Judge slams ‘unlawful’ use of interdicts against land grabs
A CONSTITUTIONAL Court judge has condemned the way municipalities use interdicts against future land invasions to evict people who are already on the land — as in the case of Lwandle in the Western Cape.
Judge Johann van der Westhuizen was writing in a minority concurring judgment in the Jabulani Zulu v eThekwini Municipality ruling handed down by the court on Friday.
In the Zulu case, residents of Madlala village in Lamontville, Durban, were evicted and had their homes demolished on the basis of an interdict from the High Court in Durban preventing further land invasions.
After the initial eviction, community members returned and rebuilt their homes but faced a further 23 evictions — each time returning to rebuild.
In a majority judgment, Judge Ray Zondo found that court interdicts of this nature were in fact eviction orders, but he did not rule on their constitutionality because it was deemed outside the ambit of the application. He referred the matter back to the High Court in Durban.
However, Van der Westhuizen, with Judge Johan Froneman concurring, said evictions based on these orders were indeed unlawful.
Van der Westhuizen said such interdicts contravened the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act and were “consequently unlawful and invalid”.
Using these interdicts to evict people was “totally unacceptable”, said Van der Westhuizen, adding that this practice was not “isolated or unique”.
Citing other similar court interdicts, the judge said the Constitutional Court needed “to state unequivocally that land invasion orders like this one . . . to the extent that they authorise evictions and the carte blanche demolition of structures, are unconstitutional”.
The Constitutional Court was also asked to rule on whether people living in Madlala village since September 2012 had legal standing to intervene in proceedings brought by the KwaZulu-Natal government against people who had occupied the land after that date — which Zondo affirmed in his majority judgment.
Both Zondo and Van der Westhuizen’s judgments were critical of the eThekwini munici- pality, which had earlier this year argued at Constitution Hill that the interdict was not an eviction order and, the very next day, had again used it to evict more residents from the land.
Van der Westhuizen said this behaviour was “troublingly inconsistent”.
The judge warned: “[A] court should be able to rely on the submissions of an organ of state. Otherwise our very constitutional order would be undermined.”