Please note that this article is an extract from the Legal Resource Centre’s Annual Report 2012
In February 2011, the Organisation of Civic Rights approached the LRC seeking assistance for approximately 58 families who lived in a Durban inner-city building called West Point Lodge. The LRC represented the occupants in an effort to compel the Ethekwini Municipality to restore the electricity and water supply to the building and to secure their tenancy with the Kwa-Zulu Natal Department of Human Settlements, the owners of the property.
The right to adequate housing and access to water are fundamental human rights entrenched in our Constitution. The courts have, in several matters, pronounced on this core human right and placed a duty upon the State to take action to provide housing. The most widely noted judgment is Grootboom[i] where the Constitutional Court placed a duty on the State to devise a comprehensive and coordinated programme to progressively realise the right of access to adequate housing. The right to water too was confirmed in the Constitutional Court matter of Lindiwe Mazibuko[ii]. The judgment of the Constitutional Court noted that, “Water is Life… Without it, we will die. It is not surprising then that our Constitution entrenches the right of access to water.”
The clients had entered into verbal lease agreements with a Mr Maharaj, who identified himself as the owner of the property. West Point Lodge is a building that was previously used for overnight lodging and not permanent habitation. At the time when the LRC visited the property, one unit was occupied by two adults and two children. These families either survive on wages earned by casual labour or social grants. Their household incomes did not enable them to rent privately. There was also a shortage of affordable rental housing stock within the Durban Central Business District and attempts to secure low-cost housing from the government had proven futile. The reality for these clients was that, if they vacated their rooms at West Point Lodge, they would have been compelled to reside in substandard living conditions or be left homeless.
In December 2010, the clients were informed by officials of the Department of Human Settlements that Mr Maharaj was no longer the proprietor of the building and that it was owned by the Department. Furthermore, the department was adamant that it did not recognise our clients as legitimate tenants. It appears that the department acquired the property through an unauthorised fraudulent sale that was concluded between Mr Maharaj and certain departmental officials. In February 2011, the clients were served with notices to vacate although the department did not initiate eviction proceedings at that time.
On 25 January 2011, without prior notice or warning to the clients, the electricity supply was disconnected. As a direct result thereof, the water supply was also cut off because water was accessed via an electric pump. The disconnection was linked directly to the fact that, after Mr. Maharaj’s departure, there was no registered consumer recorded on the municipality’s system.
The LRC attempted to negotiate the reconnection of services with both local and provincial government but the negotiations were fruitless. The department did not want to intervene in providing the occupants with services, as it did not want to appear to legitimise their occupancy. The LRC launched an urgent application on behalf of the clients who spent six weeks without access to electricity and water. On the morning that the matter was to be heard, the LRC reached a settlement with the municipality in which it was agreed that electricity would be restored upon payment of a sum of money.
The LRC met with the municipality and its attorneys to discuss a long-term solution in order to secure uninterrupted electricity supply to the building. It was agreed that the occupants would open one electricity and water account for all those living on the premises, for the purposes of billing. However, the occupants could not reach an agreement amongst themselves with regards to who would oversee the account. As a result, an account was not opened and, subsequently, a few of the occupants then made illegal electrical connections. Although the LRC had secured a fair and practical solution for our clients, this was compromised by the unlawful conduct of a few of the occupants.
From December 2010, tensions increased with the deployment of guards at the building. Due to incorrect lists of occupants being issued to the guards, from which they determined who could be allowed into the building, many people were denied access to the building, or refused to leave the building in case they were not allowed to return. The LRC liaised with the Department of Human Settlements in an attempt to resolve the issue of the guards. After much communication that produced no results, we were compelled to launch an urgent application on behalf of the clients. In terms of the court order obtained, the clients were allowed to access their rooms at West Point Lodge and were required to produce their identity documents to the Department in order for their details to be included in the list of occupants.
[i] Grootboom and Others v Government of the Republic of South Africa and Others – Constitutional Court Order 2001 (1) SA 46 (CC)
[ii] Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC)