Constitutional Court Slams Government Over Treatment of Disaster Victims

The Constitutional Court has ruled that the primary responsibility for managing local disasters in terms of the Disaster Management Act rests with the district municipality, but the local municipality and relevant provincial departments are not absolved of responsibility.

• The Constitutional Court has found that the government was “appallingly uncaring” towards 29 Qumbu residents who lost their homes in a February 2022 storm.
• Acting Justice Ingrid Opperman said the authorities had used the “unacceptable technique of deny, divert and deflect” and cynically accused residents of trying to jump the housing queue.
• Opperman said the treatment of the residents was “reminiscent of the past” apartheid-era, with officials not bothering to drive to the scene to see the destruction for themselves.
• The court ruled that a disaster does not need to be legally “declared” under the Disaster Management Act for government to provide assistance to victims.

The primary responsibility for managing local disasters in terms of the Disaster Management Act rests with the district municipality, but the local municipality and relevant provincial departments are not absolved of responsibility, and it is incumbent on on them all to work together, the Constitutional Court has ruled.

Nor does a disaster need to be legally “declared” under the Act for government to step in and provide assistance to victims.

In a scathing judgment handed down on Tuesday, Acting Justice Ingrid Opperman, writing for the unanimous court, stated: “This case is about an apparent unwillingness on the part of the government respondents to protect the most vulnerable amongst us and the lower court’s failures to require the respondents to give expression to the willingness required in the new legal order.

“Every link in the chain appears to have failed the victims of a weather event in one of the poorest parts of our country.”

The victims in this case are 29 residents of Qumbu in the Eastern Cape who lost their homes after what they described as a “hurricane” tore through their village in February 2022.

They pleaded for emergency temporary housing.

But instead, the Mhlontlo Local Municipality, the OR Tambo District Municipality and the provincial department of human settlements, had been “appallingly uncaring” and were more intent on avoiding their constitutional obligations than helping.

“They used the well-known and unacceptable technique of deny, divert and deflect,” Justice Opperman said.

Instead of helping the residents, the government respondents had denied that there was any severe weather event on that day, had denied being informed of it by the residents, had not bothered to get into their cars to see the situation for themselves, and had then cynically accused the residents of trying to jump the housing queue.

The residents approached the Mthatha High Court where their case had been “mischaracterised” as a review under the Promotion of Administrative Justice Act (PAJA), with the judge ruling that they had not exhausted all their internal remedies.

That judge also said that the residents had not proved that the disaster had occurred and said that the Act required that a disaster to be “declared” before the government could provide assistance to victims.

But Opperman said photographs attached to the affidavits by the residents showed widespread destruction, dwellings razed to the ground, and others with roofs blown off.

On the issue of the local authorities not being informed of the disaster, this had been debunked by letters written by at least two of the residents to the local municipality just days after the event.

“The terrible irony is that we are dealing here with a former homeland of the apartheid state. The treatment of the applicants by the bureaucracy appears to be reminiscent of the past. If that repugnant old ethos has somehow been allowed to persist in the offices and corridors of the respondents, it is deserving of the strongest deprecation.

“It needs to be urgently replaced with the constitutional ethos of the new legal order which infuses the founding values of our constitution into how officials of municipalities and provinces ought to deal with people,” she said.

She said the residents described themselves as uneducated, impoverished and reliant on social services.

One, Tembisa Mankayi, said she had been living with her three children in a mud hut when the weather struck. They were now living in one side of a remaining room, which was at risk of collapsing.

Another, Mawethu Lawrence Saziwa, described how he was accommodated by relatives after the storm. He is 72 and his elderly wife has “dysfunctional legs”. At the time his four grandchildren were living with him. All of them moved into the relative’s house, and he said they had become a “nuisance”.

Between when the High Court application was filed and it being heard, the local municipality had undertaken to investigate the situation “based on Ubuntu”.

But, Opperman said, it had used that time to delve into the residents’ RDP housing applications “seemingly bent on exposing that their application for help was a ploy to jump the queue.”

“The respondents made much about the absence of a declaration of a disaster, and appeared to have taken literally the applicants’ use of the term hurricane.

“Had one of the officials got into a car and driven there, they might have seen the homes depicted in the photographs or might have been able to provide other first-hand evidence.

“However, this rudimentary step was not taken.”

The local municipality, despite having no evidence, denied that the hurricane had occurred or that it had any duty to assist the residents. It diverted its focus away from the request for temporary emergency shelter to an irrelevant issue, that of applicants’ positions in the RDP housing queue.

“The respondents’ version came down to an accusation against the applicants that they had all conspired to allege a fictitious weather event at the same time and to use false evidence of damaged and destroyed homes in order to deceive them into providing housing to which they were not, or not yet, entitled.

“This is, apart from being profoundly contrary to the probabilities, deeply injurious to the dignity of the applicants,” she said, ruling that the weather event did, in fact, occur.

She said the event clearly fell within the definition of a disaster and the Act did not dictate that a disaster had to be “declared”.

The government had a “tool kit” of legislation to deal with situations such as this, but had seemingly ignored it.

“This was not a claim for permanent housing or RDP housing. The letters were clear, the urgency was clear.

“They adopted an adversarial posture and throughout the period of litigation, left the applicants to their own devices. This is very far removed from the spirit of Ubuntu.

“The failure to comply with the statutes and come to the aid of the applicants in this matter transgresses another foundational value of our constitution, being the rule of law,” Opperman said.

The court granted the appeal and set aside the High Court orders and the Supreme Court of Appeal’s refusal to give leave to appeal.

It declared that the local and district municipality’s failure or refusal to come to the aid of the applicants to be unlawful and unconstitutional.

It remitted the matter back to the High Court for another judge to consider the present needs of the residents, but specifically disallowed any evidence seeking to disprove that the weather event took place.

The local authorities were ordered to pay the costs and the provincial department was ordered to pay its own costs.

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