eThekwini Municipality advised to engage with shack dwellers

2017-08-30 17:32
(Duncan Alfreds, News24, file)

(Duncan Alfreds, News24, file)

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Durban - A Durban High Court judge has urged the eThekwini Municipality to use mediation and "engage meaningfully" with shack dwellers in an attempt to find a resolution to the "protracted struggles over a chronic shortage of housing".

"The debate is no longer about who initiated the conflict. Nor is it about who is right and who is wrong," Judge Dhaya Pillay said.

"Violence will spiral... destruction and not construction will continue… without meaningful engagement there can be no return to rationality, without rationality, nothing resembling social order is conceivable."

The matter before the judge was a claim brought before court by a Cato Crest shack dweller Nkosinathi Mngomezulu against the municipality for compensation for being shot during a raid on "illegal" shacks, the demolition of his own shack and a claim against the police for unlawful arrest and detention.

Evidence suggests that on September 21, 2013, Land Invasion Unit team leader Gavin Le Cordier had an altercation with Mngomezulu during which Le Corder was stabbed in the stomach and Mngomezulu was shot four times.

While in hospital, Mngomezulu was cuffed to the bed and under police guard.

On discharge, about a month later, he was taken into custody but was released the following day without appearing before a magistrate.

Historical conflict 

In her judgment, Pillay set out the history of conflict between the unit and the shack dwellers and the litany of associated court applications in which the city obtained orders to demolish shacks and the shack dwellers obtained orders preventing demolitions.

On the merits of the claim before her, she ruled that Le Cordier had shot Mngomezulu in self-defence and that, on the evidence, she could not find that Mngomezulu had a shack in the area, or that it was demolished.

However, she criticised the stance taking by the municipality in the whole affair, particularly after the Constitutional Court had subsequently ruled in another matter that demolitions were evictions and had to be guided by applicable law.

"The municipality would not have known about the Constitutional Court’s opinion when it carried out these demolitions. But it would have known about it by the time this [court] action commenced… and on Mr Le Cordier’s evidence alone, it was attempting again to pass off the evictions as demolitions," she said.

On top of this, at the time of the demolitions, the Abahlali baseMjondolo movement had already secured court interdicts, banning demolitions in the whole Cato Crest settlement.

She said the city had submitted that it could not engage with the illegal occupants because the shacks to be demolished were not occupied.

"These shacks were built with human hands for human occupation, evictions and homelessness were inevitable. Instead of avoiding homelessness, eThekwini created it. Worse still, it doggedly continued to demolish shacks in the face of escalating resistance.

"Seeking out and engaging meaningfully with those affected was its constitutional duty.

"The parties should seriously consider engaging the services of a mediator."

Pillay found that the police were liable to compensate Mngomezulu for unlawful arrest and detention but the amount has yet to be determined.

Read more on:    ethekwini municipality  |  durban

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