Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another

Residents of the Schubart Park apartment complex in Pretoria were removed from their homes following violent protests and fires on 21 September 2011. Police and municipal authorities denied residents access to their apartments, initially removing occupants of Block C and later those in Blocks A and B. Water and electricity had already been disconnected. Approximately 3 000–5 000 people were left homeless or placed in temporary accommodation. Residents urgently approached the High Court seeking restoration of occupation (spoliation). The High Court dismissed the request for immediate re-occupation on safety grounds but ordered temporary accommodation and implemented a municipal tender providing for temporary housing, storage of belongings, and refurbishment or redevelopment of Schubart Park, with eventual relocation back if feasible. Leave to appeal was refused by lower courts, and the residents approached the Constitutional Court.

Leave to appeal was granted. The Court upheld the High Court’s refusal of immediate re-occupation due to safety concerns and declined to set aside the tender implementation order. The application to introduce further evidence was dismissed. No order was made allowing immediate return to Schubart Park.

The case clarifies that spoliation proceedings cannot be used to effect or justify permanent eviction and reinforces the protection against eviction under section 26(3) of the Constitution. It delineates the boundary between common-law possessory remedies and constitutional relief under section 38, especially in emergency housing situations, and confirms that courts must avoid orders that result in de facto evictions without proper constitutional and statutory processes.