South Africa's top court orders shelter reconstruction after unlawful evictions

The Supreme Court of Appeal (SCA) delivered a landmark ruling on 30 May 2007 in the case of Tswelopele Non-profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others. The decision addressed the unlawful eviction of 100 individuals from vacant land, marking a significant moment in South African legal history. The eviction took place when officials from the City of Tshwane, the Department of Home Affairs, and the South African Police Service, along with local community policing forum members, demolished and burned the occupiers' makeshift homes. During the operation, 16 undocumented immigrants were arrested and deported, and personal belongings were destroyed. No court order had authorised the eviction, violating the occupiers’ constitutional rights to housing and dignity.

In response, Tswelopele, a non-profit organisation, launched an urgent High Court application on behalf of the occupiers. The High Court initially dismissed the case, but the SCA overturned this decision on appeal. The SCA ruled that the traditional mandament van spolie remedy did not apply where property had been destroyed. Instead, it invoked section 38 of the Constitution to order the respondents to reconstruct shelters for the occupiers using sufficient materials to provide habitable accommodation at a protected site.

The court’s reasoning emphasised that the State cannot benefit from unlawful conduct. It also highlighted that constitutional violations must be met with effective remedies. This approach signalled a broader shift in South African law towards prioritising substantive justice over strict adherence to common law principles. The SCA’s judgment compels the respondents to rebuild the shelters for the displaced occupiers. It also reinforces the principle that constitutional rights must be actively protected. The ruling sets a precedent for addressing similar cases in the future.