Pheko and Others v Ekurhuleni Metropolitan Municipality (CCT 19/11) [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC) (6 December 2011)

Pheko and Others v Ekurhuleni Metropolitan Municipality (CCT 19/11) [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC) (6 December 2011)

The Constitutional Court held that the Disaster Management Act does not authorise eviction or demolition of homes without a court order. Section 26(3) of the Constitution requires judicial oversight for any eviction or demolition, and the DMA only permits temporary evacuation for the preservation of life, not indefinite removal or destruction of homes. The Municipality's actions in forcibly removing the applicants and demolishing their homes without a court order were unlawful and violated their constitutional rights to housing and dignity. The High Court erred in its interpretation and failed to consider whether the circumstances warranted evacuation under the DMA. The applicants are...

Citation
[2011] ZACC 34
Parties
Applicant: Nthabiseng Pheko; Applicant: Occupiers of Bapsfontein Informal Settlement; Respondent: Ekurhuleni Metropolitan Municipality; Amicus Curiae: Socio-Economic Rights Institute of South Africa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
6 December 2011
Case Number
CCT 19/11
Procedural Posture
Constitutional Appeal / Leave to Appeal Directly to the Constitutional Court; Merits and Remedy
Outcome
Appeal upheld; order of the High Court set aside; Municipality's actions declared unlawful; supervisory relief granted.
Judges
Nkabinde, Mogoeng, Moseneke, Froneman, Jafta, Khampepe, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Eviction Without Court Order, Disaster Management Act, Section 26 Right to Housing, Section 10 Dignity, Municipal Obligations, Supervisory Relief
Constitutional Law Land and Property Civil Procedure Eviction Without Court Order Disaster Management Act Section 26 Right to Housing Section 10 Dignity Municipal Obligations +1 more

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Parties

Nthabiseng Pheko

Applicant

Occupiers of Bapsfontein Informal Settlement

Applicant

Ekurhuleni Metropolitan Municipality

Respondent

Socio-Economic Rights Institute of South Africa

Amicus Curiae

Procedural Posture

Constitutional Appeal / Leave to Appeal Directly to the Constitutional Court; Merits and Remedy

Legal Issues

  1. 1 Whether the Disaster Management Act authorises eviction and demolition of homes without a court order.
  2. 2 Whether the forced removal and demolition of the applicants' homes was lawful under section 26(3) of the Constitution.
  3. 3 Whether the applicants are entitled to restitutionary relief and suitable accommodation.

Ratio Decidendi

The Constitutional Court held that the Disaster Management Act does not authorise eviction or demolition of homes without a court order. Section 26(3) of the Constitution requires judicial oversight for any eviction or demolition, and the DMA only permits temporary evacuation for the preservation of life, not indefinite removal or destruction of homes. The Municipality's actions in forcibly removing the applicants and demolishing their homes without a court order were unlawful and violated their constitutional rights to housing and dignity. The High Court erred in its interpretation and failed to consider whether the circumstances warranted evacuation under the DMA. The applicants are...

Court Disposition

Appeal upheld; order of the High Court set aside; Municipality's actions declared unlawful; supervisory relief granted.

Orders

  • Condonation is granted.
  • Leave to appeal directly to the Constitutional Court is granted.