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[2011] ZAGPJHC 3
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Eagle Valley Properties 250 CC v Unidentified Occupants of Erf 952, Johannesburg Situated at 124 Kerk Street,Johannesburg In re:Unidentified Occupants of Erf 952, Johannesburg Situated at 124 Kerk Street,Johannesburg v City of Johannesburg (0/04599) [2011] ZAGPJHC 3 (17 February 2011)
Links to summary
REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT
(JOHANNESBURG)
CASE NO 10/04599
DATE: 17/02/2011
REVISED: 21/02/2011
EAGLE VALLEY PROPERTIES 250
CC
........................................................
APPLICANT
and
UNIDENTIFIED OCCUPANTS
OF
..........................................................
RESPONDENTS
ERF 952, JOHANNESBURG SITUATED
AT
124 KERK STREET, JOHANNESBURG
In re
UNIDENTIFIED OCCUPANTS OF
…..........................................................
APPLICANTS
ERF 952, JOHANNESBURG SITUATED
AT
124 KERK STREET, JOHANNESBURG
and
THE CITY OF
JOHANNESBURG
..............................................................
RESPONDENT
JUDGMENT
SPILG J
INTRODUCTION
The Applicant is the
registered owner of commercial property in the Johannesburg CBD. The
buildings on the property form part
of the “
Better
Building Project
”
initiative in what is identified as the Fashion District within the
Inner City.
In February 2010 the
Applicant sought the eviction of those occupying the buildings. The
application was brought under the provisions
of section 4(1) of the
Prevention of Illegal Eviction from Unlawful Occupation Act 19 of
1998 (
PIE
).
After notice was given under
section 4 (2) of PIE , the occupiers, claiming to number 140,
conceded that their occupation was
unlawful and contended that
consequently they were protected against eviction under PIE until
such time as the City of Johannesburg
(
the
City
) secured adequate
temporary accommodation for them.
Aside from filing an
answering affidavit to the main application, the occupiers also
brought an application to join the City as
a party.
The occupiers contended that
the City had an interest in the relief they sought. In view of the
position taken by the City in
subsequently opposing the application
for joinder it is necessary to set out the substance of the orders
the occupiers wish to
obtain against the City. These comprise
orders;
declaring that the City is
constitutionally obliged “
to
provide suitable relief “
and
also provide
“ temporary
emergency shelter”,
for
those “
… such as
the respondents, who upon eviction would have no suitable
alternative accommodation available to them and
would be in a
crisis or intolerable situation”;
declaring that the City is
obliged to ensure that indigent persons faced with eviction from
privately owned property, such as
themselves, “ ..
have
access to adequate housing on a progressive basis”
;
ordering the City to take
the necessary steps needed to comply with its aforementioned
constitutional and statutory obligations;
requiring the City to
prepare a report under oath stating the steps it has taken, and
those it intends taking, to comply with
these alleged obligations;
that once the report is
provided, and the parties have had an opportunity to comment on
and reply to it, the court will be
asked to determine such further
relief as may be appropriate.
By agreement between the
owner and the occupiers , on 30 April 2010 Randera AJ granted the
postponement and directed the delivery
of a notice and an
answering affidavit should the City wish to oppose.
After I dealt with a number
of technical points, the City filed an answering affidavit on 7
October 2010 opposing the application
for joinder .
ISSUES FOR DETERMINATION
The City’s main
objection is that no purpose would be served in joining it in the
proceedings.
Principally,
Mr
Pullinger
argues that the
City has already submitted the report sought by the occupiers. The
report , which the City claims is comprehensive,
was prepared
pursuant to the judgment in
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and others
[2008] ZACC 1
;
2008 (3) SA 208
(CC) . The report has been produced in numerous
court applications and is readily available. Its contents are well
known to those
litigating in this field. Indeed , in the present
proceedings the landowner had already filed the report under an
accompanying
notice.
The second substantive
challenge is that the attempt to join the City is misplaced,
since it is one of three spheres of government,
the others being
the Province and National government, and that they should have
been included in the application for joinder.
WHETHER JOINDER SERVES ANY
PURPOSE
In my view the argument does
not address the substantive relief sought by the respondents; namely
that the City has a constitutional
and statutory obligation to
provide temporary shelter for those who qualify for assistance as an
initial step to a permanent
housing solution. It is based on a
claimed right under section 26 (1) and (2) of the Constitution and
under the provisions of
the National Housing Act 107 of 1997 (and
also other delegated legislation such as Chapter 2 of the National
Housing Code dealing
with Emergency Housing Policy) of access to
adequate housing on a progressive basis and the implementation of
necessary programs
to secure that end. Compare
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC)
at paras
[41] and [42] and see Ngcobo CJ in
Residents
of Joe Slovo Squatter Community, Western Cape v Thubelisha Homes and
others
[2009] ZACC 16
at para
[226]
.
This is to be contrasted with
the fact finding order sought which call for a report which is
based on an application of section
4(7) of PIE . The City’s
argument is confined only to this portion of the relief claimed.
I am also not satisfied that
the Report adequately addresses key issues. In
Blue
Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and
ano
(2)
[200] JOL 25031 (GSJ) I directed the City to provide a report
regarding the numerous unoccupied inner city buildings and , if
State or City owned, whether they were being deliberately
moth-balled under other urban renewal initiatives. Moreover, the
Report does not address whether the removal of those illegally
controlling buildings abandoned by their true owners (for whatever
reason) can provide additional shelter or simply provides some
financial relief for those already impoverished. While some areas
covered by the report are detailed, it is unfortunately superficial
in others, particularly with regard to projected growth or
decline
of indigent people and their dependants based on proper demographic
projections and risk management profiles on the
one hand and the
realistic number of temporary and permanent shelters that can be
provided having regard to fiscal ,capacity
and other
infra-structural constraints on the other.
THE SPHERES OF GOVERNMENT
ARGUMENT
The second attack on joinder
appears to be two pronged. The first adopts the City’s
argument in
Blue Moonlight (2)
that it only has a passive constitutional obligation, an issue which
I assume is still to be argued in the appeal of that case.
The other
argument is that the occupiers are non-suited because they were
obliged to join all three spheres of government, not
just local
government.
The first part of the attack
must await the outcome of the
Blue
Moonlight (2) appeal
. However
the second aspect remains open for consideration.
Since I declined to allow a
joinder of the Provincial Government in
Blue
Moonlight (2)
it is necessary
to explain why that decision does not necessarily affect the present
case.
The short answer is that in
Blue Moonlight(2)
I exercised a discretion by weighing a number of competing
considerations and interests most of which are not present in the
case before me. Moreover the City’s argument in that case
proceeded from the proposition that the City only had a passive
constitutional obligation and that it was Provincial Governments
duty to provide the funding sought.
The essential features
concerning joinder in
Blue
Moonlight (2)
that are absent
in the present case may be
summarised
as follows;
the City sought to join the
Provincial Government on the basis that the latter was obliged to
provide the housing, and the program
and the funding for it
the inordinate delay of
some four years before seeking joinder when the matter was
otherwise ripe for hearing and the anticipated
future retardation
of the case if joinder was allowed, in circumstances where the
Provincial Government
prima
facie
demonstrated a
conscious decision not to become embroiled (see at para [48] to
[51]);
the concern that different
spheres of government are obliged to exhaust mediation and other
alternative dispute resolution
mechanisms before their issues with
each other could be dealt with in court, thereby creating further
potential delay and
prejudice to both the landowner and the
occupiers.
What does remain common to
both cases is my view that the City is not constitutionally a
passive functionary and that joinder
of other state organs may
result in delay during the dispute resolution phase.
These factors must be weighed
together with the landowner’s and occupiers’ positions.
They are not adverse to the
joinder of other spheres of government
particularly at this relatively early stage of proceedings where
only the occupier has
delivered an answering affidavit on the
merits.
There are also more
fundamental considerations that have surfaced since the decision in
Blue Moonlight (2)
.
They are relevant to the City’s argument that the occupiers
should also have sought the joinder of both the National and
the
Provincial Governments.
The one is that PIE, and
presumably the constitutional provisions relevant to the development
of the law around it, are intended
to be confined to victims of past
racially discriminatory laws and practices. The other is that the
provision of adequate housing
on a progressively implemented basis
is not attainable.
This arises from the reaction
of some local governments and also statements attributed to the
Minister of Housing Settlements
in the National Assembly after the
Blue Moonlight (2)
decision.
Unfortunately hard copies of Hansard have not been printed for some
years and the online Hansard is limited and selective.
I am grateful
to both by the staff of the SGHC library and the subsequent efforts
by the Johannesburg Bar library to assist after
my own attempts
proved unsuccessful.
Unfortunately the Minister’s
oral reply could not be located. Accordingly it would be best to
deal with the significant
issues that they and comments by local
governments appear to have raised and why they may have a profound
effect on the already
difficult task of fashioning an effective
remedy should there be an infringement of the constitutional right
of access to adequate
housing on a progressive basis.
It is perhaps best to
commence by re-affirming the value to the citizen of constitutional
recognition being accorded to the socio-economic
rights contained
in our Constitution and, in many cases, given further content in
complimentary legislation.
This is to be found in the
terse statement contained in section 7 (2) of the Constitution that
“
the state must ….promote
and fulfill the rights in the Bill of Rights”
. Little could be clearer. It is reinforced by the acknowledgement
contained in Section 1(a) that the foundational values include
human
dignity and the achievement of equality.
The
Preamble
similarly expresses the goal
driven purpose for
recognising
the series of
socio-economic rights enumerated in the Constitution:
We therefore …….
adopt this Constitution as the supreme law of the Republic so as to –
Improve the quality of
life of all citizens and free the potential of each person
”
(emphasis added)
.
So too Section 39 of the
Constitution which provides the interpretational framework for
understanding the content of and purpose
for
recognising
the Chapter 2
rights. It requires that these rights must be interpreted in a
manner which “ …
promote[s]
the values that underlie an open and democratic society based on
human dignity, equality and freedom
“.
For present purposes the operative terms are “
human
dignity”
and “
equality
”.
Within the context of housing
rights, section 26 of the Constitution is not limited to redressing
the degrading and impoverishing
consequences of past racially
discriminatory laws or practices. The right to have access to
adequate housing on a progressive
basis, having regard to available
resources, is founded principally on the fundamental and enduring
right to dignity. The pervasiveness
of the right to dignity within
our constitutional framework and its “...
importance
… as a founding value of the new Constitution cannot be
over
-emphasised
“ (per O’Reagan J in
S
v Makwanyane and another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at para
[327]
.
Sections 4 (7) and 6 (3) of
PIE expressly
recognise
the existence of
unlawful indigent occupiers within South Africa and the obligation
of the State (including a municipality) to
provide occupation on
land that it can reasonably make available. This provision in PIE
makes no distinction between whether
their status arose as a
consequence of past racial or other inequalities, or simply the
current socio-economic climate, or that
in other countries, which
has led to their present hardships and that of their dependants. The
provision is founded most directly
on the right to dignity. I refer
again to O’Reagan J in
Makwanyane
at para [329]; “
Thus
recognition and protection of human dignity is the touchstone of the
new political order and is fundamental to the new Constitution
…..
”
.
Socio-economic rights, such
as housing, are given substance by reference to a constitutional
requirement that they be
realised
.
A
fortiori
this presupposes that
they are attainable , progressively within the limitation of
available resources, but attainable nonetheless.
This assumption is
at the core of
recognising
socio-economic
rights such as housing. All spheres of government and other organs
of state including the courts, through our
judgments, are obliged to
give content to these rights. This is effected by securing the
progressive attainment of these constitutional
objectives, within
the accepted limitations proscribed by the Constitution.
Conversely, should it be
argued that any of these rights cannot be attained then for so long
as the socio-economic right in question
remains in the Constitution
the courts are constitutionally obliged , particularly under
sections 8(1) to (3), to investigate
if the breach goes to a
systemic failure within an organ of state despite its consequences
to the separation of powers unless
another non-invasive enquiry and
effective remedy can be fashioned to secure the attainment of the
right. Similarly, for so
long as the right is contained in the
Constitution, organs of state are similarly required to comply with
their constitutional
obligations to secure the attainment of the
right progressively within the limitation of available resources .
The context in which a
claimed lack of financial and other resources is to be understood in
regard to socio-economic rights such
as housing, was clarified as
follows by Sachs J in
J
oe
Slovo Community
at para [348]:
"The
Constitution deals expressly with the duties of Councils towards
disadvantaged sections of our society. It states that
the objects of
Local Government include ensuring "the provision of services to
communities in a sustainable manner" and
"promot[ing]
social and economic development", and that a municipality must
"structure and manage its administration
and budgeting and
planning processes to give priority to the basic needs of the
community, and to promote the social and economic
development of the
community."
With particular reference to
housing, at para [350], Sachs J referred to
section 2(1)
of the
Housing Act which
"...
requires
all spheres of Government to give priority to the needs of the poor
in respect of housing development".
It must therefore be
accepted that the issue of providing shelter for the indigent who
are subject to eviction is not contained
in legislation solely
focused on alleviating the consequences of past racially
discriminatory laws and practices. The broader
objective to be
attained by the legislation is to give content to the core values of
our Constitution, which include the right
to dignity and equality
(See sections 10 and 8 respectively. See also Schedule 4(I) and (V)
of the Interim Constitution and
Chapter III of Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
1996
(4) SA 744
(CC) especially
at para [78]).
The effect is that the
realisation
of
socio-economic rights for all our people is an obligation imposed on
each organ of state. In the context of housing there
is only one
constitutionally acceptable outcome- the realization of adequate
housing on a progressive basis. Case law from
Grootboom
at
paras [44] and [82-83] to
Port Elizabeth Municipality v
Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC) at paras [29] and [39] and onwards has confirmed that the
State is obliged to ensure the provision of services to communities
in a sustainable manner.
Accordingly PIE should not be
approached on the basis that it is limited to alleviating the plight
of indigent people affected
by past racially discriminatory laws and
practices. The number of occupiers affected by PIE and to which the
provisions of section
7 and 26 of the Constitution relate are
significantly more numerous.
The second, and perhaps more
concerning, issue that needs to be addressed, is the apparent
contention that the objective of achieving
adequate housing for
all is unattainable. Since the constitutional requirement is to
realise
that objective in
the long term and alleviate the plight of those currently living in
abject poverty ( on my understanding of
case law concerning PIE
such as
Joe Slovo
),
the need to properly address this contention is essential before a
court can consider fashioning an appropriate and
effective
remedy. In the present case it is perhaps the single most important
factor in weighing whether the City is correct in contending
that
other spheres of government should also have been joined,
particularly bearing in mind the early stage in these proceedings
when the point arose.
Earlier, when considering the
question of whether the courts may have unduly extended a law that
it is suggested was meant for
the limited purpose of alleviating the
socio-economic consequences of apartheid injustices, I also covered
the question of the
constitutional responsibilities of the
executive, the judiciary and all organs of state to attain the
progressive
realisation
of
socio-economic rights.
I believe that all court
decisions proceed, even if unarticulated, on the basis that the
socio-economic rights are realistically
attainable, albeit on a
progressive
realisable
basis.
The recent concerns, as also
expressed by the City in the present proceedings, suggest that this
may not be the case. The question
is then whether households can
ever be released from the cycle of poverty created historically by
apartheid or by the circumstance
of birth and which effectively
deny them and preclude their children from enjoying their
fundamental rights and freedoms.
This issue becomes more pressing
as our informal settlements and genuine slums expand as they absorb
increasing numbers of destitute
people both from outside and as a
result of the natural population growth within the area. The
Constitution envisaged that we
would not allow the creation in our
country of Rio de Janeiro or Mumbai type slums where present and
future generations have
little prospect of escaping the scourge of
poverty.
It therefore appears
necessary for the courts to be provided with a more holistic
appreciation of the housing crisis and the resources,
available and
projected, to deal with it. It appears necessary for courts to be
provided with far more detailed reports which
incorporate;
sufficient information
based on informed statistical projections of the anticipated
number of indigent households in order
to ascertain the number of
shelters that must be provided on the requirement side of the
equation; and
on the capacity side of
that equation, what budget and other essential resources are
being and can be provided ( including
possibly job-creation and
community self-upliftment programs); and
such other information as is
necessary to establish what objectives in real terms can be
attained in the short, medium and
long terms relevant to the
City’s contention that it is unable to obtain, or secure from
the other spheres of government,
the resources necessary to provide
temporary emergency shelter to unlawful occupiers of privately
owned properties.
If, after receipt of the
reports, it is contended that the constitutional objectives are not
attainable, the question would then
arise whether the separation of
powers would be infringed if the courts were to enquire into the
rational need for other expenditure
and establish from the
Auditor-General whether revenues are being squandered elsewhere or
budgets are being under
-utilised
or inefficiently appropriated in respect of the provision of housing
and other socio-economic constitutionally identified priorities.
Clearly a court could not
interfere in policy decisions regarding the
utilisation
of funds as long
as there is some rational basis for it. There will always remain
protagonists for and against the Gautrain project
even as there were
against the London Underground. But the recent confirmation that
some R90 million should not have been approved
by the City for a
Miss World pageant may be a matter, which if timeously brought
before a court, could be the subject matter
of interdictory relief
based on irrationality and constitutional prioritisation.
The need to achieve the
constitutional objective under section 7(2) of promoting and
fulfilling the
realisation
of housing
rights brings into issue, on the one hand, the extent and
justification of judicial intervention if the limited
resources are
not otherwise rationally
utilised
, and on the other
the possibility of judicial activism already cautioned against in
Grootboom
:
"A
court considering reasonableness will not enquire whether other more
desirable or
favourable
measures
could have been adopted, or whether public money could have been
better spent. The question would be whether the measures
that have
been adopted are reasonable."
In
Blue
Moonlight (2)
I was concerned
with an appropriate remedy once I found that there had been an
infringement of a constitutionally protected right.
In the case of
the occupiers I fashioned a remedy that was intended to compel the
City to implement a constitutionally sound
policy and provide the
occupiers with accommodation against pain of paying constitutional
damages if it did not do so within
a reasonable time. In that case I
found on the facts that the City had for two fiscal years budgeted
for a substantial excess
and the cost of procuring a number of
buildings to house indigent people facing eviction from privately
owned dwellings was relatively
nominal (see paras [54], [164] and
[173], particular when considering the concern expressed that
departments within the Provincial
Government might not be exercising
proper fiscal discipline.
In the present circumstances,
where many local governments including the City (and possibly even
National Government) suggest
that it is not possible to meet housing
shortages even on the progressively
realisable
basis as
envisaged in the Constitution, it appears necessary for a court to
obtain a complete picture of what is feasible and
attainable in
order to decide what is just and equitable, as it is required to
establish within the context of section 4(7) of
PIE, and so too
under section 6(3)(c) of PIE where State land is involved.
If regard is had to the
broader nature of the issues that the court may now have to
consider, especially if the City persists
with its current position
that even the provision of temporary shelters for the indigent
homeless population within its area
is unattainable, it appears
eminently desirable that National Government and Provincial
Government should be joined. In many
other cases they are cited and
they have not suggested a mis-joinder even where the issues may
have been narrower.
In the case of National
government , the Department of Human Settlements now plays a
decisive role in formulating policy, implementing
the delivery of
housing and also the provision of additional funding. Since the
establishment of the Ministerial portfolio
of Human Settlements
(previously the Housing Ministry) in May 2009 the Department’s
objective is to meet , and I refer
to its Accounting Officer’s
overview on its website,
“
… government’s constitutional responsibility of
ensuring that every South African has access to permanent
housing
that provides secure tenure, privacy, protection from the elements,
and access to basic services.
In my view the establishment
of the Ministry of Housing Settlements, having regard to its
objectives, its apex position, its ability
to consider all issues
that may affect the provision of adequate housing holistically and
engage other Ministries in formulating
strategies, programs or
incentives, makes it the appropriate Ministry to represent National
Government’s interests. More
so, as the issue has taken on
dimensions that now transcend the capacity of local government and
may involve broader national
policy concerns as diverse as rural
incentivisation
,
self-upliftment and job creation policies as well as immigration
control policies.
Since there may a meaningful
contribution played by the Gauteng Province in regard to funding and
programs, it similarly
prima
facie
appears to be an
interested party if, unlike my finding in the case of
Blue
Moonlight(2)
, the City is able
to demonstrate that it is not now able to provide even temporary
shelter for indigent homeless people within
its area.
In the matter before me the
occupiers sought the joinder only of the City. In my view, albeit
for different reasons, I agree with
Mr Pullinger’s submission
that
prima facie
other
spheres of government should have been subject to joinder in the
present case, or at least be heard on the issue at this
stage.
Leaving aside constitutional
considerations, this court has jurisdiction to order joinder
mero
motu
. Accordingly while the
point appears
prima facie
to be well taken in the present case, it does not non-suit the
occupiers.
Clearly neither National
Government nor Provincial Government has been heard on the issue. I
therefore do not consider it appropriate
to direct their joinder
without affording them an opportunity to be heard on the issue.
Moreover the framework of the
possible joinder, as appears from my order, is to ensure that there
is a
lis
between all the original parties to the application on the one
hand and each of the spheres of government that may be joined
on the
other . The reason for this is to ensure that there is a
lis
not only between the occupiers and the other Respondents that are
joined, but also between them and the Applicant. See
Blue
Moonlight (2)
at para [83] to
[85].
It will be recalled that in
matters of this nature a court originally took it upon itself to
require a report from various organs
of state. The issue is of a
constitutional nature and affects the validity of legislation as
well as programs and policies of
both National and Provincial
Governments.
It appears
prima
facie
that they have a real and
substantial interest in the issues before this court. Indeed the
report to which reference was made
earlier attributed the Minister
of Human Settlements to have requested that the position of his
Ministry is made known to the
courts.
Once the issue of joinder is
settled then consideration can be given to the nature of the reports
that should be provided by the
other spheres of government. At the
least, and if joined, the reports should deal with the capacity of
National, Provincial and
Local government to provide adequate
shelter for indigent people facing eviction from both State and
privately owned land in
the short, medium and long term within the
City’s area of control (bearing in mind both the “
queue
jumping
” argument and the
“
unattainable
”
arguments that are foreshadowed), and insofar as it affects the
ability to provide temporary shelter to the First Respondents.
ORDER
I accordingly order that;
The main
application is postponed
sine die
The City
of Johannesburg (“
the
City
”)
is joined as a party in the proceedings as the 2
nd
Respondent to the main application and as a Respondent in the
counter application.
The
papers in the main application and the joinder application are to
be served by the original Respondent in the main Application
being
the occupiers of Erf 952 (now the 1
st
Respondent in the main application) on the Minster of Human
Settlements (“
the
Minster
”)
and the Gauteng Provisional Government (“
Gauteng
Government
”)
by no later than 1 March 2011.
Both the
Minister and the Gauteng Government are to show cause to this
Honourable Court on 5 April at 10am or so soon thereafter
as the
matter can be heard why an order should not be made joining each of
them (respectively) as Respondents to the main application
and as
Respondents to the counter application of the Occupiers of Erf 952;
The City
is to pay the costs of the 1
st
Respondents’ application for the joinder.
SPILG J
LEGAL REPRESENTATION;
FOR APPLICANTS in MAIN
APPLICATION (Eagle Valley):
Counsel: Adv B Bodhania;
Attorneys: Mahomeds Inc.
FOR RESPONDENTS in MAIN
APPLICATION (Occupiers)
Counsel: Adv E Botha
Attorneys: Eversheds
FOR THE RESPONDENTS IN
APPLICATION FOR JOINDER (City of Johannesburg)
Counsel : Adv AW Pullinger
Attorney: Moodie and Robertson