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[2015] ZAWCHC 202
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City of Cape Town v Those Persons Occupying and/or intending or attempting to occupy or erect structures on erf Khayelitsha (13700/14) [2015] ZAWCHC 202 (14 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 13700/14
DATE:
14 DECEMBER 2015
In the matter
between:
CITY OF CAPE
TOWN
...........................................................................................................
Applicant
And
THOSE PERSONS
OCCUPYING AND/OR
INTENDING OR
ATTEMPTING TO OCCUPY OR
ERECT STRUCTURES
ON ERF 18370,
KHAYELITSHA
............................................
Respondents
HEARD :MONDAY 9
NOVEMBER 2015
DELIVERED: MONDAY
14 DECEMBER 2015
JUDGMENT
Nuku, AJ
Introduction
[1] This is an
application for an eviction in terms of the section of the Prevention
of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of
1998 (‘the PIE Act’).
[2] Applicant is the
City of Cape Town, a metropolitan municipality established in terms
of the
Local Government: Municipal Structures Act of 1998
read with
The Province of the Western Cape, Provincial Notice 479/1000 dated 22
September 2000. Applicant was represented by Ms
R Williams, SC who
appeared together Ms M Adhikari.
[3] Respondents are
all the persons occupying erf 18370 Khayelitsha (“the
property”). Ten of the respondents were represented
by Ms R
Nyman who appeared together with Mr A Mahomed. These are the
respondents who referred to themselves as the executive committee
of
the New Castle Informal Settlement. The remainder of the respondents
were not represented in these proceedings.
[4] Applicant seeks
an eviction of respondents on the basis that respondents’
occupation of the property is unlawful as applicant
has not given
respondents
consent to occupy
the property.
[5] Respondents
oppose the application and have brought a counter - application
seeking an order directing applicant to engage with
each of the
respondents and staying the application for eviction pending the
outcome of the engagement process.
[6] On 1 August 2014
the applicant launched an application for an urgent interdictory
relief (‘the interdict application’)
and simultaneously
launched eviction proceedings in terms of the Pie act for the
eviction of the respondents (‘the eviction
application’).
The interdict was aimed at interdicting and restraining persons who
intended to occupy the property and did
not affect the respondents as
they were already occupying the property.
[7] On 1 August
2014, Roux AJ granted an interim interdict in the form of a rule nisi
with the return date being 24 November 2014.
On 22 August 2014
Ndita J granted an order authorising the issue of the notice of
eviction. The order also made provision for
the service of the notice
of eviction on the
respondents. For
some reason which is not apparent on the record, on 18 September 2014
Blommaert AJ extended the rule nisi to 10
October 2014.
On 10 October 2014,
Baartman J postponed the application to 31 October 2014. On 31
October 2014, Katz AJ postponed the application
to 26 February 2015
and extended the rule nisi accordingly to the same date.
[8] On 26 February
2015, Hlophe JP granted an order making the interim interdict final
and the application was postponed for hearing
in the Fourth Division
on 29 April 2015. On 29 April 2015, Gassner AJ postponed the
application 11 May 2015. She erroneously extended
the rule nisi to 11
May 2015 although it had already been made final by Hlophe JP on 26
February 2015. It is not apparent from
the record what transpired on
11 May 2015 as the next Court order postponing the application is
dated 15 May 2015. On 15 May 2015,
Gassner AJ, postponed the
application for hearing in the Fourth Division on 26 August 2015. She
also erroneously extended the rule
nisi to 26 August 2015. It is not
apparent from the record what transpired on 26 August 2015 as the
next Court order postponing
the matter is dated 28 August 2015. On 28
August 2015, Mantame J postponed the application for hearing in the
Fourth Division on
9 November 2015. She also directed that the
applicant to re-serve the Notice in terms of
Section 4(2)
of PIE Act
that had been issued by Ndita J on 22 August 2014. On 13 October
2015, Blignault J granted an order authorising the
Registrar of the
Court to issue the Notice of Eviction Proceedings in terms of Section
4(2) and 4(5) of the PIE Act. The same order
directed the manner in
which the service of the notice was to be effected on the
respondents.
[9] The Access to
Justice Association of Southern Africa was admitted by the Court as
an amicus curiae but they did not any file
submissions.
Factual background
[10] Applicant is
the owner of Erf 18370, Khayelitsha, (“the property”)
held under title deed number T10662/2002. The
property is about 416,
1700 hectares in extent. There is a portion of the property over
which there is an informal settlement known
as Endlovini informal
settlement. In respect of this portion of the property the applicant
provides shared water and ablution services
to the current occupiers
of the property. This portion is occupied with the consent of the
applicant and there are negotiations
to have the structures
electrified with a view of eventually upgrading them into formal
housing. There is also a portion of the
property which is an open
piece of land which applicant alleges is bio-diversity sensitive and
dune area which cannot be developed.
This is the portion that is
occupied by the respondents.
[11] On 13 June
2014, the applicant’s employee identified a new structure which
was in the process of being erected. Thereafter
more structures were
erected between leading up to the end of July 2014 when about 78
structures had been erected on the property.
Some of the respondents
give a slightly
different version
regarding the date on which they moved onto the property as they say
that they moved onto the property in May
2014. However, nothing turns
on the exact date on which the respondents moved onto the property.
[12] It is common
cause that the respondents moved into the property without the
consent of the applicant. During the interdict
proceedings the
applicant undertook to provide the court with the personal details of
the respondents as at that stage, so said
the applicant, the
respondents refused to provide their details, were hostile and
threatening to the officials of the applicant.
The applicant also
undertook to supplement its papers so as to deal with the issue of
alternative accommodation, in the event that
the that the details of
the respondents are obtained and they are to be genuinely homeless if
evicted.
[13] The respondents
filed an answering affidavit dated 29 December 2014 deposed to by
Mxoliseni Zwayi. In the said affidavit the
respondents consented to
an order that would prevent further settlement. The respondents also
raised the issue of having their
structures modified in accordance
with the tenents of what would be regarded as humane and habitable
conditions for humans. The
respondents also indicated their
willingness to exit the land after a process of meaningful engagement
and once adequate alternative
accommodation was made available to
them even if only as a reasonable temporary measure. The respondents
also pointed out that
the evictions would result in homelessness
which could be obviated by a process of meaningful engagement.
[14] The applicant
filed a replying affidavit dated 2 February 2015. In the said
replying affidavit the applicant indicated that
it would only be
prepared to take submissions from the respondents as to what would
constitute a just and equitable date for the
vacation of the
property, should the respondents be
prepared to vacate
the property voluntarily. The applicant also indicated that it had
conducted a survey of the respondents which
it had not been able to
complete due to the
fact that some of the structures were not occupied during the day and
some of the respondents declined to take
part in the survey. The
applicant blamed the
deponent to the answering affidavit for not placing the personal
circumstances before the court and alluded
to the fact that it will
be
extraordinarily
difficult for the court to reach a just and equitable determination
as to the relief sought by the applicant.
[15] In response to
the invitation by the respondents to engage with them the Applicant
took issue with the fact that the respondents
had not provided detail
as to the proposed parametres of the engagement sought. The attitude
of the applicant was that it cannot
meaningfully respond to the
request by the
respondents to
engage with them. After setting out the applicant’s
constitutional obligations in regard to the provision of
housing and
bemoaning the fact that the respondents took the law into their hands
by invading the property, the applicant indicated
that it is,
nevertheless, willing to meaningfully engage with the respondents.
In response to the allegation that an eviction
would result in
homelessness, the applicant asserted that given that the respondents
did not place their personal circumstances
before the court, there
is no evidence that there is no evidence upon which the Court may
conclude that the eviction of the respondents
would result in them
being rendered homeless.
[16] The attorneys
of record for the respondents withdrew between April and May 2015.
Ashraf Mahomed Attorneys came on record only
for 10 of the
Respondents during June 2015. When they came on record they also
filed a Counter-application in which they, once
more, raised the
issue of the lack of meaningful engagement. In the founding affidavit
to the counter-application, the deponent,
Mxoliseni Zwayi, clarified
his authority to depose to the affidavit on behalf of the
respondents. He advised that he was only authorised
to depose to the
affidavit in respect of the 10 respondents who are the members of the
executive committee of the New Castle informal
settlement. He advised
that he had no authority to depose to the answering affidavit dated
29 December 2014 on behalf of the respondents.
He placed on record
his personal circumstances as well as those of the other 10
respondents in respect of which he is authorised
to depose to an
affidavit on their behalf. These respondents confirmed the authority
of Mr Zwayi to depose to an affidavit on their
behalf and also
confirmed their personal circumstances on affidavit.
[17] On 26 August
2015 the applicant filed its replying affidavit to the respondents’
answering affidavit which also served
as an answering affidavit to
the respondents’ counter-claim. In response to the respondents’
assertion that the applicant
is under a legal obligation to engage
reasonably and meaningfully with each of the respondents and affected
residents to whom it
is obliged in law to provide suitable
alternative accommodation, the applicant denied that itis obliged to
provide emergency accommodation
to the respondents. The applicant
advanced reasons why it had not engaged with the respondents and
advised that it remains prepared
to engage with the respondents as
to a just and equitable date for their eviction.
The issues
[18] The main issue
that arises in this application is whether it is just and equitable
to order an eviction of the respondents.
The applicant contends that
it is just and equitable to order an eviction of the respondents. The
respondents contend that because
of the applicant’s failure to
engage with them, the application should be stayed pending the
outcome of the engagement process.
[19] There are a
number of other issues that have been raised between the parties.
These include the applicant’s application
for the late filing
of its replying affidavit, the respondent’s complaint relating
to the service of the notice of proceedings
on the respondents, the
respondent’s application to strike out an answering affidavit
as well as the contention by the respondents
that the application is
not urgent.
The relevant
statutory and constitutional framework
[20] The advent of
the Constitution and the subsequent passing into law of the PIE Act,
brought about a departure from the way in
which the courts dealt with
Evictions. The Constitution did this by dealing with evictions under
the same category as the right
to housing. Section 26 of the
Constitution of the Republic of South Africa, 1996 provides that:
“26. Housing-
(1) Everyone has a right to have access to adequate housing (2) The
state must take reasonable legislative and
other measures, within its
available resources, to achieve the progressive realisation of this
right.(3) No one may be evicted
from their home, or have their home
demolished, without an order of the court made after considering all
the relevant circumstances.
No legislation may permit arbitrary
evictions.”
[21] The relevant
provisions of the PIE act are sections 4(6) and section 6(3) which,
respectively, provide as follows:
“4(6) If an
unlawful occupier has occupied the land in question for less than six
months at the time of when the proceedings
are initiated, a court may
grant an order for eviction if it is of the opinion that it is just
and equitable to do so, after considering
all the relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed
by women.
(3) In deciding
whether it is just and equitable to grant an order for eviction, the
court must regard to –
(a)the circumstances
under which the unlawful occupier occupied the land and erected the
building or structure;
(b)the period the
unlawful occupier and his or her family have resided on the land in
question; and
(c) the availability
to the unlawful occupier of suitable alternative accommodation”.
[22] In Ndlovu v
Nxabo; Bekker & Another v Jika 2003(1) SA 113 (SCA) at para 3
the Supreme Court of Appeal observed that “PIE
has its roots,
inter alia,in Section 26 (3) of the Bill of Rights, which provides
that “no-one may be evicted from their
home without an Order of
Court made after consideration of all the relevant circumstances: ….
It invests in the Courts the
right and duty to make the order which
in the circumstances of the case would be just and equitable and it
describes some circumstances
that have to be taken into account in
determining the terms of the eviction”.
[23]In Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
at para 11 the
Constitutional Court held that: “The prevention of illegal
eviction from an Unlawful Occupation of Land Act
of 1998 (Pie) was
adopted with the manifest objective with overcoming the above abuses
and ensuring that evictions, in future,
took place in a manner
consistent with the values of the new Constitutional dispensation.Its
provisions have to be interpreted
against this background”.
[24] Regarding the
enquiry as to whether it is just and equitable to grant an eviction
order, the Supreme Court of Appeal held in
Ekurhuleni Metropolitan
Municipality & Another v Various Occupiers, Eden Park Ext 5
2014
(3) SA 23
(SCA) at 33 outlined some of the relevant considerations
relevant to the determination whether it is just and equitable to
grant
an order for eviction as follows:
(i) “The
manner in which the occupation was effected; (ii) the duration of the
occupation; (iii) the availability of suitable
alternative
accommodation or land; (iv) reasonableness of offers made connection
with suitable alternative accommodation or land;
(v) the timescales
proposed relative to the degree; (vi) the willingness of the
occupiers to respond to reasonable alternatives
put before them;
(vii) the extent to which serious negotiations have taken place with
equality of voice for concerned; and (viii)
the gender, the age,
occupation or lack thereof and state of health of those affected…”
[25] One of the
issues that has received consideration by the Courts is the
engagement by the municipalities with those who are
to be evicted. In
Occupiers of 51 Olivier Road & 197 Main Street, Johannesburg v
City of Johannesburg
[2008] ZACC 1
;
2008 (3) SA 208
(CC) at 216, Jacoob J said the
following,
“[16] The City
has constitutional obligations towards the occupants of Johannesburg.
It must provide services to communities
in a sustainable manner,
promote social and economic development, and encourage involvement of
communities and community organisations
in matters of local
government. It also has the obligation to fulfil the objectives
mentioned in the preamble to the constitution
to “improve the
quality of life of all citizens and free the potential of each
person”. Most importantly it must respect,
protect, promote
and fulfil the rights in the Bill of Rights. The most important of
theserights for present purposes is the right
to human dignity and
the right to life. In the light of these constitutional provisions a
municipality that ejects people from
their homes without first
meaningfully engaging with them acts in a manner that is broadly at
odds with the spirit and purpose
of the constitutional obligations
set out in this paragraph taken together.
[17] But the duty of
the City to engage people who may be rendered homeless after an
ejectment to be secured by it is also squarely
grounded in Section 26
(2) of the Constitution. It was said in Grootboom that “in
every step at every level of government
must be consistent with the
Constitutional obligation to take reasonable measures to provide
adequate housing.” Reasonable
conduct of a municipality
pursuant to Section 26 (2) includes the reasonableness of every step
taken in the provision of adequate
housing. Every homeless person is
in need of housing and this means that every step taken in relation
to a potentially homeless
person must also be reasonable if it is to
comply with Section 26 (2).
[18] And, what is
more, Section 26 (2) mandates the response of any municipality to
potentially homeless people with whom it engages
must also be
reasonable. It may in some circumstances be reasonable to make
permanent housing available and, in others to provide
no housing at
all. The possibilities between these extremes are almost endless. It
must not be forgotten that the City cannot
be expected to make
provision for housing beyond the extent to which available resources
allow. As long as the response of the
municipality in the engagement
process is reasonable, that response complies with Section 26 (2).
The Constitution therefore obliges
every municipality to engage
meaningfully with people who would become homeless because it evicts
them. It follows that, where
a municipality is the applicant in
eviction proceedings that could result in homelessness, a
circumstance that a Court must take
into account to comply with
Section 26 (3) of the Constitution is whether there has been
meaningful engagement.”
[26] The conduct of
a municipality that seeks to evict people has to be judged against
the constitutional standard as set out in
the cases referred to
above. Before proceeding to do so I propose to first deal with the
preliminary issues which were raised between
the parties.
Condonation
[27] When the matter
was postponed to 26 August 2015 the legal representatives of the
parties agreed on a timetable regarding the
filing of further
documents. In terms of this timetable, which was not made an order
of the Court, the respondents had to file
additional answering
affidavits on or before 13 July 2015 and the applicant had to file
its supplementary replying affidavit on
or before 4 August 2015. On
13 July 2015 the respondents filed their additional answering
affidavits together with a counter application.
The applicant did
not file its supplementary replying affidavit on 4 August 2015 as
agreed but filed it on 26 August 2015.
[28] The applicant
applied to this Court for the condonation of the late filing of the
supplementary replying affidavit. One of
the issues raised by the
applicant in support of its application for condonation is the fact
that when the timetable was agreed
to between the parties it was not
envisaged that the respondents would file a counter-application. The
applicant submits that
it is the filing of this counter- application
that delayed the filing of the applicant’s supplementary
affidavit.
[29] I have
considered the fact that it is more likely that even if the applicant
had filed its supplementary answering affidavit
timeously, the matter
would not have been ripe for hearing on 26 August 2015 due to the
fact that the respondents had launched
a counter application in
respect of which no timetable had been agreed to between the parties.
Although the respondents oppose
the application for condonation,
there is no prejudice that they suffered as a result of the late
filing of the supplementary replying
affidavit.
[30] In the end I am
persuaded to exercise the discretion in favour of condoning the late
filing of the further supplementary affidavit
by the applicant.
[31] That also leads
me to the question of costs and as both parties were at fault
regarding the date for the hearing on 26 August
2015, the cost of the
said date are ordered to be costs in the cause.
The respondent’s
complaint relating to service
[32] In their papers
the respondents have contended that there was no proper service of
the notice of the proceedings on the respondents.
The contention was
based on the fact that part of the order granted by Ndita J,
regarding the service of the notice of the proceedings
to the
respondents was that the Sheriff should advise the respondents
through a loudhailer of the institution of the proceedings.
It
appears on the sheriff’s returns of service that the Sheriff
did not comply with this as he did not advise the respondents
through
a loudhailer of the notice of the proceedings.
[33] Prior to the
hearing of the 9 November 2015, the applicant sought another order
regarding the service of the notice of the
proceedings on the
respondents, which order was granted by Blignault J. The order
granted by by Blignault J on 9 November 2015
substituted the prior
order which had been granted by Ndita J. There is no complaint by the
respondents regarding the compliance
with the order granted by
Blignault J. It also appears that this order was complied with and as
such the complaint relating to
a prior order is academic.
.
The challenge to the
authority of the deponents to the applicant’s affidavits
[34] The respondents
challenged the authority of the deponents to the applicant’s
various affidavits. This challenge was
abandoned by the respondents
at the commencement of the proceedings and as such it became
unnecessary to deal with it.
The respondents’
application to have their first answering affidavit struck out
[35] Prior to the
coming on record of Ashraf Mahomed Attorneys, the attorneys of record
for the ten respondents there was an affidavit
that was filed
purportedly on behalf of all the respondents by Mxoliseni Zwayi. It
is this affidavit that the respondents seek
to have struck out in its
entirety.
[36] The reasons
advanced by the respondents for wanting to strike the answering
affidavit are that:
1. The deponent
mistakenly represented that he was authorised to depose to an
affidavit on behalf of all the respondents when he
had no mandate to
do so.
2. The affidavit was
done in good faith without the assistance of a legal representative,
and
3. The affidavit
does not properly state the date and place of execution and therefore
fails to comply with uniform rules of this
Court.
[37] The application
is opposed by the applicant. Counsel for applicant submitted,
correctly in my view, that where a party seeks
to withdraw an
admission made in an affidavit it has been stated that;
“the approach
is the same as that of an amendment involving a withdrawal of an
admission, but the withdrawal of an admission
is usually more
difficult to achieve because:
(i) In involves a
change of front which requires full explanation to convince the Court
of the bona fidas thereof, and
(ii) It is more
likely to prejudice the other arty who had by the admission been led
to believe that he need not prove the relevant
fact and might, for
that reason, have omitted to gather the necessary evidence”
(See President Versekerings Maatskapy Bpk
v Moodley
1964 (4) SA 109
(T) at 110h-111a; J R Yanish (Pty) Ltd v W M Spielhouse & Co.
(WP) (Pty) Ltd
1992 (1) SA 167
(C) at 170C-G.
[38] The reasons
advanced by the respondents do not meet the requirements as set out
above and I am not persuaded to exercise my
discretion to strike out
the first
respondents answering affidavit.
Urgency
[39] The respondents
contended that the application falls to be dismissed with a punitive
cost order for the reason that it was
brought as an urgent
application in circumstances where there were no grounds of urgency.
[40] These
proceedings were commenced on 1 August 2014 and at that stage there
were two parts to the application, namely part A
- relating to the
interdict and part B - relating to the eviction application. The
part that was brought on an urgent basis was
the one relating to part
A relating to the interdictory relief.
[41] The matter was
heard in fourth division and has been in fourth division since 26
February 2015 when it was postponed by the
order of Katz AJ on 31
October 2014. As such there is no merit to the contention that the
matter falls to be dismissed for lack
of urgency.
Unlawful occupation
[42] It is not in
dispute that the applicant is the owner of the land that is currently
occupied by the respondents. That the respondents
do not have the
consent of the applicant to occupy the property appears also to be
common cause. This appears in the applicants
founding affidavit as
well as the affidavit filed on behalf of the respondents. That being
the case, the respondents are therefore
occupying the applicants land
unlawfully and as such the PIE Act is applicable to them.
[43] Having dealt
with the preliminary issues I now proceed to consider whether it
would be just and equitable to grant an order
for an eviction of the
respondents. I also deal with the respondents’
counter-application within the context of the enquiry
as to whether
it would be just and equitable to grant an order for an eviction of
the respondents. I consider it appropriate to
do so as the
counter-claim raises one of the issues that are considered when
determining whether it is just and equitable to grant
an eviction.
Is it just and
equitable to grant an eviction
[44] The factual
matrix upon which this application falls to be determined is largely
not in dispute. In short the respondents took
occupation of the
property between May and July 2014. This they did without the consent
of the applicant. On the applicant’s
own papers there was no
engagement with the respondents prior to the launching of the
application for their eviction. The reasons
advanced by the applicant
for not engaging with the respondents were that some of the
respondents refused to provide their details,
were hostile and
threatening to the applicant’s officials. Given the lack of
co-operation from the respondents at that stage
the applicant
undertook to supplement its papers so as to deal with the issue of
alternative accommodation in the event of it obtaining
the
particulars of the respondent which suggest that some of the
respondents would be rendered homeless by an eviction. After this
undertaking the applicant neither supplemented its papers to deal
with the issue of alternative accommodation nor engaged with
the
respondents other than to conduct a survey.
[45] When the
respondents raised the issue of meaningful engagement and alternative
accommodation, the applicant adopted the attitude
that it is not
obliged to provide alternative accommodation. The response of the
applicant was also not consistent in that whereas
on the one hand it
said that it was prepared to engage with the respondents on the other
hand it indicated that it could not meaningfully
respond to the
request for an engagement with the respondents as the respondents had
not provided the detail as to the proposed
parametres of engagement.
The applicant also advised that the only representations it was
prepared to take from the respondents
were in relation to the date
for the vacation of the property.
[46] The conduct of
the applicant as described above is what was described by Jacoob, J,
in the Occupiers of 51 Olivier Road case
referred to above asthe one
“is broadly at odds with the spirit and purpose of the
constitutional obligations” that
the applicant has towards the
respondents. That the applicant has a constitutional obligation to
engage meaningfully with people
who would become homeless as a result
of eviction is clear from the following passage in the Occupiers of
51 Olivier Road case
referred to above; “The Constitution
therefore obliges every municipality to engage meaningfully with
people who would become
homeless because it evicts them. It follows
that, where a municipality is the applicant in eviction proceedings
that could result
in homelessness, a circumstance that a court has to
take into account to comply with section 26(3) of the Constitution is
whether
there has been meaningful engagement.”
[46] The applicant
submitted that taking the following circumstances into account it
would be just and equitable to grant an order
for an eviction of the
respondents: that the respondents have been in occupation for less
than six months when the proceedings
were initiated; the fact that
the respondents are in unlawful occupation of the property; the fact
that the respondents’
occupation of the property formed part of
an unlawful invasion; the fact that there is a duty on the
respondents to place all their
relevant circumstances before the
court and the fact that the respondents do not have a defence to the
eviction application. The
applicant also referred to a number of
cases in which the courts denounced land invasions as an appropriate
way to enforce one’s
constitutional right to adequate housing
(See City of Cape Town v Unlawful Occupiers, Erf 1800 Capricon
2003
(6) SA 140
(C) at 151I, President of the Republic of South Africa and
Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici
Curiae)
2005 (5) SA 3
(CC) at para 49, Port Elizabeth Municipality v
Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at para 80 and Government of
the Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46
at para 2 and 92)
[47] Undeniably the
issues raised by the applicant are relevant considerations. However,
paragraph 92 of the Grootboom case referred
to above is
quite apposite in my
view as the court stated that; “This judgment must not be
understood as approving of any practice of
land invasion for the
purposes of coercing a State structure into providing housing on a
preferential basis to those who participate
in any exercise of this
kind. Land invasion is inimical to the systematic provision of
adequate housing on a planned basis. It
may well be that the decision
of a State structure, faced with the difficulty of repeated land
invasions, not to provide housing
in response to those invasions,
would be reasonable. Reasonableness must be determined on the facts
of each case”.
[48] In my view, in
a matter where a municipality applies for an eviction it is bound to
act reasonably. Part of acting reasonably
is the engagement with
those who are to be evicted as that ensures that they are treated
with dignity in the process. The applicant
has not only failed to
engage with the respondents but has also failed to provide reasons
why it should be held that its failure
was reasonable under the
circumstances. This is particularly so as the applicant realised this
at the start of the proceedings.
The respondents have consistently
indicated their willingness to engage with the applicant, at least
from the time of filing of
the answering affidavit dated 29 December
2014. Instead of taking up the issue of engagement with the
respondents, the applicant
sought to dictate to the respondents on
what it would be prepared to engage them with, namely, the date on
which they would vacate
the property.
[49] The other
factor that has weighed heavily with this court is the applicant’s
attitude that it is not obliged to provide
alternative accommodation
to the respondent on the basis that the respondents were in
occupation of the property for a period of
less than six months when
the proceedings were instituted. For this submission the applicant
relies on section 4(6) of the PIE
act which does not list the
availability of alternative accommodation as a consideration. In
order to rely on section 4(6) of the
PIE act, the applicant submitted
that it is entitled to institute the proceedings either under section
4 or section 6 of the PIE
act and it has referred to various cases in
this regard.(See Mangaung Local Municipality v Mashile and Another
2006 (1) SA 269
(O) at 274, paragraphs 10 and 11, City of Cape Town v
Unlawful Occupiers Erf 1800 Capricorn (Vrygrond Development) and
Others 2003
(SA) 140 (C) at 149D-E, Transnet Ltd v Nyawuza and Others
2006 (5) SA 100
(D&CLD) at 103).
[50] The cases
relied on by the applicant were decided based on the definition of an
owner in the PIE act which includes an organ
of state. Section 6 (3)
of the PIE act appears to offer greater protection than section 4(6)
in that one of the circumstances that
the court has to consider in
order to determine whether it is just and equitable to grant an order
of eviction is the availability
to the unlawful occupier of suitable
alternative accommodation. In essence where an unlawful occupier has
been in occupation of
the municipal property for a period which is
less than six months, the extent of the protection it enjoys under
the PIE act would
depend on the applicant municipality. In my view
this would lead to arbitrariness.
[51] In my view it
is not even necessary to decide whether a municipality is entitled to
elect whether to proceed under section
4 or under section 6. The
interpretation of these two sections which would be consistent with
the values of the new Constitutional
dispensation would be to
interpret these two section in a manner that provides greater
protection to the person who is to be homeless
upon being evicted. In
instances where the person is to be evicted from land owned by an
organ of state the protection afforded
by section 6(3) of the PIE
act, must be available even where the person has occupied the
property for less than six months. This
must be so because section 6
does not does not differentiate between those who have been
occupation for less or more than six months.
[52] Lastly, I
enquired from counsel for the applicant whether the applicant would
make alternative accommodation available to those
of the respondents
who would be rendered homeless upon being evicted. Counsel indicated
that those of the respondents who would
be rendered homeless by an
eviction are welcome to engage with the applicant with regards to
alternative accommodation. Although
this offer was made, this is the
sort of issues that the applicant could and should have canvassed
with the respondents had it
engaged with them and it would not be
appropriate to order an eviction where the court does not have all
the relevant information
as to what is to happen to the respondents.
[53] For the reasons
set out above, I am not satisfied that it would be just and equitable
to grant an order for an eviction of
the respondents.
[54] I have taken
into account the fact that the property is a bio-diversity and dune
area which cannot be developed. I have also
taken into account the
deplorable conditions under which the respondents live as described
by the respondents who have filed affidavit
and I am of the view that
it would be in the interest of all the parties concerned to find a
speedy resolution of this matter
[55] The respondents
in the counter-application seek an order staying the eviction
application pending an engagement between the
parties and I am of
the view that such an order would be appropriate under the
circumstances.
[56] Although the
respondents have been successful I do not think that it would be
appropriate to the applicant to pay costs. On
the one hand the
applicant has failed to comply with its constitutional obligations.
On the other hand the respondents have taken
the law into their hands
by invading the property. The respondents cannot be compensated by a
cost order for their actions.
[57] In the
circumstances I make the following order:
1.The application
for eviction is stayed;
2. The applicant is
directed to engage with the respondents and to report to this court
within six months of the date of this order.
3. Each party is to
pay its costs.
NUKU, AJ