Pheko and Others v Ekurhuleni Metropolitan Municipality and Others (No 3)

The applicants were 777 occupiers of the Bapsfontein Informal Settlement who were forcibly removed from their homes by Ekurhuleni Metropolitan Municipality after the area was declared a disaster zone. Their properties were demolished and they were relocated to a distant area. The applicants successfully challenged this conduct in the Constitutional Court in Pheko I (2012), where the Court declared the removal, demolition and relocation unlawful and ordered the Municipality to identify suitable land in the immediate vicinity of Bapsfontein for relocation, engage meaningfully with the applicants, provide amenities no less than those previously provided, and file reports with the Court. Following this order, several expert reports were filed by both parties regarding suitable relocation sites. The Municipality identified land 20-30 km away that was dewatered dolomite, state-owned and zoned residential. The Mayfield Community (part of the applicants) identified land closer to the original settlement but the Municipality contended this land was dolomitic and prohibitively expensive to service. Technical disputes arose regarding geological suitability, costs, and whether identified land was in the "immediate vicinity" as ordered. This interlocutory application concerned whether the Constitutional Court should discharge its supervisory jurisdiction and refer the matter to the High Court.

• Whether the Constitutional Court should discharge the declaratory component of its order in Pheko I declaring the Municipality's conduct unlawful
• Whether the Constitutional Court should discharge the structural interdict component of its order requiring identification of land, meaningful engagement and reporting
• Whether the matter should be referred to the High Court or a fact-finding commission should be appointed
• What the appropriate terms of referral to the High Court should be
• Whether costs including expert witness fees should be determined by the Constitutional Court or referred to the High Court
• The appropriate approach to supervising structural interdicts involving complex technical disputes

1. Condonation granted for late filing of expert report. 2. Paragraphs 6 to 8 of the order in Pheko I discharged (structural interdict component). 3. Matter transferred to High Court, Gauteng Division, Pretoria to: (a) determine issues relating to identification of suitable alternative land in the vicinity of Bapsfontein for the Mayfield Community; (b) supervise relocation of the Mayfield Community; and (c) supervise the housing project for the N12 Highway Park Community. 4. Judge President requested to allocate the matter to a Judge or Judges for case management and expedient hearing. 5. Municipality ordered to pay applicants' costs including costs of two counsel and qualifying fees of Professor Mark Oranje. 6. Registrar directed to send copy of judgment to the High Court Registrar.

The binding legal principles established are: (1) Declaratory relief establishing that constitutional rights have been violated should not be discharged even when structural interdict components are referred elsewhere, as such declarations provide the legal foundation for ongoing constitutional obligations and their discharge would prejudice applicants and imperil effective relief. (2) The Constitutional Court may discharge the structural interdict component of its orders and refer supervisory jurisdiction to the High Court where complex technical and factual disputes arise that require oral evidence and extensive examination of expert testimony that cannot be resolved on affidavits. (3) Bifurcated supervision whereby both the Constitutional Court and High Court exercise oversight over different aspects of the same matter is impractical and impermissible as it results in piecemeal consideration of issues. (4) In determining whether to refer matters involving structural interdicts, courts should consider whether the issues are of a technical nature requiring oral evidence of expert witnesses, and whether the Constitutional Court would be sitting as a court of first and final instance on conflicting expert evidence at an interlocutory stage. (5) When parties agree to referral but propose different terms, the court should limit the terms of referral to matters genuinely requiring determination by the receiving court, focused on the structural relief components rather than expanding the scope beyond what was pleaded.

The Court made several non-binding observations: (1) It noted that supervisory orders arising from structural interdicts ensure courts play an active monitoring role in enforcement and guarantee commitment to constitutional values of accountability, responsiveness and openness in democratic governance. (2) The Court observed that structural interdicts are by nature much more interventionist remedies than declaratory relief. (3) Justice Nkabinde noted that section 172(1)(b) of the Constitution confers broad remedial powers on the Constitutional Court and section 38(1) of the Superior Courts Act entitles the Court to refer matters for enquiry and report to a referee with the parties' consent. (4) The Court acknowledged that while South African law makes provision for appointment of referees/fact-finding commissions (similar to special masters in US constitutional litigation), the Constitutional Court had not previously utilized this mechanism, though it remained open to innovative remedies where necessary as indicated in Fose. (5) The judgment emphasized the importance of full ventilation of issues before the appropriate forum and that courts should avoid making orders that would result in parties being deprived of the opportunity to present oral evidence on disputed technical matters.

This case provides important guidance on the Constitutional Court's exercise of supervisory jurisdiction following structural interdicts. It demonstrates the Court's willingness to discharge its own supervisory jurisdiction and refer matters to the High Court where complex technical and factual disputes arise that require oral evidence and are better suited to determination by a lower court. The judgment clarifies that declaratory relief establishing constitutional violations should be maintained even when structural components are discharged, as they provide the foundation for ongoing constitutional obligations. The case illustrates the flexible and adaptive approach to remedies necessary in socio-economic rights litigation, particularly housing rights cases under section 26. It also demonstrates the distinction between declaratory relief (which remains binding) and structural interdicts (which may be transferred for more appropriate supervision). The judgment reinforces that courts must ensure effective relief for constitutional violations while being pragmatic about which court is best placed to supervise implementation of complex remedies.