About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 55
|
|
Melani and Others v City of Johannesburg and Others (02752/2014) [2016] ZAGPJHC 55; 2016 (5) SA 67 (GJ) (22 March 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 02752/2014
DATE: 22 MARCH 2016
In the matter between:
MOHAU
MELANI
...........................................................................................................
First
Applicant
LERATO
MAROLE
....................................................................................................
Second
Applicant
JOHANNES
MTHEMBU
..............................................................................................
Third
Applicant
FRANK
MAPARA
.......................................................................................................
Fourth
Applicant
NALEDI
NTOAHAE
.......................................................................................................
Fifth
Applicant
EDWARD
PHOSWA
.......................................................................................................
Sixth
Applicant
MAPOLENKE
MAKGOTHATSA
...........................................................................
Seventh
Applicant
JOHANNES
MOSEHLA
.............................................................................................
Eighth
Applicant
MAEBA
MULALO
.........................................................................................................
Ninth
Applicant
SAMUEL MOTAUNG
BOTIKINYANA
.....................................................................
Tenth
Applicant
GLORY
BALOYI
......................................................................................................
Eleventh
Applicant
EVA
LESITA
................................................................................................................
Twelfth
Applicant
THE FURTHER RESIDENTS OF THE SLOVO
PARK
INFORMAL
SETTLEMENT
.................................................................................................
Thirteenth
to Three Thousand Seven Hundred and
Ninth Applicants
And
CITY OF
JOHANNESBURG
......................................................................................
First
Respondent
MPHO PARKS TAU
N.O
........................................................................................
Second
Respondent
DANIEL BONAKELE BOVU
N.O
...........................................................................
Third
Respondent
THABO MARTIN MAISELA
N.O
.........................................................................
Fourth
Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR
HUMAN
SETTLEMENTS,
GAUTENG
....................................................................................
Fifth
Respondent
MINISTER FOR HUMAN
SETTLEMENTS
...........................................................
Sixth
Respondent
J U D G M E N T
STRAUSS AJ
[1] The applicants approached this
Court to review and set aside the first respondent, the City of
Johannesburg’s, failure
or refusal to take a decision to apply
to the fifth respondent, the MEC for Human Settlements Gauteng, for
funding to upgrade Slovo
Park, alternatively, to compel the City of
Johannesburg to commence the process, the Urban Settlements
Development Grant (USDG)
and the Upgrading of Informal Settlement
Policy (UISP) prescribed for upgrading the Slovo Park settlement, by
applying to the MEC
for the funding to do so.
[2] The 1st – 4th respondents in
capacity as the City of Johannesburg the 1st respondent, oppose this
application. The defence
is mainly that the City’s decision to
relocate the residents to Unaville is a policy decision which is not
susceptible to
review. The defence raised that the applicants’
attorney lacked the necessary authority to bring this application,
was abandoned
FACTS NOT IN DISPUTE
[3] The applicants are approximately
10,000 very poor people living in 3,700 households in Slovo Park.
They have been residing
in Slovo Park for a period of up to 21 years.
For all of this time they have lived in deplorable conditions, they
have no access
to electricity, shack fires break out at a rate of one
every two months and are often fatal and ambulances refuse to collect
the
sick from Slovo Park because the roads are not formally
demarcated, do not appear on a map, are not signposted and as a
result
individual residents cannot be located.
[4] For over 20 years officials at all
levels of the State have advised the residents of Slovo Park that
they would receive formal
housing, planning schemes have been
developed, environmental impact assessments have been done and steps
have been taken to declare
townships. Money has been earmarked and
officials representing the fifth respondent, and the MEC, have
visited Slovo Park to announce
the imminent provision of housing.
[5] The first respondent, has issued
documents to residents of Slovo Park confirming their rights to State
subsidised housing. However,
up to date nothing has actually been
provided.
[6] The City and MEC are under an
undisputed constitutional obligation to realise the right of access
to adequate housing for all
of those living under their areas of
jurisdiction. In doing so they are bound by the legislative and
policy framework set out
in the National Housing Act, 107 of 1997
(“the
Housing Act&rdquo
;). They are also bound by the National
Housing Code 2009 (“the Code”) and this Code is adapted
in terms of
Section 3(4)
(g) and
4
(1) of the
Housing Act. It
prescribes a wide range of procedures, plans and funding instruments,
which are designed to facilitate delivery of adequate housing
to
people who, like the residents of Slovo Park, are in need of it.
[7] The city has taken a policy
decision in 2015 to relocate the residents to a site called Unavalle,
11 km away from Slovo Park,
provided that the residents qualify for
housing.
APPLICANTS’ CASE
[8] Slovo Park is situated on dolomitic
ground and poses a risk to the residents.
[9] The applicants’ case is that
one of the instruments in which the City can provide adequate housing
is making use of the
UISP (Upgrading of Informal Settlement Policy).
The UISP is a fully funded programme intended to ensure the upgrading
of informal
settlements in partnership with the people who live in
them.
[10] The applicants have engaged with
the terms of the UISP and have drawn up their own plans to facilitate
the provision of housing
and secure a tenure to all the residents of
Slovo Park on the land they currently occupy or nearby. These plans
have been presented
to the City and strenuous efforts have been made
to engage the City on its implementation.
[11] At the time this application was
launched the City had neither refused to apply the UISP nor agreed to
do so. The only decision
by the City that has been taken, is to
relocate the residents to Unaville, stating that this is suitable for
development.
[12] The applicants’ case is
based on the fact that the Unaville plan of the City is at odds with
the UISP’s prescription,
i.e. that upgrading in situ must
wherever possible be preferred to relocation, and that housing
developments under the UISP must
include everyone living in a
particular settlement, even individuals who would not normally
qualify in terms of other housing programmes.
[13] The applicants’ claim that
the City’s decision to relocate the residents to Univalle is
unlawful, at least, for
the following reasons:
[13.1] The UISP has the force of
delegated legislation;
[13.2] It is the primary instrument
through which the State is obliged to provide housing to people
living in informal settlements;
[13.4] The UISP is a comprehensive
flexible instrument, which exhaustively regulates the upgrading of
informal settlements;
[13.5] Compliance with its precepts,
the applicants argue, is not optional.
[14] The City is accordingly obliged to
follow the procedures the UISP lays out to upgrade Slovo Park and its
failure to take a
decision to act in terms of the UISP, or its
refusal to do so, are unlawful due to the fact that the City is in
breach of the applicable
statutory framework for the upgrading of
informal settlements.
RESPONDENTS’ SUBMISSIONS
[15] The City submit that the primary
consideration in this application is whether the applicants have made
out a case that an in
situ development is feasible and such that the
City could become obliged to apply for assistance under the UISP
programme.
[16] The City, it says, has resolved to
provide housing through the Unaville development and Slovo Park will
form part of this development.
The Unaville development is a means
to discharge the City’s obligation, land is being valued for
acquisition and the development
is budgeted for.
[17] The respondent’s states that
the applicants are incorrect in insisting that the City could only
seek to provide housing
by making application through the UISP
programme.
[18] The City submits that it seeks to
meet its obligations through the Unaville development and that the
City made this determination
in the exercise of its executive
authority.
[19] The respondents submit that the
City in deciding to pursue the Unaville route in the provision of
housing took a decision,
which properly construed, is not subject to
review under PAJA.
[20] The submission of the applicants
that the conduct of the City in pursuing the Unaville route amounts
to a failure to implement
legislation and is thus an administrative
decision, ignores the fact that when a functionary such as the City
performs a certain
act in terms of an empowering legislative
provision, it does not necessarily mean that the functionary is
implementing legislation.
[21] The Court is therefore called upon
to decide and determine if the City’s decision on the Unaville
development breaches
the principle of legality and if it is rational
and reasonable.
[22] The respondents argue that the
City’s decision to provide housing through the Unaville
development is rational and it
is a measure that will address the
provision of housing in general and not only in relation to Slovo
Park.
[23] In having regard to the City’s
decision to relocate the residents to Unaville this Court must decide
if it was a policy
decision, which is not susceptible to review, I
will have regard to the fact that the mere branding of the decision
as one of policy
does not take it beyond review.
[24] Even though the formulation of
broad executive policy is not administrative action, the decision to
implement a policy in a
specific case in a manner that affects the
rights and legitimate expectations of specific people, is
administrative action. This
is set out in Permanent Secretary
Department of Education and Welfare, Eastern Cape v Edu College PE
2001 (2) SA (1) (CC) at paragraph
80.
[25] Further policy decisions which do
not amount to administrative action are still susceptible to review
under the Constitution
if they are taken in breach of fundamental
rights or other constitutional provisions specifically under Section
26 (2) of the Constitution
to realise the rights of persons to
adequate housing.
[26] The factual basis on which the
respondents appear to oppose the upgrade in situ is that the land of
Slovo Park is dolomitic.
The applicants, however, in regard to the
sinkholes still insist that the City can develop Slovo Park in situ
because the UISP
programme sets out a range of fully funded options
that address the problems identified by the City.
[27] The respondents argue that the
applicants have not provided evidence to contradict the concerns
raised by the City on sinkholes,
in that the applicants do not show
that the Council for Geosciences is satisfied that it is feasible to
have a large scale development
in Slovo Park.
[28] One of the primary considerations
is if the applicants have made out a case that an in situ development
is feasible that as
such the City would become obliged to apply for
assistance under the UISP programme.
[29] Several expert technical reports
were referred to such as the Intatakhusa report commissioned by the
MEC, the Arcus Gibb report
as well as the Hadebe Khumalo report, and
such reports indicated that the dolomite risk at Slovo Park, is low
and they have at
least concluded that the property is feasible to
develop notwithstanding the presence of dolomite.
[30] The UISP programme expressly
provides for upgrading to take place on land requiring rehabilitation
such as sinkholes and that
there is ample funding available to pay
for technical solutions which will mitigate any risk posed by the
presence of dolomite.
[31] The City has conceded that it is
possible to develop the property in situ for at least 482 households,
but the City does not
confirm that it has considered or engaged with
the terms of the UISP. The City has decided not to apply this policy
in preference
to relocating qualified beneficiaries to Unaville.
[32] The National
Housing Act 107/1997
apportions
responsibility for housing development among the three
spheres of government. In terms of
Section 3(4)(g)
of the
Housing
Act the
sixth respondent must institute and finance national housing
programmes. The Minister does so by publishing the code in terms of
her powers under
Section 4(1)
of the
Housing Act. The
code must
contain national housing policy and is distributed to all provincial
and local governments. Crucially the code is binding
on provincial
and local governments, in other words, it is not open to the fifth
respondent or the City to choose not to comply
with it.
Section 7(3)
of the
Housing Act requires
the MEC to administer every national
housing programme containing the code and to administer any
provincial housing programme in
a manner which is consistent with the
code. In doing so the MEC must approve and provide finance for
individual housing projects.
[33]
Section 9(a)(i)
of the
Housing Act
requires
the City to take all reasonable and necessary steps within
the framework of national and provincial housing legislation and
policy
to ensure that the inhabitants of its area of jurisdiction
have access to adequate housing on a progressive basis. Accordingly
the
Housing Act requires
the Minister to determine national housing
policy, the MEC to administer national housing policy by approving
projects which are
consistent with it and the City to implement
national housing policy.
[34] The UISP provides that informal
settlements are to be upgraded in situ in partnership with their
residents. The intent of
the policy is to provide tenure security
and a healthy environment to people living in informal settlements.
I find that the UISP
envisage a holistic development approach with
minimum disruption or distortion of existing fragile community
networks and support
structures and encourages engagement between
local authorities and residents living within informal settlements.
[35] The UISP makes clear that
relocation of informal settlements should be the exception and not
the rule. It also states that
relocation must take place at a
location as close as possible to the existing settlement and within
the context of community approved
relocation strategies.
[36] In order to find that the
respondents failed to consider the decision of in situ development
instead of relocating the inhabitants
to Unaville the Court had to
consider whether this failure was an administrative action.
[37] The court held in Chirva v
Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) that the definition of
administrative justice in PAJA has seven requirements. (1) There
must be a decision taken, or any
failure to take a decision (2) by an
Organ of State (3) exercising a public power or performing a public
function (4) in terms
of the Constitution {or legislation} (5) that
adversely affects someone’s rights or legitimate expectations,
(6) which has
a direct, external, legal effect and (7) that does not
fall under any of the exclusions listed in section 1 of PAJA.
[38] As held in Grey’s Marine
Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA):
“The thrust of this definition is
essentially that administrative action is any exercise of a public
power that has the capacity
to effect legal rights or legitimate
expectations.”
[39] As to the executive decision or
policy decision of the City the Courts have dealt exhaustively with
this kind of decision that
are administrative in nature and subject
to review and which are executive in nature and not reviewable. In
the SARFU case
2001 (2) SA 1
(CC) the Constitutional Court observed
that the tasks of formulating policy and initiating legislation are
constitutional responsibilities
of the Executive Branch and cannot be
construed as an administrative action for the purposes of Section 33.
It distinguished these
essentially political functions from the
implementation of legislation where it is typically administrative.
[40] In the Department of Education and
Welfare Eastern Cape v Edu College PE
2001 (2) SA 1
(CC) the
Constitutional Court held that policy may also be formulated in a
narrower sense where a member of the executive is implementing
legislation. The formulation of policy in the exercise of such
powers may often constitute administrative action.
[41] I find, that in the present case
the residents are requesting the implementation of an existing
policy, the UISP, and that
this is a typical administrative function
and is subject to review.
[42] I also find that the City’s
failure to apply the UISP is unlawful due to the following: This
decision has been taken
outside the legislative and policy framework
intended to apply to informal settlements such as Slovo Park and on
the facts of this
case the decision is unreasonable and accordingly
in breach of not only of the residents’ rights to just
administrative action,
but also of the residents’ rights of
access to adequate housing in terms of Section 26(1) of the
Constitution.
[43] The City had to at least have
considered whether the UISP applies to Slovo Park without making a
decision to completely ignore
in situ upgrade and relocate the
residents to Unaville. The City is required and obliged to act
within the confines of the
Housing Act and
the Code, which lay down
the framework intended to apply to informal settlements.
[44] The City’s conduct is
subject to a reasonableness criteria as well, and with reference to
Government of Republic of South
Africa v Grootboom
2001 (1) SA 46
(CC) the Constitutional Court stated that in assessing whether the
Government is meeting its obligations to act reasonably under
Section
26(2) of the Constitution, the measure it adopts must be
comprehensive, coherent, inclusive, balanced, flexible, transparent
and be properly conceived and properly implemented. The measures
must further clearly set out the responsibilities of the different
spheres of government and ensure that financial and human resources
are available for their implementation. They must be tailored
to the
particular context in which they are to apply, as what may be
appropriate in a rural area may not be appropriate in an urban
setting.
[45] The City’s decision to
relocate only qualifying beneficiaries to Unaville will exclude an
unknown number of people from
adequate housing. I find this to be
unreasonable and not inclusive.
[46] The City has taken a decision to
relocate the residents without any form of proper consultation and
engagement in respect of
the relocation. The decision taken also
falls short having regards to the social disruption such a relocation
could cause to the
residents.
[47] The decision to unilaterally move
the residents flies in the face of established constitutional juris
prudence regarding the
need to meaningful engagement in instances
where the right to adequate housing is concerned.
[48] In deciding to relocate the
residents without appropriate attention to their requirements as
clearly set out in the Housing
Code, that relocation is to be
considered as a matter of last resort, all such seems to be
unreasonable. The applicants have also
been told for a period of
more than 20 years that they will be upgraded in situ. This has left
them to have a legitimate expectation,
and the relocation flies in
the face of this expectation that has been created over a very long
period of time.
[49] I therefore find that the City’s
failure or refusal to apply the UISP Code and Practice must be
reviewed and set aside.
[50] The Constitutional Court has also
held that appropriate relief in cases such as this one, which
implicates constitutional rights
must be effective relief.It is
therefore clear from the above that the only effective relief would
be to direct the City to commence
the process the UISP prescribes for
the upgrading the Slovo Park settlement.
I therefore make the following order:
[1] The City’s failure to take a
decision to make an application to the Department of Human
Settlements Gauteng for funding
to upgrade the Slovo Park
Informal Settlement in terms of the
Upgrading of Informal Settlements Programme contained in the National
Housing Code 2009 is reviewed
and set aside;
[2] The City is directed to make an
application to the MEC for funding to upgrade the Slovo Park Informal
Settlement in terms of
the Upgrading of Informal
Settlements Programme within three
months from date of this order.
[3] The second, third and fourth
respondents shall within four months file with the Registrar of this
Court, and on the residents’
attorneys, a report or reports
under oath setting out steps they have taken to comply with the
court’s order, including a
copy of the application submitted to
the MEC for the upgrading of Slovo Park Informal Settlement.
[4] The fifth respondent is directed to
consider the application within a reasonable time from receipt
thereof and to submit no
later than three months of receipt of the
application, a report or reports under oath setting out what steps he
has taken and will
in future take to upgrade the Slovo Park Informal
Settlement in terms of the Upgrading of
Informal Settlements Programme.
[5] The first respondent is ordered to
pay the costs of the application, including costs of two counsel.
STRAUSS AJ
ACTING JUDGE OF THE HIGH COURT
OFSOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for the Applicant/
Plaintiff: ADV S WILSON
ADV I DE VOS
ADV M STUBBS
Instructed by: SERI LAW CLINIC (N
ZONDO)
Counsel for the Respondent/
Defendant: ADV V MALEKA SC
ADV O MOOKI
Instructed by: PADI INC
Date of Hearing: 12 November 2015
Date of Judgment: 22 March 2016