Pontsho Doreen Motswagae and Fourteen Others v Rustenburg Local Municipality and Another

Fifteen applicants, including single women, occupied homes on land owned by the North West Province. The buildings were dilapidated and earmarked for redevelopment since 2004. The Rustenburg Local Municipality held various meetings with community representatives but could not obtain full consensus on the development plan. A few residents, including the applicants, disagreed and refused the municipality's offer of alternative accommodation. Despite this, on 19 April 2009, a service provider employed by the municipality brought a bulldozer onto the property and excavated land immediately adjacent to the outer wall of the first applicant's home, exposing the foundations. The applicants protested and requested the soil be replaced. Some refilling occurred but excavation work resumed on 26 May 2009. The applicants then sought an interdict in the North West High Court to prevent unlawful disturbance of their peaceful possession. The municipality counter-applied for an order restraining the applicants from obstructing construction work, relying on its constitutional obligation to provide housing.

• Whether section 26(3) of the Constitution confers a right not to be disturbed in peaceful occupation and possession of one's home without a court order
• Whether the premises occupied by the applicants could be regarded as their homes within the meaning of section 26(3)
• Whether the conduct authorized by the municipality resulted in unlawful interference with the applicants' right to peaceful occupation
• Whether the municipality's conduct could be regarded as reasonable absent a court order ejecting the applicants
• Whether the municipality was entitled to rely on servitudinal rights to enter and perform construction work without consent or a court order

1. Leave to appeal was granted. 2. The appeal was upheld. 3. The order of the North West High Court, Mahikeng (case number 1413/2009) was set aside. 4. The first and second respondents and all persons acting under their authority were interdicted and restrained from performing or causing construction work on the properties where the applicants' homes are situated without the applicants' written consent or a court order. 5. The Rustenburg Local Municipality was ordered to pay the applicants' costs in the North West High Court, the Supreme Court of Appeal, and the Constitutional Court, including costs of two counsel where employed.

Section 26(3) of the Constitution by necessary implication guarantees peaceful and undisturbed occupation of homes absent a court order authorizing interference. An eviction includes not only physical expulsion but also the attenuation or obliteration of the incidents of occupation. Any substantial interference with peaceful occupation of a home by a municipality or property owner requires either consent or a court order, regardless of whether the interference is intended to facilitate the fulfillment of housing obligations under sections 26(1) and (2) of the Constitution. Self-help by state organs in housing matters is incompatible with the rule of law. Common law servitudinal rights to enter property must be exercised civiliter modo and do not authorize non-consensual intrusive construction that substantially interferes with occupation. Unconstitutional conduct cannot qualify as reasonable conduct in the context of housing provision.

The Court noted that the applicants advanced arguments that as single women under apartheid they were denied housing ownership rights that men would have enjoyed, and suggested they should be regarded as owners with upgraded tenure security. The Court also noted arguments concerning non-compliance with provisions of the National Housing Code. The Court found it unnecessary to address these arguments given its conclusions on the main constitutional issues. The Court observed that the municipality's offer of alternative accommodation was evidence that it knew the development would affect peaceful occupation, and inferred this suggested an attempt to achieve "back door" eviction. The Court referenced international law instruments including Article 17.1 of the ICCPR (protecting against arbitrary interference with one's home) and Article 11.1 of the ICESCR (recognizing the right to adequate housing), along with UN CESCR General Comments 4 and 7, indicating these support the right to live in security, peace and dignity and protection against forced evictions.

This case is a landmark decision on housing rights and eviction law in South Africa. It establishes that section 26(3) of the Constitution protects not only against physical eviction but also against any substantial interference with peaceful occupation of one's home. The judgment clarifies that municipalities and other state organs cannot circumvent constitutional eviction protections by engaging in conduct that constructively amounts to eviction. It reinforces the principle that self-help is impermissible in a constitutional democracy based on the rule of law, even when the state is seeking to fulfill its positive obligations to provide housing. The case affirms that state organs must act reasonably and constitutionally at every stage of housing provision, and that fulfilling housing obligations under sections 26(1) and (2) does not exempt compliance with section 26(3). The decision has important implications for urban renewal and housing development projects, requiring that proper legal processes be followed even when development is intended to improve housing conditions.