Jabulani Zulu and 389 Others v eThekwini Municipality and Others

The appellants (390 people) lived on a property known as Madlala Village in Durban (officially Erf 1112, Mobeni, Durban, referred to as the Lamontville property), which was owned by the MEC for Human Settlements. The appellants claimed they had lived there since September 2012 after moving from Lamontville Township where they had rented backrooms. They built informal homes on the property. The Municipality's Land Invasion Control Unit demolished their homes on approximately 24 occasions without court orders. On 28 March 2013, the MEC brought an application for an interim order authorizing the Municipality and Minister of Police to prevent invasions and demolish structures on various properties including the Lamontville property. Koen J granted an interim interdict without citing the occupants. The appellants subsequently brought an application for leave to intervene in those proceedings, which Kruger J refused. The appellants also launched a separate application to interdict further evictions and demolitions.

• Did the appellants have locus standi to intervene in the MEC's application for the interim order?
• Did the interim order issued by Koen J constitute an eviction order?
• Was the interim order constitutionally valid given that it was granted without compliance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)?
• What is the proper test for determining locus standi?
• Should this Court pronounce on the constitutionality of the interim order in this appeal?

1. The appeal was upheld. 2. The First and Third respondents were ordered to pay the appellants' costs jointly and severally. 3. The order by Kruger J refusing the appellants leave to intervene was set aside and replaced with an order: (a) granting the appellants leave to intervene as third and further respondents; (b) with costs to be costs in the cause.

A person has locus standi (standing) to intervene in proceedings if they have a direct and substantial interest in the matter. For purposes of determining standing, a court must assume that the allegations made by the person seeking standing are true. The demolition of a person's structure constitutes an act of eviction, which triggers the protections under section 26(3) of the Constitution and PIE. An order that authorizes the prevention of occupation of property or interdicts occupation of structures can amount to an eviction order if it applies to persons already in occupation, as it would prevent them from continuing to occupy the property. Where an interim order can be used to evict persons who were already living on property before the order was granted, those persons have a direct and substantial interest in the proceedings and must be granted leave to intervene to challenge the order and make submissions on its correctness in light of PIE and constitutional protections.

Van der Westhuizen J (with Froneman J concurring) made important obiter observations that: (1) the interim order issued by Koen J was unconstitutional as it was an eviction order granted without compliance with PIE and section 26(3) of the Constitution, which require that no one may be evicted without a court order made after considering all relevant circumstances and allowing affected persons to present evidence; (2) this Court can and should hear appeals against interim orders where they relate to constitutional matters and irreparable harm would result if leave were not granted; (3) the Municipality's conduct was totally unacceptable - it took contradictory positions before the Court (arguing the order did not apply to appellants, then using it to demolish their structures the day after the hearing); (4) organs of state have positive duties under sections 7(2) and 165(4) of the Constitution to assist courts, respect rights, and provide reliable information; and (5) failing to fulfill these obligations undermines the constitutional order and judicial process. Moseneke ACJ noted that while Van der Westhuizen J may be correct about the order's unconstitutionality, it was unnecessary to determine this as: the appeal was only about standing; no declaration was sought; and a subsequent interim order by Jeffrey AJ had arrested the potential irreparable harm. The main judgment (Zondo J) also observed that the Municipality's conduct in carrying out demolitions the day after the hearing, while arguing the order did not apply to appellants, was "totally unacceptable" and showed inconsistency between the Municipality's stance before the Court and its subsequent conduct.

This case is significant for several reasons: (1) it clarifies the test for locus standi in intervention applications, reaffirming that allegations must be taken as true for purposes of determining standing; (2) it confirms that demolition of someone's structure constitutes an act of eviction itself, triggering constitutional and PIE protections; (3) it demonstrates the constitutional protection against arbitrary evictions under section 26(3) and the mandatory nature of PIE's requirements; (4) it addresses the inappropriate conduct of state organs that fail in their constitutional duties, particularly the Municipality's contradictory positions before the Court; (5) it illustrates the flexible remedial jurisdiction of the Constitutional Court under section 172(1)(b) to craft just and equitable orders; and (6) it emphasizes that organs of state have positive duties under sections 7(2) and 165(4) of the Constitution to assist courts and respect constitutional rights. The case is particularly important in the context of housing rights and protection of vulnerable occupiers against unlawful evictions.