified.

Some members of the community were injured during the clashes with the police and some people (28) were arrested. One person was seriously injured and was admitted to hospital.

The Ekurhuleni Municipality had not complied with the law because they had not engaged in dialogue with the community prior to carrying out this relocation.

I met with the local leadership who briefed me about the situation and we agreed that those people who were prepared to move should be allowed to do so but that those who were not prepared to move should remain until we met with the Municipality.

More than 100 families voluntarily moved out, including some local leaders.

We engaged the Human Rights Lawyers who indicated that they were interested in assisting the community of Bapsfontein. They indicated that they were going to prepare a questionnaire for the community and that thereafter they would challenge the Ekurhuleni Municipality on this forced relocation.

The case of the so-called “evacuation” of people at Bapsfontein Informal Settlement by the Ekurhuleni Metropolitan Municipality was heard at the Pretoria Supreme Court following an application by the Lawyers for Human Rights (LHR) on behalf of the people of Bapsfontein.

The court sat on the 9th March 2011 and was attended by hundreds of people of Bapsfontein and others from different informal settlements around Gauteng who came to give support.

Bapsfontein9March1

The Ekurhuleni Metro Municipal failed to respond to the argument filed by the LHR for an interdict against the forced removal. The Supreme Court judge then requested Ekurhuleni Metro to go back and prepare their arguments because they failed, as the judge said, to reply to the arguments put by the lawyer on behalf of the people of Bapsfontein against the interdict application.

Ekurhuleni Metro had argued that this matter was “politically influenced” instead of arguing for the need to evacuate or relocate families from Bapsfontein.

On the 11th March the case had sat again at the Pretoria Supreme Court and the Bapsfontein families lost the case.

The lawyer representing the people of Bapsfontein had argued that the manner in which the people were forcibly “evacuated” or removed without show of respect and dignity was wrong. He argued that the environmental impact study report on Bapsfontein was done five years ago but the Ekurhuleni Metro Municipality had left the people there for such a long time. He then said that why was it only now that the Municipality has decided to carry out the so-called “evacuation”.

The lawyer further argued that the relocation of the Bapsfontein people was not consistent with legislation which states that people should be relocated to within five kilometres radius in terms of Chapter 12 of the Housing Code.  Families have been taken to some 22 km away from Bapsfontein, far from their workplaces and schools.

The judge seemed to be biased and favoured the Ekurhuleni Metro as he said that they (Ekurhuleni Metro) were right to “evacuate” people from dangerous land and that the people had no choice on where they could be taken to, “beggars cannot be choosers”, he said.

The judge also made an example about the Jukskei families in Alexandra who were staying next to the river and that these people had resisted being relocated but that the Municipality was right to evict because they were living in danger.

The lawyer for the Ekurhuleni Metro Municipality capitalized on what the judge had said and reiterated it. He made an example of Makause where a man fell into a hole because the land had dangerous sink holes and that this man would have been alive had he not been staying in Makause.

It became clear that the people had lost the case even before it ended. When the judge made his ruling, it was to say that the Bapsfontein people had lost this case.

Immediately after the judgment it was reported that the “Red Ants” had gathered at Bapsfontein and were destroying shacks.

An appeal was lodged against this judgment.

Many families were forcefully removed immediately after the judgment on the 13th March 2011.

CONSTITUTIONAL COURT JUDGMENT

After unsuccessful applications to the Pretoria High Court the Bapsfontein community appealed at the Constitutional Court. Their case was heard in September 2011.

At the Constitutional Court, the Bapsfontein community challenged the Disaster Management Act that the Ekurhuleni Municipality had used to evict people. The lawyers representing the Bapsfontein families based their argument on the failure by the Ekurhuleni Municipality to apply for an eviction order and that they had also failed to engage with the people of Bapsfontein before they carried out the “eviction”.

The Constitutional Court judges today (06/12/2011) ruled that the so-called “evacuation” of the people of Bapsfontein was unlawful. The Ekurhuleni Municipality has been given until February to find a piece of land where they can build for the Bapsfontein families and that the Municipality should then notify the Constitutional Court judges about it.

Bapsfontein16Sept

After the judgment news had filtered down to the people I got an email from one of the landowners at Bapsfontein indicating that they, as landowners, had no problem with people coming back to reside at Bapsfontein.

A meeting will be held on Sunday by the leadership of Bapsfontein to celebrate the victory and explain what the judgment means to the people.

The support that the people of Bapsfontein received from the ISN, FEDUP and other informal settlements is commendable. This helped to give the case prominence and media focus but most importantly it showed solidarity of the poor.

We believe that this judgment will set a precedent for other similar cases around the country. It should serve as a lesson for other municipalities not to rush into decisions that are not communicated with the affected communities.