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[2020] ZAGPJHC 176
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City of Ekurhuleni Metropolitan Municipality v Sikhosana and Others (15245/2020) [2020] ZAGPJHC 176 (10 July 2020)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 15245/2020
In
the matter between:
CITY OF EKURHULENI
METROPOLITAN MUNICIPALITY
Applicant
and
RITA
SIKHOSANA
First
Respondent
LUIS
MBALANE
Second
Respondent
VUSI
MNGONI
Third
Respondent
NOMALUNGELO
MNQABASHE
Fourth
Respondent
CHRISTOPHER
MOTSIPI
Fifth
Respondent
OLGA
CHILOANE
Sixth
Respondent
REMEMBRANCE
CONSWA
Seventh
Respondent
THANDI
NKOSI
Eighth
Respondent
THE
UNKNOWN INDIVIDUALS GATHERING & OR
TRESPASSING
AT FARM 73 IR, DAVEYTON
also known as
DAVEYTON
EXTENSION 14, WITH THE INTENTION TO
PROVOKE
THE EMPLOYEE AND INTERFERE WITH THE
CONSTRUCTION
WORK AT DAVEYTON EXTENSION 14
Ninth
Respondent
MOTHEO
CONSTRUCTION GROUP (PTY)
LTD
Tenth
Respondent
CITY
OF EKURHULENI METROPOLITAN POLICE
DEPARTMENT
(“Daveyton”)
Eleventh
Respondent
SOUTH
AFRICAN POLICE SERVICES
(“Daveyton”)
Twelfth
Respondent
JUDGMENT
YACOOB
J:
1.
The applicant, the City of Ekurhuleni
Metropolitan Municipality (“the City”), approaches this
court on an urgent basis
for an order interdicting the first to ninth
respondents (“the community”) from acting in a manner
that impedes the
continuation of a project being carried out by the
tenth respondent.
2.
The project had previously been conducted
by different service providers and carried out in consultation with
the community, but
it had ground to a halt for various reasons and
the City has now appointed the tenth respondent who has attempted to
resume operations.
The community has objected to the process and also
to the manner in which the tenth respondent has identified
subcontractors.
3.
During approximately the third week of June
work was disrupted by protests. On 24 June a memorandum was delivered
which demands
that the project continue with community involvement as
had previously been promised to the community by the MMC of Human
Settlements,
Mme Lesika, failing which there would be “total
shutdown”.
4.
On the back of this obvious threat the City
approached the Court. I am satisfied that the matter is clearly
urgent.
5.
The community was not legally represented
at the hearing nor were any affidavits filed. However certain of the
members of the community
were present in person at court, including
the first, third, fourth and fifth respondents, and the first
respondent, Ms Sikhosana,
spoke on their behalf. I pause to note
that, as with most matters at present, the matter was heard by means
of video conference,
and a link was made available in court to allow
the community to join the hearing.
6.
Ms Sikhosana communicated that the
respondents would like to file an affidavit and in fact had attempted
to attest to one but that
two police stations they had attended were
closed due to Covid-19. She said that the memorandum had been written
in anger and that
they apologised for the threat of total shutdown.
They simply wanted engagement and they wanted things to be done
properly. According
to her the community wants to resolve the issues.
7.
In response it was submitted by Mr Sithole
for the City that the MMC was more than happy to engage but that the
project could not
be halted in the meantime. On being asked to
provide a date on which the MMC could meet with the community he
obtained instructions
to the effect that 17 July would be possible.
8.
It is unacceptable for the community to use
force in order to coerce the City to engage with it and to try and
get its way. The
court cannot condone threats made by the community.
Communities and all members of our society must be encouraged to turn
to the
courts rather than to forceful action when there is a problem.
9.
On the other hand the City cannot rely on
its better resources to bulldoze its decisions through particularly
in a matter with a
history of consultation and community involvement.
10.
In addition when the City agrees to engage
with the Community but insists that the project will continue in the
meantime, questions
arise about the
bona
fide
nature of that engagement. The
City, as the level of government closest to the people, has a
particular obligation to transparency,
responsiveness and care.
11.
In terms of section 152(1)(e) of the
Constitution an object of local government is “to encourage the
involvement of communities
and community organisations in the matters
of local government”.
12.
This applies particularly in a project
which has a direct impact on the community, and in a situation in
which community feeling
is particularly high.
13.
In my view
bona
fide
engagement is essential, and it is
necessary if the engagement does not result in a resolution for these
important issues to be
fully ventilated in and decided by a court.
14.
For these reasons I consider it to be in
the interests of justice to make an order which will hopefully foster
the extra curial
resolution of the matter, and if not, will allow all
the issues to be properly ventilated before a court in due course,
where that
court is not hamstrung by the fact that the project is now
a
fait accompli.
15.
Mr Sithole informs me that a date has been
obtained on the opposed roll of 7 September. The matter can therefore
be postponed to
that date.
16.
For these reasons, I make the following
order:
(1)
The matter is urgent and the applicant’s
failure to adhere to the Uniform Rules of Court is condoned.
(2)
The matter is postponed to the Opposed Roll
of 7 September 2020.
(3)
The applicant is directed to engage with
the respondents and all interested parties with a view to reaching a
resolution of the
issues. This engagement process is to be completed
by 17 July 2020, including a meeting between the MMC and community
members and
any other meetings that are considered appropriate.
(4)
The applicant is directed to file a report
with this court setting out the processes undertaken in the
engagement, and the outcome
thereof, by 24 July 2020. The applicant
may simultaneously supplement its founding papers if necessary.
(5)
The respondents are to file any answering
affidavits to the founding affidavit, the report and any
supplementary affidavit, by Wednesday
05 August 2020.
(6)
The applicant is to file any replying
affidavit by Thursday 13 August 2020.
(7)
The parties are to file heads and practice
notes by Friday 21 August 2020.
(8)
Pending the hearing of this matter on 7
September 2020 or any other date to which it may otherwise be
postponed, the first to ninth
respondents and any person associated
with them are interdicted from
a.
trespassing, invading and or gathering at
the construction site described as Remaining Extent of farm, Daveyton
No. 73 also known
as “Daveyton Extension 14 housing project”
for the purposes of: -
b.
intimidating, obstructing, disrupting,
interfering and threatening, provoking the applicant’s
employees and or the employees
of the tenth respondent.
c.
performing any act of violence or causing
violence or making any threat or instigating any threat by any other
means, such as throwing
stones to any authorised persons at Daveyton
Extension 14.
d.
instigating any person or member of the
public to perform acts designed to intimidate, obstruct, disrupt or
interfere with the applicant’s
appointed contractors’
employees together with its subcontractors.
e.
conducting demonstration or gathering at
any place closer than 200 metres from the perimeter of any of the
Daveyton Extension 14
construction site and
f.
from invading and attending to Daveyton
Extension 14 for the purposes of constructing their own top
structures “dwellings”
in order to settle or reside in.
(9)
Pending the hearing of this matter on 7
September 2020 or any other date to which it may otherwise be
postponed, the applicant and
the tenth respondent are to suspend work
at Daveyton Extension 14.
(10)
The members of the Ekurhuleni Metropolitan Police and of the
South African Police Services are authorised to assist the applicant
in securing the Daveyton Extension 14 housing project in accordance
with this order should the need arise.
(11)
Should any new event occur which requires
this order to be revisited before 7 September 2020, the parties may
set the matter down
on the same papers duly supplemented.
________________
S YACOOB
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
For
the applicant: Mr Sithole
Instructed
by: Tshivhase Kinstler Attorenys
For
the first to ninth respondents: In person.