CCT12/09

[2009] ZACC 31

2010 (2) BCLR 99 (CC)

Moseneke DCJ Majority judgment

Yacoob J separate judgment

14 May 2009

14 October 2009

http://hdl.handle.net/20.500.12144/3576

Application for leave to appeal against a judgment of the KwaZulu-Natal High Court, Durban: Abahlali baseMjondolo Movement SA and Another v Premier, KwaZulu-Natal, and Others 2009 (3) SA 245 (D); 2009 (4) BCLR 422 (D&CLD)

Application on both Bill of Rights and provincial competence grounds for a declaration that the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 6 of 2007 is invalid, alternatively that section 16 of the Act is unconstitutional. The Court held that the subject matter of the Act is housing and that it falls within the concurrent competence of national and provincial legislature. Therefore, the Act as a whole is not invalid. The Court however found that section 16 of the Act is unconstitutional because it compels an owner of a building or land, or the municipality within whose jurisdiction the building or land is located, to institute eviction proceedings against unlawful occupiers even in circumstances where the requirements of Prevention of Illegal Evictions and Unlawful Occupations Act 19 of 1998, which protects unlawful occupiers against arbitrary evictions, may not be met. It also found that the power given to the MEC to issue a notice is overbroad and irrational because it applies to any unlawful occupier on any land or in any building even if it is not a slum and was not properly related to the purpose of the Act being the elimination or prevention of slums. The majority therefore granted an order declaring section 16 of the Act inconsistent with section 26 of the Constitution and invalid. Majority: Moseneke DCJ (Langa CJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O?Regan J, Sachs J, Skweyiya J and Van der Westhuizen J concurring). Dissent: Yacoob J