CCT23/12

[2012] ZACC 26

2013 (1) SA 323 (CC)

2013 (1) BCLR 68 (CC)

Froneman J

9 October 2012

http://hdl.handle.net/20.500.12144/3673

Applcation for leave to appeal to the CC against the judgments (22 September 2011, 23 September 2011, 5 December 2011) and orders (22 September 2011, 23 September 2011 and 3 October 2011) made by North Gauteng High Court, Pretoria, under case no. 53128/11

Application for leave to appeal against refusal of an application for restoration of residence rights (spoliation) by the North Gauteng High Court, Pretoria (High Court) following a two week discontinuation of the electricity and water supply to an apartment block in Pretoria (Schubart Park), which led to a number of residents embarking on violent protest action. Subsequently, the law enforcement authorities removed all the residents from Schubart Park and restricted access to the complex. The High Court found on 22 September 2011 that the building was unsafe and ordered the residents and the City of Tshwane (City) to engage and reach an amicable agreement on temporary shelter and alternative housing pending the outcome of the enquiry into the possible refurbishment of the complex. The parties were unable to reach a settlement. The High Court made a final order on 3 October 2011 requiring the City to provide temporary housing until the complex had been refurbished. The Court refused the residents’ application for restoration of their residence rights (spoliation). This Court held that the dismissal of the residents’ application for immediate restoration of their homes could not serve the purpose of an eviction court order required under section 26(3) of the Constitution. The High Court order should have made it clear that it operated merely temporarily and that the residents were entitled to return to their homes once it was safe to do so. The High Court orders were set aside and the Court declared that the orders did not constitute an order for the residents’ eviction as required by section 26(3) of the Constitution. Hence, the residents were entitled to occupation of their homes as soon as reasonably possible. To give effect to this, the Court directed the residents and the City to engage meaningfully and to report to the High Court on the progress. Further, the City was ordered to pay the residents’ costs in the High Court and this Court. Judgment: Froneman J (unanimous).