Summary
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.