Pontsho Doreen Motswagae and Fourteen Others v. Rustenburg Local Municipality and Promptique TR 9 CC,  ZACC 1
An appeal to the Constitutional Court against an order from the North West High Court, Mahikeng. The High Court had denied an application for an interdict (prohibitory order) from occupiers to prohibit unlawful interference with the applicants’ peaceful possession of their homes.
The applicants occupy dilapidated buildings on land owned by the Rustenburg Local Municipality. Since 2004 the municipality had been planning to develop this land. The municipality met with the residents several times to discuss the development plan and to obtain consent from the residents, but no consensus was reached. The residents refused to leave their homes and accept alternative accommodation.
On April 19, 2009, a contractor, hired by the municipality, started work on the land for development of the property, and excavated land directly next to a wall of the first applicant’s house, exposing the foundation of the house. The contractor continued to excavate, leading the residents to apply for an interdict (prohibitory order) in the High Court to prevent the contractor and municipality from disturbing or interfering with the residents’ possession of their homes. The municipality counter-applied for an order to restrain the residents from obstructing the contractor. The High Court denied the residents’ application reasoning that they were not being ejected from their homes and their privacy was not disturbed.
On appeal, the Constitutional Court found that § 26(3) which states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances,” is not limited to expulsion from one’s home. It also, by necessary implication, guarantees to occupiers, peaceful and undisturbed occupation of their homes unless a court order authorises interference. The Court found that the municipality had not obtained such an order before commencing excavation and that this excavation clearly interfered with the resident’s undisturbed possession of their homes. The decision thus held that the municipality could not undertake the work without first obtaining the applicants’ written consent or a court order.
The Constitutional Court set aside the order of the North West High Court, Mahikeng, granted the resident’s interdict, and ordered the municipality to pay the applicant’s costs.
Legal Resources Centre, Lawyers for Human Rights
This case is significant because it clarifies and extends the interpretation of § 26(3) of the Constitution. As we have seen, the Court held that this provision requires proper due process not just in the case of physical expulsion from one’s home but also when there is interference with a resident’s right to the peaceful, undisturbed possession of her home.
(Uploaded July 2015)