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[2013] ZASCA 162
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Ekurhuleni Metropolitan Municipality and Another v Various Occupiers, Eden Park Extension 5 (873/2012) [2013] ZASCA 162; [2014] 1 All SA 386 (SCA); 2014 (3) SA 23 (SCA) (26 November 2013)
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REPORTABLE
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 873/2012
DATE: 26 November 2013
In the
matter between:
EKURHULENI
METROPOLITAN MUNICIPALITY FIRST APPELLANT
GAUTENG
DEPARTMENT OF HOUSING SECOND APPELLANT
and
VARIOUS
OCCUPIERS, EDEN PARK EXTENSION 5 RESPONDENTS
Neutral
citation:
Ekurhuleni Metropolitan Municipality v Various
Occupiers, Eden Park Extension 5
(873/12)
[2013] ZASCA 162
(26
November 2013)
Bench:
Ponnan,
Malan, Majiedt, Willis and Saldulker JJA
Heard:
4 November 2013
Delivered: 26
November 2013
Summary
: Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) – s 4 – eviction
of unlawful
occupiers.
ORDER
On appeal from
: South Gauteng High Court, Johannesburg
(Satchwell J sitting as court of first instance):
The appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
PONNAN JA (MALAN, MAJIEDT, WILLIS and SALDULKER JJA concurring):
[1] The first appellant is the Ekurhuleni Metropolitan Municipality
(the municipality), a metropolitan municipality established
as such
in accordance with the provisions of the
Local Government: Municipal
Structures Act 117 of 1998
. The second appellant is the Gauteng
Department of Housing (the provincial department) established in
accordance with the provisions
of the Public Service Act 1994
(Proclamation 103 of 1994) and is responsible for the provision of
housing within the Gauteng Province.
The appellants appeal against
the judgment of the South Gauteng High Court, Johannesburg, in which
Satchwell J dismissed with costs
their application in terms of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE), for
the eviction of various occupiers (the
Respondents)
1
from a housing development known as Eden Park Extension 5 (Ext 5).
[2] The development of subsidised housing at Eden Park was initiated
as a local development project in 2000 when a proposal was
made by a
company known as Bluedot Properties to the Alberton Town Council to
erect 3 500 houses with donor funding. It was envisaged
that the
project would assist the Alberton Town Council to address its housing
backlog. Ms Minnie Booysen, the principal deponent
to the affidavits
filed on behalf of the respondents, alleged that:
'These houses were to be donated to the squatters; homeless people
and backyard and zozo dwellers of Eden Park and the feeder areas,
with the proviso that all intended beneficiaries resident within the
jurisdiction of the ATC [Alberton Town Council] were to be
drawn from
the provincial departmental housing waiting list.'
[3] Ms Booysen further stated that when representatives of the Eden
Park and other feeder area communities met with officials of
the
municipality they were assured that their applications would receive
priority in respect of the development at Ext 5. She
added:
‘When in March 1999 it was reported in the Alberton Record that
the community of Eden Park was not going to benefit from
the
development at EPE5, and that the residents on the waiting list from
Eden Park had shrunk from 2600 to 304, the community engaged
the
First Applicant by marching to its offices and requested that the
matter be investigated. As is apparent from what is to follow
the
community has engaged the Applicants on the allocation of the homes
in EPE5 from as early as 1999. The purpose of this engagement
was to
ensure that the identification of beneficiaries was transparent and
done in a manner that prioritized the needs of the homeless
people
and backyard dwellers in Eden Park and the immediately surrounding
townships.’
[4] Towards the end of 2001 and for reasons that do not emerge on the
papers donor funding for the project was withdrawn. The municipality
then took over the project, whereafter the provincial department
became responsible for the construction and allocation of houses.
In
2003 the municipality made available for inspection its waiting list
of beneficiaries. Contrary to the expectations of the local
community, of the 2 149 housing stands that had been developed by
that stage, only 77 were allocated to applicants from Eden Park
and
the other feeder areas. At a meeting with the municipality in
September 2003, the ward councillor for the Eden Park community,
Mr
Jarvis, expressed the local community's dismay at the housing list.
The municipality's executive director of housing, Mr Chanee,
indicated at this meeting that '[a]ny alleged discrepancies received
[would] be investigated’. He indicated further that:
'It must be remembered that no system is flawless and that during
1998 and 2000, documents were not captured by the Council, but
were
submitted to Province for capturing. The possibility of documents
being lost during this period is not excluded.'
On 26 September 2003, according to Ms Booysen, the municipality
withdrew the waiting list and suspended the allocation process
‘due
to the problems it was experiencing with the waiting list’.
[5] On 24 November 2003, the provincial department initiated a new
housing allocation programme called '[t]he 1996 and 1997 Waiting
List
Beneficiaries' programme. The then MEC for Housing: Gauteng, issued a
policy directive (the directive) announcing the new
provincial
programme. The directive recorded that the province had experienced
'various problems [plaguing] the Waiting List at
a provincial and
municipal level'. It added that the allocation of housing subsidies
to beneficiaries 'has not been totally aligned
to the Waiting List
and as a consequence a significant number of beneficiaries [who had]
applied in 1996 and 1997 [had] not yet
received any subsidy
assistance'. The directive further provided that:
a) All beneficiaries that are captured on the Gauteng Department of
Housing's Waiting List as 1996 and 1997 applicants, are eligible
for
housing assistance;
b) Beneficiaries that are subsidized in terms of this programme be
exempted from the R2 479,00 financial contribution;
c) All beneficiaries within this programme that earned below R3 500
per month are eligible to receive the full subsidy amount;
and
d) All beneficiaries are given preference in housing projects
especially where the top structure has been completed.'
[6] In the meanwhile on 20 November 2003 the mayoral committee of the
municipality had adopted a resolution (the resolution) in
respect of
housing allocations in Ext 5, which stated:
'That the following beneficiary qualification criteria for Eden Park
Extension 5 BE NOTED and APPROVED in addition to the Provincial
and
National Housing subsidy qualification criteria
(a) They shall be beneficiaries from Alberton, Thokoza and Eden Park
(100 beneficiaries shall be from Eden Mews).
(b) They shall be beneficiaries who are in possession of Form C's
dated between January 1996 to December 1999, including beneficiaries
who are in possession of Form C's and already registered by Ntuli
Noble and Spoor, but were not reflected on the waiting lists.
(c) The final beneficiary waiting list comprise of beneficiaries
mentioned in (a) and (b) above and with an income not exceeding
R1500,00.
(d) The final beneficiary waiting list shall be published immediately
upon the approval of the proposed criteria for a period of
(30)
thirty days.'
[7] During January 2004 the municipality issued a new waiting list.
But that list which included only 268 applicants from Eden
Park and
other feeder areas did little to quell the disquiet that had already
been expressed by the respondents. Several meetings
followed between
community representatives and the local councillors in an attempt to
gain clarity on the housing subsidy applications
and allocation
process at Ext 5. And as the housing construction project progressed,
the discontent by members of the community
became manifest. A series
of petitions and protests followed. Eventually on 9 October 2008 and
following a mass meeting, the residents
of Eden Park began occupying
the unoccupied and incomplete houses in Ext 5. Ms Booysen summarises
what motivated their conduct
thus:
'Despite all these efforts [at engagement] the community is still
none the wiser on the criteria used to identify the qualifying
beneficiaries for Eden Park Extension Five. We have attempted to
engage the applicants through our local ward councillor and our
local
community organisation, EPCAU [the Eden Park Community Action Unit]
with no success. . . . The occupation also came about
because of
the incoherent and mysterious beneficiary identification process; the
general failure on the part of the applicants
to explain their
housing policy and their beneficiary qualification criteria; and
their overall inability and unwillingness to
engage with the
respondents and explain why available housing resources in the area
were not used in whole or in part to address
the needs of the
community . . .
When our concerns were not addressed there were those of us that had
been approved but not allocated [houses] who became afraid
that we
would just be looked over again and not benefit. There were others
who had applied for housing in 1996 and 1997 but still
had not
benefitted, never mind that the development was meant to cater for
these applications. Some had been allocated homes at
the development
and these homes were incorrectly given to somebody else. It was all
these factors that led to the eventual occupation
. . . .'
[8] Against that backdrop, the appellants approached the high court
for an order in the following terms:
'1) For the eviction of the respondents from the houses the erven
numbers of which are listed and attached to the founding affidavit
as
FA2 within 30 days from the date on which the order is granted.
2) That if the respondents do not vacate the aforesaid houses within
30 days from the date on which the order is granted, the Sheriff
for
the district of Alberton be hereby authorized to do all that is
necessary to give effect to the eviction order by removing
the
respondents and all persons who occupy the aforesaid houses through
the respondents and all assets belonging to the respondents
or
belonging to all persons who occupy the property through the
respondents from the aforesaid houses.
3) That the respondents be ordered to pay the costs which may be
occasioned by the Sheriff having to give effect to the eviction
order.
(4) That the respondents be ordered to pay the costs of this
application.'
[9] Annexure FA2 to the founding affidavit, under the caption 'Stand
numbers of houses illegally occupied', listed 903 such stands.
In
support of the application, the municipality's Executive Director:
Legal and Administrative Services stated:
'1.8 The respondents are unlawful occupiers of six hundred and fifty
one (651) houses
("
the houses
")
constructed by and at [the] instance of the second applicant on land
belonging to the first applicant situated at Eden Park Extension
5.
1.9 I attach hereto as FA2 a list of erven numbers for the houses
unlawfully occupied by the respondents. All of these erven are
on
Portion 175 of the Farm Palmietfontein 141 IR which belongs to the
first applicant. The first applicant's attempts to ascertain
the
identities of the respondents all of whom occupy the houses have been
unsuccessful. The reason why attempts to ascertain the
identities of
the respondents is that officials employed by the applicants to do so
were threatened with violence when they visited
the houses to
ascertain the respondents identities. I, however, confirm that the
houses are occupied illegally as it will become
apparent below.'
[10] The high court was not persuaded that it would be just and
equitable in the circumstances of this case to order the eviction
of
the respondents from Ext 5. What informed the conclusion of the high
court were the following three broad yet overlapping considerations:
first, the appellants had displayed uncertainty and confusion as to
the identity of those persons who were to be evicted; second,
the
integrity of the waiting list and the allocation process had been
compromised, accordingly, so the high court stated 'the possibility,
indeed the probability [existed], that there had been arbitrariness
to the process which renders it unacceptable'; and third, the
appellants adopted an 'exclusionary' eviction process that did not
have proper regard to the personal circumstances of each of
the
unlawful occupiers.
[11] The Constitution is the touchstone. Its key constitutional
provisions at issue in this case are s 26 and s 28(1)(
c
).
Section 26 provides:
‘(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of this right.
(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. No legislation may permit arbitrary
evictions.'
Section 28(1)(
c
) provides:
‘Every child has the right - to basic nutrition, shelter,
basic health care services and social services.'
These rights, as part of a cluster of socio-economic rights, entrench
the right of access to adequate housing and the right of
the child to
shelter. To those provisions may be added
section 2(1)
of the
Housing Act 107 of 1997
, which provides that national, provincial and
local spheres of government are bound to observe certain principles
when dealing
with 'housing development'. Those include ensuring that
' . . . . housing development –
(iv) is administered in a transparent, accountable and equitable
manner, and upholds the practice of good governance . . . .'
[12] The Constitutional Court has held on several occasions that s 26
of the Constitution requires that all state action concerned
with
housing must be reasonable and cognisant of the human dignity of the
occupiers. Thus in
Government of the Republic of South Africa &
others v Grootboom & others
2001 (1) SA 46
(CC) the
Constitutional Court held (paras 82 and 83):
'All implementation mechanisms and all State action in relation to
housing falls to be assessed against the requirements of s 26
of the
Constitution. Every step at every level of government must be
consistent with the constitutional obligation to take reasonable
measures to provide adequate housing.
. . . .
Section 26, read in the context of the Bill of Rights as a whole,
must mean that the respondents have a right to reasonable action
by
the State in all circumstances and with particular regard to human
dignity. In short, I emphasise that human beings are required
to be
treated as human beings. This is the backdrop against which the
conduct of the [appellants] towards the [respondents] must
be seen.'
[13] Moreover, in
Residents of Joe Slovo Community, Western Cape v
Thubelisha Homes & others (Centre on Housing Rights and Evictions
& another,
Amici Curiae
)
2010 (3) SA 454
(CC) para
148, Moseneke DCJ observed that where the occupiers reside on land
owned by the State different and more stringent considerations
may
well apply, given the State’s obligations under s 26(2) of the
Constitution. In that case, the Constitutional Court made
plain that
in order for government to obtain an eviction order from state-owned
land it needs to show both that in seeking the
eviction, it is acting
reasonably within the meaning of s 26(2) of the Constitution (which
enjoins it to take reasonable steps
to provide adequate access to
housing) and that the eviction is just and equitable as contemplated
under PIE. The requirement of
reasonableness thus overlaps with the
justice and equity enquiry under PIE, particularly in respect of
government's implementation
of its housing development plans. The
reasonableness or otherwise of government's conduct is thus a
material factor in determining
whether the eviction is just and
equitable.
[14] PIE was passed to give effect to s 26(3) of the Constitution.
Eviction proceedings by the 'owner of land' are governed by
section 4
of PIE and by 'an organ of State' by section 6. The appellants
contend that where an application for eviction is brought
by an organ
of state which is also the owner of the land in question it must be
considered under s 4 and not s 6 of PIE. The high
court approached
the matter on the basis that s 4 found application. I shall assume in
the appellants’ favour, without deciding,
that the high court
was correct in its approach.
[15] To the extent here relevant s 4 of PIE, headed
‘eviction of unlawful occupiers’,
reads:
‘
(1) Notwithstanding anything to the
contrary contained in any law or the common law, the provisions of
this section apply to proceedings
by an owner or person in charge of
land for the eviction of an unlawful occupier.
. . .
(6) If an unlawful occupier has occupied the land
in question for less 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 the rights and needs of the
elderly, children, disabled persons and households headed by women.
(7) If an unlawful occupier has occupied the land
in question for more than six months at the time when the proceedings
are initiated,
a court may grant an order for eviction if it is of
the opinion that it is just and equitable to do so, after considering
all the
relevant circumstances, including, except where the land is
sold in a sale of execution pursuant to a mortgage, whether land has
been made available or can reasonably be made available by a
municipality or other organ of state or another land owner for the
relocation of the unlawful occupier, and including the rights and
needs of the elderly, children, disabled persons and households
headed by women.
(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)
a just and
equitable date on which the unlawful occupier must vacate the land
under the circumstances; and
(b)
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).
’
[16] In
City of Johannesburg v Changing Tides 74 (Pty) Ltd &
others
2012 (6) SA 294
(SCA) Wallis JA explained:
‘[11] In terms of s 4(7) of PIE an eviction order may only be
granted if it is just and equitable to do so, after the court
has had
regard to all the relevant circumstances, including the availability
of land for the relocation of the occupiers and the
rights and needs
of the elderly, children, disabled persons and households headed by
women. If the requirements of s 4 are satisfied
and no valid defence
to an eviction order has been raised the court "must", in
terms of s 4(8), grant an eviction order.
When granting such an order
the court must, in terms of s 4(8)
(a)
of PIE, determine a just
and equitable date on which the unlawful occupier or occupiers must
vacate the premises. The court is empowered
in terms of s 4(12) to
attach reasonable conditions to an eviction order.
[12] There does not appear to have been a consideration of the
precise relationship between the requirements of s 4(7) (or s 4(6)
if
the occupiers have been in occupation for less than six months) and s
4(8) in the context of an application for eviction at
the instance of
a private landowner. In some judgments there is a tendency to blur
the two enquiries mandated by these sections
into one. The first
enquiry is that under s 4(7), the court must determine whether it is
just and equitable to order eviction having
considered all relevant
circumstances. Among those circumstances the availability of
alternative land and the rights and needs
of people falling into
specific vulnerable groups are singled out for consideration. Under s
4(8) it is obliged to order an eviction
"if the …
requirements of the section have been complied with" and no
valid defence is advanced to an eviction
order. The provision that no
valid defence has been raised refers to a defence that would entitle
the occupier to remain in occupation
as against the owner of the
property, such as the existence of a valid lease. Compliance with the
requirements of section 4 refers
to both the service formalities and
the conclusion under s 4(7) that an eviction order would be just and
equitable. In considering
whether eviction is just and equitable the
court must come to a decision that is just and equitable to all
parties. Once the conclusion
has been reached that eviction would be
just and equitable the court enters upon the second enquiry. It must
then consider what
conditions should attach to the eviction order and
what date would be just and equitable upon which the eviction order
should take
effect. Once again the date that it determines must be
one that is just and equitable to all parties.'
[17] The phrase ‘just and equitable’ is not unknown to
our law. It is, by way of example, to be found in s 344(
h
) of
the Companies Act 61 of 1973, which provides that ‘a company
may be wound up by the Court if it appears to the Court
that it is
just and equitable that the company should be wound up'. To be sure,
that may not be an entirely apt analogy but the
approach of the
courts to that enquiry may nonetheless be instructive. In
Apco
Africa (Pty) Ltd & another v Apco Worldwide Inc
[2008] ZASCA 64
;
2008 (5) SA
615
(SCA) para 16 and 17, this court held:
‘That subsection, unlike the preceding subparagraphs of s 344,
postulates not facts but only a broad conclusion of law, justice
and
equity as a ground for winding-up (
Moosa NO v Mavjee Bhawan (Pty)
Ltd
and Another
1967 (3) SA 131
(T) at 136H). It is well
settled that the subsection giving power to the court to wind up a
company on the just and equitable
ground is not confined to cases in
which there are grounds analogous to those mentioned in other parts
of the section (
Loch v John Blackwood
[1924] AC 783
(PC)).
Nor, on the other hand, can any general rule be laid down as to the
nature of the circumstances that have to be borne in
mind in
considering whether a case comes within the phrase (
Davis & Co
Ltd v Brunswick (Australia) Ltd
[1936] 1 All ER 299
(PC) at 309).
It must also be recognised that there is no necessary limit to the
generality of the words "just and equitable".
Section
344(
h
) affords a court a wide judicial discretion in the
exercise whereof, however, certain other sections of the Act must be
taken account
of (
Erasmus v Pentamed Investments (Pty) Ltd
1982 (1) SA 178
(W) at 181).
The words just and equitable –
" . . . are a recognition of the fact that a limited company is
more than a mere judicial entity, with a personality in law
of its
own: that there is room in company law for recognition of the fact
that behind it, or amongst it, there are individuals,
with rights,
expectations and obligations
inter se
which are not
necessarily submerged in the company structure. That structure is
defined by the Companies Act and by the articles
of association by
which shareholders agree to be bound. In most companies and in most
contexts, this definition is sufficient
and exhaustive, equally so
whether the company is large or small. The “just and
equitable” provision does not …
entitle one party to
disregard the obligation he assumes by entering a company, nor the
court to dispense him from it. It does,
as equity always does,
enable the court to subject the exercise of legal rights to equitable
considerations; considerations, that
is, of a personal character
arising between one individual and another, which may make it unjust,
or inequitable, to insist on
legal rights, or to exercise them in a
particular way.
It would be impossible, and wholly undesirable, to define the
circumstances in which these considerations may arise. . . . "
(
Per
Lord Wilberforce in
Ebrahimi v Westbourne Galleries
Ltd
[1973] AC 360
(HL) at 379
b
–380
b
[1972] 2
All ER 492
at 500
a
–
h
).)'
[18]
In
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter &
others
2000 (2) SA 1074
(SE) at 1081E-G
Horn
AJ observed
in the context of PIE
:
‘The use of the term just and equitable relates to both
interests, that is what is just and equitable not only to the persons
who had occupied the land illegally, but to the landowner as well.
The term also implies that a court, when having to decide a
matter of
this nature, would be obliged to break away from a purely legalistic
approach and have regard to extraneous factors such
as morality,
fairness, social values and implications and any other circumstances
which would necessitate bringing out an equitably
principled
judgment.’
That dictum was approved by Sachs J in
Port Elizabeth Municipality
v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) in these terms:
'
[35] The approach by Horn AJ has been described
both judicially and academically as sensitive and balanced. I agree
with that description.
The phrase "just and equitable"
makes it plain that the criteria to be applied are not purely of the
technical kind that
flow ordinarily from the provisions of land law.
The emphasis on justice and equity underlines the central
philosophical and strategic
objective of PIE. Rather than envisage
the foundational values of the rule of law and the achievement of
equality as being distinct
from and in tension with each other, PIE
treats these values as interactive, complementary and mutually
reinforcing. The necessary
reconciliation can only be attempted by a
close analysis of the actual specifics of each case.
[36] The court is thus called upon to go beyond
its normal functions and to engage in active judicial management
according to equitable
principles of an ongoing, stressful and
law-governed social process. This has major implications for the
manner in which it must
deal with the issues before it, how it should
approach questions of evidence, the procedures it may adopt, the way
in which it
exercises its powers and the orders it might make. The
Constitution and PIE require that, in addition to considering the
lawfulness
of the occupation, the court must have regard to the
interests and circumstances of the occupier and pay due regard to
broader
considerations of fairness and other constitutional values,
so as to produce a just and equitable result.'
[19] Thus both the Constitution and PIE emphasise
that the court must take into account all relevant factors before
granting an
eviction order. As Wilson
2
notes, the enquiry to be undertaken is therefore whether, given all
the relevant factual, legal and socio-economic circumstances,
it is
just and equitable to order the eviction of the unlawful occupier.
‘
This requires a court to make a value
judgment, but it must not do so in a vacuum.’
There are various considerations relevant to this
determination, as outlined both in the Act and through the case law,
with each
factor taking on either an increased or lesser importance
depending on the prevailing factual matrix of each matter. According
to Chenwi
3
the following are potentially relevant to the enquiry:
‘
(i) [T]he manner in which the occupation
was effected; (ii) the duration of the occupation; (iii) the
availability of suitable alternative
accommodation or land; (iv)
reasonableness of offers made in connection with suitable alternative
accommodation or land; (v) the
timescales proposed relative to the
degree of disruption involved; (vi) the willingness of the occupiers
to respond to reasonable
alternatives put before them; (vii) the
extent to which serious negotiations have taken place with equality
of voice for all concerned;
and (viii) the gender, age, occupation or
lack thereof and state of health of those affected . . . [and] the
manner of execution
of the eviction order, that is, whether it was
executed humanely . . . Furthermore, the interests of surrounding
communities as
well as the negative impact of "land gaps"
on investor-confidence in the country, and the right of landowners
(discussed
subsequently), have been regarded by the courts as
relevant factors.’
[20] The discretion to be exercised in determining
whether or not to grant an order of eviction based upon what is just
and equitable
is one in the wide and not the narrow sense.
Consequently, as Harms JA explained in
Ndlovu v Ngcobo;
Bekker & another v Jika
2003 (1) SA 113
(SCA) para 18,
‘[a] court of first instance . . . does not have a free hand to
do whatever it wishes to do and a Court of appeal is not
hamstrung by
the traditional grounds of whether the court exercised its discretion
capriciously or upon a wrong principle, or that
it did not bring its
unbiased judgment to bear on the question, or that it acted without
substantial reasons'.
[21] Further, whilst 'technical questions relating to onus of proof
should not play an unduly significant role' in an enquiry such
as
this, that does not mean, as Wallis JA observed in
Changing Tides
,
that the onus of proof can be disregarded. Wallis JA added:
'[29] . . . After all what is being sought from the court is an order
that can be granted only if the court is satisfied that it
is just
and equitable that such an order be made. If, at the end of the day,
it is left in doubt on that issue it must refuse an
order. There is
nothing in PIE that warrants the court maintaining litigation on foot
until it feels itself able to resolve the
conflicting interests of
the landowner and the unlawful occupiers in a just and equitable
manner.
[30] The implication of this is that, in the first instance, it is
for the applicant to secure that the information placed before
the
court is sufficient, if unchallenged, to satisfy it that it would be
just and equitable to grant an eviction order. Both the
Constitution
and PIE require that the court must take into account all relevant
facts before granting an eviction order. Whilst
in some cases it may
suffice for an applicant to say that it is the owner and the
respondent is in occupation, because those are
the only relevant
facts, in others it will not. . . .'
[22] Doubtless, the position of the respondents is desperate. Most,
if not all, of them live below the bread line. One of the
respondents, Mr Alfred Hlatshwayo, put it as follows in his
affidavit:
'35. The respondents are poor people with an average household
surviving on social grants and disability grants from the Government.
A small minority of the respondents have full-time employment. The
majority of the respondents has no formal employment and is
depended
on hawking in the streets of Eden Park and surrounding areas like
Katlehong, Thokoza and Greenfields. This involves selling
vegetables
and fruits, soft drinks, sweets, cigarettes and other goods.
36. Some of the respondents survive and support their families by
doing casual piece-jobs for a daily fee as cleaners, domestic
work or
general construction workers around areas like Boksburg, Alberton and
Germiston, Katlehong and Thokoza which are all not
far from Eden
Park.'
That, however, can hardly excuse their conduct, which by their own
admission appears to have been part of a deliberate strategy
to gain
some kind of preference in the allocation of housing resources over
many others who sadly also live in lamentable conditions
and are in
urgent need of relief. Ordinarily, such conduct may, without more,
justify the scales in the just and equitable enquiry
being tipped
against them. For, given the resort to self-help encountered here, a
court may rightly decline to countenance such
conduct. Indeed, as
Yacoob J made plain in
Grootboom
(para 92):
'This judgment must not be understood as approving any practice of
land invasion for the purpose of coercing a State structure
into
providing housing on a preferential basis to those who participate in
any exercise of this kind. Land invasion is inimical
to the
systematic provision of adequate housing on a planned basis. It may
well be that the decision of a State structure, faced
with the
difficulty of repeated land invasions, not to provide housing in
response to those invasions, would be reasonable. Reasonableness
must
be determined on the facts of each case.'
[23] Whilst those observations in
Grootboom
speak to land
invasions generally, where – as here - the land or houses
concerned have already been allocated to other named
beneficiaries,
the effect of an invasion is generally far more deleterious, for not
only are the carefully crafted plans and policies
of the relevant
authorities scuppered, but more importantly the rights and
expectations of those beneficiaries are negated. The
resort to
self-help, breeding as it does chaos and anarchy, is the very
antithesis of the rule of law. Tellingly, Mr Hlatshwayo
explains:
‘After almost 9 years of waiting for a house to be approved and
allocated to me, I was informed by the first applicant .
. . [that] a
house was available to be allocated to me and my family in Palm Ridge
. . . I was expected to take occupation of the
house with immediate
effect.
I reported to the housing office within the 3 days period as
instructed by the first applicant. At the housing office, I was
advised
that the house that has been approved and allocated to me had
been invaded by an unknown person. The first applicant’s
officials
refused to give me details as to where exactly the house
was situated in Palm Ridge as they feared, at the time, that I might
take
the law into my own hands.’
As is apparent from Mr Hlatshwayo’s account, a disregard for
the rule of law often engenders self-perpetuating cycles of
lawlessness. And, it goes without saying that lawlessness, if left
unchecked, can only serve to imperil our constitutional democracy.
[24] But whilst the respondents’ conduct, which is undoubtedly
a weighty factor in the enquiry, is deserving of the strongest
censure it needs to be placed in its proper historical and factual
context. Once that is done and the considerations to which I
now turn
are balanced as against their unlawful conduct one’s initial
lack of sympathy becomes tempered somewhat. The appellants
accept
that they have a duty to ensure that they should have in place a
coherent housing policy that is reasonably and appropriately
implemented. Of the housing policy in place, Mr Abraham Lorenzen, the
Regional Director: Housing Development of the municipality
stated:
‘During 2003, the First and Second Applicants took a decision
to commence with the implementation of the Eden Park 5. The
Second
Applicant issued [the directive] in November 2003 that states that
beneficiaries from the 1996/1997 waiting list application
be
prioritised and, around the same period, the First Applicant passed
[the resolution] supporting the directive as well as amplifying
the
directive. . . .’
The truth of the matter though is that chronologically the resolution
pre-dated the directive. Absent an explanation from the appellants
(and there was none) it is difficult to comprehend how the resolution
supported and amplified the directive. The directive declared
that
the provincial department’s ‘Waiting-List Data Base was
developed to provide a tool . . . for chronological,
transparent and
fair allocation of subsidies in Gauteng’. The directive
acknowledged that 'various problems [had] plagued]
the Waiting List
at a provincial and municipal level' and that the allocation of
housing subsidies to beneficiaries '[had] not
been totally aligned to
the Waiting List and as a consequence a significant number of
beneficiaries [who had] applied in 1996 and
1997 [had] not yet
received any subsidy assistance'. The directive further provided that
‘[a]ll beneficiaries that are captured
on the [provincial
department’s] Waiting List as 1996 and 1997 applicants, are
eligible for housing assistance’.
The tenor of the municipality's resolution, on the other hand, is
that it prioritised beneficiaries from the Alberton, Thokoza
and Eden
Park areas and widened the scope of eligibility for those who were in
possession of ‘Form C’s’ from
the two year period
(1996–1997) to a four year period, being 1996 to 1999. By way
of explanation, the municipality stated
in its replying affidavit
that it 'adopted the MEC['s] directive but amplified it to prioritise
people from Alberton, Thokoza and
Eden Park who applied for houses
from 1996 to 1999'. But that is simply inaccurate, for, far from
adopting the directive and amplifying
it as the municipality asserts,
it, in truth, adopted different criteria. There were thus on the
face of it two different official
policies at play.
[25] Mr Shami Kholong, the Executive Director: Legal and
Administration Services of the municipality, who deposed to its
founding
affidavit, explained how the relevant housing policy in
respect of Ext 5 was implemented. He stated:
'1801 houses have now been completed and a list of 1801 beneficiaries
approved to occupy such houses has been drawn up and approved.
I
attach hereto as
FA5
, a copy of that list. 1200 of such
beneficiaries have already taken occupation of the completed houses.
The list of beneficiaries
who have been approved to benefit from the
houses constructed on the land is comprised of people from various
areas around the
first applicant's various areas of jurisdiction (and
in some instances far from Eden Park). As a result of this
composition, people
who have applied for houses and some who have not
even applied for houses who live around Eden Park have complained to
the first
applicant for not having been allocated houses from the
houses that are being constructed at Eden Park.
. . .
I attach hereto as
FA6
a list of approved beneficiaries who
have been allocated the houses which have been illegally occupied by
the respondents who now
cannot take occupation of the houses
allocated to them. The second applicant is now prevented from handing
over the illegally occupied
houses to the lawful beneficiaries listed
in FA6.'
What is unclear from those allegations is precisely what criteria had
been employed in compiling FA5 and 6. And, whilst it may
be
understandable that the appellants may have experienced some
difficulty when they, at the outset, approached the court for relief
in the face of an
en masse
invasion, that lack of clarity did
not abate as the case unfolded. That much emerges from the replying
affidavit of Mr Lorenzen,
who stated:
'Eden Park 5 was initially under the control of the First Applicant
and the Second Applicant took over the development during July
2008
when approximately 750 houses were already completed and allocated.
The Second Applicant continued with the project list which
was drawn
from a computerised database and once applicants were approved and
captured on the Housing Subsidy System
("HSS")
against the development they were linked to stand numbers as per the
Surveyor General Plan. Once these houses were completed they
were
allocated to beneficiaries.
The project list took into account a submission received from the
relevant Ward Councillor and Community leaders of the Eden Park
community. This includes a list of 304 beneficiaries, elderly
beneficiaries and beneficiaries with disabilities and/or special
needs including beneficiaries that were in possession of Form C
1996/1997 but were not captured on HSS. Some of the beneficiaries
captured on these lists were already approved and formed part of the
project list whereas subsidy applications had to be done by
those who
were not found to have been approved.
Once beneficiaries on those lists were approved, they were then added
to the project list. I annex hereto marked
"AL3"
a
copy of the final list. The final list was compiled following the
guidelines laid in annexes "AL1" [the directive]
and "AL2"
[the resolution]. The final list also took into account submissions
from members of the Eden Park Community.
The list submitted by the Eden Park community, however, had to comply
with "AL1" and "AL2". In this regard,
I annex
marked
"AL4"
a copy of a letter addressed to the
First Applicant by the Second Applicant. As appears from "AL4",
the final list took
into account the elderly and beneficiaries with
special needs and beneficiaries from the Eden Park Community with
Form C 1996/1997
but were not captured on HSS. I annex marked
"AL5"
a copy of a reconciliation of the different
categories. Further to the above I annex the MEC approval dated 19
March 2009 marked
"AL6"
.
As appears from what is stated above, the final list was not compiled
arbitrarily but was compiled following clearly defined guidelines
and
directives.'
[26] As I have already endeavoured to demonstrate, the resolution and
directive, upon which the appellants assert they relied,
were at odds
with each other. There is in any event no explanation as to how it
was possible for beneficiaries, especially the
elderly and those with
special needs, who were in possession of form C’s not to have
been captured on the housing subsidy
system in the first place. In
addition, there is no indication as to who the community leaders were
who influenced the compilation
of the list in respect of the
additional 304 persons or what criteria had been employed to identify
those beneficiaries. In these
circumstances it is hard to fault the
high court’s conclusion that: ‘. . . the integrity of the
listing and allocation
process has been shown to have been
compromised. I cannot find that evictions based on such process can
be “just and equitable"
'.
[27] An important feature of the respondents’ case is that they
had been promised priority in respect of the allocations
in Ext 5. In
that regard Ms Booysen asserted:
‘It was around this time [March 1999] that the First Applicant
called a community public meeting, where the late City Manager
and
Head of Housing Mr Paul Sambo stated that the Eden Park Residents
would get preference in respect of any RDP development that
had been
earmarked for the area. I was present at this meeting. He said that
if ever there was movement in RDP houses for the area
Eden Park
Residents would be allocated first, subject to needs also of
residents from the feeder areas. It is no understatement
to say that
all the residents of Eden Park, including me left that meeting on the
understanding that we would benefit first.'
The response of Mr Andile Sihlala, on behalf of the appellants, to
those allegations was:
'Whatever arrangements were made before 24 November 2003 were
superceded by a directive issued by the MEC for housing which
provided
that only the 1996/1997 applicants for state subsidized
houses will be considered to benefit before applicants who applied
for
state subsidized housing after 1997. It is not the purpose of
this application to consider the merits or lack thereof of this
directive.
For this reason, it is not necessary to further ventilate
issues pertaining to this directive.
I note the allegations made against councillor Sambo. Councillor
Sambo is deceased. Councillor Sambo held numerous meetings relating
to the allocation of state subsidized houses in Eden Park Extension 5
and other areas within the first applicant's area of jurisdiction.
There is no record of Councillor Sambo advising or agreeing with
Booysen and her fellow respondents to the effect that Eden Park
Extension 5 residents will get preference in the Eden Park Extension
5 development or any such development for that matter. For
this
reason, I respectfully submit that the first applicant did not create
an impression or an expectation to the effect that Eden
Park
Extension 5 residents would be given preference in the allocation of
state subsidized houses.’
Mr Sihlala was hardly in any position to deny Ms Booysen’s
allegations that a promise had been made to the respondents that
they
would receive priority. Moreover, given the history of the matter,
to suggest as he glibly does, that the directive ‘superceded’
any such arrangement as asserted by Ms Booysen, portray the
appellants as insensitive and uncaring. It would thus seem that in
its approach to the respondents, the appellants ignored the
admonition of the Constitutional Court in
Port Elizabeth
Municipality
that 'those seeking eviction should be encouraged
not to rely on concepts of faceless and anonymous squatters
automatically to
be expelled as obnoxious social nuisances . . .
[J]ustice and equity require that everyone is to be treated as an
individual bearer
of rights entitled to respect for his or her
dignity'.
[28] In all the circumstances the appellants may well have: (a) been
in breach of their constitutional obligations; and, (b) failed
to
meet the obligations imposed upon them by the
Housing Act. But
it is
not necessary to go that far. It suffices for present purposes to
hold, as the high court did, that it would not be just
and equitable
to order the eviction of the respondents.
[29] It follows that the appeal must fail and in the result it is
dismissed with costs, such costs to include those consequent
upon the
employment of two counsel.
V PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
First Appellant: G I Hulley (with U Dayanand-Jugroop)
Instructed
by:
A
F van Wyk Attorneys, Johannesburg
Webbers,
Bloemfontein
For
Second Appellant: G I Hulley (with U Dayanand-Jugroop)
Instructed
by:
T
P Mabasa Attorneys, Johannesburg
Webbers,
Bloemfontein
For
Respondents: T N Ngcukaitobi (with J Bleazard)
(Remaining
Occupiers of Eden Park Community)
Instructed
by:
Mdladlamba
Attorneys, Johannesburg
Phatshoane
Henney Inc, Bloemfontein
For
Respondents: B Makola (with B Manentsa and H Mutenga)
(Eden
Park Community Action Unit)
Instructed
by:
Legal
Resources Centre, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
1
The Respondents have throughout the
proceedings both in this court and the one below been divided into
two groups. The first group
consisted of respondents who fell under
the banner of the Eden Park Community Action Unit and the second was
described as the
Remaining Occupiers of Eden Park Community.
2
S Wilson ‘Judicial enforcement of the right to protection from
arbitrary eviction: Lessons from Mandelaville’ (2006)
22
South
African Journal on Human Rights
535 at 536.
3
L Chenwi ‘Putting flesh on the
skeleton: South African judicial enforcement of the right to
adequate housing of those subject
to evictions’
(2008) 8
Human
Rights Law Review
105
at
127-128.