Section 26(3) of the Constitution provides that no one may be evicted from their home, or have their home demolished, without an order of court, which can only be made after considering all the relevant circumstances.

The Supreme Court of Appeal (SCA), in City of Cape Town v Commando and others, recently had occasion to consider the constitutional duty of a municipality to provide temporary emergency housing, specifically whether the constitutional obligation extended to making temporary emergency accommodation available at a specific location.

The SCA held that the legislative measures and programmes by the government, giving effect to Section 26, did not impose a duty on it to provide temporary emergency accommodation at a specific location. The SCA did however find that the municipality is still required to make a just and equitable order so as to not render the occupiers homeless.

The SCA accordingly found that the municipality, in casu, bore a duty to provide the occupiers with suitable temporary accommodation and that an order be made that such accommodation is at a location as near as possible to the area where the property was situated.

The SCA found that it is imperative for the municipality to realise that it had the responsibility of ensuring that the occupiers were treated with dignity and care when choosing a location and in doing so, the municipality had to take into account the occupiers’ places of employment and children’s schooling, hospitals, transportation and other important amenities that their relocation required.

Source: City of Cape Town v Commando and Others (1303/2021) [2023] ZASCA 7 (6 February 2023)

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20 March 2023

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