Cities are publicly accountable, appeal court rules

The Supreme Court of Appeal in Bloemfontein has issued an order confirming that city officials have to comply with court orders. (Supplied)

The Supreme Court of Appeal in Bloemfontein has issued an order confirming that city officials have to comply with court orders. (Supplied)

While the residents of buildings in Jeppestown, Johannesburg, were marching to challenge city officials after they were served eviction notices on Wednesday, the Supreme Court of Appeal in Bloemfontein, in a separate case, issued an order confirming that city officials have to comply with court orders.

The City of Johannesburg had failed, without an explanation, for almost a year, to comply with court orders that compelled it to provide temporary accommodation to evictees.

The City is obliged to do this, thanks to a landmark judgment by the Constitutional Court in 2011. In that case, known as the “Blue Moonlight”, the court held that evictees, many of whom are indigent, should be protected from being deprived of their property and have a right to adequate housing in terms of the Constitution.

The court dismissed the City’s two arguments – that it was neither obliged to provide evictees with temporary shelter, nor did it have the budget to do so.

On Wednesday, the appeal court took the issue a step further and held that the city’s “functionaries” – the mayor, municipal manager and director of housing – were responsible for ensuring that the city complied with court orders, which, in this case, was to ensure that the evictees were provided with temporary shelter.

Public accountability
In a judgment written by acting Judge CHG van der Merwe (with four judges concurring), the court was clear about why municipal officials had to be accountable to communities.

“In my view, the decisive consideration is the principle of public accountability,” Van der Merwe wrote. “It is a founding value of the Constitution and central to our constitutional culture.
In terms of the … Constitution, the objects of local government include to provide accountable government for local communities … Municipalities’ administration is governed by the democratic values and principles embodied in the Constitution. Section 195(1)(f) of the Constitution specifically states that public administration must be accountable.”

The case began in early 2011 when 182 residents of a building in Jeppe Street, known as Chung Hua Mansions, were served with an eviction order. A company, Changing Tides, bought the building and applied to the court for the order.

In granting the order, the high court in Johannesburg ordered the City to provide the residents with temporary shelter, which it did not do.

Changing Tides went back to court in June 2012 in an attempt to evict the residents. Again, the court directed the City to provide the residents with temporary shelter, by January the following year. The eviction was to take place a month later. The court also told the City to file a report by October that year, explaining where the occupiers were to be housed.

The appeal court said: “The City consented to the order [of the high court]. It nevertheless failed to comply herewith.”

No accommodation or money
In November 2012, the City submitted a report to the court but did not set out the details of where the occupiers would be housed. Instead it told the court it did not have the buildings or money to relocate the Jeppe Street occupiers.

By January, the City had not provided the occupiers with temporary accommodation. With the February eviction date looming, the occupiers went back to court. They wanted an order that would declare that the City’s functionaries had to take steps to make sure the city complied with the previous court order.

Days before the eviction was scheduled to take place, the court confirmed the previous order: that the City had to provide the residents of Chung Hua Mansions with temporary accommodation at a location as near as possible to the Jeppe Street building. By March 20 2013, the city had to report to the court about where the occupiers would be housed. In particular, it had to make reference to the Ekuthuleni and Linatex buildings, which, in its answering affidavits, the City had named as possible places where it might house the Chung Hua occupiers.

All the parties, the City included, agreed to this order, and the eviction was suspended until it had been complied with. Again, the City did not.

On March 20, the City wrote to the court, and it made an about-turn: the Ekuthuleni and Linatex building were being used by residents of another building, and the City could not accommodate the Chung Hua people “in the foreseeable future”. The City said it needed nine months to find space for the residents.

Detailed steps of action
In April, the matter came before Judge Kathleen Satchwell. She ordered the City to make sure the order was complied with: chiefly, that the residents were provided with temporary emergency accommodation, so that the eviction could go ahead.

But this time the City was ordered to take a number of detailed steps, including to explain how it would allocate money from its budget, how it planned to established a “specialist unit” to deal with the matter and what qualifications the members of this unit would have.

By the time the City approached the appeal court, temporary accommodation had been provided and all that was at issue was whether the shelter was constitutionally compliant.

But the City felt that Satchwell’s order was granted incorrectly. The City said the judge was wrong when she held the functionaries responsible for making sure the City complied with the court order.

The appeal court disagreed and said:  “By 9 April 2013, the City had for a period of nearly a year consistently and without proper explanation failed to comply with court orders that it had consented to. The functionaries are statutorily obliged to see to the implementation of orders made against the city. Satchwell J correctly concluded that the time had come for the functionaries to be held accountable in terms of the Constitution.”

But the appeal court found that Satchwell’s reporting order, which required the City to “provide full and complete answers” to detailed questions, went beyond the issues before her, and overturned that part of the order.

At the appeal court, the City of Johannesburg was represented by Alan Dodson SC, and Kunene Ramaphala Botha were the instructing attorneys. The occupiers were represented by Paul Kennedy SC and Stuart Wilson, on instruction from the Socio-Economic Rights Institute. Changing Tides was represented by S Grobler, with Esthe Muller as the instructing attorneys

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans

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