Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew and Another (2010/3234) [2016] ZAGPJHC 389; 2017 (2) SA 328 (ECG) (1 April 2016)

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[2016] ZAGPJHC 389
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Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew and Another (2010/3234) [2016] ZAGPJHC 389; 2017 (2) SA 328 (ECG) (1 April 2016)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2010/3234
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
…………
..………….............

1 April 2016
SIGNATURE

DATE
In
the matter between:
CHAPELGATE
PROPERTIES 1022 CC
Applicant
and
THE
UNLAWFUL OCCUPIERS OF ERF 644 KEW
First Respondent
CITY
COUNCIL OF JOHANNESBURG
Second
Respondent
J
U D G M E N T
SPILG,
J:
INTRODUCTION
1.
Chapelgate Properties 1022 CC is the registered
owner of immovable property situated in Kew. The property is zoned
for industrial
use only. A factory was built on the property but as
with a number of commercial and industrial buildings in Kew and the
adjacent
Marlborough area it was taken over by unlawful occupiers as
living quarters.
2.
In early 2010 an application was brought by
Chapelgate to evict all those who occupied the property. Default
judgment was granted
in May 2010. This was followed by a rescission
application in June of the same year. An application to join the City
Council of
Johannesburg
(‘the City’)
was also brought. Rescission of judgment was
granted a few months later in October. It was conceded that
occupation was unlawful
and the issue turned on the respective
obligations of the applicant and the City to provide shelter for
those who qualified for
protection under the  Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(‘
PIE‘
).
3.
At the end of August 2012 the court ordered the
occupiers  to vacate and called on the City to show cause why it
should not
provide temporary  emergency housing under its
housing program in accordance with the Constitutional Court decision
in
City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another
2012 (2) SA 104
(CC).
4.
A housing report was produced and the matter
subsequently came before me.  The argument centred on the
obligations of the City
to provide temporary housing to indigent
persons and who among the respondents qualify.
The
parties then advised that they were in settlement negotiations and
the rule that I had initially issued in March 2013 was extended
from
time to time. However during the course of argument I had raised a
concern regarding whether foreigners who had not entered
the country
legally and who had not applied for an asylum seekers permit in terms
of the
Refugees Act 130 of 1998
were eligible for temporary emergency
housing.
5.
Subsequently I was advised that the parties
wished to argue whether ‘
illegal
foreigners’
were eligible for temporary
emergency housing.
6.
Adv Ngcukaitobi
on
behalf of the occupiers (“
the
respondents
”) submitted that the issue
came down to whether it is constitutionally permissible for the
City’s policy or practice
to distinguish between South Africans
and foreigners when providing temporary emergency accommodation.
I
disagree. Such an enquiry presupposes that at least one of the issues
for determination on the papers is whether the City’s
decision
to discriminate between citizens and foreigners, or a particular
category of foreigner, is rationally supportable in a
democratic
society. This however is not the case. If it had been then one would
expect the City to explain why it discriminates
against
non-citizens and to provide the type of detail mentioned, albeit in
another context, in
Eagle Valley Properties 250 CC v
Unidentified Occupants of Erf 952, Johannesburg
[2011] ZAGPJHC 3
at para 40, namely:
sufficient
information based on informed statistical projections of the
anticipated number of indigent households in order to
ascertain the
number of shelters that must be provided on the requirement side of
the equation; and
on
the capacity side of that equation, what budget and other essential
resources are being and can be provided ( including possibly

job-creation and community self-upliftment programs); and
such
other information as is necessary to establish what objectives in
real terms can be attained in the short, medium and long
terms
relevant to the City’s contention that it is unable to
obtain, or secure from the other spheres of government,
the
resources necessary to provide temporary emergency shelter to
unlawful occupiers of privately owned properties.
7.
My concern arose for two reasons. Firstly,
because of the possible conflict  between the
Immigration Act 13
of 2002
which declares certain categories of foreigners to be
illegally in the country and obligations that may be imposed on an
organ
of State (in this case the City) to provide housing for those
who are indigent.
Secondly
the overwhelming number of occupiers in this case were non-citizens
and the number of cases coming before the courts in
the wake of
Blue
Moonlight
created the risk of indigent citizens being unable to
secure temporary emergency housing because the limited space and
financial
resources as claimed by the City in its housing report, if
correct, would be taken by non-citizens who may have no lawful right

to be in the country.
8.
The
Immigration Act identifies
who is entitled to
lawfully enter the country and the
Refugees Act 130 of 1998
makes
provision for obtaining a temporary asylum seekers permit to lawfully
sojourn in the country pending the final determination,
whether on
review or appeal, of an application for refugee status.
In
this judgment and adopting the definitions in
section 1
of the
Refugees Act, an
asylum seeker is a person “
who is seeking
recognition as a refugee in the Republic”
while a refugee
is any one   “
who has been granted asylum in terms
of this Act”.
9.
The issue of concern to the court was therefore
limited to non-South African citizens who have no legal right to be
in the country.
They would include adults as well as children and the
infirm. Moreover the issue on the papers before me is confined to a
legal
one based on an interpretation of the applicable legislation,
which appears to be PIE, the Immigration and Refugees Acts, the
Children’s
Act and the Constitution.
The
case did not, nor could it for reasons already stated, be concerned
with whether a decision taken in any housing legislation,
code or
programme to draw a distinction between citizens and foreigners
passes constitutional scrutiny.  That would be a factual
enquiry
falling outside these papers.
NATIONALITY
OF THE EVICTEES
10.
When Chapelgate instituted eviction proceedings
in 2010 there were approximately 300 occupiers. They now number 161
of whom the
large majority are not South African citizens. Of the
total number 21 were still minors when the last census of the
building’s
occupants was conducted in 2013. A number were 16
years of age or over at the time. Although the census is not the
model of clarity
it appears that over half the minors were born in
South Africa to the non- citizen occupiers. In addition there is one
non-citizen
occupier who is disabled and who is being cared for by a
relative who is a Zimbabwean national.
11.
A list was prepared of the occupiers. Of the
foreigners only one or two produced any papers indicating that they
are lawfully entitled
to reside in the country either by reason of
holding  a valid permit, visa, or have applied for asylum and
are awaiting the
outcome of an application, review or appeal under
either the Immigration or Refugees Acts.
12.
There are only 64 South African citizens out of
the total of 161 occupiers; a percentage of just under 40%. In
addition 22 Zimbabweans
and 2 Mozambicans claim to have rights to
remain in South Africa. In the result 73 foreign nationals cannot
produce a document
to demonstrate the basis upon which they remain in
the country; they accounted for 45% of the total number of occupiers.
13.
The list indicates that of all the current
respondents;
a.
41 are South Africans or in the one case is
married to a South African. There are five minor children among them;
b.
44 have produced Zimbabwean identification.
Of
these nine hold South African identity documents. No additional
information was provided and for present purposes it is assumed
that
they enjoy dual nationality.
Eight
others either have a work visa or a certificate of exemption while
the remaining 26 who possess Zimbabwean passports have
no apparent
entitlement to be in the country. In one case the asylum seekers
permit
[1]
has expired.
c.
Eight are Mozambican
d.
One is a Malawian
e.
63 are unable to verify their country of origin.
Of these;
i.
23 claim to be South Africans. Most are minors;
i.
Eight claim to be Mozambicans of whom  2
claim to have visitor visas;
iii.
Ten claim to be Zimbabweans, one of whom claims
to hold an asylum permit;
iv.
22 have produced no identity or other documents
indicating their nationality;
f.
Only three hold  current asylum permits that
were presumably renewed . The only one who identifies his country of
origin claims
to be Zimbabwean
The
balance is made up of those who no longer require accommodation or
have returned to Zimbabwe.
14.
The high number of non- South African respondents
makes it necessary to consider the rights they are accorded in
respect of accessing
basic shelter.
15.
In order to appreciate what rights may be
infringed, including those under the Bill of Rights, it is necessary
to first consider
the protection afforded to a person facing eviction
under PIE before ascertaining whether these are restricted in the
case of illegal
foreigners.
THE
EVICTION PROCESS UNDER PIE
16.
Unless the special provisions contained in
section 5 of PIE apply, an eviction order can only be granted against
an unlawful occupier
if it is just and equitable to do so. Sections
4(6) and (7) of PIE set out the considerations which are to be taken
into account,
depending on whether occupation of  private owned
land has been for longer than six months or not. In the present case
section
4(7) is relevant. It provides;
(7) 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 is 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 land owner for the
relocation of the unlawful
occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.
17.
In
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC) it was confirmed that a court must have regard to the
interests and circumstances of the occupier and pay due regard to
broader
considerations of fairness and other constitutional values,
so as to produce a just and equitable result.
18.
The Supreme Court of Appeal (‘
SCA’
)
in
Ekurhuleni Metro Municipality and another v
Various Occupiers, Eden Park Extension 5
2014
(3) SA 23
(SCA) comprehensively considered the meaning to be ascribed
in PIE to the term ‘
just and equitable’
.
Firstly
the court adopted the following statement by Horn AJ in
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter and
Others
2000 (2) SA 1074
(SE) at 1081E – G:
'The use of the term
just and equitable relates to both interests, that is what is just
and equitable not only to the persons who
had occupied the land
illegally, but to the landowner as well. The term also implies that a
court, when having to decide a matter
of this nature, would be
obliged to break away from a purely legalistic approach and have
regard to extraneous factors such as
morality, fairness, social
values and implications and any other circumstances which would
necessitate bringing out an equitably
principled judgment.
'
As
noted in the judgment,  this passage had been approved by Sachs
J when the case went on appeal (
Port Elizabeth Municipality
(CC)
at para 35)
19.
Once a court is satisfied that an eviction order
is just and equitable and there is no valid defence then in terms of
section 4(8)
of PIE, and provided a section 4(2) notice was
authorised and served at least 14 days before the hearing, the court
is compelled
to grant an order of eviction. This is clear enough from
the subsection which states that a court;
…
must grant an
order for the eviction of the unlawful occupier, and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the
circumstances; and
(b)
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 (a).
However,
it is equally evident from the provision, in determining a just and
equitable date by when an occupier is to vacate under
subsection (a),
that  the court must , in terms of section 4(9), have regard to
all relevant factors, including the period
the unlawful occupier and
his or her family have resided on the land in question.
20.
Finally on this point, in terms of section 4(12):
Any order for the eviction of an
unlawful occupier or for the demolition or removal of buildings or
structures in terms of this
section is subject to the conditions
deemed reasonable by the court, and the court may, on good cause
shown, vary any condition
for an eviction order.
This
is a significant feature as it demonstrates that the legislature
contemplated situations where conditions could be imposed
in an
eviction order provided the court deemed them reasonable. The use of
the word ‘
deemed’
indicates the exercise of a
discretionary power having regard to the circumstances of the case
and subject to the court’s
power to subsequently reconsider on
good cause the conditions that had been imposed.
21.
It is apparent from the steps that are
required to be taken prior to an occupier being evicted, and practice
bears this out in the
case of large scale evictions, that the process
itself is lengthy and requires the joining of at least one
responsible authority
which must then provide a housing report which
is to be considered by the court.
If
the court is satisfied that an eviction order should be granted then,
in order to comply with the provisions of section 4(8),
the date by
when occupiers must vacate private property will coincide, in the
case of those who are indigent,  with when the
court considers
that the responsible authority must provide them with alternative
temporary emergency shelter
[2]
.
The period will generally be a number of months, but may turn out to
be much longer if the authority or the occupiers appeal the
decision.
22.
The housing reports and other material produced
by the City in numerous cases that have come before this Division
demonstrate that
the provision of temporary emergency housing for an
indigent evictee is anything but temporary and that programmes are
being introduced
to provide work opportunities that will enable the
affected person and his or her family to progress out of the shelters
to some
form of subsidised housing as part of a broader programme to
achieve the progressive attainment of adequate housing under section

26 of the Constitution.
An
illustration of the temporary emergency shelter provided by the City
and the lengthy period that evictees have actually remained
there is
to be found in my brother Weppener J’s decision of
Dladla
and Others v City of Johannesburg and Another
2014 (6) SA 516
(GJ) at paras 1,3, 4 and 10. Some of the occupiers were still living
in the temporary accommodation provided by the City after
a period of
three years.
23.
This potentially puts the authorities in a cleft
stick. For as long as indigent occupiers cannot qualify for
subsidised housing
it will be argued that, unless other accommodation
is provided, it is not competent under PIE to eject them from the
temporary
emergency facilities provided because they remain
financially destitute.
It
also creates a tension between the ability of the City to provide and
maintain an adequate number of emergency housing facilities
on the
one hand and, on the other, the number of indigent people evicted
from properties as urban renewal progresses. Ideally temporary

emergency housing is precisely that; the provision of shelter in the
short term while the affected person is enabled to secure
adequate
work and thereby improve his or her financial situation.
24.
The difficulty is to avoid the provision of
temporary housing turning into indefinite occupation because those
affected are unable
to attain a sustainable income. This is a concern
in recessionary times such as the present, where the number of
evictees entitled
to emergency shelter may swell as the ranks of
unemployed increase and where a further influx of people from the
rural areas to
the metropolitan cities might arise.
25.
The question that arises is how the rights of a
foreigner, or any category of foreigner,  to be in the country
may be affected
by their status and, if they have no such right,
whether the Constitution or other laws requires them to be assisted
with emergency
temporary shelter if indigent or allows them to
participate in housing projects
It
seems that these factors together with the competing rights of
indigent citizens facing eviction for, what are claimed by the

authorities to be, limited temporary emergency accommodation
facilities which are required to continue providing shelter for the

same affected individuals for an extended period, are among the
social value and the broader extraneous implications that should
be
taken into consideration in line with
Port
Elizabeth Munipality
[3]
.
26.
The first question is determined by the
provisions of the Immigration and the Refugees Acts. The other by any
law that might be
of specific or of overriding application.
LEGAL
STATUS OF FOREIGNERS
27.
Only a
non-citizen who holds a lawful visa or permanent residence permit may
enter or sojourn in the country, failing which the
individual
must be deported unless authorised by the Director-General to remain
pending an application for a status as defined
[4]
.
The foreigner will also be an illegal immigrant if the visa has
expired and has not been extended or an application for a change
of
status has not been made (although in the latter case it is only in
the exceptional circumstances as prescribed that the applicant
may be
allowed to apply while still in the country)
[5]
. There are certain other situations that arise, but they are not
here relevant.
28.
However if the individual claims asylum status
for the first time only after having entered and remained in South
Africa illegally
then he or she may still remain lawfully in
the country and not be subject to arrest or detention (on the ground
only of being
an illegal immigrant) until all internal reviews and
appeals through the courts regarding his or her status have been
exhausted.
This
is by reason of the provisions of regulation 2(2) of the Regulations
promulgated under the
Refugees Act read
with
sections 21(2)
, (4) and
22
(1) of that Act
[6]
.  See
in particular
Bula
v Minister of Home Affairs
2012 (4) SA 560
(SCA) at paras 70 and 78.
29.
Since many of the respondents claim to hold visas
or to have had their original permits extended, it is necessary to
set out in
more detail how a non-citizen may acquire a right to
remain legally in the country under the
Immigration Act or
, if asylum
is sought, under the
Refugees Act.
30.
Before
doing so it should be added that
Zimbabweans and possibly nationals from other neighbouring states
enjoyed a special dispensation
and were entitled to enter the
country. This included dispensations accorded at the time of the 2010
soccer World Cup.  It
has been difficult to determine the nature
of the exemption or dispensation. For this reason the order I have
made includes provision
for such category of persons in subparagraph
2(d).
STATUS
OF FOREIGNERS UNDER THE
IMMIGRATION ACT
31.
A
foreigner may lawfully enter and reside in
South Africa if possessed of a permanent residence permit under
sections 25
,
26
or
27
of the
Immigration Act.
In
terms of section 10 of the Act no other foreigner may ‘
enter
or sojourn’
in the country unless he or she is in
possession of a valid visa, and then only for the period prescribed
in the visa.
32.
Twelve different categories of visas are
specified in section 10(2). They include a visitors, a study and a
work visa as well as
an asylum visa as contemplated in section 23.
33.
It is only necessary for present purposes to deal
with the  purpose and function of the asylum transit visa. This
is a temporary
visa issued solely to enable a person who declares on
entering the country that he or she seeks refugee status to travel to
the
nearest Refugee Reception Centre (‘
RRC’
) in order to apply for asylum. The visa is
valid for a limited period of five days only (prior to the amendment
that came into
effect in May 2014 the period appears to have been 14
days).
For
sake of completeness section 23 reads:
Asylum transit visa
(1) The Director-General may, subject
to the prescribed procedure under which an asylum transit visa may be
granted, issue an asylum
transit visa to a person who at a port of
entry claims to be an asylum seeker, valid for a period of five days
only, to travel
to the nearest Refugee Reception Office in order to
apply for asylum.
(2) Despite anything contained in any
other law, when the visa contemplated in subsection (1) expires
before the holder reports
in person at a Refugee Reception Office in
order to apply for asylum in terms of section 21 of the Refugees Act,
1998 (Act 130
of 1998), the holder of that visa shall become an
illegal foreigner and be dealt with in accordance with this Act.
34.
Under the
Immigration Act everyone
is obliged to
enter the country at a designated port of entry. Accordingly
section
23
presupposes that a foreigner seeking asylum will also do so and
obtain from the immigration official at the port of entry an asylum

transit visa.
In
terms of that section an asylum transit visa is only valid for a
period of five days. This is to enable the asylum seeker to
travel to
the nearest RRC office in order to apply for asylum. However it will
be recalled that the one in Port Elizabeth was closed
down by the
Department and required a decision of the SCA to secure its
reopening
[7]
. There are five
other RRC offices of which only one serves the entire extent of our
inland border; it is near the border with Zimbabwe
and Botswana at
Musina.  The others are within the metropolitan areas of
Johannesburg, Pretoria, Cape Town and Durban.
35.
In
Scalabrini Centre and
others v Minister of Home Affairs and others
2013
(3) SA 531
(WCC) Rogers J mentioned that the common cause evidence
presented  before him revealed that  the vast majority of
those
who applied for refugee status at an RRC office had crossed the
border illegally and not at a designated port of entry.      The

lack of documentation carried by the foreign respondents in the
present case indicates the same.
36.
However the status of a person seeking asylum is
only resolved by a consideration of the
Refugees Act to
which I will
progress shortly.
37.
Leaving
aside the position of a foreigner who has entered the country
illegally but who has evinced an  intention to apply
for asylum
although has not yet done so
[8]
, in terms of
section 32
of the
Immigration Act an
illegal foreigner
shall be deported and must await the outcome of any application for
status outside the country’s borders
unless the
Director-General authorises the individual to remain in the
country
[9]
.
38.
While in
the country an illegal foreigner, to whom the
Refugees Act does
not
apply, has a diminished status. He or she may not be lawfully
employed
[10]
and no
learning institution may knowingly provide him or her with training
or instruction
[11]
.
39.
Sections 42(1)
read with 49 of the
Immigration
Act makes
it an offence to provide any assistance to an illegal
foreigner and specifically prohibits providing accommodation
(although this
term may be limited to the act of harbouring),
letting, or making any immovable property available to such person.
A person
who contravenes these provisions faces stiff penalties
including imprisonment.
Nonetheless
section 42
of the
Immigration Act itself
provides an exemption in
cases where it is necessary to provide humanitarian assistance.
The
relevant portions of
section 42(1)
provides:
Subject
to this Act, and save for necessary humanitarian assistance, no
person, shall aid, abet, assist, enable or in any manner
help-
(a)
an illegal foreigner; or
(b)
a foreigner in respect of any matter,
conduct or transaction which violates such foreigner's status, when
applicable ,including
but not limited to-
(i)
…
..
(viii)
harbouring him or her, which includes providing accommodation; or
(ix)
letting or selling or in any manner making available any immoveable
property in the Republic
to him or her.
STATUS
OF FOREIGNERS UNDER THE
REFUGEES ACT
40.
Irrespective
of the provisions of
section 23
of
the
Immigration Act the
failure of a foreigner to enter the country
legally at a designated port of entry or, having done so, did not
seek asylum but gained
entry using another category of visa which has
since expired, does not render that person subject to the further
consequences of
the
Immigration Act if
there is still an intention to
seek asylum.
41.
In
Arse v Minister of Home
Affairs and Others
2012 (4) SA 544
(SCA) at
para 19 the SCA  confirmed that when an asylum seeker permit is
applied for the provisions of the
Immigration Act cease
to apply to
the illegal foreigner and by reason of the provisions of
section
21(4)
of the
Refugees Act
:
'no proceedings may be
instituted or continued against such person in respect of his or her
unlawful entry into or presence in the
country until a decision has
been made on his or her application or he or she has exhausted his or
her rights of review or appeal'
.
[12]
For
sake of completeness
s 24(1)
reads:
'(1) Notwithstanding any law to the
contrary, no proceedings may be instituted or continued against any
person in respect of his
or her unlawful entry into or presence
within the Republic if —
(a)
such person has applied for asylum in terms of subsection (1), until
a decision has been
made on the application and, where applicable,
such person has had an opportunity to exhaust his or her rights of
review or appeal
in terms of Chapter 4; or
(b)
such person has been granted asylum.'
42.
It has already been mentioned that subsequently
the SCA in
Bula
at
paras 70 and 78 confirmed that by reason of the provisions of
regulation 2(2)
of the Regulations promulgated under the
Refugees Act
read
with
sections 21(2)
, (4) and
22
(1) of that Act an illegal
foreigner is immunised against the provisions of the
Immigration Act
not only
from the time when an application is made for asylum but
from the time when he or she first evinces an intention to apply for
refugee
status irrespective of whether entry was illegal and
irrespective of whether an asylum transit visa was not sought at a
port of
entry.
The
most
important consequence is that he or she may remain lawfully in the
country until his or her status has finally been determined.
43.
The reason for according special status to asylum
seekers is evident from the provisions of
sections 2
,
3
and the
interpretation provisions contained in
section 6
of the
Refugees Act. They
provide:
Section 2
General prohibition of refusal of entry, expulsion, extradition or
return to other country in certain circumstances
Notwithstanding any provision of this
Act or any other law to the contrary, no person may be refused entry
into the Republic, expelled,
extradited or returned to any other
country or be subject to any similar measure, if as a result of such
refusal, expulsion, extradition,
return or other measure, such person
is compelled to return to or remain in a country where-
(a)
he or she may be subjected to persecution
on account of his or her race, religion, nationality, political
opinion or membership
of a particular social group; or
(b)
his or her life, physical safety or
freedom would be threatened on account of external aggression,
occupation, foreign domination
or other events seriously disturbing
or disrupting public order in either part or the whole of that
country.
Section 3
Refugee status
Subject to Chapter 3, a person
qualifies for refugee status for the purposes of this Act if that
person-
(a)
owing to a well-founded fear of being
persecuted by reason of his or her race, tribe, religion,
nationality, political opinion or
membership of a particular social
group, is outside the country of his or her nationality and is unable
or unwilling to avail himself
or herself of the protection of that
country, or, not having a nationality and being outside the country
of his or her former habitual
residence is unable or, owing to such
fear, unwilling to return to it; or
(b)
owing to external aggression, occupation,
foreign domination or events seriously disturbing or disrupting
public order in either
a part or the whole of his or her country of
origin or nationality, is compelled to leave his or her place of
habitual residence
in order to seek refuge elsewhere; or
(c)
is a dependent of a person contemplated in paragraph (a) or (b).
Section 6
Interpretation, application and administration of
Act
(1)     This Act
must be interpreted and applied with due regard to-
(a)
the Convention Relating to the Status of
Refugees (UN, 1951);
(b)
the Protocol Relating to the Status of Refugees (UN, 1967);
(c)
the OAU Convention Governing the Specific Aspects of Refugee Problems
in Africa (OAU,
1969);
(d)
the Universal Declaration of Human Rights (UN, 1948); and
(e)
any other relevant convention or international agreement to which the
Republic is or becomes
a party.
44.
Refugees by definition are those who have been
forced to flee from their own country, often with little more than
the clothes on
their back and in some cases having witnessed the
brutal killing of family or neighbours, due to war, civil unrest, or
state sponsored
actions or the actions of others in
de
facto
control over them which constitute
threats to life, to limb or amount to other basic human rights
violations.
In
Union of Refugee Women and others v Director: Private Security
Industry Regulatory Authority and others
2007 (4) SA 395
(CC) at para 28 Kondile AJ described the position of refugees as
follows:
‘
Refugees
are unquestionably a vulnerable group in our society and their plight
calls for compassion. As pointed out by the applicants,
the fact that
persons such as the applicants are refugees is normally due to events
over which they have no control. They have
been forced to flee their
homes as a result of persecution, human rights violations and
conflict. Very often they, or those close
to them, have been victims
of violence on the basis of very personal attributes such as
ethnicity or religion. Added to these experiences
is the further
trauma associated with displacement to a foreign country.’
45.
The next issue concerns the  rights accorded
under our law to a refugee or person entitled to apply for asylum. It
will be
convenient to commence this leg of the enquiry with reference
to
section 27
of the
Refugees Act: The
section reads
Protection and general rights of
refugees
A refugee-
(a)
is entitled to a formal written
recognition of refugee status in the prescribed form;
(b)
enjoys full legal protection, which
includes the rights set out in Chapter 2 of the Constitution and the
right to remain in the
Republic in accordance with the provisions of
this Act;
(c)
is
entitled to apply for an immigration permit in terms of the Aliens
Control Act, 1991, after five years' continuous residence
in the
Republic from the date on which he or she was granted asylum, if the
Standing Committee certifies that he or she will remain
a refugee
indefinitely;
[13]
(d)
is entitled to an identity document
referred to in section 30;
(e)
is entitled to a South African travel
document on application as contemplated in section 31;
(f)
is entitled to seek employment; and
(g)
is entitled to the same basic health
services and basic primary education which the inhabitants of the
Republic receive from time
to time.
46.
Since section 27 (b) of this Act entitles a
person who is granted refugee status  to the protection accorded
under the Bill
of Rights provisions it is self-evident that he or she
is entitled to the same socio-economic rights a citizen enjoys in
respect
of housing and as set out in section 26 of the Constitution.
This section provides:
Housing
(1) Everyone has the right to have
access to adequate housing.
(2) The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive realisation
of this right.
(3) 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.
47.
The position of someone who has applied for
refugee status may be different. In some countries they are confined
to refugee camps
at State expense. The current tragedy of the refugee
crisis created by the Syrian conflict demonstrates both the hardship
suffered
by those seeking asylum from the ravages of war and civil
unrest and the pressure created on  the receiving countries to
cope
with the influx of people. In some countries foreigners are
confined to refugee camps until their status has been finally
determined,
but even in those cases the conditions may nonetheless
have to pass constitutional scrutiny.
48.
In South Africa the process of determining the
status of an asylum seeker takes time until its final resolution and
on occasion
suffers from want of administrative regularity as
attested to by case law. The sheer volume also appears to be
responsible for
the delays in repatriating persons who are detained
at the Lindela Repatriation Centre. They are initially detained
because they
are illegal foreigners who have not applied for asylum
or do not qualify for asylum. The urgent court regularly deals with
applications
for the release of those who have been detained beyond
the maximum period provided for in terms of
section 34(1)(d)
of the
Immigration Act. These
cases are invariably resolved by a consent
order which provides for the release of the applicant from detention
and affording him
or her an opportunity to apply for asylum.
49.
It is therefore inevitable that those who evince
an intention to apply for asylum and then apply within the time
allowed may be
required to wait an inordinate time before their
applications are finally determined.  In
Somali
Association of South Africa and others v Limpopo Department of
Economic Development, Environment and Tourism and others
2015 (1) SA 151
(SCA) at para 44 Navsa ADP referred to an expected
three year waiting period. In the meanwhile they require shelter,
their children
must receive some form of education and, in order to
survive, they must be able to obtain work.
50.
Since the
asylum seeker is entitled to remain in the host country until his or
her status is finally determined, and since the provisions
of the
Immigration Act do
not deal with that person’s status, it
appears that his or her position should not be jeopardized in the
event of a successful
application unless there is a rational basis
laid for deviating from the rights accorded under
section 27
of the
Refugees Act either
generally or in the case of the specific person.
These
caveats
appear
necessary since in  many urgent applications brought before this
court for interdicts against deportation and release
from detention
the foreigner  does not fit the profile of a genuine asylum
seeker but is seeking better economic opportunities
and appears to
have belatedly considered this as means of remaining indefinitely in
the country
[14]
. Moreover the
City produced reports which, although not finally determined,
indicated that it has very limited resources at its
disposal to
provide emergency shelter for evictees from unlawfully occupied
property.
Nonetheless
it remains an inevitable consequence of the consensus reached by
nations as reflected in the international instruments
mentioned in
section 6
of the
Refugees Act that
a distinction is to be drawn
between the so called political refugee and the economic refugee.
SOCIO
ECONOMIC RIGHTS OF ASYLUM SEEKERS
51.
Our case law has also hesitated in according to
an asylum seeker the same rights as are conferred on a refugee but
nonetheless has
confirmed that their right to dignity is
determinative of the issue if it is conflicted by any other law,
including another
provision in the Constitutional .
52.
The first of the cases is
Minister
of Home Affairs and Others v Watchenuka and Another
2004 (4) SA 326
(SCA) where the conditions of the asylum seeker
permit placed a total prohibition on taking up employment or
studying, pending
the outcome of an application for asylum. Nugent JA
on behalf of the court at para 30 recognised that sections 21 and 22
of the
Constitution restricted the right to choose a trade or
occupation or profession to citizens and referred to the issue being
dealt
with in the Second  Certification case of
Ex
parte Chairperson of the Constitutional Assembly: In re Certification
of the Amended Text of the Constitution of the Republic
of South
Africa
1996 1997 (2) SA 97
(CC) at para 20
where the court found that restricting to citizens the right to
choice of occupation was in accordance with recognised
international
human rights instruments.
53.
The SCA at para 31 then confirmed that  this
was a reasonable and justifiable ground for limiting the protection
that section
10 of the Bill of Rights accords to dignity so as to
exclude from its scope a right on the part of every applicant for
asylum to
undertake employment.
Nonetheless
the court continued at para 32 :
“
But where
employment is the only reasonable means for the person's support
other considerations arise. What is then in issue is
not merely a
restriction upon the person's capacity for self-fulfilment, but a
restriction upon his or her ability to live without
positive
humiliation and degradation. For it is not disputed that this
country, unlike some other countries that receive refugees,
offers no
State support to applicants for asylum.”
54.
In
Watchenuka
the
court found at  para 32 that
“…
the
deprivation of the freedom to work assumes a different dimension when
it threatens positively to degrade rather than merely
to inhibit the
realisation of the potential for self-fulfilment”.
It
concluded at para 36 that imposing in an asylum seekers permit a
general prohibition on work and a general prohibition which
would
preclude even children from receiving available education infringed
the rights to human dignity and were unlawful.
55.
It is however also important for present purposes
to note that the court stressed that it did not suggest that the
State had an
obligation to provide work for an asylum seeker who was
financially destitute or that it was concerning itself with whether
the
State was  obliged to provide educational opportunities.
56.
The next
case was
Union
of Refugee Women
where the Constitutional Court distinguished
Watchenuka
on the ground that the offending provision of a statute
[15]
did not prevent asylum seekers from obtaining employment in other
industries, it only restricted it to the limited “ …
extent
that they may not work in the private security industry
[16]
”
.
The
Constitutional Court however confirmed at para 46 that:
“
Under the
Constitution a foreigner who is inside this country is entitled to
all the fundamental rights entrenched in the Bill of
Rights except
those expressly limited to South African citizens.”
57.
The most recent reported case is the
Somali
Association v Limpopo Department
where the
SCA was concerned with an asylum seeker’s right to
self-employment it being contended that section 22 of the
Constitution
limited the right to trade to citizens. Navsa ADP on
behalf of the court held at para 43
‘
To sum up,
there is no blanket prohibition against asylum seekers and refugees
seeking employment. There appears to be no restrictive

legislation or conditions in place that we could discern that
prohibit foreign nationals from being granted spaza or tuck-shop

licences. In any event, para 32 of Watchenuka, referred to above,
makes it clear that in circumstances such as this, where persons
have
no other means to support themselves and will as a result be left
destitute, the constitutional   right to dignity
is
implicated. I can see no impediment to extending the principle there
stated in relation to wage-earning employment to self-employment.
Put
differently, if, because of circumstances, a refugee or asylum seeker
is unable to obtain wage-earning employment and is on
the brink of
starvation, which brings with it humiliation and degradation, and
that person can only sustain him- or herself by
engaging in trade,
that such a person ought to be able to rely on the constitutional
right to dignity in order to advance a case
for the granting of a
licence to trade as aforesaid. In fact in those circumstances it
would be the very antithesis of the very
enlightened rights culture
proclaimed by our Constitution for us by resorting to s 22 of that
very Constitution (as contended by
the respondents and appears to
have found favour with the high court) to condemn the appellants to a
life of humiliation and degradation.
That I do not believe our
Constitution ought to countenance.’
58.
The concluding statement  touched on an
extract cited earlier by the learned judge of appeal. The extract was
from the minority
judgment of  Mokgoro J and O'Regan J which
also appears relevant to the present case:
‘
A reading of
these provisions gives some understanding of the predicament in which
refugees generally find themselves. Refugees
have had to flee their
homes, and leave their livelihoods and often their families and
possessions either because of a well-founded
fear of persecution on
the grounds of their religion, nationality, race or political opinion
or because public order in their home
countries has been so disrupted
by war or other events that they can no longer remain there. Often
refugees will have left their
homes in haste and find themselves
precariously in our country without family or friends, and without
any resources to sustain
themselves.'
AN
ILLEGAL FOREIGNER’S RIGHT TO EMERGENCY HOUSING
59.
Adv Ngcukaitobi relied on
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012
(6) SA 294
(SCA) where the SCA considered whether the City was
obliged to provide temporary emergency accommodation for illegal
foreigners.
The court was only concerned with whether the
determination of such status should precede the provision of
emergency shelter. It
identified the issue as one concerned with
promptly alleviating the plight of individuals caught up in an
emergency situation and
determined that in such cases a court did not
have the luxury of time to be concerned with the niceties of any
qualifier other
than the desperate need to accommodate the
individuals concerned.
At
paras 53 and 54 of the judgment Wallis JA said;
‘
[53]
I accept that the City is entitled to review the claim of any
person    seeking temporary
emergency accommodation as
a result of an eviction. However, the relevant question, in cases of
eviction creating an emergency,
is whether the appropriate time to do
that is before that person obtains such accommodation or afterwards.
Where the facts point
to the desirability of the eviction being
effected as rapidly as possible, because the circumstances in which
the occupiers are
living pose a risk to life and health, the only
answer must be that the review process should defer to the need for
eviction and
accordingly take place after the City has provided the
evictees with temporary emergency accommodation. This gives rise to
the
possibility — not likely to be great — that some
people not entitled thereto may obtain temporary access to temporary

emergency   accommodation, until their disqualification is
discovered. However, that is preferable to a large number
of people
who undoubtedly are entitled to such accommodation being kept out of
it and forced to live in unhealthy and potentially
life-threatening
surroundings for longer than necessary, while the City weeds out the
few who are not entitled to this benefit.
That is especially so as it
seems probable that any adverse decision by the City on an
individual's right to temporary emergency
accommodation may be
subject to legal challenge.
[54] Infusing grace and compassion
into the process of eviction does not mean that an eviction should be
postponed for as long as
possible, but    may mean
that it should take place expeditiously. If delayed the property
owner bears the burden
of not having access to its property whilst
the authority responsible for attending to the housing needs of the
persons in unlawful
occupation of the premises postpones the
discharge of its obligations. Where, as here, the occupiers are
living in conditions of
the utmost squalor, at the risk of their
lives and health, the court should be concerned that the process is
expedited so that
they are moved away from that situation as soon as
possible. It is noteworthy that local authorities are vested with
statutory
powers under other legislation to address situations such
as these.’
It
is apparent from an earlier passage in the judgment that in these
paragraphs the court was specifically responding to the City’s

contention that it was not obliged to provide illegal immigrants with
temporary emergency accommodation
[17]
.
60.
The first
respondent also relied on para 2.4 of the Housing Code (2009) which
accepts that illegal immigrants may qualify for temporary
emergency
housing on conditions prescribed by the Department of Home Affairs
“
on
a case by case basis”
[18]
.
The
Housing Code was promulgated under section 4 of the national
Housing
Act 107 of 1997
. In
Part 3
para 2.3 of the Code an emergency exists
for purposes of qualifying for temporary emergency housing when
inter
alia
;
persons affected owing to
situations beyond their control:
…
.
(e)
are evicted or threatened with imminent eviction from land or from
unsafe buildings, or
situations where pro-active steps ought to be
taken to forestall such consequences;
(f)
whose homes are demolished or threatened with imminent demolition, or
situations
where pro-active steps ought to be taken to forestall such
consequences;
…
(h)
live in conditions that pose immediate threats to life, health and
safety and require emergency
assistance;
(i)
are in such a situation of exceptional housing need, which
constitutes an emergency
that can reasonably be addressed only by
resettlement or other appropriate assistance, in terms of the
Programme’
61.
The authorities therefore appreciated that a
situation where living conditions posed an immediate threat to life,
health and safety
such as floods, required them on humanitarian
grounds to provide temporary emergency housing. Nonetheless where
emergency assistance
is to be provided to an illegal foreigner it
remains subject to conditions prescribed by the Department of Home
Affairs on a case
by case basis.
62.
The issue
of providing temporary emergency housing is usually linked with the
attainment of adequate housing on a progressive basis
as provided for
under section 26 of the Constitution
[19]
.
Constitutional Court and SCA authority on the subject consider that
those in desperate situations who face eviction are
entitled to be
afforded access to adequate housing on a progressive basis and that
all tiers of Government must take reasonable
legislative and other
measures within available resources to achieve this end.
63.
However these objectives do not necessarily
converge in the case of asylum seekers; if only because there will be
those among them
who will not qualify for refugee status and will be
lawfully arrested and deported. Accordingly, placing an asylums
seeker in a
section 26 housing programme to the exclusion of a
citizen who would otherwise have been next in line raises questions
of whether;
a.
any administration initiated programme
which might discriminate in favour of citizens passes Constitutional
scrutiny on the grounds
of rationality and legality; or,
b.
any law which so discriminates is
reasonable and justifiable in an open and democratic society under
the limitation provisions of
section 36 of the Constitution.
64.
It therefore appears advisable to consider the
underlying right sought to be protected.
65.
Firstly,
the progressive attainment of adequate housing under section 26(1)
and (2) is a constitutionally protected second generation

socio-economic right. It is also bolstered by one of the most
fundamental rights, the right to dignity under section 10
[20]
.
66.
There are also obligations to provide basic
accommodation under
sections 83(1)
, (2) and (3)
of the
Local Government: Municipal Structures Act 117 of 1998
read
with sections 156 and 229 of the Constitution.
In
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) Moseneke ACJ at para  155
said;
“
The duty to
provide basic services even to informal settlements stems from the
Constitution and from legislation. Indeed, Yacoob
J states at para
[75] of his judgment:
'The
Constitution requires the State, and therefore the City, to respect,
protect, promote and fulfil all fundamental rights. Arguably
one of
the most significant rights, particularly in the context of the
present case, is the right to have the inherent dignity
of everyone
respected and protected. More specifically the objects of local
government in the Constitution are, among other things,
to ensure the
provision of services to communities in a sustainable manner and ''to
promote a safe and healthy environment''. A
municipality is obliged
to try to achieve these objectives.”
67.
Socio-economic
rights in addition to the right to dignity give expression to the
constitutional rights to equality and freedom
[21]
.
However restrictions on the exercise by illegal foreigners of these
rights under the
Immigration Act as
read with the
Refugees Act is
more readily comprehended in terms of the limitation provisions of
section 36 of the Constitution. Where questions of life, bodily

integrity, dignity and children (who also receive special statutory
protection) are involved, then  the issue of rationality
and the
reasonableness or justification of the  limitation becomes more
problematic.
In
Khosa v Minister of Social Development
2004(6) SA 505 (CC) at
para 59
Mokgoro
J expressly recognised that it “
may be reasonable to
exclude from the legislative scheme workers who are citizens of other
countries, who have only a tenuous link
with this country.”
68.
The court
in
Khosa
however
distinguished the case of such a foreigner (ie one who is in this
country either as a temporary or illegal resident) as
“
quite
different”
to
one who obtains permanent residence
[22]
.
69.
The respondents then drew the conclusion that the
section 26 right to adequate housing on a progressively realisable
basis applies
equally to illegal foreigners unless that right is
limited by a law of general application, and that there is no such
law. Leaving
aside whether the context of the socio-economic right is
per se
only
comprehendible if exercised by someone who at the least  is
legally entitled to be in the country the provisions of the
Immigration Act as
qualified by the
Refugees Act are
limiting laws of
general application and the respondents did not seek to challenge
their constitutionality in these proceedings.
70.
By a socio-economic right only being
comprehendible if exercised by someone legally entitled to be in the
country I do not suggest
that the
section 23
,
24
,
27
or
29
socio-economic rights cannot be claimed while the illegal foreigner
is in the country.  Far from it. The Constitutional Court
and
the SCA have already settled that only a few sections in the Bill of
Rights expressly apply to citizens alone, while there
may be laws of
general application which can reasonably and  justifiably
restrict the enjoyment of other constitutionally
protected rights to
citizens only, despite such right being accorded to every person in
the Republic. So too remedial administrative
acts and decisions which
exclude foreigners from their benefits may yet pass the tests of
legality and rationality.
71.
By contrast the provision of accessing adequate
housing by definition contemplates a right in respect of immovable
property exercisable
indefinitely, which
a
fortiori
appears to disqualify an illegal
foreigner who is not an asylum seeker.  It is unnecessary to
decide the point.
72.
But  that does not end the enquiry since the
right to dignity, aside from featuring prominently in the positive
rights to access
adequate
housing
on a progressive basis under
sections 26(1)
and (2) also underscores
the protective (or negative) rights accorded to an evictee under
section 26(3)
; a provision which is given substantive content through
PIE.
In
the latter case the right to dignity gains prominence because of the
consequence to any person who has no roof over his or her
head. Until
that person’s status is determined and until lawful detention
or deportation he or she must be entitled while
in the country to the
benefits accorded to any citizen of temporary emergency shelter.
This
is reinforced by the provisions of
section 34(1)(e)
of the
Immigration Act which
requires that an illegal foreigner who is
arrested shall pending deportation:
‘
be held in
detention in compliance with minimum prescribed standards protecting
his or her dignity and relevant human rights.’
It
would be incongruous if any lesser standards are to be provided by
another  organ of state obligated under any other law
to provide
shelter until such time as the illegal foreigner is so detained.
73.
An evictee’s rights were explained in
Joe
Slovo
by Ngcobo J (at the time) at paras 231
and 232.
The
learned justice said that the Constitution requires all evictions to
be carried out in a manner which respects human dignity,
equality and
fundamental human rights and freedoms and that section 26(3)
"...
underscores the importance of a house, no matter how humble ... it
acknowledges that a home is more than just a shelter
from the
elements.    It is a zone of personal intimacy and
family security."
Reference
was then made to international human rights law which recognises that
while State projects for housing development and
the like may require
evictions, it should not result in people being rendered homeless and
that where those affected by the eviction
are unable to provide for
themselves, the Government
"... must take appropriate
measures, to the maximum of its available resources, to ensure that
adequate alternative housing,
resettlement or access to productive
land, as the case may be, is available.".
See also Moseneke
ACJ in the same case at para 155 (which was quoted earlier).
74.
The right to dignity therefore features
prominently in the case of evictions and the immediate need to
provide a temporary shelter
for the poor who would otherwise be
rendered homeless, irrespective of whether that would constitute the
first step in a civic
programme to provide adequate housing. A person
will of course be entitled to emergency aid even though not eligible
for
the benefits of a longer term upliftment programme.
75.
In my respectful view the distinction between
providing necessary humanitarian assistance and a constitutional
obligation to provide
a programme for progressive habitation, despite
both being underpinned by the right to dignity, was expressed by
Sachs J in
Joe Slovo Community
at para 362:
“
The term
'humanitarian assistance' lends itself more to the granting of ad hoc
support for occasional victims of war, persecution,
or natural
disasters, than to the fulfilment of constitutional and statutory
obligations to furnish succour and redress to the
long-standing
casualties of history. What the council  was doing was providing
focused civic action to help people achieve
their constitutional
right to enjoy dignified habitation. At the same time, however, the
entitlement of the homeless to be in continuing
occupation of the
land was conditional on and subject to the exigencies of any
reasonable programme for formal housing to be developed
on that
land.”
76.
In considering the plight of illegal foreigners
subject to eviction under PIE as read with section 26(3), and not
subsections (1)
and (2), the provision of temporary
emergency housing does not become the gateway to securing for them
access to an
incrementally  progressive housing programme,
unless their status changes (as explained later).
This
would also address the concern of providing emergency shelter to
illegal foreigners for an extended period in already stretched

facilities.
77.
Accordingly, while I disagree with the reasoning
advanced, I agree with Adv Ngcukaitobi’s submission that
illegal foreigners
cannot
per se
be
precluded from being provided with temporary emergency housing in
dire situations.
DETERMINING
STATUS OF EVICTEES
78.
In
Changing
Tides
the
SCA was faced with a
fait
accompli.
The
illegal occupiers were required to be evicted speedily because the
living conditions in the building posed “
a
risk to life and health
”
[23]
.
The appropriate time to determine whether any of the evictees were
illegal foreigners, was therefore not prior to eviction
which would
delay the process but after they were provided  with temporary
emergency accommodation
[24]
.
79.
It would therefore appear that in protracted
litigation, where illegal occupation is admitted but one of the
issues which impedes
eviction from the landowner’s property is
the ability of the City to secure temporary emergency accommodation,
and by when,
there is no impediment to obtaining a court order,
whether at the time an application is brought for a section 4(2)
notice or separately,
to direct that any illegal foreigner
regularise his or her entitlement to remain in the country, even if
only applying for
an asylum seekers permit, prior to the date when
the eviction application is heard, provided a reasonable time is
afforded for
doing so.
CHILDREN,
THE INFIRM AND DISABLED
80.
There are rights which receive special protection
under our Constitution. They are the rights of children and the aged
or infirm.
In the former the rights are expressly conferred and
recognised while it is implicit that the aged or infirm may be at
risk of
life or to their health, as well as degrading the right to
dignity,   if not in receipt of basic assistance.
Cases
concerned with PIE recognise the special status of the
vulnerable within the framework of the Constitution.
81.
Moreover in terms of
section 29(2)
of the
Refugees Act;
The
detention of a child must be used
only as a measure of last resort and for the shortest appropriate
period of time.
82.
Again in
section 32
, the
Refugees Act makes
special provision for unaccompanied children and mentally disabled
persons:
(1) Any child who
appears to qualify for refugee status in terms of
section 3
, and who
is found under circumstances which clearly indicate that he or she is
a child in need of care as contemplated in the Child
Care Act, 1983
(Act 74 of 1983), must forthwith be brought before the Children's
Court for the district in which he or she was
found.
(2) The Children's Court may order
that a child contemplated in subsection (1) be assisted in applying
for asylum in terms of this
Act.
(3) Any mentally disabled person
who appears to qualify for refugee status in terms of section 3 must
be assisted in applying for
asylum in terms of this Act.
83.
The preamble to the Children’s Act 38 of
2005 provides that;
AND WHEREAS the United Nations has
in the Universal Declaration of Human Rights proclaimed that children
are entitled to special
care and assistance;
AND WHEREAS the need to extend
particular care to the child has been stated in the Geneva
Declaration on the Rights of the Child,
in the United Nations
Declaration on the Rights of the Child, in the Convention on the
Rights of the Child and in the African Charter
on the Rights and
Welfare of the Child and recognised in the Universal Declaration of
Human Rights and in the statutes and relevant
instruments of
specialised agencies and international organisations concerned with
the welfare of children;
In
the definition section of the Act;
'care', in relation to
a child, includes, where appropriate-
(a)
within available means, providing the child with-
(i)
a suitable place to live;
(ii)
living conditions that are conducive to the child's health,
well-being and development;
and
(iii)
the necessary financial support;
(b)
safeguarding and promoting the well-being of the child;
(c)
protecting the child from maltreatment, abuse, neglect, degradation,
discrimination,
exploitation and any other physical, emotional or
moral harm or hazards;
(d)
respecting, protecting, promoting and securing the fulfilment of, and
guarding against any
infringement of, the child's rights set out in
the Bill of Rights and the principles set out in Chapter 2 of this
Act;
(e)
guiding, directing and securing the child's education and upbringing,
including religious
and cultural education and upbringing, in a
manner appropriate to the child's age, maturity and stage of
development;
(f)
guiding, advising and assisting the child in decisions to be taken by
the child
in a manner appropriate to the child's age, maturity and
stage of development;
(g)
guiding the behaviour of the child in a humane manner;
(h)
maintaining a sound relationship with the child;
(i)
accommodating any special needs that the child may have; and
(j)
generally, ensuring that the best interests of the child is the
paramount concern
in all matters affecting the child;
84.
The protections accorded to children are extended
by the application provisions found in section 8  of that Act.
8  Application
(1) The rights which a child has in
terms of this Act supplement the rights which a child has in terms of
the Bill of Rights.
(2) All organs of state in any
sphere of government and all officials, employees and representatives
of an organ of state must respect,
protect and promote the rights of
children contained in this Act.
(3) A provision of this Act binds
both natural or juristic persons, to the extent that it is
applicable, taking into account the
nature of the right and the
nature of any duty imposed by the right.
85.
Finally, section 9 of the Children’s Act
statutorily recognises that the best interests of the child is
paramount. It reads:
9
Best interests of child paramount
In
all matters concerning the care, protection and well-being of a child
the standard that the child's best interest is of paramount

importance, must be applied.
86.
The broad protection afforded to children and
also the disabled, whose rights to dignity are by definition more
acutely affected,
should therefore be reflected in any order made in
respect of the continued provision of temporary emergency housing to
illegal
foreigners.
87.
Children, the disabled and the infirm are however
dependent on the continued nurturing and protection of their parents
or an able
bodied adult. It certainly seems contrary to the
children’s rights to have them placed in foster care solely
because their
parents are illegal foreigners. For that reason it
would appear that the parent or
de facto
care
giver of a person who is infirm or suffering a disability be
umbrellaed by the protection our law will accord the child or

disabled person.
SPECIAL
CONDITIONS UNDER SECTION 4 (12) OF  PIE
88.
Early on in this judgment mentioned was made of
section 4(12) of PIE which accords a court the power to impose
reasonable
conditions to any eviction order of an unlawful occupier,
with the proviso that the court may subsequently vary these
conditions
on good cause.
89.
In the present case it appears reasonable  to
impose a condition that those respondents who are illegal foreigners
regularise
there status with the proviso that if they do not produce
proof to that effect within a specified period which the court
considers
reasonable then the City may apply on the same papers, duly
supplemented, for a declarator that they are no longer entitled to
receive temporary emergency accommodation.
90.
I consider the order that I make in this regard
to be reasonable in the circumstances and also to ensure that any
affected person
will have a further right to be heard on whether a
declaratory order should be made against him or her with due regard
to the circumstances
then prevailing, including circumstances that
may have an affect on any child or disabled person in his or her
care.
ORDER
91.
It is for these reasons that on 9 February I
granted the following order which amended the draft order in relation
to those terms
of the eviction and provision of temporary emergency
accommodation that had been agreed.
1.
An order is granted in terms of the draft attached marked ‘A’
save
that in addition the following paragraphs shall be added to the
order.
2.
Every adult who is an illegal immigrant and not lawfully entitled to
remain or
sojourn temporarily in the country in that he or she;
a.
does not possess a valid permanent residence permit under
sections 25
to
27
of the
Immigration Act 13 of 2002
; or
b.
does not possess a valid visa (such as a work, student or
asylum transit
visa) as provided for in terms
section 10
of the
Immigration Act 13 of 2002
; or
c.
has not  applied for asylum in terms of
section 21
of the
Refugees Act 130 of 1998
and does not possess a valid asylum seekers
permit in terms of
section 22
of that Act or whose application has
not been finally determined, including by way of review and appeal
where applicable; or
d.
is not otherwise entitled to any lawful dispensation to remain or
sojourn temporarily
in the country
shall by no later than 31 March
2016 produce to the Second Respondent by written submission to its
attorneys of record at the contact
address set out  in paragraph
4 proof that he or she has applied for asylum under
section 21
of the
Refugees Act and
has obtained a valid asylum seekers permit under
section 22
of that Act or produces a visa or permanent residence
permit in terms of the
Immigration Act or
otherwise produces proof
that he or she is otherwise entitled to any other lawful dispensation
to remain or sojourn temporarily
in the country.
3.
In the event of any person who is an illegal immigrant failing to
comply with
the provisions of the previous paragraph or not producing
the necessary proof then the Second Respondent shall be entitled to
set
down an application on long form notice to the affected person or
persons on the same papers duly supplemented for an order declaring

that such person is not entitled to continue receiving temporary
emergency accommodation. Such application shall also indicate
whether
the affected person has any children or disabled persons in his or
her care or if the affected person is himself or herself
disabled or
a minor.
4.
The contact details of the Second Respondent are directed as:
(It
is unnecessary to include them in this judgment)
_____________________
SPILG J
(delivered in open
court on 1 April 2016)
POSTEA
(17 May 2016):
The effect of
incorporating the order made into the exiting draft resulted in
further representations by the parties. As a consequence
certain
aspects of the original draft were amended. The parties were
requested to complete a final draft order incorporating both

amendments to the original  draft and the order I made in
relation to the disputed issue (the latter now contained in paras
8
and 9). This has now been provided and for sake of completeness the
consolidated order to be issued by the registrar is as follows:
1.
The first respondents and all persons
occupying through or under them are to vacate the property described
as Erf 644 Kew Township,
Registration Division IR, Gauteng, known as
numbers 93 and 95, Twelfth Road, Kew (“the Property”), by
28 February 2017.
2.
The Sheriff of this Honourable Court is
directed to remove from the property all persons still occupying the
property by 1 March
2017 together with their belongings.
3.      The
attorneys for the occupiers, The Legal Resources Centre, are directed
on or before the
13
th
of June2016 to furnish the
attorneys for the City with a list of those of its clients, on the
date of this order who, as a result
of the eviction from Erf 644 Kew
Township, Registration Division IR, Gauteng, known as numbers 93 and
95, Twelfth Road, Kew may
require temporary emergency accommodation
assistance, together with their names, ages, family circumstances,
sources of income,
appropriate proof of identity and all
documentation pertaining to their residency status in the Republic of
South Africa.
4.
The City is directed, by no later than 30 (thirty) days after being
furnished
with the list referred to in paragraph 3 above, to file
with the Registrar and serve on the attorneys for the Applicant and
the
occupiers a report or reports setting out:-
4.1
Which of the occupiers is eligible for temporary emergency
accommodation assistance;
4.2
If it is contended that one or more of the occupiers does not qualify
for the provision
of temporary emergency accommodation assistance,
the reasons for which is contended that the occupier or occupiers do
not so qualify.
5.
The contact details of the Second Respondent are directed as Kunene
Ramapala
Inc., … (details omitted from this  judgment).
6.
Within 2 (two) weeks of the delivery of the City’s report/s
sent out hereinabove,
the occupiers and/or the Applicant may file
with the Registrar and serve on the attorneys for all other parties a
commentary thereon,
under oath.
7.
Thereafter, this application may be re-enrolled for hearing on not
less than 5 (five)
days notice to all interested parties for the
determination of such further relief as may be appropriate.
8.
Every adult occupier listed pursuant to para 3 and found to be
eligible for temporary
emergency accommodation who is an illegal
immigrant and not lawfully entitled to remain or sojourn temporarily
in the country in
that he/she :
8.1
does not possess a valid permanent residence permit under sections 25
to 27 of the
Immigration Act 13 of 2002
; or
8.2
does not possess a valid visa (such as a work, student or asylum
transit visa) as provided
for in terms of
section 10
of the
Immigration Act 13 of 2002
; or
8.3
has not applied for asylum in terms of
section 21
of the
Refugees Act
130 of 1998
and does not possess a valid asylum seekers permit in
terms of
section 22
of that Act or whose application has not been
finally determined, including by way of review and appeal where
applicable; or
8.4
is not otherwise entitled to any lawful dispensation to remain or
sojourn temporarily in
the country
shall
within 2 weeks of the second respondents report produce to it
by
written submission to its attorneys of record at the
contact
address set out in paragraph 5 proof that he or she has applied for
asylum
under
section 21
of the
Refugees
Act
and
has obtained a valid asylum seekers permit under
section 22
of
that Act
or
produces a visa or permanent residence permit in terms of the
Immigration Act
or
otherwise produces proof that he or she is otherwise entitled to any
other
lawful
dispensation to remain or sojourn temporarily in the country.
9.
In the event of any person who is an illegal immigrant failing to
comply with
the provisions of the previous paragraph or not producing
the necessary proof then the Second Respondent shall be entitled to
set
down an application on long form notice to the affected person or
persons on the same papers duly supplemented for an order declaring

that such person is not entitled to continue receiving temporary
emergency accommodation. Such application shall also indicate
whether
the affected person has any children or disabled persons in his or
her care or if the affected person is himself or herself
disabled or
a minor.
10.
The following provisions shall apply to the provision of temporary
emergency accommodation
to the persons who are found to be eligible
for temporary emergency accommodation:
10.1
The City of Johannesburg shall provide emergency temporary
accommodation from 16 February 2017 to the persons
found to be
eligible.
10.2.
The City of Johannesburg shall deliver a report to the parties and
the Registrar of the above Honourable Court
by 15 August 2016 dealing
with at least the following:
10.2.1 The identification and details
of buildings available for utilization by the City of Johannesburg in
the provision of emergency
temporary accommodation;
10.2.2 Details of any delay in the
procurement of buildings for purposes of providing of emergency
temporary accommodation or the
refurbishment thereof; and
10.2.3 If any delays are experienced,
the reasons therefore and the person or person responsible for the
delay, as well as details
of any remedial steps taken or planned.
10.3
The City of Johannesburg shall report to the parties and the Court on
the progress of refurbishment of the
buildings identified in the
reports of 15 August 2016 by 15 October 2016 and further provide at
least the details referred to in
10.2.1, 10.2.2 and 10.2.3 above.
10.4
The occupiers shall be entitled, through their attorneys and
appointed representatives, to inspect the property/ies
by 10 January
2017.
10.5
The City of Johannesburg shall commence relocation of the persons
found to be eligible by no later than 16
February 2017.
11.
No order as to costs is made in this application.
DATE
OF JUDGMENT:
1 April
2016
LEGAL
REPRESENTATIVES:
FOR
APPLICANT:     Adv A Bester
Vermaak
& Partners
FOR FIRST RESPONDENT:
Adv T Ngcukaitobi; Adv N Alli: Adv L Siyo
Legal
Resources Centre
FOR
SECOND RESPONDENT:   GB McMaster
Kunene Ramapala Inc
[1]
With effect from 26 May 2014 visas replaced permits, save in the
case of  a permanent residence permit. This was due to
the
amendments effected  by the Immigration Amendment Act 13 of
2002
[2]
See for instance the orders in
Blue
Moonlight
[3]
PE Municipality
(ECG)
at 1081E-G and
PE
Municipality
(CC) at para
35
[4]
See section 32 reads;
Illegal foreigners
(1) Any illegal foreigner shall
depart, unless authorised by the Director-General in the prescribed
manner to remain in the Republic
pending his or her application for
a status.
(2) Any illegal foreigner shall be
deported.
Section
34 provides for the arrest by an immigration officer without a
warrant, detention and deportation of an
illegal
foreigner
[5]
See
sections 10
(7) and (6)(b) of the
Immigration Act respectively
[6]
Regulation 2(2):
Any person who entered the Republic
and is encountered in violation of the Aliens Control Act, who has
not submitted an application
pursuant to subregulation 2(1), but
indicates an intention to apply for asylum shall be issued with an
appropriate permit valid
for 14 days within which they must approach
a Refugee Reception Office to complete an asylum application.'
Section 21(1) provides:
An application for asylum must be
made in person in accordance with the prescribed procedures to a
Refugee Reception Officer at
any Refugee Reception Office.
Section 21(4)(a):
Notwithstanding any law to the
contrary, no proceedings may be instituted or continued against any
person in respect of his or
her unlawful entry into or presence
within the Republic if —
(a)
such person has applied for asylum in terms of subsection
(1), until a decision has been made on the application and, where
applicable,
such person has had an opportunity to exhaust his or her
rights of review or appeal in terms of Chapter 4; . . . .
Section 22(1)
of the
Refugees Act
provides
:
The Refugee Reception Officer must,
pending the outcome of an application in terms of
section 21(1)
,
issue to the applicant an asylum seeker permit in the prescribed
form allowing the applicant to sojourn in the Republic temporarily,

subject to any conditions, determined by  the Standing
Committee, which are not in conflict with the Constitution or
international
law and are endorsed by the Refugee Receptions Officer
on the permit.
[7]
Minister of Home Affairs
and Others v Somali Association of South Africa and Another
2015 (3) SA 545 (SCA)
[8]
See
Bula
at
para 80.
[9]
Section 32 reads:
Illegal foreigners
(1) Any illegal foreigner shall
depart, unless authorised by the Director-General in the prescribed
manner to remain in the Republic
pending his or her application for
a status.
(2) Any illegal foreigner shall be
deported.
[10]
Section 38
[11]
Section 39
[12]
In   Fikre v Minister of Home Affairs
2012 (4) SA 348
(GSJ)  at paras 35 and 36   the interrelationship
between the   Refugee Act and the
Immigration Act was
considered and at para 37 the following was said:
The structure of the
Refugees Act is
premised on respecting the right to liberty of a foreigner who
claims refugee status until his  application is finalised.
This
is understandable if regard is had to the experiences of those who
were forced into exile and the more recent experiences
of ethnic
intimidation, including genocide that characterised Eastern Europe
and our own continent and which placed the lives
and general
wellbeing of ordinary citizens in jeopardy. See further Arse and
also its explanation of the structure of the
Refugees Act.
[13
]
It should be added that in terms of
section 27(d)
of the
Immigration
Act a
refugee referred to in
section 27
(c) of  the
Refugees
Act who
satisfies the prescribed requirements may be issued with a
permanent residence permit;
[14]
Iqbal v Minister of Home
Affairs and others
2013
(5) SA 408
(GSJ) is an example of where the foreigner paid to marry
a South African to obtain residence  and when the fraudulent
marriage
was exposed claimed that he was entitled to apply for
refugee status.
[15]
Section 23(1)(a) of the Private Security Industry Regulation Act 56
of 2001 which reserves the right to be employed in the private

security industry to citizens
[16]
Union of Refugee Women
at
para 47
[17]
Changing Tides
at
para 50
[18]
Para 2.4 of the Code reads;
The
programme will benefit all affected persons who are not in a
position to address their housing emergency from their own resources

or from other sources such as the proceeds of superstructure
insurance policies and the following households will qualify for

assistance under this  programme:
·
Illegal immigrants on the conditions prescribed by the Department
of  Home Affairs on a case by case basis
[19]
Section 26 of the Constitution provides:
Housing
(1) Everyone has the right to have
access to adequate housing.
(2) The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive
realisation of this right.
(3) 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.
[20]
Section 10 of the Constitution reads:
Human dignity
Everyone has inherent dignity and the
right to have their dignity respected and protected.
[21]
Khosa v Minister of Social
Development
2004(6) SA 505
(CC) at para 40
[22]
Khosa
at para 31
[23]
Changing Tides
at
para 53 (extract cited earlier)
[24]
See
Changing Tides
at
paras 53 to 54