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[2021] ZAGPJHC 730
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Saloojee and Another v The Unlawful Occupiers of Erf 10742 (10410/2019) [2021] ZAGPJHC 730 (8 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 10410/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
08
JUNE 2021
FAROUK
SALOOJEE
First Applicant
FATIMA
RASHID SALOOJEE
Second Applicant
And
THE
UNLAWFUL OCCUPIERS OF
ERF
10742 LENASIA EXTENSION 13 TOWNSHIP
SITUATED
AT 5 TOPAZ ROAD
EXTENSION
13
LENASIA
First Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
KUNY
AJ
Introduction
1)
The applicants seek an eviction order against the
occupiers of Erf 10742, Lenasia, Extension 13, Township (“the
property”).
The property is situated at 5 Topaz Road Extension
13, Lenasia. They also seek an order for the demolition of the
structures on
the property erected by the alleged unlawful occupiers.
2)
The second respondent has been cited in the
application in accordance with the statutory requirements of the
Prevention of Illegal
Eviction Act, No 19 of 1998 (“PIE Act”).
It conducted an investigation pursuant to an order of this court and
has filed
an affidavit that will be dealt with below.
3)
Mr Victor Maluleke, one of the occupiers, appeared
on his own behalf at the hearing on 26 April 2021. Another occupier,
Ms Phumzile
Elizabeth Twala, filed an affidavit. However, she did not
appear when the matter was argued. The applicants were represented by
Adv C Malan. Mr SG Lusenga appeared for the second respondent.
4)
Mr Maluleke applied for a postponement at the
hearing on the grounds that he wanted to obtain legal assistance. He
stated that he
had tried to obtain the assistance of an attorney.
However, they complained about a lack of communication and rejected
his plea
for assistance. As will appear below all the facts and
issues relevant to the order sought by the applicant were placed
before
the court. Heads of argument were filed on behalf of Mr
Maluleke and he was able to state his case in argument. I did not
consider
it in the interests of justice that the hearing of the
matter be delayed any further and I refused the postponement.
5)
The first and second applicant allege that the
property was registered in their names jointly on 20 December 2018.
In support of
this averment, they annex to their founding affidavit a
copy of their title deed. They purchased the property from the
Department
of Housing in 2001 as appears from a copy of an offer to
purchase also annexed to their founding papers. For reasons not
explained,
it took some 17 years for the property to be registered in
their names. According to the applicants the property has been zoned
for institutional purposes and they intend to establish a school on
the site.
6)
The applicants allege that after they had acquired
registration of the property, they became aware that a group of
individuals had
unlawfully occupied the site and erected dwellings
thereon. This was in or about December 2018. They gave the occupiers
a reasonable
period to vacate. Their demand was to no avail and they
sought the intervention of the South African Police Services. In
addition,
they sought the assistance from a senior administrator from
the Department of Human Settlements. This also did not help and at
the end of January 2019 they engaged the services of a lawyer. The
application was issued on 19 March 2019.
7)
On 14 April 2019, after service of the
application, Mr Maluleke, designating himself as the first
respondent, personally filed a
notice of intention to oppose. He
thereafter filed an answering affidavit. In summary he states as
follows:
7.1. He is an
unemployed 41-year-old married male. He and his wife have a natural
child and an adopted child. Both children
are minors.
7.2. On 7 June
2017, community leaders at Lenasia held a meeting with community
members to address concerns regarding a shortage
of land and a
perceived unwillingness on the part of the Government to identify
residential land for community members.
7.3. Suggestions
were made that a list of names of persons requiring land be drawn up
and submitted to the MEC for Housing.
It was proposed that land be
purchased by the Government for occupation by such persons. The
community identified empty land. There
appears to have been a
proposal that people build on such land while waiting “for
approval” (Caselines 009-3, para
4 and 5).
7.4. It is clear
that at some point, probably after the meeting in June 2017, Mr
Maluleke and his family took up occupation
on the property.
7.5. Mr Maluleke’s
wife approached Nedbank and obtained a loan of R37 000. A credit card
with a limit of R7 000 was
also approved. The money obtained from the
bank was used to build a five roomed house on the property. Mr
Maluleke states that
there was no attempt by the applicants or anyone
else to prevent him and his wife from doing so.
7.6. Mr Maluleke
complains that he and his family have nowhere else to go. He states
that the applicants approached him and
his wife and offered to buy
the property from him and the other occupiers at the property. They
rejected this offer.
8)
An unsigned answering affidavit was filed by Ms
Phumzile Elizabeth Twala. She identifies herself as a single mother
who is taking
care of minor children on the property in question. She
occupies a second dwelling on the property. She says that if she is
evicted,
she will be without alternative accommodation and will be
rendered completely homeless.
9)
It appears that in August 2018 Ms Twala was
assisted by an organisation calling itself “Lawyers for Black
People (NPC)”.
They helped her to file the unsigned affidavit
referred to above. A signed version of the above document was later
filed.
10)
In her affidavit Ms Twala disputes that applicants
are the owners. Reference is made to a document headed City of
Johannesburg “Corporate
Geo-Informatics Parcel information”.
However, this document indicates that the applicants are the owners
of Erf 10742, Lenasia
Ext 13. It further indicates that the property
is some 3696 square meters in extent and is valued at R1 772 000
(Caselines 010-33).
11)
Ms Twala states that she applied for a housing
subsidy with the Department of Human Settlements in 2008. She
identifies herself
as a homeless indigent member of society, in
desperate need of housing. She complains that she had not been given
an opportunity
to purchase land. In paragraph 1.11 of her affidavit
she further states:
“
The
issue here for the Honourable Court to decided is landlessness of the
people of Lenasia and the country at large. This is of
course not a
suggestion for the Honourable Court to condone unlawfulness but
rather interrogate and negate the true reasons as
to why many of
South Africans are in desperate need to land and housing. Housing is
a form of installing dignity to many of us
and since the Department
of Human Settlements has failed on its mandate to provide adequate
housing as envisaged in Section 26
of the Constitution, it should
therefore not be an unreasonable act for many indigent people such as
myself to resort to selfhelp
in an attempt to provide accommodating
for their families. To further put emphasis on this matter the
Honourable Court is drawn
to the Rapid Land Release Program which was
adopted by the Provincial Government last year which has not been
implemented to this
time, such is indicative of the lack and will for
those in charge to assist the poor.”
12)
Ms Twala asks in her affidavit that if the court
is inclined to grant an eviction order, it consider the provisions of
section 4(7)
and 7(1) of the PIE Act as well as section 26(3) of the
Constitution.
13)
The applicants raised technical objections to the
affidavit filed by Mr Maluleke and the unsigned affidavit of Ms
Twala. The oath
clause in Mr Maluleke’s affidavit clearly does
not comply with the regulations relating to the deposition of
affidavits.
The alleged defect in Ms Twala’s affidavit was
cured as it was subsequently signed. In the interests of justice, I
am prepared
to permit their affidavits to stand and to take
cognisance of their contents.
14)
On 11 August 2020, Maier-Crawley J granted an
order directing the second respondent to conduct an inspection of the
property and
to deliver a report setting out:
2.1
Which, if any of the First Respondents qualify for the provision of
temporary emergency accommodation (‘TEA’)
and the reasons
therefore, having regard particularly, but not limited to, their
personal, familial, occupational and socio economic
circumstances, including the living conditions under which they
subsist at Erf 10742 Extension 13 Lenasia, situated at 5 Topaz
Road.
Extension 13, Lenasia and the period of their habitation thereat;
2.2 The
TEA that will be made available to the First Respondents, its
location, and when such TEA will be made
available, and including a
positive undertaking that this TEA will be made available;
2.3 Why
the particular location and form of accommodation has been
identified;
2.4 The
steps taken by the 2
nd
Respondent to engage with the First
Respondents in relation to the facts specific to this case, as set
out in the affidavit and/or
documents flied of record, including the
facts in relation to and outcome of any prior engagement between the
Department of Human
Settlements, represented by its senior
administration officer, Inspector Mukhesi Moss Maponya and the First
Respondents;
2.5 The
steps that have been, and will be taken by the Second Respondent to
secure the TEA referred to in 2.1
above, and to relocate First
Respondent to such TEA.
15)
On 12 November 2020 the second respondent filed a
report in the form of an affidavit deposed to by Mr P Phophi. He
identifies himself
as the Acting Executive Director: Housing, in the
employ of the City of Johannesburg.
16)
Mr Phophi outlines the second respondent’s
obligations in relation to the investigation and provision of
Temporary Emergency
Accommodation (“TEA”). He states that
the Municipality’s legitimate interest in eviction cases is
mostly triggered
where there is a risk of homelessness. He further
points out in this regard that the second respondent depends heavily
on information
made available to it by the persons facing a threat of
eviction in order to assess this risk and such persons’
eligibility
for the allocation of TEA.
17)
Mr Phophi states that where appropriate and
justified, TEA will be provided to affected persons inter alia in the
following categories:
17.1. Households whose
monthly income is below R 3 500,00;
17.2. Minor-headed
households;
17.3. Elderly persons;
17.4. Persons without
dependants;
17.5. Persons who do not
own any immovable property in the Republic;
17.6. Persons who have
not previously received assistance;
18)
On 13 October 2020 the second respondent conducted
an assessment of the properties and investigated the occupiers’
personal
circumstances. The following emerged from this assessment:
18.1. The property is a
large open space with two houses erected thereon. One of the houses
was built by Ms Twala in 2018. Ms Twala
is a 33-year-old South
African national. She built the house as she wanted to have a private
place away from her family home. The
house is not occupied on a
permanent basis. She has no disability and resides with her parents
in a family house nearby. Her brother
temporarily visits or sleeps in
the house.
18.2. The second house on
the property is occupied by Mr Maluleke and his family. It is a
two-bedroom house with a kitchen and living
room.
18.3. Mr Maluleke is
originally from Chawelo in Soweto where his family has a home. He has
a good relationship with his siblings
who reside in the family house.
18.4. The family of Mr
Maluleke’s wife has a house in Protea Glen, Soweto. She has a
strong relationship with her family,
visits often and on occasion
when she goes to work, leaves one of her children with her mother.
18.5. The couple
originally resided with Mr Maluleke’s family in Chawelo. They
moved from the family home into rented accommodation.
In 2018 they
moved onto the property in issue and built the house where they
currently live because they wanted a private space
to live in as a
family.
18.6. During the
assessment, Mr Maluleke indicated that he is employed at Nielsen
Omonde, a company based in Johannesburg, as an
interviewer. He
reported that he earns a salary of R1 500 per month. His wife
indicated that she was working as a nail technician
at Sorbet, a
salon company in Protea Glen, Soweto. She earned a salary of R5 000
per month. The couple obtain a child support grant
of R440 per month.
19)
In the second respondent’s assessment there
is no likelihood that homelessness will arise in the case of either
Mr Maluleke
and his family or Ms Twala. It is reasoned that the
parents of the occupiers will be in a position to assist with
alternative accommodation.
The second respondent also points out that
Mr Maluleke and his partner were previously renting accommodation
before they occupied
the property. Their combined household income is
assessed at R6 500 per month. They ought therefore, if their
respective families
cannot assist them, to be in a position to obtain
alternative rental accommodation.
20)
The second respondent describes in its report its
constitutional obligation to provide housing. It states that
Johannesburg is a
“migrant city” due to the high rate of
urbanization. Migrants are generally unable to afford accommodation
in the formal
housing sector. Their housing needs are catered for in
the “informal market” such as informal settlements and
overcrowded
rental accommodation. The second respondent notes that
there is a desperate shortage of housing in the inner city. As a
result,
unlawful occupation and the need for TEA has increased
tremendously. There is a backlog of at least four years in the
provision
of accommodation to those in need. There are no TEA
facilities currently available in Region D, being the region under
which the
occupiers fall.
21)
The second respondent concludes that given the
circumstances established during its assessment, it does not have a
constitutional
obligation to provide TEA to the occupiers of the
property. In any event, says the second respondent, it currently does
not have
any TEA available in the event that the court grants an
eviction order. It blames this state of affairs on the Covid-19
pandemic.
22)
In a somewhat ambiguous statement, the second
respondent requests that if the court were to grant an eviction
order, such order
be suspended for a period of three years (beginning
from the last day of the National Lockdown) to enable it to comply
with its
constitutional duty to provide TEA to the occupiers.
23)
In my view, there is no merit to the defence
raised by the occupiers that the applicants have not established that
they are owners
of the property and therefore do not have a right to
an eviction order. The so-called Corporate Geo-Informatics Parcel
information
that Ms Twala relies upon actually substantiates the
allegation that the applicants are the owners of the property.
24)
A telling aspect is that the occupiers reveal in
their affidavits that they decided to occupy land, regardless of who
the owners
of such land were. Their rationale for doing so was that
the Government had failed to fulfill its constitutional duty to
provide
land and this justified self-help measures. I accept the
applicants’ contention that Mr Maluleke and his family and Ms
Twala
are unlawful occupiers. The dire shortage of land and the
second respondent’s constitutional obligation to provide land
so
as to ensure that people are not homeless did not render their
occupation of the property lawful. They also did not have permission
and were not entitled to erect dwellings on the property. These
structures were built illegally.
25)
Section 4(7) of the PIE Act is applicable. This
section provides as follows:
If an unlawful occupier
has occupied the land in question for more than six months at the
time when the proceedings are initiated,
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,
except where the land is sold in a sale of execution pursuant to a
mortgage, whether land has
been made available or can reasonably be
made available by a municipality or other organ of state or another
land owner for the
relocation of the unlawful occupier, and including
the rights and needs of the elderly, children, disabled persons and
households
headed by women. [underlining added]
26)
The
applicant bears the onus of proving that it would be just and
equitable to grant an eviction order.
[1]
The Constitutional Court has ruled that in considering evictions
under the PIE Act a court must endeavour to balance and reconcile
opposing claims taking into account all the interests involved.
Consideration must be given to the particular circumstances of
each
case.
[2]
An order that gives rise to homelessness cannot be just and equitable
unless provision is made for alternative or temporary
accommodation.
[3]
27)
The factors that I find to be relevant in
considering whether it would be just and equitable to grant an
eviction order are as follows:
27.1. The information
obtained by second respondent concerning the personal circumstances
of Mr Maluleke and Ms Twala was obtained
from personal interviews.
This evidence has not been rebutted and there is no reason to believe
that it is untruthful or inaccurate.
27.2. Both Mr Maluleke
and his wife are employed. They were able to demonstrate sufficient
earning capacity to persuade the bank
to grant them a loan and credit
card facilities. Whilst I accept that the COVID-19 pandemic may have
affected their income earning
potential, I cannot find on these facts
that they do not have the financial means to obtain other
accommodation.
27.3. The dwelling
occupied by Ms Twala on the information obtained by the second
respondent is not a primary residence. She has
alternative
accommodation and it does not seem that order evicting her will
result in her being homeless. The second respondent
states that Ms
Twala works as a vendor and earns R800 per month.
27.4. Neither Mr Maluleke
nor Ms Twala sought permission to occupy the property and erect
dwellings thereon. Evidently, their rational
for occupying the
property was that they were entitled to help themselves because the
Government had not provided land on which
they could establish their
homes.
27.5. Mr Maluleke has an
extended family and a family home in Chawelo, Soweto. His wife’s
family also has a home in Soweto.
Their families could potentially be
prevailed upon to provide temporary accommodation should the urgent
need arise. According to
the second respondent Ms Twala has
alternative accommodation, in the form of a family house in the
vicinity of the property.
27.6. The second
respondent is unable within any short period of time to provide TEA
to Mr Maluleke and his family. They would have
to wait their turn in
a long queue.
28)
The question as to when and in what circumstances
a court can compel the State to provide housing is a difficult issue.
I am not
unsympathetic to the plight of Mr Maluleke and Ms Twala and
their strong desire to have their own homes. I agree with the
statement
in Ms Twala’s affidavit that providing housing to
poor people is essential in enabling them to live with dignity. There
are
clearly enormous societal problems relating to lack of access to
land and housing that the Government must urgently address.
29)
However, on these facts, balancing the respective
interests of the applicant and the occupiers, I am of the view that
it would be
just and equitable to grant an order for the eviction of
Mr Maluleke and Ms Twala and all other persons who live on and occupy
the property.
30)
The question arises as to when the eviction order
should take effect. More than two years have elapsed since the
applicants instituted
their application. Some of these delays were
caused by the inertia of the unlawful occupiers. They have had the
benefit and use
of the property for a period of almost three years.
Conversely the applicants, having taken transfer of the property in
the latter
part of 2018, have been deprived of the use and enjoyment
of the property for at least this period of time. Given all the
circumstances
I believe that it would be just and equitable to afford
the unlawful occupiers a period of six weeks within which to vacate.
I
do not consider this to be a matter where the court should suspend
its order as requested by the second respondent.
31)
In the circumstances I make the following order:
1
Victor Maluleke and Phumzile Elizabeth Twala and all other persons
who occupy Erf 10742
Extension 13, Lenasia, situated at 5 Topaz Road,
Extension 13, Lenasia (“the property”) in their own
capacity or by
virtue of and through Mr Maluleke and Ms Twala (“the
unlawful occupiers) are ordered to vacate the property on or before
16 July 2021.
2
In the event that the unlawful occupiers do not vacate the property
by the aforesaid
date, the Sheriff of the Court or his lawfully
appointed Deputy is authorised and directed to evict the unlawful
occupiers from
the property.
3
The unlawful occupiers are ordered to pay the costs of this
application, including the
costs of the application for approval of
and leave to serve a Notice in terms of Section 4(2) of the
Prevention of illegal Eviction
and Unlawful Occupation of Land Act,
1998 and the application to compel the filing of heads of argument.
KUNY
AJ
ACTING
JUDGE OF THE
HIGH
COURT OF SOUTH
AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Appearances
Counsel
for Applicants:
Adv C Malan
Attorneys
for Applicants:
NM Aboo Attorneys
Respondents:
Mr Victor Maluleke appeared in person
Date
heard:
26 April 2021
Date
of Judgement:
08 June
2021
[1]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd_2012 (6) SA 294 (SCA)
at [28] - [34]
[2]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at
para
[23]
[3]
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.
[2017]
ZACC 18
, para [57]