Kennedy Road shackdwellers to sue police - SERI

Police failed to protect community from armed gang in September 2009 attack


Former residents of the Kennedy Road informal settlement in Durban are pursuing damages claims against the South African Police Service (SAPS) and the eThekwini Metropolitan Municipality, three years after the police failed to protect them from an armed gang that invaded the settlement in September 2009. This is an important case because it holds the police responsible to prevent violence perpetuated by others when it is in a position to do so.

On 25 September 2012, summons and particulars of claim were served and filed in the Durban High Court. Abahlali baseMjondolo (Abahlali), a national movement of shackdwellers, is also a plaintiff in the proceedings, along with the 52 individuals. This action comes after the residents gave notice of their intention to pursue a damages claim in terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 on 24 March 2010.

All the residents lived at the Kennedy Road informal settlement in Clare Estate, Durban until the last week of September 2009. During the nights of 26 and 27 September 2009 and the morning of 28 September 2009, the residents and their families were attacked by an armed gang. They were targeted because of their association with the Kennedy Road Development Committee (KRDC), a local community-based organisation, and with Abahlali. Over a period of several hours on both nights, they were sought out and intimidated into leaving the informal settlement. Their homes were destroyed and their possessions were stolen. They were rendered homeless and destitute.

Before and during these attacks, the residents sought the assistance of officers of the SAPS based at Sydenham Police Station, and the eThekwini Metropolitan Police Department (eThekwini metro police). After initially refusing to come to the residents' assistance, the SAPS and metro police officers attended at the scene, but did nothing to protect them from the gang. They looked on as residents were expelled from their homes, and their homes destroyed. No effort was made to intervene or to protect them, their homes, or their possessions. Two people were killed in the attacks.

In a related case, following the attacks in 2009, 12 Abahlali members were brought to trial on charges ranging from public violence to murder in what was a highly politicised trial with no credible evidence supplied by the state. On 18 July 2011 (almost two years after the attacks), the trial eventually concluded with all 12 being acquitted of all charges. The magistrate dismissed all of the charges against the activists after she labelled the state's witnesses "belligerent", "unreliable" and "dishonest". She expressed concern that police identity parade witnesses had been coached to point out members of a dance group closely associated with Abahlali - rather than anyone who had been seen perpetrating any of the violence. The attempt to generate a case included torture of at least one witness by the police, death threats and physical violence against at least one witness. Read more on this case here.

In the current legal action, the 52 residents argue that members of the eThekwini metro police and SAPS acted intentionally or negligently in failing to undertake the following during and after the September 2009 attacks: respond to numerous calls for help from the residents; attend at the settlement timeously and in sufficient numbers, despite numerous and repeated calls; remain at the settlement despite pleas from the residents; take reasonable steps to protect the residents from being attacked, threatened, intimidated and expelled from their homes; prevent the destruction of the Abahlali office and the homes of the residents; take steps to apprehend the members of the gang; provide protection and assistance to residents who returned to the settlement to salvage their possessions; take reasonable steps to assist and protect the residents "in circumstances in which they could and should have done so."

In the particulars of claim, the residents state that they have suffered loss as follows: property destroyed or stolen; financial loss consequent upon being expelled from their homes, including loss of income, and also as a result of the cost of medical treatment; pain and suffering, including emotional shock caused by the trauma of experiencing the attacks and intimidation, being expelled from their homes, and being rendered homeless and destitute; and finally, loss of enjoyment of life caused by long term effects of injuries, pain and suffering caused during or after the attacks and intimidation.

The residents are represented by Advocates Heidi Barnes and Danny Berger SC. Read more on the case and the particulars of claim here.

Statement issued by Teboho Mosikili, attorney at SERI, September 27 2012

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