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[2023] ZAECMHC 1
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Saziwa and Others v Mhlontlo Local Municipality and Others (2016/2022; 810/22; 1225/22; 2017/22) [2023] ZAECMHC 1 (10 January 2023)
HEADNOTE:
PAJA
AND EMERGENCY SHELTER
Administrative
– Review – Failure to take a decision – To
provide temporary emergency shelter –
Alleged hurricane and
disaster under
Disaster Management Act 57 of 2002
– Failure
to exhaust internal remedies to enable municipality to
investigate and declare disaster –
Promotion of
Administrative Justice Act 3 of 2000
,
s 6(2)(g).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
Case
no: 2016/2022, 810/22, 1225/22, 2017/22
Date
heard: 20/10/2022
Date
delivered: 10/01/2023
In
the matter between:
MAWETHU
LAWRENCE
SAZIWA
FIRST APPLICANT
THEMBISA
MANKAYI
SECOND APPLICANT
NOSEBENZILE
GQAGHA
THIRD APPLICANT
NOLINDILE
LINAH &
ANOTHER
FOURTH APPLICANT
and
MHLONTLO
LOCAL MUNICIPALITY
FIRST RESPONDENT
THE
MUNICIPAL MANAGER: MHLONTLO
MUNICIPALITY
SECOND RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT
OF HUMAN SETTLEMENTS, EC
THIRD RESPONDENT
O
R TAMBO DISTRICT MUNICIPALITY
FOURTH RESPONDENT
JUDGMENT
Notyesi
AJ
Introduction
[1]
The applicants instituted separate proceedings seeking orders
declaring
unlawful the respondents’ failure to provide them
with temporary emergency accommodation subsequent to an alleged
disaster
which occurred on 8 February 2022 within the first
respondent’s jurisdictional area.
[2]
The applications were consolidated on 19 April 2022 and, henceforth,
proceeded
as one application under case number 2016/2022 now being
considered by this court.
[3]
The applicants allege
that on 8 February 2022, a hurricane swept through the
first respondent’s area causing destruction
and collapse of
their residential places, and resulting in them being displaced,
rendered homeless and without shelters over their
heads. The
applicants contended that the incident was a natural disaster that
falls within the ambit of the
Disaster Management Act.
[1
]
[4]
As a result of this disaster, the applicants vacated their homes
together
with their children and other family members and sought
accommodation from neighbours and extended families. According to the
applicants,
they reported the incident to their respective ward
councillors who are members of the first respondent’s council.
[5]
After the disaster, the applicants sought assistance from the first
respondent,
to no avail. The first respondent is cited by the
applicants on the basis that it is statutorily bound to,
inter
alia
, prepare a disaster management plan for its area according
to the prevailing circumstances; to make contingency plans and
emergency
procedures in the event of a disaster; and to provide
prompt response and relief to the residents of its area in the event
of a
disaster. The second respondent has been cited on the basis that
he is the head of the administration for the Municipality and,
as
such, is under a duty to assist the applicants on behalf of the first
respondent. The third respondent is sued on the basis
that the
Department of Human Settlements of which he is political head has a
duty to facilitate the creation of sustainable human
settlement, to
improve the quality of households and to implement housing and
sanitation programmes. The fourth respondent is sued
on the basis
that it is bound to establish and implement a framework for disaster
management in the district Municipality aimed
at ensuring an
integrated and uniform approach to disaster management in its area.
According to the applicants, the fourth respondent
must consult the
local municipalities and establish disaster management centres within
the local municipalities and, finally, assist
local municipalities
and its residents in the event of a disaster affecting a local or
district municipality.
[6]
The applicants seek to hold the respondents constitutionally bound to
provide them with temporary accommodation in the form of shelter or
temporary structures or dwellings. According to the applicants,
the
respondents failed to act in terms of the
Disaster Management Act and
therefore breached their constitutional obligations.
[7]
These proceedings are
founded on
section 6(2)
(g)
of PAJA
[2]
and the principle of legality.
[8]
The respondents oppose the application on several grounds.
8.1
first, they contend that there was no disaster within the
jurisdiction of the first respondent on 8 February
2022 or any other
date as alleged by the applicants;
8.2
second, a state of disaster must be declared in accordance with the
provisions of the
Disaster Management Act and
that, in this instance,
there was no such declaration;
8.3
third, the first respondent can only act in terms of the empowering
provisions and that there is no provision
enjoining the first
respondent to provide temporary accommodation or shelter; and
8.4
finally, and insofar as the applicants rely on the provisions of
PAJA, that the applicants have failed to
exhaust internal remedies.
[9]
Based on these grounds, the respondents contend that the applicants
are
not entitled to the relief sought under PAJA and no case made
under the legality review.
[10]
The third and fourth respondents submitted that there is no case made
against them at all
and that they have no legal duty to provide
temporary accommodation for the applicants. In other words, the third
and fourth respondents
contend that the applicants have no cause of
action against them in law.
[11]
This Court must resolve the issues whether -
11.1 the applicants
have a duty to exhaust internal remedies;
11.2 the applicants
are entitled to any form of relief under PAJA or under the principle
of legality; and
11.3 a case has
been made against the third and fourth respondents.
The
applicants’ case
[12]
The applicants contend, in the main, that the incident of disaster
and the applicants’
plight was reported to ward councillors
who, in turn, had to report the incident of disaster to the first
respondent. The applicants
had also requested their councillors to
ask for emergency temporary accommodation. The ward councillors had
undertaken that they
would liaise with the first respondent and
revert to the applicants.
[13]
After a long passage of time, without any response, the applicants
again approached the
ward councillors to enquire about the complaint
and request. The ward councillor indicated that the first respondent
would not
provide any assistance for them. The applicants were not
given reasons for the first respondent’s decision. They were
not
even advised about the identity of the person who took the
decision to decline their request for assistance.
[14]
Unhappy with the first respondent’s decision, the applicants
solicited the assistance
of their legal representatives. On 11
February 2022, the legal representatives addressed a letter to the
first respondent. In the
letter, the first respondent was given until
14 February 2022 within which to consider the application and
respond. The relevant
passage from the letter reads:
‘
. . .
6.
On 8 February 2022 one side of her mud house got dismantled as a
result of a hurricane which
hit her locality.
7.
As a result of the dismantling aforesaid she now resides in the one
side remaining room of
her mud house aforesaid.
8.
The remaining inhabitable side of the mud house poses threat to her
life and that of her
three children as it may collapse on any day. In
addition, there is power supply onto the premises which itself poses
risk to the
inhabitants of the mud house should the house again
collapse on account of inclement weather.
9.
Subsequent the demolition of her house she approached the local
councillor urging that he
liaise with the municipality and urge it to
come to her rescue which did not yield any positive results. She also
visited the municipal
offices but was thrown from pillar to post with
no clear direction being given to her at all. . .’
[15]
The first respondent responded to the letter on 14 February 2022 and
the relevant part
of the response reads:
‘
. . .
Our client has indicated
that it is not responsible for building houses for rural communities,
and as such your letter should have
been directed to the Provincial
relevant department; as you have indicated that the matter needs to
be investigated, our client
undertakes to investigate without being
responsible thereof.
Such investigation shall
be done based on Ubuntu and ‘if no report is received by
yourself on or before 30
th
March 2022, please be advised
that your client is free to approach any courts for whatever relief
she deems necessary, and our
office shall defend such
action/application vigorously. . .’
[16]
On 15 February 2022, another letter was addressed by the applicants
to the first respondent.
For the reasons that will become apparent
later, I quote from the letter:
‘
We refer to your
letter of 14 February 2022 and we note the contents thereof with
dismay.
Firstly, in circumstances
of disaster the local municipality bears the responsibility to afford
the affected persons emergency housing
so as to protect the subjects
constitutional right to shelter. Secondly, expecting the affected
person to live without adequate
shelter for a period of over thirty
days whilst the municipality conducts the investigation is rather
heartless and cannot be allowed
in this constitutional dispensation
premised on the advancement of human rights.
In the premises, we
afford you until close of business on Wednesday 16 February 2022
within which to liaise with your client and
come back with the
relevant answer on whether the municipality will urgently afford our
client the desired shelter or not. Should
you either fail to revert
as aforesaid or come with unreasonable suggestions we will urgently
approach court for the relief.
We await hearing from you
in writing as of urgency.’
[17]
The first respondent replied on the same day and the response read:
‘
. . . Our client
re-iterates that it is not responsible for building RDP houses, and
this mandate is carried by the Provincial Government,
hence you
directed your previous letter to them. Our client simply collects the
data for the people who needs houses and forwards
this information to
the Department of Human Settlement for building. Even the contract
(sic)
of RDP houses is not
appointed by our client at all. . .’
[18]
There was further exchange of correspondence. Pursuant to such
exchange, the applicants’
attorneys launched four separate
applications on diverse dates during March 2022. Case number
2016/2022 was launched on 7 March
2022. Case number 2017/2022 was
launched on 7 March 2022. Case number 810/2022 was launched on 18
March 2022. Case number 1225/2022
was launched on 18 March 2022.
[19]
In addition to the declaratory relief already mentioned, the
applicants seek a
mandamus
directing the respondents to
provide such temporary accommodations.
The
first and second respondents’ case
[20]
The first and second respondents dispute that there was a disaster on
8 February 2022.
They contend that the council never declared a
disaster. In the absence of a council declaration of disaster, the
first respondent
cannot be directed to act in terms of the
Disaster
Management Act. In
such circumstances, the relief sought by the
applicants cannot be granted. The first respondent maintained that in
circumstances
where there was a hurricane, as opposed to normal
rainfall or even a storm, the first respondent would have been aware
on its own.
In terms of the
Disaster Management Act, for
an incident
to qualify as a disaster, it must conform within the definition of a
disaster and usually a disaster would affect a
large area. According
to the weather forecast during February 2022, there was no hurricane
reported within the area of jurisdiction
of the first respondent.
[21]
In addition to the above contentions, the first and second
respondents had requested time
until 30 March 2022 to investigate the
allegations of the applicants regarding the incident of a hurricane.
That request was declined
by the applicants’ legal
representatives. Again, on 7 March 2022, the first respondent
informed the applicants that:
‘
We confirm our
telephonic of conversation of today, the 7
th
March 2022, between our
Mr Mtshabe and your Mr Mhlawuli; and we write to inform your office
that our client has indicated that in
order to assist your client,
and your potential clients, if any, it is imperative that it [our
client], be supplied with the names
and identity numbers of your
client(s). Thereafter ours will verify if your(s) did apply to be
deemed or are indeed homeless; and
under which project(s) do they
qualify for assistance, if any.
Upon the application by
the deemed or homeless individuals, our client will communicate with
the Department of Human Settlement
along with the OR Tambo District
Municipality for the necessary assistance towards your client(s).
This process does not take a
day or two because of the unnecessary
administrative logistics. Our client has informed us that they do not
supply even temporary
structures at all as they do not have the
budget for this; theirs is to collect data and forward it to the
necessary Department
for processing. . .’
[22]
According to the first and second respondents, the information
requested was necessary
for the investigation of the applicants’
case. The applicants, without furnishing the information, launched
the application
without responding to the correspondence nor
furnishing the details of the alleged disaster. On this basis, the
first respondent
contends that the institution of the proceedings was
premature and the applicants failed to exhaust the internal remedies.
Third
respondents’ case
[23]
According to the third respondent, it has no function for providing
temporary emergency
accommodation and no responsibility to declare a
state of disaster. The function of declaring a state of disaster and
providing
temporary emergency accommodation is the responsibility of
the municipality. According to the third respondent, the Provincial
Government only becomes involved if there is an application received
from the local municipality requesting assistance during the
state of
a declared disaster.
[24]
The third respondent never received any application from the first
respondent and the third
respondent was never made aware of any
disaster nor was the third respondent made aware of the first
respondent’s financial
position in dealing with such a
disaster. On this basis, the third respondent could not legally
intervene. The third respondent,
therefore, submits that there is no
case made by the applicants against the Department of Human
Settlements.
Fourth
respondent’s case
[25]
The fourth respondent disputed that there was a disaster as alleged
by the applicants.
The fourth respondent contended that the function
of providing housing is a concurrent function of the National and
Provincial
Government and that it has not been accredited to provide
houses. On this basis, in the event of a disaster, the fourth
respondent
does not have authority to exercise powers and functions
of other spheres of government. The function of the fourth respondent
is limited to co ordination and management of local disasters
that occurred within its jurisdiction.
[26]
In order for the fourth respondent to co-ordinate and manage
disasters, it must be furnished
with information by the local
municipality and in this case, the fourth respondent was never
informed about any disaster within
the jurisdiction of the first
respondent and thus was never aware that there was a disaster. In
these circumstances, the fourth
respondent contended that there is no
case made by the applicants against it. The Municipal Manager of the
fourth respondent, who
deposed to an affidavit, disputed that in the
O R Tambo area there was a disaster during the month of February
2022. He confirmed
to have verified from the website of weather
forecast and there was no evidence about the alleged hurricane on 8
February 2022.
Legal
framework
[27]
In terms of the
Disaster Management Act:
‘“
disaster
”
means a progressive or sudden, widespread or localised, natural or
human caused occurrence which–
(a)
causes or threatens to cause–
(i) death, injury
or disease;
(ii) damage to property,
infrastructure or the environment; or
(iii)
disruption of the life of a community; and
(b)
is of a magnitude that exceeds the ability of those affected by the
disaster to cope with its effects
using only their own resources’
[28]
Section 23
of the
Disaster Management Act deals
with classification
and recording of disasters and reads:
‘
(1)
When a disastrous event occurs or threatens to occur, the National
Centre must,
for the purpose of the proper application of this Act,
determine whether the event should be regarded as a disaster in terms
of
this Act, and if so, the National Centre must immediately–
(a)
assess the magnitude and severity or potential magnitude and severity
of the disaster;
(b)
classify the disaster as a local, provincial or national disaster in
accordance with subsections (4),
(5) and (6); and
(c)
record the prescribed particulars concerning the disaster in the
prescribed register.
.
. .
(3)
The National Centre may reclassify a disaster classified in terms of
subsection (1)
(b)
as a local, provincial or national
disaster at any time after consultation with the relevant provincial
or municipal disaster management
centres, if the magnitude and
severity or potential magnitude and severity of the disaster is
greater or lesser than the initial
assessment.
(a)
it affects a single metropolitan, district or local municipality
only; and
(b)
the municipality concerned, or, if it is a district or local
municipality, that municipality either
alone or with the assistance
of local municipalities in the area of the district municipality is
able to deal with it effectively.
.
. .
(5)
A disaster is a provincial disaster if–
(a)
it affects–
(i) more than one
metropolitan or district municipality in the same province;
(ii) a single
metropolitan or district municipality in the province and that
metropolitan municipality, or that district municipality
with the
assistance of the local municipalities within its area, is unable to
deal with it effectively; or
(iii)
a cross-boundary municipality in respect of which only one
province
exercises executive authority as envisaged by
section 90(3)(a)
of the
Local Government : Municipal Structures Act, 1998 (Act 117 of 1998);
and
(b)
the province concerned is able to deal with it effectively.
(6)
A disaster is a national disaster if it affects–
(a)
more than one province; or
(b)
a single province which is unable to deal with it effectively.
(7)
Until a disaster is classified in terms of this section, the disaster
must be regarded as a local disaster.
(8)
The classification of a disaster in terms of this section designates
primary
responsibility to a particular sphere of government for the
co-ordination and management of the disaster, but an organ of state
in another sphere may assist the sphere having primary responsibility
to deal with the disaster and its consequences.’
[29]
Section 55(1)
of the
Disaster Management Act deals
with the
declaration of the local state of disaster:
‘
In the event of a
local disaster, the council or a municipality having primary
responsibility for the co-ordination and management
of the disaster
may, by notice in the provincial gazette, declare a local state of
disaster if–
(a)
existing legislation and contingency arrangements do not adequately
provide for that municipality to
deal effectively with the disaster;
or
(b)
other special circumstances warrant the declaration of a local state
of disaster.’
[30]
In terms of
section 55(2)
, if a local state of disaster has been
declared in terms of subsection (1), the municipal council concerned
may, subject to subsection
(3), make by-laws or issue directions, or
authorise the issue of directions, concerning:
‘
(a)
the release of any available resources of the municipality, including
stores, equipment, vehicles and facilities;
(b)
the release of personnel of the municipality for the rendering of
emergency services;
(c)
the implementation of all or any of the provisions of a municipal
disaster management plan that are
applicable in the circumstances;
(d)
the evacuation to temporary shelters of all or part of the population
from the disaster-stricken or
threatened area if such action is
necessary for the preservation of life;
(e)
the regulation of traffic to, from or within the disaster-stricken or
threatened area;
(f)
the regulation of the movement of persons and goods to, from or
within the disaster-stricken or
threatened area;
(g)
the control and occupancy of premises in the disaster-stricken or
threatened area;
(h)
the provision, control or use of temporary emergency accommodation;
(i)
the suspension or limiting of the sale, dispensing or transportation
of alcoholic beverages in
the disaster-stricken or threatened area;
(j)
the maintenance or installation of temporary lines of communication
to, from or within the
disaster area;
(k)
the dissemination of information required for dealing with the
disaster;
(l)
emergency procurement procedures;
(m) the
facilitation of response and post-disaster recovery and
rehabilitation; or
(n)
other steps that may be necessary to prevent an escalation of the
disaster, or to alleviate, contain
and minimise the effects of the
disaster.’
[31]
Section 6
of PAJA deals
with judicial review of administrative action.
Section 6(2)
(g)
deals with a situation
that under the common law would have attracted the remedy known as a
mandamus
.
This is an order requiring a public authority to comply with a
statutory duty imposed on it or to perform some act to remedy a
state
of affairs brought about as a result of its own unlawful
administrative action. As with the common law
mandamus
,
section 6(2)
(g)
of PAJA deals with the
failure by an administrator to take a decision that the administrator
is under a legal obligation to take.
[3]
[32]
In
Thusi
v Minister of Home Affairs and Others
,
[4]
Wallis J held:
‘
Where
s6(2)(g)
is
invoked and a mandatory order is claimed by way of consequential
relief the applicant must demonstrate that the administrator
concerned is under a duty to perform the act in question and has
failed to do so. This was also the case with a common law mandamus.
In
Moll
v Civil Commissioner of Paarl
,
De Villiers CJ said about this form of relief:
“
The wide power
possessed by the Court under our law of interdicting illegal acts
implies the power, as pointed out in New Gordon
Co v Du Toitspan
Mining Board (9 Juta, 154), of compelling the performance of a
specific duty, at all events on the part of
a public officer, by
mandatory interdict or other form of “mandament.” It also
implies the power of correcting an illegality
committed by such
public officer, so long as it is capable of correction, if the rights
of an individual are infringed by such
illegality. But it is obvious
that relief will not be given where such rights are of a doubtful
nature, or where the public officer
has acted in the exercise of a
discretion left to him, but only where the existence and continued
infringement of an absolute legal
right have been clearly
established.’
When dealing with the
appropriate consequential relief in such a case Greenberg J (as he
then was) said:
“
. . . prima facie,
as the proceedings are based on a complaint that the statutory body
has withheld from the aggrieved party the
right given to him by
statute, it would seem that the more appropriate remedy is to order
that he be given that to which he was
entitled and which had been
withheld; in the present case the applicant’s cause of action
is not that they were entitled
to a certificate, but to a proper
hearing and exercise of discretion – and prima facie the court
should grant them what has
been withheld . . .”
I think that these
statements of principle are equally applicable to a review under
s6(2)
(g)
of PAJA.’
[33]
PAJA is the statutory framework of the constitutional right to just
administrative action,
that is, administrative action that is lawful,
reasonable and procedurally fair.
Section 7(2)
(a)
of PAJA
provides that subject to paragraph
(c)
, no court or tribunal
shall review an administrative action in terms of PAJA unless
internal remedies provided for in any other
law has first been
exhausted.
[34]
Section 62 of the Local Government: Municipal Systems Act 32 of 2000
(Systems Act) deals
with internal appeals in the municipality and
provides that a person whose rights are affected by a decision taken
by a political
structure, political office bearer, councillor or
staff member of a municipality in terms of a power or duty delegated
or sub-delegated
to the political structure, political office bearer,
councillor or staff member, may appeal against that decision by
giving written
notice of the appeal and reasons to the municipal
manager within 21 days of the date of the notification of the
decision. Subsections
(2), (3) and (4) of the Systems Act deals with
the procedure to deal with the appeal and the appropriate forums to
hear the appeals.
[35]
The cause of action chosen by the applicants under PAJA is predicated
on the provisions
of section 6(2)
(g)
and the first respondent
is relying upon section 7(2)
(a)
of PAJA as a ground to oppose
the relief.
[36]
Insofar as the applicants
rely on the principle of legality, in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
,
[5]
O’Regan J held:
‘
The Courts’
power to review administrative action no longer flows directly from
the common law, but from PAJA and the Constitution
itself. The
grundnorm of administrative law is now to be found in the first place
not in the doctrine of ultra vires, nor in the
doctrine of
parliamentary sovereignty, nor in the common law itself, but in the
principles of our Constitution. The common law
informs the provisions
of PAJA and the Constitution, and derives its force from the latter.
The extent to which the common law
remains relevant to administrative
law review will have to be developed on a case-by-case basis as the
Courts interpret and apply
the provisions of PAJA and the
Constitution.’
[37]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[6]
Chaskalson J stated:
‘
It seems central
to the conception of our constitutional order that the Legislature
and Executive in every sphere are constrained
by the principle that
they may exercise no power and perform no function beyond that
conferred upon them by law. At least in this
sense, then, the
principle of legality is implied within the terms of the interim
Constitution. Whether the principle of the rule
of law has greater
content than the principle of legality is not necessary for us to
decide here. We need merely hold that fundamental
to the interim
Constitution is a principle of legality.’
[38]
Section 1
(c)
of the Constitution provides that the Republic of
South Africa is founded on the Supremacy of the Constitution and the
rule of
law. The principle of legality is an incident of the rule of
law.
[39]
On these principles, I now turn to address the submissions by the
parties.
Whether
the applicants have a duty to exhaust internal remedies
[40]
Mr
Mtshabe
, counsel for the first and second respondents,
contended that insofar as the applicants rely on the provisions of
PAJA for their
review, they have a duty to exhaust internal remedies.
In this regard, Mr
Mtshabe
submitted that first respondent
disputes that there was a disaster within the first respondent’s
area on 8 February
2022. Furthermore, the first respondent
requested information from the applicants in order to conduct
investigations in relation
to the details of the alleged disaster.
[41]
Mr
Mtshabe
contended that the proceedings were instituted by
the applicants on 7 March 2022 without them providing a response to
the first
respondent’s letters. Consequently, the proceedings
were instituted prematurely and on this basis, the relief sought by
the
applicants should be refused. Mr
Mtshabe
, in this regard,
relied on the provisions of section 7(2)
(a)
which provides
that, subject to paragraph
(c)
, no court or tribunal shall
review an administrative action in terms of this act unless any
internal remedies has been exhausted.
Paragraph
(c)
deals with
exemption to exhaust internal remedies. In these proceedings, the
applicants have not asked for exemption from complying
with the
provisions of PAJA. According to Mr
Mtshabe
, the applicants
were obliged to appeal the decision, if any, regarding their
application for assistance in terms of section 62
of the System’s
Act. On the applicants’ failure to appeal the decision and that
of failing to afford the first respondent
an opportunity to
investigate the disputed incident, Mr
Mtshabe
submitted that
that was a failure to exhaust internal remedies and that the matter
had been brought before court prematurely.
[42]
Mr
Matotie
, counsel for the applicants, hard put to counter
the submissions by Mr
Mtshabe
. Mr
Matotie
contended
that the court should take into account that this was an emergency
situation and that the applicants are ordinary persons
who seek to
assert their constitutional rights. He contended that the first
respondent has a constitutional obligation to provide
shelter for the
applicants in circumstances of a disaster. Mr
Matotie
pointed
out that the applicants were rendered homeless as a result of the
disaster and that is what the court should consider rather
than
rejecting the relief sought by the applicants on technicalities. I
disagree with this submission that Mr
Mtshabe’s
contentions amount to a mere technicality.
[43]
The difficulty that I have with Mr Matotie’s submissions is
that in the letter of
14 February 2022, the first respondent
indicated that the matter would be investigated and that such
investigation would be concluded
by 30 March 2022. It also bears
mentioning that prior to the applicants approaching legal
representatives, there was no evidence
that the administration of the
first respondent was informed about the alleged disaster. Reporting
to the ward councillors is not
sufficient evidence and there is no
proof that such report indeed, was made to the ward councillors. The
ward councillors are not
identified by the applicants. Whilst the
applicants suggest that they approached the officials of the first
respondent, there are
no details in this regard. There is paucity of
information regarding the person(s) within the administration who
were approached
by the applicants. The applicants also failed to give
dates regarding the meeting with the ward councillors or municipal
officials.
Absent proof that there was a disaster, in my view,
presents serious challenges for the municipality to invoke the
provisions of
the
Disaster Management Act. It
should also be borne in
mind that the
Disaster Management Act only
confers a discretion to
the municipal council to provide resources within its budget. That
would require an investigation of the
incident and a decision that,
indeed, the incident amounts to a disaster as defined in the Act.
[44]
Not every natural incident such as rainfall or thunderstorms or other
similar occurrences
would qualify in terms of the Act to be
categorised as a disaster. The simple reason is that a disaster is
qualified in the Act:
‘“
disaster”
means a progressive or sudden, widespread or localised, natural or
human caused occurrence which–
(a)
causes or threatens to cause–
(i) death, injury or
disease;
(ii) damage to property,
infrastructure or the environment; or
(iii) disruption of the
life of a community; and
(b) is
of a magnitude that exceeds the ability of those affected by the
disaster to cope with its effects using
only their own resources.’
[45]
My other difficulty with the applicants’ case is that the first
respondent’s
letter of 7 March 2022 had called for a response
from the applicants before instituting these proceedings. The
applicants did not
provide the information which would have enabled
the first respondent to investigate the circumstances of the alleged
disaster.
I do not understand the reason why ward councillors would
not have been aware of the disaster in their respective areas, if
indeed,
it had occurred. I have no doubt in my mind that the first
respondent was correct for insisting on the investigation of the
allegations
about a disaster in these circumstances.
[46]
In my view, therefore, the applicants were obliged to exhaust the
internal remedies as
that would have enabled the first respondent to
investigate the truthfulness about the occurrence of the disaster. If
I were to
accept the applicants’ submissions in this regard,
that would lead to untenable consequences of allowing every
individual
whose property had been allegedly destroyed as a result of
natural causes, to approach the court on the basis that such an
isolated
occurrence was a disaster. The first respondent was entitled
to investigate the allegations of the applicants and, where
necessary,
invoke the
Disaster Management Act if
it is shown that
there was indeed a disaster as envisaged in the Act. The rush by the
applicants in launching the application had
a potential to deprive
the first respondent of such a rational cause of action in the
circumstances of this case.
[47]
Most significantly, the applicants have never attempted to approach
the administration
of the first respondent. The applicants merely
rely on the alleged statements made by their unidentified ward
councillors to the
effect that the request for emergency shelters was
denied by the first respondent. There is no affidavit filed by the
alleged councillors
and they are not identified. The applicants have
also failed to divulge the details of the person within the first
respondent’s
governance structures that has refused the request
for emergency shelters. The first respondent has both the legislative
and executive
functions. The municipal manager is the head of
administration. There is no allegation that the municipal manager of
the first respondent
was made aware of the alleged disaster.
This is another shortcoming in the applicants’ case. The
disaster is declared in
terms of the
Disaster Management Act by
the
council of the municipality. In terms of the System’s Act, the
speaker of the council is the chairperson. He, too, ought
to have
been informed and he was not, on the evidence provided by the
applicants. The applicants had a duty to prove that the council
was
aware that a disaster had occurred within the jurisdiction of the
first respondent.
[48]
In these circumstances, I agree with Mr
Mtshabe
that the
applicants’ case was brought before this Court prematurely and
that the applicants have failed to comply with the
provisions of PAJA
and that they are not entitled to any relief under PAJA.
Whether
the applicants are entitled to any form of relief under PAJA or
legality review
[49]
Mr
Matotie
further contended that the applicants are also
relying on the provisions of section 1
(c)
of the Constitution.
In this regard, Mr
Matotie
submitted that the principle of
legality provides a general justification for the review of the
exercise of public power and operates
as a residual source of review.
I agree with this principle of our law. However, in this case, it
remains to be seen whether the
applicants have made out a case under
legality review.
[50]
In circumstances where the applicants invoke a legality review, as is
the case here, it
remains for this court to consider whether the
applicants have made out a case for a declaration that they are
eligible to obtain
emergency temporary shelters, dwellings or
structures pursuant to a disaster that had occurred on 8 February
2022. In order for
the court to grant the relief sought by the
applicants, it seems to me that the first question is to determine
whether there was
a disaster on 8 February 2022 and that the
respondents have failed to discharge their constitutional obligations
in this regard.
For the reason that the applicants had based their
case on the provisions of the
Disaster Management Act, they
must
prove their case in that regard. The applicants must prove that the
respondents have breached their statutory obligations
arising from
the
Disaster Management Act.
[51
]
The Executive and Legislature in every sphere of Government is
constrained by the principle
that they may exercise no power and
perform no function beyond that conferred upon them by law. In this
case, the complaint is
that the first respondent is bound in terms of
the
Disaster Management Act to
provide temporary accommodation to the
applicants because a disaster had occurred which rendered the
applicants homeless or without
shelter. Mr
Matotie
contended
that the failure by the first respondent to implement their
statutory obligations in terms of the
Disaster Management Act is
illegal and reviewable under the principle of legality. I disagree
with the submissions for the simple reason that the first respondent
can only act in terms of the empowering provisions of the
Disaster
Management Act. The
applicants failed to prove that there was a
disaster and in such instances, no obligations for the respondents
arise from the
Disaster Management Act.
[52
]
Section 55
of the
Disaster Management Act empowers
the council to
declare a state of disaster. Once the state of disaster has been
declared, sub-section (2) of
section 55
confers a discretion upon the
first respondent to issue directions, or authorise the issue of
directions, concerning the evacuation
of persons to temporary
shelters of all or part of the population from the disaster-stricken
or threatened area, if action is necessary,
for the preservation of
life; to direct for the provision, control or use of temporary
emergency accommodation; and most importantly;
direct for the release
of any available resources of the municipality including stores,
equipment, vehicles and facilities.
[53]
In my view, the relief envisaged under
section 55(2)
of the
Disaster Management Act can
only be implemented once the council
has declared a state of local disaster. In the present case, the
state of local disaster was
not declared. The council was never
informed about any disaster. The occurrence of a hurricane is
disputed by the respondents.
The applicants have not produced any
evidence to substantiate the allegations of a disaster or hurricane
within the jurisdiction
of the first respondent. Mr
Matotie
drew my attention to some photographs which are attached to the
applicants’ founding papers. I find no value in those
photographs
for the reason that it is not clear when they were taken
and the identity of the person who took the photographs and for what
purpose.
On the disputed facts, I accept the version of the
respondents and, therefore, find that there was no hurricane which
caused a
disaster.
[54]
It is important to also highlight that
section 23
of the
Disaster
Management Act deals
with the classification and recording of
disasters. The disaster relied upon by the applicants in these
proceedings has never been
classified. It is put into dispute that
there was a disaster within the jurisdiction of the first respondent
during the period
alleged by the applicants. Whilst
section 23(7)
proclaims that until a disaster is classified in terms of the
section, such disaster must be regarded as a local disaster, however,
it must first be determined that there was a disaster. In terms of
section 54
, a municipality has responsibilities which include
co-ordination and management of a local disaster. In this case, the
first respondent
was not informed about any disaster within its
jurisdiction. The applicants are not seeking an order to compel the
first respondent
to declare a state of disaster.
[55]
For these reasons, the applicants have failed to make out a case
under the legality review
and, as such, are not entitled to any
relief.
Whether
a case has been made against the third and fourth respondents
[56]
The third and fourth respondents contend that there was no case made
against them in view
of the fact that they were not even aware of the
alleged hurricane. The third respondent submitted that it is only
responsible
for the provision of housing and that there is a process
for the provision of those houses. The third respondent indicated
that
it is not responsible for the provision of temporary
accommodation and that is a sphere of the local municipality. The
contention
by Mr
Sintwa
, counsel for the third respondent, was
that the third respondent is guided by the Constitution, the
Housing
Act 107 of 1997
and the Code of the
Housing Act. In
this instance,
there are no allegations that the third respondent has violated any
of those provisions.
[57]
Mr
Mgidlana
, who appeared for the fourth respondent, made
similar submissions that no case was made against the fourth
respondent in that the
fourth respondent only acts on information
received from local municipalities. The function of the fourth
respondent is the co-ordination
and management of disasters and that
the fourth respondent had no obligations to provide emergency
accommodation. There was no
contrary submission from the applicant’s
camp, counsel for the applicants.
[58]
Mr
Matotie
correctly conceded that, indeed, there is no case
made against both the third and fourth respondents. In my view, the
concession
was properly made on behalf of the applicants.
[59]
I agree with both Mr
Sintwa
and Mr
Mgidlana
that no
case has been made against the third and fourth respondents. The
third and fourth respondents were improperly joined in
these
proceedings and no cause of action was established against them.
Costs
[60]
The application was frivolous in its nature. It was unreasonable for
the applicants to
launch the application, notwithstanding the
undertaking by the first respondent to investigate the allegations
about a disaster.
I found no evidence that the officials of the first
respondent were notified about the alleged disaster. On a proper
consideration
of the application, it is an abuse of court process.
The third and fourth respondents were sued for no valid reasons and
they have
incurred costs to defend the application.
[61]
Initially, I held a view
that the principles regarding costs in public litigation as set out
in
Harrierlall
v University of KwaZulu Natal
[7]
and
Affordable
Medicines Trust & Others v Minister of Health and Others
[8]
and
Biowatch
,
[9]
should be applicable. On a proper scrutiny of the papers, this
litigation was not
bona
fide
.
The applicants should pay the costs to discourage frivolous
litigation.
Conclusion
[62]
For all these reasons, the applicants’ application must fail
with the applicants
to pay the costs of litigation. I am not
convinced that the applicants should benefit from the principles
applicable to public
litigations. Public litigation should be genuine
and
bona fide
before a losing party should escape payment of
costs and this is not the appropriate case.
Order
[63]
In the results, I make the following order:
1.
The applicants’ application is dismissed with costs and such
costs to include, where
applicable, the employment of two counsel.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the applicants
:
Mr Matotie
(
together with Ms
Nyobole and Ms
Nqabeni
)
Attorneys
for the applicants:
S R Mhlawuli & Associates
Mthatha
Counsel
for the 1
st
& 2
nd
respondents
:
Mr Mtshabe SC
(
together with
Ms
Mxotwa
)
Attorneys
for the 1
st
& 2
nd
respondents
: N Z Mtshabe Incorporated
Mthatha
Counsel
for the 3
rd
respondent
:
Mr Sintwa
Attorneys
for the 3
rd
respondent
: The State Attorney
Mthatha
Counsel
for the 4
th
respondent
:
Mr Mgidlana
Attorneys
for the 4
th
respondent
: K B Mabanga Incorporated
Mthatha
[1]
57 of 2002.
[2]
Promotion of Administrative Justice Act 3 of 2000
. A court or
tribunal has the power to judicially review an administrative action
consisting of a failure to take a decision.
[3]
Thusi v
Minister of Home Affairs and Others
[2010]
ZAKZPHC 87;
2011 (2) SA 561
(KZP) para 42.
[4]
Ibid para 43.
[5]
Bato
Star Fishing (Pty) Ltd v Minister of Environment Affairs
[2004] ZACC 15
;
2004 (4)
SA 490
(CC);
2004 (7) BCLR 687
(CC) para 22. See also Cora Hoexter
Administrative
Law in South Africa
2
ed (2011) at 118-119.
[6]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
;
1998 (12) BCLR 1458
para 58.
[7]
Harrierlall
v University of KwaZulu Natal
[2017]
ZACC 38; 2018 (1) BCLR 12 (CC).
[8]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
; 2006(3)
SA 247 (CC)
[2005] ZACC 3
; ;
2005 (6) BCLR 529
(CC) para 138.
[9]
Biowatch
Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
;
2009
(10) BCLR 1014
(CC); 2009 (6) SA232 (CC).