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

Schubart Park was a residential complex in Pretoria consisting of four high-rise blocks, initially built in the 1970s for civil servants. By September 2011, the buildings had deteriorated significantly, and approximately 700 families resided in blocks A, B and C. About 10 days before 21 September 2011, water and electricity supply was stopped. On 21 September 2011, residents protested about living conditions by burning tyres and throwing objects. Two localised fires broke out in block C. Police cordoned off the area, removed residents of block C from the building, and denied access to other residents returning from work. Residents in blocks A and B were removed during the following week. By late September, between 3000-5000 people were on the streets or in temporary shelters. On the evening of 22 September 2011, the applicants brought an urgent application in the High Court seeking to return to their homes. The application was dismissed but the City was ordered to provide temporary accommodation. The City made a tender offering temporary accommodation with eventual return to Schubart Park within 18 months if refurbishment was possible, or alternative permanent accommodation if not.

• Whether the residents were entitled to a spoliation order for restoration to their homes
• Whether the High Court orders were appropriate relief under section 38 of the Constitution
• Whether the dismissal of the application for re-occupation constituted an unlawful eviction under section 26(3) of the Constitution
• What order is justified when residents seek re-occupation of their homes after removal in a situation of urgency
• Whether impossibility was established as a defence to the spoliation claim
• Whether the tender implementation order provided adequate constitutional protection

Leave to appeal granted. Appeal upheld. Orders of the North Gauteng High Court dated 22 September 2011, 23 September 2011 and 3 October 2011 set aside. Declaratory order issued that the High Court orders did not constitute an eviction order under section 26(3) and that residents are entitled to occupation of their homes as soon as reasonably possible. City of Tshwane Metropolitan Municipality and applicants ordered to engage meaningfully on: identification of residents; date of restoration; manner of City's assistance; payment for services; alternative accommodation; and dispute resolution method. Parties ordered to report to High Court by 30 November 2012 on alternative accommodation plans and by 31 January 2013 on agreements reached. City of Tshwane ordered to pay applicants' costs in the Constitutional Court and High Court, including costs of two counsel where applicable.

1. Spoliation proceedings, whether resulting in restoration or not, should not serve as the judicial foundation for permanent dispossession (eviction) in terms of section 26(3) of the Constitution. 2. Where urgency dictates that immediate restoration will not be ordered in a spoliation application involving removal from homes, it must be made clear (preferably by declaratory order) that the refusal to order re-occupation does not purport to lay the foundation for a lawful eviction under section 26(3). 3. Such urgent orders must be temporary only and subject to revision by the court. 4. Any order that would effectively constitute an eviction must comply with section 26(3) of the Constitution, which requires a court order made after considering all relevant circumstances. 5. Section 38 of the Constitution allows courts to grant appropriate relief to vindicate constitutional rights, but such relief must address the wrong, deter future violations, be capable of compliance, and be fair to all affected parties. 6. In matters involving removal from homes, municipalities and residents must engage meaningfully, treating residents with dignity and as equal participants entitled to respect, not as "obnoxious social nuisances". 7. The common law remedy of spoliation retains its "possessory focus" and is distinct from constitutional relief under section 38, though both may be considered in appropriate cases involving deprivation of homes.

The Court made several important observations: (1) Urgent orders refusing immediate restoration to homes will be rare, as legislation exists providing for timeous removal from unsafe buildings, temporary evacuation in disaster situations, and eviction in the normal course. (2) The City's attempt to justify removal under various legislation until oral argument was concerning and lent credence to assertions that the City used the crisis as an excuse to evict residents without complying with law. (3) Engagement will only work if both sides act reasonably and in good faith - residents must not adopt intransigent attitudes or make non-negotiable unreasonable demands, and must be pro-active rather than purely defensive. (4) Civil society organizations should facilitate the engagement process. (5) Secrecy is counter-productive to engagement and inimical to the constitutional value of openness. (6) In eviction proceedings by municipalities, provision of a complete and accurate account of the engagement process is ordinarily essential. (7) Municipalities have a constitutional duty to systematically improve access to housing and must attend to these duties with insight and a sense of humanity, treating those in their jurisdiction with respect. (8) The Court noted that residents' inherent right to dignity entitled them to be treated as equals in the engagement process, particularly given their legal entitlement to return to their homes absent a court eviction order.

This case is significant in South African jurisprudence for clarifying the interaction between common law spoliation remedies and constitutional rights under sections 26(3) and 38 of the Constitution. It established that spoliation proceedings cannot serve as the foundation for permanent eviction without compliance with section 26(3). The judgment reinforced and expanded the jurisprudence on meaningful engagement between municipalities and residents in housing matters, emphasizing that engagement must treat residents with dignity and as equal participants. It clarified that urgent orders refusing immediate restoration must be temporary and subject to court revision, and should preferably include a declaratory order that the refusal does not constitute a lawful eviction. The case demonstrates the Court's willingness to craft innovative remedies under section 38 to vindicate constitutional rights while balancing competing interests in emergency situations. It provides important guidance on the constitutional obligations of municipalities in dealing with residents, particularly vulnerable communities, in housing and eviction matters.