Nthabiseng Pheko and Occupiers of Bapsfontein Informal Settlement v. Ekurhuleni Metropolitan Municipality
Constitutional Court decision balancing the right of a municipality to evacuate citizens from a tract of land deemed to be a “disaster area” against the rights of individuals not to be evicted from their homes until a Court has considered all of the circumstances and consequences that would result from their eviction; right to housing
This case concerns a municipality’s efforts to remove residents from land it had deemed to be a “local state of disaster” pursuant to the Disaster Management Act (“DMA”), which was intended to provide municipalities with flexibility in urgently responding to disaster-stricken areas when such action is necessary for the preservation of life. Upon learning of their impending removal, the residents challenged the eviction, arguing that the removal was unlawful under the Constitution’s guarantees of the right to housing and certain statutory provisions. The residents also asked the High Court to order the municipality to provide them with alternative accommodation. The Court held that the residents’ removal from the area was lawful because the action was taken pursuant to the DMA. The residents appealed to the Constitutional Court.
The Constitutional Court set aside the order of the High Court for two reasons. First, the Court found that the municipality’s proposed removal of the residents without a court order ran afoul of Section 26(3) of the Constitution, which affirmatively requires a court order in such circumstances. The municipality argued that section 26 (3) contains two independent elements: a prohibition on evictions without court orders and a prohibition on legislation permitting arbitrary evictions, and that these elements had to be read separately, meaning that legislation could permit evictions without court orders if to do so was “non-arbitrary”. The DMA was just such legislation, in that it permitted “evacuations” to temporary shelters without a court order where a state of disaster has been properly declared. The municipality contended that an eviction in these circumstances was not “arbitrary,” and was permitted by the DMA without a court order, consistent with the second sentence of section 26 (3), so long as that provision was read disjunctively.
Nkabinde J, writing for a unanimous Court, held that the interpretation advanced by Ekurhuleni “turns section 26 (3) on its head”. Section 26 (3) must be read conjunctively, as prohibiting evictions from homes without court orders in all circumstances, even if authorized by statute.
Second, the Constitutional Court found that the residents’ removal was not authorized by the DMA. The DMA applies only when evacuation is necessary for the immediate preservation of life, which the Court found was not the goal of the municipality in evicting these residents. The area had been labeled a hazardous area as early as 1986 and its first sinkhole was discovered in 2004, yet evictions did not begin until 2010. Furthermore, the Court found that the term “evacuation” does not contemplate eviction, but only covers temporary relocation. Here the municipality intended to permanently evict the residents.
The Court also found that the High Court did not sufficiently consider the relevant circumstances, such as whether alternative land could be made available to the residents and whether the disaster was sufficiently imminent as to warrant such a speedy relocation of the residents. Finally, the Court issued an order requiring the municipality to engage with the residents to identify land in the immediate vicinity of the land in question for relocation.
Residents were “evacuated” to Chief Luthuli Park. The municipality filed a report on the 29th of November 2012 where they dealt with the availability of land and consultations that they had with the community. The municipality concluded its report by stating that it would wait for the court before relocating the residents. There was an agreement on the relocation of the N 12 community but the municipality could not agree on suitable land with the Mayfield community. In March 2014, the court ordered the filing of a further report on the progress made in respect to undertakings made to the N 12 Highway Park Community which would indicate the steps taken (i) to ensure the purchase of the land identified for reallocation; (ii) to provide permanent housing will be provided to the community; (iii) to ensure that the land utilised is suitable for occupation; (iv) to ensure that engineering services are available; (v) to ensure all erven (plots of land) have access to roads; and (vi) to ensure that all erven (plots of land) are connected to the internal water and sewer infrastructure networks.
Lawyers for Human Rights
Legal Aid Board of South Africa
Informal settlers are at their most vulnerable to coercion where the undoubted health risks they face in their daily lives are used to justify “urgent” remedial action which may in fact leave them worse off. The Court’s decision Pheko constitutes a strong bulwark against this strategy. In the past, especially in the case of City of Johannesburg v Rand Properties 2007 (6) SA 417 (SCA), the tendency had been to uncritically accept both the state’s diagnosis and prescription for unsafe living conditions, however prejudicial it is to the people affected.
However, Pheko makes clear that the extent of the danger presented by unsafe living conditions must be considered by a court in the full context of the proposals to alleviate them. In an implicit rebuke to both the High Court and Harms ADP’s restricted interpretation of section 26 (3) in Rand Properties, Nkabinde J held that the a broad range of “relevant circumstances” must be taken into account, even where an eviction is authorised by an unchallenged notice issued in terms of a valid statute. In Pheko, these should have been taken to include (but obviously not be limited to) whether the disaster was so sudden as to warrant a hasty relocation; whether Bapsfontein could have been rehabilitated; whether an adequate disaster management plan was in place; whether there had actually been any loss of life; whether alternative land had been made available, or could reasonably be made available; and the length of time that the residents had resided at Bapsfontein. A court may decline to authorise an eviction, even from admittedly unsafe conditions, having considered these and other relevant factors.