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[2015] ZASCA 16
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City of Johannesburg Metropolitan Municipality and Others v Hlophe and Others (1035/2013) [2015] ZASCA 16; [2015] 2 All SA 251 (SCA) (18 March 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1035/2013
In
the matter between:
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
.................................................................................................
FIRST
APPELLANT
EXECUTIVE
MAYOR,
CITY
OF
JOHANNESBURG
........................................................................
SECOND
APPELLANT
CITY
MANAGER,
CITY
OF
JOHANNESBURG
...........................................................................
THIRD
APPELLANT
EXECUTIVE
DIRECTOR: HOUSING,
CITY
OF
JOHANNESBURG
.......................................................................
FOURTH
APPELLANT
and
PHILANI
HLOPHE
........................................................................................
FIRST
RESPONDENT
RESIDENTS
OF CHUNG HUA MANSIONS,
191
JEPPE STREET,
JOHANNESBURG
..................................................................
SECOND
TO 182
nd
RESPONDENTS
CHANGING
TIDES PROPERTIES
74
(PTY)
LTD
......................................................................................................
183
rd
RESPONDENT
Neutral
citation:
City of Johannesburg
Metropolitan Municipality v Hlophe
(1035/2013)
[2015] ZASCA 16
(18 March 2015).
Coram:
Brand, Maya and Willis JJA and Schoeman
and Van der Merwe AJJA
Heard:19
February 2015
Delivered:
18 March 2015
Summary:
Local government ─
mandamus
obliging responsible functionaries to ensure that municipality
complies with court orders ─ competent and appropriate in
the
circumstances ─ additional reporting required by the order of
the court a quo order beyond issues arising in the case
and in
conflict with the principle of separation of powers ─
consequently set aside on appeal.
ORDER
On
appeal from
South Gauteng High Court,
Johannesburg (Satchwell J
sitting as court of
first instance):
1 The appeal
succeeds only to the extent that para 2 of the order of the court a
quo is set aside.
2
The appellants are ordered to pay the costs of the appeal, including
the costs of two counsel where so employed.
JUDGMENT
Van
der Merwe AJA (Brand, Maya and Willis JJA and Schoeman AJA
concurring):
[1]
The 183
rd
respondent, Changing Tides Properties 74 (Pty) Ltd (Changing Tides),
is the registered owner of the property known as Chung Hua
Mansions,
191 Jeppe Street, Johannesburg (the property). The property is
situated in the centre of Johannesburg. The building on
the property
was originally used as an office block, but it was eventually
abandoned and became a shelter for poor and homeless
people. Changing
Tides has since acquired the property and intends to renovate and
upgrade it.
[2]
The first to 182
nd
respondents (the occupiers) reside on the property unlawfully. The
first appellant is the City of Johannesburg Metropolitan Municipality
(the City). The second, third and fourth appellants (the
functionaries) are the executive mayor, city manager and director of
housing of the City in their respective official capacities.
[3]
Changing Tides obtained an order of eviction of the occupiers from
the property. The eviction order was to take effect only
after the
City provided suitable temporary accommodation to the occupiers. The
City was therefore ordered to do so. But the City
failed to comply
with this order and the essential issue in this appeal is whether an
order obliging the functionaries to ensure
compliance by the City was
justified.
Background
[4]
Changing Tides launched its application for eviction in the South
Gauteng High Court on 26 May 2011. It cited the occupiers
and the
City as respondents. The eviction application first came before court
on 29 February 2012, when an order was made by agreement
between
Changing Tides, the occupiers and the City. The order directed the
City to consider the eligibility of the occupiers for
the provision
of alternative accommodation in terms of its temporary/emergency
housing programme. The City was also directed to
file a report by no
later than 30 April 2012 inter alia setting out which of the
occupiers were eligible for temporary/emergency
accommodation; what
accommodation would be provided to the occupiers who qualify; and
when such accommodation would be provided.
The City did not comply
with any of these provisions of the order of 29 February 2012 nor did
it explain its failure to do so.
[5]
In the result Changing Tides re-enrolled the eviction application for
14 June 2012. It came before Claassen J. The City applied
for a
postponement. Claassen J described the reason for the postponement as
‘. . . that the City requires an opportunity
to examine each
and every one of the occupants in order to classify them in
accordance with certain undisclosed categories, before
the City is
willing to supply alternative accommodation’. Claassen J
refused the postponement and after hearing counsel for
Changing
Tides, the occupiers and the City in respect of the eviction
application, issued an order in terms of which the occupiers
were
ordered to vacate the property by no later than 15 February 2013,
failing which the sheriff was authorised to evict the occupiers.
The
City was directed to provide the occupiers (listed in an annexure to
the order) with temporary shelter by no later than 30
January 2013,
if they were still resident on the property. It was also directed to
file a report by no later than 31 October 2012,
setting out the
nature and location of the temporary shelter to be provided to the
occupiers. The order was no doubt informed by
the decision of the
Constitutional Court in
Blue
Moonlight Properties
[1]
handed down on 1 December 2011.
[6]
Save for minor matters not relevant here, the City consented to the
order of Claassen J. It nevertheless failed to comply therewith.
It
filed a report only on 20 November 2012, which did not set out the
nature and location of the temporary shelter to be provided
to the
occupiers. The report stated that it would be impossible for the City
to accommodate the occupiers in terms of the order
of Claassen J due
to the lack of availability of buildings and financial and other
resources. It concluded with the unhelpful suggestion
that if the
court is of the view that it is not just and equitable to order an
eviction due to the lack of availability of temporary
shelter then
the court must not order the eviction of the occupiers. But if the
court has already ordered the occupiers to
vacate the property then
an appropriate date for the eviction of the occupiers and allocation
of temporary shelter must be determined.
Self-evidently the City did
not comply with the obligation to provide temporary shelter to the
occupiers by 30 January 2013.
[7]
In the meantime the occupiers faced eviction by 15 February 2013.
They attempted to engage with the City in this regard, to
no avail.
On 19 December 2012 the occupiers launched an application citing the
City, the functionaries and Changing Tides (the
enforcement
application). In essence the occupiers claimed an order declaring
that the functionaries are obliged to take all the
steps necessary to
ensure that the City complies with the order of Claassen J, by
providing the occupiers with temporary shelter
and a mandatory order
obliging the functionaries to give effect to the contents of the
declarator.
[8]
The City and the functionaries filed their answering affidavit in the
enforcement application on 4 February 2013. Both the eviction
application and the enforcement application came before Lamont J on 6
February 2013. He made an order by agreement between all
the parties
concerned. In terms of this order the eviction application and the
enforcement application were consolidated. Paragraph
4 of this order
reaffirmed the order of Claassen J in the following terms:
‘
The
first respondent (‘
the City
”)
is directed to provide all those whose names appear in the document
entitled “List of Residents of Chung Hua Mansions”
dated
6 June 2012, annexed to the order granted by Claassen J (“
the
occupiers
”), provided they are
still resident at the property and have not voluntarily vacated it,
with temporary shelter where they
may live secure against eviction in
a location as near as possible to the area where the property is
situated.’
[9]
Paragraph 5 of the order required the City to provide a detailed
report in respect of specified matters. It reads:
‘
The
City is directed by no later than the 20th March 2013 to deliver a
report to this court, confirmed on affidavit by an appropriate
official of the City, setting out the nature and location of the
temporary shelter to be provided to the occupiers. That report
must
identify the building or buildings where the occupiers will be
accommodated and the particular terms as to rent and occupation
on
which the occupiers will be accommodated, including any house rules
or other tenant responsibilities sought to be imposed. The
report
must specifically deal with the buildings known as Ekuthuleni and
Linatex. The report must also contain an undertaking to
make the
accommodation available by a specified date, giving fully detailed
and rational reasons why such date cannot be any earlier.
The report
must deal specifically with the issue of proximity and explain why
the particular location and form of accommodation
have been selected.
The report must also set out the steps taken between the date of this
order and the filing of the report to
engage with the occupiers
through their legal representatives, or by any other appropriate
means.’
[10]
It can be accepted that the Ekuthuleni and Linatex buildings were
specifically referred to in the order because of what was
said in the
answering affidavit to the enforcement application, namely that
approximately 110 accommodation opportunities were
available in
Ekuthuleni and that Linatex, which had room for 144 persons, would be
available to the City for purposes of providing
temporary
accommodation. The consolidated application was postponed to 9 April
2013 and the implementation of the eviction order
was suspended
pending the outcome of the hearing on 9 April 2013.
[11]
The order of Lamont J was not complied with. On 20 March 2013 the
City filed its report. Despite what was said in the answering
affidavit, the report stated that the accommodation in Ekuthuleni and
Linatex were allocated to occupiers who were evicted from
another
building. It stated that it was impossible to accommodate the
occupiers ‘in the foreseeable future’. The City
therefore
sought a further extension for a period of at least nine months to
identify a building or buildings to accommodate the
occupiers.
[12]
On 9 April 2013 the matter came before Satchwell J. She delivered
judgment on 3 May 2013, in terms of which the relief claimed
in the
enforcement application was granted. Satchwell J also directed the
City to provide answers to questions posed in the order.
The City was
ordered to pay the costs of the application on the attorney and
client scale. Paragraphs 1, 2 and 3 of the order provide:
‘
1.
It is declared that the second, third and fourth respondents, in
their respective capacities as the Executive Mayor, Municipal
Manager
and Director of Housing of the City of Johannesburg Metropolitan
Municipality (“the City”), are constitutionally
and
statutorily obliged to take all the necessary steps to ensure that
the City complies with paragraph 2 of the court order granted
by
Claassen J in case no. 2011/20127 on 14
th
June 2012 (“the June 2012 court order”) and the court
order granted by Lamont J on 6
th
February 2013 (“the February 2013 court order”), obliging
the City to provide the applicants with temporary shelter
where they
may live secure against eviction, in a location as near as feasibly
possible to 191 Jeppe Street, Johannesburg.
2. The City is
directed to provide full and complete answers to the following
questions, such answers to be signed by the second,
third and fourth
respondents personally, and furnished to the applicants and fifth
respondent as also this court by 12h00 on Friday
18
th
May
2013.
a. Subsequent to the
Blue Moonlight
order of the Constitutional Court on 1
st
December 2011,
i. Has the City of
Johannesburg established a specialist task team or unit to plan for
implementation housing arrangements for all
those whom it is
estimated will be evicted as unlawful occupiers, rendered homeless
and whom the City has an obligation to accommodate?
ii. The City is
required to specify:
1.
Which specialist skills such as urban
development, town planning, housing, finance, building and other
areas of expertise are represented
in this unit?
2.
Which departments within the City
administration are represented within this unit and with which
departments does the unit liaise?
3.
What budget has been established for such
unit?
iii. If no such unit
has been established:
1.
The City is required to explain in detail
why this has not been done.
2.
What structure or structures currently
implement the housing arrangements required to be implemented in the
Blue Moonlight case
with reference to the personnel involved, skills
available, liaison undertaken, time availed from other duties,
management and
direction of implementation.
iv. Has the City
planned an estimate of the number of persons and the gender and age
distribution of persons who will be required
to be accommodated over
the period 1
st
December 2011 to 30 November 2011, 1
st
December 2012 to 30
th
November 2012, 1
st
December 2012 to 30
th
December 2013 and for each
successive twelve month period until the end of 2016? If the City
uses another twelve month period for
such estimates, then it should
so indicate.
v. Has the City, in
accordance with the estimates referred to above:
1. Planned for the
number of beds, rooms, buildings and other facilities required over
this period?
2. Ascertained the
current and prospective availability of land and/or buildings?
3. Budgeted for
rentals or purchase of land and buildings and refurbishment and
maintenance thereof to achieve provision of temporary
accommodation
over this period?
4. Arranged
financing estimated to be needed over this period. The City is
required to identify sources of funding:
a. Dates of
applications and sums required from the National Treasury.
b. Dates of
applications and sums required from the Gauteng Province.
c. Dates of
applications and sums required from the City of Johannesburg.
vi. Which experts
prepared these estimates and plans on behalf of the City of
Johannesburg and are these plans and estimates continuously
updated?
vii. If no such
estimates and plans have been prepared, the City is required to
explain why this has not been done and on what basis
the City is
currently attempting to meet its current and future obligations in
terms of the Blue Moonlight case.
viii. Has the City
identified buildings for rental by the City in order to provide
accommodation as required? How many such buildings
have been
identified? How many beds would be available per building and in
total? At what cost are the rentals per building and
per bed? How
many rental agreements have been negotiated and concluded? How many
negotiations are currently underway?
ix. Has the City
identified buildings for purchase in order to provide accommodation
as required? How many such buildings have been
identified? How many
beds would be available on a per building and in total? At what cost
are the purchase and refurbishment of
each building and per bed? How
many purchase agreements have been negotiated and concluded? How many
negotiations are currently
underway?
x. On what date did
the City make a written offer to Fifth Respondent in this matter,
Changing Tides Properties 74 (Pty) Ltd, to
rent the building situate
at 191 Jeppe Street, Johannesburg and at what rental and for what
period in order to provide accommodation
to the occupiers in this
matter. On what date did the City make a written offer to Fifth
Respondent to purchase the aforesaid building
and at what purchase
price and on what terms? Over what period did negotiations take
place? On what date did the City receive a
written response from
Fifth Respondent and to what effect?
xi. Has the City
identified architects, builders, plumbers, electricians and other
persons with expertise who can procure renovations
and refurbishments
and maintenance of any building rented or purchased to provide
accommodation? Has the City taken steps to ensure
speedy tender
processes or contractual arrangements to ensure temporary
accommodation is available on an emergency basis?
3. The second, third
and fourth respondents are ordered to take all the administrative and
other steps necessary to ensure that
the City ─
i) complies, within
two months of the date of this order, with its obligations in terms
of paragraph 2 of the June 2012 and February
2013 court orders, to
provide the applicants with temporary shelter where they may live
secure against eviction, in a location
as near as feasibly possible
to 191 Jeppe Street, Johannesburg.
ii)
complies, within one month of the date of this order with its
obligations in terms of the June 2012 and February 2013 court
orders
to deliver a report specifying the nature and location of the
temporary shelter to be provided to the applicants. That report
must
be delivered, under oath, and signed by the second, third and fourth
respondents.’
[13]
In terms of para 4 of the order, the eviction order of 14 June 2012
was suspended pending compliance with para 2 thereof. The
parties
before us are ad idem that the reference to para 2 of the order of
the court a quo was made
per incuriam
and should be a reference to para 3 thereof. We were informed from
the bar that temporary shelter was indeed subsequently made
available
to the occupiers and that what remained to be determined was whether
the accommodation was constitutionally compliant.
[14]
Leave to appeal was granted by this court. The essence of the case of
the City and the functionaries on appeal is that paras
1, 2 and 3 of
the order of the court a quo were wrongly granted. For convenience I
refer to paras 1 and 3 of the order as the
mandamus
and to para 2 as the reporting order.
The
mandamus
[15]
The
mandamus
was of course granted against the functionaries. In the heads of
argument the functionaries argued that there was no basis in law
for
the
mandamus
.
In support of this argument much reliance was placed on the judgment
in
Nyathi
v MEC for Department of Health, Gauteng
..
[2]
In court counsel for the City and the functionaries conceded that the
mandamus
was
competent in law. Counsel said that there could be no objection in
principle to the
mandamus
,
had the functionaries been cited in the eviction application from the
inception.
[16]
The concession was clearly correctly made.
Nyathi
dealt with the constitutionality of
s 3
of the
State Liability
Act 20 of 1957
. It was concerned with the execution of money
judgments against the State. The court considered the possibility of
contempt proceedings
against State functionaries in order to obtain
payment of a judgment debt. In such proceedings the judgment creditor
would have
to obtain a
mandamus
against the relevant State functionary. If the State functionary does
not comply with the
mandamus
he of she could be held in contempt of court. In this context the
court held that contempt proceedings are tedious, unlikely to
ensure
payment, too onerous a burden on and no real remedy for the judgment
creditor whose primary concern is payment of the judgment
debt. It
follows that
Nyathi
is no authority for the proposition that a mandatory order could not
be made against the functionaries.
[17]
As is the position with the State, the City can only act through the
functionaries that are responsible to perform the specific
function
or act on its behalf. The judgment of this court in
MEC
for the Department of Welfare v Kate
[3]
provides direct authority for a
mandamus
on pain of committal for contempt of court against the responsible
functionary. Nugent JA said:
[4]
‘
It
goes without saying that a public functionary who fails to fulfil an
obligation that is imposed upon him or her by law is open
to
proceedings for a
mandamus
compelling him or her to do so. That remedy lies against the
functionary upon whom the statute imposes the obligation, and not
against the provincial government. If
Jayiya
has been construed as meaning that the remedy lies against the
political head of the government department, as suggested by the
Court below, then that construction is clearly not correct. The
remarks that were made in
Jayiya
related to claims that lie against the State, for which the political
head of the relevant department may, for convenience, be
cited
nominally in terms of
s 2
of the
State Liability Act 20 of 1957
,
though it is well established that the government might be cited
instead. Moreover, there ought to be no doubt that a public official
who is ordered by a court to do or to refrain from doing a particular
act, and fails to do so, is liable to be committed for contempt,
in
accordance with ordinary principles, and there is nothing in
Jayiya
that suggests the contrary.’
This
judgment was endorsed by this court in
Meadow
Glen Home Owners Association & others v City of Tshwane
Metropolitan Municipality & another
.
[5]
[18]
It is rightly not disputed that the functionaries are the officials
of the City responsible for implementation of the orders
of Claassen
J and Lamont J. The functions and powers of an executive mayor of a
municipality are set out in s 56 of the Local
Government:
Municipal Structures Act 117 of 1998 (the Structures Act). This
section indicates that an executive mayor is responsible
for the
overall planning and oversight of the service delivery of the
municipality. In performing the duties of office, the executive
mayor
must monitor the management of the municipality’s
administration
[6]
and must
oversee the provision of services to communities in the municipality
in a sustainable manner.
[7]
This
makes plain that the executive mayor is ultimately responsible to
ensure that the City’s administration complies with
its
obligations towards residents in terms of a court order.
[19]
Section 55 of the Local Government: Municipal Systems Act 32 of 2000
(the Systems Act) provides that the municipal manager
is the head of
administration and the accounting officer of a municipality. Subject
to the policy directions of the municipal council,
the municipal
manager is responsible and accountable for the management of the
municipality’s administration in accordance
with the Systems
Act and other legislation applicable to the municipality.
[8]
The municipal manager is also responsible and accountable for the
management of the provision of services to the local community
in a
sustainable and equitable manner.
[9]
Moreover, as accounting officer he or she is responsible and
accountable for all income, expenditure and assets of the
municipality
and for the discharge of all its liabilities.
[10]
The municipal manager therefore heads the administration of a
municipality and holds its purse. This necessarily means that the
city manager has the power and the duty to ensure that the City
complies with its obligations in terms of a court order.
[11]
[20]
In the founding affidavit the occupiers said that by virtue of powers
delegated to him in terms of s 59 of the Systems
Act, the
director of housing of the City has the specific responsibility for
the implementation of the housing programmes and projects
in the
City’s area of jurisdiction. In the answering affidavits this
evidence went unanswered and it must be taken to be
admitted.
[21]
Before us the contention that the
mandamus
was wrongly granted, was based on two grounds. The first is that
improper procedure was followed in respect of the functionaries
and
the second that policy considerations rendered a mandatory order
inappropriate.
[22]
The argument on behalf of the functionaries is that the
mandamus
could only have been granted had the
functionaries been joined in the eviction application from the
beginning. I am unable to agree.
A party that initiates legal
proceedings against a municipality cannot be expected to act on the
assumption that if the litigation
is successful the municipality will
not comply with the order against it. Changing Tides was under no
obligation to cite the functionaries
in the eviction application.
Only when the City failed to comply with the order of Claassen J, did
the need arise to look to the
functionaries and that was the purpose
of the enforcement application. There is no reason to believe that
the outcome of the proceedings
before Claassen J would have been any
different had the functionaries then been parties to the eviction
application. This is particularly
borne out by the fact that the
functionaries were parties to the proceedings before Lamont J and in
fact consented to the order
set out above. In the final analysis the
question is whether the functionaries were prejudiced in a manner
that could not be avoided
by an appropriate order as to postponement
and/or costs. No prejudice to the functionaries was pointed out to us
and I find none.
[23]
In respect of policy considerations it was argued that the
mandamus
has the potential of discouraging competent persons from taking up
senior positions in local government. It was also said that
senior
officials in local government should not have to perform their
multiple complex tasks with the sword of committal for contempt
of
court hanging over them and that that could also unduly influence the
priority in which functions are performed. With reference
to para 35
of
Meadow Glen
,
counsel argued that on-going oversight by the court of the
implementation of its orders was a preferable alternative to the
‘blunt
instrument’ of committal for contempt of court. He
provided a written proposal indicating how such post-order
supervision
by the court could take place. As I understand it, what
is envisaged by the proposal is a series of ‘post-trial
conferences’
presided over by a judge specially allocated to
oversee the implementation of the order, followed, in the event of
that being unsuccessful,
by ‘pre-contempt conferences’
before the same judge. On the view that I take of the matter, it is
not necessary to
consider the practicality or appropriateness of such
proposal.
[24]
This submission must be considered in the light of two factors.
First, the occupiers did not claim an order that the functionaries
be
committed for contempt of court. They obtained an order that obliges
the functionaries to fulfil their own statutory obligations
to take
the steps necessary to ensure that the City provides temporary
shelter to the occupiers. The functionaries are not required
to
provide the shelter themselves. Contempt of court is committed when a
person wilfully and mala fide disobeys an order binding
on him or
her. If the functionaries address the provision of temporary shelter
to the occupiers diligently and in good faith, they
would not be
guilty of contempt of court even if their efforts prove to be
unsuccessful. Secondly, on appeal the test is not whether
a possible
alternative remedy was available, but whether this court can be
convinced that the court a quo erred in granting the
relief claimed
before it.
[25]
In my view, however, the decisive consideration is the principle of
public accountability. It is a founding value of the Constitution
[12]
and central to our constitutional culture.
[13]
In terms of s 152(1)(a) of the Constitution the objects of local
government include to provide accountable government
for local
communities. Section 6(1) of the Systems Act provides that the
municipality’s administration is governed by the
democratic
values and principles embodied in s 195(1) of the Constitution.
Section 195(1)(f) of the Constitution specifically
states that public
administration must be accountable. In terms of s 6(2)(b) of the
Systems Act the administration of a municipality
must facilitate a
culture of public service and accountability amongst staff.
Constitutional accountability may be appropriately
secured through
the variety of orders that the courts are capable of making,
including a
mandamus
.
[14]
[26]
By 9 April 2013 the City had for a period of nearly a year
consistently and without proper explanation failed to comply with
court orders that it had consented to. The functionaries are
statutorily obliged to see to the implementation of the orders made
against the City. Satchwell J correctly concluded that the time had
come for the functionaries to be held accountable in terms
of the
Constitution. In my view the appeal against the
mandamus
must fail.
The
reporting order
[27]
The reporting order was made mero motu. It was not supported with any
enthusiasm before us by any of the respondents. The implementation
of
the eviction order was made subject to the provision of temporary
shelter to the occupiers by the City. The City had at all
times
accepted that it was obliged to provide the occupiers with temporary
shelter. Therefore, when the matter came before Satchwell
J, only the
nature and location of the temporary shelter to be provided to the
occupiers remained in issue between the City, the
occupiers and
Changing Tides. Paragraph 3(ii) of the order of the court a quo
required a report as to exactly that. Nevertheless
the reporting
order obliges the City to ‘provide full and complete answers’
to a wide range of detailed questions pertaining
to the historic,
current and future performance of the City’s general obligation
to provide accommodation to evictees. What
is more, in terms of para
32 of the judgment the answers had to be provided irrespective of
whether the temporary shelter was in
fact provided in terms of para 3
of the order. The reporting order transcends the issues before the
court a quo to such an extent
that it cannot be countenanced.
[28]
Objectively the reporting order conveys an intention to give
directions to the City in respect of what is required to comply
with
its constitutional obligations to provide temporary accommodation to
homeless persons in general. The questions require the
City to answer
to the notions of the court as to the manner in which the obligations
could or should be complied with. I agree
with counsel for the City
that the reporting order infringes the principle of separation of
powers and for that reason too, cannot
stand.
[15]
[29]
It follows that the appeal succeeds only to the extent that para 2 of
the order of the court a quo is set aside. In this event
the
occupiers and Changing Tides asked only for a further order that the
appellants pay the costs of appeal. The reporting order
was of course
not dealt with in the papers and attracted limited attention in
argument on appeal. There is no doubt that the appeal
would have
proceeded even if the respondents had abandoned reliance on the
reporting order. I do not consider that the setting
aside of the
reporting order warrants any costs order in favour of the appellants.
[30]
The following order is made:
1 The appeal
succeeds only to the extent that para 2 of the order of the court a
quo is set aside.
2 The appellants are
ordered to pay the costs of the appeal, including the costs of two
counsel where so employed.
_______________________
C
H G VAN DER MERWE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellants: A Dodson SC (with him I B Currie)
Instructed by:
Kunene Ramapala
Botha Law Firm,
Sandton
Claude
Reid Inc, Bloemfontein
For
First to 182
nd
Respondent: P Kennedy SC (with him S
Wilson)
Instructed by:
Socio-Economic
Rights Institute of South
Africa/SERI Law
Clinic, Johannesburg
Webbers,
Bloemfontein
For
183
rd
Respondent: S Grobler
Instructed
by:
Esthè
Muller Inc, Three Rivers
Kramer
Weihmann Joubert, Bloemfontein
[1]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & another
2012
(2) SA 104 (CC).
[2]
Nyathi
v MEC for Department of Health, Gauteng & another
2008
(5) SA 94 (CC).
[3]
MEC
for the Department of Welfare v Kate
2006
(4) SA 478 (SCA).
[4]
Para
30.
[5]
Meadow
Glen Home Owners Association & others v City of Tshwane
Metropolitan Municipality & another
[2015]
1 All SA 299
(SCA) paras 20-22 and 30.
[6]
Section
56(3)(d) of the Structures Act.
[7]
Section
56(3)(e) of the Structures Act.
[8]
Section
55(1)(b) of the Systems Act.
[9]
Section
55(1)(d) of the Systems Act.
[10]
Section
55(2)(a) and (b) of the Systems Act.
[11]
See
Meadow
Glen
,
paras 23-24.
[12]
Section
1(d) of the Constitution.
[13]
Olitzki
Property Holdings v State Tender Board & another
2001
(3) SA 1247
(SCA) para 31.
[14]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431 (SCA) para 21.
[15]
See
National
Treasury & others v Opposition to Urban Tolling Alliance &
others
2012 (6) SA 223
(CC) paras 65-66.