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[2012] ZAGPJHC 230
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Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of the Newtown Urban Village (GSJ) [2012] ZAGPJHC 230; 2013 (1) SA 583 (GSJ); [2013] 1 All SA 192 (GSJ); 2013 (3) BCLR 337 (GSJ) (15 November 2012)

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IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 2011/30368
DATE:15/11/2012
REPORTABLE
In the matter between:
JOHANNESBURG
HOUSING CORPORATION (PTY)
LIMITED
..............................................................
Applicant
and
THE
UNLAWFUL OCCUPIERS OF THE NEWTOWN URBAN VILLAGE
….......................................
Respondent
JUDGMENT
WILLIS J:
[1] The applicant seeks the eviction
of the occupiers of what is known as ‘The Newtown Urban
Village’. The applicant
is the registered owner of the
immovable property on which this Newtown Urban Village has been
erected. It is a housing complex
consisting of 340 dwelling units.
The property is more formally known as Portion of erf 4507
Johannesburg Township, Registration
Division I.R. Gauteng and is
situate at 3 Malan Street, Burghersdorp, Johannesburg. The provisions
of sections 4 (7) and (8) of
the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act, No.19 of 1998 (‘PIE’),
loom large in this
application.
[2] The applicant took transfer of the
property on 11 April 2011, on registration of the property into its
name. The applicant purchased
the property at a public auction held
on 26 November 2009. The auction was conducted at the instance of one
Michael Moloto. Mr
Moloto was the liquidator of the previous owner,
Newtown Housing Co-operative Limited (‘the Co-Op’). The
Co-Op was
placed under a final winding-up order granted in this, the
South Gauteng High Court on 7 August 2009, a provisional order having

been granted on 7 May 2004. The Co-Op’s application for leave
to appeal against this final winding-up order was dismissed
on 20
October 2009, as was the subsequent petition to the Supreme Court of
Appeal (‘the SCA’).
[3] The applicant purchased the
property for R27,9 million, which sum of money it has duly paid. The
applicant is what has commonly
been known as a ‘section 21
company’. It is an incorporated association, not for gain, in
terms of section 21 of the
old Companies Act, No 61 of 1973, as
amended. It primary objective, indeed its raison d’être,
is the provision of affordable
rental accommodation within the City
of Johannesburg (‘the City’).
[4] The Newtown Urban Village itself
was purposely developed and built in order to provide adequate or low
cost housing to low income
members of society. In partnership with
the Norwegian Government (which provided financial support), the
Newtown Urban Village
was created, developed, financed and managed
through the Co-Op, which had previously owned the property.
[5] It is common cause that, in an
all-too-depressingly familiar scenario, the entire housing scheme
collapsed as a result of mismanagement,
fraud and corruption. This
resulted in the liquidation of the Co-Op and the sale of the property
to the applicant.
[6] The Newtown Urban Village has been
home to a large number of persons consisting of women, children,
households headed by women,
unemployed, elderly and sickly persons.
[7] The respondents are not the
tenants of the applicant. It is common cause that, at common law, the
respondents have no right
to occupy the property. There appears to be
no real dispute that the property is controlled by one Zacharia
Matsela who, in another
all-too-familiar-scenario with which the
judges in the South Gauteng High Court are familiar, but which does
not seem to have received
attention further afield, has hijacked the
property. Mr. Matsela appears to exercise control over the property
through his security
guards. These guards have used physical violence
to deny the applicant access to the property.
[8] It has not been denied by Mr
Matsela that he collects ‘rent’ from the occupiers. This
is a criminal offence in terms
of section 3 (1) of PIE. There are
two factions among the occupiers in this contest: the ‘Matsela
Group’ and the
Khumalo Group’. Mr McKelvie appears for
the ‘Khumalo Group’. At this stage, there is no
appearance on behalf
of the Matsela Group.
[9] The Matsela group opposed the
eviction by disputing the applicant’s ownership of the property
and, for that purpose, they
launched a substantive application to set
aside the appointment of Mr Moloto as the liquidator of Newtown
Housing Co-operative
and to set aside Mr Moloto’s sale of the
property to the applicant. This matter was also allocated to me by
my sister Satchwell,
the senior judge responsible for the allocation
of opposed motion court matters that week. Satchwell J did so at the
request of
the counsel for the applicant in the present matter. The
request that the same judge hear the matters together arose because
of
the linkage between them.
[10] The Matsela group (the applicants
in the matter in which was sought the removal of the liquidator and
the setting aside of
the sale), applied for that application to be
postponed. After hearing argument from all parties, I dismissed that
application
for a postponement with costs and, having heard the
substantive application, dismissed that with costs too. These
applications,
like the present one, were argued on 17 October
2012. The dismissal of the application for a postponement and the
application
for the removal of Mr Moloto and the setting aside of the
sale occurred on 17 October, 2012. The judgments in those two matters

were delivered ex tempore.
[11] During one of the many hearings
with which the High Court has been seized with the matter, the
Matsela group took the point
that the City should have been joined as
a party to these proceedings. That matter was argued before Wise AJ.
On 17 June 2012,
Wise AJ directed that the parties, including the
Khumalo group should apply for a joinder of the city within 15 court
days of his
order. The Khumalo group did not avail itself of this
opportunity but the Matsela group did. This application for joinder
was dismissed
by Wepener J on 4 October 2012.
[12] The Khumalo group initially chose
not to file any answering affidavits in the eviction application.
Instead, they launched
an application for the joinder of, inter alia,
the President and the National and Provincial Governments, stating
that they intended
to seek restitution of the property and/or damages
against these entities once joined. Senior and junior counsel
appeared for
these occupiers and, after hearing argument, their
application was dismissed by Mlonzi AJ on 25 April 2012.
[13] On 4 June 2012, i.e. some 10
months after the applicant had launched its application for eviction,
the Khumalo group filed
an answering affidavit to the eviction
application, attaching the affidavits of 79 occupiers. The Khumalo
group now contends in
argument before me that the applicant ‘... has
not joined the City as a party to the proceedings, has refused to do
so and opposed all attempts by the occupiers to join the
municipality’. This statement ignores the fact that 2012, when
the application for eviction was postponed sine die by Wise AJ on 17
June 2012, he pertinently made an order that they should so
apply
for the joinder of the City within 15 days of his order. The Khumalo
group elected not to apply for the joinder of the City
within the
time permitted in terms of the order of Wise AJ (or within any other
time-frame).
[14] To the extent that the
respondents had rights at common law to occupy the property, these
expired years ago. What would have
been a legally straightforward
matter before the coming into operation of PIE on 5 June 1998 has now
become fraught with complexity.
I shall take the unusual step of
outlining in a judgment, before any analysis of the facts, the law as
I understand it to be in
regard to applications for eviction of this
kind. The reason is that any judge whose unhappy lot it is to decide
such applications,
needs to know the issues in respect of which he or
she needs, in an alerted watch, to be prepared.
[15] In the case of Port Elizabeth
Municipality v Various Occupiers,
1
Sachs J, delivering the unanimous judgment of the Constitutional
Court, said:
(T)he Constitution imposes new
obligations on the courts concerning rights relating to property not
previously recognised by the
common law. It counterposes to the
normal ownership rights of possession, use and occupation, a new and
equally relevant right
not arbitrarily to be deprived of a home. The
expectations that ordinarily go with title could clash head-on with
the genuine despair
of people in dire need of accommodation. The
judicial function in these circumstances is not to establish a
hierarchical arrangement
between different interests involved,
privileging in an abstract and mechanical way the rights of ownership
over the right not
to be dispossessed of a home, or vice versa.
Rather, it is to balance out and reconcile the opposed claims in as
just a manner
as possible, taking account of all the interests
involved and the specific factors relevant in each particular case.
2
[16] Section 26 of our Constitution
reads as follows:
Everyone has the right to have access
to adequate housing;
The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive realisation
of this right.
No one may be evicted from their
home, or have their home demolished, without an order of court made
after considering all the
relevant circumstances. No legislation may
permit arbitrary evictions.
3
[17] None of those who trace their
intellectual and moral commitments to constitutionalism back to the
Putney Debates could, conceivably,
have the slightest difficulty with
this section.
4
As for the prohibition on legislation which permitted arbitrary
evictions, this evokes the horrendous forced removals of black
people
through administrative action authorised by such a shameful litany of
notorious pieces of legislation as the Black Land
Act, No 27 of 1913
as amended (previously the Natives Land Act), the Black (Urban Areas)
Act, No. 21 of 1923, as amended (previously
the Natives (Urban Areas)
Act), Development Trust and Land Act, No. 18 of 1936, as amended
(previously the Natives Development
and Trust Act), the Black (Urban
areas) Consolidated Act, No.25 of 1945, as amended and the Group
Areas Act, No. 41 of 1950, as
amended.
5
[18] The structure and form of our
Constitution was informed, inter alia, by the German experience this
century.
6
There have been parallels in the race-based ideologies of apartheid
and Nazism. The concept of ‘arbitrary evictions’
evokes
horrific memories of Jews being evacuated from their homes in Nazi
Germany simply because they were Jewish. The position
of owners of
immovable property seeking to enforce, under the common law, the
eviction of those who occupy their properties without
the owners’
consent is not remotely comparable to the forced removal, by reason
of statutorily created administrative law,
of blacks under apartheid
or Jews living under the National Socialist regime in Germany.
[19] It is now trite that PIE has its
roots, inter alia, in the provisions of section 26 of our
Constitution.
7
Section 4 (7) of PIE provides that:
If an unlawful occupier has occupied
the land in question for more than six months at the time when the
proceedings are initiated,
a court may grant an order for eviction if
it is of the opinion that it is just and equitable to do so, after
considering all the
relevant circumstances, including, except where
the land sold in a sale of execution pursuant to a mortgage, whether
land has been
made available or can reasonably be made available by a
municipality or other organ of state or another landowner for the
relocation
of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons and households
headed by
women.
[20] None whose intellectual and moral
paradigms are consistent with the rationalism born of the
Enlightenment could have any difficulty
with the requirement that a
court, before deciding to make an eviction order, should consider all
relevant circumstances, including
the rights and needs of children,
the elderly, the disabled and households headed by women. As to what,
potentially, a municipality
can contribute to the resolution of a
problem that arises from the occupation of land without the owner’s
consent, this may
in circumstances be relevant, although not always.
Eviction from a large informal settlement that has been in existence
for years
would ordinarily benefit from the plans, recommendations
and advice of a city or town’s urban and regional planners.
[21] Having regard to the provisions
of section 4(7) of PIE (and the interpretation given to those
provisions and the requirements
in respect thereof subsequently laid
down by the Constitutional Court and the SCA), this case has to be
decided according to whether
it would be ‘just and equitable’
to grant an eviction order against the respondents, after considering
all the relevant
circumstances, including the availability of land
for the relocation of the occupiers, the rights and needs of the
elderly, children,
disabled persons and households headed by women.
8
A conundrum arises from what is meant by ‘just and equitable’.
[22] In the Port Elizabeth
Municipality case the court said:
As Grootboom indicates,
9
municipalities have a major function to perform with regard to the
fulfilment of the rights of all to have access to adequate housing.

Municipalities, therefore, have a duty systematically to improve
access to housing for all within their area. They must do so on
the
understanding that there are complex socio-economic problems that lie
at the heart of the unlawful occupation of land in the
urban areas of
our country. They must attend to their duties with insight and a
sense of humanity. Their duties extend beyond the
development of
housing schemes, to treating those within their jurisdiction with
respect.
10
[23] In Machele and Others v Mailula
and Others,
11
Skweyiya J, delivering the unanimous judgment of the Constitutional
Court, said:
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 actors 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 assistance
to courts in reaching
constitutionally appropriate decisions.
12
In the same case, Skweyiya J went on
to say: ‘That the High Court authorised the eviction without
having regard to the provisions
of PIE is inexcusable’.
13
[24] One of the files in the case
before me is a ‘duplicate file’, created after the
original file went missing. The
disappearance of files from the
registrar’s office occurs not infrequently in this court,
especially in matters related to
eviction. From my later analysis of
events, it would appear that there were indeed several more
postponements and interlocutory
applications in this case than those
which were recorded on the duplicate file placed before me. This is
not unusual when original
files go missing and duplicates have to be
reconstructed.
[25] Motion Court proceedings are
brought by way of application.
14
These matters, brought by way of application, are decided on
affidavit.
15
A key feature of motion proceedings is that they are meant to be (and
in the South Gauteng High Court, normally are ‘immeasurably

less costly and more expeditious than a trial action.’
16
[26] It is clear from the notes on the
court files in the matter now before me, as well as the orders made
my aforesaid colleagues,
that they have been anxious to explore the
possibility of a resolution of this dispute and were careful to allow
the parties ample
time to ventilate the issues between them as well
as to explore alternatives. Judges presiding in motion courts do so
‘in
series’ with one another rather than ‘in
parallel’ with one another: in other words, the electrical
current,
when a judge in motion court makes an interim order (which
may include an order for postponement), is passed directly from one
judge to another, by way of baton (if I may be permitted to switch
the metaphorical allusion).
[27] The issues considered previously
in the same case by one judge in motion court are taken into account
by the other judges of
the High Court who hear the matter down the
line. In other words, when a motion matter is considered ‘by
the High Court’,
this means it is considered by all the judges
before whom the matter previously came and each successive judge
takes into account
what went before and what exercised the mind of
the judges previously entrusted with the matter. In short, this is
how the Motion
Court functions.
[28] My cri de Coeur in Emfuleni
Local Municipality v Builders Advancement Services CC and Others
17
arose from the following:
By reason of the fact that the record
will show that, for months on end, various colleagues of mine, as
well as me, had been trying
to find a way to deal fairly with the
competing interests in terms of PIE, it seemed to me that the
Constitutional Court, when
deciding Machele v Mailula, must either
have made its decision without having the full record before it or
without having an
understanding of how application proceedings are
dealt with in the High Court (both of which propositions are curious
in my view);
and
The business of judging is, at its
core, about making decisions and when persons are occupying
immovable property against the
will of the owner, without paying any
agreed rent to the owner, a court needs clear, certain,
implementable guidelines as to
how it is to go about making its
decision as to what it should order (if a court determines that the
owner has no right to evict
in these circumstances, property rights
are meaningless and if the owner does indeed have a right to evict,
the owner and the
tenants also have a concomitant right to know when
this is to take place).
[29] In the Emfuleni Municipality case
which was heard by me, I postponed the hearing of the application
sine die and respectfully
requested the Deputy Judge President to
appoint a full court to hear the matter so that guidelines could be
given as to the granting
or refusal of applications for eviction
should be made in terms of PIE.
[30] The full court, hearing the
matter, said in Emfuleni Local Municipality v Builders Advancement
Services CC and Others
18
that it was not ‘either appropriate or desirable for a full
court to provide the clarity and guidance (on how to deal
appropriately
with applications for eviction) in the general terms
sought by Willis J.’
19
[31] In the Port Elizabeth
Municipality case, Sachs J decried those who relied on ‘concepts
of faceless and anonymous squatters
automatically to be expelled as
obnoxious social nuisances’.
20
He went on to say:
Such a stereotypical approach has no
place in the society envisaged by the Constitution; justice and
equity require that everyone
is to be treated as an individual bearer
of rights entitled to respect for his or her dignity.
21
[32] It is not stated whom Sachs J had
in mind when he referred to those who consider squatters to be
‘obnoxious social nuisances’.
Certainly, none of the
judges in the South Gauteng High Court could reasonably be imagined
as thinking this of respondents in applications
for evictions. The
shared humanity of those against whom eviction orders are sought is
palpable: those affected pack the court
rooms every week in the
Johannesburg High Court. The court takes on the character which it
would have had in Victorian times, before
the advent of cinema and
television. There is an atmosphere of high drama with audible
reactions in the gallery to the respective
submissions of counsel and
the interpositions of the bench. Ululations not infrequently emanate
when the court grants a further
extension of time.
[33] The applicant contends that it
would be just and equitable to grant the eviction order, the
respondents that it would not.
The words ‘just and equitable’
glide from the tongue with facility. Their precise meaning eludes
easy description.
It must also be borne in mind that it one reads
section 4 (7) and section 4 (8) of PIE together, the court has to
make two ‘just
and equitable’ determinations: the first
as to whether it would be ‘just and equitable to grant an order
for eviction
and the second as to the date upon which it should be
ordered that the occupier is to vacate the property.
22
The determinations as to the date upon which the occupier is to
vacate the property is then followed by another determination,
which
presumably should also be ‘just and equitable’, even
though the subsection does not expressly say so, as to date
when the
occupier should be evicted.
23
[34] In the case of Wormald N.O. and
Others v Kambule,
24
Maya AJA (as she then was) delivering the judgment of the court
referred with approval to what Harms JA (as he then was) said in
the
Ndlovu case (supra):
The court, in determining whether or
not to grant an order or in determining the date on which the
property is to be vacated (s
4(8)), has to exercise a discretion
based upon what is just and equitable. The discretion is one in the
wide and not the narrow
sense (cf Media Workers Association of South
Africa and Others v Press Corporation of South Africa Limited
(‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 800, Knox D’Arcy
Limited and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at
360G-362G
[Port
Elizabeth Municipality v Various Occupiers (supra) at
par [31].] A court of first instance, consequently, does not have a
free
hand to do whatever it wishes to do and a court of appeal is not
hamstrung by the traditional grounds of whether the court exercised

its discretion capriciously or upon a wrong principle, or that it did
not bring its unbiased judgment to bear on the question,
or that it
acted without substantial reasons.
25
[35] In the Ndlovu case, Sachs J
speaks of a ‘broad judicial discretion’ that has to be
exercised ‘in the proper
application of PIE’.
26
In the Media Workers’ (‘Perskor’) case, Grosskopf
JA, delivering the unanimous decision of the court, held that:
The essence of a discretion in this
narrower sense is that, if the repository of power follows any one of
available courses, he
would be acting within his powers, and his
exercise of power could not be set aside merely because a Court would
have preferred
him to have followed a different course among those
available to him.
27
That which Grosskopf JA has described
as a discretion ‘in this narrrower sense’ refers to a
discretion being exercised
from a range of permissible options. This,
in plain English, is normally referred to as a ‘broad
discretion’. In the
Knox D’arcy case, decided a few years
after the Media Workers’ (‘Perskor’) case, Grosskpf
JA, again delivering
the unanimous judgment of the court, warmed to
this theme. He said that:
In the present context the statement
that a Court has a wide discretion seems to mean no more than that
the Court is entitled to
have regard to a number of disparate and
incommensurable features in coming to a decision.
28
Grosskopf JA then went on to say:
Finally, in regard to the so-called
discretionary nature of an interdict: if a Court hearing an
application for an interim interdict
had a truly discretionary power,
it would mean that, on identical facts, it could in principle choose
whether or not to grant the
interdict and that a Court of appeal
would not be entitled to interfere merely because it disagreed with
the lower court’s
choice (Perskor case at 800D-F). I doubt
whether such a conclusion could be supported on the grounds of
principle or policy. As
I have shown, previous decisions of this
Court seem to refute it.
29
[36] When Harms JA endorsed the Media
Workers’ (‘Perskor’ ) test and the Knox D’Arcy
test in their application
to the PIE matter in the Ndlovu case
(followed by Maya AJA in the Wormald v Khambule case), this may have
had far-reaching implications.
It seems to mean that a court, hearing
this matter (or any other eviction matter), can make only one right
decision not only as
to (a) whether to order an eviction or not but
also (b), if it succeeds in correctly deciding to order an eviction,
as to the precise
date of the eviction order. This, in my respectful
view, is not helpful. It would create an intolerable situation,
rendering the
functioning of the courts in regard to eviction matters
unworkable. It would be grossly unfair to judges.
[37] It is questionable, on so
intensely ideological an issue and one so hugely divisive, how there
can be only one correct answer
not only on whether to grant an
eviction order or not but also, if one survives the hurdle of
deciding correctly, that an eviction
must be ordered, the actual date
in the future from which it is to take effect. It is unsurprising
that there seems to be so much
confusion when dealing with eviction
matters. This confusion may explain the inordinate postponements of
such applications.
[38] Intrinsic to the rule of law is
predictability, reliability and certainty.
30
In the case of Cassell & Co Limited v Broome and Another
31
the then Lord Chancellor of England, Lord Hailsham of St Marylebone,
explained why it is so important to have this feature of

predictability, reliability and certainty in the courts. After
referring to the embarrassing nature of disputes between different

courts, he said:
But, much worse than this, litigants
would not have known where they stood. None could have reached
finality short of the House
of Lords, and, in the meantime, the task
of their professional advisers of advising them either as to their
rights, or as to the
probable cost of obtaining or defending them,
would have been, quite literally, impossible. Whatever the merits,
chaos would have
reigned until the dispute was settled, and, in legal
matters, some degree of certainty is at least as valuable a part of
justice
as perfection.
32
[39] The Cassell case has been
referred to with approval by the SCA in the matter of S v Kgafela.
33
Is South Africa’s great constitutional experiment, after 1994,
to be put in jeopardy because we have defenestrated the rule
of law?
Have we sacrificed the great principle of legal certainty, developed
by the giants of constitutional law over several centuries
because of
a penchant to be described as ‘progressive’? I shall
carefully attempt to examine what might be meant by
‘just and
equitable’.
[40] Lawyers are likely to be rather
more familiar with the words ‘just and equitable’ in the
context of the liquidation
of companies, rather than PIE by reason of
the longevity of legislation relating to company liquidations. This
longevity extends
beyond the Companies Act No.61 of 1973, as amended
(‘the old Companies Act’) or even its predecessor, the
Companies
Act, No.46 of 1926, as amended, back to Law 1 of 1894 in
the old Transvaal Republic. The context of PIE and the liquidation of
companies are, respectively, rather different. Words and phrases
generally have an inherent, inner coherence, despite their being
used
trans-contextually. I am mindful that Lewis Carroll immortalised, in
Through the Looking Glass, the expression: ‘“When
I use
a word’, Humpty Dumpty said in a rather scornful tone, ‘it
means what I choose it to mean – neither more
nor less’.”
Undaunted, I shall attempt to uncover the meaning, including the
implications of the expression ‘just
and equitable’.
[41] In Hull v Turf Mines Limited,
34
Innes CJ said:
(I)t should be noted that the words do
not in themselves constitute a statement of fact; they indicate a
conclusion of law to be
derived from facts placed before the Court.
The idea was very felicitously expressed by the Master of the Rolls
in the case of
The Emma Silver Mining Company v Grant
35
and it is clear upon a consideration of the language of the statute
that it is so.
[42] In Moosa N.O. v Mavjee Bhawan
(Pty) Limited & Another,
36
Trollip J (as he then was), when considering the meaning of ‘just
and equitable’ in section 111(g) of the 1926 Companies
Act,
followed Innes CJ’s understanding as set out in Hull v Turf
Mines above and said:
That paragraph, unlike the preceding
paragraphs of sec.111, postulates not facts but only a broad
conclusion of law, justice and
equity, as a ground for winding
up...In its terms and effect, therefore, section 111(g) confers upon
the Court a very wide discretionary
power, the only limitation
originally being that it had to be exercised judicially with due
regard to the justice and equity of
the competing interests of all
concerned.
37
Trollip J went on to say:
Inevitably, in the course of time, the
Courts have evolved certain general principles which are useful as
guides in particular cases
for the exercise of that discretion. A
most helpful collection and discussion of some of the leading
decisions by the English,
Australasian and Canadian Courts (with some
reference too to certain South African cases) appears in an article
by B.H. McPherson,
a lecturer in law at the University of Queensland,
in vol.27
(1964) Modern Law Review 282
, which Mr. Mendelow, for the
applicant , made available to me.
38
[43] Contrary to the view expressed in
Emfuleni Local Municipality v Builders Advancement Services CC and
Others
39
that it was not ‘either appropriate or desirable for a full
court to provide the clarity and guidance (on how to deal
appropriately
with applications for eviction) in the general terms
sought by Willis J’,
40
the highest court in the land has recognised the need for guidance to
be received by all courts from other courts elsewhere in
the world
and to be given directly from above within a hierarchy of courts.
[44] In Tjospomie Boerdery (Pty)
Limited v Drakensberg Botteliers (Pty) Limited and Another
41
Stegmann J said:
Deciding as to justice and equity...
does not involve the preference of the particular Court or Judge
according to what he finds
appropriate in the circumstances.
Difficult though justice and equity are to define, they have to be
seen as setting an objective
standard that will be the same in every
court in the land.
42
Stegmann J was sceptical of the words
‘just and equitable’ being interpreted so as to confer a
discretion, holding that
the discretion was more apparent than real.
43
[45] In the context of determining the
constitutional validity of a provincial regulation relating to racing
and betting, Van der
Westhuizen J, delivering the unanimous judgment
of the Constitutional Court in Weare and Another v Ndebele N. O. and
Others
44
said:
This court may make any order that is
just and equitable. The duty to give just and equitable relief
recognises that the position
dictated by the objective doctrine may
not always be a feasible one in practice. A decision as to what is
just and equitable involves
a balancing of the interests of the
individuals affected with the interests of good governance and the
smooth administration of
justice.
45
[46] In Minister of Home Affairs v
National Institute for Crime Prevention and the Re-Integration of
Offenders (NICRO) and Others
,
46
Chaskalson CJ in the context of an application to declare invalid
certain provisions of the
Electoral Act, No.73 of 1998
invalid
insofar as they restricted the rights of prisoners to vote, said that
a wide range of considerations could be considered
when making a
‘just and equitable’ order in terms of
section 172
(1)
(b) of our Constitution. Chaskalson CJ delivered the judgment with
which a further eight of the eleven Constitutional Court
judges
concurred.
[47] In British Columbia Hyslop J, in
the case of Higginson and Another v RTD Enterprises Limited and
Another,
47
also in the context of the liquidation of a company, referred with
approval to what Southin J had said in Safarik v Ocean Fisheries

Limited:
48
[90] “Just and equitable”
in this context, is so vague a notion as to call to mind what Selden
said (Table Talk of John
Selden (ed. Pollock, 1927) p.43), as quoted
by Sir Robert Megarry (Miscellany-at-Law (London: Stevens &Sons,
1955) at p.139:
Equity is a Roguish thing.
49
She went on to say that: ‘However,
the Legislature, having created such a vague standard, the judges
must do their best with
it.’
50
[48] Referring to the cases of Boffo
Family Holdings Limited v Garden Construction Limited
51
and Re Rogers and Agincourt Holdings Limited,
52
Hyslop J confirmed the view that the words ‘just and equitable’
are ‘of the widest significance and confer a
broad discretion
on the court’.
53
[49] Referring to Paley v Leduc
54
and Walker v Betts,
55
she approves the description of the words ‘just and equitable’
as entailing a ‘modified objective test’.
56
This seems to mean that the test is objective but not entirely so.
On an issue as important as the meaning of ‘just and

equitable’, the ancient quip, ‘Quot homines, tot
sententiae’
57
seems apposite. Opinions, even among reasonable men and women, may
differ and, at times, quite markedly. There is a spectrum of
opinion
ranging from the conviction that the words confer upon a court the
widest possible discretion that could, conceivably,
be given to a
court in a democratic state to the belief that the application of the
word ‘discretion’ to the interpretation
of ‘just
and equitable’ is almost a misnomer, that such discretion as
exists is more imagined than real.
[50] The recurring emphasis, in the
case law, in other contexts, on the objectivity of the test may be an
indicator that a court,
in making a decision that is just and
equitable in terms of PIE, is allowed the same margin of error as
that set out for individual
judges exercising a discretion in the
case of National Coalition for Gay and Lesbian Equality and Others v
the Minister of Home
Affairs and Others.
58
In that case it was held that that the exercise of a judicial
discretion entails a latitude of individual judicial freedom but

nevertheless requires that it must not be influenced by wrong
principles or a misdirection of the facts and the court must not

reach a decision the result of which result could not reasonably have
been made by the court properly directing itself to all the
relevant
facts and principles.
59
Once a court starts to talk about ‘reasonableness’, this
is, ordinarily, a pointer to the fact that it is referring
to an
objective test.
60
[51] The power that judges wield is,
or ought to be institutional, not personal. This is why in both what
are known as ‘English’
and ‘Continental’
systems of jurisprudence, senior members of the judiciary are
appointed only after they have acquired
years of scholarship and
experience. Judicial decision-making requires what is known as the
‘sacrifice of personality’.
No court in any advanced
modern society has, in the words of Harms JA, ‘a free hand to
do whatever it wishes to do’.
61
As it is a court of law which must make the final determination as to
whether it would be ‘just and equitable’ to grant
the
eviction order, the test has to be, in theory, an objective one.
[52] One accordingly, comes full
circle. As observed above, opinions among reasonable men and women
may differ. A decision may
be reasonable (and therefore objectively
defensible) even though one may not have made it oneself. If this
test is applied, the
task of the courts having to decide upon
eviction matters is much easier if there is a range of decisions
which may correctly be
made, given a particular set of facts. The
rule of law favours certainty although this certainty need not be
absolute. Later, I
shall suggest what I hope will be a practical,
sensible, just and fair way to resolve the tension. It will first be
necessary to
get a sense of context and texture in this particular
case in order to understand why I believe this is the only viable way
forward.
[53] After the applicant had taken
transfer of the property on 11 April 20011, it terminated the
occupiers right to occupy the property
with effect from 31 July 2011.
It gave notice on 30 June 2011.
[54] The application in this matter
was launched on 10 August 2011. The applicant applied for and was
given leave to serve the application
by way of edictal citation on 16
August 2011. The Masetla group gave notice of intention to oppose on
26 August 2011, the Khumalo
group on 29 August 2011.
[55] The Khumalo group filed an
answering affidavit on 19 September 2011 and, on the same day,
launched its application for removal
of the liquidator. This was the
application, referred to above, which I dismissed on 17 October 2012.
[56] On 22 November 2011, the
applicant applied for and was granted leave to serve a notice on the
respondents in terms of section
4 (2) of PIE. This notice was served
on 28 November 2011. On 1 December 2012 the Khumalo group launched
the joinder application.
This was the first application for a joinder
of the City. Another such application was brought later and heard
separately by the
other group, the Masetla group. On 5 December 2011
the first respondent filed an answering affidavit in the application
to remove
the liquidator. In 1 March 2012, the applicant filed its
answering affidavits in both the application to remove the liquidator
and the joinder application. The notice of set-down of the joinder
application for the week of 24 April 2012 was served on 16 April

2012. The Khumalo group filed its replying affidavit on 25 April
2012. On the same day Mlonzi AJ heard that application and dismissed

it.
[57] On 2 and 3 May 2012 the notice of
set down for the hearing of the opposed application for eviction was
served on the respective
attorneys acting for the different groups
among the respondents. The application was set down for 15 May 2012.
On 14 May 2012 the
Khumalo group brought a substantive application
for the postponement of the application for eviction. On the same
day, the Masetla
group brought a substantive application for their
application to remove the liquidator. Both applications were
postponed. Thereafter
a flurry of correspondence flowed between the
attorneys for the applicant and the attorneys acting for the two
groups among the
respondents, relating to the groups’ request
for further postponements and the default of both sets of groups to
file affidavits
as they were required to do. On 1 June 2012 the
applicant’s attorney made it clear that no further indulgences
as to time
would be allowed by the applicant.
[58] On 4 June 2011 the Khumalo group
filed an answering affidavit consisting of several hundred pages. On
5 June the Masetla group
filed a ‘counter application’ in
the eviction application. As noted earlier, this application was
heard by Wise AJ
on 7 June 2012. He dismissed the application and
ordered that any party which contended that the City is a necessary
party should
apply for such joinder within 15 days of the court
order.
[59] On 28 June 2012 the Masetla group
launched its application for a joinder of the City in which the group
sought certain substantive
relief against the City. After filing an
answering affidavit to this joinder application, the applicant’s
attorney wrote
to the Masetla group’s attorneys on 14 September
2012 advising them that it intended setting down the application on
the
opposed motion court roll on 2 October 2012. On 19 September, the
applicant’s attorneys wrote to the Khumalo group’s

attorneys confirming the set down for 2 October 2012. After a further
flurry of correspondence in which the two groups sought further

postponements and which was opposed by the City’s attorneys,
the application for joinder was heard by Wepener J on 3 October
2012
and, as noted earlier, dismissed by him on 4 October 2012.
[60] In dismissing the application,
Wepener J said as follows:
In the present matter the
applicants have failed to set out facts to show that they are
indigent. They have failed to show that
an emergency situation will
arise. They have failed to show that the applicants are persons who
are entitled to assistance for
accommodation by the second
respondent. There is no attempt to show that the applicants will be
homeless, should they be evicted.
Indeed, there are indiciae
62
to the contrary, i.e. that the occupiers are persons who can afford
to pay monthly levies, rent and the cost of security guards.
63
[61] The applications which were
argued before me on 17 October 2012 were set down for hearing on 16
October 2012 by notice of set
down served by the applicant’s
attorneys dated 10 October 2012. The attorneys for both groups sought
further postponements.
On 12 October 2012 the Khumalo group’s
attorneys wrote a letter to the applicant’s attorneys in which
they protested
at the course of action adopted by the applicant. On
15 October 2012, the Masetla groups’s attorneys advised that
their counsel
would not be available at the hearing.
[62] Mr Both, who together with Mr
Pullinger, appears for the applicant, has submitted that the
jurisdictional prerequisites (including
both the factual and the
procedural elements thereof) for the relief sought have been
satisfied by the applicant inasmuch as it
is the registered owner of
the property. Section 1 of PIE defines the owner as being ‘the
registered owner of land’
who, in terms of Section 4 of PIE may
apply to court for an eviction order.
[63] Section 1 of PIE, which is the
definitions section, defines an unlawful occupier as being:
a person who occupies land without the
express or tacit consent of the owner or person in charge, or without
any other right in
law to occupy such land, excluding a person who is
an occupier in terms of the extension of security of tenure 1997, and
excluding
a person whose informal right to land, but for the
provisions of this Act would be protected by the provisions of the
Interim Protection
of Informal Land Rights Act, 1996 (Act 31 of
1996).
[64] The applicant submits that
neither of the two factions of occupiers has shown that they occupy
the property with the applicant’s
consent or that they have
‘any (other) right in law to occupy’ the property. It is
hoped that the discursus above makes
it plain that it is this ‘any
other right in law to occupy the property’ that presents the
huge problems for courts
trying to decide a matter such as this.
[65] Mr Both has submitted that the
court, in hearing an application for eviction, exercises judicial
oversight over the process
to prevent abuses of rights and that, in
this particular case, no abuse of the rights of the occupiers appears
from the papers.
Mr Both has emphasised that the occupiers do not
make out a case that their eviction will render them homeless. Mr
Both accordingly
has submitted that the only argument left for the
occupiers is that the date upon which the eviction order should
become executable
should be such as to enable them to deal with the
inevitable and unavoidable inconvenience caused by the displacement
brought about
by their eviction. Mr Both submits that the occupiers
have had more than enough time to arrange their affairs.
[66] The respondents have marshalled
the following facts which, so they contend, favour the refusal to
grant an eviction order:
66.1 The Newtown Urban Village is
currently home to approximately 2000 occupiers.
66.2 The Newtown Urban Village was
created in response to Government’s obligation to provide low
cost housing to persons of
low income and who would ordinarily not be
in a position to acquire property of their own.
66.3 At the time of its inception the
financial threshold for persons eligible to participate in the
housing scheme was an income
of R3 500.00 per month and less.
Occupiers were required to pay a levy per unit of approximately
R900.00 per month.
66.4 It appears that none of the
occupiers are currently paying any rental to the applicant but may be
willing to do so in order
to regularise their occupation.
66.5 Many of the occupiers have been
residing in the Newtown Urban Village since its inception
approximately 12 years ago.
66.6 Many of the occupiers (as
families and individuals) are well established within their
community. They are fully integrated
in their community relevant to
employment, education and social.
66.7 All the occupiers have indicated
that an eviction will be detrimental to themselves, their employment
and their children’s
schooling.
66.8 On the available evidence before
the court (i.e. the affidavits of some 85 families comprising 364
persons) there are:
66.8.1 43 households headed by woman
of which 17 are unemployed and 6 are elderly.
66.8.2 180 children residing in the
Newtown Urban Village
66.8.3 19 elderly persons –
over the age of 50 years
66.8.4 11 sickly persons
66.9 According to Mr McKelvie, many of
the occupiers will, in all probability, be rendered homeless if the
eviction is granted,
especially those who are unemployed and cannot
afford any other accommodation.
66.10 Many, if not all, the occupiers
request alternative accommodation.
66.11 The occupiers in the Khumalo
group took up their plight with the Gauteng Department of Housing and
held a meeting with a certain
Mphumi Kubeka. Although the issues
remained unresolved, Kubeka indicated that the matter will be taken
up with the MEC: Housing
to establish if a resolution to the matter
can be found. This consultation process seemingly has yet to run its
course.
66.12 The Khumalo group consists of
125 families of which only 85 families have, to date, provided
information regarding their personal
circumstances. There are still a
further 50 families whose personal circumstances are unknown to the
court.
68.13 The Matsela group of occupiers
have evidently pinned their hope on a counter application wherein
they seek the removal of
the liquidator and to have the sale of the
property to the Applicant reviewed. This group consists of 352
persons. No information
whatsoever regarding this group has been
placed before the court. Their personal circumstances are unknown.
66.14 If it is accepted (and there is
no concrete information to the contrary) that there are more than
2000 occupiers in the Newtown
Urban Village, then there are more than
a 1000 other occupiers whose personal details and situation are
unknown.
66.15 The occupiers in the Khumalo
group have held discussions with the Gauteng Department of Housing
and have been advised that
the matter will be taken up with the
relevant MEC in order to find a resolution to the matter.
[67] All of the occupiers have made
the same allegation that:
I believe that I will be detrimentally
affected by any sudden removal without alternative arrangements made
for my family and I
within the vicinity of Newtown.
Counsel’s arguments about the
homelessness of the respondents has not been something pertinently
alleged by any of the occupiers.
This is rather an inference which he
asks the court to draw. He submits: ‘From the information
gleaned from the various affidavits
of the occupiers it is highly
probable that many occupiers will be rendered homeless should an
eviction order be granted’.
[68] Counsel for the applicants
contend that if the entry level for the occupiers in the original
scheme was an income of R 3 500.00
per month, 12 years ago and they
were paying R900.0 per month as levies then, which sum, with
inflation, would now have risen to
R1600.00 per month, the occupiers
can hardly be considered indigent. They also pay ‘rental’
to Mr Masetla in an undisclosed
amount. The City, in its affidavit
resisting the application for its joinder in this matter, has been
scathing about the opportunism
of the respondents, pointing out that
they have not even attempted to indicate that they are unable to
obtain suitable accommodation
for the same or a similar amount to
what they are paying. It is clear from the City’s affidavit
that it considers the respondents
to be opportunists, who are and
have been playing for time.
[69] My supplications in Emfuleni
Local Municipality v Builders Advancement Services CC and Others,
64
may have produced some positive results in terms of assisting the
High Courts, which have been suffering from ‘eviction fatigue’,

to know how to go about their task. Since then, whether
co-incidentally or not, the following judgments have emanated from
various
superior courts in the country.
[70] In Sohco Property Investments
(Company Incorporated under section 21) v Hlophe and 95 Others
65
in which the applicant had sought the eviction of more than 96
occupiers of a social housing complex because they did not pay their

rentals to the applicant, as owner, Swain J followed the decision of
the SCA in Ndlovu v Ngcobo, Bekker & Another v Jika:
66
Unless the occupier opposes and
discloses circumstances relevant to the eviction order, the owner, in
principle, will be entitled
to an order for eviction. Relevant
circumstances are nearly without fail facts within the exclusive
knowledge of the occupier and
it cannot be expected of an owner to
negative in advance facts not known to him and not an issue between
the parties.
67
[71] Swain J also took into account
the fact that the applicant, too, had interests that had to be
considered.
68
Swain J said that the applicant had been left in a parlous financial
situation and that the programme to provide a cross-subsidised

housing project for other deserving cases had been compromised.
69
On 10 March 2011, Swain J ordered the eviction of the respondents,
which order was to take effect on 30 April 2011. Swain J dismissed

the application for leave to appeal which was confirmed by the SCA on
4 August 2011 and the Constitutional Court on 26 September
2011.
[72] Although the full court in
Emfuleni Local Municipality v Builders Advancement Services CC and
Others
70
pertinently declined to give advice and guidance in such matter, it
nevertheless did so indirectly, inasmuch as on 23 March 2012,
it
ordered the eviction of the occupiers from a squatter camp (or
informal settlement) within 30 days of its order. This, as I

understand it, is the first order of its kind since the enactment of
PIE. In view of the pervasive presence of squatter camps,
the case is
significant.
[73] In
City of
Johannesburg v Changing Tides 74 (Pty) Ltd & 97 Others (the
Socio-Economic Rights Institute of South Africa intervening
as amicus
curiae)
71
delivered
on 14 September 2012, for the first time actually pointed out, in
clear terms, in the context of PIE evictions, that the
right to
property is a ‘constitutionally protected right’ and that
the effect of PIE was ‘not to expropriate
private property’.
72
The SCA went on to say that:
What it (i.e. PIE)
does is delay or suspend the exercise of the owner’s rights
until a determination has been made whether
an eviction would be just
and equitable and under what conditions.
73
[74]
In the
City of Johannesburg v Changing Tides
case
the SCA went on to say that:
Whenever
the circumstances alleged by an applicant for an eviction order raise
the possibility that the grant of that order may
trigger
constitutional obligations on the part of a local authority to
provide emergency accommodation, the local authority will
be a
necessary party to the litigation and must be joined …
That
does not mean that the local authority will need to become embroiled
in every case in which an eviction order under PIE is
sought
.
The question in the first instance is always whether the
circumstances of the particular case are such as may (not must)
trigger
the local authority’s constitutional obligations in
regard to the provision of housing or emergency accommodation
…
(emphasis added)
74
[75] In expressing
this view, the SCA drew encouragement from the observation by Van der
Westhuizen J, delivering the unanimous
judgment of the Constitutional
Court in
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty)
Limited and Another
75
who said: ‘Of course a property owner cannot be expected to
provide free housing for the homeless on its property for an

indefinite period’.
76
Recognition of property rights seems to have received a nod in the
two courts having authority over the High Court, the SCA and
the
Constitutional Court.
[76] In the Blue Moonlight Properties
case,
77
the Constitutional Court dealt at length with the constitutional and
legal framework, referring to the
Housing Act, No.107 of 1997
and the
National Housing Code.
78
It also dealt extensively with the question of eviction and PIE,
79
as well as chapter 12 of the Housing Code.
80
[77] In this Blue Moonlight Properties
case Van Der Westhuizen J said:
The present challenge deals with s
9(1) (the right to equality) and s 26 (2) (the State’s
obligation progressively to achieve
the realisation of a right to
housing) of the Constitution. The concepts of rationality and
reasonableness are thus central. A
policy which is irrational could
hardly be reasonable. Whether a policy which meets the requirements
for rationality would necessarily
be reasonable does not have to be
decided here.
81
The words in brackets in the above
quotation have been inserted by me (Willis J).
[78] Van Der Westhuizen J continues:
I find that whereas differentiation
between emergency housing needs and housing needs that do not
constitute an emergency might
well be reasonable, the differentiation
the City’s policy makes is not
82
.
To the extent that eviction may result in homelessness, it is of
little relevance whether the removal from one’s home is
at the
instance of the City or a private property owner. The policy follows
from the City’s incorrect understanding of its
obligations
under Ch 12 and its claim that it lacks resources. The City’s
housing policy is unconstitutional to the extent
that it excludes the
Occupiers and others similarly evicted from consideration for
temporary accommodation. The exclusion is unreasonable.
83
[79] At a certain stage in Blue
Moonlight Properties, Van Der Westhuizen J says:
Besides its entitlement to approach
the province for assistance, the City has both the power and the duty
to finance its own emergency
housing scheme. Local government must
first consider whether it is able to address an emergency housing
situation out of its own
means. The right to apply to the province
for funds does not preclude this. The city has a duty to plan and
budget proactively
for situations like that of the occupiers. This
brings the issue of available resources to the fore.
84
In this Blue Moonlight Properties case
the Constitutional Court granted the eviction order but ordered the
City to provide temporary
accommodation nearby.
85
[80] In the context of engaging the
City in eviction proceedings there has been much ‘homeless’
talk. In the following
cases: the Grootboom case;
86
the Port Elizabeth Municipality case;
87
the Blue Moonlight case;
88
the Mooiplaats case;
89
The Occupiers of Erf 102, 103, 104 & 122, Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Limited &
Others;
90
Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele;
91
and the Changing Tides case
92
the courts have insisted that where there is a likelihood that the
occupiers will be rendered homeless as a result of an eviction
the
municipality should be engaged with a view to finding alternative
accommodation and, in the Mooiplaats case, where the question
of
homelessness was not considered by the High Court, the eviction was
set aside.
93
[81] As far as I have been able to
ascertain, neither the Constitutional Court nor the SCA has ever
defined ‘homeless’.
PIE also does not do so. The only
instance that I have been able to find where the word has been
judicially defined is the case
of Makama and Others v
Administrator,Transvaal,
94
in which Van Dijkhorst J who had to consider the meaning of the
phrase ‘homeless persons’ in section 6 of the notorious

Prevention of Illegal Squatting Act
95
which provided that a local authority could provide emergency
accommodation for homeless persons said:
In my view it would be unwarranted to
stretch the interpretation of the word ‘homeless’ to
include the meaning ‘lacking
in proper facilities’. Its
ordinary meaning is lacking a home and, though the concept of ‘home’
is of wide and
varied nature when applied to persons, it does connote
a shelter against the elements providing some of the comforts of life
with
some degree of permanence. The large number of dictionaries
referred to do not lead to a different conclusion, and the Afrikaans

‘dakloos’ enforces this interpretation.
96
A perusal of the rich array of
dictionaries in the library of the South Gauteng High Court indicates
that, in my respectful view,
Van Dijkhorst J was correct in ascribing
a degree of permanence to the concept of a home.
[82] In the context of applications
for eviction, the following question arises: to what degree of
permanence is a person occupying
a property against the will of its
owner entitled? Brian Garner, in the preface to the first edition of
A Dictionary of Modern
Legal Usage:
97
For a specialist language, the
language of law remains remarkably variable, largely because it has
been incompletely recorded and
mapped. In this respect it is
analogous to English before 18th-century grammarians attempted to
reduce its variability and make
logical its many quiddities. This is
not to say, of course, that the language of the law has the malleable
capacity of Elizabethan
English, which, in the hands of a creative
genius like Shakespeare, could be supremely expressive and evocative.
Quite the opposite.
Stare decisis remains at the core of our system
of law – so much so that the continual search for precedents
often discourages
legal writers from straying beyond precisely how
things have been said before.
Garner bows to the need for the
language of law to have this quality of precision. In The Cambridge
Encyclopedia of the English
Language it is said that statements in
legal language have, above all, ‘to be expressed in such a way
that people can be
certain about the intention of the law respecting
their rights and duties. No other variety of language has to carry
such a responsibility.’
98
This need for precision is bound up with the element of certainty
which, as mentioned earlier, is a key component of the rule of
law.
[83] In the Preface to the First
Edition of Stroud’s Judicial Dictionary, published in 1890,
99
the learned author says of his publication:
Its chief aim is that it may be a
practical companion to the English-speaking lawyer, not only in the
Mother Country, but also in
the Colonies and Dependencies of the
Queen. The hope is also indulged that it may be not without utility
to the man of business,
nor without interest to the student of
word-lore.
Stroud concludes his preface by
saying:
It is, however, impossible to rise
from these labours without a deepened admiration for the Judges of
our land. It is extraordinary
that so many minds, working through so
many centuries, and upon such various matters, should have been able
so harmoniously to
lay down the law for such an expansive and
ever-widening civilisation as that of the British Empire. And
probably in no sphere
of their duties has the work of Judges been
more distinguished than in their dealing with the composite
subtleties of English Diction.
To study that work, although involving
labour, has brought delight; and this attempt to systematise its
result will, it is hoped,
be useful.
There are, of course, a few archaisms
in these extracts from Stroud’s preface but the fact that his
dictionary has been republished
so many times, and is so widely used,
would suggest that, veiled behind these archaisms, is a compelling
ideal. That ideal, having
a close affinity with the rule of law, is
that wherever the English language is used by lawyers, and in
whatever part of the world
they may be, those words which lawyers use
should be clear, precise and readily understandable by all. Stroud
also recognises that
the work of judges, in giving access to justice
for all, includes providing clarity for the complex subtleties of the
English language.
[84] No municipality, no government,
no politician, no court, no king, no emperor and no potentate can
guarantee to any person unqualified
permanence in his or her place of
residence. Quite apart from anything else, the floods, earthquakes,
winds and fires that keep
the insurance industry in business are
testimony to the superior power of the laws of nature over ‘the
best laid schemes
o’ mice an’ men’.
100
When the Constitutional Court and the SCA refer to ‘homelessness’,
they must, of necessity, have had in mind some qualification
as to
time (or, more particularly, the happening or non-occurrence of an
uncertain future event). This seems clear when, as noted
earlier,
Van der Westhuizen J said in the Blue Moonlight case: ‘Of
course a property owner cannot be expected to provide
free housing
for the homeless for an indefinite period.’
101
[85] Accordingly, in context,
‘homelessness’ must mean this (or something closely
similar thereto):
‘
Without any reasonable
prospect, between the date of the court order which it is proposed be
made that the occupier is to vacate
the property to the date upon
which the eviction order is to be effected (in the event that the
occupier does not vacate the property),
of the occupier being able to
find alternative accommodation that is (a) of a comparable or better
standard to and (b) at a similar
rental to and (c) within reasonable
proximity to that of the property from which the eviction is sought’.
This proposed definition is my own.
The occupiers, in casu, have not claimed that they will be ‘homeless’
within the
meaning that I have proposed. Accordingly, there is no
need to involve the municipality in this matter at all.
[86] Of course, my understanding of
what ‘homelessness’ must mean may be incorrect. I am
under no illusions that my
jurisprudence on evictions enjoys
universal acceptance. It is therefore necessary to provide further
reasons why I see no point
in involving the City in this matter
further than has already been the case. The City is subject to severe
financial constraints.
This is a matter that is quite regularly
discussed freely in open court. It is also common knowledge that the
City leaves potholes
unattended for lengthy periods of time, that
traffic lights are frequently out of order, that our parks and
municipal gardens are
in a state of neglect. This is not a numerus
clausus as to the lamentable state of the services (or lack thereof)
which the City
provides.
[87] A matter that also frequently
arises in the South Gauteng High Court is the ‘billing crisis’.
This refers to problems
which occur with statements of account for
utilities which should be sorted out within a few days that take
months, if not years,
to resolve. In some instances, these issues
have remained unresolved for homeowners, even after many years,
despite the efforts
of ratepayers and the courts to do so. Schools
and hospitals in Gauteng (which are matters falling within the
authority of the
provinces) bear the signs of dilapidation and
neglect.
[88] The provinces, to which the
municipalities in the country may turn if they are short of funds,
are almost entirely dependent
on funding from the central
government.
102
The capacity of the municipalities to deliver on questions of
housing is therefore, ultimately, dependent on the financial capacity

which they receive from the National Executive (Government).
[89] Accordingly, when it comes to the
provision of housing in South Africa, the Constitutional Court has
made and is likely to
continue to make orders which may impact, to a
major degree, on questions of funding for projects of national
development which,
in classical constitutional theory and upon an
ordinary reading of the Constitution, it is the National Government’s
prerogative
to decide, subject to approval by Parliament.
103
[90] With the exception of the case of
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
and Others,
104
every case decided in the Constitutional Court which has dealt with
the provisions of section 26 of our Constitution relating to
the
realisation of the right of access to housing has, since Government
of the Republic of South Africa and Others v Grootboom
and Others,
105
been decided unanimously. In the Joe Slovo Community case, there were
five judgments prepared by different members of the court
but they
all supported the same order of the court which ordered the residents
of the Joe Slovo informal settlement to vacate provided
they were
‘relocated to temporary residential units situated at Delft or
another appropriate location’ on certain conditions.
In the Joe
Slovo Community case the Constitutional Court ordered the parties to
‘engage meaningfully with each other with
a view to reaching
agreement’ on issues related to the relocation, including the
date thereof.
[91] In view of the unanimity of these
Constitutional Court decisions and the fact that judges of the
Constitutional Court are appointed
by the President of the Republic
of South Africa from a list submitted to him by the Judicial Service
Commission (‘JSC’),
it must be accepted that successive
South African Presidents as well as the JSC have, since 2000 (when
the Grootboom case was decided),
been content that these
constitutional anomalies with regard to state funding of national
objectives should continue. The puisne
judges in the High Courts will
have to do their best in a trying situation.
[92] T
he
High Courts are duty bound to have regard to the provisions of PIE
and the injunction of the Constitutional Court to apply their
mind to
the contribution which municipalities can make to the resolution of
the problems of housing. In doing so, it would be intellectually

dishonest for a court not to take into account the real problem that
exists at a municipal level with its capacity in terms both
of
finance and its administrative personnel, to solve problems.
106
If a city cannot even mend potholes promptly and resolve billing
crises expeditiously, what hope does it have of addressing adequately

the needs of housing? The courts cannot blink, Bambi-like, at the
real dangers that are posed through a lack of capacity at a municipal

level. The judges on duty in the motion court in the South Gauteng
High Court stare real evil in the face every week. Among these
evils
is the hijacking of buildings in the City. This hijacking is not only
criminal but brings with it attendant evils of exploitation,
squalor
and degradation.
[93] I fully accept what was said by
the English Lord Chancellor, Lord Hailsham of St Marylebone, in
Cassell & Co Ltd v Broome:
107
The fact is, and I hope it will never
be necessary to say so again, that, in the hierarchical system of
courts which exists in this
country, it is necessary for each lower
tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers.
108
Lord Reid concurred with Lord
Hailsham, as did Lord Morris of Borth-Y-Gest, Lord Wilberforce (on
the question of the importance
of precedent), Lord Diplock and Lord
Kilbrandon. Lord Reid noted that the Court of Appeal chose to ‘attack
the decision of
this House as bad law’.
109
He said they were ‘quite entitled to state their views and
reasons for reaching that conclusion’
110
but was dismayed that they did not apply the decision of the House
of Lords. He described this as an ‘aberration’.
111
Later he said that ‘(i)t is perfectly legitimate to think and
say that we were wrong’.
112
[94] The point is this: courts lower
in the hierarchy may disagree with decisions of those that are higher
and may even say so.
They are, however, bound to follow the decisions
in higher courts. My respectful but nevertheless fundamental
difficulty with
the Constitutional Court’s decision in the Blue
Moonlight Properties case is that I have no doubt that its notions of
‘rationality’
and ‘reasonableness’ in this
particular context are not universally shared.
[95] In emphasising that ‘(t)he
concepts of rationality and reasonableness are thus central’,
113
the Constitutional Court has steered its course towards the
application of an objective test as to when a court can or cannot to

make an order for eviction. Ordinarily, the adjective ‘objective’
denotes a large degree of freedom from controversy
of the noun which
it qualifies. It is indubitably desirable that an aura of
intellectual incontestability should be distinctive
of the
Constitutional Court’s determinations. Unfortunately,
controversy has dogged its judgments on eviction matters since
the
Grootboom case.
114
[96] Ordinarily, a quote from a book,
dealing with ‘politics-and-religion’ would be
inappropriate in a judgment of a
court of law. The quote below is
given because the intellectual standing of the author, John Habgood,
rather than his religious
authority, adds credence to a view which
already has a fairly widespread secular currency:
We may accept John Habgood’s
argument that in a pluralistic nation, although there is no one
dominant or universally accepted
ideology or world view, there still
must be enough agreement on values, goals and underlying assumptions
to hold the nation together
and give some basic sense of national
identity. A radically pluralistic society with a state that is
entirely neutral is inconceivable;
there has to be some minimal
consensus to provide the necessary degree of coherence.
115
[97] We, in South Africa, are
fortunate that the Bill of Rights in our Constitution gives us an
across-the-board consensus as to
the nature of our being, as South
Africans. The National Development Plan of the National Planning
Commission gives us a further
opportunity to unite as to how we can
achieve the socio-economic rights reflected in sections 22 to 27 of
our Constitution. This
National Development Plan has received the
support of all political parties represented in our Parliament.
116
[98] The extensive support,
transcending most political divisions, which the National Development
Plan has been able to attract,
creates a special opportunity. The
judiciary, as a whole, can identify with this plan. It would be
helpful to our progress as a
nation if the courts were to identify
with it and, to the extent that it is possible for them to do so,
encourage its implementation.
It would be well if the economics of
the plan could infuse our jurisprudence.
[98.1] In the National Development
Plan it is said that:
Achieving full employment, decent
work, and sustainable livelihoods is the only way to improve living
standards and ensure a dignified
existence for all South Africans.
Rising employment, productivity and incomes are the surest long-term
solution to reducing inequality.
Similarly, active steps to broaden
opportunity for people will make a significant impact on both the
level of inequality and the
efficiency of the economy.
This will be achieved by expanding the
economy to absorb labour and improving the ability of South Africa’s
people and institutions
to respond to opportunities and challenges.
117
[98.2] The plan calls for a change in
our thinking: “There must be a change in mind-set across all
sectors of society –
public, private and civil society –and
increased focus on implementation and real change.’
118
[98.3] The Commission goes on to say:
Given the scale and ambition of the
task, leadership and vision are needed from all sections of society,
with leaders who are able
to rally constituencies around long-term
goals, recognising that the benefits may be unevenly distributed and
may take time to
realise. Similarly, leadership in government will be
crucial in ensuring a more concerted and coordinated effort to
implement agreed
programmes.
119
[98.4] Then:
The proposals in this plan are aimed
at creating about 11 million net new jobs over this period and thus
reducing the rate of unemployment
to about 6 percent by 2030. This
should be attained at the same time as we increase labour force
participation rates from the current
41 percent of the working-age
population to 61 percent.
120
[98.5] The Commission says: ‘We
need to recognise the importance of the engine of growth (rising
outputs from tradable sectors),
the sources of jobs (often
domestically oriented and service firms) and the linkages between the
two’.
121
[98.6] The Commission proceeds:
The plan’s central goals are
expanding employment and entrepreneurial opportunities on the back of
a growing, more inclusive
economy. This will require far greater
commitment to deepening the productive base, whether in agriculture,
mining, manufacturing
or services. By 2030, South Africa should have
a more diversified economy, with a higher global share of dynamic
products, and
a greater depth and breadth of domestic linkages.
Intensified stimulation of local and foreign markets will be needed,
as well
as strengthening conditions to promote labour-absorbing
activities. Traded activities will act as a spur to growth, as will
active
stimulation of domestic opportunities and the linkages between
the two. Specific actions will need to be taken to break out of the

current path dependency. This will require decisive action on the
part of the state and other social partners.
122
[98.7] The Commission says also that:
Lifting constraints to growth that are
within our power to influence can be an effective way of spurring
growth. These must be factors
that have an economy-wide effect of
lowering prices or raising productivity, or else a targeted effect on
groups of activities
that underpin investment in dynamic sectors.
Often a combination of actions is required, as one improvement in
isolation of others
may not be sufficiently enabling for firms.
123
[98.8] It continues:
Labour-absorbing growth will be
stimulated by identifying major constraints that hinder investment
and production in key sectors.
These can be addressed in a sequenced
manner. A few significant binding constraints will be lifted through
committed action. The
first commitments will include constraints in
electricity, supply, water, business registration, urban planning
approvals, mining
licensing, and high-skilled labour supply –
the elements that stop business in its tracks. The rolling nature of
this commitment
is intended to support growth acceleration and
sustain it over time, with a bias to labour absorption. Many of these
are already
policy commitments, but require rapid decision-making
and stronger institutional oversight.
124
[98.9] And:
The majority of new employment will
arise in activities that are domestically oriented, where global
competition is less intense,
and there is a high labour component. It
may be functionally possible to trade in these activities, but in
essence, they must take
place in situ.
125
[99] Building units of accommodation,
whether these be houses, apartments, flats or cluster developments
has socio-economic advantages
which extend way beyond that of
providing people with ‘roofs over their heads’. It has
what is known in economics
as a ‘multiplier effect’. The
construction industry is labour intensive. The artisan skills
required for the building
of homes can be acquired reasonably
quickly. The building industry has what are known, somewhat quaintly,
as ‘backward and
forward linkages’.
126
[100] The building industry stimulates
the manufacturing industry with the demand for bricks, cement,
windows, cupboards, doors,
tiles, screws, nails, handles and
materials for roofing. These are known as ‘backward linkages’.
‘Forward linkages’
are to be found in the stimulus that
new housing provides for items such as furniture and fittings.
Building homes simply requires
good, old-fashioned,
‘boer-maak-’n-plan’ skills and technology. The
building industry creates jobs and more jobs.
The thousands who work
in the building industry spend their money which, in turn, stimulates
other sectors of the economy.
[101] In economics, the following is
what Sherlock Holmes would describe as ‘Elementary, my dear
Watson’
127
:
apart from certain rare exceptions (known as Giffen goods), if you
want less of something, you must do one or more of the following:
(i) tax it;
(ii) increase its price;
(iii) increase the price of producing
it;
(iv) increase the price of delivering
it;
(v) increase the cost of holding it;
(vi) increase the cost of maintaining
it; or
(vii) make it more difficult to keep.
This is what is known as ‘the
law of supply and demand’.
128
It really is so elementary that one is almost embarrassed to mention
it.
129
[102] Section 26 (2), read with
section 26 (1) of our Constitution, makes the progressive realisation
of access to adequate housing
one of the State’s imperatives.
The legend of King Canute, having his chair carried down to the shore
and commanding the
tide of the sea to stop, arose not because the
king was vainglorious but because he wanted to underline the point
that no human
being, no matter what his or her power or status may
be, can make effective commands in defiance of the laws of nature.
130
The king said:
Let all the world know that the power
of kings is empty and worthless and there is no king worthy of the
name save Him by whose
will heaven and earth and sea obey eternal
laws.
131
[103] In economics, the law of supply
and demand is incontestable, as iron-like in its strength, as the law
of gravity. If we want
more people to have access to housing, it must
be made easier to own property and not more difficult. It is as
simple as that.
‘Progressive’ rhetoric is no more
capable of changing this fact than King Canute could stop the tide.
[104] Anywhere in the world, when it
comes to funding programmes for socio-economic development, the state
has only three levers
which it can pull: profits from state
enterprises, taxation or debt. For municipalities, the lever of
‘tax’ is municipal
rates. If we wish to attract people to
build accommodation for themselves and others, shops, factories, and
offices in our cities
to absorb the huge inflow of millions who flock
to our cities over relatively short periods of time, according to the
latest census,
we must ensure not only that our levels of rates do
not become prohibitive but also that those who acquire and build new
properties
will be able to use them.
[105] In contrast to the inherent
financial limitations which every state must face, the private sector
has unlimited potential.
It draws upon creativity, human ingenuity,
imagination, discipline, incentivises risk-taking and, responsive to
market forces,
promotes swift decision-making as well as the
correction of mistakes. The institutions of the state, including the
courts, can
foster social progress by encouraging private sector
initiatives rather than by stifling them.
[106] Martin Ravallion of the
Development Research Group of the World Bank has written an article
called Pro-Poor Growth: A
Primer.
132
In that report  Ravallion shows that, across the world:
Economic growth has brought down
overall poverty measures; and
While investments in education and
health among the poor accelerate the reduction of the inequality
ratio, high rates of economic
growth are the single most potent
factor in bringing down this ratio  as measured by the Gini
coefficient or index.
133
The paper has some intriguing
mathematical models to scrutinize. I invited counsel for both sides
to make submissions on the issue
but they declined to do so.
[107] During the apartheid era,
certain intellectuals argued, correctly, that apartheid was doomed to
fail by reason of its irrationality.
134
Attempting to keep the races, and even cultures, apart from each
other, ran counter to the homogenising forces of modernity.
135
Apartheid was a centrifugal (centre-fleeing) force, while the
economic forces at work were centripetal (centre-seeking). In a
rapidly integrating economy, the irrationality of the effort to
maintain social and political segregation reached breaking-point

while, at the same time, the moral reprehensibility of the system
became ever more acutely apparent.
[108] An irrationality, which is
notionally inverse to that of apartheid, but eerily reminiscent of
that which was exercised by
the apartheid apparatchiki is to be found
in the belief that we can engineer our way out of apartheid by
behemoth interventions
in the natural economy. As I mentioned in the
Emfuleni Local Municipality case,
136
all the available evidence points to the fact that if one wishes to
transform a society out of poverty, it is best to promote the
innate,
revolutionary potential of a modernising economy driven by market
forces.
[109] It would be tragic if our
country, so pregnant with promise, so pulsating with possibilities,
when we reached the turning
point of our first democratic elections
in a constitutional state in 1994, should fail because those who
steer the ship of state,
including the courts, have succumbed to
economic irrationality. In Berlin, in Germany, there is a museum to
life under the DDR
(Deutsche Demokratische Republik). The exhibition
puts on show the absurdity of the belief that one can, through state
administration,
engineer the way to human happiness. On display is a
panoply of items, (including the largest collection of rubber stamps
in the
world) and film footage that exposes, among other follies, the
ridiculousness of the idea of a secular priesthood, whether that

‘priesthood’ consists of politicians, judges or
bureaucrats (or some combination of these three categories of
persons).
The DDR was the German state that was behind the ‘iron
curtain’ before the fall of the Berlin wall in 1989.
[110] Our economic growth rate,
hovering around 3 % per annum, will not redress the problem of
poverty, with all its attendant evils,
in our country. The courts
should, where possible, assist in redressing the causes. We need the
winds of trade. If we do not sail
with them, we risk lolling about in
the doldrums, with all the attendant dangers of being trapped
therein.
[111] Redress is within our grasp. As
a country which is not yet developed, we have a natural economic
potential. We have a wonderful
people, an abundance of natural
resources, a vibrant entrepreneurial spirit, a sound infrastructure,
solid professional institutions,
great centres of learning in the
institutions such as our universities, excellent moral cohesiveness
and direction in our religious
institutions, easy access to the
methods, systems and ideas of the most successful countries in the
world.
[112] In our law there is what is
known as the doctrine of election. This doctrine was first set out in
our courts by Watermeyer
AJ (as he then was) in the case of Segal v
Mazzur.
137
The doctrine holds that an innocent party to a contract that has been
breached by another party cannot blow hot and cold; he or
she cannot
approbate and reprobate the contract.
138
Segal v Mazzur was expressly approved by the SCA in Du Plessis and
Another NNO v Rolfes Ltd.
139
The principle has been extended to other contexts. In the case of
Chamber of Mines of South Africa v National Union
of Mine Workers and Another
,
140
it was said:
One or other of two
parties between whom some legal relationship subsists is sometimes
faced with two alternative and entirely inconsistent
courses of
action or remedies. The principle that in this situation the law
will not allow that party to blow hot and cold is
a fundamental one
of general application.
141
[113
]
As was said by the learned author Christie,
in
The
Law of Contract
,
the law does not allow parties to be
inconsistent, to cleave to mutually
exclusive positions. The courts have applied this principle to
others. What is sauce for the
goose is good for the gander. The
courts should apply this principle to themselves. The courts cannot
be saponaceous. The colloquialism
that ‘You cannot have your
cake and eat it at the same time’ summarises the position. We
must be, as is said in Afrikaans,
‘konsekwent’ instead of
‘wispelturig’.
142
We shall not solve our socio-economic problems by adopting policies,
whether these emanate from the courts or elsewhere, that,
in
practice, operate to frustrate the achievement of our constitutional
objectives.
[114] I return to the Putney Debates.
Prominent among the participants were a group, considered radical at
the time, known as ‘The
Levellers’.
143
They have been oft been forgotten for their contribution to modern
political discourses. Part of the reason for this may be that
the
notion of who constitutes a ‘progressive’ has been
hijacked, in many countries of the world, by those who believe
in the
theory of a triumphal intellectual vanguard. Intellectual and moral
humility may be more appropriate than an exultant millenarianism
for
those who inhabit the world of ideas.
[115] Let us level up and not level
down. There is no other way to success. We must thieve with our eyes
but not with our hands.
As far as the law of intellectual property
allows, we must steal the ideas that will help build our progress as
a nation. What
the rich have today, the poor must have tomorrow. How
long ago was it that only the rich could afford television? How long
ago
was it when only the rich could afford new clothes and new shoes?
How long ago was it when even the rich had to use ‘drop-toilets’

in an ‘uithuisie’? How long ago was it that, to have a
shower in one’s own home, was considered to be ‘grand’?

How long ago was it when only the rich could wear jewellery? Today
all but the very poor do so. How long ago was it that only the
rich
could afford electrical appliances such as fridges, stoves,
washing-machines, dish-washers, etc which the middle-class now
take
for granted? How long ago was it that only the super-rich had
features such as radios, seat-belts, automatic transmission,
electric
windows and air conditioning in their motor vehicles? These
facilities are now standard for middle-class motor car owners,
even
if motor vehicles are not yet affordable by the poor.
[116] Very recently, when cellular
(mobile) telephones (generally known as ‘cellphones’)
were invented, they were considered
the play-things of the rich.
Today they are ubiquitous among the poor in the rural areas and in
what South Africans still call
‘the townships’. Hundreds
of thousands of small-scale entrepreneurs in South Africa now use
cellular telephones as
their offices, secretaries and receptionists.
[117] Soweto is a good example of
rapid, positive socio-economic transformation taking place. Twenty
years ago it was a grim, depressing
place. Today it is pulsating with
shopping malls, replete with cinemas and ‘gyms’, that are
on a par with the best
in Europe. There are restaurants and taverns
galore. As chairperson of the Board of Trustees for Anglican Diocese
of Johannesburg,
I am aware of the fact that there is no shortage of
cash in Soweto. Ubuntu, working in tandem with capitalism, has gone a
long
way in this part of the world.
[118] If one travels further back in
time, beyond the recollections of those alive today, one has even
more dramatic illustrations
of how the material conditions of human
beings can change for the better over a comparatively short period of
time. Queen Marie
Antoinette, who lost her head in the French
Revolution, was literally, illiterate. It was not so very long ago
that the ability
to read and write was found exclusively among those
who were privileged not merely by reason of their relative affluence.
In addition,
they received the benefit of an investment in their
formal education that was given to few indeed. Mass adult literacy
brings
with it the treasures of access to information and knowledge,
as well as and the kaleidoscope of the fantasies of the human
imagination.
These treasures were not distributed by confiscating
books from the rich or by making it ever more difficult and expensive
to publish
literature.
[119] In London, at Kensington Palace,
where Queen Victoria grew up as a child, there is an exhibition of
the toys which she had
as a young girl. The rudimentary quality of
the toys of the future queen and empress is educative. Children
playing outside the
shacks and the huts of South Africa today have
better. The queen was a child before the invention of plastic. There
were no Barbie
dolls, or anything similar, for H.R.H. Princess
Alexandrina Victoria.
[120] The examples of changes in the
material conditions of members of our society, given in the
paragraphs above, are all illustrative
of what is meant by ‘levelling
up’. These changes were achieved by encouraging aspirations,
and allowing enterprising
initiative to flourish rather than by
employing predatory tactics on the rich.
[121] There is a transformative power
in emulating and replicating prototypes, the good examples of
success. Are there excellent
schools in South Africa? Indeed there
are! We must copy them (levelling up) and not take from them
(levelling down). Are there
excellent health services in South
Africa? Yes, indeed! We must copy them (levelling up) and not take
from them (levelling down).
Grasping the idea of levelling up rather
than levelling down will give us the purchase of the grip on the last
cliff before we
shall have reached the mountain top. Then we shall
have seen the promised land. Then there will be no turning back. We
shall be
a winning nation.
[
122]
All counsel who have
struggled to resist an application for
summary judgment, will be familiar with the case of Breitenbach v
Fiat
144
in which Colman J made it plain that it would be difficult indeed to
show good cause why such judgments should not be granted
where the
defence had been set out ‘baldly, vaguely or laconically’.
145
There is no reason why this principle should not apply to occupiers
seeking to resist the application for their eviction. Of course,

every move from one dwelling to another carries with it its own
traumas and disadvantages. That is not enough to resist an eviction

order where an occupier has no right, recognised at common law, to
remain in occupation of a particular property. The case for
remaining
in occupation of the property has been set out by the occupiers
laconically.
[123] Mr McKelvey has submitted that
an eviction order ‘at this stage’ would be premature and
that a court ordered mediation
process should be sanctioned to enable
the parties and the City to negotiate a possible settlement of the
matter. Apart from the
reservations, mentioned above, that I have
about the likely capacity of the City to mediate the process,
‘mediation’
is neither a panacea nor an abracadabra. In
order for mediation to have a chance of success the parties must be
bona fide (there
has been scant evidence of this on the part of the
occupiers) and there must be a proposal which is credible (none has
been put
forward by the occupiers).
146
[124] In order that decision-making
may be rational in eviction matters, it may be best first to apply
binary code to the decision
as to whether or not to evict. Here there
can be only one correct answer at any given point in time. Binary
code, ‘yes’
or ‘no’, counting only in 0’s
and 1’s, switching on or off, following a positive or a
negative current
has been the principle upon which the computing
genius and revolution of our time has been predicated.
147
If the answer to an eviction application is ‘No’, that
does not mean that another time, when more information has come
to
light or there has been the happening or non-occurrence of an
uncertain future event the decision cannot become a ‘yes’.

This methodology is consistent with the SCA’s decision Ndlovu v
Ngcobo, Bekker & Another v Jika.
148
[125] Section 4 (8) of PIE provides as
follows:
If the court is satisfied that all
requirements of this section have been complied with and that no
valid defence has been raised
by the lawful occupier, it must grant
an order for the eviction of the unlawful occupier and determine-
a just and equitable date on which
the unlawful occupier must vacate the land under the circumstances;
and
the date on which an eviction order
may be carried out if the unlawful occupier has not vacated the land
on the date contemplated
in paragraph (b).
[126] Once the court has decided,
after having been satisfied that all the other requirements of
section 4 of PIE have been met,
and that it would be ‘just and
equitable’ for an eviction order to be made, the court then has
to make a decision
as to the ‘just and equitable date’ in
terms of section 4(8) of PIE. This entails a determination as to the
date in
respect of which the court should order the vacation of the
land,
149
followed by a date on which an eviction order may be carried out if
the unlawful occupier has not so vacated the land.
150
[127] I hope my analysis of the
meaning of ‘just and equitable’ will have shown that it
is intellectually and morally
impossible to insist that there can be
only one correct date in the determination of (a) the date upon which
an occupier is to
vacate the property and (b) failing which, the
occupier is to be evicted therefrom. The principles set out in the
case of National
Coalition for Gay and Lesbian Equality v the
Minister of Home Affairs
151
for the exercise of a discretion should apply. The Gay and Lesbian
Equality case envisages that a court may act within a permissible

range of options which should be considered carefully.
[128] Having regard to all the above,
I am satisfied in the present matter, that the only correct decision
that the court can make
is to order the eviction the occupiers in the
event that they do not voluntarily vacate the premises on a date to
be determined.
Clearly the occupiers need time to get their affairs
in order and to look for alternative accommodation. The year-end is
almost
upon us, with all the conventional festive-making that is such
a great feature of the South African social landscape at the end
of
the year. Mr Both originally proposed 15 January 2013 as the date by
when the property should be vacated. In supplementary heads
of
argument, he has suggested that the ‘vacation date’
should be no later than 9 January 2013 when the government schools

re-open. Not all the occupiers have children of school-going age. It
seems just and equitable, in all the circumstances to make
Saturday,
15 January 2013 the date by when the occupiers should vacate. It will
take some time for the applicant to assess the
situation. Thursday 20
January seems the appropriate, just and equitable date upon which an
eviction should ensue if the occupiers
do not voluntarily vacate the
premises. By the end of January, the premises will be free for the
applicant to implement its plans
in regard thereto. If I understood
Mr Both correctly, quite extensive repairs and renovations will have
to be undertaken before
new tenants can occupy the premises. Mr Both
made it clear, on behalf of his client, that once his client had
restored the condition
of the village, if the occupiers are willing
to pay direct to the applicant the new and agreed rentals, they will
be welcome to
return.
[129] The applicant has asked for the
costs of two counsel. These costs have been justified in this
gruelling case. Whether the
order as to costs should result in the
occupiers being jointly and severally liable or merely jointly liable
was not debated before
me. It seems that an injustice could result
from an order that makes the occupiers jointly and severally liable.
This issue became
lost in all the court-room drama. My order shall be
that they are jointly liable but if the parties wish to argue that
there should
be a different costs order they may set the matter down
before me to argue the question of costs.
[130] The order of the court is the
following:
The respondents, together with all
members of the respondents’ families and any other persons who
are in occupation of the
property without the applicant’s
consent (‘the unlawful occupiers’) are to vacate the
property, known as Portion
1 of Erf 4507 Johannesburg Township,
Registration Division I.R. Gauteng, situate at 3 Malan Street,
Burgersdorp, Johannesburg,
and more commonly known as the Newtown
Urban Village (‘the property’) by no later than 4 pm on
Saturday 15 January
2013.
In the event that the unlawful
occupiers of the property do not vacate the property on or before 15
January 2013, the Sheriff
of the Court or his lawfully appointed
Deputy is authorised and directed to evict the unlawful occupiers of
the property as from
8.00 a.m. on Thursday, 20 January 2013.
The unlawful occupiers are
interdicted and restrained from entering the property at any time
after they have vacated the property
or been evicted therefrom by
the Sheriff of the Court or his lawfully appointed Deputy.
In the event that the any of the
unlawful occupiers contravenes the order in paragraph 3 above, the
Sheriff of the Court or his
lawfully appointed Deputy is authorised
and directed to remove them from the property as soon as possible
after their re-occupation
thereof.
The respondents are jointly liable to
pay the costs of this application, which costs shall include all
costs previously reserved,
the costs of the various applications
made in part A of the application (brought in terms of the
Prevention of Illegal Eviction
and From and Occupation of Land Act,
No. 19 of 1998) and the costs consequent upon the employment of two
counsel.
DATED AT JOHANNESBURG THIS 15th DAY OF
NOVEMBER 2012
______________________
N. P. WILLIS
JUDGE OF THE HIGH COURT
Counsel for the applicant: Adv. J.
Both SC (with him, Adv. A. W. Pullinger)
Counsel for the respondents (the
Khumalo Group thereof): Adv. C.T.H. McKelvey
Attorney for the applicant: Vermaak &
Partners Inc.
Attorneys for the respondents (the
Khumalo Group thereof): Khumalo Masondo Inc.
Dates of hearing: 17 October 2012
Date of judgment: 15 November 2012
1
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
2
Ibid
. at
paragraph [23]
3
Those who have to make decisions in terms of this
section need to read, absorb and inwardly digest the following
cases:
Government of the Republic of
South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC);
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC);
Jaftha v Schoeman and
Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
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);
Residents of Joe Slovo
Community, Western Cape v Thubelisha Homes and Others
2010 (3) SA 454
(CC);
Joseph and Others
v City of Johannesburg and Others
2010
(4) SA 55
(CC);
Gundwana v Steko
Development and Others
2011 (3) SA 608
(CC);
City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Limited and
Another
2012 (2) SA 104
(CC) and
Occupiers of Mooiplaats v Golden Thread
Limited and Others
2012 (2) SA 337
(CC)
4
The Putney Debates took place at St Mary’s
Church in Putney, England from 28
th
October to 9
th
November 1647 in the midst of the English Civil War. They were
chaired by Oliver Cromwell and transcribed. They took place between

officers and soldiers of Cromwell’s New Model Army and a group
known as ‘the Levellers’. The parties met to
discuss a
new constitution and the future of England. Fascinating among the
topics debated were whether there should be a king
or a House of
Lords, who should have the right to vote and whether democratic
changes would lead to anarchy and chaos? These
debates are widely
considered to have paved the way for civil liberties and human
rights gained around the world today. They
were the first of their
kind ever recorded. Inscribed in the church are the famous words of
Colonel Thomas Rainsborough, the
highest ranking officer to support
the ordinary soldiers: ‘For really I think that the poorest he
that is in England hath
a life to live as the greatest he’.
Rainsborough dared to imagine that the poor might live as well as
the rich. See, for
example,
http://www.putnetdebates.com/
(Accessed 30 October, 2012). Those who think that ‘the
English’ are not a passionate people, will soon have such

prejudices dispelled when they read these debates.
5
See, for example,
Forced
Removals in South Africa – Overcoming Apartheid
:
http://overcomingapartheid.msu.edu/multimedia.php?id=5
(Accessed 8 November 2012) and Laurine Platzky and Cherryl Walker
for the Surplus People Project (1985);
The
Surplus People: Forced Removals in South Africa
;
Johannesburg: Ravan Press. Laurine Platzky is my former wife.
Through a process of osmosis, I gained some insights, as a result
of
her work, into the horrors of forced removals that were taking place
under apartheid, especially in the rural areas. Removals
in the
urban areas under the Group Areas Act were obvious for all to see,
especially in Cape Town.
6
The affinity between our Constitutional Court and
the German Constitutional Court is apparent in the
Port
Elizabeth Municipality
case (
supra
)
at paragraph [38].
7
Ibid
. at
paragraph [24]. See, also:
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(
Centre
on Housing Rights and Evictions and Another, Amici Curiae
)
2010 (3) SA 454
(CC) at paragraph [233] (where in five separate
judgments (Moseneke DCJ, Ngcobo J, O’Regan J, Sachs, J and
Yacoob J an
order for eviction was made in the Constitutional Court,
conditional upon the applicants (i.e. the occupiers) being relocated
to ‘temporary residential units’ and the parties were
ordered to engage meaningfully with each other with a view to

reaching agreement’);
Cape
Killarney Property Investments (Pty) Limited v Mahamba
2001
(4) SA 1222
(SCA) at paragraph [20] (where the SCA confirmed the
disallowance of the eviction);
Ndlovu
v Ngcobo
and
Others
;
Bekker
and Another v Jika
2003 (1) SA 113
(SCA) at paragraph [3] (where, in two cases heard simultaneously,
the SCA (i) upheld an appeal against a decision of the full
court in
Kwazulu/Natal, which had confirmed an eviction order and (ii)
confirmed a full court decision in the Eastern Cape
which had, in
turn, confirmed a decision to refuse an eviction order made by a
single judge; in the same case,
Ndlovu
v Ngcobo
, the SCA criticized
Schwartzmann J for his decision - which was the first reported case
dealing with evictions of this nature
- in
ABSA
Bank Limited v Amod
[1999] 2 All SA
423
(W), for having ‘overlooked the poor’ (at paragraph
[16] of
Ndlovu v Ngcobo
)).
8
See, for example,
The
City of Johannesburg v Changing Tides 74 (Pty) Limited and the
Unlawful Occupiers of Tikwelo House, No. 48 and 50 Davies Street,

Doornfontein, Johannesburg and 97 Others
(
the
Socio-Economic Rights Institute of South Africa intervening as
amicus curiae
)
[2012] ZASCA 116
(14
September 2012).
9
Government of the
Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC) at paragraph [58]
10
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at paragraph
[56]
11
2010 (2) SA 257
(CC)
12
Ibid
. at
paragraph [15]. (In this case the Constitutional Court set aside an
eviction order that I had granted.)
13
Ibid
. at
paragraph [16]
14
A useful introduction may be found in Herbstein
and Van Winsen’s
The Civil
Practice of the Supreme Court of South Africa
,
Fourth Edition, 1997, Juta’s: Cape Town, chapter nine at p230
et seq
.
15
Ibid
. at p
233-241.
16
Ibid
. at p 233.
17
2010 (4) SA 133
(GSJ)
18
A5047/110 [2012] ZAGPJHC 39 (23 March 2012)
19
At paragraph [7]
20
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at paragraph
[41]
21
Ibid
.
22
See, section 4 (8) (a) of PIE
23
See, section 4 (8) (b) of PIE
24
2006 (3) SA 562
(SCA) (where the court confirmed
the eviction order as the respondent did ‘not belong to the
poor and vulnerable class
of persons whose protection was foremost
in the Legislature’s mind when it enacted PIE.’ (at
paragraph [18]).)
25
Wormald v Khambule
case,
2006 (3) SA 562
(SCA) at paragraph [18];
Ndlovu
case,
2003 (1) SA 113
(SCA) at paragraph [18].
26
At paragraph [31]
27
At p800e-F.
28
At p361H-I
29
At p362C-E
30
The article, “The Rule of Law”
by Professor Ben Beinart in 1962
Acta
Juridica
, Balkema: Cape Town at 99 is
a classic on the subject.
31
[1972] UKHL 3
;
[1972] AC 1027
;
[1972] All ER 801
(HL)
32
Appeal Cases, at p1054
33
2003 (5) SA 339
(SCA) at para [3]
34
1906 TS 68
at p75
35
11 Ch.D 918
36
1967 (3) SA 131
(T)
37
Ibid
. at
p136G-137H
38
Ibid
. at p137A-B
39
A5047/110 [2012] ZAGPJHC 39 (23 March 2012)
40
At paragraph [7]
41
1989 (4) SA 31
(T)
42
Ibid
. at p42A-B
43
I
bid
. a
t p42J-43A
44
[2008] ZACC 20
;
2009 (1) SA 600
(CC) at paragraph
[42]
45
I
bid
.
at pargraph [42]
46
2005 (3) SA 280 (CC)
47
2112 BCSC 1208 at paragraph [20]
48
(1995), 64 B.C.A.C. 14
, 12 B.C.L.R. (3d) 342
49
Higginson v RTD Enterprises
(
supra
)
at paragraph [20]
50
Ibid
.
51
2011 BCSC 1246
52
(1976) 74 D.L.R. (3d) 152 (Ont.C.A.) at p156
53
Higginson v RTD Enterprises
(
supra
) at paragraph
[21]
54
2002 BCSC 1757
55
2006 BCSC 128
56
Ibid
. at
paragraph [24]
57
The author was the Roman comic playwright,
Publius Terentius Afer (Terence) writing more than 2000 years ago in
Phormio
.
The fuller quote is: “
Quot
homines, tot sententiae
:
suo
quoique mos
”. – “There
are as many opinions as there are people: each has his own correct
way”. See, also
Haffejee v
Licensing Officer, Pietermaritzburg
1943
NPD 239
per
Hathorn J at p 242.
58
2000 (2) SA 1
(CC)
59
Ibid
. at
paragraph [11]. This is similar to what Harms JA said in the
Ndlovu
case (
supra
)
at paragraph [18].
60
R v Mbombela
1933 AD 269
at 272
61
Wormald v Khambule
case,
2006 (3) SA 562
(SCA) at paragraph [18];
Ndlovu
case,
2003 (1) SA 113
(SCA) at paragraph [18].
62
(
Sic
)
63
Ex tempore
judgment, p3
64
2010 (4) SA 133
(GSJ)
65
KZN Case No.11474/2010
66
2003 (1) SA 113
(SCA)
67
At paragraph [19] of the
Ndlovu
judgment and paragraph [12] of the
Sohco
v Hlophe
judgment
68
At paragraph [19] of the
Sohco
v Hlophe
judgment
69
Ibid
.
70
(A5047/110 [2012] ZAGPJHC 39 (23 March 2012)
71
[2012] ZASCA 116
(14 September 2012)
72
At paragraph [16]
73
At paragraph [16]
74
At paragraph [38]
75
2012 (2) SA 104 (CC)
76
Changing Tides
case
at paragraph [16];
Blue Moonlight
case, paragraph [40]
77
2012 (2) SA 104
(CC)
78
See paragraphs [16] to[ 29]
79
See parapraphs [30] to [46]
80
See parapraphs [47] to [95]
81
At paragraph [87]
82
See paragraph [80] of the same judgment –
my insertion of the footnote.
83
See paragraph [95]
84
At paragraph [67]
85
At paragraph [104]
86
(
supra
) at paragraphs [52], [63] and [69]
87
(
supra
) at paragraph [28]
88
(
supra
) at paragraphs [27], [47] and [92]
89
(
supra
) at paragraph [17]
90
2009 (4) All SA 410
(SCA) at paragraph [10]
91
(2010) 9
BCLR
911
(SCA) at paragraphs [14] and [15]
92
(
supra
) at paragraphs [14], [15], [31], [37], [38], [42] and
[47]
93
At paragraph [17]
94
1992 (2) SA 278
(T)
95
No. 52 of 1951, as amended
96
Ibid. at 285-286I
97
1987 and
1995 (second edition) Oxford: Oxford
University Press
98
Davis Crystal, (1995), Cambridge: Cambridge
University Press, p374
99
Published in the fifth edition (1986) London:
Sweet & Ma
xwell
100
These lines are taken from Robbie Burns’ poem
To a Mouse
.
Some commentators on my judgments have been critical of the fact
that I have provided explanatory footnotes for extracts from
nursery
rhymes. I therefore record that I accept that, as with
Humpty-Dumpty, everyone is familiar with this poem and that the

footnote may hardly be necessary.
101
At paragraph [40]. This is a sentence on to which
the SCA latched in
Changing Tides.
102
See, for example,
Understanding
Local Government in South Africa
in
which it is said that ‘The Provincial Government gets most of
its money from the National Treasury’. (
www.etu.org.za
)
Accessed 7 November 2012.
103
See A.V. Dicey (1885)
An
Introduction to the Study of the Law and the Constitution
;
London: MacMillan and Company, chapter X, ‘The Revenue’
and section 43, read with section 85 of the Constitution.
104
2010 (3) SA 454
(CC)
105
2001 (1) SA 46
(CC)
106
In the
Blue Moonlight
case (
supra
)
from paragraphs [48] to [95], the City’s own case was that it
lacked the capacity to resolve the issues relating to the
provision
of housing within its borders.
Section 4
(2) (f) of the
Local
Government: Municipal Systems Act, No.32 of 2000
provides that a
municipal council has a duty to provide services ‘within the
municipality’s financial and administrative
capacity and
having regard to practical considerations’.
107
(
supra
)
[1972] UKHL 3
; ;
[1972] AC 1027
;
[1972] All ER 801
(HL)
108
Appeal Cases at p1054
109
Appeal Cases at p1084
110
Appeal Cases at p1084
111
Appeal Cases at p1084
112
Appeal Cases at p1092
113
In the
Blue Moonlight
case (
supra
), a
t
paragraph [87]
114
2001 (1) SA 46
(CC)
115
See Duncan Forrester’s essay,
“Christianity and Politics” in
Keeping
the Faith;
1989; Geoffrey Wainwright,
editor, London: SPCK, at p257. See, also,
Church
and Nation in a Secular Age
; 1983;
John Habgood; London: Darton, Longman & Todd, at 28ff. Duncan
Forrester was Principal of New College and Professor
of Christian
Ethics and Practical Theology at The University of Edinburgh. John
Habgood, now more formally and correctly known
as The Right Reverend
and Right Honourable The Lord Habgood PC, was Archbishop of York
from 1983 to 1995. Prior to his retirement
as Archbishop of York,
he was one of the most intellectually prominent of commentators in
Britain on current social, political,
ethical and theological
issues.
116
See:
www.info.gov.za
(Accessed on 7 November 2012). This is recorded as having occurred
on 16 August 2012.
117
National Planning Commission: National
Development Plan, 2011, p90.
118
I
bid
. at
p94.
119
Ibid
. at p
94
120
Ibid
. at p
95
121
Ibid
. at p
102
122
Ibid
. at p103
123
Ibid
. at
p104.
124
Ibid
. at p105.
125
Ibid
. at p109.
126
See, for example, http://
www.businessdictionary.com
(Accessed 9 November 2012)
127
Sherlock Holmes, the super-detective and sleuth is a fictional
character invented by Sir Arthur Conan Doyle. Holmes is perhaps
not
as famous as Humpty Dumpty in English literature but much loved
nonetheless.
The spoilsports will remind us that
the well-known expression, ‘Elementary, my dear Watson’
did not actually appear
in Doyle’s books but in popular films
about made later about Sherlock Holmes and his assistant, Dr.
Watson. The phrase
was, in fact, used by P.G. Wodehouse in
Psalmist
Smith
in 1915. In Doyle’s books,
Sherlock does, however, very nearly say so on a few occasions.
Holmes says ‘Elementary’
in
The
Crooked Man
and ‘It was very
superficial, my dear Watson, I assure you’ in
The Cardboard Box
. Sherlock Holmes,
using the expression ‘Exactly, my dear Watson’, appears
in three different stories. See
http://www.phrases.org.uk/meanings/elementary-my-dear-watson.html
(Accessed 7 November 2012).
128
See, for example,
http://.socialstudieshelp.co/economics_supplydemand.htm
(Accessed 7 November 2012) and
http://www.whatiseconomics.org/the-law-of-supply-and-demand
(Accessed 7 November 2012).
129
The writer assures the gentle reader that he is
not even contemplating auditioning for the role of Sherlock Holmes.
There are
more complex glosses on the law of supply and demand. The
theory of marginal utility is an example. These glosses need not
concern
us in this case.
130
The first written account appears in
Historia Anglorum
,
written by Henry of Huntingdon about 60 years after the death of
the king in 1035. ‘Canute’ is an Anglicism. The king,

called Knut, was one of theViking rulesr of England.
See
the report on what Professor Simon Keynes of the department of
Anglo-Saxon, Norse and and Celtic at the University of Cambridge
has
to say, summarized at
http://wwww.bbc.co.uk/news/magazine-13524677
(Accessed 7 November 2012).
131
Ibid
.
132
See, for example,
http://www.
ideas
.repec.org/p/wbk/wbrwps/3242.html
(Accessed 9 November 2012)
133
See, also, for example,
Our
Future-Make It Work: National Development Plan 2030
published by the National Planning Commission on 15 August 2012
134
This has been widely known as the
O’Dowd thesis
which
traces its origin to an article first published by Michael O’Dowd
in 1966. The thesis was supported by persons such
as Helen Suzman,
Harry Oppenheimer, Zach De Beer and John Kane-Berman. See, for
example Christopher Hill (1983)
Change in South Africa, Blind
Alleys or New Directions
; London: Rex Collings; and B. J. Van
Wyk (2005)
The Balance of Power and the Transition to Democracy
in South Africa
, Master’s Dissertation at the University
of South Africa - See
http://
www.etd.up.ac.za/thesis/available/etd-10042005.../oodissertation.pdf
(Accessed 7 November 2012). I am grateful that, 16 years of age, I
had the privilege of listening to Helen Suzman in 1969 when
she
visited our school and explained why failure was inevitable when
politicians attempt to impose economically irrational stratagems
in
a globally modernising world. She was so lucid and compelling that I
have never abandoned my conviction that she was right.
It is often
forgotten that, before her career in politics, Suzman had been a
highly accomplished economist who,
inter alia
had been an
adviser to the South African government during the Second World War
and a senior lecturer in the subject at the University
of the
Witwatersrand.
135
A book, helpful to understand this process is
Anthony Gidden’s
The Consequences
of Modernity
, 1990, Stanford,
California: Stanford University Press.
136
2010 (4) SA 133
(GSJ) at paragraphs [19] to [26]
137
1920 CPD 634
at 644-5
138
RH Christie. 2006.
The
South African
Law of Contract. 5
th
Edition. LexisNexis: Durban, p540.
139
[1996] ZASCA 45
;
1997 (2) SA 354
(SCA) at 364G-365A
140
1987 (1) SA 668
(A)
141
Ibid
.
at
690 D-G
.
See
also:
Administrator,
Orange Free State v Mokopanele
[1990] ZASCA 69
;
1990
(3) SA 780
(A) at 788 B-H
142
The word loses some of its meaning and potency
when it is translated as ‘consistent’. Similarly
‘wispelturig’
is somewhat insipid when translated as
‘whimsical’.
143
See, for example,
www.historylearningsite.co.uk
(Accessed 7 November 2012
).
144
1976 (2) SA 226
(T)
145
At
229A
146
This insight is gained from the fact
that I was a
founding panelist of the Independent Mediation Service of South
Africa (‘I
MSSA
’)
in 1984 and was much involved in the process right up to my
appointment as a judge of the High Court in 1998. I am an

enthusiastic supporter of the concept, provided the necessary
preconditions have been established.
147
See, for example,
Binary Codes-The Mathematical Language of
Computers
http://www.theproblemsite.com
(Accessed 9 November 2012)
148
2003 (1) SA 113
(SCA) at paragraph [19]
149
Section 4
(8) (a) of PIE
150
Section 4
(8) (b) of PIE
151
2000 (2) SA 1
(CC)