Hangberg shackdweller appeals her conviction
The Wynberg Magistrate’s Court “unconstitutionally” ordered Hangberg resident Janina Samuels to choose between homelessness and imprisonment, the Legal Resources Centre (LRC) has argued in appealing her 2013 conviction for contempt of court.
In June 2013, Samuels was convicted of contempt of court for having built a shack below an area known as the “Sloot” on the Sentinel in Hangberg. She was ordered to demolish her structure, failing which a suspended sentence of three months imprisonment could be enforced. Samuels refused to comply, arguing that she had nowhere to go. She has stayed in her shack ever since.
On Thursday, the LRC filed its heads of argument in appealing the court’s conviction and sentencing of Samuels.
The settlement at the Sentinel’s firebreak, colloquially known as the Sloot, has been at the centre of a series of bitter clashes between some Hangberg residents, the City of Cape Town and other organs of state. City-enforced evictions and shack demolitions in the area precipitated riots and clashes with police in 2010. Sixty two people were arrested and eighteen were injured. At least three people lost an eye.
In the ensuing months, a peace accord was drafted and signed by politicians and an elected residents’ committee – the Peace and Mediation Forum (PMF). In terms of the accord, there was to be no further settlement at the Sloot. The agreement became a court order, interdicting against settlement, in November 2011. But shacks continued to be built and the legitimacy of the accord and the PMF was called into question by occupiers.
It was for contempt of this court interdict that Samuels was tried in June 2013 at the Wynberg Magistrate’s Court. A similar arrest, of Sloot resident Santonio Jonkers in September last year, again sparked riots in Hangberg (our coverage of that arrest).
In its heads of argument appealing against Samuels’ conviction and the suspended sentence of three months imprisonment, the LRC argues that the court should not have accepted Samuels’ “ill-considered” guilty plea, at a time when she was representing herself, because her answers to questions while on the stand did not “prove” that she was “intentionally” acting in contempt of court when she erected her structure around a year after the prohibition of settlement at the Sloot became a court order. Acting intentionally is a legal prerequisite for being in contempt of court, the LRC argues.
The LRC also argues that the court’s order that Samuels must remove her shack and vacate the land amounted to a breach of her right to a home, enshrined in section 26 of the Constitution.
“The (court) in effect compels the Appellant to choose between homelessness and imprisonment,” the LRC says, adding that the court can only hand down an order which results in an eviction if it has taken the affected person’s circumstances and the availability of alternative accommodation into account. The court did not do this, the LRC contends, arguing that the conditions of the suspended sentence null and void.
The case is to be heard in the Cape High Court. No date has been set.
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