The City's attempt to evict residents of the Backstage Informal Settlement in Khayelitsha has been unsuccessful, as the Western Cape High Court dismissed its application and ordered it to pay the costs.
About 30 households were moved to the site by the City in 2020 as part of phase 1 and phase 2 housing projects, and they were provided with relocation certificates. The number of residents has now grown to more than 50.
According to court documents, the City now seeks the use of the land in order to complete a housing project earmarked for about 250 other beneficiaries, and it can only do so by relocating the families currently residing there to another site.
The residents have refused to be further relocated and would only consider doing so if they were relocated to serviced land, with the City now labelling them as “unlawful occupiers”.
The residents opposed the application, saying they were not properly served with the notice in terms of section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act and that they are in lawful occupation of the land.
Court documents noted that the matter was heard previously before another judge for an order directing that a notice in relation to the act be issued, and the notice be served by the sheriff of the court by delivering a copy to each person occupying the land.
It was also ordered that the sheriff further read the notice aloud over a loud hailer.
“The City filed the sheriff's return of service in terms of which the sheriff certified that on January 24 this year at a property being the registered address of the (resident), a copy of the order was served upon an occupant, a person not less than sixteen years of age and apparently residing there after the original document had been shown and the nature and contents thereof explained to the said person.
“It is common cause that this is the only return of service filed by the (City). It is evident from this return of service that the applicant failed to effect proper service on the (residents).
The presence of some of the respondents during the proceedings does not cure the applicant’s failure to comply with this court’s order.
“In light of the provisions of the act regulating service of notice and in light of the service directions ordered by Justice Parker AJ, I find that the applicant has failed to effect proper service on the respondents and therefore its application falls to be dismissed,” said Western Cape High Court Acting Judge Thabisile Dlamini-Smit.
The City yesterday said it was considering the ruling.
Welcoming the judgement, Legal Aid South Africa (Legal Aid SA) spokesperson Boitumelo Boshupeng said the court upheld the dignity and rights of the people who have resided on the piece of land.
“The judgment also highlights that the court’s interventions to place measures for fairness and respect for the rule of law upon all interested parties must be treated with the utmost seriousness these measures deserve,” said Boshupeng.
Cape Times