amicus curiae - Schubart Park - difference between 'evacuation' and 'eviction' of occupiers - Constitutional Court

SERI was admitted as amicus curiae in the Schubart Parkcase, in which residents of the Schubart Park council flats in Pretoria - represented by Lawyers for Human Rights (LHR)- are challenging their forced 'evacuation' from the building undertaken by the City of Tshwane Metropolitan Municipality ('the City'). The occupiers were 'evacuated' after a localised fire broke out in one of the three occupied block of flats. Once it became clear to the occupiers that the City had no plans to reinstate their occupation of the properties, they launched an urgent application in the North Gauteng High Court, seeking an order directing the City to restore their occupation of the properties. Prinsloo J declined granting an order allowing the occupiers to go back to the properties, thus the occupiers have applied for leave to appeal to the Constitutional Court. The hearing was set down for 23 August 2012.

SERI's amicus submission asserts that none of the authorities relied on by the City - the Disaster Management Act 57 of 2002, the City's Fire By-Laws and the National Building Regulations and Building Standards Act 103 of 1977 - actually authorised it to remove the residents of Schubart Park and to refuse them to re-enter the building. The submission also examines:

  • the relevance of the administrative common law rules relating to the exercise of power for ulterior motives or purposes, and their application to the present case;
  • the nature and application of the principle of constitutionality "appropriate" and "effective" relief as set out in Fose v Minister of Safety and Security 1997 (3) SA 786 (A);
  • the scope and application of section 26(3) of the Constitution, in particular whether it applies to the facts of this case and whether, if it does, the enquiry carried out by Prinsloo J was reconcilable with its requirements; and
  • the relevance of the fact that the City of Tshwane is the owner of the property from which it purported to 'evacuate' the applicants from their homes.

SERI briefed Stuart Wilson and Irene De Vos as counsel in this application. SERI was directed to file written submissions before 31 July 2012, and the case was heard in the Constitutional Court on 23 August 2012.

On 9 October 2012, judgment was handed down and the Constitutional Court upheld the leave to appeal. Froneman J (in a unanimous judgment) declared that "the High Court orders did not constitute an order for the residents’ eviction as required by section 26(3) of the Constitution and that the residents are entitled to occupation of their homes as soon as is reasonably possible." He ordered that the applicants and the City of Tshwane Metropolitan Municipality must, through their representatives, engage meaningfully with each other in order to give effect to this declaratory order. The parties must report to the High Court by 30 November 2012 on what plans have been agreed upon to provide alternative accommodation to residents.

  • Constitutional Court judgment (9 October 2012) here. Media summary of judgment here.
  • Heads of argument (3 August 2012) here.
  • Practice note (3 August 2012) here.
  • Notice of Motion (13 July 2012) here.