Mother faces jail for illegal shack

AN impoverished woman is still fighting to stay out of prison for living illegally in her shack above Hout Bay harbour.

Last month, the Legal Resources Centre filed heads of argument on behalf of Janina Samuels in the High Court in Cape Town to appeal against her conviction on contempt of court.

In 2012, Samuels, 44, who had been on the housing waiting list for 15 years, built her shack in the Hangberg informal settlement, on a mountain slope overlooking Hout Bay harbour, for her and her teenage son.

She was ordered to demolish the shack after a High Court order prohibited building near a ditch, where her shack was located. But with nowhere to go, Samuels stayed put.

The Wynberg Magistrate’s Court found her guilty of contempt of court in June 2013 and sentenced her to three months in prison, suspended for three years.

She had represented herself and pleaded guilty. Her sentence was suspended on two conditions — that she not be convicted of the same offence within three years and that she vacate and demolish her home. She was granted leave to appeal in August last year.

In the heads of argument, the centre argues that she should not have been found guilty of contempt of court because she did not commit the offence intentionally.

“The court a quo [as a point of departure] ought to have been in doubt from the questioning of [Samuels], as to whether [she] had the necessary intention to deliberately and mala fide [in bad faith] disobey the High Court order,” it says in its argument.

It also says the condition that she vacate and demolish her home is unconstitutional, because the court did not properly inquire as to her personal circumstances — as required by the constitution — before an eviction order can be granted.

The court did not learn that Samuels would be homeless, had she complied with the eviction order, the centre argues.

“The sentence in effect compels [Samuels] to choose between homelessness and imprisonment.”

National Prosecuting Authority spokesman Eric Ntabazalila said he would not comment on the case because it has not been in court. Comment on this: write to tellus@sundaytimes.co.za or SMS us at 33971 www.timeslive.co.za