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[2024] ZAGPPHC 249
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Summer Season Trading 63 (Pty) Ltd v City of Tshwane Metropolitan Municipality and Others (22557/2015; 25597/2011) [2024] ZAGPPHC 249 (11 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No: 22557/2015
Case No: 25597/2011
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 11/03/2024
In the matter between:
SUMMER SEASON TRADING 63
(PTY) LTD
Applicant
and
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
1
st
Respondent
ILLEGAL OCCUPIERS OF THE
REMAINING EXTENT
2
nd
Respondent
OF PORTION 34 OF THE FARM
KAMEELZYNKRAAL 547
MEC FOR LOCAL GOVERNMENT
AND HOUSING,
3
rd
Respondent
GAUTENG
MINISTER OF HUMAN
SETTLEMENTS
4
th
Respondent
MINISTER OF WATER AND
ENVIRONMENTAL AFFAIRS
5
th
Respondent
PREMIER, GAUTENG
PROVINCE
6
th
Respondent
APPLICATION FOR LEAVE
TO APPEAL
MOOKI J
1
The first respondent (“the City”)
seeks leave to appeal on the following grounds:
1.1
The Court did not enquire as to availability of adequate alternative
accommodation when ordering relocation
to the remaining extent of
portion 34 of the farm Kameelzynraal 547 JR (“the property”).
1.2
The Court had no information about alternative accommodation, there
being no affidavits confirming the availability
of alternative
accommodation.
1.3
The Court had no information about the property. There was no
consent by the occupiers. There
were no negotiations between
the City and the occupiers. The Court did not know the distance
between the property and the
current property. The Court did
not have information whether the property was vacant are occupied.
1.4
The Court erred in refusing to grant the City leave to file further
affidavits dealing with the current state
of affairs given that the
eviction order was granted more than a decade ago.
1.5
The Court, had the Court permitted the filing of further affidavits,
would have been informed that the property
was unavailable and that
the property is 60 km away from the current property, is a proclaimed
township, and was occupied.
1.6
The Court erred in refusing the holding of an inspection in loco as
requested by the occupiers.
1.7
The Court erred in holding that the City was required to obtain the
consent of the applicant before the City
withdrew the 11 March 2015
expropriation notice, in that section 23 (1) of the Expropriation Act
63 of 1975 does not require a
municipality to seek consent of a
landowner before withdrawing an expropriation notice.
1.8
The Court erred in finding that section 79 (24) (a) (1) of the Local
Government Ordinance, 17 of 1939 (“the
Ordinance”), read
with section 5 of the Expropriation Act 63 of 1975, did not authorise
the City to expropriate the applicant’s
property.
1.9
The Court erred in finding that the City had to comply with section 9
(3) (a) of the Housing Act 107 of 1997
(The Housing Act”) to
expropriate the applicant’s property, in that the City is not
obliged to invoke the Housing Act
where the purpose of the
expropriation is to provide land to a community.
1.10 The Court
erred in finding that the City did not withdraw the 11
th
of March 2015 expropriation notice in the manner set out in section 7
of the Expropriation Act.
1.11 The Court
erred in finding that the expropriation was to circumvent and subvert
the eviction order of 30 April 2013.
The Court ought to have
established whether the expropriation was for a public purpose or
public interest.
1.12 Erred in
upholding the contention that the land was not suitable for human
settlement.
1.13 Erred that the
City did not litigate in earnestness, whereas the City had no choice
but to participate in the litigation.
1.14 The City
raised genuine constitutional issues. There was no basis for costs on
a punitive scale, and the Court ought
to have applied Biowatch.
1.15 Erred in
finding that the eviction order was an absolute bar to expropriation
of the property.
1.16 Erred in
finding that there can be no withdrawal of the expropriation notice
without the consent of the previous owner,
even where that owner
expressly refused to grant consent.
2
The second respondent (the occupiers”)
seek leave to appeal on the bases that the Court erred:
2.1 In
holding that the expropriation was for an ulterior purpose.
2.2 In
holding that the eviction order had to be given effect.
2.3 By
not exercising its discretion as set out in section 8 of PAJA in the
finding that the Court could not
undo the eviction order.
2.4 In
holding that directing the City to start the expropriation process de
novo would infringe the principle
of separation of powers.
2.5 In
holding that Donkerhoek was adjacent to the land, when Donkerhoek is
some 60km away from the land.
2.6 By
awarding costs against the occupiers in the eviction proceedings; in
that the Court ought to have followed
the decision in Biowatch
because the occupiers were acting to protect their constitutional
rights.
3
The application by the City does not meet
the requirement for granting leave to appeal.
4
Leave
to appeal “…
must
not be granted unless there truly is a reasonable prospect of
success.
Section
17(1)(a)
of
the
Superior
Courts Act 10 of 2013
makes
it
clear
that leave to appeal may only be given where the judge concerned is
of the opinion that the appeal would have
a reasonable
prospect of success; or there is some other compelling reason why it
should be heard.”
[1]
5
The litigants, in their joint practice
note, agreed that the date by when the relocation was to be effected
and the costs in the
eviction proceedings was one of the issues for
determination by the Court.
6
The respondents did not, before the hearing
of the matter, seek leave to place information before Court regarding
the appropriateness
or otherwise of the relocation of the occupiers.
7
The applicant made-out a case in its papers
that the City acquired the property after the grant of the eviction
order; that the
property was near Kanana Village and that the
property was suitable for relocating the occupiers. The City
had every opportunity
in its answering affidavit to indicate why,
according to the City, the property was not as contended for on
behalf of the applicant.
The City did not do so. The City answered
with a bare denial.
8
There is no merit to the grounds that the
Court should have asked for affidavits before determining whether the
occupiers should
be relocated. The dispute on issues for
determination were properly laid out in the papers.
9
There
was, similarly, no cause for the holding of an inspection in loco.
This is more so because the respondents did not dispute,
in any
meaningful way, averments on behalf of the applicant that the
property was available for the relocation of the occupiers.
The Court
had already, in eviction proceedings, considered and made findings
regarding, among others, the living arrangements
and
conditions of the occupiers. The issue could not be relitigated.
10
It
was unnecessary for the Court to consider whether expropriation was
for a “public purpose” once the Court determined
that the
City did not withdraw the first expropriation notice in accordance
with the law. The City accepted that the second
expropriation
notice would have no legal foundation if the Court found that the
withdrawal of the first expropriation notice was
unlawful.
11
The
City accepted that the applicant had to consent to the withdrawal of
the first expropriation notice. There was no such
consent.
It follows that the second expropriation notice could not be lawfully
issued. It was unnecessary, therefore,
for the Court to
address, for example, whether:
11.1 The
expropriation was for a “public purpose”.
11.2 The City could
expropriate pursuant section 79(24)(a)(1) of the Ordinance.
11.3 Section
9(3)(a) of the Housing Act applied.
12
The
grounds of appeal on these points have no substance. For
example, and in relation to Section 9(3)(a) of the Housing Act,
the
City’s entire case is that the occupiers were already settled
on the land. There was therefore no new land to be
given to the
occupiers, following which they would then build houses on that land.
13
The
Court is not persuaded that it erred in its finding that the
expropriation was not intended to subvert the eviction order. The
Court’s justification for this view is as detailed in the
judgement.
14
The
City did not request the applicant to consent to the City withdrawing
the first expropriation notice. The circumstances
preceding the
withdrawal of the first expropriation notice are detailed in the
judgement.
15
The
Court found that the expropriation notices were not effected in
accordance with the law. The issue of whether an eviction
order
is an absolute bar to expropriation is immaterial on a determination
that expropriation was not effected in accordance with
the law.
16
The
Court is not persuaded that it erred in its finding regarding how the
City litigated and in saddling the City with a punitive
cost order.
The bases for the findings are as set out in the judgement.
17
The
application by the occupiers equally does not meet the requirements
for the grant of leave to appeal.
18
The
grounds of appeal by the occupiers are, in the main, encompassed in
those made by the City. I do not repeat the views of the
Court in
relation to those grounds of appeal that are common to the
respondents.
19
The
decision in
Staufen
Investments (Pty) Ltd v The Minister of Public Works and Others
[2]
does not support the contentions advanced on behalf of the occupiers.
The issues in that decision are also distinguishable from
those
considered by this Court.
20
The
discretion in section 8 of PAJA is not unfettered. The Court’s
view regarding the exercise of its discretion is detailed
in the main
judgement.
21
I
am not persuaded that the Court erred in its finding that it would
violate the principle of separation of powers were the Court
to order
the City to embark on an expropriation of the property.
22
The
applicant set-out the details regarding Donkerhoek in its founding
papers. There was no challenge that Donkerhoek was not adjacent
to
the property. The referencing of Donkerhoek being 60 km away from the
property is a clear error, which the respondents accepted
during the
hearing of this application.
23
Biowatch
is not authority for the view that a litigant is never saddled with
costs where such a litigant acts to protect a constitutional
right.
The Constitutional Court has stated that:
Equal
protection under the law requires that costs awards not be dependent
on whether the parties are acting in their own interests
or in the
public interest. Nor should they be determined by whether the parties
are financially well-endowed or indigent or, as
in the case of many
NGOs, reliant on external funding. The primary consideration in
constitutional litigation must be the way in
which a costs order
would hinder or promote the advancement of constitutional justice.
[3]
24
The
Constitutional Court also remarked that:
Thus,
litigants should not be treated disadvantageously in making costs and
related awards simply because they are pursuing commercial
interests
and have deep pockets. Nor should they be looked upon with favour
because they are fighting for the poor and lack funds
themselves.
What matters is whether rich or poor, advantaged or disadvantaged,
they are asserting rights protected by the Constitution.
[4]
25
It
bears pointing out that the applicant was equally seeking to
vindicate a right in the constitution. The occupiers do not enjoy
a
privileged position that renders them immune from a cost order.
26
I
make the following order:
26.1 The
applications by each of the first respondent and the second
respondents are dismissed.
26.2 The
respondents are ordered to pay costs.
Omphemetse Mooki
Judge of the High Court
Heard: 1 February
2024
Delivered: 11 March 2024
For the applicant:
H S Havenga SC
Instructed by:
Peet Grobbelaar
Attorneys
For the first
respondent:
W R Mokhare SC (with K
Phuroe)
Instructed by:
The State Attorney,
Pretoria
For the second
respondent:
C du Toit
Instructed by:
Gilfillan du Plessis
Attorneys
[1]
MEC
for Health, Eastern Cape v Mkhita
2016
JDR 2214 (SCA), para 16
[2]
2020
(4) SA 78 (SCA)
[3]
Biowatch
Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC),
para 16
[4]
Biowatch
Trust, para 17