Municipality criticised for treating woman as ‘non-person’

Durban council did nothing to help evicted resident in her time of need, says judge

After a Durban woman defended her unlawful occupation of a building owned by Transnet, the high court criticised the eThekwini municipality for appearing to treat her as a “non-person” and doing nothing to aid her and her family in the dispute.

Despite the court mostly agreeing with Transnet, the matter was postponed until the eThekwini municipality has fulfilled its mandate by possibly providing her with subsidised housing.

The judgment confirmed that no court was allowed to make an order where “she and her family be rendered homeless”, and stressed that no municipality in SA could sit back in indifference while such eviction disputes happened.

For some time, Transnet owned a building in Durban it usually leases out to its employees especially those who operate its trains. Transnet does not allow its tenant-employees to sublet to anyone else in terms of the lease.

Before 2015, a Transnet worker was renting the building. However, unbeknown to Transnet, the worker sublet to a woman named Samantha Govender and her family.

Govender lived in a part of the building with her elderly father and three young children. In about 2015, the employee left the building entirely, leaving Govender to occupy the entire building.

Transnet, upon discovering this, tried to negotiate with Govender to “regularise” her occupation by making her take over the lease.

Transnet even tried to offer her alternative accommodation. She refused both.

However, she indicated her willingness to move to a property next door if Transnet spent money renovating it.

Transnet indicated it did not have such funds and refused Govender’s condition.

Transnet approached the high court to evict Govender and her family.

Durban high court judge Rob Mossop ruled mostly in Transnet’s favour, noting Govender “is in no position to demand that she be treated as others [lawful tenants] are treated”. Mossop also said he took Govender’s complaints and defences “with a large pinch of salt”.

For example, Govender complains Transnet did not engage her with leaving the property, but Mossop pointed out: “In her own version there have been interactions between both sides for the past eight years.”

The judge concluded that Govender had not established a legal right to remain in occupation of the property.

However, Mossop was concerned despite a case being mostly made for an eviction of Govender and her family about where they would go if such an order were issued.

Courts are bound, in eviction matters, to consider the rights and needs of “the elderly, children, disabled persons and households headed by women”.

Only once the court has information regarding the effects of eviction on those rights can it make such an order.

He noted that though he had some information from Transnet and Govender herself, he had no information from the municipality yet.

“I am at this stage,” he wrote, “entirely uninformed of any alternative accommodation that the first respondent may take up if her eviction is ordered.

“In this case, [the municipality] has not delivered any papers, has not attended court and has not participated in argument,” Mossop said.

“It has offered no assistance to this court whatsoever.”

Though he dismissed Govender’s claim to occupy Transnet’s building, that did not remove her right to be respected.

Mossop was sympathetic to her struggle.

However, the municipality, “through its indifference to her plight, appears to regard her as a non-person, unworthy of its assistance”.

“She is not that. She is a citizen of this country and she is entitled to assistance in her moment of need from the entity that is burdened with providing that assistance.”

He therefore ordered the municipality to conduct an investigation and report back by June. He postponed the matter until then and reserved concerns over legal costs.