Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality and Others

In March 2006, officials from the City of Tshwane, the Department of Home Affairs, and the South African Police Service jointly and without a court order evicted about 100 people living in informal shelters on vacant land in Garsfontein, Pretoria. The occupiers’ shacks, built from salvaged materials, were burned and destroyed, and many belongings lost. Sixteen undocumented immigrants were arrested and deported. The eviction occurred in breach of s 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Tswelopele Non-Profit Organisation and 23 affected occupiers sought urgent relief in the High Court, relying on the mandament van spolie and constitutional rights, asking for restoration of their dwellings and temporary shelter. The High Court dismissed the application on the basis that spoliation relief was unavailable because the property had been destroyed. The applicants appealed to the Supreme Court of Appeal.

The appeal was upheld. The Supreme Court of Appeal set aside the High Court’s order and directed the City of Tshwane and other respondents to provide and construct habitable temporary shelters for the affected occupiers as restitution for the unlawful eviction and destruction of their homes, together with appropriate ancillary relief and costs.

This case is a leading authority on constitutional remedies for unlawful evictions in South Africa. It confirms that courts may craft novel, effective remedies directly under the Constitution when common-law and statutory remedies are inadequate. The judgment underscores the constitutional prohibition on evictions without court orders, emphasises dignity and accountability in state conduct toward vulnerable people, and clarifies that it is not always necessary to adapt traditional common-law remedies such as the mandament van spolie where a distinct constitutional remedy is more appropriate.