In a matter providing much clarity on eviction procedures, the Constitutional Court recently handed down its judgment in Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another.
In this matter, the Court upheld an appeal by residents of Schubart Park, a residential complex in Pretoria (City of Tshwane Metropolitan Municipality), against a decision of the North Gauteng High Court which resulted in the removal of the residents from those premises without an eviction order.
After sanitation and electricity services to the buildings were discontinued, numerous residents of the complex staged a protest action. Authorities removed residents from certain parts of the residence and restricted other residents’ access thereto. This process continued until the end of September 2011, by which time almost 1 000 people had been evicted from the premises, even though the City never applied for an eviction order.
In September 2011, the residents approached the High Court for an order to allow them to re-occupy the complex. They were unsuccessful in that application. The Court declared the buildings unsafe and ordered the parties to try and mediate an agreement on shelter and housing, until an enquiry regarding the refurbishment of the premises had been finalised.
Those negotiations between the parties however, failed.
In October 2011, the High Court handed down a final order requiring the City to provide temporary housing for the residents until the complex had been refurbished. The Court held that “if renovation was not possible and the complex had to be demolished, residents were entitled to alternative accommodation.”
The residents subsequently sought leave to appeal against the decision of the High Court, but both the High Court and Supreme Court of Appeal refused to grant them such leave. The Constitutional Court, however, granted the residents leave to appeal, and the appeal was subsequently upheld.
The Constitutional Court – in a judgment written by Froneman J on behalf of a unanimous Court – set aside the High Court orders and declared that such orders did not constitute an order evicting the residents, as required by section 26(3) of the Constitution. That section makes it clear that no one may be evicted from their home, or have their home demolished, without a court order, which can only be made after all the relevant circumstances of the matter were considered.
Froneman J said that because the residents had sought an order in the High Court for restoration – on grounds that they were being despoiled of the possession of their homes – that brought section 26(3) of the Constitution into a matter which would otherwise have been no more than a normal spoliation application. He went on to state that “what was at issue in this matter was the interplay between the ordinary requirements of spoliation on the one hand, and the demands of section 26(3) of the Constitution on the other and that spoliation proceedings, whether they resulted in restoration or not, should not serve as the judicial foundation for permanent dispossession.”
The Constitutional Court ruled that the High Court order should have made it clear that its order was to operate on an interim basis and that the residents could eventually return to their homes. The Constitutional Court further declared that “residents were entitled to occupation of their homes as soon as it was safe to do so and reasonably possible.”
The judgment is important as it confirms the principle in our law and section 26(3) of the Constitution: that no one may be evicted from their home without a Court order and that anyone or any entity wishing to evict anyone from their home must follow due legal process as stipulated in legislation and the Constitution.
Adv Jacques du Preez
Centre for Constitutional Rights