Landmark South African ruling restores dignity after unlawful evictions

The Supreme Court of Appeal (SCA) delivered a landmark judgment on 30 May 2007 in the case of Tswelopele Non-profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others. The ruling addressed the unlawful eviction of 100 individuals from vacant land they had occupied for at least 18 months. The eviction was carried out by officials from the City of Tshwane, the Department of Home Affairs, and the South African Police Service, along with members of the local community policing forum. During the operation, 16 undocumented immigrants were arrested and deported. Makeshift homes were demolished and burned, and personal belongings were destroyed.

The High Court initially dismissed the application brought by Tswelopele on behalf of the occupiers, relying on the precedent in Rikhotso v Northcliff Ceramics (Pty) Ltd. On appeal, the respondents conceded that the eviction had been unlawful and issued an apology.

The SCA upheld the appeal and ordered the respondents to reconstruct shelters for the occupiers. These shelters were to be built using materials sufficient to provide habitable accommodation at a protected site. The court emphasised that effective relief must address the consequences of the violation and restore dignity, going beyond common law remedies like the mandament van spolie. The judgment highlights that rigid adherence to common law remedies may be insufficient when fundamental rights are violated. It also affirms that respect for the Constitution protects the rights of all and prevents the State from benefiting from unlawful conduct. The case is notable for developing a transformative remedy under section 38 of the Constitution.