The applicants were residents of the Bapsfontein Informal Settlement in Ekurhuleni, situated on dolomitic land prone to sinkholes. Following engineering and geological reports over several years warning that the area was unsafe for human settlement, the Ekurhuleni Metropolitan Municipality declared Bapsfontein a local state of disaster under section 55 of the Disaster Management Act 57 of 2002 in December 2010. The Municipality decided to relocate residents to temporary accommodation. Despite resistance from residents and without obtaining a court order, the Municipality forcibly relocated the applicants and demolished their homes in March 2011, using a private security company known as the “Red Ants”. The applicants challenged the lawfulness of their removal and the demolition of their homes, arguing that it constituted an eviction without a court order in violation of sections 26 and 10 of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The High Court dismissed their urgent application, holding that the relocation was lawful under the Disaster Management Act. The applicants then sought leave to appeal directly to the Constitutional Court.
Leave to appeal was granted. The order of the High Court was set aside. The Constitutional Court declared the eviction and demolition of the applicants’ homes unlawful and ordered the Municipality to engage in a lawful process consistent with the Constitution, including meaningful engagement and compliance with section 26(3).
This case is a leading authority on the constitutional limits of state power to remove people from their homes during declared disasters. It affirms that the Disaster Management Act does not override section 26(3) of the Constitution and that evictions, even in the context of disaster management, generally require a court order. The judgment strengthens protections against arbitrary evictions and clarifies the relationship between PIE and emergency powers exercised by municipalities.