The Constitutional Court on Friday denied the Port Elizabeth municipality leave to appeal a court ruling preventing the eviction of 68 people living in shacks on private land in the city.
The case began when 1 600 residents of the suburb of Lorraine sought an eviction order to have the shack dwellers removed.
The shack dwellers have been living there from between two to eight years and had said they were willing to move if given alternative land.
The council said they could go to Walmer township but the 68 occupiers rejected this, saying Walmer was crime-ridden and unsuitable. Having no security of tenure, they also feared further eviction.
The municipality said it had embarked on a comprehensive housing programme, and making land available to the 68 would be ”queue-jumping”.
The South Eastern Cape Local Division of the High Court held that since the shack dwellers were in unlawful occupation of the land, and it was in the public interest to terminate their occupation, they should be evicted.
However the occupiers appealed successfully to the Supreme Court of Appeal against the eviction. The municipality then applied for leave to appeal to the Constitutional Court, seeking a ruling that it was not constitutionally obliged to find alternative accommodation or land when seeking an order evicting unlawful
occupiers.
The Constitutional Court decided that Section 26(3) of the Constitution provides that 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.
Section Six of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act sets out the circumstances in which a municipality may apply to evict unlawful occupiers. A court may then order eviction if it is just to do so, taking into account all of the circumstances.
The court emphasised the importance of interpreting and applying those provisions in the light of historic landlessness in South Africa.
Municipalities had to show equal accountability to occupiers and land owners.
Ordinarily, justice would require all reasonable steps be taken to procure a mediated solution before an eviction order is made.
The court found the municipality had not taken action against the occupiers for years and then had acted precipitately to secure their eviction.
The land did not appear to be needed for immediate productive use by the owners and the municipality had only taken cursory steps to determine the exact circumstances of the individual occupiers.
”Although it was not under a constitutional duty in all cases to provide alternative accommodation or land, its failure to take all reasonable steps to do so would generally be an important consideration in deciding what was just and equitable,” the court said.
”In the particular circumstances, it was not just and equitable for the eviction order to be granted. The application for leave to appeal was refused with costs.” – Sapa