The Constitutional Court has dismissed an application by the Port Elizabeth municipality, which sought to evict 68 people who have been living in shacks on privately owned land for periods ranging from two to eight years. The decision follows on an appeal by the municipality from the Supreme Court of Appeal which overturned the eviction order handed down by the South Eastern Cape Local Division of the High Court .
The issue concerned the interpretation of section 26(3) of the Constitution which no one may be evicted from their home or have their home demolished without a court order made after considering all the relevant circumstances. It also concerned section six of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act which provides for the circumstances in which a municipality may evict unlawful occupiers. Which circumstances must be taken in their entirety and be both just and equitable.
In a unanimous judgment, Justice Albie Sachs said justice and equity required showing special concern when settled communities or individuals were faced with being uprooted.
"The longer the unlawful occupiers have been on the land, the more established they are on their sites and in the neighbourhood, the more well-settled their homes and the more integrated they are in terms of employment, schooling and social amenities, the greater their claim to the protection of the courts," Sachs said.
Because municipalities must show equal accountability to occupiers and landowners all reasonable steps must be taken to procure a mediated solution before an eviction order is made. In this case the municipality had taken no action for years (some of the residents had lived on the land for 8 years), and then when it did it had acted precipitately to secure their eviction. The municipality's failure to take reasonable steps to provide alternative accommodation or land was an indication of the lack of justice and equability of its actions.
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