Pheko and Others v Ekurhuleni Metropolitan Municipality

The applicants were residents of the Bapsfontein Informal Settlement situated on 25 hectares of privately owned land within the Ekurhuleni Metropolitan Municipality. Between 2004 and 2009, the Municipality commissioned multiple engineering reports which identified dolomite instability in the area and development of sinkholes, recommending that the area be avoided for mass housing. In 2005, approximately 150 families were relocated, but new occupiers subsequently erected shelters. On 10 December 2010, the Municipality declared Bapsfontein a "local state of disaster" under section 55(1) of the Disaster Management Act 57 of 2002. On 17 February 2011, a directive was issued requiring evacuation of all residents to temporary shelter. When residents resisted, the Municipality on 5 March 2011 enlisted "Red-Ants" (private security contractors) to forcibly relocate the applicants and demolish their homes without a court order. The applicants had been informed of the relocation at meetings in December 2010 and were relocated to N12 Highway Park as temporary accommodation. The applicants challenged this action in the North Gauteng High Court, which dismissed their application, finding the relocation lawful under the DMA.

• Whether the forcible removal and demolition of the applicants' homes without a court order was lawful
• Whether section 55(2)(d) of the Disaster Management Act authorizes eviction and demolition without a court order
• Whether the Municipality's actions violated section 26(3) of the Constitution, which prohibits eviction or demolition without a court order made after considering all relevant circumstances
• Whether the matter was moot given that the removal had already occurred
• Whether the circumstances warranted evacuation under the Disaster Management Act
• Whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 applied
• What is appropriate relief in the circumstances

1. Condonation granted. 2. Leave to appeal directly to the Constitutional Court granted. 3. Appeal upheld. 4. Order of the North Gauteng High Court set aside. 5. Declaration that the removal, demolition and relocation by the Municipality were unlawful. 6. Municipality ordered to identify land in the immediate vicinity of Bapsfontein for relocation and engage meaningfully with applicants. 7. Municipality to ensure amenities and basic services no less than those provided after March 2011 relocation. 8. Municipality to file report by 1 December 2012 regarding compliance with housing provision. 9. Applicants given 15 days to respond to report. 10. Municipality to pay applicants' costs in this Court and High Court including costs of two counsel.

Section 55(2)(d) of the Disaster Management Act, properly interpreted in light of section 26(3) of the Constitution, does not authorize eviction or demolition of homes without a court order. The section only permits temporary evacuation to shelters in genuine emergencies necessary for preservation of life. "Evacuation" means temporary removal with possibility of return, not permanent eviction and demolition. Section 26(3) creates a constitutional right not to be evicted or have one's home demolished without a court order made after considering all relevant circumstances, and no legislation may permit arbitrary evictions. For disaster management powers to be lawfully invoked, there must be a genuine, urgent emergency requiring immediate action to preserve life. Where, as here, the situation was known for years, no loss of life occurred, and no sudden emergency arose, the forcible removal and demolition without a court order violates section 26(3) and section 10 (dignity) of the Constitution. Municipalities have obligations under sections 152, 153 and the Housing Act to provide adequate housing and may not evade these obligations by misusing disaster management powers.

The Court noted it was not necessary to decide whether the forced removal was consensual or whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) applied in the circumstances. The Court commented that if the purpose of the DMA were to authorize demolition and eviction without a court order, it would have said so explicitly. The Court observed that J&W's second report illustrated that no loss of life had been reported as a result of sinkholes since the early 1970s, despite people having lived at Bapsfontein for decades. The judgment noted that SERI's submissions regarding whether a constitutional right is capable of being waived were not addressed as unnecessary to the decision. The Court indicated that generally it is preferable for litigants to approach the Supreme Court of Appeal before the Constitutional Court, but this is merely one consideration in assessing the interests of justice, not a determinative factor.

This case establishes critical constitutional protections against forced removals even in disaster situations. It provides authoritative guidance on the interpretation of the Disaster Management Act and its relationship with section 26(3) of the Constitution. The judgment clarifies that "evacuation" under disaster management legislation does not authorize eviction or demolition without a court order. It reaffirms that section 26(3) creates a bright-line rule requiring a court order before anyone can be evicted or have their home demolished, regardless of the circumstances, except in genuine emergencies requiring immediate evacuation. The case emphasizes that constitutional rights cannot be circumvented by invoking disaster management powers where no sudden emergency exists. It also demonstrates the Court's willingness to grant supervisory relief to ensure municipalities fulfill their constitutional housing obligations. The judgment is particularly significant for protecting vulnerable informal settlement residents from unlawful state action and reinforces the principles of dignity, meaningful engagement, and procedural fairness in housing matters.