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Report on the outcome of Harry

Gwala Informal Settlements Constitutional case

02 June 2010

Introduction

The last report before this Committee was on 4th of November 2009 wherein it was reported that Constitutional Court Judgment was still pending.

The Constitutional Court handed down its judgment on 19 November 2009 dismissing the appeal by the residents of Harry Gwala Informal Settlement.

Background

The Applicants in this matter were Johnson Matotoba Nokotyana and all the residents of Harry Gwala Informal Settlement, a class of persons contemplated in section 38 of the Constitution.

They had originally brought an application before the Witwatersrand Local Division against the Ekurhuleni Metropolitan Municipality.

Background

The applicants sought to obtain an interim order that, pending the decision on whether Harry Gwala Informal Settlement should be upgraded in situ, the Ekurhuleni Metropolitan Municipality should be ordered to comply with its constitutional and statutory obligations in terms of the Constitution and the, Housing Code read with the Housing Act.

Background

Compliance with the aforementioned prescripts meant, according to the relief sought, that the Ekurhuleni Metropolitan Municipality provided to the Harry Gwala Informal Settlement, the following basic interim services:

Background

1. Communal Water Taps: for the provision of water in accordance with the basic standards required by law and standards.

2. Temporary Sanitation Facilities;

3. Refuse Removal Facilitation and

4. High Mast Lighting in key areas to enhance community safety and access by emergency vehicles

Background

The Witwatersrand Local Division granted the applicants the relief sought in respects of:

1. refuse removal facilitation

2. communal water taps and

The application for temporary sanitation

facilities and high mast lighting was dismissed.

Background

The matter came before the Constitutional Court by way of an application for leave to appeal against the decision of the Witwatersrand Local Division dismissing the application for temporary sanitation facilities and high mast lighting.

Order for Joinder

The Constitutional Court preliminarily issued an order joining the:

1. MEC for Local Government and Housing, Gauteng,

2. the National Minister of Human Settlements 3. and the Director-General of the National

Department of Human Settlements as the second, third and fourth respondents respectively.

Judgment of the Constitutional Court

The appeal was dismissed on the basis that chapters 12 and 13 of the National Housing Code were not applicable in the situation of the Residents as these chapters specifically deal with emergency situations and upgraded townships respectively.

Judgment of the Constitutional Court

The Residents’ direct reliance on several constitutional provisions was also found to be vague, insufficiently specified and inappropriate.

The Court held that it would not be just and equitable to make an order benefiting only those who caused sufficient embarrassment to the authorities by litigation and not the many others in a similar situation.

Judgment of the Constitutional Court

The Court considered the view that for the Municipality to provide interim services as demanded by the Harry Gwala Informal Settlement Residents would amount to discrimination against many other similarly situated communities under its jurisdiction.

That could only be done on the basis that the

circumstances of the Harry Gwala Informal Settlement Residents were exceptional and unique.

Judgment of the Constitutional Court

The delay by the Gauteng Province for a speedy decision on the application for upgrading was found by the Court to be the most immediate reason for the dilemma and desperate plight of the residents.

The Court emphasized that as long as the status of the Settlement was in limbo, there was little that could be done to improve their situation regarding sanitation, sufficient lighting to enhance community safety and access by emergency vehicles, as well as a range of other services.

Judgment of the Constitutional Court

The MEC for Human Settlements, Gauteng was ordered to take a final decision within 14 months of the date of the Court Order on the Ekurhuleni Municipality’s application in terms of Chapter 13 of the National Housing Code to upgrade the status of the Harry Gwala Informal Settlement.

Judgment of the Constitutional Court

The MEC was consequently ordered to pay the costs of the applicants in the Constitutional Court.

Actual progress on the ground

In 2006, the Gauteng Department of Local Government and Housing appointed a service provider, VIP Consulting Engineers to conduct a feasibility study for the proposed development of Rietfontein 115 IR in Benoni.

The results of the study indicated that a total of 389 stands for housing development can be developed in Harry Gwala Informal Settlements.

Actual progress on the ground

This meant that only 389 beneficiaries out of a total of 3000 families would be catered for in Harry Gwala.

This necessitated that another portion of land be identified that would yield more stands to cater for the balance of the families.

Actual progress on the ground

The Gauteng Department of Local Government and Housing identified the two portions of land for this purpose but there is private development taking place at present.

Alternative land therefore still needs to be identified.

Actual progress on the ground

• The Gauteng Department of Local Government and Housing has instructed Professional Resource Team to conduct the following studies, as per recommendations of the feasibility study, for planning purposes of Rietfontein 115IR:

1. EIA Scoping Proof of Submission

The Gauteng Department of Agriculture and Rural Development confirmed receipt of the Scoping Report and Plan of Study for Rietfontein 115 IR submitted by Envirolution Consulting on the 9 April 2010.

2. Submit Preliminary Engineering Design

The preliminary design report for water and sewer is in process and will be finalised once the draft layout plan has been accepted by the local authority. The preliminary designs will be utilised if the area is considered feasible for residential use by the environmental studies currently in process.

3. Specialist Study A: Floodline Determination

The floodline for the study area has been determined and incorporated into the draft layout plan which is currently in process.

4. Geotech Report (NHBRC Phase 1)

The geotechnical report for the proposed development has been completed and its details incorporated into the possible formation of the draft layout plan.

4. EIA Approval

The EIA approval is in process. All specialist studies have been completed and are being incorporated to form part of the full EIA Scoping report.

The report is expected to be submitted by the end of June 2010.The incorporation of the specialist studies will inform the suitability of the area for residential use. The record of decision is expected by the end of October 2010.

Challenges

The constraints on the Harry Gwala land are as follows:

1. Potentially dolomite land,2. Shallow undermined land with a shallow

perched water table,3. A number of servitudes and power-lines

and4. A natural wetland / water courses in

close proximity.

Temporary Services Installed

• Extra Water points within 200m radius

• Chemical toilets – 1 toilet per 10 households.

Way Forward

• Layout Plan Submission & Circulation

• The draft layout plan is in process and is expected to be completed by the end of May 2010.

END

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