Construction dispute settled in ConCourt

2013-02-07 14:42

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Johannesburg - The Constitutional Court ruled against the Rustenburg municipality on Thursday over excavations that damaged a resident's foundations.

It concluded that this kind of action could be seen as evicting someone "through the back door".

Reading the unanimous judgment, Justice Thembile Skweyiya said because of construction work being done by the municipality next to the home of the applicants - Pontsho Doreen Motswagae and 14 others - a wall was bulldozed and foundations of the house were damaged.

The home is situated on land owned by the Rustenburg local municipality.

Renewal project

According to the judgment, the project to upgrade dilapidated houses was part of a general renewal project, but in spite of meetings there was no consensus on the development, and there was a refusal by residents to take up the municipality's offer of alternative occupation.

The applicants engaged lawyers and corresponded on the matter, but in 2009 the municipality engaged a contractor to start work.

The respondent along with the municipality was listed as Promptique TR 9 CC.

A bulldozer excavated land adjacent to Motswagae's house, but this set off a protest and demands that the soil excavated be returned.

Soil was returned, but a photograph taken showed what looked like the foundations of a house still exposed.

The excavation work continued and a series of protests and parallel legal action took place.

This included the municipality getting a restraining order to stop the applicants from blocking the contractor's work.

The municipality was relying on its obligation to provide housing in terms of the Constitution, the National Housing Act, and the National Housing Code, the judgment stated.

But the question was whether the municipality acted lawfully in authorising work on the property without first obtaining a court order for the eviction of the applicants.

"The work authorised by the municipality did, in my view, interfere with the applicants' peaceful and undisturbed occupation of their homes," wrote Justice Zac Yacoob in a judgment finalised before his retirement.


"And what is more, the interference is by no means slight... The intrusion was plainly so significant a disturbance to the applicants' occupation that it constituted a form of eviction. It is serious and, in our constitutional era, unacceptable."

He rejected the municipality's argument that it could enter property to carry out its work in the face of objections from an occupant unless there was an urgency or other exceptional circumstances, as "just wrong", saying servitude should be exercised "with due caution".

"Patently this would not include non-consensual bulldozing," said Yacoob.

This would encourage the municipality to take the law into its own hands.

He continued: "Indeed, the municipality as an organ of the state has the duty to protect its citizens in their homes rather than to invade their homes."

The municipality would not have offered alternative occupation in the first place if it had not concluded that the development would have affected their peaceful existence.

"It is probable, as a matter of inference from the offer of alternative accommodation, together with the deliberate interference with peaceful occupation of their homes, that the municipality sought to achieve the eviction of the applicants through the back door. This is not permissible," said Yacoob.

The applicants had approached the North West High Court in Mahikeng to stop construction but lost, with the court ruling that the homeowner's privacy was not being disturbed and they were not being evicted.

However, on application to the Constitutional Court, the judges ruled there was a constitutional right not to be evicted from one's home without a court order, as well as a right to peaceful occupation of a home.

It concluded that the municipality could not undertake the work without a court order and that it should have secured the eviction of the occupants first.

The order of the North West High Court was set aside and the municipality and those acting on their authority were interdicted from construction on the applicant's home without the applicant's written consent or a court order.

The municipality was ordered to pay the applicants' court costs in the North West High Court, the Supreme Court of Appeal, and in the Constitutional Court, including the cost of two counsel, where employed.

Read more on:    constitutional court  |  mahikeng  |  housing

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