Schubart Park Residents’ Association and Others v. City of Tshwane Metropolitan Municipality and Another (CCT 23/12) [2012] ZACC 26

This is a Constitutional Court decision addressing whether a municipality may evict residents from their residences absent a court order when the residents needed to be temporarily removed for safety reasons and had not been restored to their residences after one year.

Date of the Ruling: 
Oct 9 2012
Constitutional Court of South Africa
Type of Forum: 

Due to the deterioration of the buildings within Schubart Park, a state-subsidized residential complex, the City stopped the water and electricity supply while 700 families were living there. Residents protested by lighting fires and throwing objects from buildings. The police removed these residents and would not allow them or any other residents from this complex to return. Negotiations occurred between the residents and the City to find temporary accommodations for the displaced residents, but no agreement was reached.

The residents’ application to the North Gauteng High Court for an order to return to their homes was dismissed. The High Court ordered the City to provide temporary accommodation by way of tender to the residents. Subsequent to the order, the remaining residents were removed. The petitioners appealed to the Constitutional Court asking that the High Court’s order be set aside, that they be allowed to return to their homes, and that the water and electricity be restored.

The petitioners claimed that the City was using the ‘crisis’ as an excuse to evict them illegally, relying on section 26(3) of the Constitution, which provides that evictions must be supported by court orders made after a consideration of all the relevant circumstances. The petitioners also claimed that the tender provided by the City was not proper relief under section 38 of the Constitution, which entitled them to meaningfully engage in the restitution process.

The Constitutional Court found that there was evidence of immediate danger to the residents if they returned to the area. However, the Court found that underlying assumption in the order was that the residents were ultimately entitled to return to Schubart Park and that this was not compatible with the City’s interpretation that the residents could be evicted. The Court stated that the refusal to re-order the occupation of the residents (i.e., the dismissal of their application for an order to reoccupy) was not sufficient foundation for an eviction under section 26(3). The Court further found that the City’s tender was inadequate and that, under section 38 of the Constitution, the residents should have been able to meaningfully engage with the City during the re-occupation process, rather than be subject to the top-down offer that was made by the City.

Enforcement of the Decision and Outcomes: 

The Constitutional Court set aside the order of the High Court and declared that the residents were entitled to return to their homes as soon as possible. The parties were ordered to meet to determine how this restoration would occur and to report back to the High Court. Court fees were awarded to the petitioners.

Significance of the Case: 

The Constitutional Court held that a municipality may not use pretextual means for removing residents from their homes and that section 26(3) of the Constitution requires in all circumstances that a court order be issued if residents are to be evicted from their homes; eviction cannot occur as a result of other circumstances absent a court order.

(Updated August 2015)