Today the Constitutional Court delivered two unanimous judgments in favour of the occupants of Mooiplaats and Skurweplaas, located adjacent to the Itireling informal settlement in Pretoria. Lawyers for Human Rights acted on behalf of the occupiers who were to be rendered homeless, as a result of an eviction order granted by the North Gauteng High Court. Leave to appeal the High Court judgments was refused by both the High Court and the Supreme Court of Appeal.
At the centre of the dispute is the Itireleng informal settlement, which is located on a small portion of land, previously expropriated by the City of Tshwane for the accommodation of the Itireleng residents. Over time the population of this settlement grew and the settlement became severely overcrowded. The employment opportunities of major urban areas and the lack of affordable accommodation close to the city centre contributed towards the phenomenon of so-called backyard dwellers.
The over-crowding within the settlement resulted in the Itireling settlement developing onto the adjacent portion of Mooiplaats. An eviction application was brought by the property owners and the City of Tshwane was joined as a party to the proceedings. No relief, however, was sought against the City and no arrangements were made or consideration given to where the occupiers would be accommodated upon eviction. The eviction order was granted and the occupiers were forcibly removed. With no alternatives and having been rendered homeless the occupiers simply moved onto the neighbouring property of Skurweplaas.
An application for the eviction of the occupiers from this property was brought once again. Although the court was aware that they had been evicted from the neighbouring portions of Mooiplaas and undisputed evidence that if evicted, the occupiers would be left homeless, the court granted an eviction order.
In the Mooiplaats judgment, the Constitutional Court re-affirmed its recent finding that the City of Tshwane does indeed have the power and obligation to make reasonable provision for emergency housing from its own resources. The Constitutional Court held that although in circumstances where a person had been in occupation of property for less than 6 months, the PIE Act did not expressly oblige a court to investigate whether a municipality could reasonably make land available, the High Court was required to consider all relevant circumstances.
In this matter, the resulting large scale homelessness was of relevance and the question of whether the City was reasonably capable of providing alternative land or housing was thus of particular importance. The Constitutional Court therefore referred the matter back for the High Court in order for it to consider the matter afresh, once the City had furnished the all relevant information concerning alternative accommodation and the parties had responded to it.
In the Skurweplaas matter, the Court noted with dismay the emotive, judgmental and criminalising manner in which the occupants had been cited. It also found that save for the inept, indirect and half-hearted challenge to the order of the High Court, in relation to its obligation to provide emergency housing, there was no reason to assume the City of Tshwane would not take steps to provide alternative accommodation. The Constitutional Court held that it would be neither just nor equitable for those applicants who will be rendered homeless consequent upon an eviction to be thrown onto the streets for the time it takes for the City to make such accommodation available. The City was therefore ordered to provide alternative accommodation one month before 31 May 2012, being the date of eviction.
Lawyers for Human Rights is glad the Constitutional Court has made such clear and unambiguous findings regarding evictions, emergency and alternative accommodation and the prevention of homelessness. The recent series of judgments by the Constitutional Court concerning evictions and the constitutional obligations and responsibilities of Municipalities, in eviction circumstances, will go a long way towards holding these organs of state to account and clarifying how they are required to respond to the needs of their residents.