CCT42/12

[2013] ZACC 1

2013 (2) SA 613 (CC)

2013 (3) BCLR 271 (CC)

Yacoob J

7 February 2013

http://hdl.handle.net/20.500.12144/3685

Application for leave to appeal against an order of the high court restraining the occupier applicants from obstructing the municipality’s contractor from executing its duties in terms of an agreement with the municipality. The issue was whether the municipality acted lawfully in authorising construction work on the property occupied by the applicants without obtaining a court order for the eviction of the applicants. The Court held that section 26(3) of the Constitution by necessary implication guarantees to any occupier peaceful and undisturbed occupation of their homes unless a court order authorises interference. The Court held that an eviction does not have to consist solely in the expulsion of someone from their home. It can also consist in the attenuation or obliteration of the incidents of occupation. The Court further held that the work authorised by the municipality did interfere with the applicants’ peaceful and undisturbed occupation of their homes. The Court found that the applicants had a clear right not to be disturbed in the peaceful occupation of their homes; they were suffering irreparable harm; and no alternative remedy was available to them. The order of the High Court was set aside and the first and second respondents were interdicted from performing or causing to be performed any construction work on the properties on which the applicants’ homes are situated, without the applicants’ written consent or a court order. Judgment: Yacoob J (unanimous).