CONSTITUTIONAL COURT OF SOUTH AFRICA
Abahlali baseMjondolo Movement SA v Premier KZN and OthersCase CCT 12/09 Date of hearing: 14 May 2009
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday 14 May 2009 the Constitutional Court will hear a case about the constitutionality of a provincial law called the KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act, 6 of 2007 (the Act). The first applicant, Abahlali baseMjondolo Movement SA, is a voluntary association whose object is to improve the lives and living conditions of shack dwellers in KwaZulu-Natal. Its membership includes over twenty thousand residents of informal settlements in the Durban area alone. The second applicant is the president of the first applicant. Their application to the High Court to declare certain provisions of the Act unconstitutional was dismissed. They now appeal to the Constitutional Court.
They argue that the Act does not deal with housing, but with land and land tenure; matters that fall outside the legislative competence of the province. They also argue that a section of the Act that requires owners of property and municipalities where such property is situated to evict unlawful occupiers in certain circumstances is inconsistent with section 26(2) of the Constitution. This section obliges the State to take reasonable measures to achieve the progressive realisation of the right of access to housing. The applicants furthermore argue that the wide discretion given to municipalities under the Act with regard to the upgrading of certain settlements, eviction of certain unlawful occupiers, and provision of alternative accommodation for people who have been evicted, are unconstitutional. The applicants also argue that the Act is in conflict with the National Housing Act read with the National Housing Code, as well as with certain provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which provides certain protection to unlawful occupiers.
The respondents contend that the legislation is within the competence of the provincial legislature, constitutes a reasonable response to the housing conditions in KwaZulu-Natal in fulfillment of its constitutional obligations, and is not in conflict with national legislation.