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[2010] ZAWCHC 176
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Ark City of Refuge v Bailing and Others (8969/2007) [2010] ZAWCHC 176; 2011 (1) BCLR 68 (WCC) ; [2011] 2 All SA 195 (WCC) (15 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE
NO. 8969/2007
In
the matter between:
THE
ARK CITY OF REFUGE APPLICANT
And
MIKE
BAILING FIRST RESPONDENT
THERESA
BAILING SECOND RESPONDENT
MAGDALENE
SCHIPPERS THIRD RESPONDENT
JOHN
MENTOOR FOURTH RESPONDENT
MARTHA
MENTOOR FIFTH RESPONDENT
THE
CITY OF CAPE TOWN SIXTH RESPONDENT
Coram
DLODLO. J
Judgment
by DLODLO. J
For
Applicant
ADV.
M. VERSTER
Instructed
by
SMTT
KRUGUR INC.
32
Wellington
Road
DURBAN
V1LLE
(REF.S.BREDELL/BM/101M10)
TEL
NO.021 976 3194
C/o
Marais
Muller Yekiso Inc.
6
th
Floor, The Pinnacle
Cnr
Burg & Strand Street.
CAPETOWN
For
1
st
, 2
nd
, 4
th
& 5
th
– Respondent
ATTORNEY
R. MARCUS
Instructed
CLIFFE
D
EKKER
INC.
8
th
Floor, Clilffe Dekker Place
11
Buitengracht Street
CAPE
TOWN
(Re(.
R. Marcus/cvdv/N29944)
TEL.
NO. 021 -181
6396
For
3
rd
Respondent
ATTORNEY
B. MBELENI
Instructed
by
NONGOGO
NUKUINC.
7
th
Foor, Spoornet Building
1
Adderley Street
CAPE
TOWN
(Ref.LG
Nuku/R, Jivana)
Tel.
No. 021
4195421
Date(s)
of Hearing 24
AUGUST
2010
Judgment
delivered on 15
SEPTEMBER
2010
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE
NO. 8969/2007
In
the matter between:
THE
ARK CITY OF REFUGE APPLICANT
And
MIKE
BAILING FIRST RESPONDENT
THERESA
BAILING SECOND RESPONDENT
MAGDALENE
SCHIPPERS THIRD RESPONDENT
JOHN
MENTOOR FOURTH RESPONDENT
MARTHA
MENTOOR FIFTH RESPONDENT
THE
CITY OF CAPE TOWN SIXTH RESPONDENT
JUDGMENT
DELIVERED ON WEDNESDAY, 15 SEPTEMBER 2010
DLODLO,
J
[1]
This is an application for eviction in terms of the provisions of
section 4 of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act 19 of 1998 ("the PIE Act"). The
Applicant (a non-profit organization with registration number
N.P.O.
037-341 -a corporate entity with legal personality) applies Tor the
eviction of the First to the Fifth Respondents from
the property
which it leases from the Provincial Government. The Applicant
provides temporary refuge to destitute persons who
arc in need of
drug and alcohol rehabilitation. Mr. Verster appeared for the
Applicant; Mr. Marcus appeared for the First, Second,
Fourth and
Fifth Respondents whilst Mr. Mbeleni appeared for the Third
Respondent only.
[2]
The Respondents are all resident at the abovementioned premises and
have been for the past sixteen (16) to seventeen (17)
years. The
property on which the Applicant operates has room for some one
thousand (1000) people. The Respondents have been accommodated
in
the property from 1992 and 1994 when the Applicant was still
operating at the old premises. According to the papers, the lease
of
the new premises commenced in December 1998 when the Respondents
were already residents. I am told that the written agreement
of the
new premises expired on 31 May 2002, but was renewed as from 1 June
2002 on a month to month basis. The Applicant pays
a nominal rental
of One hundred rands (Rl 00.00) per month to the Provincial
Government. The Applicant relies on charity and
volunteer employees
for sustenance. According to the Founding papers the Applicant is
not in the business of providing accommodation.
It provides
rehabilitation services (as stated above) to destitute people who
need to be rehabilitated from drug and alcohol
abuse, and as a
concomitant, it also provides gratis accommodation to such a person
and his/her family on a temporary basis until
the destitute person
is rehabilitated and is able to join society again. The service it
provides is of a religious nature.
[3]
According to the Applicant it permitted the Respondents and their
children a
precarium
to
occupy the premises. The Applicant insisted that this is the only
basis on which any of the Respondents could have obtained
accommodation at its premises. This is, however, disputed by the
Respondents. The "conditions of entry" attached to
the
Founding papers are also disputed by the Respondents. According to
the Applicant everyone who is allowed to stay on the premises
must
agree to these "conditions of entry" as no one is allowed
entry until he/she has so agreed.
[4]
In terms of these "conditions of entry" a person's stay is
temporary and a person, who is (in the opinion of the
Management)
regarded as rehabilitated, will be given thirty (30) days to vacate
the property. Similarly a person who finds employment
is also given
thirty (30) days to find another accommodation elsewhere but should
he be unsuccessful in finding alternative accommodation,
he/she may
be allowed to remain on the Applicant's premises provided that
he/she pays thirty (30%) percent of his/her salary
to the Applicant
for being accommodated. As pointed out earlier on in this Judgment,
all these allegations are denied by the
Respondents. The Respondents
contended that they were unaware of these conditions, they also
deny-that the signatures (purportedly
theirs) appended on the
document "conditions of entry" are their signatures. In
other words, the Respondents' version
is that they were not informed
of the temporary nature of their slay on the Applicant's premises.
UNLAWFUL
OCCUPATION
[5]
The premises from which the eviction is sought is registered
immovable property owned by the Western Cape Provincial Department
of Public Works. The present application was preceded by an
application for eviction in the Kuils River Magistrate's Court in
December 2006 under case number 22315/2006. That application was
withdrawn because (according to the version of the Respondents)
the
Department as lawful owner of the property did not support the
application as they did not believe that the Respondents were
unlawful occupiers in terms of the Act. The Applicant alleges in its
Founding Affidavit that it is in control of the property
and that
the determination of who may occupy and/or be present or remain on
the premises is solely within the province of the
Applicant. The
Applicant would therefore be a "person in charge" within
the meaning of the Act defined in section 1
as "a person who
has or at the relevant time had legal authority to give permission
to enter or reside upon the land in
question" and not an
"owner" within the context of the Act.
[6]
I accept for purposes of this Judgment that the Applicant indeed
does have
focus
standi
to
institute these proceedings against the Respondents. The submission
is advanced on behalf of the Applicant that it is not in
the
business of providing accommodation. Applicant does not provide any
financial information to support this allegation. This
submission is
misleading in that the Applicant is the
de
facto
provider
of accommodation, on land for which it pays nominal rental, to
almost a thousand people. The Applicant cannot shirk its
statutory
and constitutional responsibilities by advancing this submission.
Even the owner of a vacant piece of land who suddenly
finds it
occupied by a large group of people who set informal structures is
not in the business of providing accommodation, but
is obliged to
follow the same procedures had it been a land owner whose main
business is to let its property for accommodation
purposes. The
Applicant further submits that it provides all its services, of
which it describes accommodation as a concomitant,
on a religious
basis. It is not clear what constitutes a "religious basis'*,
nor for that matter is it clear why a "religious
basis" -
whatever that may mean- permits Applicant to avoid its
responsibilities at law. From the perspective of the Respondents
as
occupiers, the fact that the Applicant is not in the business of
providing accommodation or does so on a religious basis should
not
detract from their rights under the Act or their right to housing
under the Constitution.
[7]
The Applicant further alleges that the Respondents occupy the
premises of the Applicant in that they are permitted a
precarium
by
the Applicant to use the premises in accordance with certain
standard conditions of entry on a temporary basis. The Respondents
(as indicated earlier on in this Judgment) deny both that they are
permitted a
precarium
and
that they are only allowed to remain on a temporary basis. They deny
that they ever saw the standard conditions of entry or
that they
appended their signatures thereon. According to them the Applicant
never informed them that they were permitted a
precarium
and
that therefore their stay was of a temporary nature. I pause here
and ask myself rhetorical]}', how on earth did the Applicant
omit to
foresee this obvious dispute of fact? It seems so serious that only
oral evidence can effectively cure it. I am concerned
about these
standard conditions of entry. The Respondents have been in
occupation of the premises for a very long time indeed
(some 16 to
18 years), but the documents (purportedly such standard conditions
of entry) are dated inter alia 2005. In other
words, these documents
post-date the Respondents" occupation of the premises. This
alone makes these documents suspect.
What then becomes of the
Applicant's stance that the Respondents agreed to the terms prior to
their occupation? It is clearly
demonstrably false as Mr. Marcus
submitted. Mr. Verster did not differ with me on the aspect of
signatures when 1 pointed it
out to him that ordinarily the question
of whether or not it is the Respondents* signatures, resides in the
province of a handwriting
expert.
[8]
In the circumstances, the Respondents' allegations that the
documents were not signed by the Respondents are plausible, and
hence there is considerable doubt as to whether these conditions of
entry govern the parties' relationship. The Respondents contend
that
there is no basis to believe that the allegations as regards the
basis of the occupation are lacking in credibility, and
accordingly
the facts and circumstances surrounding their occupation of the
premises as averred by the Respondents must, for
purposes of these
proceedings, be accepted by this Court. 1 do not differ from this
contention because this is exactly what
Plascon-Evans
Limited v Van Riebeeck Paints (Pty) Ltd.
[1984] ZASCA 51
;
1984
(3) SA 623
(A) postulates as an approach to be followed. On the
Applicant's own version the Respondents' occupation is contractual
(based
as it were, on conditions of entry). But, how on earth can it
be contended that the terms of the contract have been proved? As
the
application is and remains one of final relief the rule in
Plascon-Evans
supra
applies.
This Court is thus duty bound to decide this matter on the basis of
the facts as alleged by the Respondents which are
not disputed by
the Applicant. See:
Plascon-Evans
supra.
Even
if the Respondents occupy the premises in the form
of
precarium,
notwithstanding
the Applicant's allegations that the standard conditions of entry
govern the terms of occupation, then such
precarium
would
in any event be subject to the requirements of the Act
[9]
In the circumstances even if the conditions of entry were the basis
upon which the Respondents occupy the premises (wc know
this is
being denied by the Respondents) such terms and conditions may be
contra
bonos mores
and
would not be capable of any enforcement. See:
Sasfin
(Pty) Ltd v Beukes
1989
(1) SA 1
(A). What would be considered
contra
bonos mores
or
against public policy would now be rooted in our Constitution and
the values that underlie it. The values that underlie the
Constitution are found in the founding provisions of our
Constitution and are human dignity, the achievement of equality and
the advancement of human rights and freedoms. If the terms of a
contract are inimical to the values of the Constitution, it must
be
contrary to public policy and therefore unenforceable. See:
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) at 333 para 28-29.
[10]
Mr. Marcus submitted that the standard conditions of entry are
contra
bonos mores
and/or
unconstitutional, and therefore unenforceable, in that they infringe
upon basic human rights
inter
alia:
(a)
The right to religion, belief and opinion, in that persons are
required to complete a 50 day Bible Course and required
to attend
all church services and meetings:
(b) The
right to freedom of association in that persons are not permitted to
have relationships with persons of the opposite sex
or "affairs"
with person of the same sex;
(c)
The right to freedom of trade, occupation and profession in that
persons are not permitted to seek employment during the
currency of
the Bible course;
(d) And
the rule that persons receiving salaries, pensions or grants are
required to pay 30% of that grant to The Ark as well
as persons
receiving child grants must pay 10% to The Ark, is
contra
bonos mores
or
against public policy in that it deprives destitute persons of their
much-needed state-funded income. It may indeed also be
against
public policy as it could not be the intention of the State that
these funds are diverted to institutions rather than
the individual
beneficiaries, nor for that matter that land was provided on a
nominal cost basis by the State to the Applicant
to house destitute
persons in order that the Applicant could itself derive financial
benefit.
[11]
It is common cause between the parties that 30% of a person's income
(staying at The Ark), even in the case of the recipient
of a social
grant, is to be paid to The Ark as a contribution towards their
living expenses. For reasons which will appear below,
however, it
seems that this requirement or condition was not strictly enforced
and that the Respondents did not find it possible
to make this
contribution each and even' month. This indeed may very well be
contrary to public policy because it applies equally
to income from
employment and to social grants, even those of children. It places
unnecessary financial pressures on persons
living at The Ark and it
keeps them financially disadvantaged perpetually, preventing them
from saving or being able to move
out. In any event, the payment of
the 30% of income creates an impression that the legal relationship
between the Applicant and
the Respondents is one of lease as
payments arc made to the Applicant and the Respondents are allowed
to occupy the premises
under the Applicant's control. Importantly,
the Fourth Respondent also alleged that they always paid 30% of
their social grants
to the Applicant, but that they stopped doing so
when the Applicant stopped providing food and clothing to them as
the Applicant
had so agreed.
THE
PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND
ACT 19 OF 1998 ("PIE")
[12]
Mr. Marcus submitted that the version presented by the Respondents
is credible and that the Applicant (in his view) has not
made out a
case of unlawful occupation against the Respondents. In the
alternative, Mr. Marcus submitted that should the Court
find
nevertheless that the Applicant's version is to be believed and mat
the Respondents are indeed in unlawful occupation, then
the Court
would need to have regard to the provisions of section 4 (7) of the
Act as the Respondents had occupied the land for
more than six (6)
months at the time when proceedings were initiated. I have been
referred to
Port
Elizabeth Municipality-
V
Peoples
Dialogue on Land and Shelter and Others
2001
(4) SA 759
(E) 767H.
[13]
Before having regard lo the above authority, it is appropriate to
set out the provisions of section 4 (6) of the Act. It
provides as
follows:
"4
(6) If an unlawful occupier has occupied the land in question for
less than six (6) months at the time when the proceedings
are
initiated, the 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. "
Section
4 (7) provides that where an unlawful occupier has occupied the land
in question for more than six (6) months at the time
when the
proceedings are initiated, the Court is enjoined, in addition to the
abovementioned circumstances, also to consider
whether 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.
[14]
It must also be borne in mind that the Prevention of Illegal
Eviction
from and Unlawful Occupation of Land Act, the PIE Act,
as it
affectionately came to be known in legal circles, was
enacted with the sole purpose, namely, to give effect to the rights
under
section 26 of the Constitution Act 108 of 1996. Section 26 (3)
provides as follows:
"26
(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 "
There
are stringent provisions of the PIE Act which probably must also be
set out infra in order to demonstrate how- serious the
Legislature
is in its protection of the rights contemplated in Section 26 of the
Constitution.
Section
4 (8) provides as follows:
"4
(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
just and equitable date on which the unlawful occupier must vacate
the land under the circumstances: and
the
date on which an 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. "
Consequently,
in
The
Occupiers of Shorts Retreat v Daisy Dear Investments (Pty) Limited
(245/2008)
[2009] ZASCA 80
(3 July 2009) Jafta JA commented as follows on the
above portion of section 4 of PIE Act:
"[6]
The section requires that before an eviction order is granted the
court must be satisfied that such order will be just
and equitable
to the applicant and the unlawful occupier. In determining whether
an eviction is just and equitable, the court
is required to consider
amongst others, whether land has been made available or can
reasonably be made available by a municipality
or an organ of state
for the relocation of the occupier. "
[15]
Indeed, as Mr. Marcus pointed out in his submissions in this regard,
the two Constitutional rights that are commonly at odds
in eviction
cases are the right to property in terms of section 25 (1) and the
right to access to housing in terms of section
26 (1) both of the
Constitution. See:
Modderfontein
Squatters, Greater
Beboni
City
Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources
Centre, Amici Curiae); the President of the Republic
of South Africa
and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, Ami Curiae)
2004
(6) SA 40
(SCA) 53-54.
As
the Applicant is not the owner of the property concerned, the right
to property in terms of section 25 (1) does not come into
the
balance. The Applicant does, however, have certain real rights to
the property and also cites other concerns relating to
its
rehabilitation activities. The view 1 hold, however, is that the
Respondents' constitutional rights to housing outweighs
the
Applicant's other interests. The Applicant averred in the Replying
Affidavit that the First and the Second Respondents are
'"exploiting
the
bona
fide
intentions
of the Applicant as free accommodation'' and that the Applicant has
u
free
of charge" provided the Respondents with educational, cultural
and social activities. The Applicant apparently conveniently
forgets
or leaves out of the equation that it is a non-profit organization
and that therefore it would be in its nature to provide
such
services to persons free of charge.
RELEVANT
CIRCUMSTANCES
[16]
The Respondents had all occupied the land in question for
considerably more than six (6) months at the time when the
proceedings
were initiated. Therefore, a Court may only 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
as required by section 4 (7) of the Act. These circumstances include
whether 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, including the
rights and needs of the elderly, children, disabled persons
and
households headed by women. The crux of the Applicant's argument why
the Respondents should be deemed to be in unlawful occupation
is
that The Ark is meant to be a
"temporary
place of refuge for the destitute so as to place a roof over their
heads until such time as they are able to properly
deal with their
own accommodation needs and rehabilitated fully to join society
again. "
[17]
The Respondents admit that they are fully rehabilitated in the sense
that they are no longer burdened with the same problems
as when they
first came to the Ark. but that they simply cannot move as they do
not have the means to procure alternative accommodation.
On the
Applicant's own version, and since the Respondents, despite their
best efforts, have been unable to find alternative accommodation,
it
would not be just and equitable that the Respondents be evicted from
the premises. It is not disputed, meaningfully by the
Applicant,
that alternative accommodation is not available to the Respondents.
Although the Municipality is not the provider
of accommodation in
this particular matter, it is clear that the Municipality has
simply-delegated these obligations to a charitable
organization,
being the Applicant, on the basis that it will perform a similar
function to that of a municipality in providing
accommodation for
homeless and destitute people, a constitutional obligation which
ultimately falls on the State.
[18]
Analogies between a Municipality and the Applicant are therefore
appropriate. In the matter
Port
Elizabeth Municipality- v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) the following was stated by Sachs J:
"[28]
Section 6 (3) states that the availability of a suitable alternative
place to go to is something to which regard must
be had, not an
inflexible requirement. There is therefore no unqualified
constitutional duty on local authorities to ensure that
in no
circumstances shoidd a home be destroyed unless alternative
accommodation or land is made available. In general terms,
however,
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
programme.
[29]
The availability of suitable alternative accommodation will vary
from municipality to municipality and be affected by the
number of
people facing eviction in each case. The problem will always be to
find something suitable for the unlawful
occupiers
without prejudicing the claims of lawful occupiers and those in line
for formal housing. In this respect, it is important
that the actual
situation of the persons concerned be taken account of. It is not
enough to have a programme that works in theory:
The Constitution
requires that everyone must be treated with care and concern; if the
measures, though statistically successfid,
fail to respond to the
needs of those most desperate, they may not pass the test. In a
society-founded on human dignity, equality
and freedom, it cannot be
presupposed that the greatest good for the many can be achieved at
the cost of intolerable hardship
for the few. particularly if by a
reasonable application of Judicial and administrative statecraft,
such human distress could
be avoided... 'Considering all the
relevant circumstances' (s6 (I))
[30]
There is nothing in section 6 to suggest that the three specifically
identified circumstances are intended to be the only
ones to which
the court may refer in deciding what is just and equitable. They are
peremptory but not exhaustive. It is clear
both from the open-ended
way in which they are framed and from the width of decision-making
involved in the concept of what is
just and equitable, that the
court has a very wide mandate and must give due consideration to all
circumstances that might be
relevant. Thus the parn'cular
vulnerability of occupiers referred to in section 4 (the elderly,
children, disabled persons and
households headed by women) could
constitute a relevant circumstance under section 6. Similarly.
justice
and equity would take account of the extent to which serious
negotiations had taken place with equality of voice for all
concerned. What is just and equitable could be affected by the
reasonableness of offers made in connection with suitable
alternative
accommodation or land, the time scales proposed relative
to the degree of disruption involved, and the willingness of the
occupiers
to respond to reasonable alternatives put before them.
[31]
The combination of circumstances may be extremely intricate,
requiring a nuanced appreciation of the specific situation in
each
case. Thus, though there might be a sad uniformity in the conditions
of homelessness and desperation which lead to unlawful
occupations,
on the one hand, and the frustration of landowners at being blocked
by intruders from enjoyment of their property,
on the other, the
actual details of the relationships involved are capable of finite
variation. It is not easy to classify the
multitude of places and
relationships involved. This is precisely why, even though
unlawfulness is established, the eviction
process is not automatic
and why the courts are called upon to exercise a broad judicial
discretion on a case by case basis.
Each case, accordingly, has to
be decided not on generalities but in the light of its own
intractable elements that have to he
lived with (at least, for the
time being), and its own creative possibilities that have to be
explored as far as reasonably possible.
The proper application of
PIE will therefore depend on the facts of each case, and each case
may present different facts that
call for the adoption of different
approaches. "
The
above formulation by the Constitutional Court puts in context the
legal requirements and the approach that needs to be followed
in
matters of this nature. I fully agree with Sachs J in this regard.
It is common cause that the Respondents do not have alternative
accommodation and therefore whilst not an absolute requirement, the
Court should be most reluctant to evict the Respondents from
these
premises, especially as these premises:
(i)
were
occupied by agreement of the Applicant;
(ii)
were
occupied in circumstances in respect of which the conditions of such
occupation are in dispute;
(iii)
are
in themselves possessed by the Applicant for nominal rental and for
charitable purposes, more particularly the provision of
housing of
homeless and destitute people.
AVAILABLE
LAND
[19]
It is common cause that the Respondents do not have alternative
accommodation available to them as is evidenced by the report
of the
City. Although the Applicant contends, baldly, that alternative
accommodation is available, it provides no factual basis
for this
allegation. The Applicant did not elaborate on the aspect of
available land and/or alternative accommodations in its
Founding
Affidavit save to merely make the allegation that there is
alternative accommodation available in the area. The Respondents
called on the Applicant to specify the alternative land that had
been made available or could reasonably be made available for
their
relocation. The Applicant has not done so. The Fourth Respondent
applied for housing for himself and the Fifth Respondent
with the
Cape Town Housing Department in January 2007, but he has not
received a positive response from the Department regarding
his
application. The First and Second Respondents have also been unable
to find alternative accommodation.
PERSONAL
CIRCUMSTANCES
[20]
The Respondents are all healthy individuals except for the Fourth
Respondent who receives a disability grant due to him suffering
from
angina. None of the Respondents are elderly and none of the
households are headed by women. The First Respondent is the
sole,
but limited, breadwinner for the Bailing family. The Second
Respondent is not employed. They have three (3) minor children
of
school-going ages. The Fourth Respondent is unemployed and disabled
as described above. His wife, the Fifth Respondent, is
also
unemployed as is their major son who lives with them. Their minor
son attends school.
[21]
The Applicant made an application to this Court as late as 30
October 2009 to join the City of Cape Town, the Sixth Respondent
in
the proceedings. The City- has indicated that it has no
accommodation available for the Respondents. The City's report
concludes
with the statement that:
"It
will be apparent from the aforegoing that the City does not have the
capacity to accommodate the Respondents and it is
important that any
eviction order should appropriately identify the responsibility for
and
method of addressing the displacement that will be occasioned by the
implementation of the eviction order. "
What
makes this application also complicated is that the Applicant has
accommodation of State-owned land at nominal rental for
a defined
purpose, namely, of
inter
alia,
providing
accommodation and social services to destitute persons. Even if the
Applicant made out a compelling case of unlawful
occupation (1 am
not holding the case was made or not made yet) I would be very
reluctant to grant the eviction of the persons
from this land. Such
an order of eviction would operate rather harshly against the
Respondents because they would be rendered
homeless despite the fact
that the Applicant's case is disputed as demonstrated above. The
Respondents would be removed from
the land belonging to the very
entity enjoined constitutionally to provide them with a place to
stay, namely the State. Mr. Verster
was at pains submitting that the
Respondents are in occupation of a space which could be used for
other persons in need. This
submission (obviously made to bolster
the Applicant's case) is somewhat problematic in that (as correctly
pointed out by Mr.
Marcus) that the Respondents are equally indigent
and are also in need of accommodation. If this Court were to find
that the
requirements of section 4 of the PIE Act have been complied
with, it would ordinarily be enjoined to grant an eviction order,
but then it would be duty bound to determine a just and equitable
date on which the occupiers must vacate the land concerned as
well
as the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date
contemplated
above. See:
Port
Elizabeth
Municipality v Peoples Dialogue on Land and Shelter and Others
2001
(4) SA 759
(E) 772F-H.
[22]
I hasten to add that in determining a just and equitable date 1
would be obligated to have regard to all relevant factors
including
the period of occupation of the unlawful occupier on the land in
question. See also
Port
Elizabeth Municipality
case
supra.
In
the instant matter, I am not persuaded that the Applicant made out a
case compelling the conclusion that the Respondents are
indeed in
unlawful occupation of this land. In any event, the circumstances
taken together do not justify the making of an eviction
order
against these Respondents. There is no doubt in my mind that the
Applicant is engaged in a very important task, namely
to lake care
of the destitute and persons in need of rehabilitation from all
kinds of social ills. The Applicant is to be commended
in this
regard for a job well done. However, I hold the view that the
Applicant's admission policy and its administration generally
must
in due course be improved significantly.
ORDER
[23]
In the circumstances I make the following order:
(a)
The application is dismissed with costs.
DLODLO.
J