The Gauteng High Court has delivered a stinging rebuke to the City of Ekurhuleni, its mayor Nkosindiphile Xhakaza, and its legal representatives, warning that contradictory arguments advanced in a battle involving about 2,000 allegedly illegally evicted informal-settlement residents may have amounted to an attempt to mislead the court.
Judge Stuart Wilson said the municipality’s legal representatives appeared to have breached their duty to deal honestly with the court, describing one possible explanation for their litigation strategy as “profoundly unethical”.
The extraordinary criticism forms part of a judgment handed down on Monday, ordering that earlier relief restoring about 570 people and their families to the Chief Albert Luthuli informal settlement near Cloverdene, Benoni, remains enforceable despite Ekurhuleni’s attempts to appeal it.
The South African Human Rights Commission (SAHRC) and the occupiers approached the court after demolitions at the settlement in May.
Ekurhuleni’s contradictory arguments
Wilson said Ekurhuleni put up “no serious challenge” to the allegation that about 2,000 people had been illegally evicted from a long-established community.
In June, he ordered Ekurhuleni to erect temporary structures for the affected families while their application for permanent protection against eviction without a court order is determined.
READ: Evicted Germiston families spending cold nights on the street
The municipality subsequently sought leave to appeal, arguing that Wilson’s interim order was effectively final. Wilson refused leave in July, but Ekurhuleni petitioned the Supreme Court of Appeal (SCA).
However, when the SAHRC and residents approached Wilson seeking confirmation that his order remained enforceable during the appeal process, Ekurhuleni adopted the opposite argument.
It contended that the order was not final and, therefore, the residents’ application to enforce it was unnecessary.
Wilson was scathing.
He said the municipality persisted before the SCA with the argument that his order was final while simultaneously arguing before him that it was not.
Counsel for the municipality ultimately conceded that the positions were contradictory.
“On the face of things, the point that the interim order does not have final effect was contrived merely to wrong-foot the interim execution application,” Wilson said.
“If this was the stratagem, it was profoundly unethical.”
Wilson said there were two possible explanations.
Ekurhuleni may have issued contradictory instructions which its lawyers improperly accepted, or its lawyers may have advanced the new argument despite instructions to maintain that the order was final.
A possible attempt to mislead the court
The latter possibility, he warned, meant the legal representatives “may have been party to an attempt to mislead the court”.
“Either way, it bears repeating that litigation – especially litigation of this nature – is not a game which permits a party to chop and change its stance whenever tactically convenient,” Wilson stated.
“Organs of state, such as the municipality, and the legal representatives who act for them, have a solemn duty to deal fairly and honestly with the court and with their opponents. On the face of things, the municipality’s legal representatives have acted in breach of that duty in this case.”
The court also rejected Ekurhuleni’s arguments that rebuilding the settlement could revive illegal mining or trigger community unrest.
Wilson found that residents faced real irreparable harm.
“Every extra day that they must endure in that condition constitutes irreparable harm. Plainly, the longer the interim order takes to execute, the lower the number of former occupiers of the informal settlement who will benefit from the interim order is likely to be, as those left homeless by the respondents’ conduct scramble to find some other form of shelter,” stated Wilson.
The court declared the June order fully operational despite present or future appeal proceedings and ordered Ekurhuleni, its mayor and city manager to pay the costs of the latest application, including two counsel on scale C.
READ: Xhakaza warns of entrenched governance failures in Ekurhuleni
- The Gauteng High Court criticized the City of Ekurhuleni, its mayor Nkosindiphile Xhakaza, and its legal representatives for presenting contradictory arguments in a case involving about 2,000 allegedly illegally evicted informal-settlement residents.
- Judge Stuart Wilson stated the municipality's legal team may have breached their duty to deal honestly with the court and described their litigation strategy as "profoundly unethical."
- The court upheld an earlier order restoring about 570 people and their families to the Chief Albert Luthuli informal settlement, rejecting Ekurhuleni's attempts to appeal it.
- Ekurhuleni argued simultaneously that the interim order was both final and not final in different courts, which Judge Wilson condemned as a possible attempt to mislead the court.
- The court ordered Ekurhuleni, its mayor, and city manager to pay the costs of the latest application, including two counsel on scale C.
