Itireleng evictions challenged in Constitutional Court

On Tuesday, 13 September 2011 the Constitutional Court will hear an appeal brought by Lawyers for Human Rights on behalf of the occupants of two neighbouring portions of the farms Mooiplaas and Skurweplaas in Tshwane. The two matters were joined by the Constitutional Court and will be heard simultaneously and on an expedited basis.

At the centre of the dispute is the Itireleng Informal Settlement, which is located on a small portion of land, previously expropriated by the City of Tshwane for the accommodation of the Itireleng residents. Over time the population of this settlement grew and the settlement became severely overcrowded. The employment opportunities of major urban areas and the lack of affordable accommodation close to the city centres contribute towards the phenomenon of so-called backyard dwellers.

In August 2009 the Mayor of the City of Tshwane expressed the need for the temporary allocation of land, next to the Itireleng informal settlement, on which people could build structures until such time as the area could be declared a residential area. The backyard dwellers of Itireleng informal settlement shortly thereafter moved out of the Itireleng informal settlement and onto the neighbouring properties.

An eviction application was brought by the property owners and the City of Tshwane was joined as a party to the proceedings. During the course of the hearing, no arrangements or consideration was given to where the occupiers could be accommodated upon eviction. Despite this an eviction order was granted and the occupiers were forcibly removed. With no alternatives and having been rendered homeless the occupiers simply moved onto the neighbouring property of Skurweplaas. 

An application for the occupiers’ eviction from this property was brought once again. Although the court was aware that they had been evicted from the neighbouring property of Mooiplaas and undisputed evidence that if evicted the occupiers would be left homeless and be forced to illegally occupy elsewhere, the court granted an eviction order.

The reality is that this scenario is common and results in poor and vulnerable residents moving from one piece of land to another after repeatedly being evicted by court orders. This causes social upheaval and serves as a major cause of homelessness among urban poor. 

LHR approached the Constitutional Court after leave to appeal was refused by the Supreme Court of Appeal. LHR will argue that evictions which will result in homelessness should not generally be permitted. A municipality has a duty to report to the court what steps can be taken to prevent homelessness and a court must consider this when determining whether an eviction would be just and equitable.

The property rights of land owners are important but must be balanced with the rights and needs of those without a home. Municipal and government authorities must take an active role and where necessary compensate land owners until such time as a permanent plan can be put in place. The manner in which a court order is enforced should also comply with the Constitution. The North Gauteng High Court, when granting the eviction order, failed to apply the applicable case law and failed to strike the correct balance between the various rights and obligations. 

LHR would like to express its gratitude to Legal Aid South Africa for its ongoing financial support of this and other cases. 

For more information, please contact:

Jacob van Garderen                                                      Louise Du Plessis

National Director                                                              Attorney: Land and Housing Unit

Lawyers for Human Rights                                            Lawyers for Human Rights

012-320-2943 / 082-820-3960                                      012 320 2943 / 082-346-0744