Residents of Joe Slovo Community, Western Cape v Thubelisha Homes

This case involved approximately 20,000 residents of the Joe Slovo informal settlement in the Western Cape. On 10 June 2009, the Constitutional Court issued a detailed supervised eviction order requiring residents to vacate the settlement and relocate to temporary residential units (TRUs) according to a specific timetable, subject to numerous conditions. The eviction was to facilitate a housing development project under the N2 Gateway Housing Project. The order contemplated relocation beginning in August 2009 and ending in June 2010. However, the government failed to implement the order. Instead of engaging on the relocation timetable, the government commissioned expert studies and eventually proposed an in situ upgrading model that would develop the area without mass relocation. By November 2009, the operation of the eviction order had been suspended. The government confirmed its intention to undertake in situ upgrade, meaning residents would receive permanent housing on the same site without temporary relocation to TRUs. The applicants sought discharge of the eviction order on the basis that the circumstances that justified it had fundamentally changed.

• Whether the Constitutional Court has the power to discharge (not merely vary) an order it previously made
• Whether it is just and equitable to discharge an eviction order made under section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) when the circumstances that justified the order have changed
• Whether the principle of finality in litigation prevents discharge of a final court order in exceptional circumstances
• What constitutes exceptional circumstances warranting discharge of an eviction order affecting thousands of people

Paragraphs 4 to 21 of the order of the Constitutional Court made on 10 June 2009 were discharged. Paragraph 22 (the costs order requiring the government to pay 50% of the applicants' costs) was retained and not discharged.

The Constitutional Court has the power to discharge (not merely vary) an order it previously made where exceptional circumstances and considerations of justice and equity require it. An eviction order made under section 6 of the PIE Act on the basis that it is just and equitable can be discharged when: (1) the circumstances that justified the original order have fundamentally changed; (2) there is no intention to execute the order as granted; (3) the order cannot be executed without substantial amendment; (4) the order affects a large number of vulnerable people; and (5) continuing the order would no longer be just and equitable. Where an eviction order contemplated relocation to temporary accommodation but the government has adopted an in situ development model that does not require such relocation, and the order has been suspended for an extended period with no steps taken to implement it, exceptional circumstances exist warranting discharge of the eviction order. The power to discharge is not wide and should be exercised sparingly, requiring something more than merely a change in circumstances - it requires exceptional circumstances that render the continuation of the order unjust and inequitable.

The Court made several significant observations: (1) While the Court was prepared to assume that paragraph 21 of the original order (permitting approach to Court for amendment, supplementation or variation) might be interpreted to authorize discharge, it was not necessary to proceed along that route. (2) The Court noted that there is a fundamental difference between variation and rescission of orders, requiring that orders should not be discharged lightly. (3) The Court observed that common sense dictates there would be illogical if a court could vary an order when justice and equity require but could not discharge it in appropriate circumstances. (4) The Court commented that the original supervised eviction order contemplated relatively prompt execution (within about two months), and did not contemplate commencement of execution in excess of a year and a half after being made, which is understandable given that the justice and equity finding was made in dynamic, shifting circumstances. (5) The Court noted that even if the order applied to recalcitrant residents who did not qualify for housing, complex proceedings before the Court would be almost inevitable to resolve disputes, and the potential delay would not be avoided by keeping the order in place. (6) The Court observed that a change in its composition does not create difficulty as the Court's jurisdiction must be exercised over matters before it regardless of changes in composition, citing Chonco 3.

This case is significant in South African constitutional and administrative law for several reasons: (1) It establishes that the Constitutional Court has the power to discharge (not merely vary) its own orders in exceptional circumstances where justice and equity require it, extending the principles in Zondi v MEC. (2) It confirms that eviction orders made under the PIE Act and section 26(3) of the Constitution must remain just and equitable, and can be discharged when the factual circumstances that justified them fundamentally change. (3) It demonstrates the Court's supervisory role in eviction cases and its willingness to respond to changed circumstances, particularly in cases affecting thousands of vulnerable people. (4) It shows that the principle of finality in litigation is not absolute and must yield in exceptional circumstances, particularly in constitutional matters involving socio-economic rights. (5) It provides guidance on when exceptional circumstances exist: where there is no intention or ability to execute an order, circumstances have fundamentally changed, and continuing the order would be unjust to vulnerable people. (6) It reinforces the dynamic nature of just and equitable determinations in eviction cases and the importance of meaningful engagement between parties.