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[2016] ZAGPJHC 96
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MEC for Human Settlements & Local Government, Gauteng Province v Madulamoho Housing Association (Pty) Ltd (Association Inc Under Sec 21) and Others (2016/13915) [2016] ZAGPJHC 96 (4 May 2016)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2016/13915
DATE:
04 MAY 2016
In the matter
between:
THE MEC FOR
HUMAN SETTLEMENTS & LOCAL GOVERNMENT,
GAUTENG
PROVINCE
....................................................................................................
APPLICANT
And
MADULAMOHO HOUSING
ASSOCIATION
(PTY) LTD
(ASSOCIATION INC UNDER SEC 21)
(REG NO:
2004/012568/08)
...............................................................................
FIRST
RESPONDENT
THE SHERIFF OF
SOWETO
WEST
.........................................................
SECOND
RESPONDENT
THE CITY OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
..............................................................................................
THIRD
RESPONDENT
THE SOCIAL
HOUSING REGULATORY AUTHORITY
......................
FOURTH
RESPONDENT
MOTHLATHEDI,
VICTORIA M & 88
OTHERS LISTED
IN ANNEXURE “A” TO THE
NOTICE OF
MOTION
........................................................
FIFTH
TO FURTHER RESPONDENTS
J U D G M E N T
TWALA
AJ
[1]
On the 20 April 2016, the Applicant appeared before Keightley J on
urgent basis and was granted an order in the following terms:
A.
Pending
the outcome of the proceedings for final order, the Respondents as
appear on Annexure A hereto be evicted from the property
situate at:-
[J…….] [V……], [S.…..], [1.…..]
And more fully
described as:-
PORTION 3 OF ERF
[2…..] [J……] TOWNSHIP
REGISTRATION
DIVISION, I.Q. GAUTENG
(
hereinafter
referred to as “the property
”).
B.
The
Respondents are to vacate the property by 12H00 on 25 April 2016
C.
In
the event that the Respondents do not vacate the property within that
period, the Sheriff of the Court or his lawfully appointed
Deputy is
authorised and directed to evict the Respondents from the property.
D.
Final
eviction proceedings under section 4 of PIE are to be instituted
within 10 (ten) days of the order of this Court.
E.
Costs
of the application shall be costs in the final eviction application.
[2]
Before me, the Applicant, similarly on urgent basis, brought this
application seeking an order in the following terms:
I.
Dispensing
with the forms, service and the time periods stipulated in the Rules
for the conduct of proceedings in the above Honourable
Court, and
disposing of this application as an urgent application in accordance
with the provisions of Rule 6(12);
II.
That
the order handed down by the Honourable Justice Madam Keightley on 20
April 2016 is suspended until 10 May 2016;
III.
Alternatively,
that the execution of the order granted by the Honourable Justice
Madam Keightley on 20 April 2016 is suspended until
10 May 2016;
IV.
The
Third Respondent is ordered to immediately determine which of the 5
th
to further respondents identified in annexure “KD1” to
the applicant’s notice of motion will be rendered homeless
by
the eviction order granted by the Honourable Justice Madam Keightley
and thereafter provide such homeless persons with emergency
accommodation.
V.
That
the respondents pay the costs of this application only in the event
of this application being opposed.
The
First Responded filed its opposition to this application. Further,
due the urgency of this case, I handed down an order making
prayers
1, 3 and 4 of the notice of motion an order of Court.
[3]
It is common cause that the Fifth to Further Respondents are
occupiers of dwelling units in a Social Housing Scheme in the
abovementioned property owned by the First Respondent. The Fifth to
Further Respondents signed lease agreements with the First Respondent
but have since failed to perform in terms of the lease agreement in
that they have not paid the rental amounts as agreed or at
all. It is
alleged by the First Respondent that the Fifth to Further Respondents
have started a rent boycott – hence the
approach to Court for
an eviction order, which order was granted on the 20 April 2016.
[4]
The First Respondent raised the issue that the Applicant does not
have
locu standi
to bring this application. However, this was not pursued in argument.
Further, Counsel for the Applicant submitted that, it is
his
instruction that the Third Respondent joins issue with the Applicant
in this case.
I find it most
convenient to list all the sections of the Constitution of the
Republic of South Africa, 1996 which are relevant
for the
determination of this case.
[5] Section 10 of the Constitution provides the following:
“
Everyone
has inherent dignity and the right to have their dignity respected
and protected.”
[6]
Section 25 (1) of the Constitution provides as follows:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property”.
[7] Section 26 of the Constitution provides as
follows:
“
26.
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 the court made after considering all
the relevant
circumstances. No legislation may permit arbitrary evictions”.
[8] Section 36 of the Constitution provides as follows:
“
Limitation
of rights
(1)
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including-
a)
The
nature of the right;
b)
The
importance of the purpose of the limitation;
c)
The
nature and extent of the limitation;
d)
The
relation between the limitation and its purpose; and
e)
Less
restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.
[9] Section 38 of the Constitution provides as
follows:
“
Enforcement of Rights
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are:
a)
Anyone
acting in their own interest;
b)
Anyone
acting on behalf of another person who cannot act in their own name;
c)
Anyone
acting as a member of, or in the interest of , a group or class of
persons;
d)
Anyone
acting in the public interest; and
e)
An
association acting in the interest of its members.
[10]
The applicant is the Member of the Executive and Political Head of
the Department of Human Settlement in the Province of Gauteng.
It is
amongst others, his responsibility to provide adequate housing in
terms of section 26(1) and (2) of the Constitution. It
is my view
therefore, that the applicant has an interest in this matter since it
falls within his functions as the political head
for human
settlements in the Gauteng Province.
[11]
Counsel for the applicant contends that the applicant was not joined
in the proceedings which culminated in the order of Keightley
J
referred to above. The local municipality was also not joined in the
proceedings as required by the PIE Act.
[12]
The applicant does not want to involve itself in the issues between
the parties but seeks an opportunity that, since the execution
of the
order may render some of the evictees homeless, the Third Respondent
investigate as to how many people or evictees may be
rendered
homeless as a result of the immediate execution of the order. There
are children whose schooling may be affected by the
execution of the
order and that as well need to be assessed by the Third Respond. The
extension of time requested by the applicant
is not unreasonable
having regard to the issues raised above.
[13]
Counsel for the First Respondent contends that the issues which the
applicant wants investigated by the Third Respondent were
ventilated
fully before Keightley J and her Ladyship’s decision was made
after having considered all these issues. The Applicant
is bringing
an appeal against the order of Keightley J through the back door. The
Fifth to Further Respondents are rent boycotters
and not the poorest
of the poor. Section 26 of the Constitution refers to the poorest of
the poor and therefore do not apply to
the case of the Fifth to
Further Respondents.
[14]
It is further contended on behalf of the First Respondent that there
is no basis for the apprehension that the immediate execution
of the
order of Keightley J will render the evictees homeless. Some of the
evictees have already regularised their situation with
the First
Respondent. The rights of the evictees and that of their children are
also limited in terms of section 36 of the Constitution
as against
the rights of the First Respondent as provided for in section 25 of
the Constitution. The proceedings before Keightley
J were brought in
terms of section 5 (1) of the PIE Act and there was no need to give
notice to the local municipality.
[15]
I disagree with the First Respondent that this application is
tantamount to bringing an appeal against the decision of Keightley
J. The order by Keightley J is appealable because, although it
is interim in nature, it becomes final on execution. Once
evicted, it is done and there is no going back. However, the
Applicant is not appealing the order but seeks an extension of time
in the execution thereof.
[13]
Having established the
locu
standi
of the Applicant in these proceedings, the questions that need to be
addressed in this case, are:
·
whether
the request to suspend the execution of the order until 10 May
2016 is just and equitable;
·
whether
the prejudice, if any, to be suffered by the First Respond is the
same as that will be suffered by the fifth to further
respondents if
the suspension of the execution of the order is granted.
[14]
As mentioned above, there are children whose rights to education may
be adversely affected by the immediate execution of the
order. The
evictees enjoy the right to human dignity which is enshrined in the
Constitution. If the order is immediately executed
and they have no
else to go, their human dignity will be infringed and the local
municipality will be pressurised to provide emergency
accommodation
to the evectees. In my view, the Applicant is justified in its
request for the suspension of the execution of the
order. The period
of suspension of the execution of the order is reasonable since it is
until to 10 May 2016, which is only thirteen
(13) days.
[15]
With regard to the second question, the First Respondent contended
that most of the affected evictees have already regularised
their
situation with the First Respondent. It is for the same
reason that the Applicant would want the Third Respondent
to
investigate and ascertain as to how many of the evictees need help
and assist them. It is the Constitutional duty of the Applicant
and
local municipality, the Third Respondent, to assist and provide
accommodation to the few evictees that have not regularise
their
situation with the First Respondent. The prejudice to be suffered by
the evictees and their school going children in their
right to human
dignity and right to education weighs way above the pecuniary loss to
be suffered by the First Respondent in a period
of thirteen (13)
days.
[16] Section 26 of the Constitution does not make provision for a
particular category of persons. It starts by saying “
Everyone.
. . . .”
which includes the Fifth to Further Respondents in
this case. Therefore the contention that section 26 of the
Constitution provides
only for the poorest of the poor and not for
people like the Fifth to Further Respondents falls to be dismissed.
[17]
It is my view therefore, that it would be just and equitable for
this Court to grant the Applicant the order suspending the
execution
of the order dated 20 April 2016 until 10 May 2016.
[18] In the circumstances, I make the following order:
I.
That
the forms, service and the time period stipulated in the Rules for
the conduct of proceedings in this Court are dispensed with.
II.
The
execution of the order granted on the 20 April 2016 is suspended
until 10 May 2016;
III.
The
Third Respondent is ordered to immediately determine which of the
Fifth to Further Respondents identified in annexure “KD1”
to the applicant’s notice of motion will be rendered homeless
by the eviction order granted by Honourable Justice Madam Keightley
and thereafter provide such homeless persons with emergency
accommodation.
TWALA
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Plaintiff:
Adv.
M DEWRANCE
Instructed by:
MALEBYE
MOTAUNG MTEMBU INC
TEL:
011262 5075
Counsel
for the Defendants:
Adv.
PULLINGER
Instructed
by:
VERMAAK
& PARTNERS INC
TEL:
011447 3690
Date of
Hearing:
25 APRIL 2016
Date
of Judgment:
04
MAY 2016