The application seeking to evict residents of an informal settlement situated on Mount Carmel Farms, Elandsfontein, near Kempton Park has been dismissed.
The judgment, delivered by Judge SD Wilson in the Gauteng High Court in Johannesburg, has its roots in the grievances of For Real Chicks (Pty) Ltd and Demeter Wings (Pty) Ltd, which argued that the informal settlement on Mount Carmel’s property posed health risks and increased crime.
The applicants say that there were at least 162 structures on the property in 2015. That number had grown to 269 structures by February 2020. The second respondent, the Ekurhuleni Municipality, says that there were at least 126 households living on the property in December 2021. That figure was based on what the municipality refers to as an “audit” of the property that is, apparently, only 70% complete. The applicants claimed that the absence of basic services for the residents led to severe environmental hazards and trespassing issues concerning their adjacent land.
In their dual-part application, the applicants sought three declarations related to violations of planning and environmental laws, alongside demanding a detailed census of settlement residents. They further requested an interdict against Mount Carmel to prohibit additional occupations of its property.
However, Judge Wilson, in a detailed ruling, noted the critical absence of the residents in the proceedings, stating, “None of the residents of the informal settlement… has been joined to these proceedings. Far-reaching final declaratory orders are sought…without the residents being joined to the proceedings and heard.” This legal oversight undermined the validity of the relief sought and showcased a fundamental principle in law—one that underscores the importance of hearing all parties affected by proposed actions.
The court also addressed the applicant's rights to pursue such actions against neighbours regarding unlawful occupation. Notably, it reaffirmed the significance of the Prevention of Illegal Eviction from, and Unlawful Occupation of Land Act, reiterating that only the owner or municipal authority can pursue such eviction measures. “The applicants simply have no standing to seek the eviction of the residents,” ruled the Judge.
The court went further, delineating that the aim of the statutes the applicants invoked was not to condemn informal settlements as mere blights but to facilitate sustainable and inclusive urban development. “It seems to me to be an abuse of these statutes to seek relief… intended to eradicate a large number of people’s homes,” Judge Wilson remarked, reflecting a deep acknowledgment of the socio-economic realities facing informal settlers.
Despite the dismissal of their application, which also mandates the applicants to pay the respondents’ legal costs, Judge Wilson urged the concerned parties to explore administrative remedies aimed at bettering the living conditions of the informal settlers, opening an avenue for constructive engagement between residents, local authorities, and private landlords.
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