Today the Constitutional Court handed down a unanimous judgment in the matter of Nthabiseng Pheko and the Occupiers of Bapsfontein Informal Settlement versus the Ekurhuleni Metropolitan Municipality. The Court found that the actions of the Municipality, in forcibly removing the residents of Bapsfontein Informal Settlement and demolishing their homes without a Court order, allegedly as a result of the imminent danger created by sinkholes in the area, was unauthorized in law and contrary to section 26(3) of the Constitution.

The Bapsfontein informal settlement is a well-established community, which has resided informally on privately owned land for a number of years.  The Ekurhuleni Municipality has been aware of sinkholes in the area since at least 2004 and commissioned a number of reports, the most recent of which was completed in 2009. In December 2010 the Municipality decided to declare Bapsfontein a local state of disaster, in terms of the Disaster Management Act and in February 2011 it issued a directive advising that all residents of the Bapsfontein informal settlement were to be evacuated to temporary shelter for the preservation of life.  Lawyers for Human Rights brought an urgent application to the North Gauteng High Court to stop the forced removals and demolition of the residents’ homes.  This application was dismissed and an application to appeal directly to the Constitutional Court was sought.

Lawyers for Human Rights argued before the Constitutional Court that the Bapsfontein residents’ section 26 right to housing and section 10, right to dignity had been violated by the use of the Disaster Management Act in circumstances not warranting evacuation.  The Court re-affirmed that the residents’ right not to be evicted from their homes without a court order could only be limited in terms of section 36 of the Constitution and such did not permit legislation authorizing an eviction, even in emergency circumstances, without an order of court.

The Court further emphasized that evacuation implies that those evacuated may return to their homes, if possible and that an evacuation was not the equivalent of an eviction, much less of a demolition or a permanent deprivation of a persons’ home.

Lawyers for Human Rights is relieved that the Constitutional Court has ordered the Ekurhuleni Municipality to identify land in the immediate vicinity of Bapsfontein and facilitate the relocation of their clients back to the area.  It is hoped that this Constitutional Court judgment will stop the emerging trend of municipalities using allegedly dangerous, self-created emergency situations to by-pass the legislative procedures intended to protect the constitutional rights to housing and dignity.

Lawyers for Human Rights is extremely grateful to the Legal Aid Board of South Africa for their financial assistance in this matter.

For more information, please contact:

Jacob van Garderen                                             Nathaniah Jacobs

National Director                                                   Land and Housing Unit

012-320-2943 / 082-820-3960                            012 320 2943 / 071 608 6658