Ndifuna Ukwazi (NU) is defending its decision to appeal an eviction order against 266 people occupying Transnet land along the N1 and said that seeking leave to appeal is a “legal right” and not a tactic to delay the eviction.

The social housing lobby group’s NU Law Centre recently filed an application for leave to appeal directly to the Supreme Court of Appeal (SCA) after the High Court refused leave to appeal the eviction.

The petition has suspended the eviction process while the appeal is pending, with the City of Cape Town argues that this will prolong an illegal occupation it says has contributed to crime, cable theft and vandalism along the route.

The City’s Mayco member for safety and security, JP Smith, said NU’s actions, under the guise of protecting human rights, were allowing crime to continue while prolonging what he described as “awful” living conditions for those living there illegally.

The City submitted evidence to the court of muggings, smash-and-grab incidents, the stripping of vital infrastructure, cable theft and other crimes at the site. The court also conducted a site inspection before granting the eviction order.

Smith said: “The illegal occupation and associated anti-social and criminal behaviour has placed an enormous strain on City and SAPS resources. The impact on surrounding communities has been severe, including attacks on cyclists in the lower Woodstock area, both before and after last month’s High Court eviction order.”

Cyclists targeted

In August this year, Pedal Power Association, a Public Benefit Organisation committed to promoting cycling and the interests of cyclists, said three cyclists had been attacked in the lower Woodstock area.

“I condemn the violent incidents at the site when the Sheriff of the Court issued the ejectment notice to unlawful occupants on Thursday, prior to the eleventh-hour leave to appeal filing with the SCA,” said Smith.

However, NU Law Centre said in a press statement its appeal was a lawful step in the court process and rejected claims that it had “stopped” the eviction.

“The High Court refused leave to appeal, and a petition to the Supreme Court of Appeal is the lawful next step. Under section 18 of the Superior Courts Act, the eviction order is suspended while that process is pending. We did not “stop” the eviction. The law did. The applicants are the 266 residents; NU Law Centre acts as their legal representative,” read the statement.

NU said its application was based on concerns that the court had denied or overlooked extensive evidence relating to the residents’ circumstances, while also disputing the City’s characterisation of the community as criminal.

The organisation said crime must be addressed, but that individual offenders should be dealt with through policing and prosecution rather than treating an entire community as responsible for crime in the surrounding area.

It said: “Criminalising the Poor” conflates extreme poverty and landlessness with inherent criminality, reducing entire communities (Transnet, Cissie Gool House, Ahmed Kathrada House) to criminals.

NU said the City’s evidence relied on unverified claims linked to proximity to crime and argued that the same reasoning could result in people living in any area with high crime statistics being treated as criminals.

The organisation also challenged the City over alternative accommodation, saying the central issue was where the 266 residents would go if evicted.

Residents’ rights

According to NU, the Transnet site is home to children, older people and people with disabilities, with some residents having lived there for as long as 20 years. It said many work in the area and have nowhere else to go, while a mosque is also located on the site.

NU said Section 26 of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) require courts to consider the circumstances of people facing eviction, including where they will live afterwards.

It further argued that Constitutional Court judgments, including Grootboom and Blue Moonlight, require the City to plan for and provide temporary emergency accommodation to people facing homelessness.

NU also pointed to the City’s obligations under the Adonisi/Tafelberg Constitutional Court order to report on dismantling spatial apartheid.

The organisation said the City had significant public land and budgets and should not evict people from well-located land near jobs and transport without providing an alternative.

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