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2011
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[2011] ZAGPPHC 130
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Pheko and Others v Ekurhuleni Metropolitan Municipality (5394/11) [2011] ZAGPPHC 130 (11 March 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 5394/11
DATE:11-03-2011
In
the matter between
NTHABISENG
PHEKO AND 777
OTHERS
..................................................................
Applicant
and
EKURHULENI
METROPOLITAN
MUNICIPALITY
...................................................
Respondent
JUDGMENT
MAKGOBA,
J: The applicants in this matter brought an urgent application before
this court on Saturday afternoon, 5 March 2011 at
16:00 seeking an
order in the following terms:
1.
That the respondent be restraint and interdicted from demolishing
and/or further demolishing accommodation and shelters of the
applicants.
2.
That the respondent be restraint and interdicted from intimidating
the applicants to vacate the property.
3.
That the respondent be restraint and interdicted from unlawfully
evicting the applicants from the property;
4.
That the respondent be ordered to provide alternative accommodation
to the applicants and/or those applicants whose accommodations
and
shelters have been demolished."
Lastly
an order as to costs. Upon hearing counsel in the afternoon on
Saturday 5 March 2011 I postponed this matter to enable the
respondent to file their answering affidavit and the matter was thus
postponed to Wednesday 9 March 2011. On the morning of 9 March
2011
the respondent duly filed their answering affidavit which seemed to
be quite voluminous and it was only fair that the matter
be again
postponed to enable the applicants to file their replying affidavit
which they did. Presently the matter has been argued
before me with a
complete set of papers. I wish to express my gratitude to both
counsel for having drawn up such voluminous papers
at the shortest
available time to enable the court to have a clear picture of the
history of this matter and the essence of this
matter. Counsel are
commended for work well done.
I
am now in a position to pass judgment in this matter after having all
the facts before me. The essence of the matter is that the
area
concerned, Bapsfontein informal settlement, has been declared a
disaster area in terms of the
Disaster Management Act no. 57 of 2002
.
This declaration was a sequel to a report by a firm of geologists way
back in 2005 when they compiled a report to the effect that
the area
is a disaster area in that it has sinkholes. Furthermore, a recent
report by the geologists was also submitted to the
respondent in the
year 2009 confirming the previous report of 2005. From the papers I
can deduce that a declaration of the disaster
area was duly
proclaimed by the respondent during December 2010. That declaration
was duly published in the Provincial Gazette
and pursuant to such
declaration a resolution was taken by the council of the respondent
that the area poses danger to livelihood
of the residents and that
the residents had to be moved for their safety. Thereafter various
meetings were held with the residents
and addressed by the officials
of the respondent explaining the danger prevalent in the area.
Permission was also sought and consent
was obtained from the
residents that they should relocate. I am informed and I can even
deduce from the papers that certain residents
have duly been
relocated to a new area.
It
would appear that the present applicants or some of them do not wish
to relocate. Now the question is whether they have a choice
to
relocate or not. This is not a situation where I am dealing with
unlawful occupiers where 1 would have expected the respondent
to act
in terms of the PIE Act to evict the residents from a particular
area. 1 am dealing with a situation of necessity in the
sense that
the area has been declared a disaster area. I am unable to determine
from my layman's point of view in the field of
geology as to when the
disaster is going to hit, that is when a sinkhole is going to occur
right underneath one of the applicant's
shelter. I cannot know that
but at the same time I cannot close my eyes to a report before me
that the area is dangerous. It is
a situation where the applicants
are resident in a dangerous area but they resist being moved from
that area, it is like a person
burning in a fire and refusing to be
rescued. The question is whether a responsible passer-by will just
leave a person burning
in a fire and say well it is none of my
business. You do not have to ask somebody's permission to rescue him,
whether he wants
it or not; you will have to rescue him in an effort
to save life. More so the respondent as a local government has a
responsibility
towards its residents to save their lives and to
deliver services to them.
It
has been argued by the applicants' counsel that the action of the
respondent in evacuating the applicants is unlawful in as much
as a
court order has not been obtained to that effect. Counsel for the
applicant is unable to tell me in terms of which law such
a court
order should have been obtained. For alt i know the PIE Act is not
applicable in this instance. This is a question of a
disaster area
and the respondent has a duty to manage the disaster. I take note of
the fact that the applicants may be resisting
to move, but their
resistance or not, there is still a duty on the local government to
act in the interests of its residents. Counsel
for the applicant
argued further that I should bear in mind that the relocation of the
applicants would lead to them being dumped
in an area where there are
no sufficient services or sufficient accommodation. That I should
then interdict the respondent from
removing these people because they
are being taken to another area which is not suitable for human
habitation.
May
I then say that it is not the duty of the court to determine where
the applicants have to be relocated to. That is an administrative
function within the sphere of the local government. This court's duty
is to do judicial functions and not administrative functions.
Be that
as it may, the respondent has made good provision for the area where
the applicants have to be moved to. In their answering
affidavit they
mention what services they have provided for and this have not been
denied. The applicants then insisted that they
have identified an
area 3 kilometres from where they are where they can be moved to. By
this they say we do not refuse to be removed
but we want to be
removed to a particular place. With respect the applicants cannot be
choosers in this instance. They cannot just
choose an area. In any
event I am not aware whether the area they have in mind is available
for allocation for residential purposes
or not. What I know is that
the respondent has identified a particular area where others have
already been moved to and that the
rest of the residents of
Bapsfontein informal settlement have to be relocated.
I
am not unmindful of the plight of the applicants in the position in
which they may find themselves. I take into consideration
that they
are indigent people. I have sympathy for poor people. I sympathise
with the poor people but at the same time I have a
duty to protect
their life. I cannot let them stay in a danger zone where they can be
swallowed by the earth as it is. In the circumstances
my finding is
that the applicants knew all along since December 2010 that they have
to be relocated to a new place but they have
not been willing to do
so. When the respondent's agents came on 5 March 2011 to execute
their decision they then ran to this court
for a remedy on an urgent
basis. I am afraid the application as it is lacks urgency that even
on the question of urgency it cannot
succeed. Let alone on the merits
as I have already outlined the merits of the case. The applicants
will be well advised not to
be misled by other people with ulterior
motives who would like them to stay there at their own risk. The
court is duty bound to
apply the laws of this country without fear,
favour or prejudice. Whilst I am sympathetic towards the plight of
the applicants,
I feel for their own safety and they will have to be
relocated from that place.
In
the circumstances the applicants have not made out a case both on
urgency as well as on the merits of the application and as
such the
application is dismissed with costs.
-00O00—
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 5394/11
DATE:
2011-03-11
In
the matter between
NTHABISENG
PHEKO AND 777
OTHER.
...................................................................
Applicant
and
EKURHULENI
METROPOLITAN
MUNICIPALITY
...................................................
Respondent
JUDGMENT
MAKGOBA,
J: After delivering judgment in this matter the applicants' counsel
addressed me on an application for leave to appeal
against the
judgment I have just given in terms whereof the applicants'
application was dismissed with costs.
It
has not been clear from the applicants' address to me as to on what
grounds is the application for leave to appeal being made.
I take it
that the applicants' counsel would like me to understand that the
court in giving judgment has erred in the judgment
it has given. Be
that as it may, the test at this stage for an applicant for leave to
appeal is whether another court can come
to a different finding or
whether there are prospects of success on appeal. I must say that
this is a peculiar case. It is a case
where as I am delivering
judgment now a disaster which the respondent purports to prevent can
hit at any moment. I do not know
when a sinkhole is going to develop
and swallow the applicants' shelters. For all I know is that if this
matter were to go on appeal
it will be finalised in not less than a
year or two from now. This would mean that my judgment or my order
shall have been suspended
pending the appeal meaning that the
applicants will be staying at that dangerous area as they are. All
what I wanted to prevent
may definitely then take place. Even if they
were to be successful on appeal by the time they succeed on appeal it
may be that
some of them have already sunk in the sinkhole.
I
find it inappropriate that leave to appeal should be granted in the
circumstances and more so that the grounds of appeal have
not been
clear to me. In any event I am not persuaded that another court will
make a finding other than what I found nor do I believe
that there
are prospects of success on appeal. In the circumstances the
application for leave to appeal is dismissed.
—
00O00—