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[2016] ZAWCHC 133
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Odvest 182 Pty (Ltd) v Occupiers of Portion 26 (Portion of Portion 3) of Farm Klein Bottelary No 17, Botfontein Road ('The Property') and Others (19695/2012) [2016] ZAWCHC 133 (14 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
In
the matter between
Case
No: 19695/2012
ODVEST
182 (PTY)
LTD APPLICANT
and
OCCUPIERS
OF PORTION 26 (PORTION OF
PORTION
3) OF FARM KLEIN BOTTELARY NO
17,
BOTFONTEIN ROAD (‘THE PROPERTY’)
WHOSE
NAMES APPEAR ON ANNEXURE “A”
TO
THE NOTICE OF
MOTION FIRST
RESPONDENT
ALL
OCCUPIERS OF THE PROPERTY WHOSE
NAMES
DO NOT APPEAR ON ANNEXURE “A” SECOND
RESPONDENT
CITY
OF CAPE
TOWN THIRD
RESPONDENT
MINISTER
OF HUMAN SETTLEMENTS IN THE
WESTERN
CAPE PROVINCIAL GOVERNMENT FOURTH
RESPONDENT
MINISTER
OF RURAL DEVELOPMENT AND
LAND
REFORM FIFTH
RESPONDENT
Coram
:
ROGERS J
Delivered:
14 OCTOBER 2016
JUDGMENT
ROGERS J:
Introduction
[1]
This is an eviction application by a private landowner.
The persons alleged to be unlawful occupiers are cited as the first
and
second respondents, the former group being persons identified by
name or by dwelling, the latter group being all other persons in
occupation. For convenience I shall refer to them collectively as the
respondents. The third respondent is the City of Cape Town
(‘the
City’), within whose area the land is located. The fourth and
fifth respondents are the provincial Minister of
Human Settlements
(‘the MEC’) and the national Minister of Rural
Development and Land Reform (‘the Minister’).
[2]
The judge who managed and heard the case (‘the
previous judge’) has become indisposed. At the request of the
Deputy
Judge-President, and with the consent of the parties’
legal representatives, I have been assigned to adjudicate the case
with reference to the heads of argument and the transcript of the
oral argument on the basis that I could in my discretion call
for
further argument. Given the lengthy delays, I have decided not to
call for additional argument. None of the parties indicated
that they
wished to place further argument or evidence before me.
[3]
In argument before the previous judge the applicant was
represented by Mr Joubert, some respondents by Mr Magardie of the
Legal
Resources Centre (‘LRC’), other respondents by Mr
Carolissen instructed by the Stellenbosch Legal Aid Clinic (‘SLA’),
the City by Mr Katz leading Ms Pillay, and the MEC and Minister by Mr
Naidoo.
Background
[4]
The land in question is the farm Klein Akker situated in
Kraaifontein near the City’s border with the Stellenbosch
Municipality.
It is 13 ha in extent. The most recent information is
that the respondents number 233 people comprising 79 households. Some
of
them have been in occupation since early 2000.
[5]
Hotelink (Pty) Ltd (‘Hotelink’), a company
whose sole shareholder was Mr Jean du Toit (‘Du Toit’),
took
transfer of the property in 1998, having paid a price of R1,2
million. During June 2005 Hotelink sold the property to Wright
Approach
Investments 621 CC (‘WAI’) for R1,254 million.
WAI, a corporation controlled by a Mr Johann Hattingh, acknowledged
that there were persons in alleged unlawful occupation. WAI took
transfer in December 2005.
[6]
WAI went into voluntary liquidation during March 2009.
In April 2011 WAI’s liquidators sold the property to the
present applicant
(‘Odvest’) for R2,5 million on
condition that Odvest was given vacant occupation. This sale
agreement fell by the wayside.
Procedural
history
[7]
In October 2012 WAI’s liquidators launched the
present proceedings, seeking the respondents’ eviction in terms
of the
Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (‘PIE’). At that stage the MEC and
Minister were not cited as respondents. On 9 November 2012 Nyman AJ
postponed the application to 12 December 2012 with a timetable.
Notices of opposition were filed on behalf of various respondents by
the LRC and SLA. On 29 November 2012 the City filed a housing
report,
stating that it did not know the particular circumstances of the case
but that it was unable to provide the respondents
with accommodation.
This was the first of five reports/affidavits filed by the City.
[8]
On 12 December 2012 the application was postponed to 12
February 2013 with a further timetable. On that date it was postponed
to
9 May 2013 with a revised timetable. Opposing and replying papers
were filed over the period January-March 2013. Following an
inspection
of the property by its officials, the City on 12 April
2013 filed a further affidavit (its second report). On 8 May 2013 and
by
agreement the case was postponed for hearing on the semi-urgent
roll on 14 August 2013 with a timetable for supplementary papers.
[9]
Among the points taken by the respondents was that they
were ‘occupiers’ within the meaning of the Extension of
Security
of Tenure Act 62 of 1997 (‘ESTA’) and that by
virtue of s 17(1) of ESTA the high court did not have
jurisdiction.
Section 17(1) states that eviction proceedings in terms
of ESTA may be instituted in the relevant magistrate’s court or
in
the Land Claims Court. Section 17(2) states that if all the
parties agree the proceedings may be instituted in the high court.
Since Klein Akker is rural land and since the respondents alleged
that their incomes did not exceed the prescribed amount (R5000
p/m),
the applicability of ESTA, and thus this court’s jurisdiction,
turned principally on whether the respondents had consent
at any
relevant time to reside on the land. The respondents alleged that
they had such consent.
[10]
The matter came before the previous judge on 14 August
2013. It seems that the parties agreed to address the applicability
of ESTA
as a separated issue since it was the only point covered in
oral argument. Towards the end of the hearing the previous judge
asked
the parties to consider whether, assuming ESTA were found to
apply, they would agree to the high court’s jurisdiction, given
that the case had been pending for some months. The transcript
creates the impression that while the previous judge intended to
rule
on the applicability of ESTA the parties were nevertheless to revert
as to whether they would consent to the high court’s
jurisdiction.
[11]
On 3 October 2013 Mr Joubert forwarded to the previous
judge a draft order to which all the parties had agreed and
apologised for
the delay. There was a brief appearance on 8 November
2013 when the previous judge made the draft an order of court. The
order
provided in summary as follows:
·
The first and second respondents consented to the
high court’s jurisdiction to adjudicate the matter in terms of
ESTA if the
court should find ESTA to be applicable.
·
It appeared prima facie to the court that it was
necessary to join the MEC and Minister. A rule nisi was issued
calling on the MEC
and Minister to show cause why they should not be
joined and why they should not be ordered to file reports by
specified dates.
·
The City was directed to file a further report
dealing with specified issues.
·
The LRC and SLA were to confirm that between them
they represented all the occupiers. They were to provide an updated
list of the
names of the occupiers.
[12]
On 28 November 2013 Ms Hattingh of SLA filed an
affidavit adding several names to the persons represented by the SLA
but stating
that there appeared to be two new structures and that she
could not categorically confirm that all persons currently on the
land
had legal representation.
[13]
On 27 January 2014 the City filed a further affidavit
dealing with the matters on which it was required to report (its
third report).
The MEC and Minister did not object to their joinder
and filed reports on 6 March 2014 and 11 March 2014 respectively. The
liquidators
filed papers in reply to the reports.
[14]
On 24 June 2014 the City filed its fourth report setting
out personal information regarding the persons currently resident on
the
property. This followed a survey by City officials. This is the
report indicating that there were 79 households comprising 233
people.
[15]
On 7 July 2014 the previous judge by agreement made an
order joining the MEC and the Minister and directing the MEC to file
a further
report as to whether funds could be made available to the
City for alternative accommodation for the respondents. The
application
was postponed for argument on 16-17 September 2014.
[16]
On 20 August 2014 the liquidators concluded a further
deed of sale with Odvest for a price of R2,15 million. In terms
thereof Odvest
was to take occupation and transfer despite the
presence of the respondents on the property.
[17]
The proceedings did not continue on 16-17 September
2014. On 6 October 2014 the previous judge postponed the case to
17-18 February
2015. The City was directed to supplement a funding
application it had made to the provincial government, and the MEC and
Minister
were to file supplementary reports dealing with the
availability of land.
[18]
On 26 January 2015 Mr Joubert notified the previous
judge that the parties had met and agreed on various issues and that
inter alia
they wanted to postpone the case to 15-16 April 2015.
[19]
On 3 February 2015 the liquidators brought an
application to substitute Odvest as the applicant. The respondents
opposed the substitution.
Following replying papers, the respondents
withdrew their opposition. There is no formal order of substitution
on the file but
by the time the matter came before the previous judge
on 23 March 2015 Odvest was reflected as the applicant. In an order
of that
date made by agreement the application was set down for
argument on 9-10 June 2015. There was a timetable: Odvest was to file
further
papers if any by 27 March 2015; the City, MEC and Minister
were to file final reports by 30 April 2015; the respondents were to
file responding affidavits by 15 May 2015; and Odvest was to file
replying papers if any by 22 May 2015. The LRC and SLA were directed
to file an updated list of the persons they represented.
[20]
Odvest filed a supplementary affidavit on 1 April 2015.
Ms Hattingh on 21 April 2015 filed an updated list of the persons
represented
by the SLA. On 29 April 2015 the City filed its fifth
report. On 25 May 2015, about three weeks late, the MEC filed his
further
report. The respondents did not respond to Odvest’s
supplementary affidavit or the further reports.
[21]
The matter was argued before the previous judge on 9-10
June 2015. The issue of the applicability of ESTA, in particular
whether
consent had been furnished, was argued afresh together with
the other issues in the case. As previously mentioned, it seems to
have been envisaged that the previous judge would, following the
hearing on 14 August 2013, rule on the applicability of ESTA. There
was no new material on that question. It is possible that the
previous judge thought the issue had become moot in the light of
the
consent recorded in the order of 8 November 2013. However, to the
extent that the considerations for eviction under ESTA differed
from
those under PIE, the issue remained a live one (or at least so
counsel seem to have thought, since it took up a considerable
part of
the resumed hearing). Judgment was reserved, the judge observing that
in view of the fact that she had been case-managing
the matter for
over two years she would give the case preference.
[22]
Unfortunately the previous judge became indisposed
without delivering a judgment. Following an approach by the parties’
legal
representatives, the matter was assigned to me on 5 September
2016 on the basis previously indicated. It is now about four years
since the application was issued.
[23]
Where I refer to submissions made by counsel in
argument, I am referring to the hearing of June 2015 unless otherwise
indicated.
Where I refer to the ‘applicant’, this should
be understood as a reference to the liquidators or to Odvest as the
context
dictates.
ESTA
and PIE
[24]
If the respondents are ‘occupiers’ as
defined in ESTA, their eviction would depend on the following:
(i) Was
their right of residence lawfully terminated (s 8(1))?
(ii) Was
such termination just and equitable, having regard to the factors
listed in s 8(1) of ESTA, namely the fairness
of any agreement
or legal provision on which the applicant relies, the conduct of the
parties giving rise to the termination, the
interests of the parties,
including comparative hardship, the existence of a reasonable
expectation of renewal, and the fairness
of the procedure followed by
the owner?
(iii) If
so, has there been compliance with the procedural prerequisites for
eviction contained in s 9(2)(d)?
(iv) If
so, is eviction just and equitable, having regard to the factors
listed in s 11(3), namely the period of occupation,
the fairness
of the terms of any agreement, whether suitable alternative
accommodation is available, the reason for the eviction,
and the
balance of the interests of the applicant and the respondents?
(v) If
eviction is just and equitable, what is the just and equitable date
by which the respondents must vacate, having regard
to the factors
listed in s 12(2), namely the fairness of the terms of any
agreement between the parties, the balance of the
interests of the
applicant and the respondents, and the period of occupation?
[25]
If ESTA does not apply, the issues arising under PIE
would be the following:
(i) Would
the granting of an eviction order be just and equitable as
contemplated in s 4(7), having regard to all relevant
circumstances, including whether other land has been or can
reasonably be made available by the City or other organ of state or
land owner and including the rights and needs of the elderly,
children, disabled persons and households headed by women?
(ii) If
so, what is the just and equitable date by which the respondents must
vacate (s 4(8)), having regard to all relevant
factors,
including the period of occupation (s 4(9)).
Applicability
of ESTA
Is
the issue still relevant?
[26]
ESTA is no longer relevant to jurisdiction. In argument
Mr Magardie submitted that the consent to jurisdiction did not mean
that
the respondents agreed that the high court could determine
whether they should be evicted. He argued that the liquidators had
brought
the application on the basis of PIE and had not pleaded as an
alternative that the respondents should be evicted in terms of ESTA.
[27]
I do not agree with Mr Magardie’s submission. If
the respondents had intended to take that technical approach, there
would
have been no point in their conceding the high court’s
jurisdiction. When the respondents agreed that the court had
jurisdiction
‘to adjudicate the matter in terms of [ESTA]’,
they must have meant that the court could determine whether their
eviction
should be granted, having regard to the requirements of
ESTA. If, because of the basis on which the application was brought,
the
evidence did not establish compliance with the requirements of
ESTA, the application would naturally have to fail. However, if the
facts establish a case for eviction under ESTA, the fact that the
application was brought in terms of PIE would not stand in the
way of
an appropriate order.
[28]
Both ESTA and PIE would require the court to assess
whether eviction would be just and equitable and if so the just and
equitable
date for vacating. The same considerations would largely
determine the question whether the termination of any consent which
the
respondents had to reside on the land was just and equitable.
While the lists of factors to be taken into account in the two Acts
are not identical, in neither case is the list exhaustive. If a
factor is relevant under the one Act, it will almost certainly
be
relevant under the other.
[29]
I thus agree with Mr Joubert’s submission that at
a substantive level the outcome of the case is not affected by
whether one
approaches it in terms of ESTA or PIE. As I shall
presently explain more fully, there has also been compliance with
ESTA’s
procedural requirements.
[30]
I shall nevertheless deal with ESTA’s
applicability since it was fully argued at both hearings. The history
of the respondents’
occupation is in any event relevant to the
enquiry into what is just and equitable. Since the applicant seeks
final relief on motion,
the respondents’ version must be
accepted where there is a genuine dispute of fact.
Only
some respondents made affidavits
[31]
Not all the respondents filed affidavits. In argument Mr
Magardie said that he could not argue for the applicability of ESTA
except
in relation to those respondents who had made affidavits and
alleged consent. This concession was correctly made. In terms of
s 3(4)
of ESTA a person who has continuously and openly resided
on land for a period of one year shall be presumed to have consent
unless
the contrary is proved. Except in the case of the respondents
who made affidavits, there is no evidence as to when the respondents
moved onto the property. They have thus not shown that they are
entitled to the benefit of the presumption.
[32]
The respondents who filed affidavits and alleged consent
were:
·
Ilse April, her husband and their two minor
children (dwelling 12);
·
Dennis Jantjes and his partner (dwelling 24);
·
Neville Jansen, his partner and their minor child
(dwelling 25);
·
Christa Nimmerhout (dwelling 26);
·
Caroline Swanepoel, her husband, her two
daughters and two grandchildren (dwelling 31);
·
Pieter Hermanus (dwelling 32);
·
Marneville Solomons and his partner (dwelling
35);
·
Anna Schoeman and her six adult sons (dwelling
37);
·
Lizette Fourie, her partner and their two minor
children (dwelling 39);
·
Deon Louw (dwelling 42);
·
Carmelita Pietersen and her two minor children
(dwelling 43);
·
Dorothea Ferns, her husband, their three sons,
her sister and her two brothers (dwellings 50-53);
·
Angelina Blood, her husband and their two minor
children (dwelling 63);
·
Willem Gouws (dwelling 67).
The
period 1996 – December 2005
[33]
Du Toit used the property as a bus depot during
1996-1997. At that time there were no other occupiers. Du Toit’s
company,
Hotelink, bought the property in 1998. During the course of
that year Hotelink relocated the bus depot to Blackheath. For a while
the property was, with Du Toit’s permission, used by one Imraan
and several others, including Ahmed Kader (‘Kader’),
for
pigeon breeding. Imraan permitted certain people to reside on the
property. None of the respondents claim, though, to have
received
consent from Imraan.
[34]
Nimmerhout says that she and her family moved onto the
property in January 2000. There were already ten families living
there. She
erected two bungalows. She claims to have obtained
permission from one Grant Rabie (‘Rabie’) to whom she
paid rent
of R400 p/m.
[35]
Swanepoel says that she moved onto the property during
April 2000 at Rabie’s invitation; he claimed to be leasing the
property
from Kader. Their dwelling was an old bus which was towed
onto the property. She likewise paid rent of R400 p/m, which included
electricity and borehole water.
[36]
Schoeman alleges that she and her family have been
living on Klein Akker since November 2000. Rabie, whom she describes
as the ‘caretaker’
of the property, leased them a
caravan, initially at R350 p/m. By this stage the property was not
being put to any other use. She
says that during 2012 the new
‘caretaker’, Pieter Hermanus, allowed them to erect a
wendy-house.
[37]
The Ferns family also moved onto the property during
2000. Ferns says they had been unlawfully evicted from another
property in
Kraaifontein. She alleges that the mayor of Brackenfell,
Mr Fanie Jacobs, negotiated with the owner for them to rent the
stables
at R100 per stall. She attached an undated handwritten demand
for rent. She says that during 2001 she handed other documents to
an
attorney from Lawyers for Human Rights. (In reply Du Toit said he
knew nothing of the handwritten demand.)
[38]
Louw was another of the respondents to take up residence
on the property during 2000. He alleges that he had consent from
Rabie.
Jantjes moved onto the property during 2001. He too alleges
consent from Rabie.
[39]
The other respondents who made affidavits took up
residence on the property at later times, variously alleging consent
from Rabie
or Hermanus – Pietersen (2004), Gouws (2005),
Solomons (2006), April (2007), Blood (July 2011), Fourie (2011) and
Jansen
(February 2012).
[40]
To return to the earlier period, Du Toit says that in
late 1999 he visited the property because of the reported theft of
four horses.
He was surprised to see about 30 to 40 people (six to
eight families or groups) residing on the land. Imraan told him that
the
people had been brought to the farm in three yellow buses,
apparently by Kraaifontein municipal officials. He made enquiries at
the municipality but the officials claimed to know nothing about it.
Du Toit decided to ask an acquaintance of his, Hein Pieterse,
to move
onto the property. Pieterse told Du Toit that he would get rid of the
unlawful occupiers. Pieterse and one Theart took
up residence in the
main house. This was with Du Toit’s consent.
[41]
Pieterse reported to Du Toit that one Rabie claimed to
have previously lived on the property with Du Toit’s
permission. Du
Toit said that Rabie’s claim was untrue.
Pieterse brought Rabie to see him but Rabie was clearly uncomfortable
and left before
they could talk. Du Toit never saw Rabie again.
[42]
Du Toit claims that during the early part of 2000 he
called a meeting to inform the occupiers that they would have to
vacate the
farm. He told them that nobody had permission to reside
there. Theart delivered notice of the meeting to every structure on
the
property. There were six people present at the meeting but they
represented all the occupiers.
[43]
It appears that during May 2000 the Wineland District
Council (‘WDC’) obtained an order in the Kuilsriver
Magistrate’s
Court requiring Hotelink to procure the demolition
of the structures recently erected on the property. Although the
order and papers
relating to those proceedings are no longer
available, the order is mentioned in a letter which WDC’s
attorneys wrote to
Hotelink on 13 October 2000. In this letter the
attorneys said that the continued occupation of these structures was
undesirable
given the lack of sanitation and other services.
Complaints had been received from adjoining owners. Criminal charges
against Hotelink
were foreshadowed as were eviction proceedings
against the occupiers. Du Toit alleges that his late brother, who was
an attorney,
replied to the WDC’s attorneys stating that Du
Toit was not prepared to incur the costs of demolishing the
structures because
according to his information the people had been
brought there by officials of the Kraaifontein Municipality.
[44]
Du Toit says that during 2000/2001 the WDC attempted to
implement the demolition order with the support of the SANDF but that
political
intervention led to the eviction being stayed. It appears
that at around this time the water and electricity serving the
property
were disconnected. Nimmerhout makes reference to this,
saying that as a result the occupiers stopped paying rent. Schoeman
says
that the City subsequently provided the property with water and
toilets. Swanepoel says that after the electricity and water were
cut
off the City brought water to the property in a fire truck.
Eventually in 2008 the City put in three taps and portable toilets.
Ferns confirms that there was an eviction order at around 2000/2001
this time. She says the sheriff told her that it did not affect
her
family because they were living in a permanent structure (the
stables).
[45]
The WDC’s jurisdiction in relation to the matter
is unclear. At some stage the City became involved because on 30
October
2001 Hotelink wrote to the City’s municipal manager
regarding a ‘final notice’ dated 8 October 2001 which Du
Toit had received as to the undesirable state of affairs on the
property. Du Toit said that Hotelink was unable to comply with the
City’s demand. He referred to the unsuccessful attempt by the
WDC to implement the order of 24 May 2000. He Informed the
City that
he had tried various methods to persuade the occupiers to leave but
without success. He said that Hotelink was receiving
no money for the
occupation of the property and did not have funds to obtain an
eviction order or to supply the occupiers with
services. He welcomed
suggestions from the City as to how the situation could be improved.
There is no evidence that the City responded.
[46]
I have mentioned that some of the respondents claim to
have obtained consent from Pieter Hermanus (known to them as Ballie).
Hermanus
says in his affidavit, filed as part of the respondents’
papers, that he moved into a concrete structure on the property
during 2000 after obtaining consent from Rabie. He paid rent to
Rabie. About two years later Du Toit, whom he understood to be the
owner, approached him with a proposal that he lease the main house at
R1500 p/m. After inspecting the main house he told Du Toit
that he
was not interested because it was very dilapidated. He would rather
spend his money on building a house for himself elsewhere.
Du Toit
did not want the main house to stand empty and an agreement was thus
reached that Hermanus could occupy the main house
without paying rent
but would repair it at his own cost.
[47]
Importantly, Hermanus says that after he moved into the
main house Du Toit asked for his help in having the other occupiers
ejected.
Hermanus refused to become involved. Du Toit asked him at
least to ensure that no new people moved onto the property. Hermanus
only saw Du Toit on the property twice after this. Hermanus says that
over the last 12 years (this was as at January 2013) he gave
certain
people permission to live on the farm and turned others away. The
only person he identifies by name as having had his permission
is
Solomons.
[48]
Du Toit’s version in reply is very different. He
says Hermanus was simply one of the unlawful occupiers. Hermanus was
at the
meeting convened in early 2000. Du Toit says that during 2003
he found a buyer for the property, one Pascall, and told his friend
Hein Pieterse that he would have to vacate the main house and ensure
that all other persons residing on the property left. Pieterse
vacated the main house without advance notice. Shortly thereafter Du
Toit received a call from Hermanus to say that he had now
moved into
the main house and wanted to lease it. Du Toit rejected this proposal
because he had sold the property on terms which
obliged Hotelink to
give the buyer vacant occupation. He told Hermanus that he would have
to vacate the main house but that for
as long as he was there he
should at least look after it. Shortly thereafter Du Toit sent some
employees to collect the furniture
from the main house. Du Toit
denies that Rabie or Hermanus had authority to give anyone permission
to reside on the property.
[49]
It appears that the sale to Pascall did not proceed,
presumably because Hotelink was unable to give vacant occupation.
During 2005
Du Toit found another buyer, WAI. The sale agreement
between Hotelink and WAI was signed in June 2005. Clause 6.5 recorded
that
there were an unknown number of illegal occupants on the
property and any cost in having them removed would be for WAI’s
account. Transfer was passed in December 2005.
[50]
Du Toit says that during April 2005 he and Theart
delivered notice to all the occupiers stating that the property had
been sold
and that they must vacate by 1 June 2005. He attached a
copy of the notice dated 14 April 2005.The respondents deny having
seen
such a notice.
The
period December 2005 – October 2012
[51]
There is no evidence as to what WAI did after taking
transfer of the property. Various people moved onto the property
after December
2005. WAI went into voluntary liquidation in March
2009. During August 2010 WAI’s creditors approved a resolution
authorising
the liquidators to sell and transfer the property. The
first deed of sale, concluded with Odvest in April 2011, required the
liquidators
to give vacant occupation and thus lapsed.
[52]
On 30 January 2012 the liquidators caused the sheriff to
serve on the respondents a notice to the following effect: (i) that
the property belonged to WAI, which was in liquidation; (ii) that
according to the liquidators’ information nobody was
currently
occupying the property with consent; (iii) that an eviction
application, of which the recipients would be given
further notice,
would be made on a date after 1 March 2012; (iv) that if any
recipients regarded themselves as having consent
to occupy the
property, such consent was terminated and the liquidators would seek
their eviction if they were still in occupation
when the application
was brought; (v) that any recipient who did not intend to vacate
the property should complete the accompanying
questionnaire which
would assist the court in deciding whether an eviction order should
be granted.
[53]
Only one occupier completed the questionnaire. I have
not been able to find his name on the list of current occupiers.
[54]
During March 2012 the Department of Rural Development
and Land Reform asked SLA’s Mr Christian Julius (‘Julius’)
to act as a mediator with a view to avoiding eviction. Presumably
this was in terms of s 21 of ESTA. Julius says that mediation
failed because the City was not willing to participate. The City’s
position was communicated to Julius in an email dated
3 August 2012
from Mr Greg Goodwin, City Head: Sub Councils and Area Coordination:
Human Settlements Directorate (‘Goodwin’).
Goodwin is the
person who has made all affidavits on behalf of the City in the
present case.
[55]
The eviction application was launched in October 2012. I
have already summarised the procedural history.
Conclusions
on ESTA
[56]
In regard to the period for which Hotelink was the owner
(1998-December 2005), I am satisfied that the applicant rebutted the
presumption
of consent created by s 3(4) of ESTA. The
respondents are unable to refute Du Toit’s evidence that Rabie
and Hermanus
had no authority to consent to their occupation. The
respondents filed no affidavit by Rabie. Although they filed an
affidavit
by Hermanus, he did not claim to have any authority from
Hotelink to give consent. On the contrary, it must have been clear to
him from what he was told by Du Toit that Hotelink did not consent to
past or future occupation by others. Du Toit’s evidence,
apart
from being uncontroverted, is inherently plausible. There is nothing
to indicate that Du Toit or Hotelink received any financial
benefit
from occupation by the respondents. It is also clear that fairly soon
after Hotelink became the owner of the property it
came under
pressure from the local authority to evict the respondents and
demolish their structures. Du Toit’s evidence that
he called a
meeting of occupiers during 2000 to tell them to vacate rings true.
It is consistent with the letter of desperation
which he wrote to the
City on 30 October 2001. When Du Toit sold the property in 2005 the
respondents were described as unlawful
occupiers.
[57]
Section 3(5) provides that a person who has continuously
and openly resided on land for a period of three years shall be
deemed
to have done so with the knowledge of the owner or person in
charge. This does not take the respondents’ case further. It
is
not the applicant’s case that Hotelink or WAI were unaware of
the respondents’ presence. Section 3(5) does not give
rise to
deemed consent but to deemed knowledge. While an owner’s
failure to take action against occupiers over a lengthy
period may in
appropriate circumstances justify an inference of consent, the mere
lapse of time does not suffice. Both sides referred
to
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & Others
(Centre on Housing Rights and Evictions & Another,
Amici Curiae)
2010 (3) SA 454
(CC), which was concerned
with the similar definition of ‘consent’ in PIE. Although
the members of the court were unanimous
on the outcome, there were
differences in reasoning and approach. Those members of the court who
found that the occupation had
been with consent were satisfied that
the consent had been validly terminated. The finding of consent was
based on the particular
facts of the case coupled with the
circumstance that the inferences to be drawn from those facts had to
take into account that
the owner was a municipality with
constitutional duties, not a private owner. Hotelink did not owe such
duties. If Du Toit ‘tolerated’
the occupation, it was
because he did not have the resources or inclination to take legal
action.
[58]
All those respondents who were in occupation at any
stage over the period January 2000-December 2005 were thus in my view
occupying
the property without consent from the owner or person in
charge. ESTA thus did not apply to them at that stage.
[59]
WAI took transfer on 27 December 2005. I have already
observed that there is no evidence regarding WAI’s tenure as
owner until
March 2009 when the company went into liquidation. The
applicant has not explained the absence of evidence from Mr Hattingh
or
someone else able to speak on WAI’s behalf. Swanepoel filed
a supporting affidavit by a Mr Dirk Hanekom, a former employer
of one
of the Swanepoel family, who said that he saw Mr Hattingh on the farm
a couple of times and that Mr Hattingh gave letters
to some people to
ask them not to let any more people move onto the farm.
[60]
It seems to me that the effect of s 3(4) is that
any of the respondents who resided on the property continuously and
openly
for a period of at least one year after 29 December 2005 would
be entitled to the benefit of the presumption if their residence
began prior to 30 January 2011 (ie at least one year prior to the
service of the notice of 30 January 2012). I do not think it
matters
that the express consent alleged by them (ie consent from Rabie
and/or Hermanus) has been shown not to have been valid
consent. The
applicant still needed to prove that the new owner, WAI, did not
consent to the occupation. While it may not have
taken much evidence
to rebut the presumption, there is no evidence at all. It is possible
that WAI consented to the continued occupation
until such time as it
needed the property. The liquidators themselves do not seem to have
done anything overt until service of
the notices of 30 January 2012.
[61]
The following respondents who made affidavits failed to
establish that they took up residence prior to 30 January 2011 and
also
failed to establish that they were occupying with valid consent:
·
The Jansen household: Jansen says he and his
family took up occupation in February 2012. This was less than one
year before proceedings
were instituted and shortly after the sheriff
served notices to vacate. Jansen says he had permission from
Hermanus. If Hermanus
ever had authority to give consent (which he
did not), he certainly no longer had such authority in February 2012.
·
The Blood household: Blood says that she and her
family have been in occupation since July 2011. Theirs was among the
households
which received notice to vacate in January 2012. This was
less than one year after she and her family moved onto the property.
She does not claim to have received any express consent.
·
The Fourie household: Fourie says that she and
her family moved onto the property during 2011. She does not say
when. She has thus
not shown that she and her family were in
occupation for at least one year prior to 30 January 2012. She said
that Hermanus made
no objection when she erected her wendy-house.
This falls well short of an allegation of consent from the owner or
person in charge.
Since the company was in liquidation, authority
would have to proceed from the liquidators.
[62]
Hermanus provided no information about his personal
circumstances. He did not say that he earned less than R5000 p/m. He
thus did
not bring himself within the purview of ESTA.
[63]
The other respondents listed in para 32 above are
entitled to be treated as persons who were occupying the property
with the consent
of the owner or person in charge as at 30 January
2012, the date on which WAI gave notice to vacate. ESTA thus applies
to the termination
of their rights of residence and to their
eviction. In the light of the provisions of s 24, this
conclusion is not affected
by the subsequent sale of the property to
Odvest.
Termination
of ESTA consent
[64]
The consent which some of the respondents are presumed
to have had could clearly not, in law, have been anything more than
precarious
and terminable on reasonable notice. When s 8(1) of
ESTA says that an occupier’s right of residence may be
terminated
on any lawful ground, this includes in my view the
termination on reasonable notice of a precarious consent.
[65]
The liquidators served a notice to vacate on 30 January
2012. This incorporated a termination of any consent which any of the
occupiers
might allege. The notice did not state when the consent
would terminate though occupiers were warned that an application for
eviction,
of which they would be given further notice, would be made
after 1 March 2012. If the application had been launched in early
March
2012, the notice period of just over one month might well not
have been regarded as reasonable, given the length of time for which
some of the respondents had been in occupation. However the
application was only issued in mid-October 2012. The respondents thus
effectively had more than eight months’ notice. In my view the
presumed consent had lawfully been terminated by the time
the
application was issued.
[66]
There is the further requirement that the termination
should have been just and equitable, having regard to the factors
listed in
s 8(1). There is a separate enquiry into what is just
and equitable when it comes to determining whether unlawful occupiers
should be evicted and if so the date on which they should be evicted.
Accordingly one should not assume that a termination of consent
is
unjust and inequitable simply because the consent was terminated with
effect from a date earlier than the one on which it would
be just and
equitable to evict the occupiers.
[67]
The effective termination of consent more than eight
months after the giving of notice is not unfair in view of the
precarious consent
which the relevant respondents enjoyed. They could
not reasonably have expected to be allowed to stay on the property
for ever.
There is no evidence that any of them have paid rent since
the disconnection of services during 2001. In the circumstances their
lengthy occupation cuts both ways: while termination of consent may
be more disruptive when the period of residence has been lengthy,
the
respondents have enjoyed a lengthy period of residence without having
to pay for it and the owner has enjoyed no benefit from
the property.
[68]
The liquidators of WAI were under an obligation to
realise the corporation’s assets. The initial sale to Odvest
failed because
the liquidators were unable to give vacant possession.
The conduct of the liquidators in terminating the consent cannot thus
be
regarded as unjust or inequitable.
[69]
Any respondents who did not intend to vacate the
property were invited to provide information which would assist the
court in deciding
whether an eviction should be granted or not. Since
the liquidators’ view was that nobody was occupying the
property with
consent, this invitation focused on eviction rather
than termination of consent. Nevertheless there was a significant
period during
which the respondents could have provided information
to show that the termination of consent would not be just and
equitable.
Furthermore the liquidators did not decline to participate
in the mediation process. That process was scuppered because the City
chose not to be part of it. I do not think the process followed by
the liquidators leading up to the launching of the application
in
mid-October 2012 can be regarded as unfair.
[70]
In human terms the respondents’ prejudice
outweighed that of WAI, which was purely financial. However the
prejudice in question
would be the result of eviction rather than the
termination of consent per se. The extent of the eventual prejudice
would depend
on whether organs of state could provide alternative
accommodation for the respondents. However the duties of organs of
state cannot
be invoked for as long as the respondents have
consent from the owner. So unless the applicant could terminate the
consent it would
find itself in a Catch-22 situation.
[71]
I have thus concluded that the termination of the
respondents’ consent to reside on the property was lawful, just
and equitable.
[72]
I should mention that none of the respondents claimed
the special protection afforded by s 8(4) to persons who have
resided
on land for more than ten years and have reached the age of
60. While one or two of the respondents may have been in occupation
for ten years and have reached the age of 60 by the time the notices
of 30 January 2012 were served, I have found that they did
not have
consent prior to 29 December 2005. The ten-year period contemplated
in s 8(4) is in my view ten years of lawful occupation,
ie
occupation with consent.
Section
9(2)(d) of ESTA
[73]
In regard to the procedural requirements of s 9(2)(d),
the liquidators understandably brought the application in terms of
PIE.
The application was thus not preceded by the prescribed written
notices to the occupiers, the City and the provincial office of
the
Department of Rural Development and Land Reform as contemplated in
s 9(2)(d). However the proviso to para (d) states that
if a
notice of application to court has, after the termination of the
right of residence, been given to the said persons not less
than two
months before the date of the commencement of the hearing of the
application, the requirements of the section shall be
deemed to have
been complied with. The respondents and the City had notice of the
application when it was served on them in late
October 2012. The
Department received notice when the application was served on it
pursuant to the order of 8 November 2013. The
Minister, through the
Chief Director of the provincial office, filed a report on 11 March
2014, some 15 months before the application
was heard. In the
circumstances there has been deemed compliance with s 9(2)(d).
Is
eviction just and equitable (ESTA and PIE)?
[74]
Whether ESTA or PIE applies, a determination must be
made as to whether eviction would be just and equitable and if so the
just
and equitable date for eviction. I intend to discuss these
questions together because on the case advanced for the respondents
and the City a just and equitable date for eviction may lie so far in
the future that it might not be just and equitable to grant
an
eviction order at all.
The
owner
[75]
The land is privately owned. WAI’s liquidators
required eviction so that they could sell the land and give vacant
possession.
They were eventually able to sell the property to Odvest
for a reduced price on the basis that Odvest would take the risk of
the
unlawful occupation. Odvest’s deponent, Mr Gary Luyt
(‘Luyt’), stated in the substitution application that
Odvest
had bought the property for industrial or semi-industrial
purposes, for which it needed various approvals and rezoning. He
anticipated
that the development of the property would create about a
hundred jobs.
[76]
Luyt, who made his affidavit in January 2015, said that
there was some urgency in the matter. No real planning could be
undertaken
without certainty as to whether the property would be
vacated. He also said that he had received frequent reports and
complaints
from owners of neighbouring properties as well as SAPS of
criminal conduct by occupiers of the property. More direct evidence
of
this was provided by way of an affidavit served from the chief
executive officer of a security company, Mr Charl du Toit. This
affidavit was served on 1 April 2015. The previous judge’s
order of 23 March 2015 permitted the applicant to file supplementary
papers by 27 March 2015. Mr du Toit’s affidavit was a few days
late but no objection was taken. The respondents did not exercise
their right to reply to the affidavit.
[77]
The only respondent who is directly implicated by Mr du
Toit’s affidavit is Hermanus. There is no basis for finding
that all
or most of the respondents are engaged in criminal conduct.
Nevertheless it is clear that the state of affairs which prevails on
and around the property is undesirable.
[78]
The successive owners of the property have had to
tolerate lengthy periods of unlawful occupation. It is reasonable to
infer that
this negatively affected the price which Hotelink was able
to get for the property in 2005 and which the liquidators were able
to realise by way of the second sale to Odvest in August 2014.
[79]
In
City of Johannesburg v
Changing Tides 74 (Pty) Ltd & Others
2012
(6) SA 294
(SCA) Wallis JA said that a private entity is not obliged
to provide free housing for other members of the community
indefinitely
(para 18). He expressed some difficulty with the
proposition that the availability of alternative accommodation could
bear on whether
an eviction order should be granted as distinct from
the date of eviction. He tentatively suggested that in a case where
occupiers
would be entitled to a lengthy period of notice before
being required to vacate, the unavailability of alternative
accommodation
might operate as a factor to persuade the court that
the issuing of an eviction order at that stage would not be just and
equitable
‘but such cases are likely to be rare’. He
emphasised that this did not mean that the availability of other land
was
irrelevant where the applicant was a private owner, only that the
weight to be attached to that factor ‘may not be great’.
In most cases eviction would be just and equitable if the owner
demonstrated a need for possession and there is no valid defence
to
the claim (para 19).
[80]
In the present case the respondents have no defence in
law to the claim for their eviction, any consent which they enjoyed
having
been terminated. WAI’s liquidators required vacant
possession in order to comply with their statutory duty to realise
the
corporation’s assets. Odvest, having purchased from the
liquidators, requires the land for development. Odvest may not
require
immediate possession but it does need certainty that the
respondents will vacate the property before it embarks on the process
of development, including the obtaining of planning approvals.
The
respondents’ circumstances
[81]
As is to be expected, the personal circumstances of the
respondents vary widely as do their periods of residence on the
property.
Save for those respondents who filed affidavits, the
information about their personal circumstances is sketchy. There is
some unsworn
information in the questionnaires. The City has provided
additional information in its report of 24 June 2014. I am aware that
judges must be proactive in ensuring that sufficient information is
placed before the court to determine whether eviction would
be just
and equitable. However the respondents are represented by experienced
public-interest lawyers. I think I am entitled to
assume that all
reasonable steps were taken to procure information.
[82]
It is clear from the respondents’ affidavits that
some of the households include children, the elderly and persons with
disabilities.
To judge by the ID numbers contained in the schedule
prepared by the City pursuant to its inspection of April 2014, there
are at
the present time (October 2016) 50 children spread across 27
households. There are at least 12 persons who are now over the age
of
60. Ferns says that her 90-year-old father is part of her household
(I have not been able to find his particulars on the City’s
schedule). Caroline Swanepoel says that her husband is disabled and
in a wheelchair. Both he and she are now over the age of 60.
Ferns,
who according to her ID number seems to be in her mid-50s, say she
has been medically boarded following lengthy medical
treatment in
Stikland. One of her brothers, who lost an eye in an accident, is in
receipt of a disability grant. Jantjes alleges
that he is disabled
due to chronic asthma and was retrenched in 2005. Fourie is medically
unfit to work because of an injury to
her right hand which she
suffered in a car accident.
[83]
The picture that emerges from the affidavits and
questionnaires filed in respect of the respondents is that of
unemployment or low-paid
casual work and that they will be homeless
if evicted from the property.
[84]
In the City’s affidavit of 24 June 2015 Goodwin
says that not a single household head is employed, that no households
are
in receipt of social grants or housing subsidies and that none of
them owns property elsewhere. This information may not be entirely
accurate. A number of the respondents who made affidavits referred to
old age pensions, disability grants and child grants.
[85]
The property is not served by electricity, same having
been cut off some years ago. There are three standing pipes which
supply
water to residents. There are a few portable toilets.
[86]
According to the City only five of the respondents’
names appear on the City’s waiting list for housing. Three were
registered in 1999, another in 2001 and another in 2010.
[87]
Although the circumstances of the various respondents
differ, it was not suggested in argument that distinctions should be
drawn
between them in determining whether eviction should be granted
and the date for eviction. Presumably Odvest’s purposes cannot
be achieved unless all the respondents are evicted. While some
respondents may have greater claim to protection than others, it
would not be just and equitable to grant an eviction against some and
refuse it against others, or to set some eviction dates earlier
and
others later, since partial or staggered evictions would bring about
hardship for the evictees without corresponding benefit
to Odvest.
[88]
From a practical point of view, therefore, the just and
equitable outcome is largely determined with reference to those
households
with the strongest case for significant protection. There
are at least some households who have resided on the property for
many
years, whose members include children, the elderly and/or the
disabled, who have little or no income, and who have nowhere else
to
go.
Alternative
accommodation - the City’s stance
[89]
An eviction order could not be humanely executed unless
there were somewhere else for the respondents to go (cf
Government
of the Republic of South Africa & Others v Grootboom & Others
2001 (1) SA 46
(CC) para 88;
President
of the Republic of South Africa & Others v Modderklip Boerdery
(Pty) Ltd (Agri SA & Legal Resources Centre, Amici
Curiae)
2004
(6) SA 40
(SCA) para 26). On the other hand a refusal to order
eviction would effectively amount to an unjust expropriation of
Odvest’s
land in circumstances where the latter is under no
duty to provide land or housing to the respondents.
[90]
The undesirability of allowing land invaders to
queue-jump is a legitimate consideration which municipalities often
raise. I do
not think it is a concern in the present case. Klein
Akker is not a property on which the City has developed or is
intending to
develop housing. The respondents did not take up
residence on the land with a view to forcing the City to give them
preferential
treatment. Even now I do not understand them to claim
formal housing. The City’s housing reports unfortunately
indicates
that they are unlikely ever to receive formal housing. What
they need is a piece of land with some basic services on which they
can locate the humble structures currently erected on the applicant’s
property.
[91]
The City’s attitude in its first four reports was
that it was unable to assist the respondents. In the first report
(November
2012) the City attached its five-year Integrated Housing
Plan (‘IHP’) 2012-2017, stating the position as at 1 July
2012. The IHP described all the existing and proposed human
settlement projects, including emergency housing. The City said that
there was currently no emergency accommodation for the respondents.
There were more than 400,000 households in need of formal housing.
There were about 363 000 persons on the waiting list. The City
was currently allocating houses to persons who had been on
the list
since 1989.
[92]
In the second report (April 2013) the City said that it
could provide accommodation to the three elderly occupiers in old age
facilities
(this would mean separating them from their families). In
regard to the two disabled occupiers, the City would prioritise their
cases but currently had no accommodation for them. The City had also
established that the nearby Stellenbosch Municipality could
not
assist. The City had asked the provincial government whether it could
help and was awaiting a response. The possible purchase
by the City
of Klein Akker had been discussed in an engagement session. The City
was not in favour of doing so because the property
lay beyond the
urban edge and would thus not be a suitable site for formal housing
or as a temporary relocation area. The City,
so Goodwin said, was
obliged to act within its available resources and fairly to all
constituents. There were many desperate and
needy people requiring
the City’s assistance. It would be unlawful to prioritise one
part of the community at the expense
of others who had been waiting
many years for assistance.
[93]
In its third report (January 2014), which addressed
various questions identified in the order of 8 November 2013, the
City repeated
that it was unable to accommodate the respondents in
any of its emergency housing projects. Particulars were furnished of
vacant
land owned by the City in excess of 2 ha where the zoning did
not preclude human settlement. Some of this land fell on or outside
the urban edge and was being ‘banked’ for long-term
development. Such land currently has no bulk services. Other vacant
land was earmarked for development in accordance with the City’s
IHP, the 2013/2014 review of which was attached. One could
not use
all this land for emergency housing – the IHP covered an array
of human settlement projects. The City had been unable
to identify
any vacant land which was not already designated for other purposes.
[94]
Goodwin expanded on why the City could not buy Klein
Akker. He said that the City’s annual budget for land
acquisition was
R30 million and that over the last five years the
City had acquired about 300 ha of land with this money. The budget
allocation
for the next three years was already committed in terms of
the IHP. The City could only apply such money to the purchase of
Klein
Akker by sacrificing another project. Another consideration was
that the City was averse to rewarding land owners who failed to
take
action against land invasions and who then put pressure on the City
to buy their land. (As to the last of these points, whatever
the
merits of that consideration may be in other circumstances, there is
nothing to suggest that WAI or Odvest bought the property
with this
sinister intention.)
[95]
Goodwin also addressed the question as to why the City
could not submit an application for emergency housing under Chapter
12 of
the Housing Code. The Housing Code was promulgated under the
Housing Act 107 of 1997
. The Code was revised in 2003 pursuant to the
decision in
Grootboom
.
Chapter 12 dealt with housing assistance in urgent situations.
Chapter 12 was discussed at some length in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd & Another
2012 (2) SA 104
(CC). The affidavits and submissions in the present case continue to
refer to the relevant part of the Code as Chapter 12. On my
understanding, however, the Code was revised in 2009. What was
previously Chapter 12 is now Part 3, and it is this document which
Goodwin annexed to his affidavit (though he called it Chapter 12).
Part 3 appears to include similar provisions to those discussed
in
Blue Moonlight.
[96]
Goodwin explained that in terms of Part 3 the City would
first need to make an application to the provincial government for
approval
of an emergency housing project. If the project were
approved, the City would use money allocated to it by the provincial
government
from funds received by the latter pursuant to a
Division
of Revenue Act
(‘DORA’). Once the land was acquired, the
project would be added to the City’s five-year IHP and the
three-year
budget. Goodwin said that the City did not admit that it
had an obligation to make a
Part 3
application to the provincial
government for the benefit of the respondents but that if the City
were provided with the requisite
information it would ‘out of
humanitarian considerations’ apply to the provincial and
national governments for the
necessary assistance. If such assistance
were not forthcoming, the City could not accommodate the respondents
within its existing
framework for emergency housing, either from its
own resources or from its DORA allocation, without prejudicing other
potential
beneficiaries. He added that such a situation had not yet
arisen – the City’s planning for emergencies had to date
accommodated all such cases.
[97]
In the City’s fourth report (June 2014), Goodwin
said that in the light of the information obtained pursuant to the
City’s
survey it would be submitting an application for
emergency housing to the provincial government. He said the City
would only be
able to assist the respondents if the provincial
government’s approval related both to land and funding.
[98]
It appears that by the time the previous judge made her
order of 6 October 2014 the City had lodged an application with the
provincial
government, because the order inter alia required the City
to supplement its application by 13 October 2014. In the supplemented
application of 10 October 2014 the City said that three pieces of
land owned by the Housing Board had been identified as possible
sites
for the accommodation of the respondents. The City applied for one of
these properties together with funding of R4 million
(based on
R50 000 per structure – ie 80 structures in all).
[99]
On 13 October 2014 the provincial government notified
the City that for various reasons none of the three pieces of land
was suitable.
The City’s attention was drawn to the properties
which the provincial government had already made available to the
City over
the past 24 months. On 24 November 2014 the provincial
government wrote a further letter to the City, stating that while the
province
favoured a pragmatic approach the City’s application
remained inadequate. The City should explicitly motivate the need to
prioritise the Klein Akker community. The province wished to avoid
‘an entirely unprincipled approach, in which a community
is
prioritised merely to avoid litigation’. Since the three
properties previously identified were not suitable, the City’s
application would either have to relate to Klein Akker itself (if the
owner were willing to sell) or to alternative land which
the City
would have to identify. The province recorded that it had already
given the City in-principle funding approval for housing
and services
for the Klein Akker community.
[100]
The City’s fifth and final report was filed on 29
April 2015. Goodwin said that there had been interaction with the
provincial
government and that the City was now in a position to
provide some sort of assistance to the respondents though it was not
immediately
available. More particularly, the City was willing to
accommodate the respondents in the Bloekombos project, which would
provide
2000 serviced sites as part of an Incremental Development
Area. The City was in the process of ensuring compliance with the
statutory
requirements for subdivision, environmental impact
assessments and permitted densities. Goodwin anticipated that the
serviced sites
would be available for occupation in four to five
years’ time. He said that he was unfortunately unable to
provide any further
certainty ‘given that the length of time
required for the various approval processes is, at this stage,
unclear and to a
large extent dependent on the public participation
process’. He said that the City would argue that eviction in
four to five
years’ time would be just and equitable on the
facts of the matter.
[101]
In his report the MEC attached the correspondence
between the City and provincial government of October/November 2014
and noted
that the City had not pursued its funding application. He
added that if financial and other support from the province were
still
required, the province would consider any application by the
City.
The
competing contentions in summary
[102]
In argument Mr Joubert for the applicant submitted that
the City was obliged to provide the respondents with alternative
accommodation,
that an eviction order would be just and equitable,
and that the outer limit for a just and equitable date of eviction
would be
18 months, ie 10 January 2017. He said that this would
ensure that children were not uprooted during the school year and
that the
City had enough time to budget for the alternative
accommodation.
[103]
The 18-month period proposed by Mr Joubert was based on
a misreading of the case which was said to represent the outer limit,
namely
Johannesburg Housing Corporation (Pty)
Ltd v Unlawful Occupiers, Newton Urban Village
2013
(1) SA 583
(GSJ), which involved about 2000 unlawful occupiers. Mr
Joubert said that the judgment was handed down on 7 April 2011 and
that
the date set for eviction was 15 January 2013. The judgment was
in fact handed down on 15 November 2012 so the period was only two
months. Another case mentioned by Mr Joubert was
Hattingh
& Others v Juta
2013 (3) SA 275
(CC). He
submitted that seven months was allowed in that case. Again this is
based on a misreading. The judgment was handed down
on 14 March 2013,
not 29 November 2012, so the period was about three months (this was
not a mass eviction). In
Blue Moonlight
the
period was four and a half months. In
Joe
Slovo
the owner was the municipality and was
ordered to provide alternative accommodation. The eviction dates in
that case do not shed
light on what should happen in a case such as
the present one.
[104]
Mr Magardie said that he accepted that the City was not
under an obligation to provide the respondents with immediate
alternative
accommodation. He submitted that the respondents should
be entitled to remain on Klein Akker until accommodation became
available
to them at Bloekombos, regarding which there should be a
further process of engagement.
[105]
Mr Katz for the City was mainly concerned to persuade
the previous judge that the City had complied with its housing
obligations.
He acknowledged that the judge was in an invidious
position. He did not venture a suggestion as to what order should be
made in
regard to eviction save to say that no order should be made
against the City.
The absence of an
attack on City’s housing policy or its implementation
[106]
Mr Katz argued that the important distinction between
Blue Moonlight
and the
present case is that in
Blue Moonlight
the
municipality’s housing policy was attacked and declared
unconstitutional whereas in the present case there is no such
attack.
Mr Katz argued that in the absence of such an attack the court could
not find that the City was breaching its constitutional
housing
obligations by failing to provide the respondents with emergency
accommodation.
[107]
I disagree with Mr Katz’s argument. The court has
the widest power to frame a just and equitable order. A court will
naturally
not order a party to do something which is impossible (
Blue
Moonlight
para 69). However, if the City were
able to provide emergency alternative accommodation, the court would
not be precluded from incorporating
this as a component of an
eviction order merely because the alternative land did not currently
constitute one of the projects in
the City’s housing policy or
because the occupiers were not currently beneficiaries of any
approved project. Although Van
der Westhuizen J, who wrote for a
unanimous court in
Blue Moonlight
,
identified the constitutionality of the municipality’s
emergency housing policy as one of the matters to be addressed in
considering whether eviction would be just and equitable (para 33
read with paras 76-95), his reasoning as a whole does not suggest
that a finding of invalidity was essential to the orders which the
court made in regard to eviction.
[108]
In
Blue Moonlight
the
occupiers brought a counter-application to declare the emergency
housing policy invalid because of the distinction drawn therein
between occupiers evicted by the municipality and occupiers evicted
by private owners. This distinction was held to be irrational
and the
counter-application succeeded. Para (e)(iii) of the order is the
relief granted on the counter-application. By the time
the matter
reached the Constitutional Court the attack on the housing policy was
quite narrow. The municipality’s policy
distinguished between
‘temporary accommodation’ and ‘emergency
accommodation’. Temporary accommodation
was potentially
available to persons evicted by the municipality itself from unsafe
buildings. Where persons were evicted by a
private owner (whether
from safe or unsafe property), the evictees could only be assisted
under the ‘emergency accommodation’
part of the housing
policy (which followed Chapter 12 of the Code). Since emergency
accommodation was said to be fully subscribed,
the distinction
potentially deprived occupiers evicted by private owners from unsafe
buildings of temporary accommodation.
[109]
There is nothing in Van der Westhuizen J’s
judgment to indicate that the eviction order would not have been
granted but for
this finding of invalidity. The reasoning contained
in paras 34-75 was clearly regarded by the court as sufficient to
justify the
eviction order and the related order for the municipality
to provide the occupiers with alternative accommodation. The
reasoning
in those paragraphs concerned the municipality’s
obligations and resources in respect of emergency housing in general.
But
for the fact that the municipality’s housing policy
purported to exclude privately evicted occupiers from certain
temporary
facilities which might otherwise be available to meet an
emergency, it would not have been necessary for the court to deal
with
that distinction. The achieving of just and equitable outcomes
would be seriously hampered if the court were precluded, in the
absence of a substantive application attacking the municipality’s
housing policy, to grant an eviction order which required
the
municipality to provide alternative accommodation. It would also
impose an unreasonable procedural burden on the owner and
occupiers.
[110]
Such a view is also inconsistent with
Changing
Tides
where Wallis JA said (para 37) that if
eviction would probably result in occupiers being rendered homeless
the municipality’s
constitutional obligations to such persons
are engaged. The availability of alternative accommodation from the
municipality then
becomes an important issue. Regarding the
municipality’s complaint in that case that it had been
incorrectly joined, Wallis
JA said the following (the reference to
the City being to the City of Johannesburg):
‘
An
eviction order could only be made on appropriate conditions, which
would necessarily include conditions relating to the provision
of
temporary emergency accommodation. In those circumstances the City
manifestly had a direct and substantial interest in the outcome
of
the litigation and had to be joined as a necessary party. The City’s
argument in regard to joinder was misconceived. It
was not joined in
order to protect the interests of the occupiers, but in order to
enable the court to discharge its functions
in accordance with the
requirements of PIE.’
[111]
The City’s housing policy does not draw the
distinction which was found in
Blue Moonlight
to be irrational. That part of the
Blue
Moonlight
judgment thus has no bearing on the
present matter.
The Blue Moonlight
guidance
[112]
The balance of the judgment in
Blue
Moonlight
does, however, provide some
guidance though each case must turn on its own facts. In regard to
the rights of owners in a constitutional
and PIE era (para 32(a) read
with paras 34-41), the court emphasised both
s 26(3)
and s 25(1)
of the Constitution, stating that these opposing interests must be
balanced in as just a manner as possible (para
36). Unlawful
occupation results in a deprivation of property and deprivation must
pass constitutional muster (para 37). An owner
who has been aware of
the presence of occupiers for a long time ‘must consider the
possibility of having to endure the occupation
for some time’.
Although an owner ‘cannot be expected to provide free housing
for the homeless on its property for
an indefinite period’, the
owner in certain circumstances ‘may have to be somewhat
patient, and accept that the right
to occupation may be temporarily
restricted’ (para 40).
[113]
In
Blue
Moonlight
a
number of the occupiers had once resided on the property with the
permission of their employer, a company which had operated from
the
premises. The applicant for eviction had bought the property knowing
about the occupation. There was a factual dispute as to
whether the
occupiers had continued paying rent to the applicant but their
occupation certainly became unlawful at some stage.
[1]
In the present case many of the respondents never had consent to
reside on Klein Akker. Some of them are, in respect of the period
between December 2005 and January 2012, entitled to the presumption
created by s 3(4) of ESTA. Odvest, like the applicant
in
Blue
Moonlight
,
bought the property with knowledge of the unlawful occupation.
Odvest’s predecessor, WAI, also purchased with such knowledge.
[114]
The
Blue Moonlight
judgment
proceeds with a detailed discussion of the municipality’s
obligations in regard to providing accommodation (para
33(b) read
with paras 42-67). The court said that although it is generally
desirable to join the relevant provincial and national
ministers,
their non-joinder will not necessarily be fatal. The joinder of the
municipality as the ‘main point of contact
with the community’
is, however, essential (para 45). Local government has an important
role to play in the provision of
housing (para 46).
[115]
The municipality argued that its role was, in the light
of the provisions of Chapter 12, a secondary and limited one (para
46).
The analysis which followed was largely directed at refuting the
municipality’s argument (and see also
Changing
Tides
para 39). In regard to emergency
housing, reference was made to Chapter 12 of the Code, the relevant
provisions of which are now
found in Part 3 of the Code. Van der
Westhuizen J emphasised that the eviction of people from land falls
within Chapter 12’s
definition of an emergency. The
municipality argued that on a proper interpretation of Chapter 12 it
was neither entitled nor obliged
to fund emergency accommodation
(para 48). The court rejected this argument. Although endeavours by
local authorities to fulfil
the right of access to adequate housing
would be empty in the absence of funding from national and provincial
government, there
is no basis for the assertion that municipalities
are not entitled to self-fund, ‘especially in the realm of
emergency situations
in which [the municipality] is best situated to
react to, engage with and prospectively plan around the needs of
local communities’
(para 57). The argument that the
municipality was not empowered to act outside the national housing
policy was found to be ‘unpersuasive’
(paras 58-59).
[116]
The municipality argued that the emergencies covered by
Chapter 12 were not situations which a municipality could predict,
plan
and budget for and that all that could be expected of the
municipality was to respond to an emergency in an ad hoc fashion by
way
of an application for funding to the province (para 62). Van der
Westhuizen J said that there was no clear indication of this in
the
wording of Chapter 12. If a municipality were always required to
apply to the province on an ad hoc basis, ‘it would
go against
the very essence of an emergency policy’. Emergencies could not
be dealt with on the basis of ad hoc applications
alone (para 63):
‘
Besides
truly exceptional or unforeseen circumstances, the budgetary demands
for a number and measure of emergency occurrences are
at least to
some extent foreseeable, especially with regard to evictions.
Predictions can be made on the basis of available information.
For
example, surveys may serve to establish how many buildings in a
municipality are dilapidated and might give rise to sudden
eviction
proceedings.’
[117]
Van der Westhuizen J went on to demonstrate, with
reference to the provisions of Chapter 12, that a municipality ought
to plan proactively
and budget for emergency situations in its yearly
application for funds (para 66). In addition to such measures, the
municipality
has the power and duty to finance its own emergency
housing scheme (para 67).
[118]
Van der Westhuizen J then moved to a consideration of
whether the municipality had the resources to provide the occupiers
with emergency
accommodation if evicted (para 33(c) read with paras
68-75). The municipality argued that it was impossible to assist the
occupiers.
Van der Westhuizen J said, however, that the
municipality’s budget was the product of its incorrect
understanding of Chapter
12. If it had prepared a budget on a proper
understanding, it might have made provision for emergency housing
(para 69). (This
had nothing to do with the irrationality of the
distinction drawn in the municipality’s housing policy. The
incorrect understanding
which Van der Westhuizen J had in mind was
the municipality’s view that Chapter 12 did not entitle the
municipality to have
a self-funded emergency programme.)
[119]
Van der Westhuizen J nevertheless proceeded to consider
the contention that the municipality lacked resources to provide
emergency
accommodation to those who faced homelessness as a result
of eviction by private owners (para 70). I must emphasise that the
court
addressed this plea of lack of resources in accordance with the
premise of the contention, namely that the temporary accommodation
which the municipality reserved for persons evicted by the
municipality itself from unsafe buildings was, by virtue of the
municipality’s
housing policy, not available to persons evicted
by private owners. On that basis the question was whether the
municipality had
made good its contention that it lacked resources to
provide emergency accommodation to the occupiers in question. Whether
the
distinction in the housing policy, which had the result of
excluding the temporary accommodation from the pool of emergency
housing,
was irrational was considered separately in the next part of
the judgment.
[120]
Van der Westhuizen J referred to the finding of the
Supreme Court of Appeal that the municipality’s supposed lack
of resources
had been alleged in vague terms. The Supreme Court of
Appeal noted that the record showed that the municipality had been
operating
in a financial surplus for the past year. The municipality
had not stated that it was unable to reallocate funds or meet the
temporary
housing needs of the occupiers. The municipality had had
three years of prior knowledge of the occupiers’ plight,
indicating
(so the Supreme Court of Appeal considered) that the
municipality had itself to blame for its unpreparedness (para 71).
[121]
Van der Westhuizen J was not persuaded that the findings
of the Supreme Court of Appeal were wrong (para 75). He also noted
that
the municipality had provided information relating to its
housing budget but had not given information relating to its budget
situation
in general. The court thus did not know what the
municipality’s overall financial position was. The court’s
determination
of the reasonableness of measures within a
municipality’s available resources ‘cannot be restricted
by budgetary and
other decisions that may well have resulted from a
mistaken understanding of constitutional or statutory obligations’.
It
is not good enough for a municipality to state that it has not
budgeted for something ‘if it should have planned and budgeted
for it in the fulfilment of its obligations’ (para 74).
Adequacy
of City’s response in present case
[122]
Turning to the circumstances of the present case, the
City has at all material times been required to plan proactively to
address
emergency housing needs that are likely to arise within its
area, taking into account the well-established principle that private
owners cannot be expected to tolerate unlawful occupation on their
properties indefinitely. The City has been aware of the existence
of
the Klein Akker community since 2000/2001. There is evidence that
some of the current occupiers were brought to the property
with the
assistance of municipal officials based in Brackenfell (which falls
within the City’s area). The WDC obtained a
demolition order in
May 2000. An attempt to effect the order was averted by political
intervention. It is difficult to believe
that the City was not aware
of these developments. The City was in any event directly engaged by
the latter part of 2001, as appears
from Du Toit’s letter of 30
October 2001. The City did not respond to Du Toit’s request for
assistance (this puts one
in mind of the criticism directed at
another municipality in
Modderklip
paras
34-37). One knows that water and electricity to the property were cut
off during 2000/2001 and that at some stage thereafter
the City began
providing water and portable toilets. Du Toit says that he protested
to the City’s officials that this would
simply encourage
further illegal occupation.
[123]
If Hotelink and WAI allowed the grass to grow under
their feet, so too did the City. The City, like them, allowed ten or
eleven
years to pass until, in January 2012, the liquidators caused
notices to vacate to be served. The City refused to participate in
the ensuing mediation process which thus came to naught. In October
2012 the liquidators issued the eviction application
which was
duly served on the City. It is now four years later. In successive
reports the City adopted a non possumus attitude.
Only in its fifth
report, filed in late April 2015, about six weeks before the hearing,
did the City finally offer some prospect
of future accommodation for
the respondents. What it offered, though, was a project in the
planning phase from which, if it came
to fruition, relief could not
be expected until 2019-2020.
[124]
I find it difficult to see, in these circumstances and
in the light of the approach indicated in
Blue
Moonlight
and
Changing
Tides
, how the City can claim that its latest
offer is remotely acceptable or how it can rely on a supposed
inability to provide emergency
accommodation more expeditiously. If
it cannot provide alternative emergency accommodation from its
current portfolio of properties
or from property to be acquired with
existing funds, it will need to raise money either by way of an
application to the provincial
government or by way of an allowance in
its next budget. If proper planning for emergency accommodation
requires the City to charge
increased rates, so be it. The burden
should fall on the community at large, not on an individual owner.
[125]
I do not intend to discuss the City’s IHP at any
length. The document reflects diligent medium- to long-term planning
for
housing in general, including emergency accommodation. This is no
doubt how the City will in most instances be able to meet the
housing
duties resting upon it. However there needs to be some flexibility to
accommodate unexpected emergencies. Indeed I doubt
if the City would
regard its IHP as being exhaustive in the sense of precluding the
City from acting outside the IHP if circumstances
truly demand it. In
the present case the City seems not to have regarded the Klein Akker
situation as a true emergency, perhaps
because the respondents are
currently de facto accommodated (albeit without right) on private
land. The City may have viewed things
differently if it were dealing
with people who were on the street because their homes had been
destroyed by fire or flood. While
the situation of the respondents
may have not presented an emergency of the same degree, this is
mainly because the applicant as
the owner could be expected to show
some ‘patience’ before an eviction came into effect.
However the applicant cannot
reasonably be expected to do so
indefinitely. And once that stage has been passed, homelessness is
homelessness whatever its cause.
[126]
Similar criticisms
to those made of the municipality in
Blue
Moonlight
can
be made against the City in the present case. Financial information
has only been provided in vague terms. The IHP itself provides
little
financial information – it describes projects and goals.
[2]
Goodwin attached to his first affidavit the allocations received by
the City by way of the Urban Settlement Development Grant (‘USDG’
– from national government) and the Human Settlements
Development Grant (‘HSDG’ – from the provincial
government). Not very much can be deduced from the gross figures:
R971 980 000 in the case of the USDG for 2012/2013 and
R678 369 000 in the case of the HSDG for 2012/2013.
[3]
The projected sums in future years were greater. I do not know how
much of these grants was allocated by the City to emergency
accommodation. I note in passing that if the City had bought Klein
Akker for the same price that Odvest paid in August 2014, this
would
have represented 0,13% of the sum of the two 2012/2013 grants.
[127]
The updated
version of the IHP attached to the City’s third housing report
(January 2014) provides information as to how the
USDG has been and
is to be spent.
[4]
The 2012/2013
figure is R756 403 374. On the face of it this suggests an
under-spending of R215 576 626. The
actual or projected
spending for subsequent years also appears to be well below the
forward estimates for the USDG attached to
the City’s first
affidavit.
[5]
The updated IHP
gives no information about how the HSDG has been spent.
[128]
The City’s IHP makes no reference to funding which
the City raises itself, including by way of rates. The ‘funding
sources’
segment of the IHP refers only to the USDG and HSDG.
Goodwin says in his first affidavit that national funding is
supplemented
by the City’s own funding sources but does not
give any particulars.
[129]
In the third report the City said that it budgeted R30
million p/a for land acquisitions and that this usually funded the
acquisition
of about 50 ha. This represents R600 000 p/ha. Again
I observe that if the City had bought Klein Akker for the price paid
by Odvest in August 2014, it would only have needed to pay R165 385
p/ha. There is no evidence as to why R30 million p/a should
be
regarded as adequate, bearing in mind that the allowance is for land
for all housing purposes, not only emergency accommodation.
[130]
The City has not furnished any information about its
overall financial position. While I accept that the respondents are
not the
only persons whose eviction gives rise to an emergency, I
suspect that the City’s allowance of R30 million p/a is a
miniscule
fraction of the City’s operating and capital budget.
(Its website indicates that its budget for 2015-2016 is R38,189
billion
of which R32,45 billion is the operating budget and R6,044
billion the capital budget. If these figures are correct, R30 million
is 0,5% of the current capital budget and 0,08% of the overall
budget.)
[131]
Mr Katz submitted
that the respondents were not the only occupiers in need of emergency
accommodation. He made reference to various
pending cases, in some of
which he was representing the City. He said from the bar that about
20 000 people in the City’s
area were currently facing
eviction. As he acknowledged, the information in question was not
contained in the papers. Apart from
the absence of evidence, the
circumstances in those cases might be different. It appears from the
reported judgments relating to
one of the matters mentioned by Mr
Katz, the
Fischer
case,
that the case may have involved recent land invasions amounting
effectively to spoliation.
[6]
[132]
I am satisfied, in all the circumstances, that the City
has failed in its obligation to provide the respondents with
emergency accommodation
sufficiently expeditiously to avoid
unreasonable hardship to the owner. I am also unpersuaded that the
City lacks the resources
to provide land for the respondents at least
on a temporary basis. Even if it does not currently have the
resources, the City has
the means of raising them, either by rates or
by an application to the province. The latter has indicated its
willingness in principle
to provide funding. There is no adequate
explanation as to why the City did not pursue the funding application
made in October
2014. At the hearing before the previous judge Mr
Naidoo for the MEC highlighted this point and said that if the City’s
tender
was found not to be adequate the province stood ready to
assist.
Conclusion
[133]
I thus consider that it would be just and equitable to
grant an eviction order and to link the date of eviction to an order
requiring
the City to provide the respondents with emergency
accommodation.
[134]
As to the date for eviction, Mr Joubert’s 18-month
proposal was made on a misreading of the
Newton
Urban Village
case. Nevertheless I assume
from Mr Joubert’s submission, which he made in chief and
repeated in reply, that his client was
willing to accept an 18-month
deferral provided it obtained certainty. This was a generous and
humane attitude.
[135]
Mr Joubert’s proposal was, however, made at a time
when the applicant expected that a judgment would be delivered
reasonably
promptly, hence the proposed eviction date of 10 January
2017. It is through no fault of any of the parties that the matter
has
been so long delayed. I do not think it would be fair to the
applicant to expect it to bear the full brunt of this delay. On the
other hand the respondents have had no reason to plan for their
eviction. They may have expected that the court would refuse an
eviction order or defer it until the Bloekombos land became
available. Although the City has less excuse for failing to come up
with an expeditious solution, it too may have hoped that the court
would refuse eviction or defer it pending finalisation of the
Bloekombos project.
[136]
I do not think it would be reasonable to provide the
respondents and the City with a grace period of less than six months.
This
will unfortunately take one to midway through the next school
year and the onset of winter. However I do not think it fair to the
applicant to defer eviction until the end of next year. I will
attempt to alleviate disruption by selecting dates which will fall
in
the mid-year school holidays. The period of deferral will be about
eight months.
[137]
If the applicant is willing to grant a longer period,
either out of a sense of humanity or to limit the risk of appeal, I
would
naturally be willing to amend the order to provide for more
generous states.
[138]
In the draft order which Mr Joubert handed to the
previous judge in argument the applicant recorded that the
respondents’
continued occupation until the eviction date would
be gratuitous. I shall repeat this in my order.
[139]
Mr Joubert’s draft order required the respondents
and the City through their representatives to engage meaningfully
with a
view to reaching agreement on a possible timetable for the
relocation process at an earlier time than contemplated in the order,
logistical assistance for the relocation process, arrangements for
any occupiers with special needs, the possibility of preserving
the
community by relocating them to a single area and whether there were
any occupiers who did not require emergency accommodation.
The draft
order required the engagement process to be completed by 28 February
2016 (ie about eight and a half months after completion
of argument).
I am not inclined to incorporate such matters in the order. The City
will be obliged to perform its obligations under
this order in a
manner which is consistent with the values of the Constitution in
general and the values and principles governing
public administration
in particular. This will almost certainly require engagement on some
of the matters contemplated in the draft
order but I will leave it to
the good sense of the parties and their legal representatives to
determine when and how this should
be done. If the respondents
consider that the City is failing them in some way in regard to the
practical implementation of my
order, they will be at liberty to
apply to the court for appropriate relief. And both ESTA and PIE
permit the court on good cause
shown to vary an eviction order
(s 12(4) of ESTA and s 4(12) of PIE).
[140]
As to costs, there appears to be no prospect that any of
the occupiers will be able to pay costs. Mr Joubert did not argue
that
there should be a costs order against them. He submitted that
the City should bear the applicant’s costs. Mr Katz resisted
such an order.
[141]
I think it likely that if the City had at an early stage
accepted that it was responsible for providing the respondents with
alternative
emergency accommodation the respondents would not have
been advised to continue opposing the application. I have already
indicated
my views about the shortcomings of the City’s
response to the application. On the other hand the hearing of 14
August 2013
was devoted to an issue in which the City played no part.
Mr Katz, though present on behalf of the City, did not make any
submissions.
I think justice would be done if the City were ordered
to pay the applicant’s costs incurred after 8 November 2013 but
excluding
the costs occasioned by the substitution application.
[142]
I make the following order:
(a) The
persons named in the column headed ‘Head of Household’ in
the schedule “SS1” at page 1125 of
the record (attached
hereto as “X” for convenience) and all persons holding
under them, including the persons named
in the said schedule as
‘Spouse/Partner’ and/or as ‘Dependants’
(collectively ‘the Occupiers’),
are evicted from the
immovable property described as Portion 26 (a portion of Portion 3)
of the Farm Klein Bottelary No 17, also
known as Klein Akker,
situated at Botfontein Road, Stellenbosch (‘Klein Akker’).
(b) The
Occupiers are ordered to vacate Klein Akker by no later than Monday
10 July 2017, failing which the eviction order
may be carried out on
Wednesday 12 July 2017.
(c) The
third respondent must provide the Occupiers with emergency
accommodation on land as near as possible to Klein Akker
by Monday 26
June 2017, provided that they still reside at Klein Akker and have
not voluntarily vacated it. The emergency accommodation
must at a
minimum comprise land with basic services not less than those
currently provided to the Occupiers on Klein Akker and
on which they
can relocate the dwellings in which they currently reside on Klein
Akker.
(d) The
third respondent shall pay the applicant’s costs incurred after
8 November 2013 excluding, however, the costs
associated with the
application to substitute the applicant, such costs to include those
attendant on the employment of two counsel.
______________________
ROGERS J
APPEARANCES
For
Applicant: Mr DC Joubert & Mr L Wilkin
Instructed
by
Cliffe
Dekker Hofmeyr Inc
11
Buitengracht Street
Cape
Town
For
First & Second Respondents:
Mr S Magardie
Legal
Resources Centre
3rd
Floor Greenmarket Place
54
Shortmarket Street
Cape
Town
Mr
Carolissen
Instructed
by:
Stellenbosch
Legal Aid Clinic
44
Banhoek Road
Stellenbosch
For
Third Respondent: Mr Katz SC & Ms K Pillay
Instructed
by:
Fairbridges
Attorneys
16th
Floor Main Tower, Standard Bank Centre
Heerengracht
Cape
Town
For
Fourth & Fifth Respondents (abiding):
Mr Naidoo
Instructed
by:
The
State Attorney
4th
Floor, 22 Long Street
Cape
Town
[1]
See the Supreme Court of Appeal’s judgment in the case,
reported at
2011 (4) SA 337
(SCA) paras 9-16.
[2]
There is an annexure to the IHP which gives information about
certain amounts budgeted for urban renewal projects [record 259-265]
but it is clear that this is only a small part of the funding
available to the City.
[3]
Record 269-270.
[4]
Record 987.
[5]
Record
269.
[6]
2014 (3) SA 291
(WCC);
2014 (4) SA 614
(SCA).