Court victory for Tshwane's Schubart Park residents
Schubart Park residents scored a huge victory in the Constitutional Court yesterday when it ruled that they are entitled to move back in as soon as reasonably possible.
The court did not order that the Tshwane Metro Council must first refurbish the run-down buildings, but it is understood that it had to restore basic services such as water, sanitation, electricity and ensure that basic safety measures were in place.
This could take time, as thieves had stripped the buildings of their copper cables and infrastructure for all basic needs. While the Constitutional Court came to the aid of residents, it will not mean that moving back will be a free-for-all.
Only those residents who can be identified as having occupied the buildings last September when they were forced out, will be allowed to return. But they will also not have a free ride - one of the orders clearly stipulates the council must engage with these (identified) residents on how they will pay for services supplied to Schubart Park by the municipality once they have returned to their homes.
One of the biggest victories scored by the ousted residents yesterday is that the council has to provide alternative accommodation to the (identified) residents until they can return to their homes.
The council at present provides shelter to 140 families.
But it is estimated that there are nearly 700 more families (more than 3 000 people) who will in the meantime have to be sheltered.
These orders follow after nine Constitutional Court justices upheld the appeal by residents, brought with the aid of Lawyers for Human Rights, after they were evicted.
They were put out on the streets last September following service delivery protests. These turned violent and two fires broke out in Block C of Schubart Park.
The residents were barred from returning to their flats and launched an urgent bid in the Pretoria High Court to return.
Judge Bill Prinsloo found the buildings to be unsafe and refused permission for them to return.
The high court and the appeal court refused the residents leave to appeal against this ruling and other subsequent orders and they turned to the Constitutional Court.
Justice Johan Froneman, in a judgment with which the other eight justices concurred, set aside the high court orders and declared they did not constitute an order for the residents' eviction, as required by the constitution.
The court held that the residents were, as a matter of law, entitled to restoration of the occupation they had been deprived of for a long time.
Justice Froneman said the high court should have made it clear that its order only operated temporarily and that the residents were entitled to return once it was safe to do so.
The council did not adequately engage with the residents as to when they could return, he said.
"It proceeds from a 'top-down' premise, namely that the city will determine when, for how long and ultimately whether all the applicants may return to Schubart Park.
"Unfortunately the history of the city's treatment of the residents of Schubart Park also shows that it appeared to regard them, generally, as 'obnoxious social nuisances', who contribute to crime, lawlessness and other social ills," he said.
The justices made it clear in the judgment that the council had to engage with the residents at every stage of the re-occupation process.
It is unclear how long this will take and the court thus has to supervise this process, he said.
The council must engage and reach an agreement with the residents as to who may move back, when they could return and how the city would help them in this regard.
The residents must also be engaged on how they would pay for basic services, and the city must provide them with alternative accommodation in the meantime.
The council must by November 30 in an affidavit provide details to the high court regarding the alternative accommodation. By January 31 it must provide details regarding plans to move the people back.
LHR lawyer Nathaniah Jacobs applauded the court for making clear the requirements for evicting a person from his home. Also, for making it clear everyone has a right to protection, regardless of their socio-economic status.
Another LHR lawyer, Louise du Plessis, said that from the start they had asked the council to engage with them regarding the residents.
"As far as we are concerned, the residents can move back once the basic services are in place."
She added that they will be back in court if the council decides to implode the building.
"They cannot destroy an asset. The structure is sound and there is a desperate need for social housing in the CBD."
The council said that based on the court's ruling, all planned developments to Schubart Park, including plans to demolish it, have been put on hold. Its legal spokesman, Bruno Seabela, said the council will respond to the judgment once it has been studied.
"We respect the findings and directives stipulated in the judgment," he said.
Posted at 06:53AM Oct 10, 2012 by Editor in Pretoria |