Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue and Another [2010] ZAGPJHC 3 (4 February 2010)

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[2010] ZAGPJHC 3
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Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue and Another [2010] ZAGPJHC 3 (4 February 2010)

IN
THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 2006/11442
In
the matter between:
BLUE
MOONLIGHT PROPERTIES 39 (PTY) LIMITED
Applicant
and
THE
OCCUPIERS OF SARATOGA AVENUE
First
Respondent
THE
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Second
Respondent
REASONS
FOR JUDGMENT
SPILG
J
NATURE
OF APPLICATION
1.
The Applicant, which is a private landowner, seeks the eviction of
those occupying its property. It launched proceedings in May
2006
after furnishing two earlier notices to vacate. The occupants claim
protection from eviction under the Prevention of illegal
Eviction
from Unlawful Occupation of Land Act 19 of 1998 ("PIE")
until such time as the City of Johannesburg Metropolitan
Municipality
(
"the
City")
has
provided them with adequate temporary accommodation.
2.
The occupiers joined the City to the proceedings in October 2007.
Moreover, the occupiers brought a counter-application to stay
the
eviction proceedings until the outcome of certain declaratory relief
regarding the City's constitutional and statutory obligations
to make
provision for temporary emergency shelter and to have access to
adequate housing on a progressive basis. If further sought
an order
requiring the City to deliver a report on the steps it has taken and
intends to fake to comply with its constitutional
and statutory
obligations with regard to providing the occupants with alternate
accommodation on a temporary basis and thereafter
to give them access
to adequate housing on a progressive basis.
3.
The City's response was to dispute that it had any constitutional or
statutory obligation to provide any form of accommodation
to those
evicted from privately owned land. This prompted the occupiers to
amend the relief sought against the City by adding an
order declaring
that the City's policy to exclude them from consideration on the
grounds of occupying privately owned land was
unfairly discriminatory
and arbitrary and hence unconstitutional.
4.
The City filed a report regarding its policy and programmes in regard
to present and future accommodation which, by court order,
was
regarded as inadequate and prompted a second report that was
eventually presented under pain of contempt proceedings. In effect,

the City claims it does not provide accommodation to indigent persons
who face eviction from privately owned land, that if effectively
has
confined even its emergency and temporary accommodation planning to
those threatened with eviction from Government land, that
if does not
have the financial resources to make provision for persons in the
position of the First Respondent occupiers and that
in any event
Provincial Government is unable to provide additional funds to it.
5.
The landowner then introduced a new notice of motion seeking
alternative forms of relief directly against the City, including
an
order that it pays an amount equivalent to the fair and reasonable
monthly rental for the premises should an eviction order
not be
granted.
6.
In my view, the facts of this case require the Court to confront the
issue of whether private landowners are obliged to indefinitely

provide housing for occupants who fall within the definition of an
"unlawful
occupier"
in
terms of Section 4 as read with the Section 1 definitions of PIE, and
who are unable to afford basic accommodation, or whether
this
obligation falls on the shoulders of the City.
7.
The issues involve a consideration principally of Sections 25 and 26
of the Constitution and of the latter's implementation under
PIE as
well as the reach of the equality provisions of Section 9. The
outcome, as appears later, raises further issues regarding
both the
extent to which a Court can fashion an order and whether it would
interfere with the
"doctrine"
of
separation of powers.
8.
There have also been a number of interlocutory applications and
procedural matters that required resolution. They raise a number
of
material issues, including whether a local sphere of government
should, as a matter of course, be entitled to join any other
sphere
of government when faced with the prospect of either an order to
provide accommodation or pay constitutional damages.
SUMMARY
OF ESSENTIAL FACTS
9.
The papers filed exceed 1200 pages. However, the essential details of
the case may be readily stilled. I do so in the following
paragraphs.
10.
The Applicant is Blue Moonlight Properties 39 (Pty) Limited
("Blue
Moonlight"). It
is the registered owner of commercial property in Saratoga Avenue,
which is located in the Johannesburg Central Business District.
11.
The buildings on the property consist of a factory, garages and
offices. However, for a considerable period of time the property
has
been occupied as a dwelling.
12.
Until 1999, the property had been used for commercial purposes. Many
of the occupiers had been employed there and were allowed
to live on
the property provided they paid rent. However, in 1999, the company
owning the property ceased trading and from then
until 2005, various
persons came to collect rent from the occupiers on a basis that they
represented the owners, in the interim,
the living conditions had
deteriorated to such an extent that the occupiers lodged two separate
sets of complaints with the Rental
Housing Tribunal. They also
effected some repairs to the property at their own expense. The
rental they had paid varied between
R 150,00 to R700,00 per month.
13.
At the time the application was brought, there were 62 adults and 9
children living on the property, most of whom had lived
there for
more than two years. However, all the occupiers had been living there
for more than six months. The case made out is
that the occupiers of
the property are poor with an average household income of R790,00 per
month. The household income ranges
from R 180,00 per month to R2
500,00 per month, whilst many occupiers have no income at all. Very
few of the occupiers have full
time employment. Most are engaged in
the informal sector, either hawking or obtaining casual unskilled
piecework. Such limited
work opportunities as they have depend on
their being within the inner city precinct.
14.
The occupiers claim that the cheapest private rental accommodation
available in the inner city costs approximateiy R850,00 per
month for
a single room with cooking facilities and a bath. If excludes water
and electricity. This was determined pursuant to
a study conducted by
the Centre on Housing Rights and Evictions
["COHRE").
COHRE
is an international non-governmental research and advocacy
organisation dedicated to expanding access to adequate housing
and
protection from arbitrary evictions for individuals and communities
around the world. The rental excluded water and electricity
which,
for a family of four, would increase the total minimum cost to R1
000, 00 per month. It was contended, through COHRE's
acting
executive director Jean Du Plessis, that only a household with an
income of about R3 200,00 per month could afford to stay
in such a
room and then probably in overcrowded conditions.
15.
COHRE also established that transitional housing in the form of a
single room with communal ablutions and cooking facilities
on a
non-renewable 18 month lease under a subsidised housing scheme cost
between R200,00 to R450,00 per month. Communal rental
housing would
cost between R300,00 to R800,00 per month, whilst social housing
comprising a single room with shared cooking and
ablutions would cost
between R452,00 to R600,00 per month. COHRE's analysis also revealed
that the unmet demand for affordable
accommodation in the inner city
for families earning under R3 200,00 per month remained at around 18
000 households. There was
effectively no private rental housing
available within the CBD for the households earning an income of R3
200,00 per month or less.
16.
The occupiers claimed that if evicted, they would be rendered
homeless and without any shelter in the short term. They were
also
unaware of any alternative accommodation that would be both lawful
and affordable to them. They accepted that the property
was in poor
condition with no basic amenities, it nonetheless affords them "...
protection
from the elements and the dangers of the streets and allows us a
measure of privacy and dignity".
17.
Each of the individual occupiers or household heads set out their
personal circumstances, effectively confirming their indigent
status
and the disastrous consequences to either themselves or their ability
to support their families if evicted.
18.
Subsequently in April 2008 the Wits Law Clinic, which represents the
First Respondent, undertook a survey of occupiers which
revealed that
there were 86 persons occupying the property comprising of 53 men, 28
women and 5 children. Of that number, 2 were
pensioners and the
average monthly income was R940,00. Moreover, there was a degree of
fluidity of occupants although just under
half had in fact been in
occupation prior to 2005 when notice to vacate was first given and no
rentals were being collected. The
highest individual income was R2
200,00 whilst 18 individuals over the age of 22 earned no income and
another 20 over that age
earned R1 000,00 or less per month. There
are also a number of households headed by women. The City has not
seriously challenged
the indigent status of the occupants but claims
that the survey is unsupported by direct affidavit evidence.
19.
If is common cause that the occupation of the property by each of
them is unlawful. Indeed, the rights they claim are dependent
on
their enjoying such status (see section 4 of PIE). The occupiers have
over time erected internal structures and effected other
alterations.
20.
The Applicant acquired the property for redevelopment which was to
involve, as a first step, the demolition of the existing
structures.
To do so, the Applicant needed to lawfully evict the occupiers.
21.
The Applicant brought eviction proceedings against the occupiers and
compiled with the notice requirements of PIE. The Applicant
launched
its application in 2006. Aside from relying on its rights as
registered owner of the property, it also relied on a warning
notice
issued by the City of Johannesburg concerning the dangerous state of
the building, which amounted to an offence under the
Emergency
Services Bylaws,
2003
(promulgated under section 16 of the
Fire
Brigade Services Act,
Act
99 of 1987) and the inability to remedy the situation.
22.
The occupiers admitted that their occupation was unlawful but
contended that they could not be ejected from the property until
the
City had provided them with alternative accommodation. They relied on
their occupation of the property for a period in excess
of six months
and the fact that they were desperately poor.
23.
In order to secure the rights they claimed, the occupiers brought an
application to join the City in the proceedings. In addition,
they
sought an order compelling the City to provide them with temporary
shelter from the date of their eviction until such time
as the City
was able to provide them with adequate and more permanent housing.
They also sought an order that the City report to
the Court on its
ability to provide temporary adequate shelter and also adequate
housing on a progressive basis.
24.
The occupiers relied on three genera! grounds to support the
relief they sought:
24.1.
A constitutional right to adequate housing under section 26(1) and
(2) of the Constitution of the Republic of South Africa,
Act 108 of
1996 supported by other Chapter 2 rights including those to dignity,
equality, security of person and the rights of
children to basic
shelter and protection against degradation.
24.2.
Housing legislation. The First Respondent relied on the provisions of
the National
Housing Act 107 of 1997
relating to access to adequate
housing on a progressive basis and the implementation of necessary
programs to secure that end.
Reliance was also placed on Chapter 12
of the National Housing Code, which deals with Emergency Housing
Policy to provide temporary
shelter for those who qualify for
assistance as an initial step towards a permanent housing solution.
24.3.
PIE. The First Respondent relied on PIE in order to compel the City
to file a report on the relief that it can provide to
unlawful
occupiers facing eviction in a manner that complies with the City's
constitutional and statutory obligations.
25.
The City was joined as a party to the proceeding in October 2007. In
February 2008 the City sought a postponement of the application
on a
number of grounds, including the desirability of awaiting the outcome
of the Constitutional Court decision pursuant to the
decision in
City
of Johannesburg v Rand Properties (Pty) Ltd and Others
2007 (6) SA
417
(SCA).
On
19 February 2008 the Constitutional Court gave its decision. See
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and others
[2008] ZACC 1
;
2008 (3) SA 208
(CC).
26.
Subsequent to the Constitutional Court decision and in March 2008,
the City filed its first report concerning the City's current
and
future ability to provide housing.
27.
The First Respondent took issue with the contents of the Report. This
was met with a challenge to the appropriateness of the
October 2007
order joining the City as a party. Masipa J dismissed the joinder
challenge and upheld the First Respondent's argument
regarding the
inadequacy of the City's Housing Report. See
Blue
Moonlight Properties 39 (Pty) Ltd v Occupiers Saratoga Avenue and
Another 2009
(
1
)
SA 470 (W).
The
learned Judge expressed herself as follows in paragraph [69]:
In
the present case the report has not attempted to even remotely deal
with the present eviction application and its implication
as well as
how or when it would be in a position
to
assist.
A statement such as,
The
City
cannot
for the time being
make any of its emergency shelters available for any persons evicted
from property by way of PIE", is vague in the extreme
and not
helpful at all. It is clear that the City is trying to distance
itself from the problems of the unlawful occupiers in this
matter.
This indeed is at odds with the Constitution
and is t
antamount
to failure by the City to comply with its constitutional
obligations."
28.
I will refer to this passage later in relation to the conduct of the
City and its subsequent failure to either appreciate or
comply with
its socio-economic obligations under the Constitution in respect of
people living within its area, when by its own
showing it claims to
have budgeted for a large surplus in the relevant fiscal year and is
able to locate and access emergency or
temporary accommodation at
short notice when exigencies arise.
29.
Masipa J ordered the City to report to the Court on the "...
steps it
has
taken and in future can take to provide emergency shelter or other
housing for the First Respondents in the event of their eviction
as
prayed".
The
learned Judge allowed the other parties to file affidavits in
response to the Report.
30.
In January 2009 Blue Moonlight brought contempt proceedings against
the City and its officials by reason of their failure to
provide the
Report ordered by Masipa J. The application was supported by the
First Respondent and opposed by the City.
31.
However, on 12 February 2009, the City filed a report effectively
without prejudice to its rights to appeal the decision of
Masipa J.
32.
In summary, the City's Report;
32.1.
indicated that, despite the number of housing units constructed from
2007 to 2009 and the current number of available temporary

accommodation as well as that planned in the CBD, there are not less
than 160 000 inhabitants on the Provincial Department's official

waiting list for housing.
32.2.
stated that the Gauteng Province had refused the City's request to
provide an allocation of funds under section 12 of the
National!
Housing Program
(Emergency
Housing). The reason given was a lack of funds.
32.3.
submitted that the City merely implements provincial and national
housing policy but has no obligation to finance it. While
accepting
that it is a local government which forms part of the State, it
contends that its "...
constitutionally
mandated role is passive in respect of housing delivery, in the sense
that it does not itself dictate policy or
provide funding".
I
have cited this extract from the Report since it forms an integral
part of the City's argument both substantively and in respect
of its
belated application to join the Provincial Government as a party to
the proceedings.
32.4.
categorically stated that"...
the
City's budget does not provide for the financing of the acquisition
of housing for occupiers of private land elsewhere within
its
jurisdiction".
It
did not claim to have insufficient funds to provide accommodation for
occupiers of state owned land.
32.5.
proceeded to explain that the City "...focuses
without
being obliged to do so
from
its own resources and within its financial constraints,
on the provision of shelter to occupiers of dangerous buildings, who
qualify as being desperately poor and who find themselves
in a true
crisis situation"
(my
emphasis). A "d
angerous
building"
is
identified as one that is in such a state of disrepair as to pose a
fire hazard or disease threat to its occupants or is for
some other
reason totally unfit for residential occupation.
33.
Both Blue Moonlight and the First Respondent delivered their
commentaries in response to the Report.
34.
Aside from repeating its common law rights to undisturbed use and
occupation of its property, Blue Moonlight contended that
the
occupiers were in premises that constituted a "
dangerous
building"
under
the City's own by-laws and therefore rendered those in occupation in
breach of such laws. The owner contended that if this
is what is
necessary to secure evictions then the City should allocate the
necessary emergency facilities.
35.
The occupiers relied on the City's deliberate decision to exclude
from its relief programs unlawful occupiers of privately owned
land
facing eviction under PIE, even though their plight may be similar to
or worse than those occupying state-owned land (in the
broad sense).
36.
The occupiers then brought a substantive application :
36.1.
To declare the City's housing policy, to exclude from consideration
occupiers of privately owned land as opposed to state-owned
land, as
unconstitutional on grounds of unfair discrimination and
arbitrariness;
36.2.
To order the City to rectify its housing policy and report back to
Court;
36.3.
To interdict Blue Moonlight from evicting the occupiers until
suitable alternative accommodation is procured by the City or
becomes
available to it.
37.
The City then filed a response to the First Respondent's application.
It also contended that the occupiers were obliged to join
the
Provincial Government if they wished to pursue their constitutional
challenge by reason of the provisions of Rules 10A and
16A of the
Rules of Court. The occupiers disputed that their challenge was to
the constitutional validity of a law, but rather
to the City's
housing policy and contended that the City had only engaged the
Provincial Government in April 2009, some 3 years
after being made
aware of the occupiers' predicament. They nonetheless sought a
postponement of the main eviction application in
order to join the
Provincial MEC. The City was agreeable to this course. Blue Moonlight
was not.
38.
In the meantime, and on 3 June 2009, Blue Moonlight delivered what it
termed a "fresh" notice of motion. The notice
comprised a
document setting out the various orders that were sought. There was
no supporting affidavit or documentation. The notice
sought a series
of progressively muted forms of relief. First prize was an order
seeking the immediate and unconditional eviction
of the occupiers.
Alternatively it sought an eviction order coupled with an order
requiring the City to house the occupiers on
an emergency basis. A
more watered-down order was proposed in the alternative, namely,
"interim
relief that would have the effect of displacing ... some of the
burden that it as a private entity, has no obligation
to
bear".
This alternative order included an order for monetary compensation
against the City. It was the first time that Blue
Moonlight sought
relief directly against the City.
39.
In response, the City brought an application under Rule 30 and Rule
30A to strike out Blue Moonlight's
"fresh
application"
on
the grounds that it was an irregular step. One of the grounds was
that there was no
lis
between
itself and the Applicant. The City also complained that if had not
been afforded an opportunity to deal with the new forms
of relief
sought.
40.
Accordingly, by the time the matter was to be heard on 17 June 2009,
there were a number of interlocutory applications. I
have already
mentioned the occupiers' application to join the Provincial MEC or
other relevant executive officers of the Provincial
Government which
was in response to the City's motion for a mis-joinder under Rule 10A
against them (in respect of their application
for declaratory and
interdictory relief against the City). The City also contended that
there had been a failure to give notice
to the Registrar under Rule
16A that a constitutional issue was being raised. There was also the
strike-out application mentioned
in the previous paragraph.
41.
However, both the City and the occupiers were of the view that the
matter was not ripe for hearing. Blue Moonlight contended
otherwise
and insisted that the matter be argued.
42.
The matter proceeded before me on 17 June 2009 with an application by
the First Respondent for a postponement to join the provincial

government. This was supported by the City. During the course of
argument, the First Respondent withdrew its application and the
City
persisted with its contentions. I also dealt with the issue regarding
the applicant's new notice of motion of 3 June 2009.
43.
On 18 June 2009 I refused a postponement for the joinder of the
Gauteng Provincial Government. I granted an application to amend
the
Applicant's notice of motion dated 3 June 2009. By agreement I
directed that the applications and counter-applications be
consolidated, that there is a
lis
as
between each of the parties and that the second respondent could file
answering affidavits to Blue Moonlight's application with
the right
of reply by both the Applicant and the First Respondent. Costs were
reserved.
44.
The issue regarding whether or not a
lis
existed
between the parties was resolved by agreement that without the
necessity of a formal joinder and having regard to the Court's
power
to
mero
motu
direct
joinder there would be a
lis
between
each of the parties.
45.
The application was then postponed until 22 July 2009 to hear
argument on the merits of the main applications before me.
46.
I now deal with the reasons for refusing the postponement in order to
join the Gauteng Provincial Government and why I considered
that the
issue of a lis
between
the applicant and the City was readily resoluble without the need for
formal affidavits.
REFUSAL
OF POSTPONEMENT IN ORDER TO JOIN PROVINCIAL GOVERNMENT
47.
It is considered axiomatic that anyone with a direct and substantial
interest in the outcome of proceedings or who may be prejudicially

affected by a court order must be joined. See
Amalgamated
Engineering Union v Minister of Labour
1949
(3)
SA 637
(A) at 659; Transvaal Agricultural Union v Minister of
Agriculture and Constitutional Affairs
2005 (4) SA 212
(SCA) at para
[64]
and
generally
Rosebank
Mail (Pty) Ltd v Cradock Heights (Pty) Ltd 2004 [2] SA 353 (W).
48.
By contrast, the failure to join a party raises issues of prejudice
to that party should the Court make an order affecting its
interests.
In the present case, the Gauteng Provincial Government showed no
interest in becoming a party to the proceedings despite
being aware
of the issues. Indeed, the contempt proceedings referred to earlier
were also directed at the MEC Housing for Gauteng,
and the National
Minister of Provincial and Local Government to ensure that the
provisions of Masipa J's order, directing that
a proper report be
filed, was implemented on behalf of the City. Both delivered notice
of intention to oppose the application.
Prima
facie
they
would have taken an informed decision either that the issue was to be
dealt with by the City without the involvement of their
spheres of
Government or else that they supported the City's position (i.e. that
the City ought not to have been joined in the
proceedings or that
Masipa J's decision to require a further report was incorrect).
49.
Accordingly, a joinder of the Gauteng Provincial Government had to be
considered against the prospect of it challenging each
of the steps
taken up until then despite the lapse of 3 years since the original
motion proceedings were launched.
50.
Moreover, the City had belatedly sought to engage the Provincial
Government in obtaining funds to find alternate accommodation
for the
First Respondent occupiers. The City confirmed that on 12 December
2008, the Head of the Provincial Housing Department,
Ms B Monama, had
received a full set of the papers filed of record. Despite advising
her on 23 January 2009 that the City could
not provide emergency
accommodation and had to rely on the provisions of Chapter 12 of the
National Housing Code, there had been
no response from the Provincial
Government. At no stage did the Provincial Government seek to be
joined in the proceedings.
51.
The City however sought to justify the joinder of the Gauteng
Provincial Administration on the following grounds:
(a)
The Provincial Government should have been joined because the First
Respondent had challenged the constitutional validity of
a law (Rule
10A);
(b)
The Provincial Government plays a crucial role in respect of securing
emergency housing under Chapter 12 of the National Housing
Code
whilst the City had discharged its obligations under that Chapter,
(i.e. by seeking assistance from Provincial Government
which had
declined on the grounds that if was unable to provide any funds for
housing assistance either in respect of the First
Respondent
occupiers or occupiers of a number of other properties within the
inner City).
52.
The City furnished its application to the Gauteng Department of
Housing with a caveat that any statements contained in the document

should not be construed as an admission of any of the facts in issue
as it had been compiled without reference to the City's legal

representatives or necessarily an awareness of the issues before the
Court.
53.
The document reveals that the City regarded the position of the
occupiers as constituting an emergency situation that could
not be
addressed by any of the other programmes contained in the Housing
Code. If specifically identified eight buildings, including
the
building in issue, whose occupants were under threat of eviction and
who would be homeless if evicted because they were poor.
The
emergency identified by the City was that residents needed to be
relocated to alternative accommodation by reason of imminent

evictions from unsafe buildings and conditions.
54.
The City indicated in its application for funding that it was
currently investigating the acquisition of warehouses in and around

the Inner City for conversion into temporary accommodation. These
buildings were privately owned and would have to be purchased.
Some
R5 million was requested for the acquisition of these buildings. A
further R30 million was requested in order to convert these
buildings
into temporary accommodation with wafer and sanitation facilities and
some degree of internal partitioning in terms of
health and safety
standards. In addition, relocation charges, professional fees and
operating costs of some R15,4 million were
also requested, resulting
in a total budget for the project of some R50,4 million.
55.
The Provincial Government replied that it had thoroughly considered
and applied its mind to the City's application for a subsidy
and
indicated to the City of Provincial Government Departments' need to
"...
identify
efficiency gains and curbing of unnecessary expenditure".
If
advised that the Department had committed all its budgetary and
financial resources from a contractual point of view, did not
have
any funding available for emergency accommodation and could not
accede to the City's request, but should it receive a cash
injection
during the course of the financial year, then the situation could be
reconsidered. The last communication from the Provincial
Government
was on 5 June 2009.
56.
Accordingly, over a period of some two months there was effectively
only a discussion with a formal application for funding
and two
letters in reply stating the same thing.
57.
If will also be recalled that the City disavowed any positive
obligation to provide funding and perceived its position as a
passive
player.
58.
It is perhaps appropriate therefore that the City be reminded of the
decisions of both the Constitutional Court and the SCA
which
unequivocally rendered Local Government directly responsible for
implementing the constitutional and statutory obligations
regarding
the provision of adequate housing on a progressive basis and to take
active steps to provide accommodation for the most
desperate by
reference not only to the socio-economic rights identified in the
Constitution and in housing legislation, but also
by reference to the
entrenched rights to dignity under Section 10 of the Constitution.
I do so in the following paragraphs.
59.
In both
Government
of the Republic of South Africa and Others v Grootboom and Others
2001
(
1)
SA 46
(CC) at paras [44] and
[82-83]
and
Port
Elizabeth Municipality v Various Occupiers 2005
(
1)
SA 217
(CC) at paras [29] and [39]
the
Court confirmed that the State, including municipalities are obliged
to ensure the provision of services to communities in a
sustainable
manner, and when providing services to residents the State is
fulfilling its statutory and constitutional obligations
to take
reasonable measures to provide adequate housing.
60.
The terms of section 152(1)(b) read with (d) of the Constitution
require a Local Government to ensure the provision of services
to
communities in a sustainable manner and to promote a safe and healthy
environment. Moreover Local Government, which consists
of
municipalities, has a primary responsibility to give priority to the
basic needs of the community. Section 153, under the heading
"Developmental
Duties of Municipalities"
reads
as follows:
"A
municipality
must -
(a)
structure
and manage its administration and
budgeting
and planning processes to give priority to the basic needs of the
community,
and
to promote the social and economic development of the community' and
(b)
participate
in national and provincial development programmes."
[my
emphasis]
61.
In
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd and related matter
2004 (6j SA 40
(SCA),
Harms
JA at para [35] pertinently referred to a municipality having a
positive duty to act in eviction matters where the provisions
of P!E
applied and placed reliance on
Grootboom
at
para [87]. Although the Constitutional Court on appeal in
Modderklip
determined
the issue by reference to the State's failure to satisfy the
requirements of the rule of law and fulfil the section 34
rights to
which the landowner was entitled (by reason of its inability to eject
occupiers despite obtaining an eviction order from
a competent
court), Langa ACJ (at the time) responded to the Municipality's
argument that if was not obliged to involve itself
or to cooperate
with the land owner in searching for solutions to the latter's
inability to effect an eviction order.
(President
of the Republic of South Africa and Another v Modderklip Boerdery
(Pty) Ltd [Agri SA and Others, amici curiae)
2005 (5) SA
3
(CC).
At
para
32,
the
then Acting Chief Justice reminded the Local Authority that:
"Section
4 (of PIE) requires that the Municipality be informed of any action
for eviction being undertaking by a property owner.
Section 6(1) of
the Act provides for the institution of eviction proceedings by a
municipality against an unlawful occupier from
privately owned land
which falls within the jurisdiction of such municipality."
62.
The
City had also been reminded by Masipa J in her judgment earlier in
this case that both under section 26 of the Constitution
and under
the
Housing Act (section
9(1)), Local Government had positive
obligations to ensure that those' within its jurisdiction had access
to adequate housing on
a progressive basis. See
Blue
Moonlight
supra
at paras 23 and 30-31. See also L
ingwood
and Another v The Unlawful Occupiers of Erf 9 Highlands 2008 (3) SA
BCLR 325 (W) at para 24
and
Sailing
Queen
I
nvestments
v The Occupants of La Colleen Court
2008 (6) BCLR 666
(W) at paras 6
and 10
.
63.
In two of the most recent cases, both the Constitutional Court and
the SCA stressed the Municipality's constitutional obligations
that
if is obliged to discharge in favour of those facing eviction under
PIE and it "...
should
therefore not be open to it to choose not to be involved".
(See
The
Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat,
Pietermaritzburg v Daisy Dear investments (Pty) Ltd and others (SCA),

case no. 245/08 at paras 13-14).
64.
In
Joe
Slovo Community
Ngcobo
J (at that time] at paras 209 and 210 reaffirmed the import of
Port
Elizabeth Municipality
and
Grootboom
that
the Local Authority has constitutional obligations to take reasonable
measures to provide adequate housing. See also Yacoob
J at para 75,
in dealing with the object of Local Government under section 152(1)
of the Constitution and section 73(1)(c) of the
Local Government :
Municipal Systems Act, No. 32 of 2000.
65.
Sachs J in
Joe
Slovo Community
at
para [348] stated the following:
"The
Constitution
deals
expressly
with the duties of Councils towards disadvantaged sections of our
society. It states that the objects of Local Government
include
ensuring "the provision of services to communities in a
sustainable manner" and "promot[ing] social and
economic
development", and that
a
municipality
must
"structure
and manage its administration and budgeting and planning processes to
give priority to the basic needs of the community,
and to promote the
social and economic development of the community."
Later
at para [350] Sachs J referred to
section 2(1)
of the
Housing Act
which
"... requires all spheres of Government to "give
priority
to the needs of the poor in respect of housing development".
Municipalities
are then given the following specific functions: (which the learned
Justice then enumerates) being those contained
in
section 9(1).
In
summary,
section 9(1)
, in peremptory language, states that every
Municipality must take all reasonable and necessary steps within the
framework of national
and provincial housing legislation and policy
to ensure that the inhabitants of its area of jurisdiction have
access to adequate
housing on a progressive basis and to properly
plan in an informed way and implement programs directed at housing
development which
are financially and socially viable as well as
promote the resolution of conflicts arising in the housing
development process.
66.
In
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
(SCA)
case no 335/08, Nugent JA went into detail with regard to which
sphere of local, provincial and national government is concerned
with
the regulation of the use of land within a municipal area. Of
relevance for the purpose of this case is the manner in which
Nugent
JA dealt with the inter-relationship between the various spheres of
government. At para [28] the learned Judge dealt with
the general
proposition with regard to the functions of government, identified in
section 156(1)
, with regard to a municipality's executive authority
in respect of and right to administer local government matters listed
in Part
B of Schedule 4 and Part B of Schedule 5 and any other
matters assigned to it by national and provincial legislation. The
Court
said:
"It
will be apparent, then, that while national and provincial government
may legislate in respect of the functional areas
in schedule 4,
including those in part
B
of
that
schedule, the executive authority over, and
administration
of,
those
functional
areas
is
constitutionally reserved to municipalities".
67.
Later
at paragraph [38] the Court concluded that it "...
cannot
accept that the Constitution was framed
so
as
to
confine the powers of a municipality to conceiving and preparing
plans in the abstract, with no power to implement them.
...
I fail
to
see what purpose would be
served
by
reserving
power to Local Government merely to
assist
or participate in the
exercise
of powers by another tear of Government".
68.
I therefore conclude that the principal point taken by the City in
relation to the necessity to join the Provincial Government
as a
necessary party, because the City has no greater obligation than to
seek financial assistance from the Provincial Government
and is
confined to the role of a passive bystander, is wrong. By now, the
City should have fully appreciated that if is most directly
involved
and has the most direct and immediate control over housing and
housing policy within its boundaries and in particular
in relation to
the attainment of the core rights under section 26 of the
Constitution as read with the National
Housing Act and
the provisions
of PIE.
69.
Secondly, the constitutional challenge, as
Mr
Kennedy
points
out, is not directed at the validity of any law but to the
discriminatory and arbitrary
policy
adopted
by the City to exclude destitute occupiers who are subject to
eviction from privately owned land.
70.
There is a further matter that was not directly raised by
Mr
Both
on
behalf of the City. It however weighed with me in considering the
issue of joinder and was raised in the course of argument;
namely the
impact of section 41 of the Constitution in respect of the
desirability of joining another organ of State in order to
either
clarify or resolve issues between them.
71.
The effect of a joinder in the present case, although not expressly
articulated, would involve a court of law determining whether
and to
what extent the Provincial Government was able to allocate funds and
the relative obligations and duties as between these
two spheres of
Government in relation to their respective constitutional obligations
under section 26 of the Constitution.
72.
Prejudice is a consideration where a party whose rights may be
potentially prejudiced has not been joined. However, the question
of
prejudice to a claimant if a party sued seeks to join another does
not appear to be a consideration that has weighed with the
courts.
73.
This is readily understandable since it is in the interests of both
the court and the parties before if that there not be a
multiplicity
of actions and consequent court hearings in respect of the same
subject matter. Moreover, a joinder assumes that a
competent cause of
action exists against the party sought to be joined.
74.
The usual situations where a joinder will not be ordered are where
the court is satisfied that a person has waived his or her
right to
be joined and in the case of joint wrongdoers, the claimant is not
obliged to join all other wrongdoers although that
is desirable
[Sasfin
(Pty) Ltd
v
Jessop
1997
(
1)
SA 675
(W) at 682).
Similarly
a claimant need not join all those who are jointly and severally
liable to each other in the same action, but is entitled
to select
any one of them to the extent that a principal debtor need not be
joined even though the surety who is sued may contest
the principal
debt. See
Parekh
v Shah Jehan Cinema
1982 (3) SA 618
(D)
[compare
[1998] 4 All SA 334
(W) at 345).
75.
The history of the matter reveals that the Applicant brought its
application in October 2006. The application for joinder
was
brought some three years later, effectively on the basis that there
has been no headway with Provincial Government after a
few
discussions and one or two letters.
76.
It is necessary to distinguish the usual situation of a person sought
to be joined in conventional litigation where there is
an existing
claim that is currently enforceable from the case of organs of State
that are in dispute with one another. In the latter
case, neither
State organ can simply pursue a claim. This is by reason of the
provisions contained in Chapter 3 of the Constitution,
headed
"Co-operative
Government".
77.
Firstly, section 40 reads as follows:
"40.
Government
of the Republic
(1)
in the Republic, government is constituted as national, provincial
and local spheres of government which are distinctive,
inter-dependent
and inter-related
.
(2)
All
spheres of government must
observe
and adhere to
the principles in this chapter and
must
conduct
their activities within the parameters that the chapter provides
-"
[my
emphasis]
78.
Secondly, the key provision of Chapter 3 is section 41. It
effectively requires spheres of government that are in dispute with

one another to exhaust a consultative and other dispute resolution
processes before the matter can be taken to court. This appears
from
the following extracts of section 41:
"41.
Principles
of co-operative government and inter-governmental relations
(
1)
All
spheres
of government
and oil organs of state within each sphere must -
(a)
(b)
secure
the well-being of the people
of the Republic;
(c)
provide effective, transparent, accountable
and
coherent
government for the Republic
as
a
whole;
(d)
be
loyal to the Constitution,
the Republic and its people;
(e)
respect the constitutional status, institutions, powers and functions
of government in the other spheres;
(f)
not assume any power or function except those conferred on them in
terms of the Constitution;
(g)
exercise their powers and perform their
functions
in
a
manner
that
does
not
encroach
on
the geographical functional or institutional integrity of government
in another sphere; and
(h)
co-operate with one another in mutual trust and good faith by -
(i)
...
(ii)
assisting
and
supporting
one another;
(iii)
...
(iv)
co-ordinating
their actions and legislation
with one another;
(v)
adhering to agreed procedure; and
(vi)
avoiding
lega
l
proceedings against one another
.
(2)
An Act of Parliament must -
(a)
establish or provide for structures and institutions to promote and
facilitate inter-governmental relations; and
(b)
provide for appropriate mechanisms and procedures to
facilitate
settlement of inter
-
governmental
disputes
.
(3)
An organ of State involved in an inter-governmental dispute
must
make every reasonable effort to settle the dispute by means of
mechanisms and procedures provided for that purpose, and must
exhaust
all other remedies before it approaches a court to resolve the
dispute
.
(4)
If
a
court
is not satisfied that the requirements of sub-section (3) have been
met it
may
refer a dispute back to the organs of State invoived
."[my
emphasis]
79.
It is evident that unless the mediation and other dispute resolution
processes envisaged in section 41 of the Constitution have
been
exhausted, a Court might not properly be seized of the matter and
must consider whether or not to refer the dispute between
spheres of
government back to them for resolution. This could also be sought by
one of them at any stage during the proceedings.
In this case, the
issue would be one of a fair or proper application of budgeting
priorities or a weighing of policy considerations,
none of which may
necessarily be justiciable before a court of law, having regard to
the separation of powers principle.
80.
The legislation envisaged in section 41 (2) has been implemented. It
is to be found in the
intergovernmental
Relations Framework Act, 13 of 2005.
Extensive
guidelines have been issued by the Department of Provincial and Local
Government entitled
"Guidelines
for the Settlement of intergovernmental Disputes".
81.
In my view an additional factor militating against joining a
Provincial or the National Government is that the Courts have already

determined that a primary responsibility talis on a local authority
to make provision for housing on a progressive basis having
regard to
its available resources. (See Occupiers of
51
Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City
of Johannesburg and Others
per
Yacoob at para 18).
82.
I accordingly do not consider it self evident that even if the
Provincial Government has an interest in the outcome of the matter
it
is necessarily desirable that if be joined. Other considerations such
as further delay, the ability of a Court on the facts
before if to
determine that the City itself has an obligation (as in the case of a
joint wrongdoer where other joint wrongdoers
need not be joined) and
the nature of the order that a court may be expected to make and the
possibility of protracted delays in
the finalisation of the issues
where non-adversarial routes remain open, militate against a joinder.
In the present case, I believed
that on weighing the relevant
factors, it was undesirable in allowing a postponement to join the
Provincial Government.
THE
LIS
83.
The effect of the First Respondent joining the second respondent to
the proceedings was to enable a court to make effective
substantive
orders as between them. However, it did not necessarily create a
lis
as
between the Applicant and the second respondent. There is no triable
issue between them. See
Control
instruments Finance (Pty) Ltd [in liquidation] v Mercantile Bank Ltd;
In re: Mercantile Bank Ltd v MM
Laubscher
Rustasie
(Pty)
Ltd and others
2001 (3) SA 645
(C) at 649.
But
compare
MCC
Contracts (Pty) Ltd v Coertzen and Others
1998 (4) SA 1046
(SCA) at
1050A
where
Corbett J (at that time) was of the view that a
lis
could
conceivably arise between the plaintiff and a third party who had
been joined by a defendant by reason of the wording of Rule
3(7) and
(8).
84.
In a case involving indigent occupiers of land who are subject to
eviction and a consequent infringement of their section 26
rights as
well as their more profound right to dignify under section 10 of the
Constitution, and where a court can fashion an appropriate
remedy in
circumstances where the Local Authority is a necessary party (see
above), it may be more difficult to adopt a too rigid
approach as to
whether a
lis
exists
between the Local Authority and each of the other parties. In my
view, as long as there is no prejudice to the parties, the
court is
entitled to direct joinder in the most effective way, and in
particular without the necessity to regurgitate the issues
for the
sake of formalism.
85.
I consider that permitting the City such reasonable time as they
requested to deal with the application of Blue Moonlight as
it now
concerned them, with a right of reply accorded to both Blue Moonlight
and the Occupiers, would secure a full and fair ventilation
of all
the issues and an opportunity to deal with such relief or defences to
the relief sought between the respective parties.
APPLICATION
TO AMEND
86.
I
proceed to deal with the Applicant's application to amend its the
notice of motion in terms of the fresh notice of 3 July 2010
and the
second respondent's challenge to strike it out.
87.
As regards the City's further complaint that the notice of motion of
3 June 2009 was required to be supported by an affidavit,
I took the
view that properly construed Blue
Moonlight
was seeking no more than to amend the relief claimed and that if
there was agreement as to a
lis
between
if and the City and a consolidation of all applications and
counter-applications, there was an unnecessary formalism in
requiring
further affidavits.
88.
I heard argument and was satisfied that once a lis had been
established between Blue Moonlight and the City and a consolidation

of the matter, the Applicant was doing no more than fashioning relief
based on the facts contained in the affidavits filed of record
in
respect of issues that had already crystallised and that whether
relief in the form sought could be granted was a matter of
law.
SUMMARY
OF LEGAL ISSUES
89.
Since the Applicant sought an eviction order, if may be appropriate
to first identify its rights and the limitation of those
rights to
obtain an ejectment order.
90.
If is then appropriate to identify the rights of occupiers of
privately owned land who would be in desperate need should they
be
evicted.
91.
It is also necessary to address the obligations of the City to take
steps to implement a policy and programme for the provision
of
emergency or temporary housing. These obligations will be considered
in relation to:
91.1.
Its obligations, if any, to unlawful occupiers of privately owned
land based on a challenge that its policy is both unfairly

discriminatory and arbitrary;
91.2.
Its obligations, if any, to landowners whose property is occupied
unlawfully and the tensions created by PIE in respect of
the duration
of such unlawful occupation after proper notice to evict and the
City's obligation to prevent homelessness of the
indigent under
Section 26 of the Constitution;
92.
Finally, it is necessary to consider the nature of the relief that
might be obtained by unlawful occupiers of private land and
by the
owners of the property in question if the City has breached its
constitutional or statutory obligations. This also involves
a
consideration of whether the City is able to provide at least
emergency housing and possibly temporary housing.
RIGHTS
OF PRIVATE LANDOWNERS TO EVICT
93.
The right to property is an essential foundational stone of a
democratic state. There are at least two reasons for this. Firstly,

the arbitrary seizure of land without adequate compensation strikes
at the core of democratic values. The ability to strip people
of the
right to own private and commercial property without adequate
compensation was an essential tool of apartheid governments'
ability
to implement a system that undermined the fabric of African society,
stunted its economic growth and undermined dignity.
94.
The right not to be deprived of property, except in terms of a law of
general application and subject to further limitations,
which are
always subject to just and equitable compensation is a
constitutionally protected right under Section 25. One of the
express
limitations concerns the need to acquire privately owned land,
subject to compensation, in order to address both the forced
removal
of communities and the inability to fairly access our natural
resources. These issues are addressed under Section 25(4)
to (8) and
the enactment of the
Restitution
of Land Rights Act 22 of 1994
in
accordance with subsection 25(9).
95.
Secondly, the State is obliged to initiate and maintain the
socio-economic objectives identified in
Sections 26
,
27
and
29
of our
Constitution as well as maintaining the necessary framework to
protect the security of ail South Africans. It must have
the ability
to structure sound economic growth and stability through Government
enterprises or to provide necessary goods and services
through
State-owned corporations. Its ability to do so is dependent on the
State's ability to raise revenues by way of direct and
indirect
taxation, by the levying of rates and charging for basic services,
such as water and electricity.
96.
It is evident that section 26 of the Constitution affords everyone
the right to have access to adequate housing and does not
impose an
obligation on the private sector to give up its property for this
purpose. if this consequence had been intended, then
the limitation
of the right to use and occupy one's own property would have been
founded in section 25. The private sector's obligation
remains to
provide the necessary revenues via taxation and the other means
already referred to, to enable the State to achieve
its duties under
section 26.
97.
Moreover, section 26 does not, whether directly or indirectly, permit
the State to either abdicate or thrust its responsibilities
to
provide adequate housing onto the private sector, nor does it suggest
that the private sector is obliged to itself indefinitely
provide
housing without compensation, if this was the intention, then by
reason of the limitation of rights to property being subject
to
compensation as part of a constitutionally protected right (under
section 25), a purposive interpretation of the Constitution
read as a
whole would have similarly required the provision for
"just
and equitable"
compensation
where there is an indefinite inability to utilise one's own property.
98.
Accordingly, the "
reasonable
legislative"
measures
envisaged in section 26(2) to achieve the progressive realisation of
the right to have access to adequate housing does
not envisage laws
that indefinitely require the private sector to be effectively
expropriated of its common law rights of use and
occupation of its
own land.
99.
On the contrary, it is my view that section 26(3) specifically
addresses the relative limitation of rights on the private sector
to
fake steps to evict those who under common law would not be entitled
to occupy privately owned property. If specifically requires
that an
eviction may only be effected pursuant to an order of a competent
court made
after
considering all the relevant circumstances".
100.
The relevant provisions of section 4 of PIE and the preamble with
regard to the eviction of an
"unlawful
occupier"
as
that term is defined in section 1 of that Act reads as follows :
"Preamble
WHEREAS
no one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of property;
AND
WHEREAS no one may be evicted from their home, or have their home
demolished without an order of court made
after
considering a
l
l
relevant circumstances;
AND
WHEREAS
it is desirable that the law should regulate the eviction of unlawful
occupiers from land in a fair manner,
while
recognising the right of land owners
to
apply to a court for an eviction order in appropriate circumstances;
AND
WHEREAS
special
consideration
should be given to the rights of the elderly, children, disabled
persons and particularly households headed by women, and that
it
should be recognised that the needs of those groups should be
considered...
4.
Eviction
of unlawful occupiers -
(1)
Notwithstanding anything to the
contrary
contained in any law or the common law, the provisions of this
section apply to proceedings by an owner or person in charge
of land
for the eviction of an unlawful occupier,
(2)
At least 14 days before the hearing of the proceedings contemplated
in subsection (1), the court must serve written and effective
notice
of the proceedings, on the unlawful occupier and the municipality
having jurisdiction.
(6)
If an unlawful occupier has occupied the land in
question
for less than six months
at
the
time
when the proceedings are in
i
tiated,
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 the rights and needs of the elderly,

children, disabled persons and households headed by women.
(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings were initiated,
a
court may grant an order for eviction if if 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, where the land has been made
available or can reasonably be made available by a municipality
or
other organ of state or another landowner for the relocation of the
unlawful occupier, and including the rights and needs of
the elderly,
children, disabled persons and households headed by women.
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has
been
raised
by the unlawful occupier, it
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 the eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated

in paragraph (a).
(9)
in determining a just and equitable date contemplated In subsection
(8), the court must have regard to all relevant factors,
including
the period the unlawful occupier and his or her family have resided
on the land in question.
7.
Mediation
-
(
1)
If the municipality in whose area of jurisdiction the land in
question is situated is not the owner of the land the municipality

may, on the conditions that it may determine, appoint one or more
persons with expertise in dispute resolution to facilitate
meetings
of
interested
parties and to attempt to mediate and settle any dispute in terms of
this Act; provided that the parties may at any time,
by agreement,
appoint another person to facilitate meetings or mediate a dispute,
on the conditions that the municipality may determine.
(3)
Any party may request a municipality to appoint one or more persons
in terms of subsections
(1)
and
(2)
for the purposes of those subsections.
(5)
All discussions, disclosures and submissions which take place or are
made during the mediation process shall be privileged unless
the
parties agree to the contrary."
[my
emphasis]
101.
I accept that a landowner's entitlement both to exercise unfettered
rights to exploit his property or to obtain an eviction
order
immediately upon default of rental payments are limited.
Historically, Rent Control legislation limited a landlord's ability

to evict his tenant from certain classified residential properties.
However, as pointed out by Selikowitz J in
City
of Cape Town v Rudolph and Others
2004 (5) SA 39
(C) at 73D-E
such
interference with property rights does not amount to an
expropriation.
102.
Moreover, under the common law, courts from time to time, but not
immutably, would allow an occupier a period of grace within
which to
find alternative rented accommodation although the basis for doing so
does not appear to have been articulated
(Bhyat's
Departmental Store Ltd v Dorklerk Investments Ltd
1975 (4) SA 881
(AD) at 886).
It
seems to have its foundation in the application of the Court's
entitlement to ensure real and substantial justice. See Le
Roux
v Yscor Landgoed (Edms) Bpk en Andere
1984 (4) SA 252
(T) per
Ackermann J at 259H-261B.
103.
In my respectful view, the Court's discretion under section 4 of PIE
to delay the eviction of any unlawful occupier, whatever
their
personal circumstances, is temporary and what the exact period is
depends on the circumstances of the case save that a landowner
cannot
be effectively deprived of his property without adequate compensation
and ought to retain the right to decide how he wishes
to develop what
he has paid for.
104.
I consider that the hierarchy principle of precedent binds me. The
tension between the right to property under section 25(1)
and an
indigent unlawful occupier's right to access to housing under section
26 was determined in
Modderfonfein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd
2004
(6) SA 40
(SCA) where the SCA also considered that the landowner's
right to equality under section 9(1) and (2) of the Constitution was
infringed
by the State burdening the owner with providing
accommodation without compensation.
105.
Although the Constitutional Court on appeal (
President
of the Republic of South Africa & Another v Modderklip Boerdery
(Pty) Ltd supra)
considered
it unnecessary to reach any conclusion on whether
Modderklip's
section
25(1) right to property had been breached, and if so to what extent,
until the SCA decision has been overruled by the Constitutional

Court, I am bound by it.
106.
Accordingly, save for the further observations I have already made
regarding the need to take into account the promotion of
economic
growth and development as the essential basis for providing revenue
to organs of state through taxation and other means,
I intend
referring to only those key passages in the SCA judgment of
Modderklip
that
are pertinent to weighing the nature of the landowner's
constitutional rights having regard to the provisions of PIE.
107.
The SCA confirmed that
Modderklip's
right
to its property is entrenched by section 25(1) of the Constitution
and that the unlawful occupation of its land, even if an
eviction
order had not been granted, amounted to such a breach (at para [21]).
The duty under section 7(2) of the Constitution
that is imposed upon
the State to
"respect,
protect, promote and fulfil the rights"
in
the Constitution exists if the damaging act is caused by third
parties (at para [26]) - I should add that the Constitutional
Court
also considered that it was unnecessary to deal with this issue -at
para [26].
108.
I should interpose that Langa CJ in
Modderklip
on
appeal to the Constitutional Court expressed the view at para [45]
that:
"If
is
unreasonable for a private entity such as Modderklip to be forced to
bear the burden which should be borne by the State, of providing
the
occupiers with accommodation."
it
is however unclear whether the statement is to be contextualised or
whether it is self-standing.
109.
Harms JA also referred in
Modderklip
to
section 9 of the Constitution and applied De Villiers J's finding in
the court a
quo
that
Modderklip
was
not treated equally because "... as an
individual,
it has to bear the heavy burden, which rests on the
State".
110.
The SCA further expressed the view that circumstances can be
envisaged where the right of access to adequate housing might
be
enforceable horizontally but that there is no legislation under which
the State has transferred its obligation to provide access
to
adequate housing on a progressive basis to private landowners. The
Court found that, even in the extreme circumstances where
there had
been a massive invasion of privately owned land, there was
nonetheless no horizontally enforceable right against a private

landowner under section 26 of the Constitution (at paras [30] and [31
]).
111.
Accordingly, the case before me is an a
fortiori
one
where there is no horizontal application to a private landowner of
section 26 of the Constitution.
112.
In order to succeed with an eviction application after due notice to
a person in occupation for longer than six months the
Court;
(a)
must be of the opinion that it is just and equitable to do so after
considering ail the relevant circumstances including those
enumerated
in section 4(7);
(b)
must be satisfied that all the requirements of the section have been
complied with and that no other valid defence has been
raised.
Once
the Court has made these findings then if is obliged by the
peremptory wording of section 4(8) to grant an eviction order.
113.
However, the eviction order itself must provide a date upon which the
occupiers must vacate and a date upon which the eviction
order may be
carried out if they have not vacated the land. In determining a just
and equitable date for the land to be vacated
the court under section
4(9) must have regard to all relevant factors, including the period
the unlawful occupiers and his or her
family have resided on the land
in question.
RIGHTS
OF DESTITUTE "UNLAWFUL OCCUPIERS" ON PRIVATE LAND
114.
Fundamental to an understanding of the significance of the specific
socio-economic right to access to housing identified in
section 26 is
an appreciation of at least the following historic factors that ought
to be entrenched in our nation's collective
psyche. First, that the
right of access to housing is inexorably bound to and finds its
origins in the right to dignity. Secondly,
the existence of informal
settlements and the lack of capacity within the central urban area
close to employment opportunities
are directly attributable to the
apartheid system of land distribution and influx control, that
limited access by Africans to urban
areas and then confining
individuals to townships without being able to bring their families
(until the then Appellate Division
ruled to the contrary). Ngcobo CJ
in the Joe
Slovo
Community
case
at para [194] made the observation that:
It
was an anathema to make provision for the accommodation of more
African people than the number essential to provide labour in
the
urban areas."
115.
It was the lack of accommodation in the townships that compelled
people to live in informal settlements and then to move
out of the
squalor of those settlements, if they could, to dilapidated or
abandoned buildings within the inner city or for others
to exploit
the situation by effectively seizing de facto control of inner city
buildings and extracting rent while excluding the
landlord from
effectively exercising its rights.
116.
I do not believe that it is necessary to expand on the historic
reasons for the provision of housing for Africans within the
urban
areas. It has been comprehensively dealt with by Ngcobo CJ at paras
[191] through to [198] insofar as the existence of the
housing crisis
relates to those living in what are appropriately called "squatter
camps". Reference may also be made
to Department of Land
Affairs
and Others
v
Goedgelegen
Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC)
at
paras 57-63 and 75 in relation to the repressive grid of legislation
that unfairly discriminated against African people in
relation to
ownership and occupation of land where they had resided.
117.
However, I do not believe that the significance of the rights to
dignity have been property grasped by the City, its advisers
and in
particular those responsible for formulating its policy within the
constitutional framework as required by section 153 of
the
Constitution. In S v
Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC)
O'Regan
J said the following ;
"[327]
The importance of dignity as a founding value of the
new
Constitution
cannot be over-emphasised.
[329]
Respect for the dignity of all human beings is particularly important
in South Africa. For apartheid was the denial of a common
humanity.
... The new Constitution rejects this past and affirms the equal
worth of all South Africans. Thus recognition and protection
of human
dignity is the touchstone of the new political order and is
fundamental to the new Constitution."
118.
Accordingly, the Constitutional entitlement to respect for dignity is
severely compromised if not unattainable (in the sense
of self-worth)
without a basic roof over one's head.
119.
Section 26 of the Constitution expressly secures the right of access
to adequate housing and requires the State to take reasonable

legislative and other measures, within its available resources, to
achieve the progressive realisation of this right. See section
26(1)
and (2).
120.
Moreover, section 26(3) provides that:
"No
one
may
be evicted from their home or have their home demolished without an
order of court made after considering all relevant circumstances.
No
legislation may permit arbitrary evictions."
121.
These provisions have been given content through PIE and various
housing legislation as well as the obligations imposed on
all three
spheres of government to give effect to the socio-economic rights
accorded under the Constitution. I have dealt with
the latter aspect.
I proceed to deal with relevant aspects of our housing legislation.
122.
The
National
Housing Act,
to
which i have already referred, imposes specific obligations
on Local Government. I agree with Mr Kennedy's summary
of
section
9 of the Act, that Municipalities are obliged to fake all reasonable
and necessary steps, within the framework of National
and Provincial
housing legislation and policy to ensure that inhabitants in their
area have access to adequate housing on a progressive
basis and,
inter
alia,
to
prevent or eradicate unhealthy and unsafe habitation and
Initiate,
plan, co-ordinate, facilitate, promote and unable appropriate
housing development..."
123.
Moreover, under section 2 of the
National
Housing Act,
in
performing its functions, a local authority must under
sections
2(l)(a)
, (b), (c)(ii) and(c)(iv) give priority to the needs of the
poor in respect of housing development, undertake meaningful
consultation
with individuals and communities affected by housing
development, ensure that housing development is economically,
fiscally, socially
and financially affordable and sustainable and
also ensure that it is administered in a
"transparent,
accountable and
equitable
manner and uphold the practice of good governance"
[my
emphasis].
124.
Allied to the
National
Housing Act
and
relevant to this case is Chapter 12 of the
Emergency
Housing Program
under
the
National
Housing Code.
Clause
12.3.1 defines an emergency as a situation where "...
the
affected persons are, owing to situations beyond their control,
evicted or threatened with imminent eviction from land or unsafe

buildings, or situations where pro-active steps ought to be taken to
forestall such consequences
125.
The
Emergency
Housing Program
obliges
a local authority to investigate and assess the emergency housing
needs within their areas and to undertake pro-active planning
in that
regard. The program provides for funding from Provincial Departments
of Housing.
126.
Ngcobo CJ in the Joe Slovo Community case at paras [231] and [232]
made it clear that the Constitution requires that all evictions
must
be carried out in a manner that 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
whilst 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."
127.
Constitutional Court and SCA authority on the subject make if plain
that those in desperate situations who face eviction are
entitled to
have 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. However,
desperately poor families have no right to look to
private landowners
for indefinite continued accommodation at no cost.
OBLIGATIONS
OF THE CITY TO "UNLAWFUL OCCUPIERS" OF PRIVATELY OWNED LAND
128.
it is clear from the Constitutional Court and SCA judgments to which
I have referred, that the City has a positive constitutional
duty to
the desperately poor not to render them homeless should they be
evicted.
129.
The right of access to adequate housing is given effect where the
City takes reasonable measures through a coherent public
housing
program towards the progressive realisation of this right within the
State's available means. (See
Grootboom
at
para [41]). Moreover, Ngcobo CJ identified reasonable measures to
mean ".. those that take into account
"the
degree and extent of the denial of the right they endeavour to
realise" and they should not ignore people "whose
needs are
the most urgent and whose ability to enjoy all the rights therefore
are most in peril"."
(See
Joe
Slovo
Community
at
[226] citing
Grootboom
at
para [42].
130.
Moreover, the measures and policies, in accordance with Grootboom, at
para [44]
"facilitate
access to temporary relief for people who have no access to land, no
roof over their heads, for people who are
living in intolerable
conditions and for people who are in crisis because of natural
disasters such as floods and fires, or because
their houses are under
threat of demolition."
(See
Joe
Slovo
Community
at
[227])
OBLIGATIONS
OF THE CITY TO PRIVATE OWNERS OF UNLAWFULLY OCCUPIED LAND
131.
I respectfully apply the SCA reasoning in Modderklip and certain of
the observations made in
Modderklip
(CC)
and
by Masipa J in
Blue
Moonlight.
132.
I have already referred to the extract by Langa CJ in
Modderklip
at
para 45 to the effect that it is unreasonable for a private entity to
be forced to bear the burden which should be borne by the
State to
provide occupiers with accommodation.
133.
I believe the extensive references earlier in this judgment to the
SCA decision in
Modderklip
adequately
demonstrate that there is binding authority for the proposition. It
is unnecessary to expand further upon it.
134.
Moreover, Masipa J in the earlier contempt proceedings in this matter
said at paragraph 37 :
It
seems that the City is of the view that its obligations to assist
unlawful occupiers are confined only to cases where
occupiers
are evicted from public property. That this cannot be correct is
clear from the relevant statutes already referred to
above as well as
from case law."
135.
Whatever the temporary period might be to assist in the amelioration
of hardships caused by an eviction order in respect of
those who are
unlikely to find alternate shelter, no tier of Government can
transfer its constitutional obligations to private
citizens on what,
realistically, would be an indefinite basis effectively rendering
ownership rights nugatory.
BREACH
OF FIRST RESPONDENT OCCUPIERS' RIGHTS BY THE CITY
136.
Mr Both, on behalf of the City, contended that since Housing fell
under the functional area of concurrent national and provincial

legislative competence, the primary constitutional obligation to
provide housing or access to housing did not lie with Local
Government.
He argued that Local Government's role is secondary, has
no right to formulate or apply a housing policy independently of the
other
spheres of Government and that section 9(1) of the National
Housing Act effectively
compelled the Municipality to perform its
functions "...
within
the framework of National and Provincial Housing legislation and
policy".
137.
The City also argued that the financial burden to provide housing
lies with National and Provincial Government and not with

municipalities.
138.
It was also argued, on behalf of the City, that a court has no
jurisdiction to reallocate public funds. See
City
of Johannesburg v Rand Properties (Pty) Ltd and Others
2007 (6)
SA
417
(SCA)
at
para 45.
139.
Finally, if was contended that Chapter 12 of the National Housing
Code which deals with emergency housing is a reasonable and

responsible measure adopted to meet the content of the Constitutional
Court's judgment in
Grootboom.
I
n
particular, the City referred to the following extract from Chapter
12 in support:
"The
judgment
furthermore suggested that a reasonable part of the National Budget
be devoted to providing relief for those in desperate
need, but the
precise allocation was for National Government to devise.
•
Consequently,
this program is instituted in terms of
section 3(4)(G)
of the
Housing
Act, 1997
, and will be referred to as "the National Housing
Programme for Housing Assistance in Emergency Housing Circumstances".
140.
In my view the City has obfuscated the issue and has declined to
explain its policy of excluding from any of its accommodation

programs, whether emergency, temporary or otherwise, the City's
inhabitants threatened with eviction from private property. The
City
also refuses to acknowledge the consequence that flows from its
decision to exclude a class of indigent occupier but provide

assistance to those who were to be removed from property owned by it
or other organs of State for whatever pressing reason.
141.
The consequence of excluding persons in the position of the first
respondent occupiers of private property was to exclude them
from
both program formulation and budget preparation. It is not surprising
therefore that there has not been a budget allocation,
it is however
difficult to appreciate that the persons responsible for this policy
decision could genuinely have believed if to
be justifiable. The fact
that it is not is demonstrated by the failure of any meaningful
argument being presented on behalf of
the City in that regard.
142.
In my view, the City cannot rely on its own default to explain why it
has neither the budget nor the accommodation to cater
for indigent
occupiers of private land facing eviction.
143.
Moreover, the City has persisted over at least three fiscal years,
after becoming aware of the challenge to its exclusionary
policy, to
reconsider its position both in the formulation of its policy or in
the planning of its budget.
144.
It is self-evident that a failure to exclude indigent occupiers
facing eviction solely on the basis that they happen to have
found
refuge on private, as opposed to State-owned property, offends the
first respondent occupiers' right to "...
equal
protection and benefit of the law"
under
section 9(1) of the Constitution. It also offends their right to "...
full
and equal enjoyment of all rights and freedoms"
under
section 9(2). In particular, the effect of the City's policy to plan
and budget (since at least late 2006) for indigent occupiers
of
private property faced with eviction, excluded them from the
enjoyment of the right to have access to emergency or temporary

housing under section 26 of the Constitution as explained in
Grootboom.
This
amounts to unfair discrimination.
145.
Moreover, such unfair discrimination renders the City's policy and
its implementation, whether in the form of providing accommodation
or
planning and budgeting for housing relief, constitutionally flawed,
irrational and unreasonable.
146.
In
Grootboom,
the
Constitutional Court, when cautioning against judicial activism in
relation to the division of powers said:
"A
court
considering
reasonableness will not enquire whether other more desirable or
favourable measures could have been adopted, or whether
public money
could have been better spent. The question would be whether the
measures
that have been
adopted
are reasonable."
147.
In the present case, the answer to that question is "No".
148.
The City did not argue that the unfair discriminatory policy
contended for by the first respondent is not specifically referred
to
in section 9(3). If it had been necessary to deal with the topic then
I would have had little difficulty in applying the purposive

interpretation to the constitutional provisions contained in section
9 (equality) read as a whole, section 10 (human dignity)
and
section 26 (housing). Compare
Attorney-General
Botswana v Dow 1994 (6) BCLR (CA) Botswana) at
pp
10-12 per Amissah
JP.
149.
it is also of concern that the City's policy was self-serving. The
exclusionary policy not only benefited its own interests
but also had
the potential of allowing it to overcome the difficulties inherent in
a section 6 eviction under PIE where effectively
it is obliged to
allow occupiers to remain on State-owned land indefinitely until
basic accommodation can be provided. This is
by reason of the greater
burden imposed on the State to demonstrate that an eviction from
State land is also in the public interest.
See also Joe
Slovo
Community,
per
Moseneke DCJ at para [172].
150.
Indeed, in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
the
Constitutional Court held that although there was no unqualified
constitutional duty, under section 6(3) of PIE, on Local Government

to provide alternative accommodation, "... a
court
should be reluctant to grant an eviction against relatively settled
occupiers unless it is satisfied that a reasonable alternative
is
available, even if only as an interim measure pending ultimate access
to housing in the formal housing program." (per Sachs
J at para
[28])
.
BREACH
OF BLUE MOONLIGHT'S RIGHTS BY THE CITY
151.
A necessary corollary to unfairly discriminating against the unlawful
occupiers of Blue Moonlight's property is that Blue Moonlight's
own
constitutional right to be treated at least equally with the State
was breached in regard to accessing the City's program to
house, on
either an emergency or temporary basis, destitute occupiers of land
subject to eviction under PIE.
152.
In
Modderklip,
Harms
JA at paras [30]-[31] referred to the application of the equality
provisions contained in section 9(1) of the Constitution
where the
State "...
allowed
the burden of the occupiers' need for land to fail on an individual."
The
SCA endorsed the finding by De Villiers J in the Court a quo that
Modderklip
had
not been treated equally because "... as
an
individual, it has to bear the heavy burden, which rests on the
State, to provide land to some 40 000 people."
153.
In the present case, not only is Blue Moonlight expected to utilise
its land at no cost and preclude itself from realising
its investment
through developing the land without compensation, but the City has
adopted a policy that benefits its interests
more beneficially than
private landowners without any discernible justification-particularly
if regard is had to the heavier burden
placed on the State to allow
continued residence on State-owned land if no alternate accommodation
is available.
154.
Accordingly, the City's policy not to provide accommodation or plan
or budget for the procurement of accommodation on an emergency
or
temporary basis in respect of private land occupied unlawfully under
PIE is unfairly discriminatory to landowners and offends
the equality
provisions of section 9 of the Constitution.
CONSEQUENCES
OF THE BREACH OF BLUE MOONLIGHT'S RIGHTS
155.
It is a fundamental principle that where there is a right there is a
remedy. See
Harris
v Minister of the Interior and ano
1952 (4) SA 769
(A) at
pp780G-781A:
"'To
call the rights entrenched in the Constitution constitutional
guarantees and at the
same
time
to
deny to the holders of those rights any remedy in law would be to
reduce the safeguards enshrined in s 152 to nothing. There
can to my
mind be no doubt that the authors of the Constitution intended that
those rights should be enforceable by the Courts
of law."
156.
It is settled law that a court has a duty to fashion an order that
will achieve effective relief for those whose constitutional
rights
have been breached. See
Minister
of Health and Others v Treatment Action Campaign and Others (2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC) at para
[102]
.
157.
In Fose v
Minister
of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) at para
[42]
Ackermann
J determined that appropriate relief will "... in
essence
be relief that is required to protect and enforce the Constitution."
The
Court indicated that this may not only take the form of a declaration
of rights or other usual orders but may include new remedies
to
secure the protection and enforcement of rights enshrined in the
Constitution. Ackermann J continued:
"in
our context and appropriate remedy
must
mean
an effective remedy, far without effective remedies for breach, the
values
underlying
and the right entrenched in the Constitution cannot properly be held
or enhanced, particularly in a country where so
few have the means to
enforce their rights through the courts, it is essential that on
those occasions when the legal process does
establish that an
infringement of an entrenched right has occurred, it be effectively
vindicated. The courts have a particular
responsibility in this
regard and are obliged to Jorge new tools" and shape innovative
remedies, if needs be, to achieve this
goaf"
158.
In
Joe
Slovo Community
Sachs
J at paras [333] and [334] referred to the courts' function in
managing tensions between competing legitimate claims to adopt
as
balanced, fair and principled resolution as possible.
159.
During argument, the possibility of expropriating property that was
of little current worth and use it not only to house the
families
that were there but others was mooted, particularly having regard to
the enormous costs that had already been incurred
by the City in
litigating up to that stage. This did not find favour. It is evident
from
Ekurhuleni
Metropolitan Municipality v Dada
N.O.
and Others (SCA) (case No. 280/2008) that it is inappropriate if not
incompetent to direct an expropriation. While the City
may not have a
comprehensive or coherent long-term plan for the area in question, a
court would be imposing its resolution of an
issue between immediate
parties on matters where broader planning considerations may be
involved and may effectively retard structured
urban-growth.
160.
This brings me to the second concern that 1 must guard myself
against; namely, improperly usurping the policy-making functions
of
Government.
161.
It is however clear from
Modderklip,
both
before the SCA and the Constitutional Court, that constitutional
damages based on the loss of use of property by a landowner
can
constitute an acceptable form of relief in appropriate circumstances.
162.
In the present case Blue Moonlight has been deprived of its
entitlement to use and develop its property. This is sufficiently

causally linked to the breach by the City of Blue Moonlight's rights
to equality of treatment and in its failure since at least
2006 to
implement a reasonable program and include in its budget provision
for the accommodation of indigent occupiers of private
owned land.
163.
There are three further considerations that weigh with me. The first
is that the attitude of the City has been to wash its
hands of any
obligation, whether constitutional or otherwise, to adopt a coherent
program and take steps to secure basic accommodation
for all those
who it ought to have established (by way of surveys and projections)
were indigent and at risk of being evicted from
property within its
area of jurisdiction, irrespective of who held title to the land in
question. The City's failure is aggravated
by the fact that both
before and during the past three years a body of law has been built
up before our highest courts that the
City should have heeded.
164.
Secondly, the City appeared to have a sufficient budget to deal with
providing emergency or temporary accommodation without
reference to
the Provincial Government. This arises from the First Respondent's
reply to the City's report. The first respondent
(at para 20.3)
stated that according to the City's latest medium-term operating
budget (which was attached) it had budgeted for
a surplus of R397
million which is expected to increase to R647 million in the
2009/2010 financial year. This appeared from the
City's Integrated
Development Plan. The City's response (at para 27 of its reply) was
curt and unhelpful. Mr De Klerk who is the
Director-Director: Legal
and Compliance of the City, said the following:
"Although
a city the size of Johannesburg is indeed very large and its budget
is significant, the second respondent has attempted
in its 2008
report to describe to the court the many and varied demands on its
funds, if is naive and inappropriate (if not presumptuous
in the
extreme) for the first respondent to purport to rewrite and
reallocate the City's budget."
165.
I find it difficult to appreciate how drawing attention to the fact
that there is a budgeted surplus, amounts to felling the
City how to
apply its funds. Its obligation to apply its funds with regard to its
constitutional and statutory obligations, and
in particular those
involving social-economic upliftment, is an issue, before the court
and it was for the City to explain why
if could not apply any portion
of its anticipated budgeted surplus to shore up its failure to
include indigent occupants of privately
owned land in its emergency
or temporary accommodation program or to find even the R5 million as
a first stage to acquiring property
in terms of its request to the
Provincial Government (see above).
166.
The belated attempt to argue the issue of what a budget surplus means
did not assist matters. On the contrary, the City's report
revealed
that without National or Provincial Government funding, the City had
embarked on its emergency and temporary accommodation
program, using
its own resources and without requesting funding from the other
spheres of Government. This appears from the following
passage:
The
City
focuses, without being obliged to do so, from its own resources and
within its financial constraints, on the provision of shelter
to
occupiers of dangerous buildings, who qualify as being desperately
poor and who find themselves in a true crisis situation.
There are
numerous dangerous buildings in the city of Johannesburg."
167.
The condition of the applicant's property, the fact that it has
already received warnings from the City regarding the state
of the
building and the clear evidence regarding its degradation is unlikely
to result in significant damages based on the loss
of use of the
property on the basis that I regard as appropriate, namely rental.
168.
I have based constitutional damages by reference to rental values and
not by reference to lost opportunity revenues had the
property been
developed in the interim period. In doing so 1 have considered that
the fairest form of compensation is to be based
on the benefit to the
Municipality of not being obliged to incur the cost of itself
procuring accommodation and effectively foisting
its duties on the
Applicant when it appeared to have adequate resources at the time.
169.
Blue Moonlight only sought compensatory relief against the City in
its notice of motion of 3 June 2009. In my view it is appropriate

that compensatory damages in the form of notionally lost rental for
holding over is only claimable from the commencement of the
following
month, 1 July 2009. The City had ample opportunity to consider its
position in the meantime when preparing its answering
affidavits.
170.
Finally, relevant case law considers it best to avoid what might be
unnecessary further litigation between the parties where
other means
of fairly resolving potential disputes arise. See
Modderklip
(SCA)
at para [44].
Mr
Brassey,
on
behalf of Blue Moonlight had sought an order where, failing agreement
on what constitutes a fair and reasonable monthly rental,
a sworn
valuator appointed by the President of the South African Council for
Property Valuers profession would make the determination.
I
considered this to be an eminently practical dispute resolution
process, save that if is necessary to ensure that the valuator's

decision is subject to scrutiny by the Court on the limited basis of
a judicial review as is the case with the decision of an arbitrator.
171.
By reason of the view I take in regard to Slue Moonlight's right to
evict the first respondent occupiers and when that is to
take place,
constitutional damages are payable up to the date when the eviction
order is effected and the occupants vacate.
REMEDIES
AS BETWEEN THE FIRST RESPONDENT OCCUPIERS AND THE CITY
172.
There can be no doubt that the City breached its constitutional and
statutory obligations towards the first respondent occupiers
by
precluding them for a period of at least four years from access to
its emergency and temporary housing programs. I have found
that the
City breached the section 9 equality provisions of the Constitution.
I should add that by reason of my conclusion it is
unnecessary to
also consider the attack based on arbitrariness.
173.
Moreover, the tact that some of the occupants may have only been on
Blue Moonlight's property since 2008 is irrelevant. The
City's
obligation remains to provide access to adequate housing on a
progressive basis within the limitations of available resources
with
due regard to the poorest who otherwise would have no shelter and
little prospect of a dignified life. Their papers reflect
that they
ought to have been in a position to do so at least during the 2008/9
fiscal year. Their failure to adequately respond
to the First
Respondent regarding its budgeted surplus is a material
consideration.
174.
In
Modderklip
the
SCA had little difficulty in finding that the consequence of the
deprivation of
Modderklip's
right
to its property with no prospect of recovery entitled it to
constitutional damages. Similarly the Constitutional Court on
appeal
did not consider it necessary to explore whether or not the breach of
the right to enforce a court order would result in
an order to remedy
the failure as opposed to directly awarding compensatory damages.
175.
In the present case, the causal link between the breach and the
present inability of the occupants to obtain emergency or temporary

housing is based essentially on the facts it has disclosed, or failed
to deal with adequately, and which I have considered material.
1
76.
The
remedy for the breach of the occupants' constitutional and statutory
rights in respect of accommodation appear extremely limited.
A court
cannot dictate who should go to the head of the queue. What it can
concern itself with is whether the order it makes will
result in an
impermissible queue-jumping. By reason of the failure to have any
regard to the occupants' rights over a significant
period of time,
this issue does not arise.
177.
While it is correct that compensatory damages until accommodation is
provided may result in the City changing its policy and
its
budgeting, nonetheless it is obliged to change its position not
because the court has selected another route but because it
is
constitutionally obliged to include indigent occupants of private
Sand threatened with eviction in the housing programs and
to budget
for it.
178.
There might be a concern that raising rates and taxes will be a
necessary consequence particularly as there is a real risk
of an
avalanche of litigation seeking subsidies for accommodation.
179.
In part the first concern is answered by reference to the letter
addressed by the Provincial Government when the City applied
for
emergency funding. It recognised that there was a need for
departments within the Provincial Government to exercise proper

fiscal discipline. Secondly, there are numerous unoccupied buildings
within the CBD. None of the reports presented by the City
dealt
meaningfully with whether these buildings were being moth-balled by
the State indefinitely or whether they were to be developed.
It is
for this reason that I have included an order effectively requiring
an audit of vacant State-owned buildings. I should add
that Mr
Kennedy also forcefully argued that even the subsequent Report by the
City was inadequate. By reason of the view I fake
it is unnecessary
to make a finding on this.
180.
Since handing the order down, strong statements have emanated from
the National Assembly of a renewed commitment to prioritise
the
provision of housing. The way in which I have formulated the order
enables the City to find either emergency or temporary accommodation

for the first respondent occupants. As soon as that occurs monthly
compensatory damages cease.
181.
The occupiers sought orders to be placed effectively close to where
they presently live. Moreover, the rentals in buildings
which might
be available vary dramatically. In my view the City should avoid
disrupting the lives of the occupants unduly, particularly
where
children are enrolled in nearby schools or employment is in close
proximity.
182.
Nonetheless there is no obligation on the City to do so nor is it
obliged to spend more than it otherwise would because an
unlawful
occupier is able to occupy premises in a relatively better suburb
than another. The yardstick is not where the occupant
was able to
find accommodation at no cost, but rather what is a fair amount to
acquire rudimentary accommodation within a reasonable
radius, having
regard to the circumstances and the cost of available transport.
183.
I had regard to COHRE's survey and to its conclusion that the
cheapest private rental accommodation available in the inner
city was
approximately R850 per month for a single room with cooking
facilities and a bath, but excluding water and electricity.
No more
recent figures were provided. If wafer and electricity were included
then a family of four would pay a minimum of R1 000
per month.
Nonetheless the COHRE survey also identified cheaper available
premises (see para 15 above).
184.
There is very little data available to me. Moreover, the occupants
range from those who have no income whatsoever to the few
who earn R2
000 or more a month. There is also the concern of adequate oversight.
In my view the court does not have enough to
individualise the amount
that each occupant ought to receive in the form of compensatory
damages until either emergency or temporary
accommodation is
provided. If is therefore necessary to provide a regular review
mechanism to monitor and oversee the appropriate
subsidy.
185.
I accept that the structure of my order is intended to encourage the
City to expeditiously reassess its housing program in
accordance with
its constitutional obligations.
It
also assumes that the order I make can be implemented. Again this is
based on the facts presented, including the fact that the
City was
able to find on an urgent basis accommodation when pressed to do so
by a court order of Claassen J in a matter heard after
it had filed
papers. The City claimed that if was compelled to do so by reason of
the court order. It is evident that the City
had claimed earlier that
it had no such recourse to accommodation.
186.
Finally, in the contempt proceedings, Masipa J, at para
69,
considered
that the City was trying to distance itself from the problems of
unlawful occupiers which is at odds with the Constitution
and is
tantamount to a failure by the City to comply with its constitutional
obligations. I consider the subsequent conduct in
these proceedings
by the City and the position it has continued to fake to be
essentially unchanged. I accordingly remain sceptical
regarding its
protestations, either in relation to budgetary constraints or
accessing emergency or temporary accommodation.
APPLICATION
OF SECTION 4 OF PIE
187.
I must consider whether Blue Moonlight is entitled to an eviction
order against the first respondent occupiers and, if so,
to determine
the relevant dates mentioned in section 4(9).
188.
In
Occupiers
of 51 Olivia Road, Berea
the
Constitutional Court considered the appropriateness of an order that
would require the parties to meaningfully engage one another
in the
fashion contemplated in section 7 of PIE. The requirement of
meaningful engagement was again considered in Joe Slovo
Community
at
paras [239]-[247].
189.
In my view the possible resolution of the case without a court
decision has been explored during the hearing. It is evident
that the
parties now seek finality regarding their respective positions.
190.
In order to come to a decision as to whether or not an eviction order
must be granted on the basis that it is just and equitable
to do so,
I have considered the following relevant circumstances;
(a)
The inability of any of the current occupants to be able to afford
rented accommodation without subsidisation;
(b)
The degree of movement of occupants. Currently more than half of the
occupants have only resided on the property since notice
to vacate
was given. Of the 86 people occupying at the last formal census, at
least 16 individuals only commenced occupation after
proceedings were
instituted. In addition, 19 others only took occupation in 2006,
which means that they were on the property for
less than six months
prior to proceedings being instituted.
(c)
It is axiomatic that irrespective of the length of occupation and
whether or not occupation only occurred after proceedings
were
instituted and with full knowledge that an eviction order was being
sought, the occupants are unable to afford any basis accommodation

and are at risk of losing such meagre piece work as they are able to
obtain, or a basic shelter to be able to prepare for their
studies.
(d)
Blue Moonlight acquired the property for development. As a private
land owner and investor, it is able to exploit the land and
will be
able to create work during the demolition and development phases and
once developed the property will become rateable at
a significantly
higher figure.
(e)
Urban renewal is a desirable objective but must be tempered if
immediate hardship will be caused that is not alleviated by other

fair means.
(f)
Without the ability to evict, there is no realistic prospect that
Blue Moonlight can gain possession of its property. Effectively
the
property will be lost.
191.
The principal finding I have made is that a private landowner cannot
be indefinitely deprived of the bundle of rights that
come with the
ownership of immovable property. Accordingly, Blue Moonlight is
entitled to an eviction order. The only question
is when it is to be
implemented having regard to what is just and equitable in the
circumstances.
192.
Blue Moonlight has been unable to realise any benefit from its
investment for some five years.
193.
On the other hand, the occupiers live in squalid conditions with no
water or other basic facilities.
194.
Resolution of what is just and equitable therefore depends on what
constitutes a reasonable time within which the first respondent

occupiers can find alternate accommodation. Clearly there can be no
time stipulated if they do not have sufficient income to pay
rental
for even the most meagre of accommodation. I have however resolved
that the rights of the landowner do not allow for an
indefinite
deprivation that renders their section 25 rights de
facto
nugatory
and that the occupants are entitled to compensatory damages in the
form of a subsidisation of their income that is likely
to allow them
a form of basic accommodation until the City remedies its breach.
195.
In my view a period of one month only is inadequate. However, a
period of three months, having regard to the tenuous position
in
which the occupants must have realised they were in and there being
no evidence that alternate accommodation cannot be found
within a
period just short of two months is not justified on the papers. I
therefore consider if appropriate, having regard to
the time that has
already elapsed, that a period terminating at the end of a calendar
month which is just short of two months after
delivering this order
would be appropriate.
ORDER
196.
On 4 February 2010 I accordingly ordered that:
1.
The first respondent and all persons occupying through them
(collectively
"the
occupiers')
are
evicted from the immovable property situate at Saratoga Avenue,
Johannesburg and described as Portion 1 of Erf 1308 Berea Township,

Registration Division IR, Gauteng
("the
property");
2.
The
occupiers are ordered to vacate by no later than 31 March 2010,
failing which the Sheriff of the Court is authorised to carry
out the
eviction order;
3.
The Second Respondent shall pay to the Applicant an amount equivalent
to the fair and reasonable monthly rental of the said premises
from 1
July 2009 until the occupiers vacate on 31 March
2010,
which amount is to be determined by agreement between the Applicant
and the Second Respondent and failing agreement by a sworn
valuator
appointed by the President of the South African Council for Property
Valuers Profession with a rights of judicial review
to a competent
court accorded to the parties;
4.
The
Second Respondent's application of its housing policy is declared
unconstitutional to the extent that it discriminates from

consideration for suitable housing relief (including temporary
emergency accommodation) persons within the Second Respondent's
area
of jurisdiction;
a
.
Who are subject to eviction from privately owned land, whether by
reason of the building constituting a dangerous building under
the
said housing policy or for any other reason, provided that the
eviction is in terms of the Prevention of Illegal Eviction from
and
Unlawful Occupation of Land Act 19 of 1998, and
b.
Who
are in desperate need of housing, or who would otherwise qualify if
they had been in occupation of property owned by or devolving
upon
the Second Respondent and/or another organ of state whether by reason
of the building being a dangerous building as aforesaid
or any other
currently qualifying ground under the Second Respondent's existing
housing policy;
5.
The Second Respondent is ordered to remedy the defect in its
housing policy set out in the preceding paragraph 4 above and;
a.
to report to this Honourable Court under oath, on the steps it has
taken to do so, what steps it will take in the future in this
regard
and when such steps will be taken;
b.
The Second Respondent's report is to be delivered by 12 March 2010.
The report shall include details of all state owned office
buildings
that are de facto unoccupied, and in respect of each building a
statement by a senior responsible person who has direct
knowledge, as
to when, if at all in the foreseeable future, it is expected that the
buildings will be occupied;
c.
The First Respondent may within 10 days of delivery of the report
deliver commentary thereon, under oath;
d.
The Second Respondent may within 10 days of delivery of that
commentary, deliver its reply under oath
e.
Thereafter the matter is to be enrolled on a date fixed by the
Registrar in consultation with the presiding Judge for consideration

of the aforesaid report, commentary and reply and determination of
such further relief to the individual claiming as the First

Respondent as may be appropriate having regard to the implementation
of the order set out in the following paragraph;
6.
By no later than 31 March 2010:
a.
the Second Respondent shall provide each of the occupiers who are
entitled to claim as the First Respondent with at least temporary

accommodation as decant in a location as near as feasibly possible to
the area where the property is situated and if rental is
expected
then, unless there is agreement with the individual occupier or
household head (as the case may be), such rental may only
be imposed
pursuant to a court order, which application may be dealt with at the
same hearing to consider the report referred to
in paragraph 5 above;
b.
ALTERNATIVELY and until such time as such accommodation is provided
the Second Respondent shall pay per month in advance, on
the 25
th
of each month preceding the due date of rental and commencing on the
25 March, to each occupier or household head (as the case
may be)
entitled to claim as the First Respondent the amount of R850 per
month until the final determination of the relief referred
to in
paragraph 5 (e) above that might be sought;
PROVIDED
THAT;
i.
The amount payable in the first month to each occupier or household
head shall include an additional sum of R850 should a deposit
be
required from a landlord, which shall be refunded in full to the
Second Respondent upon expiry of the lease or upon accommodation

being provided as aforesaid by the Second Respondent.
ii.
Where a monthly amount is paid to one of the First Respondents in
lieu of accommodation as provided for in paragraph 6(b) then
such
amount will be reviewed by the parties every six months without
prejudice to any parties right to approach a court to increase
or
decrease the amount;
7.
For the purposes of paragraphs 5 and 6 the persons entitled to claim
as the First Respondent are those whose names appear in
the Survey of
Occupiers of 7 Saratoga Avenue, Johannesburg under filing notice of
30 April 2008 at pages 784 to 790 of the record
provided they are
still resident at the property and have not voluntarily vacated;
8.
The second Respondent shall pay the Applicant's and the First
Respondent's costs, including the costs that were previously reserved

and including the costs of two counsel.
SPILG
J
DATES
HEARINGS:
17-18/06/2009 and 22/07/2009 ORDER: 04/02/2010
LEGAL
REPRESENTATIVES
APPLICANT;
ADV M BRASSEY SC
ADV
G FOURIE SCHINDLERS ATTORNEYS
FIRST
RESPONDENT: ADV P KENNEDY SC
ADV
H BARNES WITS LAW CLINIC
SECOND
RESPONDENT: ADV J BOTH SC
ADV
SH SHER
MOODIE
AND ROBERTSON