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[2014] ZASCA 83
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Rustenburg Local Municipality v Mdango and Others (937/13) [2014] ZASCA 83 (30 May 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 937/13
In the matter
between:
RUSTENBURG LOCAL
MUNICIPALITY
.........................................................................
Appellant
and
VINCENT
MDANGO AND
OTHERS
................................................................
1-20
th
Respondents
MEMBER OF THE
EXECUTIVE COUNCIL FOR
HUMAN SETTLEMENT,
PUBLIC SAFETY
AND LIASON, NORTH
WEST
PROVINCE
..........................................................
21
st
Respondent
THE MINISTER OF
RURAL
DEVELOPMENT AND
LAND
REFORM
.............................................................
22
nd
Respondent
Neutral
citation
:
Rustenburg
Local Municipality
v
Vincent
Mdango
(937/13) ZASCA 83 [30 May 2014]
Coram:
Mhlantla, Bosielo, Theron and Willis
JJA and Swain AJA
Heard:
09 May 2014
Delivered:
30 May 2014
Summary:
Eviction in terms of Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
– section 6 –
eviction of unlawful occupiers –
power of court to make an order that is just and equitable.
ORDER
On
appeal from
: North West High Court,
(
Mafikeng
),
Gura J sitting as court of first instance:
1
The appeal and cross-appeal are upheld to
the extent set out below.
2
The order of the high court is set aside.
3
The matter is remitted to the high court
for reconsideration.
4
Prior to the hearing of the matter in the
high court:
(i) The 21
st
and 22
nd
respondents are ordered, within 30 days of the
grant of this order, to file affidavits in which they set out the
following details:
(a) The steps taken
to ascertain the availability of suitable alternative accommodation
for the 1
st
to 20
th
respondents; and
(b) What alternative
land and/or alternative accommodation is now or in the near future
likely to become available for the 1
st
to 20
th
respondents.
(ii) The 1
st
to 20
th
respondents are ordered to file affidavits setting
out their personal circumstances including, but not limited to, the
rights and
needs of the elderly, children, disabled persons and
households headed by women, and any such additional information that
is relevant
to a just determination of this matter. These affidavits
must be filed on or before 6 August 2014.
(iii) The appellant
may, within 15 days after the filing of the 1
st
to 20
th
respondents’ affidavits, file such affidavits as it deems
necessary.
5 Pending the
finalisation of this matter in the high court, the appellant is
interdicted from evicting the 1
st
to 20
th
respondents from the properties they are currently occupying.
6 The high court is
directed to afford the parties preference in respect of the
reconsideration of the matter.
7 The costs of the
proceedings in the high court and in this court shall be costs in the
cause.
8
The appellant is directed to immediately serve a copy of this order
on the 21
st
and 22
nd
respondents.
JUDGMENT
Mhlantla JA
(Bosielo, Theron and Willis JJA and Swain AJA concurring):
[1] On 9 May 2014,
this court ordered a remittal of this matter to the high court for
reconsideration in terms of the orders set
out above. We indicated
that the reasons for the order would follow. These are the reasons.
[2]
This appeal and the cross-appeal are against the decision of the
North West High Court, Mafikeng (Gura J), in terms of which
he
granted an eviction order against the respondents but suspended the
order pending the availability of suitable accommodation
or land for
the settlement of the respondents. The appeal and cross-appeal are
before this court with the leave of the high court.
[3]
The appellant is the Rustenburg Local Municipality (the
municipality), a local municipality as defined in the
Local
Government: Municipal Structures Act 117 of 1998
. The first to
twentieth respondents (the respondents) are various occupiers of the
Reconstruction and Development Program (RDP)
houses at Seraleng
Township, Rustenburg. The Member of the Executive Council for Human
Settlement, Public Safety and Liason, North
West (the MEC) and the
Minister of Rural Development and Land Reform (the Minister) are
cited as twenty first and twenty second
respondents respectively.
Background
[4]
The litigation leading to this appeal arose as a result of the
respondents’ conduct. During November 2007 the respondents
invaded a number of RDP houses owned by the municipality. These
houses were due to be allocated to applicants who had been approved
by the municipality. In September
2011, the municipality launched an application in the North West
High
Court, Mafikeng and sought an order for the eviction of the
respondents from these houses in terms of the provisions
of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE). No order was sought against the
MEC and the
Minister.
[5]
In the founding affidavit to which the acting municipal manager
deposed, he said that the respondents had illegally occupied
the
houses and that the Housing Programme of the municipality was as a
result hampered. He said that the municipality had been
informed that
no land could be made available for purposes of housing. In this
regard, he declared that it would be advisable that
the MEC and the
Minister participate actively in this matter with a view to
overcoming the impasse.
[6]
The municipality’s wish did not materialise as neither the MEC
nor the Minister participated in the litigation. Initially,
the MEC
filed a notice of opposition but withdrew this a day later, electing
to abide the decision of the court. The court was
therefore left in
the dark with regard to the availability of suitable alternative
accommodation or land as well as steps taken
to ascertain the
availability of suitable alternative accommodation and various other
factors relevant thereto.
[7]
The respondents in their answering affidavit, revealed a sad state of
affairs regarding the issue of housing in this country.
They provided
a detailed account of the history and circumstances that led them to
occupy the houses. In this regard, they stated
that in 1996 they were
inhabitants of an informal settlement called Sondela. They later
moved to an area known as Etipini when
Sondela became full. In 2002
they were uprooted officials of the municipality with a promise that
their area was earmarked for
a development of RDP houses. They were
advised to submit their names to the relevant officials who would
compile a list for their
allocation to the houses to be built in
Etipini. Thereafter, they were moved to an area called Egcibhala
whilst the building construction
of the RDP houses at Etipini was
conducted. They stayed in shacks and remained at Egcibhala until
2005.
[8]
In 2005, the construction of RDP houses at Etipini was completed. The
respondents expected the municipality to allocate the
houses to them
in terms of the agreement but were shocked to discover that most of
the houses had already been allocated to persons
unknown to them.
They enquired from the officials about the situation and the
municipality’s failure to honour the agreement.
They did not
receive a positive response. Instead, the municipality demolished
their shacks at Egcibhala. As a result, the respondents
found
themselves homeless.
[9]
The respondents found some vacant land at Etipini. They again engaged
the municipality and sought damages for the demolition
of their
properties. They also requested that they be considered for
allocation of RDP houses that were being constructed at Egcibhala.
Discussions were held with ward councillors. The respondents further
alleged that in 2006, they discovered that the municipality
had
allocated these houses to other people. Owing to their experience
and, in despair, they decided to occupy the houses as it
became clear
to them that the municipality had no intention of honouring the
agreement. At that stage their shacks had already
been demolished.
[10]
The application in the high court came before Gura J. That court
correctly found that since the municipality had not allocated
the RDP
houses to the respondents, they were in unlawful occupation thereof.
Regarding the question whether it would be just and
equitable to
evict the respondents, the judge lamented the paucity of information.
The court was concerned about the attitude of
the municipality and
its failure to suggest any plan regarding the resettlement of the
occupiers as well as its failure to provide
steps taken to consider
the issue of alternative accommodation or land. Notwithstanding the
concerns raised, the court granted
an order for the eviction of the
respondents, but suspended it pending the availability of suitable
accommodation or land for the
settlement of the respondents.
[11]
Both parties were not satisfied with the outcome. The high court
granted them leave to appeal and cross-appeal to this court.
[12]
In this court, the issues were twofold. First, whether it was just
and equitable to evict the respondents. Second, whether
the court
below erred in suspending the eviction order.
Legal
Framework
[13]
Sections 26 and 28 of the Constitution are the key constitutional
provisions at issue in this case. Section 26 provides:
‘
Housing
–
(1) Everyone has the
right to have access to adequate housing.
(2) The state must
take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of this right.
(3)
No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the
relevant
circumstances. No legislation may permit arbitrary evictions.’
[14]
Section 28 reads:
‘
Children-
(1)
Every child has the right -
(a)
. . .
(b)
. . .
(c)
to basic nutrition, shelter, basic
health care services and social services;
(d)
. . .
[15]
The current state of our law in regard to evictions and giving effect
to section 26 of the Constitution is found in PIE. Section
6 of PIE
governs the eviction proceedings by an organ of state and reads:
‘
Eviction
at instance of organ of state-
(1)
An organ of state may institute proceedings
for the eviction of an unlawful occupier from land which falls within
its area of jurisdiction,
except where the unlawful occupier is a
mortgagor and the land in question is sold in a sale in execution
pursuant to a mortgage,
and the court may grant such an order
if it is just and equitable to do so, after considering all the
relevant circumstances’
and if –
(a)
the consent of that organ of state is
required for the erection of a building or structure on that land or
for the occupation of
the land, and the unlawful occupier is
occupying a building or structure on that land without such consent
having been obtained;
or
(b)
it is in the public interest to grant
such an order.
(2) For the purposes
of this section, “public interest” includes the interest
of the health and safety of those occupying
the land and the public
in general.
(3) In deciding
whether it is just and equitable to grant an order for eviction, the
court must have regard to –
(a)
the circumstances under which the unlawful
occupier occupied the land and erected the building or structure;
(b)
the period the unlawful occupier and his or her
family have resided on the land in question; and
(c)
the availability to the unlawful occupier of
suitable alternative accommodation or land.’
[16]
At the commencement of the appeal, we raised our concerns with
counsel for both parties about the paucity of information and
in
particular the fact that the MEC had elected to abide the decision of
the court instead of providing information relating to
alternative
suitable accommodation, and the fact that the municipality had failed
to submit a report about any steps taken by it
to provide alternative
suitable accommodation to the respondents. We were also concerned
about the respondents’ failure to
bring their personal
circumstances to the attention of the court below.
[17]
It is imperative that a court seized with an application in terms of
section 4 or 6 of PIE must take all relevant factors into
consideration before granting an eviction order. We referred counsel
for the parties to the decision of this court in
Ekurhuleni
Metropolitan Municipality & another
v
Various
Occupiers, Eden Park Extension 5
,
[1]
where Ponnan JA said:
‘
[T]he
enquiry to be undertaken is therefore whether, given all the relevant
factual, legal and socio-economic circumstances, it
is just and
equitable to order the eviction of the unlawful occupier:
“
This
requires a court to make a value judgment, but it must not do so in a
vacuum.”
There are various
considerations relevant to this determination, as outlined both in
the Act and through the case law, with each
factor taking on either
an increased or lesser importance depending on the prevailing factual
matrix of each matter. According
to Chenwi the following are
potentially relevant to the enquiry:
“
(i)
[T]he manner in which the occupation was effected; (ii) the duration
of the occupation; (iii) the availability of suitable alternative
accommodation or land; (iv) reasonableness of offers made in
connection with suitable alternative accommodation or land; (v) the
timescales proposed relative to the degree of disruption involved;
(vi) the willingness of the occupiers to respond to reasonable
alternatives put before them; (vii) the extent to which serious
negotiations have taken place with equality of voice for all
concerned;
and (viii) the gender, age, occupation or lack thereof and
state of health of those affected. . . [and] the manner of execution
of the eviction order, that is, whether it was executed humanely…
Furthermore, the interests of surrounding communities
as well as the
negative impact of “land gaps” on investor-confidence in
the country, and the right of landowners (discussed
subsequently),
have been regarded by the courts as relevant factors.”’
[18]
In coming to its decision in
Ekurhuleni
,
this court was influenced by the Constitutional Court decisions in
Government
of the Republic of South Africa & others
v
Grootboom
& others
,
Joe
Slovo Community, Western Cape
v
Thubelisha
Homes & others (Centre on Housing Rights and Eviction &
another, Amici Curriae)
as well as
Port
Elizabeth Municipality
v
Various
Occupiers
.
[2]
The decision of
Ekurhuleni
is instructive. It is undesirable for the courts to make orders of
eviction where the information or factors referred to in
Ekurhuleni
are lacking or insufficient. In the present case, it is common cause
that the respondents have been in occupation since 2007. Their
personal circumstances including the rights and needs of the elderly,
children, disabled persons and households headed by women
must be
placed before the court. Similarly, the MEC’s involvement and
input is crucial to the determination of whether it
will be just and
equitable to evict the respondents.
[19]
In the result, counsel for both parties conceded that insufficient
information was presented in the high court. They agreed
that the
matter should be remitted to the high court and that both parties
including the MEC be allowed to provide the relevant
information to
enable the court to make a proper determination of the issues.
[20]
It is for these reasons that the order to which reference was made in
the first paragraph above was made.
__________________
NZ
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES:
For Appellants: H
Lever SC (with him O.K Chwaro)
Instructed by:
Kgomo Mohetle &
Tlou Attorneys
c/o Bezuidenhouts
Inc, Bloemfontein
For Respondents: P
Shapiro
Instructed by:
S Shapiro Attorneys
Johannesburg
[1]
Ekurhuleni
Metropolitan Municipality & another
v
Various
Occupiers, Eden Park Extension 5
[2014]
1 All SA 386
(SCA) para 19.
[2]
Government
of the Republic of South Africa & others
v
Grootboom
& others
2001 (1) SA 46
(CC) paras 82 and 83;
Joe
Slovo Community, Western Cape
v
Thubelisha
Homes & others
(Centre
on Housing Rights and Eviction & another, Amici Curriae)
2010 (3) SA 454
(CC) para 148;
Port
Elizabeth Municipality
v
Various
Occupiers
[2002] ZACC 31
;
2003 (2) SA 363
(CC),
(2003 (2) BCLR 111)
paras 35 and 36.