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2023
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[2023] ZAFSHC 292
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Minister of the Department of Agriculture, Land Reform and Rural Development and Others v Mountain View Community - Thaba 'Nchu and Another (1290/2023) [2023] ZAFSHC 292; [2023] 4 All SA 163 (FB) (12 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
:
1290/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
THE
MINISTER OF THE DEPARTMENT OF
First
Applicant
AGRICULTURE,
LAND REFORM AND
RURAL
DEVELOPMENT
THE
MANGAUNG LOCAL MUNICIPALITY
Second
Applicant
KGOSI
GABOILELWE MOROKA N.O.
Third
Applicant
and
MOUNTAIN
VIEW COMMUNITY – THABA ‘NCHU
First
Respondent
ALL
UNLAWFUL OCCUPIERS
Second
Respondent
CORAM:
P R CRONJÉ,
AJ
HEARD
ON:
8 MAY 2023
DELIVERED
ON:
12 JUNE 2023
JUDGMENT
BY:
P R CRONJÉ,
AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 15h00 on 12 June 2023.
I
INTRODUCTION
[1]
The Applicants launched an urgent application under the Prevention of
Illegal Occupation and Unlawful
Occupation of Land Act 19 of 1998
(PIE), for eviction of approximately 1500 Respondents from Portion 14
of the farm Thaba ‘Nchu
Townlands “A” No. 605,
Thaba ‘Nchu RD; the Remainder of the farm Thaba ‘Nchu
404, Thaba ‘Nchu RD;
and the farm Dubbeldam no. 688, Thaba
‘Nchu RD.
[2]
Only Mr Moticoe, also known as Mr Wiseman (Mr Wiseman), one of the
Respondents, deposed to an
answering affidavit. He notionally
represents the balance of the respondents. None of the other
respondents deposed to affidavits,
either to place their personal
circumstances before Court or to confirm the allegations in the
opposing affidavit.
[3]
Mr Wiseman sees his role as to assist and regularize the occupation
and have it sanctioned by
the Applicants.
[1]
He states: “
I
encourage the people who opted into those negotiations to indicate by
joining the community and erecting their structures.
”
[2]
[4]
I requested supplementary heads which was received on 24 and 31 May
respectively.
II
THE PARTIES
[5]
The First Applicant is the Department of Agriculture, Land Reform and
Rural Development (“the
Department”). The Department
claims to be the lawful custodian of the properties.
[6]
The Second Respondent is the municipality in whose jurisdiction the
land falls.
[7]
The Third Applicant acts in her capacity as regent of the Barolong
Boo Seleka traditional community,
a tribe recognised as such under
the Free State Traditional Leadership and Governance Act, 8 of 2005.
She acts as the custodian
of the communal land described as Remainder
of the farm Thaba ‘Nchu 404, Thaba ‘Nchu RD and the farm
Dubbeldam no.
688, Thaba ‘Nchu. The properties were
allocated to her by the MEC responsible for Corporate Governance,
Traditional
Affairs and Human Settlements.
III
THE APPLICATION TO COURT – URGENCY AND COMPLIANCE WITH THE
PREVENTION OF ILLEGAL EVICTION
AND UNLAWFUL OCCUPATION ACT (PIE)
[8]
The Respondents took issue with the urgent basis on which the
application was brought. It was
issued on 14 March 2023 and would be
moved on 31 March 2023. Condonation was sought for
non-compliance with service and timeframes.
[9]
The application came fore the Court on urgency on 31 March 2023 and
was removed from the roll.
The Court ordered that costs stand over
for later adjudication.
[10]
A list pertaining to service of the application forms part of the
record. On 15 March 2023, twenty
five (25) Respondents were
served, on 16 March 2023, thirteen (13) Respondents and on 17 March
2023, “
service
was effected inside the shacks”.
[3]
There
is no indication that the balance of the Respondents obtained
personal notice of the application.
[11]
Disposal of the application on this basis would be the easy way out,
but would not address the legitimate
interests of all parties to the
litigation.
[12]
The Respondents initially objected to the section in PIE under which
the application was brought but during
argument abandoned the
objection.
[13]
Considering the period of engagement between the parties since August
2022, and the clear indication that
the Respondents would not accede
to the request to vacate the land, there does not appear any
compelling reason for the application
to have been brought on an
urgent basis.
[14]
The application was thus not urgent and the Applicants should pay the
costs of the postponement of on 31
March 2023.
IV
THE LAND
[15]
During 2012, the Department identified Portion 40 of the farm Thaba
‘Nchu no. 404 to be donated to
the municipality for purposes of
human settlement development. The Minister approved the donation for
housing purposes. The
land has not yet been registered in the
name of the municipality.
[16]
After town-planning processes were conducted, the municipality
developed Portion 40 and as a result thereof
Moroka Extension 40,
Thaba ‘Nchu, was established.
[17]
On 24 May 2013, the boundaries of the traditional council of Morolong
Boo Seleka was published in the Provincial
Gazette
[4]
.
The land is kept in custody by the Council.
V
PROTECTION AGAINST ILLEGAL EVICTION, THE RIGHT TO PROPERTY AND
LIMITATION OF RIGHTS
- THE CONSTITUTION OF SOUTH AFRICA, 108 of 1996
[18]
Section 25 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. The State must take reasonable legislative
and other measures, within
its available resources, to foster
conditions which enable citizens to gain access to land on an
equitable basis.
[19]
Section 26 protects the right to have access to adequate housing and
obliges the State to take reasonable
legislative and other measures
within its available resources, to achieve the progressive
realization of the right.
[20]
Section 36 provides that the rights in the Bill of Rights may be
limited only in terms of law of general
application to the extent
that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity,
equality and freedom,
taking into account all relevant factors.
VI
THE
HOUSING ACT, 107 of 1997
[21]
The principle instruments enacted to give effect to the
constitutional obligations is the Housing Act and
the National
Housing Code.
[22]
The
Housing Act provides
for a comprehensive framework in terms of
which,
inter alia
, the progressive realization of provision of
housing is to be effected:
“
9.
Functions of municipalities.—(1) Every municipality must,
as part of the municipality’s process
of integrated development
planning, take all reasonable and necessary steps within the
framework of national and provincial housing
legislation and policy
to—
(a)
ensure that—
(i)
the inhabitants of its area of jurisdiction have access to adequate
housing on a progressive basis;
(ii)
conditions not conducive to the health and safety of the inhabitants
of its area of jurisdiction are prevented or removed;
(iii)
services in respect of water, sanitation, electricity, roads,
stormwater drainage and transport are provided in a manner
which
is economically efficient;
(b)
set housing delivery goals in respect of its area of jurisdiction;
(c)
identify and designate land for housing development;
(d)
create and maintain a public environment conducive to housing
development which is financially and socially viable;
(e)
promote the resolution of conflicts arising in the housing
development process;
(f)
initiate, plan, coordinate, facilitate, promote and enable
appropriate housing development in its area of jurisdiction;
(g)
provide bulk engineering services, and revenue generating services in
so far as such services are not provided by specialist
utility
suppliers; and
(h)
plan and manage land use and development.
VII
THE HOUSING CODE
[23]
It contains,
inter alia
, the Integrated Residential
Development Programme (IRDP) that provides for a phased approach to
provide for:
“
a)
Land acquisition where required;
b)
Township planning and municipal engineering services
design;
c)
The provision of municipal engineering
services to all the stands where no alternative funds are
available;
d)
Township establishment;
e)
The sale of the stands not identified
for subsidised housing created in the township; and
f)
The construction of houses by
registered contractors for housing subsidy beneficiaries who
chose
contractor built houses. This can be achieved through a variety of
contracting options.
Where
the need has been identified for the construction of rental housing
on the stands created through the IRDP and or where beneficiaries
elect to construct their own houses through the People’s
Housing Process, the rules applicable to those specific programmes
will apply to projects to be undertaken in the township.”
VIII
THE NATIONAL HOUSING NEEDS REGISTER
[24]
The concerns about the reliability of waiting lists were addressed in
a press release
[5]
by the
Department of Human Settlements of Mpumalanga. I accept that the
sentiments therein and the application can be applied to
all
provinces. It states:
“
The
ever increasing housing backlog and demand in the country has
resulted in many challenges, amongst them a need in ensuring that
there is a fair and transparent allocation of housing opportunities
to communities. In consultation with all provinces, the National
Department of Human Settlements created an electronic system to
register the records of all persons who require any form of shelter
/
housing opportunity assistance. This comes about after many
complaints on the identification of potential beneficiaries by
municipalities.
There were no structured waiting lists and
allocations/identification of potential beneficiaries were left in
the hands of individuals.
This has led to complaints of nepotism and
queue jumping. “The National Housing Needs Register (NHNR) is a
web based application
to record the details of all persons that may
require any form of shelter assistance from government i.e. RDP
houses, serviced
sites, rental units, FLISP and even those outside
the subsidy threshold. This system is designed to be transparent and
auditable”,
…, In terms of a policy directive, the NHNR
is the sole database from which potential beneficiaries will be
sourced, and
the roles of the various role players are clearly spelt
out therein. “The Department encourages all persons who may
require
any form of shelter assistance to register their needs with
their local municipality. Also if persons have already registered
their
needs, and their details/ circumstances have changed they need
to update their details at their local municipality”.
IX
LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 117 OF 1998
[25]
Section 19 of the Systems Act places an obligation on Municipalities
to undertake developmentally orientated
planning in order to ensure
that they achieve the objects of local government in Section 152 of
the Constitution, to give effect
to their developmental duties in
Section 153 of the Constitution and together with other organs of
state to contribute to the progressive
realization of fundamental
rights contained in sections 25 and 26 of the Constitution. The
challenges in addressing these needs
were referred to in
Soobramoney
v Minister of Health (Kwazulu-Natal)
[6]
as far back as 1997.
X
THE ALLOCATION OF RESIDENTIAL LAND
[26]
After the municipality demarcates land for residential purposes, it
avails the land to the Provincial Human
Settlement Department for the
building of houses. The municipality thereafter allocates the
houses. In identifying beneficiaries
who qualify, the municipality
uses a waiting list on the municipality’s National Housing
Needs Register (“NHNR”).
Sites are allocated on a first
come, first serve basis.
[27]
The NHNR is a central database that offers households the opportunity
to register their needs for adequate
shelter by providing information
about their current living conditions, household composition and to
indicate the type of housing
assistance they require.
Households are able to update their information to ensure that their
details are relevant to their
current situation.
[28]
An extract of the National Housing Needs Register was appended to the
founding affidavit.
[7]
The
purpose of the register is stated to be a consolidation of various
waiting lists/demand data basis contained from municipalities
and
Provincial Departments to improve the quality of the records received
and to determine if these records adhere to the minimum
requirements;
that households not on waiting lists/demand data basis have the
opportunity to register their need for adequate shelter,
by providing
information about their current living conditions, household
composition and to indicate the type of housing assistance
they
require from Government; that the allocation of housing opportunities
that are created through the various programs contained
in the
National Housing Code is done in a fair, transparent and auditable
manner by selecting households from relevant geographical
areas based
on the agreed criteria eg, preference, employment and income status,
etc. and; information about households are utilized
during the
planning and budgeting of human settlement projects as the
information per household is area-based.
[8]
[29]
By using the NHNR system, the municipality ensures that the
allocation of housing opportunities that are
created through the
various programs contained in the National Housing Code is done in a
fair, transparent and auditable manner.
[30]
Applicants are categorized as per their needs from the low, middle to
high costs and rental units.
XI
THE NATURE OF THE LAND IN QUESTION
[31]
A preliminary geotechnical assessment for Portion 14 of the farm
Thaba ‘Nchu was prepared and published
on 17 February 2023.
[9]
In the summary and recommendations it is stated that in order to
determine the feasibility of the project area for human
settlement
and possible future construction activities, a detailed site specific
geotechnical investigation will have to be undertaken.
[10]
XII
THE APPLICANTS’ CASE
[32]
The Applicants state that there are illegal immigrants
between
the occupiers who
inter
alia
use the land as hideout whilst continuing with their illegal
activities
[11]
, some persons
took more than one site for purpose of selling same, that the area is
designated for tourism, that the occupiers
must return to their
original homes and follow the orderly process that government uses.
[33]
The land that the respondents invaded is land that has heritage
sites, including a wetland that will be preserved
for environmental
purposes for the public at large in terms of the
National
Environmental Management Act, 107 of 1998
.
[34]
The respondents are infringing the right to equality of other
citizens as those who are legitimately entitled
to the land are
denied their right.
[35]
By occupying the land, the respondents are hampering the
municipality’s mandate to provide basic services
to the public.
[36]
It states that when the application was drafted, there were “
no
elderly people and children seen throughout all the engagement with
the Respondents
”.
The rights of elderly people will not be infringed if eviction is
ordered. The Respondents were in occupation for less
than six months
when the application was drawn.
[12]
[37]
More people are moving onto the land and other residents who lawfully
reside in the vicinity are willing
to take the matter into their own
hands if the Department fails to take steps.
Engagement
between the role players – August 2022
[38]
On 31 August 2022, the municipality called a meeting with persons who
have been allocated sites in Moroka
Extension 40. The purpose was to
inform and introduce the persons to Eskom’s contractors who
would electrify the houses in
the extension. It is the
Applicants’ version that the meeting was gate-crushed by other
members of the community who
include the First and Second
Respondents. Members of the community demanded that they also
be given houses and if not acceded
to, they would allocate the land
that were allocated to the Third Respondent and that around Moroka
Extension 40 to themselves.
[39]
Mr Mojake, the Acting General Manager: Informal Settlement and
Beneficiary Management, addressed the community
and informed them
that the land does not belong to the municipality but to the
Department and that the municipality is unable to
develop the land
for the community. They were informed that part of the land
that was targeted by the community was not demarcated
for residential
occupation. Town-planning has to take place and the waiting
list on the NHNR system is used.
[40]
Those dissatisfied were encouraged to approach the municipality’s
offices and register on the system.
The municipality would not be
able to provide services should unlawful occupation take place.
Registering on the NHNR will assist
in preventing corruption and
jumping of queues. They were advised that persons who invade
the land will be putting their
lives and properties at risk.
[41]
The attendees raised various issues regarding the allocation of
sites. Officials from the Human Settlements
Department or Councillors
were suspected of manipulating the waiting lists. It was stated that
a new program was introduced by
the Department, which is controlled
nationally although capturing of the persons still takes place at the
municipality.
[13]
[42]
Twenty five (25) persons’ names appear on the list for Moroka
Extension 40.
[14]
In a
letter dated 1 February 2023, it is stated that a combined number of
193 sites were allocated in Moroka Extension 40
for the years 2018 to
2022.
[15]
Engagement
between the role players – January 2023
[43]
On 16 January 2023, a meeting was held by the Third Respondent to
establish first-hand what the current developments
of illegal
occupation are in order to make a proper assessment and take
decisions. Mr Wiseman stated that he is the leader
of the
illegal occupants in the area that they now named Mountain View.
He was initially an ordinary illegal occupant but
when challenges
emerged, he assumed leadership responsibilities for the occupiers.
The biggest problem was the ever-increasing
number of illegal
occupants that are now approaching the foot of the mountain. He
condemned people who were taking monies
from people for the sites.
He admitted that there were problems that they did not anticipate.
The Third Respondent
conveyed that there was no way that the
occupation could be left alone and that the area was meant to be a
tourist attraction for
the benefit of the community. The
request for illegal occupation would not be acceded to and the
illegal occupants were requested
to return to their original homes.
[44]
In a communique under the hand of Mr Wiseman on behalf of the
unlawful occupiers it was
inter alia
noted:
“
1.
The reason advanced for vacating the property was stated to be that
the area was not safe/habitable for
human life but the committee
found it “funny” that there were other buildings and that
this was not a problem for them.
2.
The concerns about the type of soil and a number of other issues,
according to the committee,
did not hold any water as to why they
should move.
3.
There were no promises of alternative land, should the occupiers
vacate. The Council was
willing to consider other options.
4.
The Council had to deliberate and would revert to the occupiers.
5.
Minutes and documents from the meeting would be provided.”
[45]
The communique continued:
“
The
committee therefore plead with all members, to stop panicking and
listening to any other news or rumours. Let us remain
resolute
and united. Let us not fight amongst ourselves. Together
we will win. Let’s keep a united front.
For now,
the committee assure you that all plans remain the same. Asijiki!
(freely translated – we will not back down). We
do not deviate
from the mandate. We will update you of the outcomes of the
follow-up meeting regarding alternative land.
Committee will
issue out an official action plan for this week building up to our
collective meeting this coming Sunday.
”
[16]
[46]
On 26 January 2023, Mr Wiseman sent a letter to the Third Respondent
stating that the Committee will be done
with registrations, audit and
allocations by the 7
th
of
February 2023. They requested a meeting to deal with
administrative issues of Mountain View and to draft a memorandum of
understanding between all parties involved.
[17]
[47]
On 25 January 2023, Mr Wiseman prepared a letter to the Mountain View
community wherein he reminded them
of the action plan. It is
inter alia
noted:
“
We
would like to remind all members that registrations are underway
daily. We have two categories viz: Those with sites and
those
without sites (waiting list). Closing date for all registration
is Saturday 28 January 2023 at 14:00. We need
to finalize and
audit all sites before Sunday the 5
th
February, our closing date for completion of dwellings (Shacks), as
per our agreement all those who would not have completed their
cabins
(Small Shacks) after the closing date will automatically forfeit/lose
their sites.
After
the closing date (5
th
February 2023) every Resident will sign an acknowledgment form or
temporary certificate.
This
certificate will serve as evidence that you were a resident of
Mountainview and you will reside at Mountain View
.
We are busy in negotiations and applications with different
stakeholders.
We
are hoping that we will all celebrate Valentine’s Day in our
new homes as proud residents of Mountain View
.
If
we all cooperate and play our roles, we will win this, let us
continue to have faith and keep on praying. Modimo o re rata
kao fela. We as the committee we want to assure you that we
remain resolute and firm. Asjiki !! On our mission.
We
must restore the dignity of our people through land.
”
[18]
[my emphasis]
[48]
It is not clear who this committee is, how it was elected and whether
they are mandated to speak on behalf
of all the unlawful occupiers.
Mr Wiseman persisted to encourage members of the community to
continue taking up the land and occupying
it unlawfully.
XIII
THE RESPONDENTS’ VERSION:
[49]
The answering affidavit was deposed to by Mr Wiseman. He does
not state any of his personal particulars
or a place of residence.
[50]
Save to aver that the property is not suitable for human habitation,
the Applicants have not demonstrated
real and eminent danger.
Some of the community members lived on the property since August 2022
and no danger materialized
since then. To buffer their case, they
state that immediate eviction was not sought, however, the community
is granted thirty (30)
days to vacate.
[51]
It has not been shown that alternative accommodation or land is
available. They also accuse the Applicants
for not taking the
Court in their confidence regarding the circumstances under which the
occupiers took occupation of the land
despite having several
engagements with the occupiers since August 2022.
[19]
[52]
Mr Wiseman avers that “
some
of the community members have been on the waiting list since the
early 2000’s.”
[20]
The Applicants deny this and state that no confirmatory affidavits of
those persons are attached. They state that only six (6)
persons are
on the waiting list and two (2) not. One of the persons listed
by Mr Wiseman, one Kresie Jeremiah Ncutle owns
property under Title
Deed no. T16674/2010. The six (6) other persons on the waiting
list does not have the right to invade
the land without following due
process.
[21]
[53]
With reference to the persons on the Respondents’ lists, Mr
Wiseman states that: “
these community members have made
different means to rent accommodation or stay with relatives for
brief periods in far-flung rural
areas, while they awaited their land
allocations. Their long wait has not yielded any results and
the short-term arrangements
they have made over the years for
accommodation have proven unsustainable.
”
[54]
Not only were no supporting affidavits appended to the opposing
affidavit, but no attempt was made to place
any personal
circumstances before Court. No pressing need was advanced by
any occupier, in any affidavit and under
oath, to occupy the
land.
[22]
[55]
Mr Wiseman states: “
Most
of the community
members are unemployed and simply cannot afford to rent property, and
the homes of their relatives cannot accommodate
them, their spouses,
and their children indefinitely.
” [my emphasis]
[56]
There is no reference to which of the occupiers specifically this
relate and it also does not indicate any
pressing need to occupy
alternative land.
[57]
The Respondents complain that people who enrolled on the waiting list
recently received undue priority and
speedier housing allocations.
They complain about corruption in the housing allocation system.
[23]
[58]
There are no particulars provided in respect of who these occupiers
are. To justify the occupation
it is stated: “
however,
given the desperate position that the community members are in,
coupled with egregious corruption, that they witnesses
in the
municipality ’s allocation of housing, when they identified the
vacant Property they had little option but to move
onto it as a safe
space to erect their current homes.
”
[24]
[59]
The Respondents advance five (5) grounds which, according to them,
militate against eviction:
59.1
The occupiers moved onto the property at different intervals and the
earliest being August 2022. They have
nowhere else to go and an
eviction order would render them homeless;
59.2
The occupiers establish a community which currently consists of about
1 500 people;
59.3
The occupiers consist,
inter alia
, of elderly people,
children, households headed by woman, and people living with
disabilities;
59.4
The property accommodates occupiers adequately and it is within
walking distance of amenities, schools, essential
services and the
job market. The closest town is no more than a walk of 15 minutes;
and
59.5
The property is unoccupied and is appropriate for occupation by the
occupiers. It is surrounded by other residential
areas and
properties.
[25]
[60]
They state that they have gone to great lengths to engage with the
Applicants to regularize their occupation,
alternatively to have
alternative accommodation allocated. They complain that the
Applicants did not engage with them in good faith.
They appended
photos to show that the structures are not on a dangerous mountain
slope but on flat ground close to land that the
Applicants have
allocated for housing other persons.
[61]
In respect of the geotechnical assessment, they state that it is a
generalized study which does not relate
to the property.
[26]
Notwithstanding stating that after Mr Mojake allegedly refused to
assist them, they continued to seek assistance to obtain
the
necessary rights to stay at the property lawfully. They do not state
how that can be done. The Respondents deny that
there is a
heritage site situated on the land and notes that there is no support
in the form of studies or reports to substantiate
the allegation that
the property is situated on a wetland.
[27]
[62]
He continues to state that some of the structures had not yet been
occupied and the persons do not have the
finances to complete their
structures into habitable homes.
[28]
[63]
The Respondents admit that the occupiers have varying circumstances
and submit that it is inappropriate that
the matter be heard on an
urgent basis when such is not known.
[29]
They state that the occupiers should be given reasonable opportunity
to place their personal circumstances before the Applicants
in the
ordinary course as directed by the Act to avoid a blanket, one size
fits all approach, which characterizes the application.
[30]
[64]
The Respondents use generalized references such as “nowhere to
go”, “shared desperation”
and “being on a
waiting list for several years”. Nothing concrete support
those generalizations.
[31]
[65]
It is stated that the occupiers have repeatedly reaffirmed their
willingness to move off the property should
the Applicants make
suitable alternative land available to them.
[32]
[66]
They state that the urgency of the application did not give the
occupiers a reasonable opportunity to investigate
any possible
suitable alternative accommodation.
[33]
Save to state that “
several
”
of their households have family members and are headed by women, that
there are persons living with disabilities, there
are unemployed
persons, there are persons relying on Government social grants and
that there are elderly people, no specifics were
provided.
[34]
They also failed to state who exactly stays on the land for more than
six (6) months.
[67]
They appended lists that show house numbers, surnames, names, in some
instances identity numbers, employment
status, marital status, the
number of persons in the household, whether they are disabled,
whether they receive SASSA grants and
previous residential addresses.
[68]
It is statistical data that does not tell much about the persons.
XIV
PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND
ACT, 19 OF 1998
[69]
It is common cause that the Respondents do not have title or consent
to be in occupation of the land and
they are unlawfully occupying the
land.
[70]
I quote only the relevant provisions of section 4 of the Act:
“
(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).
(9)
In determining a just and equitable date contemplated in
subsection (8), the court must have regard to all
relevant factors,
including the period the unlawful occupier and his or her family have
resided on the land in question.”
[71]
Ms Thembi Ntoane, who appeared for the Applicants, referred to
Mangaung
Local municipality v Mashale and another
[35]
as authority that an organ of state has to bring the application in
terms of section 4 of PIE as the State is the owner. In
Mangaung
it
was also held:
“
[12]
Although this is disputed by applicant, I accept for purposes
hereof that second respondent represents the interests
of people that
are homeless in the true sense of the word. It is
undisputed that applicant has put in place a particular
procedure
for the purpose of making available land to homeless persons for
the purpose of low-cost housing.
In
terms of this procedure, although such persons may of course be
represented by some organisation, each applicant must complete
the
prescribed application form in person and in the process provide the
information required for considering the application.
….
Applications that comply with the requirements are placed on a
waiting list. Land available for purposes of low-cost
housing is
allocated to people on the waiting list on a first come first served
basis at minimal cost
.
Unfortunately this waiting list is a very long one, as the
availability of land for this purpose is subject to financial
constraints. It was not contended on behalf of respondents that these
are not reasonable measures within applicant's available
resources
within the meaning of s 26(2) of the Constitution of the RSA.
[13]
It follows that respondents had no right to enter onto
the land in question and to erect the aforesaid structures
thereon.
In fact, respondents deliberately took the law into their own hands
in an attempt to prove a point. …”
[72]
In
Government
of the Republic of South Africa and Others v Grootboom and Others
[36]
it
was held:
“
It
required the State to devise a comprehensive and workable plan to
meet its obligations. However
,
subsection
(2)
also
made it clear that the obligation imposed upon the State was not an
absolute or unqualified one. The extent of the State’s
obligation was defined by three key elements (a) the obligation to
“take reasonable legislative and other measures”;
(b) “to
achieve the progressive realisation” of the right; and (c)
“within available resources
.””
[my emphasis]
XV
LACK OF INFORMATION
[73]
As alluded to in the introductory part of this judgment, the
Respondents did not, except for statistical
data, place sufficient
information before Court regarding their personal circumstances. The
list in wholly insufficient for this
purpose. The Applicants are,
however, not blameless.
[37]
It
approached court on urgent basis and did not allow the Respondents
with sufficient time to do so. Considering the attitude adopted
by Mr
Wiseman, the question whether more time would have made a difference
is debateable.
[74]
the question on whether there is an onus on any one of the parties to
place information about the Respondents
before Court, was left open
in
Ndlovu
v Ngcobo; Bekker and another v Jika
[38]
.
The court however did state:
“
[19]
Another material consideration is that of the evidential onus.
Provided the procedural requirements
have been met, the owner is
entitled to approach the court on the basis of ownership and the
respondent’s unlawful occupation.
Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle, will be entitled
to an order
for eviction. Relevant circumstances are nearly without fail facts
within the exclusive knowledge of the occupier and
it cannot be
expected of an owner to negative in advance facts not known to him
and not in issue between the parties
.
Whether the ultimate onus will be on the owner or the occupier we
need not now decide.”
[75]
In
Madulammoho
Housing Association NPC vs Nephawe and Another; Final Housing
Solutions (Pty) Ltd v Lukhanya and Others
[39]
it
was held:
“
13.
Even where an eviction application is unopposed, if it appears that
an eviction might lead to homelessness, a court
is entitled neither
summarily to evict an unlawful occupier, nor summarily to dismiss the
application.
It
is required to act “proactive[ly]” to ensure that it is
“appraised of all relevant information in order to
enable it to
make a just and equitable decision”
(Shulana Court, paragraph 15).
Its principal method of obtaining the necessary information will be
to require a local authority to investigate the circumstances
of the
unlawful occupiers, and to report to the court on a range of matters,
including whether and to what extent an eviction order
may lead to
homelessness, what steps the local authority will take to provide any
necessary alternative accommodation, and when
those steps will be
taken
(see, in this respect, Changing Tides, paragraph 40).
14.
That is why applicants for eviction orders that may lead to
homelessness are required to join the relevant
local authority from
the outset (City of Johannesburg v Blue Moonlight Properties 39 (Pty)
Ltd
2012 (2) SA 104
(CC) (“Blue Moonlight”) paragraph
45).
[40]
Where they fail to do so, a court will rectify that failure by
joining the relevant local authority, and, if necessary, other organs
of state concerned with the provision of housing. The court will
generally require a report to be filed addressing the need for
and
provision of alternative accommodation (Sailing Queen Investments CC
v Occupants of La Colleen Court 2008 6 BCLR 666 (W) and
Occupiers of
ERF 101,102, 104 and 112, Shorts Retreat, Pietermaritzburg v Daisy
Dear Investments (Pty) Ltd
[2009] 4 All SA 410
(SCA)).
15.
Once that report is filed, a court will generally
be in a position to make an order directing alternative
accommodation
to be provided where it is needed, and setting a timetable for the
provision of the accommodation and for the eviction
of the unlawful
occupiers who do not or are not entitled to relocate to it.
16.
Sometimes, however, local authorities may unreasonably refuse to
provide alternative accommodation, or provide information that is
of
such a generalised nature as to be of little or no assistance in
resolving the specific case before a court. In those circumstances,
a
court may order the local authority to produce further specific
information
(see Blue Moonlight Properties 39 (Pty) Ltd v
Occupiers Saratoga Avenue
[2008] ZAGPHC 275
;
2009 (1) SA 470
(W)),
or it may direct a
local authority simply to provide the accommodation by a given date,
linking that date to a date on which an
eviction order may be
executed
(see Blue Moonlight, paragraph 97).
17.
PIE does not enjoin a court automatically to dismiss an eviction
application merely because it might result in homelessness. There
are
cases where the facts require the dismissal of such an application,
but they are rare
(see, for example, Ekurhuleni Metropolitan
municipality v Various Occupiers, Eden Park Extension 5
2014
(3) SA 23
(SCA), All Builders and Cleaning Services CC v Matlaila
[2015] ZAGPJHC 2 (16 January 2015) and Fischer v Unlawful Occupiers
2018 (2) SA 228
(WCC)).
18.
Instead, a court will normally seek to craft an eviction order that
may only be executed once alternative
accommodation is objectively
available to the unlawful occupiers, and which allows the local
authority to be compelled, if necessary,
to provide the accommodation
if it fails to do so promptly (see, for example, City of Johannesburg
Metropolitan municipality v
Hlophe
[2015] 2 All SA 251
(SCA)).”
[my emphasis]
[76]
I am faced with the dilemma that Mr Wiseman and his committee
(whoever they are) have clearly led the rest
of the Respondents
believe that their case will be properly presented. This has not
happened. The data sheets are of little, if
any, assistance. One may
be tempted to hold that the Respondents made their bed with him.
Ordering eviction under these circumstances
will not be in the
interest of justice. It is, however, not the end of the matter.
XVI
THE CHOICE OF ACCOMMODATION
[77]
In
Grobler
v Phillips and Others
[41]
the
preference of accommodation of the unlawful occupier was addressed as
follows by the Constitutional Court:
“
[36]
… The question whether the constitutional rights of the
unlawful occupier are affected by the eviction is
one of the relevant
considerations, but the wishes or personal preferences of the
unlawful occupier are not relevant.
An
unlawful occupier such as Mrs Phillips does not have a right to
refuse to be evicted on the basis that she prefers or wishes
to
remain in the property that she is occupying unlawfully. In terms of
section 26 of the Constitution, everyone has the right
to have access
to adequate housing. The Constitution does not give Mrs Phillips
the right to choose exactly where in Somerset
West she wants to live
.
[my
emphasis]
[78]
I referred to the five grounds on which the Respondents rely for
their continued occupation. Except for considering
the 6-month period
in the Act, the intervals of relocation is not in itself
determinative.
[79]
There
is only the say-so of Mr Wiseman that they have nowhere else to go
and that an eviction order would render them homeless.
[80]
Their
number is also not determinative. The Act applies to any number of
occupants.
[81]
What is
material is that there may be elderly people, children, households
headed by woman, and people living with disabilities.
This is the
primary consideration for the order that I intend to make.
[82]
That
the property accommodates them adequately, that it is within walking
distance of amenities, schools, essential services and
the job market
is not determinative. In my view, these are factors of convenience.
There is no obligation on the State to provide
accommodation which is
convenient to unlawful occupiers.
[83]
The
limited number of photos of the area leaves doubt whether it is
appropriate for occupation.
[84]
In the matter of
City
of Johannesburg Metropolitan municipality v K2016498847 (Pty)
Ltd
[42]
,
the Court dismissed the application for eviction. It inter alia held:
“
24
I see no principled reason why the requirements the Constitutional
Court
[43]
has imposed on local authorities seeking to evacuate dangerous
buildings in terms of the Building Standards Act should not be
extended to local authorities who seek to enforce compliance with a
Land Use Scheme through an interdict that is to be implemented
through an eviction. It follows that in seeking relief to give effect
to its Land Use Scheme by removing people who reside on property
in
breach of that Scheme from their homes, the City is required to
demonstrate that it has engaged meaningfully with each of the
affected individuals, and that it will provide alternative
accommodation to those individuals where it is reasonable to do so.
In my view, it is reasonable to provide alternative accommodation
where an occupier would be left homeless without it.
25
To put it another way, I hold that the City cannot demonstrate a
clear right to an interdict which
enforces its Land Use Scheme
through an eviction unless it has shown that it has meaningfully
engaged the occupiers of the property
in question, and offered to
provide alternative accommodation where it is reasonably needed.”
XVII
ALTERNATIVE DISPUTE RESOLUTION
[85]
In my preparation for hearing of the application, I considered the
provisions of section 7 of PIE which provides
for mediation. Ms
Ntoane for the Applicants submits that section 7 is not applicable as
the land belongs to the municipality.
[44]
The Act defines an owner as the registered owner, including an organ
of State. She refers to
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v
City of Johannesburg and Others
[45]
for
a submission that it would in any event be of no avail as there have
been various engagements and in essence advances the argument
that
both parties must act reasonably and in good faith, which on her
submission, the Respondents lack. I pause to state that a
letter from
the Acting Head: Human Settlements, of the municipality dated 22 May
2023, was appended to the supplementary heads
of argument. The
Respondents, in a letter from their attorneys objected against this.
I did not consider the letter as it did not
form part of the papers
and was not before me when I heard the application.
[86]
Mr Sangoni, for the Respondents, referred me to
Port
Elizabeth municipality v Various Occupiers
[46]
,
where the Constitutional Court, as far back as 2004, considered
whether the use of mediation is indicated in resolving matters
of
this nature. The land in question in that application did not belong
to the municipality. I quote extensively from the case
as it
addresses a number of important principles. The Court held:
“
III.
Mediation
[39]
In seeking to resolve the above contradictions, the procedural and
substantive aspects of justice
and equity cannot always be separated.
The managerial role of the courts may need to find expression in
innovative ways. Thus one
potentially dignified and effective mode of
achieving sustainable reconciliations of the different interests
involved is to encourage
and require the parties to engage with each
other in a pro-active and honest endeavour to find mutually
acceptable solutions. Wherever
possible, respectful face-to-face
engagement or mediation through a third party should replace
arms-length combat by intransigent
opponents.
[40] Compulsory
mediation is an increasingly common feature of modern systems.
It should be noted, however, that
the compulsion lies in
participating in the process, not in reaching a settlement. In South
Africa, mediation or conciliation are
compulsory in many cases before
labour disputes are brought before a court. Mediation in
family matters, too, though
not compulsory, is increasingly common in
many jurisdictions.
[41] Thus,
those seeking eviction should be encouraged not to rely on concepts
of faceless and anonymous squatters automatically
to be expelled as
obnoxious social nuisances. Such a stereotypical approach has no
place in the society envisaged by the Constitution;
justice and
equity require that everyone is to be treated as an individual bearer
of rights entitled to respect for his or her
dignity. At the same
time those who find themselves compelled by poverty and landlessness
to live in shacks on the land of others,
should be discouraged from
regarding themselves as helpless victims, lacking the possibilities
of personal moral agency. The tenacity
and ingenuity they show in
making homes out of discarded material, in finding work and sending
their children to school, are a
tribute to their capacity for
survival and adaptation. Justice and equity oblige them to rely on
this same resourcefulness in seeking
a solution to their plight and
to explore all reasonable possibilities of securing suitable
alternative accommodation or land.
[42] Not
only can mediation reduce the expenses of litigation, it can help
avoid the exacerbation of tensions that forensic
combat produces. By
bringing the parties together, narrowing the areas of dispute between
them and facilitating mutual give-and-take,
mediators can find ways
round sticking-points in a manner that the adversarial judicial
process might not be able to do. Money
that otherwise might be spent
on unpleasant and polarising litigation can better be used to
facilitate an outcome that ends a stand-off,
promotes respect for
human dignity and underlines the fact that we all live in a shared
society.
[43]
In South African conditions, where communities have long been
divided and placed in hostile camps, mediation has a particularly
significant role to play. The process enables parties to relate to
each other in pragmatic and sensible ways, building up prospects
of
respectful good neighbourliness for the future. Nowhere is this more
required than in relation to the intensely emotional and
historically
charged problems with which PIE deals. Given the special nature of
the competing interests involved in eviction proceedings
launched
under section 6 of PIE, absent special circumstances it would not
ordinarily be just and equitable to order eviction if
proper
discussions, and where appropriate, mediation, have not been
attempted
.
[44]
…
[45]
In
my view, section 7 of PIE is intended to be facilitative rather than
exhaustive. It does not purport, either expressly or by
necessary
implication, to limit the very wide power entrusted to the court to
ensure that the outcome of eviction proceedings will
be just and
equitable. As has been pointed out, section 26(3) of the Constitution
and PIE between them give the courts the widest
possible discretion
in eviction proceedings, taking account of all relevant
circumstances. One of the relevant circumstances in
deciding whether
an eviction order would be just and equitable would be whether
mediation has been tried. In appropriate
circumstances the
courts should themselves order that mediation be tried
.”
[87]
Neither section 7 of PIE, nor Rule 41A of the Uniform Rules of Court,
obliges a party to mediate a dispute.
I am unaware whether the
parties served Rule 41A notices as these notices are not, in terms of
the Rules, filed in the Court file.
I am convinced that the views in
Port
Elizabeth municipality
is
nevertheless sound.
[88]
To conclude on the use of mediation, I quote from
Port Elizabeth
municipality supra
:
“
[61]
It remains only to be said that this decision in no way precludes
further efforts to find a solution to a situation
that is manifestly
unsatisfactory to all concerned. In cases like the present it is
particularly important that the municipality
not appear to be
aligned with one side or the other. It must show that it is equally
accountable to the occupiers and to
the landowners. Its function is
to hold the ring and to use what resources it has in an even-handed
way to find the best possible
solutions. If it cannot itself directly
secure a settlement it should promote a solution through the
appointment of a skilled negotiator
acceptable to all sides, with the
understanding that the mediation proceedings would be privileged from
disclosure. On the basis
of this judgment a court involved in future
litigation involving occupiers should be reluctant to accept that it
would be just
and equitable to order their eviction if it is not
satisfied that all reasonable steps had been taken to get an agreed,
mediated
solution.”
[89]
I revert to a salient aspect in
Port
Elizabeth municipality
[47]
where
the Court stated:
“
[T]
hose
who find themselves compelled by poverty and landlessness to live in
shacks on the land of others, should be discouraged from
regarding
themselves as helpless victims, lacking the possibilities of personal
moral agency. The tenacity and ingenuity they show
in making homes
out of discarded material, in finding work and sending their children
to school, are a tribute to their capacity
for survival and
adaptation. Justice and equity oblige them to rely on this same
resourcefulness in seeking a solution to their
plight and to explore
all reasonable possibilities of securing suitable alternative
accommodation or land.
”
The
Respondents cannot be absolved from taking positive steps to improve
their situation. Unlawful occupation is not a positive
and
constructive step.
XVIII
CONCLUSION
[90]
I considered dismissing the application due the scarcity of
information provided by the Applicants and some
material facts which
were not sufficiently addressed. The Applicants would be entitled to
bring a new application. There is sufficient
case law that provide
for guidelines on what must be placed before the Court. The
municipality is a party to the litigation and
should have done more.
The application was brought on an urgent basis whist it was evident
by January 2023 that the Respondents
did not intend to heed the
warnings.
[91]
The Respondents, on the other hand failed to place anything material
before the Court. I cannot accept that
the photos show the full
extent of the development, that the area is suitable for occupation,
that there are no other needs and
uses for the land or that there are
no environmental, health and safety issues pertaining to the land.
The attitude evidenced by
Mr Wiseman leaves much to be desired. One
senses defiance and to some extent arrogance. This does not serve the
rest of the Respondents
well.
[92]
A balanced approach where recognition is given to the legitimate
rights and interests of the Applicants and
the interests of the
Respondents is needed.
[48]
There are often criticism against the reliability of systems. Noting
is perfect. The National Housing Needs Register (NHNR) is
at least a
bona
fide
and legitimate system which regulates the provision of housing in an
orderly fashion. The conduct of the Respondents is exactly
the
opposite. They forced their own interests and wishes upon the
Applicants and against those who are registered on the system.
Accusations against the register, the system and officials do not lie
well in the mouths of the Respondents. For this reason, I
intend to
make an order that those who wish to be provided with housing and
alternative accommodation have to register. If they
do not, it may
come back to haunt them.
[93]
I deem it in the interest of justice that the application be
postponed to enable the Court to have all the
material facts to
exercise a discretion.
IX
COSTS
[94]
It takes two to tango and the parties failed to ensure that all the
instruments are ready for the dance.
For this reason, I exercise my
discretion and order that each party pays its own costs, other than
the costs of 31 March 2023.
[95]
I make the following order:
ORDER
1.
The Applicants pay the costs of the Respondents occasioned by the
removal of the application
from the urgent roll on 31 March 2023.
2.
The application is postponed to 24 August 2023.
3.
The municipality is directed within 15 days of this order, to file a
report, confirmed on
affidavit, in order to report to the Court on:
3.1
w
hat
steps it has taken and what steps it intends or is able to take in
order to provide alternative land in the event of the Respondents
being evicted and when such alternative land or accommodation can be
provided;
3.2
what the effects would be if the eviction would take place without
alternative land or emergency accommodation
being made available;
3.3
what steps can be taken to alleviate the effects of the current
occupation of the properties referred
to above if the occupiers are
not immediately evicted and pending alternative land or accommodation
being made available.
[49]
4.
Leave is granted to the Applicants and the Respondents to file
supplementary affidavit/s,
if any, within 20 court days after receipt
of the report of the municipality.
5.
All Respondents who seek accommodation and who are in occupation of
the land, shall apply
to be registered on the National Housing Needs
Register (“NHNR”) within
40 calendar days
of this
order.
6.
Each party shall pay its own costs, other than the costs in paragraph
1 above.
P R
CRONJé, AJ
On
behalf of the Applicants:
Adv
T Ntoane
Instructed
by:
SD
Maila
State
Attorney
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
F Sangoni
Instructed
by:
PD
Yazbek
Lovius
Block Attorneys
BLOEMFONTEIN
[1]
Pleadings,
page 219, para 53
[2]
Pleadings,
page 219, para 55
[3]
Pleadings,
page 162
[4]
Pleadings
page 128
[5]
7
March 2022 -
(mpg.gov.za)
.
A document by the Free State Department of Hunan Settlements can be
found at
https://www.humansettlements.fs.gov.za/wp
content/uploads/2019/05
. It does not contain a full exposition.
[6]
(CCT32/97)
[1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27
November 1997)
[7]
Pleadings,
page 146
[8]
Pleadings,
page 148
[9]
Pleadings,
page 106
[10]
Pleadings,
page 119, para 5
[11]
The
Immigration Act, 13 of 2002
provides remedies
[12]
The
founding affidavit was signed on 3 March 2023 and the application
issued on 14 March 2023
[13]
Pleadings,
page 112
[14]
Pleadings,
page 100
[15]
Pleadings,
page 93
[16]
Pleadings,
page 141
[17]
Pleadings,
page 142
[18]
Pleadings,
page 145
[19]
Pleadings,
page 208
[20]
Pleadings,
page 208, para 13
[21]
Pleadings,
page 273
[22]
Pleadings,
page 209, para 14
[23]
Pleadings,
page 209, para 16
[24]
Pleadings,
page 209, para 17
[25]
Pleadings,
page 210, para 18.1 – 18.5. See also: Pleadings, page 214,
para 37
[26]
Pleadings,
page 216, para 40
[27]
Pleadings,
page 218, para 52
[28]
Pleadings,
page 220, para 58
[29]
Pleadings,
page 221, para 62
[30]
Pleadings,
page 221, para 63
[31]
Pleadings,
page 221, para 64
[32]
Pleadings,
page 222, para 70
[33]
Pleadings,
page 223, para 71
[34]
Pleadings,
page 223, para 73
[35]
2006
(1) SA 269 (O)
[36]
[2000]
JOL 7524
(CC);
[2000] ZACC 19
(CC);
2000 (11) BCLR 1169
(CC)
[37]
Molusi
and Others v Voges N.O. and Others (CCT96/15)
[2016] ZACC 6
;
2016
(3) SA 370
(CC);
2016 (7) BCLR 839
(CC) (1 March 2016); See also:
ABSA
Bank Bpk v Murray and Another
2004
(2) SA 15
(C) at para [41] – [42] where, on the facts that are
different to the merits of this application, it was not required;
Pillay
and
another
v
Ramzan
[2022]
JOL 53085
(GJ) at para [24] – [25]
.
[38]
[2002]
JOL 10161 (SCA); [2002] ZASCA 87 (SCA); 2003 (1) SA 113
(SCA)
[39]
(22/023954
; 21/40262) [2023] ZAGPJHC 7 (10 January 2023); See also Molusi and
Others v Voges N.O. and Others (CCT96/15)
[2016] ZACC 6
;
2016 (3) SA
370
(CC);
2016 (7) BCLR 839
(CC) (1 March 2016) at para [6];
Msibi
v Occupiers of Unit 67 Cedar Creek and another
[2022] JOL 57135
(GP): “
[36]
Courts are now called upon to have regard to the circumstances of
the occupier and to pay due regard to considerations of
fairness in
order to come up with a just and equitable solution. … There
is no report from the second respondent on the
availability of
alternative accommodation which is fatal to an eviction application.
This is especially in circumstances such
the present one where there
is a real risk of homelessness. An eviction is just and equitable if
alternative accommodation is
made available.”
[40]
The
Court in
Blue
Moonlight
did not impose a direct and positive obligation on a private person
to continue to house illegal occupiers. See also:
Daniels
v Scribante and Another
(CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949
(CC) (11 May 2017)
[41]
(CCT
243/21) [2022] ZACC 32; 2023 (1) SA 321 (CC) (20 September 2022)
[42]
(38634/19)
[2021] ZAGPJHC 460;
2022 (3) SA 497
(GJ) (29 September 2021)
[43]
Occupiers,
51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg
[2008]
ZACC 1
;
2008
(3) SA 208
(CC)
[44]
Supplementary
Heads of Argument, para 4
[45]
(24/07)
[2008] ZACC 1
;
2008 (3) SA 208
(CC) ;
2008 (5) BCLR 475
(CC) (19
February 2008)
[46]
[2004]
JOL 13007
(CC);
[2004] ZACC 7
(CC); 2005 (1) SA; See also
Occupiers,
Berea v De Wet NO and Another
[2017] ZACC 18 (CC); 2017 (8) BCLR 1015 (CC)
[47]
Para
[41]
[48]
Port
Elizabeth Municipality v Various Occupiers
para
[36]
[49]
See:
Occupiers
of ERF 101,102, 104 and 112, Shorts Retreat, Pietermaritzburg v
Daisy Dear Investments (Pty) Ltd and Others
(245/08) [2009] ZASCA 80; 2010 (4) BCLR 354 (SCA); [2009] 4 All SA
410 (SCA) (3 July 2009);
Msibi
v Occupiers of Unit 67 Cedar Creek and another
[2022] JOL 57135 (GP);
Occupiers
of erven 87 & 88 Berea v De Wet NO and others
[2017]
JOL 38039 (CC)