By Andre Mengi, CORC
Residents from other informal settlements and ISN representatives support Bapsfontein’s legal fight against the eviction which took place earlier this year.
Following the discovery of the formation of sinkholes in the informal settlement of Bapsfontein in 2004, the Ekurhuleni Metro commissioned a geo-science investigation and declared Bapsfontein a “disaster zone”. The qualification of the informal settlement of Bapsfontein as a disaster zone led to the eviction of residents without a court order and their relocation without consulting them. Relocation took place from December 2010 to March 2011.
After unsuccessfully applying to the North High Court of Pretoria to stop the urgent relocation that was happening in the area, the residents of Bapsfontein appealed the decision of the High Court which has found the relocation of Bapsfontein to be lawful. On Thursday 15 September, the judges of the constitutional court heard the application of the Bapsfontein residents who challenged the lawfulness of the Municipality’s decision to evict them without a court order and relocate them without their consent.
During the hearing, residents of other informal settlements of Ekurhuleni and ISN (Informal Settlement Network) representatives of Gauteng were present to support the Bapsfontein residents. Although they were discreet, the media also was in the court room. The applicant (the Bapsfontein residents) challenged the Disaster Management Act (DMA) that the Municipality referred to to evict the residents without a court order and against their will. The applicant based his argument on the Article 26 and Section 3 of the act which states that: “Nobody can be evicted from his/her home without a court order”. The second part of the Article which raised controversy stipulates that “unless the legislation authorizes such an eviction”. The applicant argued that nowhere in the act it was written that people could be moved against their will. The applicant concluded that the eviction of the Bapsfontein residents without a court order and their relocation 20 km away from their home against their will was unlawful even if the municipality evoked the notion of emergency.
One judge wanted to know whether it was correct to affirm that people were relocated without being consulted or against their will. The applicant replied that people were consulted but the process was inadequate. The applicant has exposed the incoherence of the Municipality in saying that the city removed people from the informal settlement on the ground that the area constituted a danger for people. However, the same city made an arrangement to take children to school in the same area. The applicant asked if it was safe for the children to go back to school in the same informal settlement.
The residents of Bapsfontein are aware that the area constitutes a health hazard, and that the local authority has declared it a “disaster zone”. According to the applicant, the question that arises is where people want to live. One of the judges made an observation in advocating that in this case we should distinguish an evacuation due to an emergency and an arbitrary eviction. The applicant persisted in his argument in asking if a relocation could be done without people’s consent. The judge replied what about the case of an earthquake and the eruption of a volcano? Should a municipality go to court first to obtain a court order before evacuating people even if it was evident that people’s lives are in danger? This question highlighted the limitations of the DMA. The applicant concluded his argument in pointing out that in the case of an emergency like the case of Bapsfontein, it was understandable that the Municipality had envisaged a temporary relocation. However, the big concern in the case of Bapsfontein is that Ekurhuleni Metro seems to turn this temporary relocation into a permanent eviction. He finished his argument in affirming that the residents are not unwilling to be relocated but they are very concerned about the distance between their work place and the relocation area.
The defence, representing the Ekurhuleni Metro, articulated their argument in defending the eviction of the Bapsfontein residents without a court order. He argued that the issue of reason which is for the Municipality to protect the life of their residents and the identification of suitable land should be applied in this case. The Municipality was concerned about people’s safety and did not find suitable land in the vicinity of Bapsfontein. The defence added that in this case the Municipality relied on voluntary relocation consisting of placing people where services are being provided. He insisted that the city manager consulted people three times before the relocation took place. The question here, according to the judges, is if the city manager consulted those who signed the consent form.
The constitutional judges made it very clear that they were bound by the constitution; therefore, the court would not tolerate an arbitrary eviction. The law authorizes evacuation but not an arbitrary eviction. In other words, arbitrary or not, eviction cannot happen without a court order. They added that the current legislation seeks to reverse the apartheid law where evictions could happen without a court order. The judges wanted to know firstly if the Municipality’s behaviour was justified by the fact that the residents of Bapsfontein were unlawful occupants. Secondly, if there is a difference between an eviction without a court order and an evacuation due to a disaster or an emergency. Finally, following the defence argument, the judges wanted to know whether the case is about an evacuation or an eviction. If the case is about an evacuation, the court will examine the circumstances in which people were evacuated. If it is an eviction case, why did the Ekurhuleni Metro undermine the Court, they asked. The chief justice raised an interesting point in asking the defence outside the court, who should determine if the eviction is arbitrary or not?
The judges concluded their intervention in asking the defence that if the area was as dangerous as they claim, why were some people removed, but their children were brought back? The defence replied in saying that the area, where the schools are located, was not dangerous. The judges added that the occurrence of sinkholes was seen as close as 100 m away from the informal settlement.
The constitutional court judges did not give their judgement, but will do so in a few days time.