The struggle at the relatively new Marikana shack settlement in Philippi, Cape Town, has been put on hold for the past few months. The court battle between the Legal Resources Centre (LRC) acting for the community and the legal counsel representing the City of Cape Town has led to an uncomfortable purgatory for those whose homes were illegally demolished by the city in January. Other Marikana residents were not evicted and remain on the land.

The delays clearly serve the city’s interests, yet they have dire consequences for those affected by the anti-land invasion unit’s demolitions.

Marikana residents are still being denied their right to basic services such as water, electricity and sanitation. They need to fix their leaking roofs and extend their homes to accommodate their large families. Those rendered homeless in January remain that way, living in tiny shacks with relatives or friends inside or near Marikana. Yet any action they take to assert their rights could jeopardise the ongoing court case.

While the community has patiently waited for the outcome of the case, the urgency of homelessness is not considered very urgent by the courts.

 

The ride

Knowing the importance of the landmark ruling by Judge Patrick Gamble in the Cape High Court (the ruling compared the city’s actions to apartheid-era evictions), the community raised R1 000 from its own members and solicited donations from friends and friendly organisations to get the R11 000 to send 15 of them up to Bloemfontein on May 27 for the hearing at the Supreme Court of Appeal (SCA).

I joined them for the cramped taxi ride to show my support and to see legal history being made.

This group of revolutionary shack dwellers loves God – so much so that the trip was turned into a nonstop gospel church service. Religion gives them the strength in their struggle despite the insurmountable obstacles in their way. “Never, ever, ever, ever, never give up!” they proselytised.

After 12 hours of Makhulu Judith leading the impromptu choir of older women, we finally arrived at the SCA. We disembarked the taxi in the same clothes we wore the night before and, with no time to freshen up, headed straight into court. An anticlimactic 30 minutes later, the “honourable” justices decided not to entertain the entire appeal (in this instance, the facts of the case) and refer it back to the Cape High Court for oral evidence.

After no time, the lawyers were on flights back, leaving us to slowly make our way to our revolutionary gospel taxi, which then headed back towards the N1 en route to Cape Town.

 

The ruling

For the justices, the ruling is an important legal technicality that was overlooked, and now oral evidence must be heard. From a legal point of view, Gamble was apparently not allowed to make a ruling without first hearing the oral evidence – even though he based his ruling exclusively on the submissions from the city.

In a hastily released press statement, Cape Town Mayor Patricia de Lille has triumphantly claimed that the ruling – which was narrow and technical – somehow “indicated that Judge Gamble’s findings were not supported by the evidence led before him”. Lawyers familiar with the case who preferred not to be named said that “the city can’t say the court ruling proves them right. It’s spin, but it’s to be expected from their past conduct. It’s also contemptuous of the court to say what it is likely to find before it gives its judgment.”

Such statements also lead to inaccurate reporting, such as Eyewitness News’ claim that the ruling means Marikana residents will now be evicted.

In reality, the effect of the SCA’s judgment released on June 4 is that the court believes Gamble should not have assumed that the city was telling the truth, but should have made it prove its case with witnesses.

 

The Zulu case

In a related case, the Constitutional Court ruled in Zulu and 389 Others v eThekwini Municipality and Others that a similar interdict filed in Durban was effectively an eviction order and therefore its constitutionality must be heard in the high court. The majority judgment – while favourable to the shack dwellers – effectively delayed a final ruling on the case. By sending it back to the Durban High Court, it is now almost inevitable that the case will eventually return to the Constitutional Court regardless of which way the high court rules. Delaying judgment on the matter had a major effect on the two communities cited in the appeal. Only two weeks after to Constitutional Court ruling, the eThekwini municipality once again used the interdict to evict the residents of Madlala Village and Cato Crest’s settlement, also renamed Marikana.

The minority judgment by Justice Johann van der Westhuizen, on the other hand, cited another Constitutional Court ruling, Mpumalanga Department of Education and Another v Hoërskool Ermelo, to conclude that the court was empowered to make a decision about the constitutionality of the interdict. He therefore concluded that any interdict that was used as an eviction order was unconstitutional because judges had not considered the provisions of the Prevention of Illegal Eviction Act when granting the interdict. In reference to the unjust effects of delaying the case, Van der Westhuizen cited the City of Cape Town and property owner Iris Fischer’s case against Marikana:

 

The Fischer decisions further indicate the existence of other persons in the same position as the litigants before this court, and the resultant need for this court to state unequivocally that land-invasion-control orders like the one issued by [KZN High Court judge in the Zulu case] Koen J, to the extent that they authorise evictions and carte blanche demolition of structures, are unconstitutional.

 

For the Marikana community, however, both the SCA judgment and the judgment of the Constitutional Court in the Zulu case are merely further instances of justice delayed only to be denied. As with Madlala Village and the other Marikana in Cato Crest, the circuitous nature of a justice system that allows repeated narrow and technical appeals merely traps poor people in an expensive and seemingly endless cycle of delays.

Boitumelo Ramahlele, one of the Marikana residents evicted on January 7 and 8, said: “I wasn’t expecting the matter to be deferred … the SCA ruling did not consider all the circumstances of the victims. There are people who are homeless and they didn’t consider [the urgency of] that.”

Lungiswa Manise, who was on the taxi to Bloemfontein, said the endeavour was “a waste of time” and that it was “like they [the SCA judges] forgot that we do not have homes and [that] it’s been a long time living homeless. The law is unfair to us poor people; like now it is taking us up and down although we are homeless,” she said.

While lawyers get paid to argue over technical legal issues, the residents of Marikana say they need homes now, not after a year of hearing oral evidence from more than 50 witnesses.

 

The impact

The legal system is an arena in which poor people are relatively weak in relation to action-orientated approaches such as protests, strikes and civil disobedience. Focusing on the courts takes significant energy away from other forms of challenging the status quo. This is what the struggle often loses when it is handed over to lawyers to fight it over in elite spaces that, ultimately, do not have shack dwellers’ interests at heart.

The taxi ride to the SCA took a chunk out of people’s pockets. The R11 000 put towards hiring the taxi is gone forever. Ramahlele explained that “it was very stressful to get the funds to go to Bloemfontein. It was very stressful begging for solidarity.” This money could have been used for many other things – like food or fixing people’s leaking homes – but the Marikana residents decided that hearing the case firsthand was more important. Lungiswa, like the other residents, used her own money to pay for the trip, but she felt that she “wasted my money by traveling to Bloem, and I’m not working. I wish that judge can tell the city to repay my money back because I’m struggling.”

People also took time out of their busy lives to make the pilgrimage to the SCA. They sacrificed their time to spend with their loved ones or taking care of their children or grandchildren, their time to devote to odd jobs to make ends meet, their time to prepare for the cold and wet winter.

The taxi ride to the SCA also hurt people’s spirits. “Those who have been evicted are going to lose hope now,” said Ramahlele. “We have to look for employment and other places to stay.” He went on to note how the process affects each side differently: “The government has all the funds to drag the case out … the Legal Resource Centre is an NGO, so it is working on a low budget. If the case is going to drag on, it is going to exhaust the funds of the LRC.”

Lungiswa was even more pessimistic: “I do not have faith in courts. Sometimes I wish like not going [to the SCA] but I went because I need a home.” Her critique of the entire process is instructive: “The court system is useless because we won the case but now we are going back for the same case to the same court [the High Court]”.

 

Moving forward

Where to from here? Despite my personal lack of religion, I can see the value in it when one’s beliefs encourage collective action instead of a certain fatalism. Turning the taxi into an ad hoc church is a way of fostering solidarity under very desperate circumstances and against very powerful enemies in government.

The pending case will not even protect these people from a new draft eviction order the city has recently served on the community.

It is clear that residents’ patience is running out. They are beginning to look at other options, such as hosting a “housing crisis speak out” in the Marikana settlement on July 5 in preparation for their new eviction case on July 8. But as a small and poor community, what other options to they have but to continue to put at least nominal faith in the courts?

For now, the current and evicted residents of Marikana, with the help of the LRC, are continuing to put their weight behind and aspirations into the court system. Emboldened by a study of the SCA judgment on June 25, the Marikana community submitted a leave to appeal, asking that the matter be referred immediately to the Constitutional Court.

The appeal contends that the SCA was wrong to find a material dispute of facts in the high court papers because Gamble ruled that the city’s anti-land invasion unit’s eviction procedure itself was arbitrary and flawed. The city’s justification for the demolitions should “in principle always take place in advance, not after the state has evicted”. The papers further contend that:

 

It simply cannot be accepted that a shack that happens to have no one present at it at the time of an eviction, with few possessions stored in it, constructed with comparatively new material and ground disturbed around it, is not a home. Yet the effect of the Supreme Court of Appeal’s decision is that the city can rely on this procedure to manufacture a dispute of fact, without having to address the individual situation applicable to each of the occupiers in advance every time it chooses to evict someone living in a shack without a court order.

 

The outcome of the forthcoming Constitutional Court case will likely have a profound impact on the Zulu case, the controversial Lwandle demolitions in Cape Town which left around 850 families homeless, as well as an untold number of eviction cases throughout South Africa. Now it seems the community will, if they can afford it, be organising a second revolutionary gospel taxi – this time to Braamfontein in Johannesburg.

But whatever the outcome of this case Makhulu Judith continues to say that they will “never, never, ever give up”. The struggle continues.

 

 

Pic Credit: The evictions in Phillipi East in 2013 by Jared Sacks


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