The applicants reside in homes located on land owned by the respondents. The buildings are dilapidated and a renewal programme has been devised by the Municipality in terms of section 26 of the Constitution. The municipality needs to demolish the applicants homes in order to go ahead with the renewal programme.
The applicants refused to have their homes demolished and the applicants further refused alternate accommodation offered by the municipality.
In April 2009 a construction company under the employ of the municipality excavated land immediately adjacent to the outer wall of a house belonging to the first applicant, which left the foundation of the building exposed. Despite protests by the applicants, the excavation continued in May 2009. The applicants accordingly approached the High Court for an interdict against the respondents prohibiting the unlawfully disturbing or interfering with the applicants peaceful possession of their homes. The High Court held the applicants had no clear right to interdict the Municipality as their right to privacy was not undermined and the court granted the Municipality an interdict preventing the applicants from preventing the Municipality from digging.
Appeal applications to the full bench of the High Court and SCA were both refused. The matter went on appeal to the CC.
Section 26(3) states: 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. No legislation may permit arbitrary evictions.
The court held that section 26(3) includes protection of the applicants in the occupation of their homes. The court held that eviction also consists of attenuation or obliteration of the incidents of occupation.
The court held that the municipality authorising the excavating did interfere with the applicants peaceful and undisturbed occupation of their homes. The court held that the intrusion was so serious that constituted a form of eviction without a court order. The court emphasised that our rule of law does not authorise self-help.
The court held that the municipality should have obtained an eviction order before carrying on with the construction work.
The appeal was granted with costs.
Section 26(3) of the Constitution provides that no one may be evicted from their homes or have their homes demolished without an order of court.