By Stuart Scott on 11 February 2014

The principal issue in this appeal is the constitutionality of a court order granted by Koen J in the High Court on 28 March 2013 (“the March 2013 order”).  The March 2013 order was obtained by the first respondent (“the MEC”) in relation to the second respondent (“the Municipality”) and the third respondent (“the Minister of Police”).

The March 2013 order was framed as an interim order, part of which operates as an interim interdict. There is dispute between the parties precisely about what the order means.

The interim interdict in the March 2013 order reads as follows –

“1.1      [The Municipality and the Minister of Police] are hereby authorised to take all reasonable and necessary steps:

1.1.1    to prevent any person from invading and/or occupying and/or undertaking the construction of any structures and/or placing any material upon the immovable properties described in “NOM1 – 37” to the notice of motion;

1.1.2    To remove any materials placed by any persons upon the aforementioned properties;

1.1.3    To dismantle and/or demolish any structure or structures that may be constructed upon the aforementioned properties subsequent to the grant of this order.

1.2       Interdicting and restraining any persons from invading and/or occupying and/or undertaking the construction of any structures and/or placing of any material upon any of the aforementioned properties“

The appellants (“the Madlala residents”) contend that the March 2013 order authorises the eviction of an unknown and unknowable class of people from land stretching over approximately 9500 km², almost all of which is within the Municipality’s area of jurisdiction (“the land”).  The applicants submit that this is in conflict with PIE.

The applicants submit that the March 2013 order effectively authorises the Municipality and the Minister of Police to evict people without affording them the protection of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (“PIE”).

The appellants contend that, on the papers placed before Koen J, it is apparent that neither the court nor the MEC had regard to the provisions of 26 of the Constitution and the provisions of PIE.  The applicants suggest that it seems that Koen J was persuaded to ignore those provisions because, in his view, the police and the Municipality were unable to protect the properties listed in the order.

Equally, according to the applicants, by granting the order in perpetuity it has the effect that the Municipality and the police could use the order to effect evictions from 28 March 2013 onwards without any need to seek the court’s approval.

In addition to the present proceedings, on 25 April 2013 the appellants launched an application out of the High Court under case no. 4431/2013 for an order directing the Municipality, the Minister and the MEC to construct for those individual appellants who were evicted from the relevant property on 19 and/or 24 April 2013 and who still require them temporary residential dwellings and/or structures and/or shelters at least equivalent to those that were destroyed and which are capable of being dismantled at the site at which their previous shelters were demolished.

The respondents state that the March 2013 order does not authorise eviction at all.  Rather, the March 2013 order was directed at preventing the invasion of the relevant properties subsequent to the date on which the order was granted.  Thus, according to the respondents, the most the order permits the Municipality and the Minister of Police to do is prevent persons from moving on to the land after the date on which it was granted.  Moreover, the respondents suggest that, if a person does manage to establish a home on any of the land to which the March 2013 order applies, he may not be evicted without the provisions of PIE being complied with.  Thus any evictions which may have been carried out on the basis of the order fall to be set aside.

The respondents state that the appellants have in any event instituted separate legal proceedings for an order restoring them to their occupation of the relevant property.  Accordingly the appellants do not have a legal interest which entitles them to intervene in the application in order to seek the discharge of the March 2013 order.

Abahali Basemjondolo, admitted as an amicus curiae (“the amicus“) in this matter, agrees with the applicants that the March 2013 order plainly authorises eviction.  It does so prospectively, against many thousands of people whose identities, circumstances and needs could not have been known to Koen J when he granted it.

The amicus submit that the respondents do not suggest what meaning could be ascribed, for example, to the words “to dismantle or demolish any structures” that would not include authority to evict a person from his home and then demolish it.  The amicus argues that this phrase is the clearest, but not the only, indication that the March 2013 order is an eviction order.  The amicus also agrees with the Madlala residents that the March 2013 order conflicts with the PIE Act.