EDITORIAL | Authorities have no right to flout the law

It is troubling when authorities flout the law and take steps that are unlawful.

This happened in the case of residents of Albert Luthuli informal settlement in Benoni, who were left homeless last month when Ekurhuleni municipality officials demolished their shacks, ostensibly as part of Operation Prosper.

Operation Prosper is a year-long joint deployment by the South African National Defence Force and the South African Police Service aimed at combating gangsterism, violent crime and illegal mining.

What makes this move by the municipality more shocking is that most of these residents found themselves in this settlement after the Constitutional Court ruled 15 years ago that their forced eviction and demolition of their settlement in Bapsfontein in 2011 was unlawful. It ordered that residents be provided with alternative accommodation and ruled that municipalities must provide proper notice and secure court approval before any evictions, even in declared disaster areas.

Just under 800 individuals and their families were relocated to the N12 settlement in 2011, but the permanent accommodation never materialised.

The N12 settlement grew, as the Bapsfontein residents were joined by others. The number of dwellings at the settlement increased from just under 800 in 2011 to around 2,000 on May 6, when municipal officials razed the shacks without a court order.

It was only with the intervention of the South African Human Rights Commission (SAHRC) that the Johannesburg high court, in a June 12 order, interdicted and restrained the municipality and its officials from demolishing any structures erected at the settlement.

Judge Stuart Wilson directed the Ekurhuleni municipality to erect temporary structures to house the occupants while their application for final relief is heard and that the construction of the dwellings commence by no later than June 17 and be complete by June 30.

Wilson also directed the mayor and the city manager to report back to him by July 15 on the progress made in implementing his order.

Wilson was scathing about the conduct of the municipality and police and said on the face of things they have committed a series of flagrant violations of the occupiers’ constitutional rights.

Government must lead by example. If authorities expect citizens to respect the law, they must demonstrate the same respect themselves.

He said they disregarded the constitutional protections against eviction — because no one may be evicted from their home or have their home demolished without a court order — and they also treated the occupiers in a manner that failed to respect their basic human dignity.

He also said they have caused unknown, and probably unknowable, injury to the occupiers’ property and to each of the occupiers’ rights to freedom and security.

Wilson said they have acted without regard to the rule of law entrenched in the constitution. He added the municipality might well be in contempt of the Constitutional Court’s order in 2011.

He also agreed with a submission made by counsel for the SAHRC that the officials’ conduct was reminiscent of the apartheid regime.

As the SAHRC noted, the high court’s judgment was in line with the Supreme Court of Appeal’s decision in the case of City of Cape Town v South African Human Rights Commission and others 2024, which reinforced that once unlawful occupiers establish possession, even minimally, municipalities must seek court orders under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act or other remedies.

The SCA judgment also emphasised that evictions and demolitions without judicial oversight violate constitutional rights to dignity, housing and protection against arbitrary eviction.

What this episode shows is that when authorities act unlawfully and only change course after judicial intervention, trust in public administration is eroded. Government must lead by example. If authorities expect citizens to respect the law, they must demonstrate the same respect themselves.

It is hoped that authorities will heed the long line of cases and refrain from evicting occupiers without obtaining a court order.