Chung Hua Community Relocated to Safe Accommodation After Years of Struggle
On 9 and 11 January 2016, the occupiers of the “Chung Hua” property at 191 Jeppe Street, Johannesburg were relocated to very comfortable temporary accommodation in a building in Turfontein, to the south of the inner city.
This case has a long and eventful history. In 2009 and 2010, the owners of the Chung Hua property, assisted by the police, illegally evicted the occupiers on three separate occasions. After each of the first two evictions, spoliation applications were brought, and the occupiers were re-admitted to the property. SERI Executive Director Stuart Wilson’s first brief as an advocate was to bring the first of these applications. (That order was granted by Ntsebeza AJ).
The third time the occupiers were illegally evicted, Maluleke J refused the restore the occupiers to their homes. The refusal of spoliatory relief accordingly had to be urgently appealed to a Full Bench of the Johannesburg High Court. That process took three months, during which our clients slept on the streets. The Full Bench upheld the appeal and returned our clients to their homes in the building. (That judgment is reported as Mthimkulu and Another v Mahomed and Others 2011 (6) SA 147 (GSJ)). The full bench also held the property owner and the police in contempt of a previous interdict restraining them from evicting our clients illegally.
The property owner, duly chastened, then brought an application for our clients’ eviction. In June 2012, Claassen J granted that order, provided that our clients were given alternative accommodation where they may live secure against eviction at a location as near as possible to Chung Hua. The order gave the City until 15 January 2013 to provide that accommodation.
The City did not comply with Claassen J’s order. Accordingly, SERI brought fresh proceedings to suspend the execution of the eviction order, and to compel the City to comply with its court ordered obligation to provide alternative accommodation to our clients. We did so by asking for a mandamus against the Mayor of Johannesburg, the City Manager and the Director of Housing requiring them to see to it that the City obeyed Claassen J’s order, failing which they could be held in contempt of court. In May 2013, Satchwell J granted that order (her decision is reported as Hlophe and Others v City of Johannesburg and Others 2013 (4) SA 212 (GSJ)). The City then appealed.
During the appeals process, the Johannesburg Metropolitan Police Department illegally evicted our clients again. This time the eviction was reversed after one of our candidate attorneys, Lindokhule Ndabe, went to the property to ensure that the JMPD were informed of, and obeyed, the law. Also during the appeals process, the upper floors of the property caught fire, necessitating the relocation of the occupiers of the upper floors of the property to the lower floors. Another SERI candidate attorney – Zwokana Netshifulani – co-ordinated a humanitarian response to that disaster, ensuring that food, clothes and blankets were distributed to the affected clients.
The Supreme Court of Appeal dismissed the City’s appeal in May 2015. That judgment is reported as City of Johannesburg Metropolitan Municipality and others v Hlophe and others 2015 (2) All SA 251 (SCA). A further application for leave to appeal to the Constitutional Court was refused in July 2015.
The City then finally offered some accommodation in portacabins, on open land to the south of the inner city, which it said would be ready by September 2015. It turned out that this accommodation was not ready by September 2015. It furthermore turned out the City knew it would not be ready by that time, and had lied to SERI and our clients in undertaking that it would be ready.
SERI then instituted contempt proceedings against the Mayor of Johannesburg.
In the meantime, the owner of Chung Hua sold the property on. On 30 November 2015, the new purchasers, together with the police, illegally evicted our clients from Chung Hua again. Back to court the SERI team went, and our clients were re-admitted to their homes, this time in terms of an order granted by Sutherland J in early December 2015.
While this latest urgent application was being brought, the Deputy Judge President convened a case management conference for the contempt application, and made very clear that he was unimpressed by the City’s failure to comply with the (now two-and-a-half-year-old) order of Claassen J. He set expedited deadlines for hearing SERI’s contempt application against the Mayor, directing that the matter be heard in February this year.
This appears to have frightened the City into action. It identified a small building next to a sports field just to the south of the inner city, to which our 93 clients relocatedon 9 and 11 January 2016.
SERI will continue to work with Chung Hua community as it settles into its new home.
Family restored by Children's Court
On 22 February 2016 SERI obtained an order for the return of Mihlali* to her grandmother Siyasanga* after three years of separation. Siyasanga and Mihlali moved into accommodation provided by the City of Johannesburg in May 2012. They were advised that the shelter is not a place for children and the rules stated that they were not allowed to stay inside the shelter during the day. It was challenging to have a home that was only accessible in the evenings, yet Mihlali and Siyasanga found comfort in living with each other. A few months after their relocation, social workers employed by the management of the shelter took Mihlali away claiming that the shelter was not suitable for children and her grandmother did not have financial means to support Mihlali.
Soon after the removal of Mihlali from her grandmother’s care, SERI obtained an order in the High Court interdicting the shelter from locking its residents out during the day. Still, social workers at the shelter refused to allow Mihlali and her grandmother to live together there. SERI, acting on behalf of Siyasanga, brought an application in the Children’s Court to compel the social workers to allow Mihlali and Siyasanga to live together.
The Centre for Child Law represented Mihlali and made it clear that Mihlali considered her grandmother to be her primary caregiver and their separation was affecting Mihlali’s well- being. The Children’s Court upheld SERI’s arguments and found that it was in Mihlali’s best interest to live with her grandmother. Siyasanga was appointed as Mihlali’s foster parent and the court recommended the payment of foster care grant. The order granted by the court ensured that the right to parental care is given sufficient recognition, and raises serious questions about the regime imposed in shelters for people evicted from their homes in Johannesburg.
Informal Settlement Protestors Released on Bail
SERI acted for 28 residents of the Precast and Thembelihle informal settlements in the south of Johannesburg in the Lenasia Magistrates’ Court.The residents were arrested in the wake of two days of protest in the area. Despite there being no evidence that any of the residents had committed any offence, they were detained for almost three weeks at the Johannesburg Correctional Centre (Sun City).
This is because the question of their bail was not raised or dealt with by the State, the presiding officer, or previous legal representatives over two court appearances. Some of the residents lost their jobs, and many families lost income, during this extended and unwarranted detention.
SERI became involved in the case on 10 February 2016, two days before the group’s third court appearance. On 12 February, SERI moved bail applications for each of the accused. The State opposed bail in every case, but provided no evidence linking any of the accused persons to the commission of any offence. It argued simply that the release of any and all of the accused persons might lead to further protests. There was no basis for suggesting this, and bail cannot, in any event, be refused to quell community based protest. The Magistrate set bail at R500. R2K, Operation Khanyisa Movement, the Marikana Support Campaign and the families of the accused immediately put together funds to secure the release of every single accused.
This case highlights the ongoing criminalisation of protest in South Africa’s townships and informal settlements, and emphasises the need for more resources to be allocated to poor communities who face victimisation through the criminal justice system when they assemble to articulate their grievances.
Court gives back house to Soweto family of seven
On 11 February 2016, the Gauteng Local Division of the High Court ordered that a Soweto couple be reregistered as owners of a house that had been sold by First National Bank (FNB), even though they had already paid their mortgage off in full. The Thabethe* family purchased the house in Protea in 2001 with a loan of R54 000 from FNB. After Mr. and Mrs. Thabethe lost their jobs, they were unable to keep up with the mortgage repayments. FNB refused to restructure their payments and obtained a default judgment against them without their knowledge in July 2003. The value of the judgment was R54 000 plus interest and costs. The judgment notwithstanding, the Thabethe family worked hard as informal traders at a bunny chow stall in Soweto and kept on paying FNB what they could afford. For 7 years, FNB accepted their payments. Acting Justice Thandi Norman found that by 2010 the Thabethes had repaid the whole judgment debt plus interest and costs – over R94 000 - and FNB in fact owed them just over R500. FNB went ahead and sold the property anyway and in 2011, the Thabethes were served with an eviction application. With SERI’s assistance, the Thabethes obtained an order from the Pretoria High Court that the sale of their home was null and void. On 11 February 2016, the Johannesburg High Court held that this meant that the people to whom the Thabethes’ home was sold never became the lawful owners of the house, and that the title deed to the Thabethes’ home had to be put back in their name.
*Names have been changed at the request of the families.