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
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.
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.
Lawyers for Human Rights
Legal Aid Board of South Africa
SERI