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WILSON J:
1 On 12 June 2026, I granted interim relief restoring around 570 individuals and
their families (‘the occupiers”) to a property near Cloverdene in Benoni. The
property is apparently known interchangeably as either the Chief Albert Luthuli
informal settlement or as the “N12 settlement”. I interdicted and restrained the
respondents from demolishing any structure erected at the settlement until the
final determination of the applicants’ prayers for final interdictory and
declaratory relief permanently restraining the occupiers’ removal from the
settlement without a court order. I directed the first respondent, Ekurhuleni
Municipality, to erect temporary structures which will house the occupiers
while their application for final relief is heard; that the dwellings be capable of
being dismantled in the event that the application for final relief is
unsuccessful; and that the construction of the dwellings commence by no
later than 17 June 2026 and be complete by 30 June 2026. I allowed that
these dates could be varied on application to me on good cause shown. I
interdicted and restrained the respondents from preventing or interfering with
any steps the occupiers might take to re-occupy the N12 settlement in the
meantime, whether or not the temporary structures have been completed. I
directed the second respondent, the Mayor, and the third respondent, the City
Manager, to report back to me by 15 July 2026 on the progress they have
made in implementing my order. I retained supervisory jurisdiction to oversee
the implementation of my order. I directed the Ekurhuleni Municipality, the
Mayor and the City Manager to pay the costs of the application for interim
relief, jointly and severally.
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2 I indicated at the time I made this order that my reasons would be issued in
due course. These are my reasons.
The N12 settlement
3 The N12 settlement is located in Highway Park, near Cloverdene in Benoni.
Its approximate boundaries are Puttfontein Road on the western side, Benoni
Road on the eastern side, the N12 highway on the southern side and Chief
Albert Luthuli Extension 3 on the northern side. Until 6 May 2026, most if not
all of the occupiers lived at the N12 settlement in temporary dwellings provided
to them as a result of the order of the Constitutional Court in Pheko v
Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC). In that matter, the
Constitutional Court held that the Ekurhuleni Municipality had evicted the
occupiers illegally from land in Bapsfontein, under a directive declaring a local
state of disaster, which required the evacuation of the Bapsfonetin informal
settlement. The court held that the directive was not enough to authorise the
occupiers’ removal without a court order, which had not been obtained.
However, instead of directing that the occupiers return to land at Bapsfontein
from which they had been removed, the Constitutional Court ordered that the
occupiers be provided with land and amenities “in the immediate vicinity of
Bapsfontein” (Pheko, paragraph 53). That land and those amenities were
provided at the N12 settlement, which, despite being 20km away from
Bapsfontein by road, appears to have been acceptable to the occupiers . The
land and amenities were to be provided pending the provision of permanent
housing, and the steps taken to provide that housing were to be reported to
the Constitutional Court in terms of its order.
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4 Just under 800 individuals and their families were relocated to the N12
settlement in 2011, but the permanent accommodation never materialised.
Predictably, the N12 settlement grew, as the Bapsfontein residents were
joined by others seeking a home there. It appears from the papers that the
number of dwellings at the N12 settlement increased from just under 800 in
2011 to just under 2000 on 6 May 2026.
The May 2026 evictions and demolitions
5 Notwithstanding the municipality’s failure, over a period of 15 years, to provide
permanent accommodation to the occupiers, the least the occupiers could
have expected was that they would be allowed to live at the N12 settlement
with a degree of tenure security, safe from the kind of violent action that
triggered their relocation. But it was not to be. Between 6 and 15 May 2026,
the applicants say that security officers, police officers and members of the
armed forces acting on the respondents’ instructions evicted all of the
occupiers and demolished their dwellings. Nobody suggests that a court order
authorised this action. The respondents instead purported to act on the
authority of a Presidential proclamation which put into action an initiative
known as “Operation Prosper”, and on the authority of a document from the
Gauteng Department of Agriculture and Rural Development (“GDARD”)
which, they said, declared the N12 settlement unfit for human habitation.
6 Operation Prosper is an initiative of the President of the Republic, in terms of
which he authorised the deployment of 550 members of the South African
Defence Force to “prevent and combat crime and maintain and preserve law
and order within Gauteng Province”. On the face of the Operation Prosper
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notice triggering the deployment upon which the municipality relied, the armed
forces were to return to their barracks by no later than 30 April 2026. This begs
the question of what soldiers were doing in the N12 settlement on 6 May 2026.
But I need not consider that issue. Nothing in the notice, or in the documents
from GDARD placed before me, authorised the demolition of the N12
settlement. Nor could it have done so, since evictions from and demolitions of
a person’s home may only take place where authorised by an order of court
made after considering all the relevant circumstances (section 26 (3) of the
Constitution, 1996).
7 As best as I can tell, the ostensive purpose of the operation was in fact to
locate and arrest illegal miners who may have been operating in the
settlement, and to seize their equipment. But the respondents do nothing on
the papers to explain how that objective justified the wholesale demolition of
the settlement and the eviction of its inhabitants.
8 During and after the demolition and eviction, the first applicant, the South
African Human Rights Commission (SAHRC), sought redress for the
occupiers. The SAHRC facilitated the compilation of a list of the occupiers,
and asked that the respondents justify their conduct. On 12 May 2026, the
municipality produced a document titled “Activation of Operation Prosper –
N12 Settlement 6 May 2026 To-date (sic)”. The document made clear that the
respondents’ activities at the settlement went substantially beyond the mere
detection and prevention of crime. The document records that the
municipality’s purpose was to “verify” how many of the occupiers of the N12
settlement were originally relocated from Bapsfontein. On the face of the
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document the “verification” appeared to involve the demolition of all the
dwellings at the settlement, after which those who claimed to occupy the
settlement in terms of the Constitutional Court’s order would be invited to verify
themselves. I have my doubts about whether this was ever the municipality’s
true purpose. On a conspectus of all the facts, it seems to me that the
“verification” was probably a hastily arranged reaction to the SAHRC’s
investigation rather than a planned component of the police action at the
settlement.
9 Be that as it may, at the time the document was compiled, 606 structures at
the settlement had been destroyed, including dwellings occupied by at least
some of the 223 “verified households” identified as originating from
Bapsfontein at the time the document was produced . The stated intention
appears to have been to provide alternative accommodation to the “verified
households”, but to no-one else. In the end, though, it appears from the papers
that even the “verified households” are presently homeless.
10 Notwithstanding this self-evident admission that the municipality had evicted
and destroyed the homes of the very people that the Constitutional Court had
directed it to accommodate, on 22 May 2026, the City Manager wrote to the
SAHRC denying that any illegal evictions had taken place. He averred that the
municipality’s activities were limited to co-operating with police and defence
force crime fighting operations, the destruction of “unoccupied” structures, and
other structures used by illegal miners, the arrest of illegal miners themselves,
and the seizure of their equipment.
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The urgent application
11 The SAHRC interpreted the 22 May 2026 letter as a complete denial of any
responsibility to those whose homes had been destroyed. Its attempts to
negotiate with the respondents having failed, the SAHRC placed an urgent
application for relief substantially in terms of the order I granted on my urgent
roll for 9 June 2026. On 8 June 2026, the Mayor, the City Manager and the
municipality filed their answering affidavits. The matter was stood down to 12
June 2026 to allow the SAHRC time to reply.
12 The SAHRC’s founding affidavit confirms that, by 15 May 2026, virtually the
entire settlement had been destroyed and that its residents – some 2000
people and their families – had been excluded from it. During argument, Mr.
Georgiades, who appeared with Ms. Kakaza for the applicants, confirmed that
the occupiers cannot return to the settlement without a court order.
Anticipating the version that no evictions had actually taken place, the
founding affidavit is supported by affidavits from the occupiers describing how
they were evicted and their homes were destroyed, and from functionaries of
the SAHRC who witnessed the evictions.
13 Jane Mmabatho lived at the N12 settlement for 15 years. She was relocated
there from Bapsfontein. Her home was destroyed with her furniture still in it.
Much of her furniture has been damaged. Her most important documents,
including those confirming her relocation from Bapsfontein, have been lost.
She has been left homeless, together with the eleven other people living with
her, including her six grandchildren. Ceroline Mphuthi, also a former resident
of Bapsfontein, is 71 years old. Her home was destroyed in front of her. She
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now sleeps “outside”, by which I understand her to mean that she lives on the
open veld. David Mtshali, a legal officer at the SAHRC, visited the informal
settlement on 8 May 2026. He “observed distraught residents who were trying
to salvage whatever remained of their belongings”. On 18 May 2026 he
“personally observed that several occupiers” had “no shelter and were
exposed to the cold weather as well unsafe conditions. These conditions were
dire and consistent with recent demolitions and displacement”. Photographs
annexed to the founding papers depict obviously well-tended flowerbeds and
gardens arranged around empty spaces or rubble. Each empty stand sits next
to a pole holding what looks like a fuse-box, electricity meter or other
mechanism meant to supply services to the dwelling that no longer exists.
14 The respondents do not place any of these facts in serious dispute.
Ekurhuleni’s answering affidavit is deposed to by Njabulo Zulu, the
municipality’s “Divisional Head, Specialised Legal Services”. Mr. Zulu does
not allege that he personally witnessed the operation which the applicants say
resulted in their eviction and the demolition of their homes. Nor does he refer
to a confirmatory affidavit from anyone who alleges that they are in a position
to dispute what the applicants say happened at the settlement after 6 May
2026. This court has in the past strongly disapproved of municipal legal
advisers attesting to facts of which they can have no personal knowledge, or
purporting to answer a case based on facts clearly beyond their ken (see Millu
v City of Johannesburg Metropolitan Municipality [2024] ZAGPJHC 419 (18
March 2024), paragraph 45). It appears that this disapproval has yet to filter
through to those responsible for drawing papers on the municipality’s behalf.
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15 I nevertheless accept that, in the context of this urgent application, it would
have been acceptable for Mr. Zulu to rely upon hearsay, provided that the
grounds on which he believed the hearsay to be true were set out. But Mr.
Zulu’s affidavit falls woefully short of that standard. The contents of his
affidavit, Mr. Zulu says, are based on “discussion with colleagues from the
relevant departments of the City of Ekurhuleni Metropolitan Municipality and
its legal representatives” and “information obtained from the officials and legal
representatives of the Municipality”. He refers to confirmatory affidavits, but
none of those confirmatory affidavits contains an eyewitness account of what
happened at the N12 settlement after 6 May 2026 which challenges the direct
evidence of eviction and demolition contained in the founding affidavit . If Mr.
Zulu was told that no illegal evictions took place by anyone in a position to say
so, that person’s eyewitness evidence is entirely absent from the papers.
16 Mr. Zulu’s affidavit alleges that no illegal evictions took place at all, and that
the municipality participated in a crime-fighting operations after 6 May 2026,
directed in the main at illegal miners who, he says had “infiltrated” the N12
settlement. He says that “most if not all” of the N12 settlement’s previous
residents no longer live there because they had been chased away by illegal
miners. He alleges that the vast majority of those actually living at the
settlement are not those who were relocated there in terms of the
Constitutional Court’s order in Pheko. He also denies that any of the occupiers
were actually living at the N12 settlement immediately prior 6 May 2026. But
he also accepts that some 223 out of 325 who presented themselves for
“verification” after their homes were demolished turned out to have been able
to prove that they were originally resident at Bapsfontein. Mr. Zulu says these
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individuals “have consented to be relocated” to permanent housing in
Mayfield, and will be assisted to do so. Mr. Zulu’s affidavit does not engage
with the list of the occupiers which appears annexed to the answering affidavit.
Nor does he attempt to explain why either the country’s premier human rights
institution or the 570 individuals named on the list of occupiers would say the
occupiers were evicted if not a single one of them was. Mr. Zulu does not
address the evidence of wanton destruction contained in the photographs and
eyewitness evidence annexed to the founding affidavit.
The test for interim relief
17 It was against this background that I had to decide whether the applicants
could obtain interim relief. The test for the grant of interim relief is well-known.
I must be persuaded that the applicants have a prima facie right to the order
they seek in their application for final relief, which will be enrolled in due
course. There is room for me to entertain some, but not “serious”, doubt about
that right, while still granting the relief (Webster v Mitchell 1948 (1) SA 1186
(W) at 1189). The applicants, or those in whose interests they act, must have
suffered, or reasonably apprehend, irreparable harm if the interim relief is not
granted, and there must be no effective remedy other than an interim interdict
to prevent or ameliorate that harm.
18 Finally, the balance of convenience must favour the grant of an interim
interdict. It has long been held that the stronger the prima facie right, the less
the balance of convenience need tilt in the applicants’ favour. In other words,
a relatively weak prima facie right may be compensated for by a balance of
convenience firmly in the applicants’ favour, and a very strong prima facie right
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can make up for a balance of convenience adverse to the applicants. This is
little more than common sense. Apparently weighty cases in the main claim
ought to be heard out even if it puts the opposing parties to a great deal of
trouble. Even weak but still arguable cases ought nonetheless to be
entertained if they cause relatively little trouble to those who have to defend
them (Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton 1973 (3) SA
685 (A) at 691E-G).
The municipality’s submissions
19 Mr. de Heus, who appeared for the municipality, the City Manager and the
Mayor, did not attempt to advance the municipality’s claim that no illegal
evictions took place. He quite correctly accepted that the claim could not be
sustained on the papers. In my view, the municipality’s claim that there were
no illegal evictions is wholly untenable. But I need not go that far. The question
was simply whether the applicants had put up a prima facie case that the
evictions and demolitions of which they complained actually happened, and
whether, if they had, the respondents had thrown any serious doubt upon that
case. As should be obvious by now, the applicants’ claim that the respondents
illegally evicted 2000 people between 6 and 15 May 2026 is both compelling
and substantially unanswered. The applicants – even those who did not arrive
at the property from Bapsfontein, or cannot prove that they did – plainly have
a very strong prima facie right to re-occupy the N12 settlement, and to an
interdict against further evictions.
20 Mr. de Heus argued, however, that this did not mean that everyone on the list
of occupiers necessarily had the right to re-occupy the property. He argued
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that their claims should be subject to verification by the municipality. I rejected
that contention. The list of occupiers was compiled by the SAHRC. The list
was first sent to the municipality on 19 May 2026. Other than the unsupported
blanket claim that no illegal evictions took place, there is no suggestion that
the list of occupiers is inauthentic. It was plainly compiled in good faith by the
SAHRC itself. I have been given no reason to believe that the occupiers
named there are not exactly who they say they are – people who have
demonstrated, at least prima facie, that they were evicted from their homes at
the N12 settlement, and who have the right to go back there. In any event, it
seems to me that an open-ended “verification” process would simply delay the
urgent relief the occupiers desperately need. I am also unable to understand
how, given that their documents may have been destroyed during the
demolition of their homes, the occupiers can realistically be expected to
provide documentary evidence of their identity or previous residence.
21 During argument, Mr. Georgiades submitted that, in the event that the
municipality required assurances that a person who wished to re-occupy the
settlement really was a person named on the list of the occupiers, the
assurance of the SAHRC should be more than enough. Mr. de Heus made no
submissions to the contrary, and I accept Mr. Georgiades’ submission. To the
extent that the municipality will be prejudiced by persons who are not on the
occupiers’ list re-occupying the settlement under cover of those who are on
the list, this prejudice is dwarfed by the prejudice a municipally-run verification
process would cause to those whose legitimate claims would be delayed or
denied by its implementation. I am also driven to conclude, on the facts before
me, that the municipality has an incentive to refuse to “verify” as many of the
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occupiers as possible in order to promote its version that no illegal evictions
took place. I am not prepared to allow the municipality to act on that incentive.
22 Mr. de Heus next submitted that an interdict against the destruction “of any
formal or informal dwelling, hut, shack, tent or similar structure or any other
form of temporary or permanent dwelling or shelter, whether occupied or
unoccupied, except in terms of an order of court” was too broad. Mr. de Heus
accepted that, in light of the Supreme Court of Appeal’s decision in City of
Cape Town v South African Human Rights Commission 2024 (5) SA 368
(SCA), even vacant or incomplete dwellings require an order of court before
they can be destroyed (although that order, depending on the circumstances,
may not need to be sought under the Prevention of Illegal Eviction from, and
Unlawful Occupation of, Land Act 19 of 1998). He instead submitted that the
breadth of the anti-demolition interdict would stifle the respondents’ attempts
to combat illegal mining.
23 I do not see how that follows. The relief sought and granted does not prevent
the police, or even the army, from entering the N12 settlement, from seizing
illegal mining paraphernalia they may otherwise be entitled to seize, or from
arresting illegal miners that they may otherwise be entitled to arrest. The
interim interdict does prevent the demolition of any structures used as
dwellings, whether by illegal miners or otherwise. But Mr. de Heus was unable
to point me to any authority that permits the destruction of a person’s dwelling
in order to prevent or punish illegal activity. Nor was he able to point me to
anything that authorises the police, acting without a court order, to summarily
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destroy any physical structure – whether or not it is a dwelling – simply
because it is a site of illegal activity.
24 When the state unlawfully demolishes a home, it must generally rebuild that
which it has destroyed (Tswelopele Non-Profit Organisation and Others v City
of Tshwane 2007 (6) SA 511 (SCA) paragraphs 15 to 29). But Mr. de Heus
submitted that an order for the reconstruction of the occupiers’ temporary
dwellings and amenities, at least pending their application for final relief,
should not be granted. He did not submit that such relief was beyond the
municipality’s organisational or financial capacity to impleme nt. Nor did he
suggest that it would be impractical to reconstruct the dwellings in such a
manner that would allow them to be dismantled in the event that the
application for final relief fails. No such factual case was made out in Mr. Zulu’s
answering affidavit.
25 It was instead suggested that reconstruction cannot take place because
GDARD had declared the N12 settlement unfit for occupation. I reject that
submission. In the first place, the GDARD document placed before me (itself
more than 7 years out of date) does not say in terms that the N12 settlement
is unfit for occupation. Secondly, there is nothing on the papers that suggests
that the land is objectively unable to sustain the reconstruction of the
occupiers’ dwellings, at least on a temporary basis while the applicants’
prayers for final relief are determined. Third, even if GDARD had declared the
settlement unfit for habitation, I would have to weigh that against the fact that
the settlement was inhabited with the municipality’s consent for 15 years
before 6 May 2026, and that this consent was given in fulfilment of an order of
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the Constitutional Court. Fundamentally, the question is really one of the
balance of convenience. It seems to me that the inconvenience caused to the
occupiers by their continued homelessness outweighs by some margin any
inconvenience to the municipality caused by tolerating the temporary
occupation of the N12 settlement in the face of GDARD’s objections.
26 Accordingly, it seemed to me both that the applicants have a prima facie right
to the relief they sought of the strongest kind, and that the balance of
convenience was firmly in their favour. The harm caused by the occupiers’
eviction and their continued homelessness was clear and plainly irreparable.
There was no alternative remedy apparent on the papers.
The need for oversight
27 On the face of things, the respondents have committed a series of flagrant
violations of the occupiers’ constitutional rights. They have acted contrary to
section 26 (3) of the Constitution, and in apparently callous disregard of the
occupiers’ rights to dignity entrenched in section 10 of the Constitution. They
have caused unknown, and probably unknowable, injury to the occupiers’
property and to each of the occupiers’ rights to freedom and security of the
person. They have acted without regard to the rule of law entrenched in
section 1 (c) of the Constitution. The municipality may well be in contempt of
the Constitutional Court’s order in Pheko. The municipality appears to have
learned nothing from what the Constitutional Court had to say in that case.
The municipality has repeated the same egregious insults to the occupiers’
dignity that it inflicted a decade-and-a-half ago. Mr. Georgiades submitted that
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For the First, Second C de Heus
and Third Respondents: Instructed by R Masilo Attorneys