Brookway Property 30 (Pty) Ltd v People Who Intend Invading Portion 150 of the Farm Zandfontein 317 J.R., Portion 124 and Others (33786/2010) [2010] ZAGPPHC 129 (30 September 2010)

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[2010] ZAGPPHC 129
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Brookway Property 30 (Pty) Ltd v People Who Intend Invading Portion 150 of the Farm Zandfontein 317 J.R., Portion 124 and Others (33786/2010) [2010] ZAGPPHC 129 (30 September 2010)

NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
CASE NO:33786/2010
Date: 30/09/2010
In
the matter between:
BROOKWAY
PROPERTY 30 (PTY)
LTD
................................................
Applicant
and
THE PEOPLE WHO INTEND INVADING
PORTION 150 OF THE FARM ZANDFONTEIN 317 J.R., PORTION 124
(A PORTION OF
PORTION 10) OF THE FARM ZANDFONTEIN 317 J.R., REMAINING PORTION OF
PORTION 37 (A PORTION OF PORTION 17) REMAINING
PORTION OF PORTION 21
(A PORTION OF PORTION 17) REMAINING PORTION OF PORTION 38 (A PORTION
OF PORTION 17) REMAINING PORTION OF
PORTION 39 (A PORTION OF PORTION
17) AND PORTION 227 ALL OF THE FARM ZANDFONTEIN 317 J.R.
…
....................................................................................................................
First
Respondents
THE UNKNOWN
PEOPLE WHO INVADED PORTION 150 OF THE FARM ZANDFONTEIN 317 J.R.,
PORTION 124 (A PORTION OF PORTION 10) OF THE FARM ZANDFONTEIN
317
J.R., REMAINING PORTION OF PORTION 37 (A PORTION OF PORTION 17)
REMAINING PORTION OF PORTION 21 (A PORTION OF PORTION 17) REMAINING

PORTION OF PORTION 38 (A PORTION OF PORTION 17) REMAINING PORTION OF
PORTION 39 (A PORTION OF PORTION 17) AND PORTION 227 ALL OF
THE FARM
ZANDFONTEIN 317
J.R
...............................................
Second
Respondents
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
...........................................................................................
Third
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
MURPHY J
1. The applicant is the owner of
certain properties situated in the Pretoria Gardens/Kirkney area in
Pretoria West. It seeks an
eviction order and other ancillary relief
compelling the unlawful occupiers of the properties residing in
informal structures to
vacate the land and to relocate to alternative
land provided for that purpose.
2. The seven properties in question
are described as:
Portion 150 of the farm Zandfontein
317 JR;
Portion 124 (a portion of Portion 10)
of the farm Zandfontein 317 JR;
Remaining Portion of Portion 37 (a
portion of Portion 17);
Remaining Portion of Portion 21 (a
portion of Portion 17);
Remaining Portion of Portion 38 (a
portion of Portion 17);
Remaining Portion of Portion 39 (a
portion of Portion 17); and
Portion 227;
all of the farm Zandfontein 317 JR.
3. The application was originally
launched on an urgent basis and comprised a notice of motion in two
parts. Part A sought as a
matter of urgency a rule
nisi
interdicting the first
respondent from invading and taking possession of the properties and
erecting houses and structures on the
properties. It sought further
an order authorising the Sheriff to serve the order together with the
application on the first and
second respondents in the specified
manner, as well as an order directing the third respondent (the City
of Tshwane) to file a
report to the court on what steps it would take
to provide alternative land and/or emergency accommodation to the
occupiers in
the event of eviction. Part B gave notice that the
applicant intended to make application on the return day for orders
evicting
the First and Second Respondents to be effected by the
Sheriff with the assistance of the relevant law enforcement agencies;
directing
the Third respondent to give the first and second
respondents alternative accommodation at the date of eviction; and
payment to
the applicant of compensation for the duration of the
unlawful occupation of the vacant land by the first and second
respondents
at an amount of R991 686 per month until such time as the
land is vacated by the first and second respondents.
4. The first respondents are cited
collectively to be “the people who intend invading the land”;
while the second respondents
are cited as “the unknown people
who invaded” the land. On 15 June 2010 Raulinga J granted the
rule nisi and interim
interdict against the first respondents and
gave leave in terms of section 5(2) alternatively section 4(2) of the
Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (“PIE”) that notice be served of the
eviction
application in the manner contemplated.
5. On the return day, 6 July 2010,
Hiemstra AJ extended the rule nisi until 23 August 2010 and postponed
the application to the
ordinary opposed roll of that date. The order
included a timetable for the filing of additional papers. On 23
August 2003 I granted
orders (i) granting the West Moot Resident
Association leave to intervene in the proceedings; (ii) directing the
respondents to
engage in meaningful engagement relating to the
entitlement to alternative land and emergency accommodation and the
availability
of such, and to report to the court in that regard;
(iii) confirming the rule
nisi
and granting a final
interdict against the first respondents; and (iv) postponing the
remaining issues to 9 September 2010.
6. The first respondents have not
filed any affidavits and accordingly do not oppose the relief. The
lis
regarding the eviction is accordingly between the applicant and the
second respondents, to whom I shall refer henceforth as “the

occupiers”. Although the question of alternative land and
emergency accommodation, and the litigation and meaningful engagement

process in that regard, are in the final analysis issues between the
occupiers and the third respondent (“the City of Tshwane”),

the latter was cited by the applicant as a party for two reasons,
firstly to ensure that any eviction can be effected in a just
and
equitable manner, and secondly because it has included a prayer for
compensation payable by the City of Tshwane in the event
that the
unlawful occupation continues. There is accordingly a
lis
as between the applicant
and the City of Tshwane as well. The intervening party, (“the
resident’s association”)
have joined in the application
in support of the applicant principally because it is concerned that
the invasion and settlement
by the occupiers of the land in
uncontrolled circumstances, without adequate provision for basic
services, will lead to social
problems in the area. It seeks no
additional relief by notice of motion, it merely aligns itself with
the applicant. But during
argument a request was made on its behalf
that it be consulted with regard to the implementation of any order
of relocation within
the area.
7. The seven properties in question
are zoned for residential and industrial purposes and are 210
hectares in extent. They were
purchased by the applicant during 2007
for more than R30 million and have been currently valued at about
R160 million, an amount
the respondents contend is unrealistic.
8. The applicant maintains that it
first became aware that the occupiers had moved onto and settled on
the land when it was told
of their presence by Mr Gerhard Botha, the
managing member of Impala Trucks Spares and Panelbeaters CC, the
owner of the adjacent
land, during May 2010. Botha himself became
aware of the situation in January 2010. It was because Botha
reported that the land
invasions were still in progress that the
applicant sought the interdict against the first respondents.
9. There is a dispute about which
portions of the land have been invaded and settled. Mr Amos Mboweni,
the Executive Director:
Housing Provision and Resource Management at
the City of Tshwane, in the answering affidavit deposed to on behalf
of the City took
issue with the claim that all the properties of the
applicant had been invaded. He, together with officials in the
department,
inspected the properties and observed that there are
occupiers and informal houses only on the western part of Portion 124
(a portion
of Portion 10) and the southern part of Portion 150 of the
Farm Zandfontein JR. In the replying affidavit the applicant
conceded
that some of the properties are not occupied, however a
qualified Town Planner, Mr JM Marais after studying aerial
photographs
and comparing them with the general layout plan sets out
in a replying affidavit that the current unlawful occupiers are
present
on Portion 124, Portion 150, Portion 278 (a portion of
Portion 10), Portion 227 and Remainder 21 of Portion 278. The
applicant
further avers that all the other properties are indirectly
affected because it intends to develop them and its development
scheme
in relation to all the properties cannot proceed until the
problem is solved.
10. In paragraph 65 of their answering
affidavit the occupiers effectively concede that they are in unlawful
occupation of the private
property of the applicant. However, they
limit that concession to portions 124 and 150 of the farm Zandfontein
JR.
11. The expert evidence of Mr Marais
has not been countered in any way and probably is more reliable and
accurate than that of the
occupiers and the officials of the City of
Tshwane. Accordingly I accept his account of the extent and location
of the settlement.
12. The applicant contends that prior
to 2009 there were no occupiers on the land. This contention is
supported by aerial photographs
obtained by the applicant from the
relevant department at the City of Tshwane as well as by the evidence
of the residents in the
adjacent neighbourhood. The occupiers
dispute this, some claiming even to have been born on the land. The
applicant’s version
is that the settlement began in early 2009.
It has established, and this appears from the aerial photographs,
that there were
approximately 65 unlawful occupiers during March
2009, but the unlawful occupation has gradually expanded since then.
It is common
cause that there are currently approximately 400
unlawful shacks erected on the properties.
13. It is also common cause that there
is property owned by the City of Tshwane immediately adjacent to the
applicant’s property,
namely Portion 45, 87 and 82. There are
no informal settlements on these properties. The unlawful occupation
is only on the applicant’s
property.
14. In their answering affidavit, the
occupiers, as I have said, do not dispute that they are in unlawful
occupation of private
property. Indeed they concur that an order
should be granted “declaring that the present occupation of
portions 124 and
125 of the Farm Zandfontein 317 JR is unlawful and
in violation of the applicant’s property rights”. They
make the
proposal in the context of a broader proposal requesting the
court to declare that the conditions in which they live constitutes
a
housing emergency for the purposes of part 3 of the National Housing
Code promulgated in terms of section 4 of the Housing Act
107 of
1998. They ask that the City of Tshwane be ordered to bring an end
to the housing emergency and to regularise the unlawful
occupation by
deploying mediation and investigating the feasibility of acquiring
ownership or use of portions 124 and 150, or,
failing which, the
acquisition of appropriate alternative land for relocation and
settlement of the occupiers. They suggest also
that the City of
Tshwane should apply forthwith for any funding that may be needed to
give effect to the order from the Gauteng
Provincial Government. The
proposal is a commendable step in the process of meaningful
engagement. It, however, is somewhat at
variance with their
assertion that many of the occupiers enjoy rights and protection in
terms of the Extension of Security of
Tenure Act 62 of 1997
(“ESTA”), an issue which I discuss later.
15. The parties differ about the
direct consequences and implications for the applicant resulting from
its loss of possession and
control of its properties. The applicant
purchased the properties in 2007 in order to develop a shopping
complex. At a cost of
R460 000, it has commissioned a development
study. On 10 October 2008 it obtained an environmental authorisation
for Proposed
Township Establishment Booysens Extention 3 or Portion
124 and a portion of portion 150 of the Farm Zandfontein 317 JR. The
authorisation
was issued to Sinvest Investments 116 (Pty) Ltd, the
then owner of the land, and the applicant intends to have it
re-issued to
itself. The City of Tshwane in its answering affidavit
pours cold water on the proposal, pointing out that not all the
properties
are subject to the authorisation, that the proposal is at
present not more than an idea, and that much will still have to be
done
before work on the project can start, such as upgrading of the
applicant’s bulk services network in order to cater for the

additional demand that a large development will place on the system.
All these aspects will take at least two years for final
planning and
approval before implementation can commence. Accordingly, in its
view, the project is not now on hold due to the
unlawful invasions.
16. Having regard to the minutes of
the engagement meeting that took place on 3 September 2010, which was
handed in at the commencement
of the hearing on 9 September 2010, it
is clear that the City of Tshwane is hoping for a two year period of
grace to deal with
the problems and is effectively advancing the case
that a two year delay will not prejudice the applicant. In terms of
paragraph
7 of the minute the respondents agreed in principle among
themselves that a delay of two years would be appropriate. It reads:
“
The parties agree
that the municipality will be given a period to identify appropriate
alternative land, and thereafter that it
will be given 18 months to
complete and obtain all planning permissions and budget funding which
may be needed.”
No explanation is set out in the
minute for why the City will need 2 years for what after all would
amount to an emergency if eviction
is ordered. The attitude does not
seem to me to be entirely in line with the approach encouraged by the
Emergency Housing Programme
contained in the National Housing Code, a
matter to which I will return in due course.
17. The applicant’s response is
to complain legitimately that there is no reason for delay and
contends that the process of
spatial development should be expedited
in accordance with the City of Tshwane’s plans for the area.
It goes so far as to
make a proposal for it to become involved in
developing the areas in conjunction with the City and has offered to
embark on a
structured development of the land and to build 8220
houses, with a view to finalising the project within 48 months, with
a density
of 60 housing units per hectare, but also including retail,
commercial and community facilities. Considering that according to

the City there are approximately 20 000 informal structures in the
Greater Atteridgeville area, the proposal would seem to be an

attractive one. It is not clear whether the City at this stage views
it favourably. The proposal alone, however, does nothing
to solve
the immediate dilemma in terms of which the applicant asserts its
rights of ownership in the hope of being allowed to
develop the
property. It contends rightly that there is no legal and
constitutional basis whereby it can be indefinitely deprived
of its
rights of use and development, especially when the City has similar
land available and is entitled to seek grants from the
provincial
government in order to relocate the occupiers. The mere presence of
the occupiers on the land will probably pose an
obstacle to financing
and other ventures aimed at development.
18. In its answering affidavit the
City maintains that it does not have suitable land available to
accommodate the occupiers. It
hastens to add that it is not shying
away from its constitutional responsibilities and undertakes to
engage with other relevant
organs of state to try ameliorate the
situation. In his report to the court dated 20 August 2010 Mr
Mboweni makes frank and full
disclosure of the difficulties facing
the City in dealing with the problems of land invasion and informal
settlement. One is left
with no doubt that the problem is a
burgeoning one causing considerable anxiety and tensions among the
citizens of Tshwane, and
making Mr Mboweni’s task an
exceedingly difficult and frustrating one. He explains in the report
that in February 2008 the
City adopted the Municipal Housing
Development Plan (“MHDP”) as a way forward in dealing
with and formalising all informal
settlements in Tshwane. He states
that the MHDP did not include Zandfontein because the settlement did
not exist during the time
of compilation (mid to late 2007), thus
confirming to some extent the applicant’s version that the
settlement only began
in 2009.
19. In terms of the MHDP, the City
commissioned a number of Integrated Special Development Frameworks
(ISDF) including one for Kirkney/Andeon/Zandfontein
and another for
Atteridgeville. One of the aims and objectives of the ISDF is “to
develop all vacant, developable pockets
of land for residential
infill purposes”. The Kirkney ISDF, approved by the city
council in August 2009, records that “the
bulk of land in the
study area is in private ownership though there are a few large
parcels of land owned by the City of Tshwane
and Gauteng province”.
It further records that there are four pockets of government owned
land in the area which could be
utilised to set certain development
trends in motion and states that the area holds enormous development
potential by way of redevelopment,
densification and the
intensification of land uses. It then makes detailed recommendations
about residential development. It
contemplates that 31 130 units
could be developed consisting of 16 569 bonded housing units and 14
561 subsidised units, with a
further 9383 bonded houses and 2417
subsidised units to the west of the area.
20. The 20 000 informal structures in
the Atteridgeville area cannot be upgraded because they are situated
on adverse dolimitic
conditions, with the result that in time
inhabitants of those structures will have to be relocated elsewhere
to developable land
and the land availability identified in the
Atteridgeville ISDF will not be sufficient for that purpose. It
seems some of these
people may need to be relocated on the land
identified in the Kirkney ISDF. Nonetheless, it is clear from the
report that the
City might be willing to negotiate and consider the
applicant’s development proposal in respect of the Zandfontein
land,
with such development likely to take at least 18-24 months to
deal with environmental and budgeting issues. The report makes no

specific proposal about what should happen to the occupiers in the
interim while any such development is underway. Nor does it
make any
reference to the possibility of an emergency programme for temporary
re-location.
21. Both the applicant and the
residential association have set out in some detail the impact the
informal settlement is having
on social and environmental concerns in
the area. The respondents suggest that their concerns are
exaggerated. It has not been
contested, or seriously disputed, that
there is no sewerage reticulation, water supply, or electricity and
fire safety measures
in place. Water is drawn from the dam on the
property, or obtained legitimately (at a price) and illegitimately
from the neighbouring
residential areas. The settlement is putting
pressure on the environment and natural vegetation in the surrounding
bushveld which
is being used for firewood and building purposes. The
applicant and residents say that there has been a marked increase in
crime
and illegal activities, and noise levels are ever increasing.
It is likely, therefore, as the applicant contends, that property

prices in the area have declined and residents are being deprived of
the potential benefit of their capital investments.
22. The occupiers filed their
answering affidavits some time after the City of Tshwane filed its
answering affidavit. In addition,
the attorney for the occupiers has
filed 429 questionnaires completed by or on behalf of some of the
occupiers. The information
it contains is of a limited nature and no
attempt has been made to analyse the information in a meaningful way
so as to provide
the court with a clear impression of the number of
occupiers, the history of the settlement and the authenticity of any
claims
of entitlement to remain on the property in terms of ESTA.
The questionnaires, presented in the manner in which they have been,

annexed to the confirmatory affidavit of the attorney of the
occupiers without any analysis or elaboration of the information,
its
provenance or method of obtaining it, is of little or no value to the
court. Undoubtedly, the court is entitled to play an
active and
inquisitorial role in proceedings of this nature, but that does not
extend to analyzing and drawing conclusions from
more than 400
questionnaires annexed without explanation to the papers by the
occupiers’ legal representative.
23. The people residing in the
settlement, known to them as Melusi settlement, are poor people, who,
as their circumstances reflect,
live on the margins. I am unable to
establish from the papers precisely how many of the inhabitants are
women, children or vulnerable
persons by virtue of age, infirmity or
disability. Mr Makhabela (the main deponent) states in his affidavit
that the occupiers
have been informal residents of the immediate
vicinity for some time and that there have been informal structures
for the duration.
He maintains that during 2005 and 2006 these
informal residents were requested by the authorities to settle on
portions 150 and
124 where the occupiers remain at present. He says
that he has lived on Zandfontein for the last 35 years. He does not
say precisely
where on Zandfontein, although he explains that he
worked for Corobrick who had premises in the vicinity from 1977 until
1985.
Corobrick closed its works and retrenched its employees when
it moved to Pretoria North during 1985. During that time he lived
in
employees’ accommodation consisting of a brick house, that was
later destroyed. After the brick house was destroyed and
he was
retrenched he continued to live on the property. He is vague about
exactly where he lived and does not describe the abode
in which he
resided. These circumstances, he contends, entitle him to remain on
the property as an ESTA occupier. He acknowledges
that there have
been subsequent owners of the property who have employed some of the
occupiers but he does not specifically aver
that he obtained consent
from them to remain on the property. He estimates that about 20
occupiers can claim ESTA rights by reason
of their association with
Corobrick .
24. Makhubela denies that there are
ongoing invasions and asserts that since December 2009 there have not
been more than 10 new
shack erections. Importantly, he makes a
concession, qualified by his lacking a binding mandate, that there is
“a general
sentiment” that the occupiers do not have an
objection to move to alternative accommodation as long as it is in
the near
vicinity and provides the basic amenities for a dignified
life. He sets out the advantages enuring to the occupiers from their

present location, including easy access to the city, available
transport and the proximity of schools for the benefit of the
children
in the settlement. At the same time, while baulking at the
stereotyping of people residing in informal settlements, he accepts

that the informal settlement has certain environmental and social
impacts, but points out that the settlement is organised along

orderly and organised lines. The photographs in Annexure K to the
applicant’s founding affidavit give some credence to that

claim. They depict surprisingly well-built, albeit basic structures,
in many cases surrounded by wooden or wire fencing, with
each unit
numbered. In essence, he submits that the fears of the applicant and
resident’s association about environmental
and social ills are
exaggerated.
25. Before turning to the law and
principles governing the situation, it will be convenient first to
deal with the only substantive
defence raised by the respondents to
the claim by the applicant for eviction, namely that some of the
occupiers enjoy protection
from eviction under ESTA. The City of
Tshwane has latched on to the defence and has submitted that the
court does not have jurisdiction
to adjudicate the matter at least in
respect of some of the occupiers and it is not possible to determine
on the papers which occupiers
are subject to this court’s
jurisdiction and which are not. In terms of section 17 of ESTA, only
the magistrate’s
court and the Land Claims Court have
jurisdiction in respect of disputes arising under ESTA, unless all
the parties consent to
proceedings in the High Court. The City of
Tshwane indicated that should ESTA apply it would not consent to
jurisdiction.
26. Section 4 and 5 of PIE allow for
the eviction of unlawful occupiers in certain specified circumstances
and in accordance with
appropriate procedures. The definition of
“
unlawful occupiers
”
in section 1 of PIE excludes a person who is an occupier under ESTA.
An “occupier” in ESTA means “a person
residing on
land which belongs to another person and who has on 4 February 1997
or thereafter had consent or any other right in
law to do so…”
Section 2(1) of ESTA provides that the Act applies to all land
“other than land in a township
established, approved,
proclaimed or otherwise recognised as such in terms of any law, or ….
by such a township or townships….”
27. The first issue then in
determining whether ESTA protection applies is whether the land in
question is land other than land
in a township established, approved,
proclaimed or otherwise recognised as such in terms of the law. It
has not been seriously
disputed by the applicant that the land is not
in a township so established etc. The determinative issue
accordingly is whether
the occupiers are “occupiers” in
terms of ESTA, that is whether they had consent or any other right to
reside on the
land. As already mentioned, Makhubela averred that he
had been living on the farm Zandfontein for 35 years. He does not
refer
to any specific portion and it may be that he is referring to
other portions that are not the land in dispute. He relies on the

consent allegedly given to him by Corobrick. Mr Gerhard Botha, the
owner of the land on which Corobrick was situated, has filed
a
replying affidavit. The relevant property was portion 22. The
property is approximately 3,63 hectares in extent and previously
was
leased by the then owner, the Tongaat Group, to Corobrick, who
conducted business from the premises. About 14 years ago Mercor

Properties CC purchased the property from the Tongaat Group and
demolished all the buildings including the housing for Corobrick

employees. It built other buildings which until today are used for
the panel beating business. Portion 22 is the adjacent land
to the
north of portion 150 and is not the applicant’s land. The
portions in issue in this case were purchased by close
corporations
in which Botha was the sole member. This land has never been
utilised by anyone for business purposes. It was merely
open veld
and no one stayed there on a temporary or permanent basis. Botha
personally ensured that no one stayed on the land and
he burnt the
veld annually in order to clear the grass. He sold the properties
about 4 years ago. He continued thereafter to
keep an eye on the
properties and states with conviction that no one resided on the
land. According to him neither the representative
of the previous
owner nor the representative of the current owner or anyone else gave
consent to Makhubela or any other occupier
to reside on the property.
The other three occupiers who deposed to affidavits also make vague
allegations and in fact none of
them actually states that he or she
had consent from anyone to be there. The evidence presented by the
deponents in an attempt
to establish ESTA protection is vague to the
extreme and does not indicate when, by whom and in what form consent
was granted.
28. Added to that there is the
undisputed rebutting evidence of the aerial photographs. Admittedly
this evidence is annexed to
the replying affidavit, but, it should be
kept in mind, such photographs originate from the relevant department
of the City of
Tshwane. Annexures HdB11 and HdB12 reveal no visible
structures on the land during 2005 and 2007. Annexure HdB13 shows
that there
were about 35 structures in 2009. A Google Earth
photograph annexed to the occupiers’ answering affidavit, as
Annexure 1,
and dated 13 September 2009, shows that there was growth
to about 65 shacks then. And finally a further aerial photograph
taken
on 29 July 2010, annexed as Annexure HdB 17 to the applicant’s
second replying affidavit, shows a considerable and exponential

growth to about 400 shacks. The settlement effectively has grown to
a township, increasing by 335 structures in the space of the
last 9
months. The averments of the respondents that people have resided on
the land since the 1980’s with consent of the
owners are
therefore untenable and uncreditworthy and should be rejected. In
the light of that I have no hesitation in concluding
that none of the
occupiers had consent and hence that ESTA is not applicable. It
follows that this court has jurisdiction to determine
the eviction
issue in terms of PIE.
29. PIE has been enacted “within
a defined and carefully calibrated constitutional matrix” to
prevent both illegal evictions
and the unlawful occupation of land.
The constitutional values to be kept in mind are those in sections 25
and 26 of the Constitution.
They respectively protect property
owners against unjust deprivation and occupiers of land and housing
against unjust eviction.
Section 25(1) provides that no one may be
deprived of property except in terms of law of general application
and no law may permit
arbitrary deprivation of property. Section
26(1) provides that everyone has the right to have access to adequate
housing. In
recognition of the non-self executing nature of the
right in section 26(2) provides that the State must take reasonable
legislative
and other measures within its available resources, to
achieve the progressive realisation of this right. Section 26(3)
offers
a strong constitutional safeguard against eviction. It reads:
“
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.”
In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 227 Sachs J succinctly summed up the essence
of the right when he observed:
“
Section 26(3)
evinces special constitutional regard for a person’s place of
abode. It acknowledges that a home is more than
just a shelter from
the elements. It is a zone of personal intimacy and family security.
Often it will be the only relatively
secure space of privacy and
tranquility in what (for poor people in particular) is a turbulent
and hostile world. Forced removal
is a shock for any family, the
more so for one that has established itself on a site that has become
its familiar habitat.”
30. Section 4 of PIE deals with
evictions by owners or persons in charge of property. The City of
Tshwane has contended that the
application was brought in terms of
section 5, which permits urgent eviction by a court only if it is
satisfied that there is a
real and imminent danger of substantial
injury or damage if the unlawful occupier is not evicted and provided
certain other requirements
are met, which the City says were not met
in this case. I will return to this point later. The order of
Raulinga J of 15 June
2010, on the basis that the eviction
application was made in terms of either section 4 or 5, gave effect
to the procedural protections
in section 4(2)-(5). Section 4(7)
affords a remedy to a property owner against deprivation of its
property by unlawful occupation
while at the same time protecting
occupiers against unconstitutional eviction. The relevant part of
the provision reads:
“
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 ….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 woman.”
31. If the court is satisfied that an
eviction is justified it must order the eviction and determine a just
and equitable date on
which the unlawful occupier must vacate the
land and the date upon which the eviction order may be carried out if
the unlawful
occupier does not vacate the land. In setting the just
and equitable date for eviction the court must have regard to all the
relevant
factors including the period the unlawful occupier and his
or her family resided on the land.
32. Of particular relevance in this
case is the fact that there seems to be some willingness on the part
of the occupiers to submit
to a relocation process provided it is
managed in a humane manner sensitive to the needs of the community.
The minutes of the
engagement between the respondents on 3 September
2010 records that they agreed that a settlement of most issues is
possible and
that a final solution to the tenure insecurity of the
occupiers can be achieved through a process. The suggested process
involves
a two year period to identify land and obtain all planning
permissions and funding, and a comprehensive social survey. The
occupiers
placed on record that they are of the view that state land
or private land that can be expropriated is available within a
distance
of five kilometres of the present settlement, and that they
will not regard any resettlement further than that as reasonable.
Such pre-conditions are likely to impede the possibility of
settlement and raise the spectre of future delays and the indefinite

deprivation of the applicant of critical incidents of its ownership
of the land.
33. The circumstances of the
occupation of the land and the limited period the occupiers have been
on the land are equally relevant.
The affidavits of the occupiers
provide little information about the circumstances of individual
occupiers, but it is perhaps
self-evident that they have come to be
upon the land because of the real difficulties facing the authorities
in meeting the housing
need. Regrettably the problem of homelessness
caused by rapid urbanization is a major challenge to the authorities.
But as discussed
earlier, the aerial photographs indicate that the
occupiers arrived on the land recently and accordingly have less
entitlement
to secure tenure than others who have been waiting
longer. A court assessing the circumstances of a land invasion must
proceed
compassionately, but at the same time should be mindful of
the dangers of incentivising and rewarding the practice of unlawful
land invasions as a convenient means of jumping the queue and
obtaining preferential treatment at the expense of others waiting
for
housing allocations. In
Port
Elizabeth Municipality v Various Occupiers
(
supra
at 232 H) Sachs J cautioned:
“
The public
interest requires that the legislative framework and general
principles which govern the process of housing development
should not
be undermined and frustrated by the unlawful and arbitrary actions of
a relatively small group of people. Thus the
well-structured housing
policies of a municipality could not be allowed to be endangered by
the unlawful intrusion of people at
the expense of those inhabitants
who may have had equal claims to be housed on the land earmarked for
development by the applicant.”
34. Section 4(7) includes as relevant
“whether land has been made available or can reasonably be made
available by a municipality
or other organ of state or another land
owner”. The City of Tshwane has not made any other land
available in this case.
The question then is whether land can
reasonably be made available. For reasons best known to it, the City
has not been particularly
forthcoming about the nature, description
and full extent of the land it has available. And it has not
disclosed any information
about the effort it has made, if any, to
access the emergency programme established under the National Housing
Code. In
Government of
Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46
(CC) the Constitutional Court held that it is incumbent
upon a local authority to have in place funds and a programme to deal
with
emergency situations where an eviction order is granted to
provide adequate housing, even on an interim basis, to desperate,
destitute
and landless people. In response to that ruling the
National Housing Code has established an Emergency Subsidy Programme
to provide
housing assistance in emergency circumstances.
35. Paragraph 2 of Part A of the
Emergency Subsidy Programme specifically provides that funding under
the programme will be made
available to municipalities as grants to
enable them to respond rapidly to emergencies by means of the
provision of land, municipal
engineering services and shelter,
including the possible relocation and resettlement of people on a
voluntary and co-operative
basis in appropriate cases. In terms of
paragraph 2.3.1, an emergency exists when the MEC, on application by
a municipality, agrees
that persons owing to situations beyond their
control are evicted or threatened with imminent evictions from land,
or are in a
situation where pro-active steps ought to be taken to
forestall such consequences. Paragraph 2.6.1 stipulates that it will
be
the responsibility of a municipality to consider whether specific
circumstances in its area of jurisdiction merits the submission
of an
application for assistance under this programme, and, if so, it must
initiate, plan and formulate applications for projects
relating to
emergency housing situations and submit the application to the
relevant provincial department. Furthermore, a municipality
is given
the specific responsibility to:
“
ensure that
situations which may qualify for consideration under the Programme
are given
expeditious
treatment
.
This includes the use of accelerated land use and planning
procedures.”
36. Despite having a measure of
sympathetic appreciation for the difficulties facing the City of
Tshwane, it strikes me that its
officials either have scant knowledge
of this programme and the opportunity it presents to resolve the
present impasse, or are
reluctant to access its benefits. The
municipality has a legal duty to act expeditiously to access funds
under this programme
and to do the necessary to establish emergency
housing
rapidly
.
Instead, in this case it has obfuscated around the issue of ESTA and
has inappropriately tried to kick for touch to the Land
Claims Court.
It has also tried to avoid a section 4(7) procedure, claiming that
the applicant brought the application in terms
of section 5 and
should be held to the requirements of that section. I agree with the
applicant that when the matter was postponed
to the ordinary opposed
motion roll by agreement the intention was to deal with the
application in terms of section 4(7). Notwithstanding
its
protestations to the contrary, the City of Tshwane appears to be
shying away from its responsibilities. It has not placed
before the
court any evidence that it has availed itself of the benefits of the
emergency programme, or that it intends soon to
do so.
37. It has been said that in
applications like the present the court is called upon to go beyond
its normal functions and engage
in active judicial management
according to equitable principles of an ongoing, stressful and
law-governed social process with implications
for the procedures it
follows and the orders it might make -
Port
Elizabeth Municipality v Various Occupiers
(
supra
at 237). Accordingly, it
seems appropriate that an order should be made compelling the City of
Tshwane to make urgent application
to the province and to direct the
province to process that application expeditiously. The provincial
government has not been joined
as a party or even had effective
notice of the proceedings and service of the pleadings. Fairness
dictates therefore that any
direction from the court at this stage
should be in the form of an institutional request. As appears from
what follows, should
the City and the province for whatever reason be
unable to provide a budget for emergency accommodation such is likely
to result
in the final analysis in an award of compensation for
expropriation of the right of use or in constitutional damages. In
my opinion,
the funding might be better deployed were the organs of
state to meet their obligations earlier by using it directly under
the
emergency programme in a manner bolstering confidence in the
state’s ability to resolve pressing social problems
expeditiously.
38. At the commencement of the hearing
Mr Strydom for the applicant handed up a draft order detailing the
relief sought by the applicant.
I propose altering it in some
respects to take account of what I consider necessary to move this
dispute towards a satisfactory
conclusion. From what has gone
before, I am persuaded that it will be just and equitable to order
the eviction together with safeguards
ensuring that the occupiers are
not left destitute. In reaching that conclusion I have held
uppermost the fact that the occupation
has been for a short period
and that the City of Tshwane has available to its means to provide
short-term emergency accommodation
which should not impinge unduly
upon its other long-term human settlement projects. By acting in
terms of the emergency programme,
and by enlisting the assistance of
the province, the City will be able to avoid the problem of queue
jumping.
39. The draft order seeks to direct
the City of Tshwane firstly to make a full list of the unlawful
occupiers, then to make alternative
emergency accommodation or land
available, and then for a process of eviction and relocation to that
land. Paragraph 9 of the
draft order deals with the question of
compensation. The applicant no longer seeks a monthly payment of
R991 666 as sought in
the notice of motion. Instead it seeks an
order that should the City of Tshwane fail to provide alternative
emergency accommodation
and for land by the specified date that a
declaratory order be issued that the applicant is entitled to
compensation from the City
of Tshwane to be calculated in terms of
section 12(1) of the Expropriation Act 63 of 1975, as if the right to
use had been acquired
in terms of that Act and that the
quantification of the compensation be determined by way of oral
evidence and if need be in accordance
with the directions of the
court.
40. Compensation could be payable in a
case such as this when a relevant organ of state, through its conduct
or omissions, in effect
expropriates or arbitrarily deprives a party
of its property. It is also conceivable that an applicant could be
awarded constitutional
or delictual damages for proven constitutional
violations or breaches of statutory duty. However, I am not
persuaded that the
applicant has adduced sufficient evidence of any
such violation or has laid a proper basis for a declarator that it be
entitled
to compensation for the contingency of the City not
providing emergency accommodation or land. The appropriate time for
determining
any entitlement to compensation or damages is when any
such violation or breach actually materialises. The City has not
effectively
expropriated the applicant. At most it is perhaps in
breach of its duties to access provincial government funding and to
facilitate
a solution. It may be that in time its persistent and
continued failure to act will concretize into a creeping
expropriation of
the applicant’s right to use. But I do not
accept, and nor is the evidence sufficient for that purpose, that its
present
conduct can be equated with an expropriation. Should it fail
to comply with the directives and orders I propose to issue, its
conduct, justifications and explanations associated with such
failure, should it occur, must be assessed
ex
post facto
to determine
whether a creeping expropriation has indeed occurred.
41. The applicant’s reliance on
President of the Republic of
South Africa and Another v Modderklip Boerdery (Pty) Ltd
2005
(5) SA 3
(CC) in support of the claim for compensation is misplaced,
albeit understandable. In that case a situation had been reached, as

a consequence of neglect and prevarication, where the community had
grown to 40 000 people over a number of years, with the result
that
the eviction order could not be effectively implemented because the
residents could not be relocated on account of the size
of the
community and the unacceptable risk of social dislocation. The court
held that it had been unreasonable for the State to
remain passive
and consequently it had breached its obligation to take the available
reasonable steps (expropriating the property,
providing other land)
to ensure effective relief for the private land owner. By failing to
do anything the State had breached
the landowner’s
constitutional right to an effective remedy as required by the rule
of law and section 34 of the Constitution
which entrenches the right
of everyone to have any dispute that can be resolved by the
application of law decided in a fair public
hearing before a court
or, where appropriate, another independent and impartial tribunal or
forum, which would normally include
the mechanisms and infrastructure
created to facilitate the execution of court orders. We are not at
that stage in the present
matter. The City has evinced a willingness
to engage meaningfully (albeit not very expeditiously or
conscientiously) and no court
order has yet been issued directing it
to act in a particular manner, which it has failed to heed. An order
declaring an entitlement
to compensation, contingent on future
possible failures of duty or in violation of constitutional rights,
in my opinion, would
be premature.
42. In
Blue
Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and
Another
[2010] JOL 25031
(GSJ), Spilg J, having found various breaches of duty on the part of
the City of Johannesburg by failing to apply a budgetary surplus
to
implement its emergency or temporary accommodation programme to
assist indigent unlawful occupiers of privately owned property,

awarded constitutional damages to the landowner. Because the
landowner had to some extent been supine, the learned judge assessed

the damages award by reference to rental values and not by reference
to lost opportunity revenues had the property been developed
in the
interim period. He based the compensation on the benefit to the
municipality of not being obliged to incur the cost of
itself
procuring accommodation and effectively foisting its duties on the
applicant when it appeared to have adequate resources
at the time.
Again, it may be that the applicant in the present case will
eventually obtain similar relief because it becomes
compelled to
allow its land to be used to provide accommodation to people for whom
the City has the appropriate responsibility.
However, it would be a
dangerous precedent to regard the imposition of liability for
compensation or damages as the starting point.
First an eviction
order should be granted and humanely implemented by the City of
Tshwane meeting its constitutional obligations
after having a fair
and proper opportunity to do so.
43. The City of Tshwane has put up
vigorous opposition to the application, attempting, if perhaps not
prudently, at least legitimately,
to avoid the consequence of an
eviction order and the obligations it will impose upon it in terms of
the National Housing Code.
It has not succeeded, and therefore I see
no reason why it should not in accordance with the ordinary
conventions pay the costs
of the applicant.
44. I therefore make the following
orders:
(i) The third respondent is ordered
within 10 days of this order to conduct an audit and to compile a
comprehensive report detailing
the particulars of each and every
unlawful occupier occupying the applicant’s properties
mentioned in paragraph 2 of this
judgment as at the date of this
order.
(ii) The third respondent is ordered
to initiate, plan, formulate and submit an application for assistance
to the provincial department
responsible for human settlements of the
Gauteng government, in terms of the applicable provisions of the
National Housing Programme
for Housing Assistance in Emergency
Housing Circumstances, for the purpose of acquiring a grant,
resources and necessary technical
co-operation to enable it to
respond rapidly to the emergency arising from the imminent eviction
of the second respondents from
the applicant’s land, as
provided for in this order.
(iii) The application referred to in
paragraph (ii) of this order shall be submitted by the second
respondent to the provincial
department responsible for human
settlements within 30 days of this order.
(iv) The provincial department
responsible for human settlements of the Gauteng government is
mandated and requested to consider
and determine the application of
the third respondent within 14 days of the submission of the
application and to furnish written
reasons for its decision to the
third respondent and the legal representatives of the applicant and
the second respondents.
(v) The third respondent is ordered to
make available alternative emergency accommodation or land, as
envisaged in terms of the
National Housing Programme for Housing
Assistance in Emergency Housing Circumstances, for the unlawful
occupiers occupying the
applicant’s properties on the date of
this order, which emergency accommodation and/or land must be
provided on or before
31 January 2011.
(vi) The unlawful occupiers referred
to in the report referred to in paragraph (i) of this order are
ordered to vacate the applicant’s
property on or before 28
February 2011.
(vii) The third respondent is ordered
to assist the unlawful occupiers with transport and other means to
relocate from the applicant’s
properties to the accommodation
and/or land contemplated in paragraph (v) of this order.
(viii) The third respondent is ordered
to consult and to meaningfully engage with the intervening party, the
West Moot Residents
Association, with a view to accommodating the
concerns, rights and interests of its members and to give full and
proper consideration
to its views regarding the identification of
alternative land, and the allocation and relocation of the unlawful
occupiers to the
alternative emergency accommodation and/or land
referred to in paragraph (v) of this order.
(ix) In the event that the unlawful
occupiers should fail or refuse to vacate the applicant’s
properties as contemplated in
paragraph (vi) of this order on or
before 28 February 2011, the applicant shall be entitled to evict the
unlawful occupiers from
its properties at any time on or after 15
March 2011.
(x) All other unlawful occupiers or
invaders who occupy the applicant’s properties on 15 March
2011, but who are not included
in the report referred to in paragraph
(i) shall be evicted from the properties on that date irrespective of
alternative accommodation
being provided by the third respondent to
them or not.
(xi) The Sheriff and the South African
Police Services are mandated and requested to assist the applicant in
its activities and
endeavours to evict all unlawful occupiers and
invaders from the properties as envisaged in this order.
The applicant’s prayer for
compensation in paragraph 4 of Part B of this notice of motion is
postponed
sine die
.
The
application
for the payment of and the quantification of such compensation shall
be referred to and decided by oral evidence on
such date and in
accordance with any directions regarding pleadings, discovery,
inspection and other matters of procedure as
determined by the
Deputy Judge President or any other judge designated by him.
The
third respondent is ordered to pay the applicant's costs of the
application, including the costs of the proceedings on 6 July
2010
and 26 August 2010.
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date
Heard: 26 August 2010
For
the Applicant: Adv T Strydom
Instructed
By: Moduka More Attorneys, Pretoria
For
the First and Second Respondents: Adv CR Jansen
Instructed
By:Gilfillan du Plessis Inc., Pretoria
For
the Third Respondent: Adv J Botha
Instructed
By: Stegmanns Inc.
For
the Intervening Party: Adv J Mollentze
Instructed
by
:
HLRTER &
S
PIES
Inc