Johannesburg - The Constitutional Court on Friday granted residents of Madlala Village in Durban leave to appeal against an order authorising the municipality to demolish their homes.
It allowed the residents to challenge the correctness of the interim order, but could not rule on the matter because it was pending in the High Court in Durban.
A total of 390 residents of the Madlala Village turned to the Constitutional Court after the high court granted an order to the eThekwini municipality in March 2013.
The order allowed the use of police to prevent residents from occupying or building homes on the land.
It also allowed the municipality and government bodies to remove any materials, and demolish any structures found on the land.
Madlala Village lost an appeal against the order in the Supreme Court of Appeal.
In February this year, the Constitutional Court heard arguments in the matter.
The residents claimed their shacks and personal belongings were destroyed 24 times by the municipal land invasion control unit in the presence of SA Police Service officers.
The residents settled in the area in September 2012.
The applicants argued that protection offered under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, and rights affirmed in section 26 of the Constitution were at stake.
Section 26 grants all South Africans the right to have access to “adequate housing”.
The respondents were the municipality, the human settlements MEC, and the police minister.
They contended the high court order was directed at preventing land invasions only subsequent to the date on which the order was granted.
The Socio-Economic Rights Institute of SA (Seri) welcomed the outcome on Friday.
“Seri welcomes the Constitutional Court's finding that the order amounted to an eviction order,” it said in a statement.
Seri said it was unfortunate that the lawfulness of the order was not pronounced on.
Shack dwellers association Abahlali baseMjondolo was admitted as a friend of the court in the case.
Tashwill Esterhuizen, for Abahlali, also welcomed the judgment.
“Our client has always been of the view that the interim order obtained... amounts to an unlawful eviction order.
“It's a pity that the majority judgment did not deem it necessary to pronounce on the constitutionality of the interim order... Our client will certainly attack the validity of the order once the matter is referred back to the Durban High Court.”