ESCR-Justice – November 2014

58, November 2014

Constitutional Court fosters
implementation of the right to housing in South Africa

Nthabiseng Pheko and
Occupiers of Bapsfontein Informal Settlement v. Ekurhuleni Metropolitan
Municipality, Constitutional Court of South Africa, December 6, 2011

This case concerns a municipality’s efforts to remove residents
without a court order from land it had deemed to be a “local state of
disaster”. Here, the Constitutional Court found a violation of Section 26(3) of
the Constitution and created a strong bulwark against the previous tendency to
uncritically accept both the state’s diagnosis and prescription for unsafe
living conditions, however prejudicial it is to the people affected.

Pheko made clear that the extent of the danger presented by unsafe
living conditions must be considered by a court in the full context of the
proposals to alleviate them. More specifically the Court understood that
relevant circumstances should be analyzed, including whether the disaster was
so sudden as to warrant a hasty relocation; whether the neighborhood could have
been rehabilitated; whether an adequate disaster management plan was in place;
whether there had actually been any loss of life; whether alternative land had
been made available, or could reasonably be made available; and the length of
time that the residents had resided at a particular location. The Court,
therefore, followed the rationale set out by SERI, an ESCR-Net member
organization, in its amicus curae submission.

Significantly, the Court continued to monitor the implementation
of the decision after 2011. In March 2014, the Court ordered the filing of a
further report on the progress made in respect to undertakings made by the
municipality to the N 12 Highway Park Community which would indicate the steps
taken: (i) to ensure the purchase of the land identified for reallocation; (ii)
to ensure permanent housing will be provided to the community; (iii) to ensure
that the land utilised is suitable for occupation; (iv) to ensure that
engineering services are available; (v) to ensure all plots of land have access
to roads; and (vi) to ensure that all plots of landare connected to the
internal water and sewer infrastructure networks.

For more information on the case summary, the judgment and other
related documents, please go to or
contact Daniela Ikawa (

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