Urban renewal program held to be eviction “through the back door”
7 February 2013
Motswagae and Others v Rustenburg Local Municipality and Another  ZACC 1
The Constitutional Court of South Africa held that excavation work in close proximity to the applicants’ homes was tantamount to eviction, and that section 26(3) of the Constitution protects the undisturbed occupation of home unless there is a court order.
The 15 applicants occupied dilapidated homes on land owned by the respondent, the Rustenberg Local Municipality. This dispute arose as a result of the Municipality excavating land next to the outer wall of the applicants’ homes.
In response, the applicants applied to the High Court for an interdict to prohibit the Municipality from unlawfully interfering with the applicants’ peaceful possession of their homes. The High Court refused the application. Subsequently both the High Court and the Supreme Court refused leave to appeal. Finally the applicants applied to the Constitutional Court for leave.
The Court granted leave to appeal on the basis that the application raised constitutional issues for consideration including whether section 26(3) of the Constitution protects the undisturbed occupation of home, unless there is a court order, and whether the Municipality acted constitutionally, lawfully and reasonably.
Section 26 of the Constitution states:
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of the court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
The Court held that section 26(3) guarantees occupiers peaceful and undisturbed occupation of their homes unless a court order authorises interference. Further, the decision of Justice Yacoob held that eviction does not only consist of simply expelling someone from their home but may also consist of “the attenuation or obliteration of the incidents of occupation.”
The Court found the excavation work constituted a “significant disturbance to the applicants’ occupation and constituted a form of eviction.” Further, the court dismissed the argument that the Municipality had a right to enter the property to carry out its public duties (absent any emergency or other exceptional circumstances) and noted the rule of law generally prohibits “self help”.
Interestingly, the fact that the applicants had been offered alternative accommodation was held by the Court to be recognition that the Municipality was interfering with their rights to occupy their homes peacefully. The judgment went as far as suggesting that it was probable the Municipality had “sought to achieve eviction of the applicants through the back door.”
Leave to appeal was granted and the appeal was upheld. Further, the Municipality was restrained from performing any construction work on properties occupied by the applicants, without their written consent or a court order.
It is interesting to think about this decision in light of some of the challenges facing public housing tenants in Victoria.
It is notoriously difficult to rely on section 13(a) the Victorian Charter of Human Rights and Responsibilities Act 2006, which states that a person has the right not to have his home unlawfully or arbitrarily interfered with (an analogous, but weaker, protection to that contained in section 26 of the South African Constitution). In 2011, the Court of Appeal in Director of Housing v Sudi found that the Victorian Civil and Administrative Tribunal does not have jurisdiction to consider human rights in eviction proceedings, so tenants are left with the Supreme Court as their only avenue to enforce their human rights.
In the Motswagae decision the South African Constitutional Court considered the “incidents of occupation” when determining whether the Municipality had either disturbed or effectively evicted the occupier Applicants by undertaking excavation work in close proximity to their homes. Amongst a range of sources cited by the court, these elements include protection from arbitrary interference and the right to live somewhere in security, peace and dignity (Committee on Economic, Social and Cultural Rights, General Comment 4).
To what extent can disturbance by a landlord amount to eviction or an attempted eviction? This question and the court’s decision are certainly things for the Victorian Government to consider as it contemplates “urban renewal” projects which involve destroying and rebuilding large numbers of public housing units, as has been proposed on Fitzroy and Richmond estates in Melbourne. More generally this decision is potentially relevant to a range of public housing tenants living in situations notable for the absence of security, peace and dignity.
This decision is available online at: http://www.saflii.org/za/cases/ZACC/2013/1.html
Chris Povey is the Manager and Principal Lawyer of the PILCH Homeless Persons’ Legal Clinic