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[2021] ZAWCHC 98
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City of Cape Town v Those persons attempting and/or intending to settle on the erven in District Six the details of which are identified in Annexure A to notice of motion (7349/2021) [2021] ZAWCHC 98 (19 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No: 7349/2021
In the matter between:
THE CITY OF CAPE
TOWN
Applicant
and
THOSE PERSONS
ATTEMPTING AND/OR INTENDING TO
SETTLE ON THE ERVEN
IN DISTRICT SIX THE DETAILS
OF WHICH ARE IDENTIFIED
IN ANNEXURE A TO NOTICE
OF
MOTION
Respondent
Coram:
Justice J Cloete
Heard:
19 May 2021
Delivered:
19 May
2021
JUDGMENT
CLOETE J
:
[1] This the
return day of a rule
nisi
in respect of an interim interdict
granted on 1 May 2021, in which the applicant (“the City”)
obtained an order,
inter alia restraining the respondents from
entering or being upon 138 erven in District Six (“the
properties”). The
details of the properties are described in
Annexure “A” to the notice of motion.
[2] The City
owns all of the properties. They are all earmarked in terms
of the
Restitution of Land Rights Act 22 of 1997 (“the Restitution
Act”) for restitution to people who were dispossessed
of their
land during 1968 when District Six was declared a “whites-only”
area under the previous Group Areas Act. Forced
removals from
District Six resulted in some 60 000 people being removed from
the area.
[3] During 1995
to 1998, the State commenced a process to recognise the restitution
claims of former District Six residents. A total of 2 670 claims
were submitted by the closing date of the initial lodgement
process
at the end of 1998. Of these claimants, 1 439 chose financial
compensation and the remaining 1 126 chose to return
to District
Six.
[4] The first
two phases of the process were completed in 2004 and 2012
respectively, and the third phase is meant to conclude during this
month, i.e. May 2021. As part of the third phase 108 dwellings
were meant to be completed by mid-May 2021, and it was anticipated
that the units would be handed over to the qualifying beneficiaries
by end May 2021.
[5] After the
third phase is completed, a further 954 approved claimants
will need
to be accommodated through the remainder of the restitution process.
It is anticipated that the restitution process will
be completed by
2024 at an estimated total cost of R1.87 billion.
[6] For as long
as the properties remain threatened by unlawful occupation
the
State’s plans to redevelop the area and realise the rights of
the claimants are accordingly at risk. If the properties
are
unlawfully occupied by the respondents, it will have the effect of
halting the process and frustrating the Constitutional imperative
of
land restitution to those who have been unlawfully deprived of their
properties by the apartheid regime.
[7] Moreover,
an unlawful occupation will undermine the rights of the District
Six
beneficiaries who: (a) suffered atrocities under an oppressive
regime, including forced removals; (b) have followed
the
government-established process for land restitution; and (c) are
patiently awaiting their turn in the process despite
the length of
time it has taken and, in most instances, the conditions of poverty
in which they live.
[8] Certain of
the properties have already been the subject of unlawful occupation
(“occupied properties”). The City’s case is that it
has a real apprehension that persons unlawfully residing
on the
occupied properties will simply move to the unoccupied ones and that
others will also move onto the properties. This has
occurred in the
past, once development of the occupied properties commenced.
[9] The purpose
of the final interdict sought is to prevent the further unlawful
occupation of the occupied properties, and to prevent the unlawful
occupation of the unoccupied properties. At present, approximately
28 tents and 1 wood and zinc structure are on erven 115718,
115734 and 115717 which are situate on the corner of Hanover
and
Constitution Streets, District Six (“Hanover Street property”).
In addition, erf 9933 is being used as a base upon
which building
materials are being placed unlawfully.
[10] On the evening of 20 March
2021 a group of persons unlawfully occupied the Hanover
Street
property which at that stage was vacant. On 21 March 2021 the
City’s Anti-Land Invasion Unit (“ALIU”)
ascertained
that 6 tents had been unlawfully erected there. The City was unable
to prevent that occupation, since by the time its
officials were
notified those occupiers had already established their tents.
[11] The City’s mayoral
committee member for housing (Councillor Booi) and officials
from the
Western Cape Provincial Government met with the unlawful occupiers on
24 March 2021 to discuss their demands for
housing. During this
meeting the occupiers made clear that their occupation was an attempt
to get around the lawful housing allocation
process. By 31 March
2021 the number of tents on the Hanover Street property had increased
to 28.
[12] The City attempted to
prevent further unlawful occupation of that property as well as
other
properties. It put in place an Operational Plan which entailed:
(a) deployment of 6 law enforcement officers, 2 Metro
Police
officers and 2 traffic officers to patrol the area on a 24-hour
basis; (b) the installation of a law enforcement
caravan at the
area adjacent to the Hanover Street property to act as a contact
point for the law enforcement officers and to co-ordinate
all reports
from them; (c) daily patrols by the City’s Displaced
Persons Unit (“DPU”) for 2 hours every
morning and 2
hours every evening, of all the properties; (d) CCTV monitoring
of the area as an early warning system to allow
for the allocation of
resources for any potential unlawful land occupations; and (e) an
immediate response/reaction team.
[13] Despite these measures, on
27 April 2021 at approximately 09h50, about 80 persons
arrived at the Hanover Street property (identifying themselves as
members of a group called “Heideveld United”), and
met
with the existing unlawful occupiers. They told them that they should
stay in occupation of that property until the City provided
them with
“decent housing” and the Mayor and Councillor Booi had
agreed to meet with them. By 10h26 most of the Heideveld
United group
had left, with only a few remaining. However at 12h20 a large group
of approximately 150 people (consisting of mostly
women and children)
who seemed to be associated with Heideveld United, arrived at the
Hanover Street property, accompanied by two
light delivery vehicles
loaded with building materials.
[14] City law enforcement
officials approached the drivers of the vehicles, who told them they
had been paid R150 to deliver materials. The drivers left
voluntarily. However during this exchange with the drivers, the
respondents took the opportunity to erect a wooden structure on the
Hanover Street property. The City officials tried to engage
with
them. However they refused and used women and children to block the
access of City officials to that property.
[15] At this point, the crowd
became agitated and were chanting and moving ever closer to where
the
City law enforcement officers were stationed. As a result, a decision
was taken to stand down in order to call in the Metro
Police Tactical
Response Unit (“TRU”) and the SAPS Public Order Policing
Unit (“POPS”).
[16] At about 12h30, when the
crowd had calmed down slightly, the City law enforcement officials
again tried to engage with the respondents and advised them to stop
erecting the structure that they were in the process of putting
up.
Despite these further attempts to engage with them, the group managed
to erect four sides of the structure. The ALIU arrived
at about
13h00, by which time the structure had largely been erected but was
not complete. The occupiers allowed the ALIU to access
the site to
investigate. It was observed that the structure, although incomplete,
was occupied by an elderly woman and a number
of children. She stated
that she was now residing there with the children, and the structure
contained personal belongings and
cooking equipment. It was thus
assessed as being occupied and accordingly subject to the provisions
of the Prevention of Illegal
Eviction From and Unlawful Occupation of
Land Act 18 of 1988 (“PIE”).
[17] The occupiers and members of
the crowd refused to identify themselves to City officials,
save to
state that they were backyard dwellers from various areas of the city
and they wanted to meet with senior City officials.
For the next two
days the officials continued to patrol the properties, in particular
the Hanover Street property.
[18] On 29 April 2021 there
was a further attempt to occupy the Hanover Street property
by a
large group of persons who brought more building materials. The City
correctly states that this is a clear indication of an
intention for
more people to unlawfully occupy that property.
[19] On 30 April 2021 the
City received information that a group of approximately 50 people
from Delft intended to take occupation of that property and/or other
properties. A number of law enforcement officials were despatched
and
their presence averted the attempt once the drivers of the vehicles
loaded with building materials spotted the officials. It
was as a
result of these events that the City approached court for urgent
interim interdictory relief which was granted on 1 May
2021.
[20] The rule
nisi
(interim interdict) was properly served on the respondents in
accordance with the service provisions contained in that order.
Certain persons have requested and been provided with copies of the
papers. No notice of intention to oppose has been delivered,
but Mr
Jassiem Johnson and Ms Shariefa Nolan, representing both the
occupiers and those intending to occupy, appeared in person
at the
hearing. In their address to the court their attitude is that they
have equal rights to District Six but neither they (nor
the other
unlawful occupiers) have yet qualified to move lawfully onto the
property in terms of the restitution process. It was
explained to Mr
Johnson and Ms Nolan that the relief sought by the City in this
application does not pertain to those who are already
in unlawful
occupation, and both confirmed that they understood.
[21] In order for the City to
obtain a final interdict it must establish: (a) a clear
right to the relief sought; (b) an injury actually committed or
reasonably apprehended; and (c) the absence of any other
satisfactory remedy available to it.
[1]
To this it must be added that where a wrongful act has already
occurred it must be of a continuing nature or there must be a
reasonable
apprehension that it will be repeated.
[2]
Whether or not the apprehension is a reasonable one is a factual,
objective inquiry.
[3]
[22] On the facts of this matter,
I am persuaded that the City has demonstrated a clear right
to the
relief sought. First, it is the owner of the properties. It has the
right to ensure that no unlawful conduct occurs thereon
and that it
can utilise the properties in the manner intended, i.e. for land
restitution purposes. Second, it is entitled
to secure this objective
through the courts. Third, it is obliged in law to take all steps
necessary to protect the properties
in order to ensure that the
restitution process is not frustrated in light of its Constitutional
obligation to do so, as well as
the relevant legislation including
the Restitution Act. If allowed to continue the respondents are
likely to slow down or bring
the restitution process to a halt. This
will deprive persons, who are the lawful beneficiaries of land
claims, to the properties.
Fourth, and very importantly, even though
the respondents may have complaints in respect of the manner in which
the City is delivering
housing, they are not entitled to take the law
into their own hands.
[23] This has been confirmed
repeatedly by our courts, including the Constitutional Court which
has stated that:
[4]
‘
The issues here remind
us of the intolerable conditions under which many of our people are
still living. The respondents are but
a fraction of them. It is also
a reminder that, unless the plight of these communities is
alleviated, people may be tempted to
take the law into their own
hands in order to escape these conditions. The case brings home the
harsh reality that the Constitution’s
promise of dignity and
equality for all remains for many a distant dream. People should not
be impelled by intolerable living conditions
to resort to land
invasions. Self-help of this nature cannot be tolerated, for the
unavailability of land suitable for housing
development is a key
factor in the fight against the country’s housing shortage.’
[24] This was stated in a
judgment of the Constitutional Court on 4 October 2000, almost
21 years ago. The reality for many people in this country is no
better than it was then. However to allow persons deeply frustrated
by their living conditions to take the law into their own hands and
in the process, deprive others who themselves live in appalling
conditions but have followed due legal process, cannot be allowed.
[25] In our constitutional
democracy, rights come with responsibilities. For the respondents
to
use women and children to attempt to achieve their personal goals is
shocking. One can only imagine the trauma that those children
have
been subjected to and one does not know whether the elderly woman who
is now caring for the children on the property has herself
been
subjected to threats and intimidation and left without a voice.
Moreover there are no sevices at the property which is being
unlawfully occupied and the conditions are exposing them to disease.
[26] It is also not the case that
the respondents have no other recourse. Their recourse lies
through
the courts to deal with the issue by lawful means. There are
organisations which assist persons in the position of the
respondents, including lawyers. Mr Johnson confirmed that he has
approached the Legal Resources Centre for assistance. The City
interacts with many of these organisations on a regular basis, and I
have little doubt that if the respondents were to request
the details
of the other organisations, the City would provide them. It will also
assist the City in meaningful and positive engagement
with persons
such as the respondents, although the City has no obligation in law
to engage meaningfully with those who use land
invasions to secure a
tactical advantage. The obligation only extends to those falling
under PIE.
[27] The facts have also
established that there is a reasonable apprehension of irreparable
harm if the threat of unlawful occupation of the properties remains
alive. To date at least three of the properties (being those
that
form the Hanover Street property) have already been unlawfully
occupied. It is apparent from the events of 30 April 2021
that
another group of people from Delft are intent on occupying the
properties. The fact that the City was granted an interim interdict
demonstrates that, despite its own attempts to manage the situation
in a peaceful and lawful manner, it was met with resistance.
The
rights of the lawful District Six claimants must also be protected.
It is a reality that the City does not have the resources
to patrol
the properties constantly. Moreover, given the mobile nature of the
communities it will be extremely difficult to detect
where people are
setting up tents and/or makeshift structures.
[28] The City points out that
this is not the only land invasion with which it is currently
confronted. Unlawful land occupations in the City Metropolitan area
have increased since the start of lockdown in March 2020. By
way of
example, on one day alone, multiple occupations took place in ten
different areas at the same time. The City simply does
not have the
capacity or resources to manage more large-scale, ongoing land
occupations. It is self-evident that the ALIU cannot
possibly patrol
the entire District Six area constantly, while also responding to the
approximately 16 land invasion hotspot areas
in the City.
[29] In light of the competing
demands on the City’s limited resources to manage unlawful
occupations, coupled with the sheer amount of attempts to unlawfully
occupy, I am persuaded that there is a real and definite risk
that
the District Six properties will be lost to unlawful occupations
without a final interdict. To this it must be added that,
without a
court order, those unlawfully residing on the occupied District Six
properties may simply move to the unoccupied properties.
Put
differently, it is not merely the Hanover Street property which is
under threat, but all of the properties in that area. The
effect, if
these unlawful invasions are permitted to continue, is that the
District Six claimants will be dispossessed for a second
time. The
only difference is that this time around it will be as a result of
the unlawful actions of their fellow citizens and
not the disgraceful
apartheid regime.
[30] For all of these reasons I
am also persuaded that the City has no alternative satisfactory
remedy, since it has no other remedy which is: (a) adequate in
the circumstances; (b) ordinary and reasonable; (c) lawful;
and (d) affords similar protection.
[5]
It is unrealistic for the City to content itself with subsequent
eviction proceedings for new land invaders. In any event, given
the
Disaster Management Regulations
[6]
which prohibit evictions for the duration of the National State of
Disaster (unless a court orders otherwise after consideration
of a
number of factors), the reality is that, for the foreseeable future,
the eviction of those currently occupying as well as
those intending
to unlawfully occupy will be extremely unlikely.
[31]
I thus make the order
annexed marked “X”.
J I CLOETE
IN
THE HIGH COURT OF SOUTH
AFRICA
“X”
(WESTERN
CAPE DIVISION, CAPE TOWN)
Before
the Honourable Justice Cloete
Cape
Town: Wednesday, 19 May 2021
Case
No:
7349/2021
In
the matter between:
THE
CITY OF CAPE TOWN
Applicant
and
THOSE
PERSONS ATTEMPTING AND/OR INTENDING TO SETTLE ON THE ERVEN IN
DISTRICT SIX THE DETAILS OF WHICH ARE IDENTIFIED IN ANNEXURE
A TO
NOTICE OF MOTION
Respondent
ORDER
HAVING
READ THE PAPERS FILED OF RECORD, HAVING HEARD COUNSEL FOR THE
APPLICANT AND THE RESPONDENTS AND/OR THEIR REPRESENTATIVES
IN PERSON
:
IT
IS ORDERED THAT -
1.
Subject
to paragraph 4 of this Order, the
Rule
Nisi
issued
by this Court on 1 May 2021, is confirmed and an order is issued,
subject to paragraph 4 hereof, in the following terms:
1.1.
Interdicting
and restraining the Respondents from:
1.1.1.
Entering
or being upon the Erven identified in Annexure A hereto (i.e. the
same Erven annexed to the Notice of Motion) - "
the
Properties
"
- for the purposes of unlawfully occupying or invading the
Properties; and/or
1.1.2.
Erecting,
completing or extending any structure on the Properties; and/or
1.1.3.
Occupying
any vacant structures on the Properties; and/or
1.1.4.
Intimidating,
threatening, harassing or assaulting or in any way interfering with
the Applicant's officials, Councillors or any
persons acting on their
behalf or involved with law enforcement at the Properties.
1.2.
The
Sheriff and /or the Applicant assisted in so far as needs be, by the
members of the South African Police Service, are authorised
to give
effect to the provisions of this Order by:
1.2.1.
Immediately
removing any person found to be in contravention of this Order;
1.2.2.
Demolishing
any incomplete structure that is not occupied and is erected on the
Properties after the granting of this Order;
1.2.3.
Removing
any possessions found at or near such structures including any
building materials, which possessions and / or building
materials
shall be kept in safe custody for one week by the Applicant until
released to the lawful owner; and
1.2.4.
To
take all reasonable steps in order to give effect to this Order.
2.
Service
of this order shall be effected in the following manner on the
Respondents:
2.1.
By
the sheriff and/or Applicant and /or South African Police Services
attending at the Properties and serving a copy of the
Order in
the following manner:
2.1.1.
By
reading aloud in English, Afrikaans and
isi
Xhosa
the contents of this Order by a loudhailer at the Properties;
2.1.2.
By
placing copies of the Order of this Court at visible and prominent
places that are accessible to the Properties, and would reasonably
come to the attention of the Respondents.
3.
This
Order shall be served on the South African Police Service at the
nearest police station having jurisdiction over this area.
4.
This
Order shall not be construed as an eviction order. It shall not
entitle the Applicant to demolish any occupied structures as
at the
date of this order or to use the provisions of this order for
purposes of evicting occupiers from the property under the
Prevention
of Illegal Eviction From and Unlawful Occupation of Land Act 19
of 1998
.
5.
No
order is made as to costs.
BY
ORDER OF THE COURT
COURT
REGISTRAR
Titus
and Associates Attorneys
Ref:
K Titus
kevin@titusasc.co.za
Tel:
021-422-0324
Cell:
073-468-9684
[1]
Setlogelo v Setlogelo
1914 AD 221.
[2]
NCSPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at para
[20]
.
[3]
Minister of Law and Order v Nordien
1987 (2) SA
894
(A) at 896G-I.
[4]
Government of the RSA and Others v Grootboom and
Others
2001 (1) SA 46
(CC) at para [2].
[5]
LAWSA Vol 11 para 312 and the cases cited therein.
[6]
Alert level 1 during Coronavirus Covid-19 lockdown
effective 1 March 2021 (GG 44201 of 28 February 2021, adjusted
by GG 44367 of 30 March 2021 and GG 44485 of 22 April 2021).