Constitutional Court rules Ekurhuleni eviction unlawful
THE Constitutional Court yesterday declared that the eviction of 778 residents of an informal settlement, the demolition of their homes, and their relocation by the Ekurhuleni Metropolitan Municipality to another settlement without a court order was unlawful.
The court ordered the municipality to identify land in the immediate vicinity of Bapsfontein, Benoni, for the relocation of the residents.
The judgment will put a stop to municipalities permanently removing people from informal settlements which are closer to their places of work and other amenities under the guise of evacuation and without obtaining a court order as required by the constitution.
The Socio-Economic Rights Institute of SA, a not-for-profit research and litigation body, which was admitted as a friend of the court in the case, said the decision would have far-reaching consequences.
"Most obviously, it shows up the incorrectness of the City of Tshwane's recent removal of the Schubart Park residents from their homes without a court order and the high court's approval of it," the institute's attorney, Osmond Mngomezulu, said.
"In that case, too, the Tshwane Municipality sought to justify a forced eviction as an 'evacuation'.
"It is clear that the high court's decision approving of the Schubart Park removal cannot now stand."
Last year, the municipality removed families from the settlement in Ekurhuleni, demolished their homes and relocated them to a site 35km away after declaring the informal settlement a disaster area because of dolomite instability.
Residents sought urgent relief in the North Gauteng High Court to restrain the municipality from demolishing their homes. They argued that the forcible eviction and demolition of their homes without a court order violated their constitutional rights in relation to housing.
The municipality argued that the relocation was authorised in terms of section 55 of the Disaster Management Act (DMA) for the preservation of life.
The high court agreed with the municipality and held that it had "a duty to protect their life" and could not "let them stay in a danger zone where they can be swallowed by the earth as it is".
But in a unanimous decision, Justice Bess Nkabinde said the municipality's understanding of section 26(3) of the constitution was incorrect. "Section 26(3) must be read as a whole. It does not permit legislation authorising eviction without a court order." She said section 55(2)(d) of the Disaster Management Act did not authorise eviction or demolition without an order of court. "The DMA does not seek to achieve this. If the purpose of the DMA were to authorise demolition and eviction without an order of court, it would have said so."
She said the act authorised the evacuation to temporary shelters for the preservation of life. This meant that the act ordinarily applied only to the temporary removal from a disaster stricken area to a temporary shelter. "It implies that those evacuated may return to their homes, if possible," she said.
"This is not the case here. Evacuation is not the equivalent of eviction, much less of a demolition."
The municipality said it was still studying the judgment.
mabuzae@bdfm.co.za
Kindle
THE Constitutional Court yesterday declared that the eviction of 778 residents of an informal settlement, the demolition of their homes, and their relocation by the Ekurhuleni Metropolitan Municipality to another settlement without a court order was unlawful.
The court ordered the municipality to identify land in the immediate vicinity of Bapsfontein, Benoni, for the relocation of the residents.
The judgment will put a stop to municipalities permanently removing people from informal settlements which are closer to their places of work and other amenities under the guise of evacuation and without obtaining a court order as required by the constitution.
The Socio-Economic Rights Institute of SA, a not-for-profit research and litigation body, which was admitted as a friend of the court in the case, said the decision would have far-reaching consequences.
"Most obviously, it shows up the incorrectness of the City of Tshwane's recent removal of the Schubart Park residents from their homes without a court order and the high court's approval of it," the institute's attorney, Osmond Mngomezulu, said.
"In that case, too, the Tshwane Municipality sought to justify a forced eviction as an 'evacuation'.
"It is clear that the high court's decision approving of the Schubart Park removal cannot now stand."
Last year, the municipality removed families from the settlement in Ekurhuleni, demolished their homes and relocated them to a site 35km away after declaring the informal settlement a disaster area because of dolomite instability.
Residents sought urgent relief in the North Gauteng High Court to restrain the municipality from demolishing their homes. They argued that the forcible eviction and demolition of their homes without a court order violated their constitutional rights in relation to housing.
The municipality argued that the relocation was authorised in terms of section 55 of the Disaster Management Act (DMA) for the preservation of life.
The high court agreed with the municipality and held that it had "a duty to protect their life" and could not "let them stay in a danger zone where they can be swallowed by the earth as it is".
But in a unanimous decision, Justice Bess Nkabinde said the municipality's understanding of section 26(3) of the constitution was incorrect. "Section 26(3) must be read as a whole. It does not permit legislation authorising eviction without a court order." She said section 55(2)(d) of the Disaster Management Act did not authorise eviction or demolition without an order of court. "The DMA does not seek to achieve this. If the purpose of the DMA were to authorise demolition and eviction without an order of court, it would have said so."
She said the act authorised the evacuation to temporary shelters for the preservation of life. This meant that the act ordinarily applied only to the temporary removal from a disaster stricken area to a temporary shelter. "It implies that those evacuated may return to their homes, if possible," she said.
"This is not the case here. Evacuation is not the equivalent of eviction, much less of a demolition."
The municipality said it was still studying the judgment.
mabuzae@bdfm.co.za