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Nzuzonhle Nzuza
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The Shepherd and the butcher

25 June 2014, 19:00
The South African government is mandated by section 7(2) of the Constitution of the Republic of South Africa to “respect, protect, promote and fulfil the rights in the Bill of Rights”.

As these rights contained in the Bill of Rights vests with the ‘people’, this is implicit or rather express that the government is obliged to respect the citizens of South Africa and treat them in a dignified manner.

By the same token, it is mandated by section 165(4) of the Constitution to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.” These two sections signify that the government is the “shepherd” of the constitutional order and its values founded on fairness, justice, freedom, and equality.

The conduct of eThekwini Municipality on the recent Judgment, handed by the Constitutional Court on 06 June 2014 in Zulu and Others v eThekwini Municipality and others [2014] ZACC 17 was characterised by the “butchering” of the same constitutional order it is mandated to protect. The case concerned the constitutional validity of the court order obtained by the KwaZulu-Natal MEC for Human Settlements and Public Works on 28 March 2013 from Koen J in the Durban High Court which permitted and obliged the Municipality to “prevent any persons from invading and/or occupying and/or undertaking the construction of any structures” on specified land within the Municipality’s area of jurisdiction and to “remove any materials placed by any persons upon” that land.

This was the same order that was used to justify the Cato Crest evictions in 2013. Preceding this order, however, was a plethora of evictions by the Municipality without the court order.

The duty to respect the people

The occupiers contended that the Municipality, with the assistance of the South African Police Services, had demolished their homes on many occasions since September 2012 without any court order.  The existence of legislative procedures for evictions, such as section 26 of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), is mainly founded on the aim to protect South African citizens in such proceedings; to ensure that they are neither prejudiced nor undignified by the processes of eviction.

The continuance of our government to attain evictions illegally, as in this case, is unacceptable and leaves one with so many unanswered questions. Why do your people need to resort to courts for relief all the time in respect of evictions?

What happened to compassion and Ubuntu? What happened to safe-keeping your people as their “shepherd”? What saddens one even more is that the South African Police Services took an active part in these demolitions. Be it that it is a shack, umjondolo, a home is a home. Each time the Municipality demolished the shacks, the occupiers rebuilt them. There is nothing more degrading than to have a place you call home demolished again and again.

The toxic legacy of apartheid government did enough damage to the people. Even after 20 years of freedom the government still renders people without a roof over their heads? It fails to provide them, and then it takes the least they have provided for themselves. Is that what it serves for?

Can it be that the government does not understand its role towards the people? Indeed.

The series of cases that have come before the courts in attempts to either interdict unlawful and degrading evictions or beseech provision of alternative accommodation by the government such as Motswagae and others v Rustenburg Local Municipality and another; Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others; City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another; and this case indicates as such. Perhaps the State has to take initiatives in this regard to ensure that the government does understand its mandate as encapsulated in the Constitution. It must respect and protect its people.  

The duty to respect the judicial system

It gives one curiosities to think if at all does the government appreciates the respectful nature of the judicial system and its duty to assist the courts in protecting its people.  The courts are not a circus.

Before the Constitutional Court Zulu case, the Municipality disappointingly and consistently argued that the interim order which was the subject matter of the appeal did not apply to the appellants (occupiers), but the day after the hearing it relied on the same interim order to evict the occupiers. In those incidents no less than 272 structures were demolished about 93 of which were half-built and the rest fully built.  

Not only this inconsistency is worrying, but it is also outrageous. One may find applause in the minority Judgment by Van Der Westhuizen J, that ‘the very integrity of the judicial process in our young democracy – and of our country’s apex Court – is at stake.’

He explained that the courts often rely heavily on the representations made by the government in proceedings, and for Municipality to claim that there has never been or would ever be demolitions prior and on the strength of the interim order, then use the same order to conduct evictions resembled lack of respect for the courts.  

The Municipality’s conduct in this regard can be said to have also undermined the right guaranteed by section 34 of the Constitution, to have “any dispute that can be resolved by the application of law decided in a fair public hearing.” The courts serve a very crucial mandate in the constitutional order, and the government needs to understand clearly that it is mandated by the Constitution to assist the courts and to protect the ‘people’, failure which it must account for.  

It is therefore disappointing to learn that after 20 years of constitutional democracy, our government is still not clear about its constitutional mandates. The government serves as nothing but the “shepherd” of our young constitutional order.

It just CANNOT be the “shepherd” and the “butcher” of the same.

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