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[2018] ZAGPJHC 715
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Residents of Jeff Masemola Extension 8, Winnie Mandela v City of Ekurhuleni Metropolitan Municipality (2019/21001) [2018] ZAGPJHC 715 (28 August 2018)
Links to summary
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/21001
In
the matter between:
RESIDENTS
OF JEFF MASEMOLA
EXTENSION
8, WINNIE
MANDELA
Applicant
and
CITY
OF EKURHULENI METROPOLITAN
MUNICIPALITY
Respondent
REASONS FOR ORDER
SPILG,
J
INTRODUCTION
1.
On 25 July 2019 parties describing themselves as the residents of
Jeff Masemola Extension 8, Winnie Mandela (
the Residents
)
brought an urgent application against the City of Ekurhuleni
Metropolitan Municipality (
the Metro
). The purpose of the
order was to interdict the Metro from evicting them from the land
situated at extension 8 Jeff Masemola and
referred to as the Jeff
Masemola informal settlement.
2.
An order was also sought preventing the Metro from burning or
destroying their shacks pending the Metro providing them with proper
structures for residential purposes.
Costs
were sought on the attorney and client scale.
3.
Mr Thobejane deposed to the founding affidavit. He describes himself
as representing the Residents. In the affidavit he asserted
that the
Metro is set about destroying their shacks, harassing the community
members, beating them and that these actions have
also left children
destitute.
4.
The deponent to the founding affidavit avers that in about January
2019 people were moved from one portion of Winnie Mandela
because the
stands were considered hazardous as they were near electricity
pylons. They were moved to ext. 8 Jeff Masemola.
5.
It is further contended that since being moved they have been
subjected to abuse by the Metro’s police officials (
EMPD)
who have been responsible for burning down their shacks and property.
6.
There are three confirmatory affidavits. They are by Mr Komane. Mr
Sithole, and Ms Lehong. There is a fourth confirmatory affidavit
but
it is also deposed to by the main deponent. Mr Sithole also signed a
power of attorney appointing the attorneys of record.
7.
The Metro opposed the application.
THE
ISSUES
8.
Aside from raising lack of urgency, there are a number of technical
issues raised, including that the founding affidavit has
not been
properly commissioned.
9.
The Metro also contends that none of the disclosed persons forming
part of the applicant have
locus.
The Metro points out that
there are only three persons who have deposed to affidavits and
according to it none of them were among
those who had been relocated
from Winnie Mandela to Jeff Masemola- and that they actually reside
elsewhere. No other person has
been identified as forming part of the
applicant.
10.
On the merits of the case, the Metro contends that none of the
persons who identify themselves as members of the applicant either
reside on the land in issue or have a right to do so. The only
persons who will enjoy such rights are those who were relocated
under
the Tswelopele re-blocking and re-alignment project.
In
amplification, the Metro explained that the purpose of the project is
to relocate people who were living under the Eskom power
lines
between Kenneth Kaunda and Samora Machel roads in the Duduza North
informal settlement. A list of people subject to relocation
was drawn
up and the Metro contends that they are the beneficiaries entitled to
take occupation of the houses that will be erected
in the Tswelopele
project. It is evident that the Tswelopele project was therefore
implemented to ameliorate the living conditions
of residents within
Duduza North and relocate them to a development which had improved
access to basic services “
in line with available resources”
.
It
was contended that the four persons who described themselves as
members of the applicant and others have sought to form part
of the
relocated group. However their names do not appear on the list of
those who had to move from Tswelopele and therefore are
not among
those entitled to be relocated.
LOCUS
STANDI
11.
The Metro filed an affidavit by Ward Councillor Thomson confirming
that each of the persons identified in the founding affidavit
were
not residents of Tswelopele ext. 8 but in fact tenants in Ward 102
Duduza. Accordingly there is no right or interest of theirs
which is
being infringed. The Councillor also refers to a conversation he had
with Thobejane who verbally confirmed this.
12.
This is not the first time the matter was brought before the court as
a matter of urgency. It had been put on the urgent court
roll of 28
June before Mia J. It was then removed from the urgent court roll at
the request of the applicants, in order to
enable them to to
file a replying affidavit, with costs in the cause
13.
Despite having been given the opportunity to do so, the applicants
have still not filed an answering affidavit to the counter
application or replying affidavit. Accordingly the contents of the
respondent’s affidavit stand.
14.
Secondly; no address is set out in any of the affidavits forming part
of the founding papers identifying where any of the four
currently
reside nor do any of the deponents claim that they are directly
affected by the conduct of the Metro. The furthest anyone
goes is
Thobejane who states that he is the chairperson of the applicants and
also their adviser in legal matters.
15.
I was therefore satisfied that the persons purporting to be the
applicants
lack locus standi
. The outstanding issue then
related to costs.
COSTS
16.
I was concerned that there had been an abuse of process.
Adv
Sithole
for the Metro only knew about the matter because he was
representing the Metro in an unrelated matter which was brought on
the same
day in the urgent court. Nonetheless I was also concerned
that the residents themselves should not be subject to a costs order
as the situation did not appear to be of their own making but was due
to decisions either taken by those who deposed to the affidavits
in
the founding documents or by their attorney.
I
therefore required affidavits to be presented dealing with the
responsibility for costs.
17.
The applicants’ attorneys filed an affidavit. Attorney Hlabane
claimed that he had served the notice of set down on the
Metro’s
correspondent attorneys at about 11am for hearing at 14h00 and did
not act out of malice. He also stated that he
felt duty bound to act
in the best interests of “
the applicants and their current
living conditions … and the issue of land in our country is a
very sensitive one more especially
in Gauteng Province where people
are competing for jobs and other necessities”.
18.
In explaining the bringing of the application, Atty Hlabane
said that:
“
The applicants
are without shelter … and the respondent does not care about
their plight and this is confirmed by the respondent’s
conduct
of burning their shacks each time the applicants erect. There are two
competing rights in this matter, the rights of people
who are
earmarked to be relocate to the land in question and the rights of
people who have been excluded but who feel that they
are also
entitled to the same piece of land.
From 28 June 2019
there has been a mushrooming of shacks in the area on a large scale
and if indeed the city cares about its people
why is it allowing the
mushrooming of shacks in an area where people were promised decent
housing not shacks.”
19.
There are two issues. The first is the concern that the
attorney has for the rights of those affected by urban land
distribution
and housing allocation. The other is the manner in which
he conducted the matter.
20.
As to the first, the need to resolve in a fair manner the land and
housing crisis in the metropolitan areas having regard to
available
resources is a given. If those entrusted with the responsibility of
ensuring that it is done are alleged to have acted
improperly then,
if administrative processes and negotiation fail, recourse must be
had to the courts by way of interdict, compelling
orders or
declarators to protect rights- not by self- help.
21.
In the present case the Metro identified people who were only
agreeable to being removed from their settlement under Eskom pylons
because the Metro had undertaken to relocate them to the area which
is now threatened by land invasion. It is also evident that
there was
active involvement of the affected residents in the process. If the
applicant’s attorney contends that his clients
have prior
rights then he must bring such a case to court and the court can
decide whether any interdictor relief is available
in respect of all
or a particular category once regard is had to the competing rights,
individual situations and hardships.
22.
However Atty Hlabane ought to have been aware that the matter was
opposed. He should have contacted his counterparts and given
them
notice that he intended re-launching the application or setting it
down. It would also have been necessary for him to have
explained the
delay in proceeding with the original application and at the least
have disclosed to the court what had occurred
previously as well as
what new facts are relied on to explain why a matter that had been
dormant for a month should again be treated
as urgent.
23.
Then there is the way in which the application was brought. The
full court in
Mtshali and others v Masawi and others
2017 (4)
SA 632
(GJ) was at pains to deal with how communities or groups of
affected persons can be conveniently identified in court proceedings
albeit that the rules of court might not be followed to the letter.
That was some two years ago. Yet Atty Hlabane failed to apply
even
this simple procedure which has resulted in persons whose rights or
interests are not even affected being made a party. This
does not
mean that they cannot represent the community. Sometimes those who do
not have a voice need such external assistance.
24.
But then there are no shortcuts to be taken when approaching a
court. Those whose rights are affected and who seek redress must be
identified and they must confirm the relief sought by them or on
their behalf.
If
regard is had to the number of people who have attended court then
the lists referred to in
Mtshali
and mentioned in the reasons
delivered last week in
City of Ekurhuleni Metropolitan
Municipality v The Unknown Individuals Trespassing on Farm
Rietfontein 153 (case no 2019/25865 GLD)
should have been
prepared The attorneys only have themselves to blame because they
failed to ensure that those who claim that their
rights have been
effected were not represented in these proceedings.
I
also point out that the rights which are alleged to have been
infringed are not included as a ground for seeking orders against
the
Metro nor has there been any attempt to protect those rights against
those who it is alleged are benefiting from it despite
falling
outside the category of those entitled to housing under the Project.
25.
If the issues are of such a magnitude that the assistance of
organisations who regularly deal with such matters may be of
assistance
in asserting their rights then such a course should be
followed.
26.
The Metro initially sought costs
de bonis propriis
against
the attorneys. It was made clear that no costs were sought against
the four persons who deposed to the founding papers.
27.
The Metro’s Divisional Head: Specialised Legal Services, Mr
Frank explained the background to the application originally being
removed from the roll at the insistence of the applicant’s
attorneys and his surprise at finding that the matter was re-enrolled
without any prior communication. At the last hearing however counsel
advised that the Metro does not now seek costs against anyone.
However that does not end the issue of costs.
The
applicant’s attorneys and any counsel that may have been
engaged are not entitled to charge a fee to any person or committee
who they may have taken instructions from or members of a community
or residents’ group in respect of the application brought
before me.
WAY
FORWARD
28.
This application was brought before me in a manner where those
purporting to do so, i.e. the four deponents to affidavits filed in
the founding papers, had no right of their own to protect or advance
in relation to the issues in dispute. It is apparent that
they are
the spokespersons for those who claim to have grievances. While they
can speak for them and give them voice they cannot
be substituted for
the affected persons.
29.
There is also a counterclaim brought by the Metro. However the
counterclaim is against the same applicant. Since the applicant has
no
locus
the application
per se
is stillborn and
therefore cannot breathe life into a counter-application.
30.
Before deciding whether permission should be given to allow
amendments so that those who claim to have a legitimate grievance or
claim that they are being spoliated are properly before the court it
is advisable to set out the different contentions.
31.
The Metro’s position is that those entitled to acquire
homes or otherwise occupy any land or a unit in the Project are on a
list of beneficiaries and that the process of determining who was
entitled to be on the list followed proper procedures, was fair
and
many, if not all, are people and their families who had agreed to be
removed from other areas. They also contend that every
attempted land
invasion was thwarted, presumably based on an entitlement to rely on
a right of counter-spoliation.
32.
Counter-spoliation requires immediate reaction by the holder of a
right to thwart its spoliation through an unlawful act of possession,
such as a land invasion of municipal property.
See
Mans v Loxton Municipality and Another
1948 (1) SA 966
(C) at 977-8 and
Fischer and another v Ramahlele and others
2014 (4) SA 614
(SCA) at para 23 where the court said:
“
A land invasion
is itself an act of spoliation. The Constitutional Court has recently
reaffirmed that the remedy of the mandament
van spolie supports the
rule of law by preventing self-help. A person whose property is being
despoiled is entitled in certain
circumstances to resort to
counter-spoliation. “
See
also
Yeko v Qana
1973 (4) SA 735
(a) at 739B – D and
Ness
and Another v Greef
1985 (4) SA 641
(C) at 647I –
649H and
De Beer v Firs Investments Ltd
1980 (3) SA 1087
(W) at 1092F
33.
The Metro also points out that it is common cause that there does not
exist a section known as Jeff Masemola, with the result
that no one
can claim to have been removed from there.
34.
The affected persons who attended court presented a memo to me. It is
not under oath but gives an indication of what prompted
them to
occupy land in the area.
As
in the
Rietfontein
case, they are individuals who
believe that they have legitimate grievances and that some of them
are entitled to be placed
on the list of beneficiaries as they have
prior rights or are on the list of beneficiaries who whether
individually or as a group
can claim no right to state housing. Their
rights and the grounds for asserting them may be summarised as
follows;
a. Many came from Ext 8
Serope Mperekele and are being compelled to leave because, despite
complaining to the police, nothing is
done about the high incidence
of murders and rape despite community representatives trying to work
with the police to arrest the
perpetrators. The community does not
feel safe and neither the police nor any other authority have been
able to secure their or
their family’s safety;
b. Delegations from the
community led by Thobejane attempted to engage with councillors and
officials, who displayed no interest
in their plight . It is claimed
that their delegation was either threatened or told to get jobs;
c. They believe that
there is an unoccupied area where they can be accommodated;
d. Corruption and
manipulation by those responsible for compiling list of beneficiaries
has resulted in those who have no
rights being given preference
on the list
e. Those affected number
approximately 150. In the time available a list was compiled of 113
names with individual signatures, identity
numbers and contact
numbers. The list was attached to the document they handed up. It
also contained photographs of police removing
structures. A video was
also provided on a disc showing the police destroying shacks and
burning certain items.
The
list of persons reflects men and women whose average age is in the
main between their late 20s to late 30s although there are
a few who
were born in the late 1960s to early 1970s.
35.
It is evident that there is a festering situation of discontent. The
issues range from allegations of a failure to protect a
community’s
right of security by police who do not perform their basic functions
to residents who are taking over stands
and land which others have
prior right to- bearing in mind that the latter were removed from an
area and are unable to return there.
There are also allegations that
the allocation process included those who have no entitlement to be
on the lists as they have other
properties. The community now has the
list of beneficiaries and it would be a simple matter to identify
those who it is alleged
have no right to preference ahead of them and
allow those who are genuinely entitled to be beneficiaries to take
occupation as
soon as possible.
36.
In my view the papers filed do not set out all the rights and issues
involved. The description of the applicants is challenged
which also
makes it difficult to simply identify individuals as being part of a
group entitled to assert the rights contended for.
37.
There remains a need to deal with the issues; whether it entails
ensuring that the police do their job and guarantee the security
of
people within their communities or establishing if basic services,
whether it be portable latrines or water, is brought to the
area
where they presently live.
38.
In my view the application falls to be dismissed on the ground that
the parties as identified do not have standing to bring
the case. For
this reason too any counterclaim against them cannot survive since
there is no competent applicant against whom relief
can be effective.
This will release the parties to get their papers in order and start
afresh as the underlying issues remain pressing.
39.
Moreover there appear to be a number of interim solutions that
may satisfy all the parties, accepting, as all must, that
the issue
is both about an objectively fair process whereby different groups,
who may well be in the same unenviable position vie
for scarce
resources. These issues are exacerbated by the failure to
provide basic safety for citizens or a transparent process
which
keeps people informed of their progress on the housing lists or lists
for receiving an adequate suite of basic services.
ORDER
40.
The matter is before me and I do not believe that there is any
redeeming quality in the original application to permit it to
survive
and engage the attention of another court.
The
point in limine is good. It however also has the effect of rendering
the counter-application moot for want of
locus
on the part of
the persons purporting to come to court under the description of the
cited applicant. Since the Metro does not accept
that the persons
come from or reside in the area described in their citation it is
best that the entire application is dismissed.
41.
However any party may approach the court on the same issues as
contained in the present application and counter-application
provided
the identity of the affected persons is adequately described and
identified in substantial compliance with the requirements
set out in
the cases cited earlier.
42.
There will be no costs order nor may the applicants’ attorneys
or counsel, if any, charge their clients for bringing
the application
on 25 July 2019 or for any costs arising from the subsequent hearings
or in respect of the preparation of any documents.
(Signature)
___________
SPILG, J
DATES
OF HEARING:
24 July, 1, 14, 16 and 19 August 2019
DATE
OF JUDGMENT:
28 August 2019
FOR
APPLICANT:
Attorney Hlabane
FOR
RESPONDENT:
Adv E Sithole