Abahlali baseMjondolo Movement SA and Another v Premier of the Province of KwaZulu-Natal and Others

The first applicant (Abahlali baseMjondolo Movement SA) is a voluntary association representing thousands of poor people living in informal settlements in KwaZulu-Natal, primarily around Durban and Pietermaritzburg. These residents are unlawful occupiers without security of tenure or adequate housing. The second applicant is its president. They challenged the constitutional validity of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 6 of 2007 (Slums Act), fearing it would facilitate evictions without meaningful engagement and provision of alternative accommodation. The High Court dismissed their application, holding the Act dealt with housing (a concurrent competence) and was consistent with the Constitution. The applicants sought leave to appeal directly to the Constitutional Court, abandoning their challenge to sections 9, 11, 12 and 13 but maintaining their attack on section 16 of the Act.

• Whether the KwaZulu-Natal Provincial Legislature had competence to enact the Slums Act in light of the division of legislative power between national and provincial spheres
• Whether section 16 of the Slums Act is consistent with section 26(2) of the Constitution (the right of access to adequate housing)
• Whether section 16 is consistent with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act), the national Housing Act, and the National Housing Code
• Whether section 16 permits eviction without reasonable engagement
• Whether section 16 permits eviction other than as a last resort
• Whether the notice mechanism in section 16 is irrational

Leave to appeal granted. Appeal upheld. The order of the High Court was set aside. Section 16 of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 6 of 2007 declared inconsistent with the Constitution and invalid. The first and second respondents ordered to pay the applicants' costs in the High Court and Constitutional Court, including costs of two counsel.

Section 16 of the Slums Act is inconsistent with section 26(2) of the Constitution because it mandates the institution of eviction proceedings against unlawful occupiers without ensuring: (a) meaningful engagement with affected persons; (b) that eviction is a measure of last resort; and (c) consideration of whether the requirements of the PIE Act (just and equitable, public interest) are satisfied. The coercive and mandatory nature of section 16 eliminates the discretion of owners and municipalities not to evict where eviction would be unjust or inequitable. The provision is also irrational and overbroad as it potentially applies to all unlawful occupiers regardless of individual circumstances. Provincial legislation in areas of concurrent competence must comply with constitutional rights and cannot undermine the protective framework established by national legislation giving effect to those rights. A statutory provision cannot be saved by interpretation where doing so requires reading in numerous qualifications that strain the text and violate rule of law requirements that law must be clear and ascertainable.

Yacoob J in dissent observed: (1) The Slums Act establishes a comprehensive strategy for slum elimination involving municipalities, provincial government and property owners through upgrading, relocation, provision of alternative accommodation, and as a last resort, eviction. (2) Section 16 should be read in the context of the entire Act and subject to the Constitution, PIE Act, and national housing legislation. (3) The MEC's power to issue a notice under section 16 is constrained by the purpose of the Act and must be exercised rationally in relation to identified properties that are slums. (4) Owners and municipalities are only obliged to evict if they can establish the requirements of the PIE Act. (5) While the Act is constitutionally compliant, it lacks clarity and is not exemplary legislation – other provinces should take this into account. The majority noted that the COHRE Report on evictions, while documenting serious concerns about unlawful evictions, was not relevant to the interpretive exercise required in this case. The majority emphasized that reading numerous qualifications into legislation offends separation of powers by usurping the legislative function and violates rule of law by rendering law uncertain, particularly where vulnerable people are affected.

This is a landmark housing rights case that protects vulnerable unlawful occupiers from arbitrary eviction. It reinforces that provincial legislation, even in areas of concurrent competence, must comply with the Constitution and cannot undermine constitutional protections. The case affirms the requirements of meaningful engagement and eviction as a last resort established in prior Constitutional Court jurisprudence (Grootboom, Port Elizabeth Municipality, Olivia Road). It demonstrates the limits of interpretive remedies – courts cannot rescue unconstitutional provisions by reading in numerous qualifications that strain the text and violate rule of law requirements of clarity and certainty. The judgment protects the dignity and security of tenure of informal settlement dwellers and reaffirms that housing policy must be human-centered and consultative. It provides important guidance to other provinces contemplating similar legislation and emphasizes that legislation affecting vulnerable people must be clear and not susceptible to arbitrary application.