‘Learnt nothing’: judge rebukes Ekurhuleni over N12 settlement evictions

The City of Ekurhuleni violated the constitutional rights of residents of the Chief Albert Luthuli informal settlement, also known as the N12 settlement.

This was the finding of Johannesburg high court judge Stuart Wilson, who on Sunday provided reasons for an interim order issued on Friday.

The order restored about 570 residents and their families to land near Cloverdene in Benoni after they were allegedly unlawfully evicted.

Wilson interdicted the municipality, its mayor, city manager and police from demolishing any structures at the settlement until the court has made a determination on an application seeking permanent protection against the residents’ removal without a court order. He further ordered the municipality to provide temporary accommodation for the displaced residents, with construction to begin by Wednesday and be completed by June 30.

The municipality was also prohibited from preventing residents from reoccupying the settlement while the case was pending.

Wilson ordered the mayor and city manager to report back to the court by July 15 on progress made in implementing the order.

The dispute has its roots in a 2011 Constitutional Court judgment in Pheko vs Ekurhuleni metropolitan municipality. In that case, residents of an informal settlement in Bapsfontein were unlawfully evicted under a local state of disaster declaration. The Constitutional Court found that the municipality had acted without the required court order and directed it to provide alternative land and services near Bapsfontein.

As a result, nearly 800 people and their families were relocated to the N12 settlement in 2011 while awaiting permanent housing. However, the promised housing never materialised. Over the next 15 years, the settlement expanded from about 800 dwellings to nearly 2,000 as more people sought shelter there.

Wilson noted that despite the municipality’s failure to provide permanent housing, residents could reasonably have expected a degree of security of tenure after living there for so long. Instead, between May 6 and May 15, security personnel, police officers and members of the armed forces allegedly acting on municipal instructions evicted all residents and demolished their homes.

“No one suggests that a court order authorised this action,” Wilson said.

The municipality argued that it acted under a presidential proclamation linked to “Operation Prosper” and relied on a document from the Gauteng department of agriculture and rural development (GDARD), which it claimed declared the settlement unfit for human habitation.

After the evictions, the South African Human Rights Commission (SAHRC) intervened on behalf of residents. It compiled a list of affected households and requested an explanation from the municipality. The city said the municipality’s purpose was to “verify” how many of the occupiers of the N12 settlement were originally relocated from Bapsfontein, apparently with the intention of providing them with alternative accommodation.

However, court papers indicated that even those “verified” households remained homeless. Despite this, the city manager later denied to the SAHRC that any illegal evictions had occurred.

After attempts to resolve the matter failed, the SAHRC launched an urgent court application.

Wilson’s judgment highlighted the experiences of several residents. Jane Mmabatho, who had lived at the N12 settlement for 15 years after being relocated from Bapsfontein, lost her home and belongings during the demolition. Important documents, including records confirming her relocation, were destroyed. She and 11 family members, including six grandchildren, were left homeless.

The court also heard about 71-year-old Ceroline Mphuthi, another former Bapsfontein resident, whose home was demolished in front of her. She now sleeps in the open veld.

The municipality argued that reconstruction of the settlement could not proceed because GDARD had declared the area unsuitable for habitation. Wilson rejected this argument, noting that the document relied upon was more than seven years old and did not explicitly state that the settlement was unfit for occupation.

He further found no evidence suggesting that temporary reconstruction was impossible while the court considers the residents’ request for final relief.

Even if such a declaration existed, Wilson said it would have to be weighed against the fact that the municipality had allowed people to live there for 15 years in compliance with a Constitutional Court order.

Wilson concluded that the municipality’s actions were contrary to section 26(3) of the constitution, which protects against evictions without a court order, and demonstrated a disregard for residents’ dignity and the rule of law.

He said the municipality may even be in contempt of the Constitutional Court’s order in Pheko vs Ekurhuleni.

“The municipality appears to have learnt nothing from what the Constitutional Court had to say in that case.

“The municipality has repeated the same egregious insults to the occupiers’ dignity that it inflicted a decade-and-a-half ago,” Wilson said.

Lawyers for the SAHRC and the residents argued that the municipality’s conduct echoed practices associated with the apartheid era.

“On the facts as they presently stand, I cannot disagree,” he said.

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