Judge removes R530m ‘Ark’ case from roll, stresses it has not been struck off
Judge Anton van Zyl on Monday removed from the Durban High Court roll the civil matter in which eThekwini Municipality is being sued for R530m for breach of contract for failing to relocate hundreds of evicted residents of the former Ark community centre and shelter to suitable premises.
Judge Anton van Zyl was at pains to emphasise that the matter had not been struck off and that it could resume once the company cited as the plaintiff — The Durban Ark Concepts NPC — had been re-registered with the Companies and Intellectual Properties Commission (CIPC).
It was a technical, but valid point as the company was no longer viewed as a person in law with rights and responsibilities.
“The issue arose this morning [via defence] … that the plaintiff is deregistered and its ability to appear in legal proceedings and to pursue the relief it wants [cannot be allowed at this stage as it has ceased to exist and is incapable of being represented].
“The only order I can make which is relevant and recognised in law is to simply remove the matter from the roll,” said Judge van Zyl.
He said there was a “misconception” that removing the matter was the same as striking it.
“Striking it shows the court’s displeasure,” he said, whereas if it was removed it could be re-enrolled at the “appropriate time”.
“The matter is removed from the roll and all issues regarding costs are reserved.”
It was a bittersweet moment for Arkians — the remaining Ark residents — about 20 of whom had “hustled and swapped favours” to get lifts to court from friends, strangers, neighbours — anyone with a functioning vehicle.
“This case has been going on for so many years. The municipality is using taxpayers’ money to try and stop [the remaining Ark residents] from getting what they were promised,” said S’bu Ntuli, who is the makeshift manager of Ekuphileni house, one of the buildings Arkians were dumped at in 2004 when they were evicted from the shelter.
“We were promised this; we didn’t just wake up one day and decide we were going to demand it. [The municipality] promised it. They are using public money to drag this case out, and that can’t be right.
“They have political connections and taxpayers’ money and they know they can make this a very long process. We just want justice; we just want the city to help the people it has promised to help. How can that be a bad thing?”
The Ark was a 900-bed shelter and community centre off Durban’s infamous Point Road, now Mahatma Gandhi Road, in operation since the 1980s.
At the time the area was derelict. At its height, The Ark housed more than 700 people who were provided with meals, skills training, medical facilities and therapy for those who were addicts.
But in the late 1990s, the City wanted to reclaim the area for high-end development and evicted Ark residents on the promise they would make R10-million available (the proceeds of a municipal housing subsidy) to The Durban Ark Concepts NPC, which had to be registered to claim the money — to build a new Ark, in a suitable area.
The money was never released, which forms the basis of the case.
Arkians were instead evicted, dumped in three areas in the eThekwini precinct and told this was temporary. The remaining former Ark residents still live in these neglected and dangerous “temporary shelters” to this day.
Dr Peter Munns appeared before Judge van Zyl on behalf of the Arkians, but Munns’ doctorate is in Theology, and while he made a determined, impassioned and at times repetitive plea, his lack of courtroom experience was evident.
During one of his extensive monologues he told the court he was representing the plaintiff because of his previous lawyers, one was a drinker and the other “kept on putting stuff up his nose”.
Some of the Arkians told Daily Maverick that while they admired what Munns was doing, they were concerned that he was unaided.
Nevertheless, and surprisingly, Judge van Zyl gave him a remarkable amount of leeway.
The judge listened attentively to Munns, who at one stage launched into a loud diatribe that culminated in him dramatically shaking his finger at advocate JP Broster, sitting two seats away and acting for the municipality, and exclaiming: “This man will sell his soul for money.”
Countered Judge van Zyl: “I am not going to stand for personal insults. Make your arguments based on law.”
Broster, who has been involved in the matter since it was lodged in 2013 and has seen various legal minds assisting Munns come and go, appeared frustrated throughout proceedings.
He fiddled with his pen and alternated between leaning back and hunching in his chair.
He nodded to himself and mouthed “exactly” as the judge was explaining to Munns that the case brought before the court had a company as the plaintiff, and reregistration of the company had to be taken up with the CIPC before it could continue.
In Judge van Zyl’s judgment, he said the matter was a “sad case with a long and sad story”.
“[It] involves a whole number of people who are seeking what they believe to be their rights. They represent a grouping which has come into conflict with the Durban Municipality.”
The Durban Ark Concept NPC was formed in 1999 and deregistered in August 2016. Munns is not a listed director.
When leaving the courtroom, Broster said loudly, within earshot of the Arkians and journalists in the full gallery:
“Cheers, see you again in three years.”
“He knows how to play the game, that’s why he said that,” Ntuli told Daily Maverick. “He knows it can be dragged out; the municipality has the money to do it.” DM