THE Constitutional Court on Tuesday upheld an appeal by residents of Schubart Park who wanted to return to the building they were removed from without a court order.
The City of Tshwane removed more than 1,000 residents from the building in September last year following a protest sparked by the disconnection of water and electricity supply. An application by the residents for an order to return to the building was dismissed by the North Gauteng High Court on September 22 last year.
The high court also issued two other orders, the first of which directed the city and the residents to take further steps to try to reach agreement on unresolved issues. The final order on October 3 was a tender by the city to provide temporary dwellings to residents who were forced to vacate the Schubart Park block of flats.
The Constitutional Court, in a decision issued by Justice Johan Froneman in which all judges concurred, set aside the high court orders and ruled that those orders did not constitute an order for the eviction of residents. The court also declared that the residents were entitled to occupation of their homes as soon as was reasonably possible.
The court ordered the city and the residents to engage meaningfully with a view to reaching an agreement on the identification of residents who were in occupation of the complex before the removals started on September 21, and the date when the residents’ occupation of Schubart Park would be restored.
Judge Froneman said residents sought an order in the high court for restoration on the ground that they were despoiled of possession of their homes. He said this immediately added the dimension of section 26 (3) of the constitution to what would otherwise have been a normal spoliation application.
Section 26 (3) states 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.
"It is the interplay between the ordinary requirements of spoliation and the demands of section 26(3) of the constitution that is at issue here," Judge Froneman said.
Judge Froneman said spoliation proceedings, whether they resulted in restoration or not, should not serve as the judicial foundation for permanent dispossession.
"Neither the dismissal order of September 22 2011 nor the later tender implementation order could serve as justification for the eviction of the applicants from their homes for the purposes of section 26(3) of the constitution."
Judge Froneman said the initial order by the high court on September 22 was made under very difficult circumstances and that the factual assessment made by the judge could not be second-guessed.
"The important question, however, is whether that immediate order pronounced in a final way upon the lawfulness of the applicants’ removal from their homes. If it did, it was legally incompetent."
Judge Froneman said where urgency dictated that immediate restoration would not be ordered, it must be made clear by the court that the refusal to order reoccupation did not purport to lay the foundation for a lawful eviction.
"The order must be temporary only, and subject to revision by the court. Urgent orders of this kind will be rare: there is legislation providing for the timeous removal of people living in unsafe buildings, for temporary evacuation in disaster situations and for eviction in the normal course," Judge Froneman said.