‘Every extra day’ is irreparable harm: court orders Ekurhuleni to restore N12 residents

The City of Ekurhuleni must proceed with an order to temporarily restore hundreds of people to the N12 informal settlement in Benoni, despite the municipality’s attempts to challenge the ruling on appeal.

In a judgment on Monday, Johannesburg high court judge Stuart Wilson ordered that an interim order issued in June remain fully operational while the municipality pursues further legal challenges.

The order affects about 570 people and their families who were evicted from the Chief Albert Luthuli informal settlement during demolition operations in May without a court order.

In his June 12 order , Wilson interdicted the municipality and police from demolishing any structures at the settlement until the court has made a determination on an application seeking permanent protection against the residents’ removal without a court order.

He further ordered the municipality to provide temporary accommodation for the displaced residents.

In the present application, the South African Human Rights Commission and the residents sought execution of the interim order Wilson granted in June.

Wilson said ordinarily, the June 12 order being interim in nature, no application for interim execution would be required since interim orders with no final effect were not suspended by applications for leave to appeal against them.

However, the municipality contended that the interim order was final in effect and sought leave to appeal against it on that basis. On July 13, Wilson refused leave to appeal.

“The municipality has nevertheless renewed its application for leave to appeal in the Supreme Court of Appeal. There, the municipality contends both that the interim order is final in effect and that, even if it is not, the interests of justice favour the grant of leave to appeal,” Wilson said.

Wilson said on Monday that the interim order plainly has no final effect.

He said in his July judgment refusing leave to appeal, he stated that the interim order restored the occupiers to the property pending the final determination of their claim.

Wilson said there was some suggestion that the order directing the reconstruction of temporary dwellings for the occupiers was inherently final in nature, but that would entail the proposition that such dwellings could not simply be taken down if the application for final relief failed.

Wilson said the municipality identified no harm — irreparable or otherwise — from the execution of the interim order pending appeal.

The municipality also contended that the execution of the interim order “will create community unrest as undeserving individuals will be benefiting whereas they were not displaced from the N12 informal settlement”.