Landmark South African ruling redefines eviction rights after unlawful removals

The Supreme Court of Appeal (SCA) heard a landmark case on 30 May 2007 involving the unlawful eviction of 100 individuals from vacant land. The group, represented by Tswelopele Non-profit Organisation, had occupied the site for at least 18 months before being forcibly removed without a court order. The eviction was conducted by a joint operation including the City of Tshwane, the Department of Home Affairs, and the South African Police Service. Local community policing forum members were also present. During the operation, makeshift homes were demolished and burned, personal belongings were destroyed, and 16 undocumented immigrants were arrested and deported.

Tswelopele brought an urgent application to the High Court on behalf of the occupiers. The court dismissed the case, citing the precedent set in Rikhotso v Northcliff Ceramics (Pty) Ltd. On appeal, the respondents admitted the eviction was unlawful and issued a formal apology.

The SCA addressed whether the mandament van spolie could apply when property had been destroyed. It ruled that this remedy was not applicable in such cases. However, the court found that section 38 of the Constitution allowed for the development of new remedies to protect fundamental rights. It ordered the respondents to rebuild shelters for the occupiers using sufficient materials to provide habitable accommodation. The site chosen had to comply with the procedural safeguards of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). The case set a significant precedent by recognising that strict adherence to common law remedies may not suffice when fundamental rights are violated. The court’s decision also demonstrated a willingness to create transformative remedies under constitutional provisions. The respondents were required to ensure the occupiers received proper shelter and legal protections.