About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 179
|
|
Member for the Executive Committee Department of Local Government and Housing Gauteng Province v Kolombea (9509/2011) [2011] ZAGPJHC 179 (30 November 2011)
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: 9509/2011
DATE:30/11/2011
REPORTABLE
In the matter between:
MEMBER
FOR THE EXECUTIVE COMMITTEE
DEPARTMENT OF LOCAL GOVERNMENT
AND HOUSING GAUTENG PROVINCE
APPLICANT
And
KOLOMBEA MIRRIAM
HLOMPHO
.
RESPONDENT
LEAVE TO APPEAL
JUDGMENT
VICTOR, J:
[1] Although this is an
application for leave to appeal the applicant has raised the question
of the separation of powers doctrine
for the first time when arguing
this application for leave to appeal. The issues are substantive and
new and therefore require
reasons for the order that I intend making.
I granted the applicant an eviction order subject to it assisting the
respondent to
gain vacant occupation of the property it had allocated
to her.
[2] At the heart of
this matter is the question of housing and whether the effect of my
order could result in the domino effect
of making the respondent
homeless. I am mindful of the principle set out in the case of
President of The Republic of South
Africa and another v Modderklip
Boerdery (Pty) Ltd (Agri SA and others, Amici Curiae)
2005 (5) Sa 3
(CC) at para [49].
“
The
State is under an obligation progressively to ensure access to
housing or land for the homeless. I am mindful of the fact that
those
charged with the provision of housing face immense problems.
Confronted by intense competition for scarce resources from
people
forced to live in the bleakest of circumstances, the situation of
local government officials can never be easy. The progressive
realisation of access to adequate housing, as promised in the
Constitution, requires careful planning and fair procedures made
known in advance to those most affected. Orderly and predictable
processes are vital. Land invasions should always be discouraged.
At
the same time, for the requisite measures to operate in a reasonable
manner, they must not be unduly hamstrung so as to exclude
all
possible adaptation to evolving circumstances. If social reality
fails to conform to the best-laid plans, reasonable and appropriate
responses may be necessary. Such responses should advance the
interests at stake and not be unduly disruptive towards other
persons.
Indeed, any planning which leaves no scope whatsoever for
relatively marginal adjustments in the light of evolving reality, may
often not be reasonable.”
[3] The applicant
had granted one Ms Sedipe rights to erf 1205 Johandeo Township,
Sedibeng (1205). The applicant had similarly
granted the respondent
rights to erf 656 Johandeo Township, Sedibeng (656). The respondent
has not received vacant possession of
the property. Unlawful
occupiers invaded 656 and are still in occupation. They threaten the
respondent with death should she evict
them. 1205 is occupied by the
respondent who resided there by virtue of the following facts. This
right arose when the respondent’s
husband in 2000 “purchased
and paid for a right to build a shack” on 1205. He
expended quite a lot of money in
improving his section of the
property. This lawful occupation came to an end when Mr Sedipe died
and Mrs Sedipe wanted to return
to 1205. In order to assist Mrs
Sedipe the applicant brought an application to evict the respondent
from 1205.
[4] I granted the
eviction subject to the applicant ensuring that the respondent was
given occupation of 656 and suspended
such eviction until the
Applicant obtained an eviction order against the unlawful occupiers
currently occupying Erf 656.
THE
NEED FOR CONGRUENCE BETWEEN SEPARATION OF POWERS DOCTRINE AND THE
PROVISIONS OF PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL
OCCUPATION OF LAND ACT 19 of 1998 (PIE)
[5]
The effect of the order was to prevent a domino effect of families
being evicted in the context set out in the judgment. As
stated in
Modderklip supra “Orderly and predictable processes are vital.”
The Applicant seeks leave to the appeal the
latter part of the order
which is the suspension of the eviction pending it evicting the
unlawful occupiers from the respondent’s
home.
[6] The Applicant
contends that the effect of the judgment is to infringe the
separation of powers doctrine presumably because
the court would be
directing another organ of state to take legal steps to evict the
unlawful occupiers of the house which it allocated
to the respondent.
[7] The doctrine of
separation of powers is of great importance in our democracy and a
legal attack of such a nature requires
meaningful presentation of
facts and properly considered legal argument. The applicant failed to
provide detail as to exactly what
aspect the separation of powers had
been breached and the argument did not take constitutional
application of the doctrine much
further.
[8] The separation
of powers doctrine is not something which should be raised and dealt
with in passing. The total ambit of
this assertion that the
separation of powers doctrine has been breached is in one paragraph
in the notice of appeal. It is asserted
that the:
“
Judgment
also violates the constitutional principle of separation of powers,
in that it improperly interferes with the functioning
and powers of
the Executive” .
[9] The above
sentence is the extent of the detail of the complaint. No detail is
given as to which function of the executive
is interfered with or
which power. The context of this entire matter is of importance.
The eviction order was granted pursuant
to functions and powers
exercised by the applicant. This court also suspended the order in
the context of the facts presented where
the applicant clearly has
the powers to instruct the state attorney to institute eviction
proceedings. The applicant could very
easily have assisted the
respondent. Nothing is said in the main application or indeed in the
leave to appeal notice why this was
not possible. It was the
respondent’s complaint that the applicant had failed to assist
her in obtaining vacant possession
of 656 and is apparently refusing
to do so.
[10] No facts were
asserted by the applicant as to why the suspension of the eviction
order pending the applicant taking the
very same step was a violation
of the principle of the separation of powers. The order granted
must be analysed within the
context of the rights of both the
applicant (in its role of assisting Ms Sedipe) and the respondent.
[11] It is common
cause that the respondent is the owner of House 656 Johandeo and that
there are illegal occupants in those
premises. The respondent had
repeatedly sought the applicant’s assistance to evict the
unlawful occupiers from her home.
The applicant, however, has ignored
such request and elected to evict the respondent from the present
home which she occupies.
[12] The applicant
contends that the respondent never approached them for assistance in
regard to the eviction of unlawful
occupiers from her home. On a
proper application of the principles in Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) I accepted the
respondent’s version where she asserted that she has repeatedly
requested the applicant to assist her
in evicting the unlawful
occupiers from her home so that she can make the transition to 656.
[13] During the
course of argument it was submitted by counsel on behalf of the
respondent that the applicant should assist
the respondent by
ordering the applicant to give vacant possession to 656. Although
there was not a formal counter application
in this regard, I granted
the request based on the jurisdictional facts I found to be proved
viz. that the respondent had repeatedly
asked the applicant for
assistance and that her financial position was severely compromised
based on all the money she had expended
on the improvements effected
by the respondent.
[14] In Machele and
others v Mailula and others
2010 (2) SA 257
(CC) para 13, an order
had been granted in favour of the owner of the property. Skweyiya J
stated in regard to eviction proceedings
that:
“
No
regard was had to any of the provisions of the Constitution, in
particular s 26, or to the provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act (PIE), a statute
enacted to give effect to rights and values in the Constitution.”
15] And at para 26
“
In
my view, an eviction from one's home will always raise a
constitutional matter. Further, in the Jaftha case, Mokgoro J said
that 'at the very least, any measure which permits a person to be
deprived of existing access to adequate housing, limits the rights
protected in s 26(1)' .
[16] In Port
Elizabeth Municipality v Various Occupiers 8
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at
para 11:
“
'The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE) was adopted with the manifest objective
of . . .
ensuring that evictions, in future, took place in a manner consistent
with the values of the new constitutional dispensation.
Its
provisions have to be interpreted against this background.'
[15] The application of
PIE is not discretionary. Courts must consider PIE in eviction cases.
PIE was enacted by Parliament to ensure
fairness in and legitimacy of
eviction proceedings and to set out factors to be taken into account
by a court when considering
the grant of an eviction order. Given
that evictions naturally entail conflicting constitutional rights,
these factors are of great
assistance to courts in reaching
constitutionally appropriate decisions.
[16] That the High Court
authorised the eviction without having regard to the provisions of
PIE is inexcusable. PIE is of great
importance, given that there are
still millions of people in our country without shelter or adequate
housing and who are vulnerable
to arbitrary evictions.”
[17] The order
granted was mindful of the above principles. The applicant has
submitted that the effect of the suspension
violated the
constitutional principle of separation of powers. The applicant
contends that the court has improperly interfered
with the
functioning and powers of the executive (presumably meaning the
provincial executive) by directing that the applicant
should take a
further legal step to avoid a consequential scenario where another
bona fide homeowner would be without accommodation
in circumstances
beyond her control.
[18] Harmony
between the three arms of government is essential. It is not without
tensions from time to time. Constructive
tension however has value.
The separation of powers is necessary in order to avoid excessive
concentration of power in a single
person or body. See The New
Constitutional and Administrative Law Volume one Contributing editors
Iain Currie and Johan de Waal
Juta law 2001.
[19] The facts
giving rise to the criticism levelled at this court’s role in
breaching this doctrine has not been provided
and hence the
difficulty in dealing with this new submission at the leave to appeal
stage of the proceedings.
[19] The order is
not one which directs the applicant to provide alternative
accommodation for the respondent. The court has
not entered into the
arena of policy. The court has directed the applicant to take the
very same procedural step which it accorded
Ms Sedipe. The applicant
has not advised why it cannot do so.
[20] Cognisance is
taken of the delicate but important balance required between the
courts and the provincial government.
The order does not infringe on
the applicant’s policy on housing. The facts in this case as
well as the order granted is
distinguishable from the City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39
(Pty) Ltd And Another
2011 (4) SA 337
(SCA).
[21] Both parties
in this application have been allocated homes by the applicant. It is
a question of whether it is reasonable
for the applicant to provide
both parties vacant occupation to their homes. The order does not
interfere with the day to day operations
of the applicant being the
province. The effect of the order is not an attack on policy issues.
The applicant’s conduct in
assisting Ms Sedipe but not the
respondent has not been explained. If the respondent’s requests
were inadvertently not dealt
with then the applicant could have
immediately set about rectifying the situation by assisting the
respondent. Instead it has taken
the stance that it will not assist
the respondent.
[22] The refusal by
the applicant to assist the respondent is not a policy or political
issue which is not justiciable. No
policy argument was raised by the
applicant so as to justify the applicant’s inconsistent
approach. The simple assertion
in argument that the provincial
authority can elect whomsoever it pleases to assist and therefore the
court is contravening the
separation of powers doctrine is not
understood.
[23] Clearly the
conduct of the applicant is justiciable in these particular
circumstances. The effect of the court order
emanating from one arm
of government being the judiciary does not prevent or intrude on the
applicant as another arm of government
from performing its functions.
[24] On a proper
interpretation and application of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land
Act 19 of 1998 (PIE) and in the
spirit of constitutional accountability full reasons have been given
and it is emphasised that
in the absence of detail and exactly how
the separation of powers has been breached no fuller reasons for
judgement can be provided.
See South African Liquor Traders'
Association and others v Chairperson, Gauteng Liquor Board, and
Others
2009 (1) SA 565
(CC).
[25] I also find
that the other grounds of appeal raised must fail. It is not
reasonably possible that another court will
come to a different
conclusion in the circumstances of this case where the appeal is
levelled at a breach of the separation of
powers.
The order that I would
therefore make is that the application is dismissed with costs.
BY THE COURT
VICTOR J
Counsel for the
applicant: Adv. Manaka
Attorneys for the
applicant: The State Attorney: Johannesburg
Counsel for the
respondent: Adv. Liebenberg
Attorneys for the
respondent: Muller & Nolte Attorneys