On November 27 the Socio-Economic Rights Institute of South Africa (Seri) filed heads of argument in an application for leave to appeal the Durban High Court’s judgment dismissing a Cato Crest informal settlement resident’s claim for injuries. If successful, the appeal could have important implications for shackdwellers and the eThekwini municipality when it carries out evictions.
In September 2013, the eThekwini Municipality carried out illegal evictions in an informal settlement and in the ensuing battle, Nkosinathi Mngomezulu was shot four times by a member of the city’s land invasion unit when he tried to resist demolition of his shack. He was rushed to King Edward VIII Hospital, where he was kept for more than three months.
Like many other informal settlement dwellers, Mngomezulu was protesting the destruction of his shack, a torment that many face when the municipality decides to raze people’s homes.
Mngomezulu was later arrested and charged with attempted murder for stabbing one of the land invasion unit security officers. The municipality had demolished Cato Crest shacks in violation of an undertaking made to the high court in August 2013.
On 31 July 2017, the Durban High Court heard a case brought by Mngomezulu, which was a claim against the eThekwini Municipality, the South African Police Service and the security minister for damages and unlawful arrest and detention. The claims of damages included destruction of his shack, injuries sustained during evictions, and unlawful detention. However, the judgment handed down by judge Pillay on 20 August dismissed Mngomezulu’s claims for the injuries and destruction of his shack due to his failure to provide a precise address for it.
Illegal and violent evictions in eThekwini are commonplace and dwellers from various informal settlements continue to bear the brunt of brutal evictions and demolitions of their homes. Mlungisi Mokoena, 18, a shackdweller from Blinkbonnie Road, Cato Manor was shot in both legs in August for resisting demolition of his shack. Another resident, Noluthando Bazikise, 48, was shot in the eye for filming while evictions were underway.
“I came to my house and found them burning my things. They asked me if we do as we please on the land back at home in the Eastern Cape, I told them we don’t buy land back at home because it belongs to us. While I was filming, they shot me in the eye. I’m still in and and out of hospitals,” Bazikise said.
Judge Pillay ruled that the security officer who shot Mngomezulu acted in self defence and Mngomezulu had violated the law when he tried to resist demolition of his shack by the the land invasion unit. The court also ruled that Mngomezulu might have lied about the precise location of his shack as he couldn’t provide an address for it.
Nomzamo Zondo, director of litigation at Seri said that even though the court found that the land invasion unit acted unlawfully, it still found that Mngomezulu was still wrong to defend himself. That is the basis of Mngomezulu’s appeal.
“We think that there is a reasonable prospect of an appeal court finding that this is wrong, and that our client was entitled to defend himself and others in the settlement from illegal attack,” she said.
Zondo added that the matter has been referred to the Supreme Court of Appeal. She said, “We are confident that the Supreme Court of Appeal will consider the matter fully and listen carefully to the arguments advanced on behalf of our client.”
Thapelo Mohapi, general secretary of Abahlali BaseMjondolo, a shackdwellers’ movement advocating for the rights and dignity of people living in informal settlements said it were not satisfied with the Durban High Court’s judgment, considering that the municipality was found to have acted unlawfully.
“We are appealing the matter because the court found that the municipality acted out of the law as they were not supposed to have been there in the first place. We are now waiting to hear from the Supreme Court of Appeal,” he said.