Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another  ZACC 26 (9 October 2012)
The protection against arbitrary eviction under section 26(3) of the South African Constitution provides that a person cannot be evicted from their home without an order of court made after considering all the relevant circumstances. In a unanimous judgment, the Constitutional Court held that the High Court’s order dismissing an application by residents for immediate re-occupation of their homes after their emergency removal was not a justified order for the purposes of section 26(3). The Constitutional Court set aside the High Court’s orders and ordered that the residents were entitled to occupation of their homes as soon as reasonably possible.
The City of Tshwane Metropolitan Municipality (City) took control of Schubart Park, a 1970s residential complex made up of four high rise blocks, in July 1999 and since that time the buildings had significantly deteriorated. People “not known to the City” had come to live in many of the properties.
On about 11 September 2011, the water and electricity were cut off and, 10 days later on 21 September 2011, residents started a protest about the living conditions at Schubart Park. The protest became violent and two fires broke out in one of the residential blocks. Residents from that block were removed. The fires were extinguished and the police operation in relation to the protest was over within 24 hours.
The residents who had been removed made an application to the North Gauteng High Court for immediate re-occupation of their homes. The High Court dismissed the application on 22 September 2011 (dismissal order) and ordered the City and the Minister of Police to make temporary accommodation available to the residents and the parties to negotiate the terms of a draft order to meet the needs of the applicants.
In the last week of September 2011, the remaining residents in Schubart Park were removed.
By the end of September, between 3000 – 5000 people were in temporary shelters or on the streets.
The parties were unable to reach agreement, and on 3 October 2011 the High Court made a final order requiring the City to:
- provide temporary accommodation to the residents;
- assist the residents to remove their belongings from the properties and store them;
- immediately commence refurbishment and renovation of Schubart Park to be completed within 18 months (with a provision for extension by agreement or order of the Court);
- relocate the residents to the refurbished and renovated Schubart Park (subject to applicants providing proof of their rights to occupy the property and having a right of occupancy in South Africa); and
- if, on the advice of structural engineers, Schubart Park had to be demolished and/or could not be refurbished or renovated, furnish “qualifying residents” with alternative properties.
The applicants applied to the Constitutional Court for leave to appeal the High Court’s order.
Protection from arbitrary eviction
The Constitutional Court considered the right under section 26(3) of the South African Constitution, which 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. No legislation may permit arbitrary evictions.
The Constitutional Court held that the High Court’s order did not comply with the protection provided by section 26(3) because:
- relocation back to renovated Schubart Park properties was made conditional upon residents proving their right to occupancy (both of the property and in the Republic of South Africa);
- it provided for occupation of the property only for those residents who accepted the City’s proposal and left those who did not accept without a remedy; and
- there was no recourse to the courts if restoration and renovation was found to be impossible and residents were to be moved to alternative properties.
The Constitutional Court held that if residents could not return to their properties, a court order was required or the dismissal of the application for re-occupation would be tantamount to an eviction order. Essentially, the Court held that if the City was going to evict the residents, they had to do so lawfully and in accordance with section 26(3) of the Constitution – the City could not use the crisis as an excuse to evict residents without complying with the law.
While the Constitutional Court acknowledged that the High Court could not immediately order re-occupation due to safety concerns for residents, it held that the High Court should have issued a declaratory order that clarified the residents’ entitlement to eventual re-occupation of the properties.
The Constitutional Court held that the “lack of provision for a court order for what effectively will be an eviction order is in breach of section 26(3)” and declared that the residents were entitled to occupation of their homes as soon as reasonably possible.
Supervision and engagement orders
The Constitutional Court recognised the importance of the “substantive involvement and engagement of people in decisions that may affect their lives”, in particular in relation to the rights to adequate housing and to protection from arbitrary eviction or demolition of homes under section 26 of the Constitution. Based on this recognition, the Constitutional Court relied on section 38 of the Constitution to make a supervision and engagement order. Section 38 provides that prescribed people (including anyone acting in their own interest, on behalf of another person who cannot act, in the interest of a group or class of persons or in the public interest) have:
the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.
Using this relief provision, the Constitutional Court ordered the City and the applicants to meaningfully engage with each other “at every stage of the re-occupation process” with a view to ensuring that the residents could re-occupy their homes as soon as reasonably possible.
The Court ordered that the engagement would be supervised by the High Court, including through the provision of affidavits setting out the agreements reached.
The rights of residents being removed from dilapidated publicly owned housing are relevant in a Victorian context where the Auditor-General recently reported that: “The public housing portfolio is now in a seriously deteriorating condition with the division estimating that 10 000 properties, 14 per cent of the total, will reach obsolescence over the next four years”.
The key differences between the operative provisions in this case and human rights protections in Victoria are:
- South Africa’s protection includes the right to have access to adequate housing and the obligation on the state take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. This right exists alongside the protection against arbitrary eviction, which contains three limbs: the need for a court order, the consideration of all relevant circumstances and a prohibition on legislation that allows arbitrary evictions. In Victoria, there is no protection of a right to adequate housing . Further, the protection from arbitrary eviction, which is set out in section 13(a) of the Victorian Charter of Human Rights, is weaker in that it provides only that a person has a right “not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”.
- Enforceability – the clear Constitutional recognition that people whose rights have been infringed (or certain people acting on their behalf or in the public interest) can commence proceedings and seek relief for failure to comply with human rights is a key aspect of South Africa’s human rights protection that remains lacking in Victoria. The current limitation on a person’s ability to commence legal proceedings for non-compliance with Victoria’s Human Rights Charter (under section 39) creates confusion and unnecessary complexity. It undermines the ability of the Charter to provide just and timely remedies for infringements of rights.
These two aspects of South Africa’s human rights protections provide the Court with the ability to make orders that aim to avoid and address homelessness. In Victoria, the ability to do this is much more limited, particularly given that eviction orders are made by the Victorian Civil and Administrative Tribunal, which was found in Director of Housing v Sudi  VSCA 266 not to have jurisdiction to consider human rights issues in eviction proceedings. Further, there is almost no ability to consider “relevant circumstances” in evictions (for example, risk of homelessness, dislocation of families and health implications) in Victoria. These weaker protections mean that arbitrary evictions into homelessness continue to occur in Victoria.
This decision is available online at: http://www.saflii.org/za/cases/ZACC/2012/26.html
Lucy Adams is a Senior Lawyer at the PILCH Homeless Persons’ Legal Clinic