The matter of Residents, Joe Slovo Community Western Cape v Thubelisha Homes and Others concerned the eviction of approximately 20 000 residents of the Joe Slovo informal settlement, along the N2 highway to Cape Town in the Western Cape. In a 202-page judgment the Constitutional Court of South Africa, on 10 June, granted an eviction order of all the residents to far of Delft. However, the Court also ordered: that the residents must be offered alternative accommodation of a standard set out in the court order; that the applicants must engage meaningfully with the residents about the details of the relocation and provide them with assistance to move their possessions; and that 70% of the low cost housing to be built at the site of Joe Slovo must be allocated to the current and former residents of the settlement who apply and qualify for the housing.

The eviction, which is to take place over a period of 10 months commencing from 17 August 2009, unless the parties agree otherwise, is the largest judicially sanctioned eviction of a community in post-apartheid South Africa. According to the applicants Thubelisha Homes, the Minister of Housing and the MEC for Housing in Cape Town, the relocation of the residents is required to enable the upgrading and building of formal housing at Joe Slovo in terms of the N2 Gateway Housing Project. Following the resistance by the residents to the relocation in 2007, the applicants applied for and obtained an eviction order in the Western Cape High Court in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 (PIE) against the residents of Joe Slovo. The High Court judgment was handed down on 10 March 2008, after which the residents appealed to the Constitutional Court.

In the Constitutional Court, the residents argued as follows:

- They had consent, which had been terminated, to live at Joe Slovo. Such consent was evidenced by amongst other things, the fact that the City had never told them that they were unlawful, had provided them with basic services and had advised them on where to construct their dwellings.
- The consent of the City gave rise to a substantive legitimate claim that 70% of the houses in the new development should be allocated to former and current residents of Joe Slovo. This would be in line with the express undertakings given by Thubelisha Homes.
- The eviction was not just and equitable in terms of PIE.

In response the applicants argued that there was no legitimate expectation of the kind asserted and that the eviction was just and equitable.

The Court rejected two of the residents' arguments. It concluded that the residents were unlawful occupiers and could be evicted either because they did not have consent to occupy the settlement in the first place or because that consent was subsequently revoked. It concluded further that the eviction was just and equitable.

The most ideal outcome for the residents would have been a refusal by the Court to grant the eviction order and provide, instead, that in situ (without eviction) upgrading should take place. However, despite the residents not obtaining such an order, the Court put in place safeguards to protect their housing needs and interests. It demonstrated how the housing rights in section 26 of the Constitution must be interpreted when the state seeks to evict a large and settled community from their homes in order to facilitate a major housing project, thereby treading into a new judicial landscape.

A worrying aspect of the Court's decision is the extent to which it watered down the legal concept of withdrawal of consent to occupy. The residents, at no point, received any concrete correspondence or document from the state advising them that consent to live on the site had been withdrawn. And all except for one of the Justices held that an implicit withdrawal of consent had taken place. This puts communities currently living in informal settlements in South Africa in a more tenuous position should their settlements become earmarked for a housing upgrade at the instance of the state.

It is hoped that the strides made by the Court will create a positive foundation for current and future projects undertaken by the state and that effective implementation of the court order will take place.

In the High Court and the Constitutional Court the residents of Joe Slovo were represented by the Legal Resources Centre and another law firm in Cape Town.