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[2010] ZAGPPHC 606
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PPC Aggregate Quarries (Pty) Ltd v People Who Intend Invading The Remaining Extent Of The Farm Skurweplaas 353, J.R. Tshwane, Gauteng and Others (12289/2010) [2010] ZAGPPHC 606 (5 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH, HIGH COURT PRETORIA)
CASE NO:
12289/2010
In the matter
between:
PPC
AGGREGATE QUARRIES (PTY)
LTD
..................................................................................
Applicant
and
THE PEOPLE WHO
INTEND INVADING THE
REMAINING EXTENT
OF THE FARM SKURWEPLAAS
353, J.R.,
TSHWANE, GAUTENG.
…..................................................................................
First
Respondent
THE UNKNOWN
PEOPLE WHO INVADED THE REMAINING
EXTEND OF THE
FARM SKURWEPLAAS 353, J.R.,
TSHWANE,
GAUTENG
.....................................................................................................
Second
Respondent
THE
CITY OF TSHWANE METROPLITAN
MUNICIPALITY
....................................................................................................................
Third
Respondent
JUDGMENT
[1] This is an
application brought on urgency by the applicant, seeking against the
first and second respondents, the relief stated
in the notice of
motion as follows:
2.
that a
rule nisi
be
issued, with return day the 16
th
of March 2010 at 10H00 inviting any affected or interested person to
give reasons why the following interim order should not be
made:
2.1 that the First
Respondents be interdicted from invading and taking possession of the
property known as the Remaining extent
of the farm Skurweplaas 353,
J.R., Tshwane, Gauteng (“the property”) and more
specifically the following:
2.1.1 from invading
and erecting houses/structures on the said property;
2.1.2 from erecting
houses/structures on the said property;
2.1.3 from
attempting to prevent the Sheriff of the above Honourable Court
and/or the Tshwane Metro Police and/or the South African
Police, from
carrying out the duties in preventing illegal invasion of the said
property;
2.1.3.1 carrying out
their duties in preventing the unlawful invasion and/or occupation of
the said property;
2.1.3.2 taking any
steps to prevent the construction of any structures on the
properties.
2.2 That the sheriff
of the above Honourable Court and/or Tshwane Metro Police and/or the
South African Police Services be mandated
and requested to assist the
Applicant in its activities and endeavours to prevent the unlawful
invasion and/or occupation of the
property and take the necessary
steps preventing same.
3. That the interim
order referred to in paragraph 2 above has immediate effect pending
the return day referred to above.
4. That the Sheriff
be authorised to serve the order, together with the notice of motion,
founding affidavit and annexures on the
First and Second Respondents
in the following manner:
4.1 by attaching the
order together with the notice of motion and founding affidavit and
annexures on a notice board to be erected
on the property;
4.2 that a copy of
the order, together with the notice of motion and founding
affidavits, be available for inspection for any Respondent
intending
to oppose this application at the office of the Applicant’s
attorney of record;
4.3 that the order
and the notice of motion (not the founding affidavits) be read out
loudly over a public address system in the
English language and in
the Northern Sotho language and for that purposes, if necessary, to
make use of translators from the English
language in the last
mentioned language.
5. That the sheriff
of the above Honourable Court and/or Tshwane Metro Police and/or the
South African Police Services be mandated
and requested to assist the
Applicant in serving the notice of motion, founding affidavit and
order, as the case may be, in terms
of the procedure set out above.
6. That any
Respondent or person opposing this application be ordered to pay the
costs of the application, jointly and severally
with others.
[2]
The application, which was opposed by the first and second
respondents, came before Van der Byl AJ on 2 March 2010, in the
urgent court, on which occasion a
rule
nisi,
returnable
on 16 March 2010, was issued, incorporating prayers 2 - 6 of the
notice of motion as more fully set out in the preceding
paragraph.
[3]
On the return date, 16 March 2010, the
rule
nisi
was
extended to 23 March 2010. On that occasion, the third respondent was
ordered to file a report to the court by 18 March 2010
at noon, which
report had to set out the following:
“
What
steps it (the third respondent) has taken and steps it intents or is
able to take in order to provide alternative land and/or
emergency
accommodation for the occupiers of the Remaining Extent of the farm
Skuwerplaas 353 (“the property”) in the
event of them
being evicted and when such alternative land or accommodation can be
provided;
What alternative
land and/or shelters they have available for First and Second
Respondent should they be so evicted;
What steps can be
taken to alleviate the effects of the current occupation of the
property if the occupiers are not immediately
evicted and pending
alternative land or accommodation being made available.”
[4]
The matter was therefore before me in the urgent court on the
extended return date of the rule nisi granted on 2 March 2010.
After
hearing argument, I made an order confirming paragraph 2 of the
rule
nisi.
In
addition thereto I made the following ancillary order:
“
3.
That the Third Respondent be ordered to:
3.1 Conduct a full
audit of the personal particulars of the unlawful occupiers of the
Applicant’s property present thereon
at 24
th
March
2010 at 14H00 within a period of seven (7) days hereof and to present
it to the Applicant and First and Second Respondents’
legal
representatives within seven (7) days thereafter;
3.2
That the Third Respondent provides the unlawful occupiers referred to
in the audit access to land on or before 31
st
May 2010.
4. That irrespective
of whether the Third Respondent complies with its obligations
referred to in paragraph 3 above or not, that
the Applicants will be
entitled to proceed and to evict the unlawful occupiers from the
Applicant’s property known as the
Remaining Extent of the farm
Skurweplaas 353, J.R., Tshwane, Gauteng on the 1
st
of June
2010.
5. That the sheriff
of the above Honourable Court and/or Tshwane Metro Police and/or the
South African Police Services be mandated
and requested to assist the
Applicant in its activities and endeavours in executing the task of
evicting the First and Second Respondents
from the Applicant’s
property. “
[5]
When I made the above order, I indicated to the parties that due to
the pressurised nature of the urgent court, I did not intend
to state
my full reasons therefor, and that any party desiring such reasons,
may direct a request to my registrar in that regard.
The first and
second respondent, by way of a formal notice in terms of rule 49 (1)
(c) of the Uniform Rules of Court, filed such
a request on 1 April
2010, which notice was laid before me on 12 April 2010, on resumption
of the second term. The following are
my reasons for the order I made
on 24 March 2010
.
[6] Skuwerplaas is a
portion of Mooiplaats farm, situated on the west of Atteridgeville
Township. The others are portion 15, 18
and 25. Portion 15 is also
owned by the applicant, whereas portion 25 is owned by the an entity
named Golden Thread (Pty) Ltd.
Portion 18 is owned by the
municipality. This is where an informal settlement called Itireleng
is situated. Portions 15, 25 and
Skuwerplaas all surround Itireleng
informal settlement.
[7] During October
2009, individuals unlawfully occupied portion 15. The applicant
obtained an order on 8 December 2009 for the
eviction of the unlawful
occupiers. On the day the occupiers were evicted, namely 11 January
2010, the unlawful occupiers simply
crossed over to portion R/25 and
commenced to erect shacks thereon. Portion R/25 is owned by an entity
named Golden Thread (Pty)
Ltd. When they were prevented Tshwane Metro
Police from occupying R/25, simply crossed over onto Skuwerplaas, and
began to erect
shacks.
[8] As at 11
February 2010 there were 24 complete structures, 9 incomplete
structures and 4 families preparing ground for settlement.
By 15
February 2010 the number of complete structures was 29, incomplete
structures at 9. The number of families preparing ground
for
settlement had increased to 15.
[9] This application
brings into sharp focus, the ever-competing rights enshrined in the
Constitution of the Republic of South Africa
Act 108 of 1996, (“
the Constitution”) namely the equality right under ss 9 (1) and
(2) on one hand and the right to
adequate housing (s26), on the
other.
[10]
The general principles applicable to matters such as the present,
were comprehensively, and with customary lucidity, stated
by Langa
ACJ (as he then was) in
President
of the Republic of South Africa and Another v Modderklip Boerdery
(Pty) Ltd (Agri SA and Others, Amici Curiae
2005 (5) SA 3
(CC).
The
key principles (relevant to the present application), can be
summarized as follows:
1. The State has an
obligation, and a key role to play in resolving disputes between
private land owners and unlawful occupiers;
2. It was
unreasonable to expect a private entity to bear the State’s
obligation to provide unlawful occupiers with accommodation;
3. The problem of
homelessness, a direct consequence of apartheid, legacy, should be
addressed with progressive consciousness, underpinned
by careful
planning and fair procedures made known in advance to those mostly
affected;
4. Land invasions
should be discouraged as they have the potential to have serious
implications for stability and peace, leading
to anarchy.
[11] In the present
case, the State, through the municipality, expressed its frustrations
at not been able to marshall resources
in an orderly and dignified
manner, as a result of lack of co-operation and untruthfulness on the
part of the occupiers. In an
affidavit attested to by Mr. Rakgoale,
the Executive Director in the
Housing and Human
Settlement Department, City of Tshwane Metropolitan Municipality, he
states the following at paragraph 4.2 of
his affidavit:
“
This
(sic) invasions are systematic and pre planned. There is a common
element of “fraud and deceit”. People are made
to pay
before they are allowed to put-up their shacks. People who receive
the money are neither owners of the property nor officials
of the
municipality. “
[12] In paragraph 3
he continues:
3.1 “The
Municipality officials have been collecting data of people living in
all informal settlements...”
3.2 The process of
data collection is very slow. Some of the obstacles are due to wrong
information and fear. People whose residential
status in the country
is questionable are not willing to give the correct information or
give no information at all.
3.3 Some people are
found to be earning in excess of R3 500.00 and already on the housing
waiting list.
[13] In paragraph 5
he concludes:
“
The
Municipality cannot address the “plight” of faceless
people. The alleged people “in need” do not provide
personal required details in order for the Municipality officials to
be able to determine if they qualify as “indigent and
homeless
people” without alternate homes.”
[14]
The frustration expressed on behalf of the municipality, is borne out
by the paucity of information in the answering affidavit,
purportedly
on behalf of the occupiers. Mr. Sello Lucas Mogagane, is one of the
occupiers. He deposed to an answering affidavit
on his own behalf and
“
on behalf
of all other occupants of Skuwerplaas”.
He
states that there were about 80 shacks as at 12 March 2010 (the day
he deposed to his affidavit).
[15] Mr. Mogagane
stated his own personal circumstances as follows: he is 32 years old
and unemployed, he lives in a shack on the
occupied property with his
wife. His wife, 27 years old and pregnant, works as a cleaner and
ears R1 700.00 per month. He moved
to portion 25 in November 2009
from Atteridgeville, where he was a backyard dweller paying R300.00
per month. He was one of the
group evicted from portion 25 on 11
January 2010, who then simply moved over to Skurweplaas. Due to the
continuous threats of eviction,
he had to send his 7 year old child
to his family in Mokopane, Limpopo Province.
[16] Mr. Mogagane
fails to inform the court exactly who the unlawful occupiers are. It
should be recalled in this regard that he
purports to depose the
answering affidavit on behalf of the occupiers. I do not expect him
to set out the individual personal particulars
of each occupier- an
overview of their background would have sufficed.
[17] I was satisfied
that the applicant had, at law, established a proper case for the
eviction of the occupiers. There is no obligation
on the applicant to
see to the alternative resettlement of the occupiers. That aspect
concerns the municipality and the occupiers.
I would therefore grant
an order for eviction. In order to facilitate an orderly and
dignified eviction process, I am of the view
that a period of two
months should be sufficient for the municipality to discharge its
constitutional duties towards the occupiers.
The effect thereof is
that the eviction is suspended for two months.
[18] One
is acutely aware of the inherent danger that the nature of the order
is such that prospective unlawful occupiers can use it to
“jump
the queue" with the hope that the municipality would be ordered
to make land available upon illegal occupation
of land. That should
be discouraged and the apparent leaders of these communities should
ensure that the message goes out there
that the courts would not
countenance disorder and anarcy, which are inimical to the spirit and
purport and ethos of our Constitution.
[19] For the above
reasons, I made the order on 24 March 2010.
T.M.MAKGOKA
JUDGE OF THE HIGH
COURT