Tswelopele Non-Profit Organisation and 23 Others v City of Tshwane Metropolitan Municipality and Others

On 31 March 2006, approximately one hundred persons were evicted from their homes on vacant land in Garsfontein, Pretoria, by officials from three governmental agencies: the City of Tshwane Metropolitan Municipality (nature conservation division), the Department of Home Affairs (immigration control), and the South African Police Services (SAPS), accompanied by members of the Garsfontein community policing forum. The operation was conducted without a court order. Officials destroyed the rudimentary shelters constructed from plastic and waste materials that the occupiers had erected and had been living in peacefully for at least eighteen months. Their belongings were destroyed and materials were burned. Sixteen immigrants without South African documentation were arrested and later deported. The first appellant, Tswelopele, is a registered non-profit organisation committed to uplifting homeless and destitute people in the Moreleta Park area. Twenty-three named residents who had been evicted joined as applicants. Ten days after the eviction, they brought an urgent application in the Pretoria High Court seeking restoration of possession and temporary shelter.

• Whether the eviction without a court order violated the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
• Whether the mandament van spolie could provide an appropriate remedy where the property (dwellings) had been destroyed
• Whether the appeal had become perempted due to subsequent settlement proceedings
• What constitutes appropriate constitutional relief for unlawful eviction and destruction of homes
• Whether the common law mandament van spolie should be developed to require reconstruction of destroyed property
• Whether a constitutional remedy should be crafted independently of common law mechanisms

The appeal succeeded with costs, including costs of two counsel. The order of the High Court (Jordaan J) was set aside. In its place, the Supreme Court of Appeal ordered: (a) The application succeeds with costs to be paid jointly and severally by the respondents; (b) The respondents are ordered, jointly and severally, to construct for individual applicants who were evicted on 31 March 2006 and who still require them, temporary habitable dwellings that afford shelter, privacy and amenities at least equivalent to those that were destroyed, and which are capable of being dismantled, at the site where their previous shelters were demolished.

Where governmental agencies unlawfully evict persons from their homes and destroy their dwellings in violation of section 26(3) of the Constitution and PIE, a court may order the reconstruction of habitable temporary shelters as a constitutional remedy, independently of common law mechanisms such as the mandament van spolie. Such a remedy is appropriate where: (1) the eviction was conducted without a court order in flagrant violation of constitutional and statutory protections; (2) multiple constitutional rights were violated (including dignity, privacy, security, and property rights); (3) ordinary remedies (damages, criminal prosecution, interdicts, or placement on housing waiting lists) would be insufficient to provide effective and timely relief; and (4) the remedy serves the dual purpose of individual vindication and constitutional vindication by instilling recognition that those evicted are bearers of constitutional rights. The remedy must be crafted to be effective and speedy, addressing the direct consequences of the rights violation. Where occupiers are admittedly unlawful occupiers subject to lawful eviction under PIE, the structures ordered to be constructed must be capable of being dismantled. The mandament van spolie, properly understood, is a possessory remedy focused on restoration of physical control of specified property, not a general remedy against unlawfulness or a mechanism for mandatory substitution of destroyed property.

Cameron JA made several important observations beyond the binding ratio: (1) He emphasized the historical context of police abuse of vulnerable populations, noting that while the racial element may have disappeared post-apartheid, the vulnerability of the poor to abuse of police power has not changed; (2) He observed that reading comparable case reports from pre-constitutional decades shows the events represent 'a repetition of the worst of the pre-constitutional past' in their lack of respect for the poor and vulnerable; (3) He noted that vindication as a remedial objective 'recognises that a Constitution has as little or as much weight as the prevailing political culture affords it'; (4) He stated that remedies should 'instil humility without humiliation' and bear an instructional message that respect for the Constitution protects and enhances rights of all; (5) He discussed the academic debate about whether the mandament van spolie's primary rationale is protecting possession or preserving order; (6) He noted that while the rule of law is a founding constitutional value that might support developing the mandament to include reconstituted restoration, and that absence of such a remedy could create perverse incentives to destroy disputed property, it was unnecessary to force a common law analogy to perform a constitutional function; (7) He emphasized that the harm caused by violating the Constitution 'is a harm to the society as a whole, even where the direct implications of the violation are highly parochial'; (8) He acknowledged the respondents' significant adjustment of approach on appeal, including an unambiguous apology, which he described as administering 'some belated but not insignificant balm to the injury inflicted' and representing 'a willingness to accept constitutional accountability'.

This is a landmark case in South African constitutional law on remedies for unlawful eviction. It establishes that courts have the power to craft specific constitutional remedies that go beyond traditional common law mechanisms when necessary to vindicate constitutional rights. The judgment is significant for: (1) Affirming that section 26(3) of the Constitution and PIE provide absolute prohibitions on eviction without court orders, even against unlawful occupiers; (2) Recognizing that unlawful evictions violate multiple constitutional rights simultaneously (dignity, privacy, security, property); (3) Establishing that effective constitutional remedies must be speedy and address the consequences of rights violations directly; (4) Demonstrating judicial willingness to order mandatory reconstruction as a constitutional remedy despite destruction of property; (5) Emphasizing that constitutional remedies serve not only individual vindication but also constitutional vindication and deterrence; (6) Holding that ordinary remedies (damages, criminal prosecution, interdicts) may be insufficient for constitutional violations; (7) Clarifying the relationship between common law development and independent constitutional remedy creation; (8) Providing important dicta on the proper scope of the mandament van spolie; (9) Reinforcing the rule of law as a founding constitutional value that applies equally to governmental agencies; (10) Highlighting continuing patterns of abuse against vulnerable populations and the judiciary's role in breaking those patterns. The case demonstrates post-constitutional South Africa's commitment to protecting the dignity and rights of the most vulnerable members of society.