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[2011] ZASCA 47
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City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (2011 (4) SA 337 (SCA); [2011] 3 All SA 471 (SCA)) [2011] ZASCA 47; 338/10 (30 March 2011)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 338/10
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
...............................
Appellant
and
BLUE MOONLIGHT PROPERTIES 39 (PTY)
LTD
........................................
First
Respondent
THE OCCUPIERS OF SARATOGA AVENUE
..........................................
Second
Respondent
______________________________________________________________
Neutral citation:
City of
Johannesburg Metropolitan Municipality v Blue Moonlight
(338/10)
[2011] ZASCA 47
(30 March 2011)
CORAM:
Navsa, Tshiqi, Theron JJA and Plasket and Petse AJJA
HEARD:
18 February 2011
DELIVERED:
30 March 2011
SUMMARY:
Eviction of desperately poor from privately owned building ─
constitutional duty of municipality to provide emergency
temporary
shelter ─ municipality held to have resources to provide
emergency temporary shelter ─ fulfils important
role in the
progressive realisation of right of access to adequate housing ─
no bar to using ratepayer contributions to provide
emergency
temporary shelter to longstanding residents who otherwise would be
forced onto public spaces.
_______
_______________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
South Gauteng
High Court (Johannesburg) (Spilg J sitting as court of first
instance).
1. The application by the appellant to
have new evidence admitted on appeal succeeds and the appellant is to
pay the costs of the
application on the unopposed scale.
2. Save as is reflected in the
substituted order set out hereunder the appeal is dismissed and the
appellant is ordered to pay the
second respondents’ costs,
including the costs of two counsel.
3. No order is made in respect of the
cross-appeal by the second respondent.
4. In respect of the abandoned
cross-appeal by the first respondent, no costs order is made in
relation thereto.
5. The order of the court below is set
aside and substituted as follows:
‘
1. The first
respondent and all persons occupying through them (collectively “the
occupiers”) are evicted from the immovable
property situate at
Saratoga Avenue, Johannesburg and described as Portion 1 of Erf 1308
Berea Township, Registration Division
IR, Gauteng (“the
property”);
2. The first respondent and all
persons occupying through them are ordered to vacate by no later than
1 June 2011, failing which
the Sheriff of the Court is authorised to
carry out the eviction order;
3. The second respondent’s
housing policy to the effect that it only provides temporary
emergency accommodation to those evicted
from unsafe buildings by the
City itself or at its instance, in terms of the National Building
Regulations and Building Standards
Act 103 of 1977 is declared
unconstitutional to the extent that it excludes the occupiers from
consideration for such accommodation;
4. The second respondent shall provide
those occupiers whose names appear in the document entitled “Survey
of Occupiers of
7 Saratoga Avenue, Johannesburg” filed on 30
April 2008, and those occupying through them, with temporary
emergency accommodation
as decant in a location as near as feasibly
possible to the area where the property is situated, provided that
they are still resident
at the property and have not voluntarily
vacated it;
5. The second respondent is ordered to
pay the applicant’s costs and the costs of the first
respondent, including the costs
of two counsel.’
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA and PLASKET AJA (Tshiqi,
Theron JJA and Petse AJA concurring)
[1] Courts are
increasingly being called upon to adjudicate disputes involving
homeless persons, owners of land or buildings and
local authorities.
It was firmly established more than 15 years ago that the
socio-economic rights enumerated in our Constitution
are
justiciable.
1
The adjudication of
the right of access to adequate housing more often than not presents
intractable problems. The challenge is
to forge a coherent
jurisprudence.
[2] The right of
access to adequate housing cannot be seen in isolation. It has to be
seen in the light of its close relationship
with other socio-economic
rights, all read together in the setting of the Constitution as a
whole.
2
It is irrefutable
that the State is obliged to take positive action to meet the needs
of those living in extreme conditions of poverty,
homelessness or
intolerably inadequate housing. What is in dispute in the present
case, as is frequently the case in disputes concerning
housing, is
the extent of the State’s obligation in this regard. This
usually telescopes into an enquiry concerning the State’s

resources to meet its constitutional obligations. That issue, amongst
others, has come sharply into focus in this case. As stated
in
Government
of the Republic of South Africa & others v Grootboom &
others
,
3
the precise form of
the State’s obligation to provide housing depends on the
context within which the right is asserted by
an aggrieved citizen.
4
Orders issued by the court below
[3] On 4 February 2010 the South
Gauteng High Court (Spilg J), ordered the eviction of the second
respondents, the occupiers of
buildings situated at Saratoga Avenue
in Berea in Johannesburg (the occupiers), by no later than 31 March
2010. In addition, the
court ordered the appellant, the City of
Johannesburg Metropolitan Municipality (the City), to pay the first
respondent, Blue Moonlight
Properties 39 (Pty) Ltd (Blue Moonlight),
the company that owns the buildings occupied by the occupiers, an
amount equivalent to
the fair and reasonable monthly rental of the
premises from 1 July 2009 until 31 March 2010. The court
directed that the amount
either be agreed or determined by a sworn
valuator appointed by the President of the South African Council for
Property Valuers
Profession. We shall for convenience refer to the
buildings as the property.
[4] Furthermore, the court declared
the application of part of the City’s housing policy
unconstitutional. In terms of its
housing policy, the City provides
emergency shelter to persons evicted by it from unsafe or ‘bad’
buildings owned by
private landowners but not to persons evicted by
private landlords for other reasons. Spilg J held, erroneously, that
the City’s
housing policy discriminated unfairly because
persons evicted from state-owned properties were provided with
temporary shelter
but persons, such as the occupiers in this case,
evicted by private landowners from their properties were not. In fact
the City’s
policy is that only where it acts in terms of s
12(6) of the National Building Regulations and Building Standards Act
103 of 1977
to evict persons from unsafe buildings, whether
privately-owned or state-owned, will temporary accommodation be
afforded.
[5] The court below went further and
issued a structural interdict in terms of which the City was ordered
to remedy the defect in
its housing policy and to report to the court
on what steps it had taken to do so and what steps it intended to
take in the future.
The City was required to deliver the report by
12 March 2010. It was also ordered to report on the details of
all state-owned
office buildings that are unoccupied and to report on
when the buildings might be occupied.
[6] Spilg J did not stop there. He
went on and made the following orders against the City:
‘
6.
a. the Second Respondent shall provide each of the occupiers who are
entitled to claim as the First Respondent with at least
temporary
accommodation as decant in a location as near as feasibly possible to
the area where the property is situated and if
rental is expected
then, unless there is agreement with the individual occupier or
household head (as the case may be), such rental
may only be imposed
pursuant to a court order, which application may be dealt with at the
same hearing to consider the report referred
to in paragraph 5 above;
b. ALTERNATIVELY and
until such time as such accommodation is provided the Second
Respondent shall pay per month in advance, on
the 25
th
of each month preceding the due date of rental and
commencing on the 25 March, to each occupier or household head (as
the case may
be) entitled to claim as the First Respondent the amount
of R850 per month until the final determination of the relief
referred
to in paragraph 5(e) above that might be sought;
PROVIDED THAT:
i. The amount payable in
the first month to each occupier or household head shall include an
additional sum of R850 should a deposit
be required from a landlord,
which shall be refunded in full to the Second Respondent upon expiry
of the lease or upon accommodation
being provided as aforesaid by the
Second Respondent.
ii. Where a monthly
amount is paid to one of the First Respondents in lieu of
accommodation as provided for in paragraph 6(b) then
such amount will
be reviewed by the parties every six months without prejudice to any
party’s right to approach a court to
increase or decrease the
amount;
7. For the purposes of
paragraphs 5 and 6 the persons entitled to claim as the First
Respondent are those whose names appear in
the Survey of Occupiers of
7 Saratoga Avenue, Johannesburg under filing notice of 30 April 2008
at pages 784 to 790 of the record
provided they are still resident at
the property and have not voluntarily vacated.’
[7] The order set out in the preceding
paragraph in terms of which the City was required to pay a stipend of
sorts is, to say the
least, somewhat unusual. Finally, the City was
ordered to pay Blue Moonlight’s costs as well as the costs of
the occupiers,
including the costs of two counsel.
[8] Lest the impression be created
that the occupied buildings were of the kind usually let for
residential use it is necessary
to have regard to the description
provided by Blue Moonlight:
‘
The
property comprises old commercial premises with a factory building, a
number of garages and a double-storey office space. The
double storey
office space and the garages are occupied for residential purposes as
are two or three shacks which have been erected
in the factory space.
There are illegal electricity connections in the factory space, to
the extent that the electricity box therein
glows red hot. Although
water was previously disconnected, it has been illegally
reconnected.’
The facts
[9] It is necessary to describe the
history of the occupation and to set out the events leading to the
orders being granted. It
appears that a long time before Blue
Moonlight’s involvement a company known as Kernel Carpets
operated from the property.
One of the occupiers, Mr David Goge, has
lived on the property since 1976, when he took up employment with
Kernel Carpets. Many
of the occupiers were employed by Kernel Carpets
and the period of their occupation of the property varies. Kernel
Carpets ceased
trading in 1999.
[10] After Kernel Carpets departed the
scene the occupiers continued paying rent to a caretaker who
ostensibly collected it on behalf
of the owner. A property letting
firm started collecting rentals during 2000. The property and living
conditions started to deteriorate.
This led to a complaint being laid
by the occupiers with a housing tribunal. Nothing came of the
complaint.
[11] During 2002 another management
company began collecting rent from the occupiers. That company was
supplanted by two individuals
who collected rent from the occupiers.
A complaint concerning their authority to collect rentals was
referred to a housing tribunal
without any result. Living conditions
got worse and maintenance of the buildings was non-existent. In 2004
Blue Moonlight purchased
the building. The occupiers alleged that in
2005 an individual named Eddie, purporting to speak on behalf of Blue
Moonlight, engaged
them and promised that the building would be
renovated. According to the occupiers, someone called Nkomo started
collecting rent,
ostensibly on behalf of Blue Moonlight. The
occupiers stated that they had paid rentals into two bank accounts.
Blue Moonlight’s
response to these allegations is that they had
never received rentals from any of the occupiers and they put the
occupiers to the
proof of the aforesaid assertions.
[12] It is clear that a stand-off
developed between Blue Moonlight and the occupiers. There are
disputes concerning the termination
of the water supply to the
building during certain periods and about whether it was safe for
Blue Moonlight’s representatives
to enter the premises it
owned. For present purposes it is not necessary to explore this any
further.
[13] On 28 June 2005 Blue Moonlight
posted a notice to vacate at the buildings. The occupiers were called
upon to vacate the property
by 21 July 2005. The notice purported to
cancel any lease agreements that may have been in existence.
[14] On 12 October 2005 the City
served a notice on Blue Moonlight in terms of the
Fire Brigade
Services Act 99 of 1987
calling upon it to do the following:
‘
Remove
illegal combustible shacks
Provide fire fighting
equipment
Remove unsafe electrical
connections which are illegal
Remove combustible
partitions
Submit plans for change
of occupancy
Provide adequate
escapes.’
[15] On 11 November 2005 the City’s
environmental health practitioner sent the following notice to Blue
Moonlight in relation
to the building:
‘
TAKE
NOTICE that the City Council of Johannesburg is satisfied that the
above premises, where the business of an Accommodation Establishment

is conducted, do not comply with the abovementioned By-Laws of the
City of Johannesburg.
In order to make the
premises comply with the said By-Laws, you are hereby required to do
the work or things herein specified forthwith
namely:
1. Take effective
measures to prevent the harbouring or breeding and for the
destruction of flies, cockroaches and other insects,
rodents and
other vermin.
2. Provide and maintain
artificial lighting at every entrance, passage and staircase, of
which persons have the use in common. The
level of illuminance of
such lighting shall not be less than 160 LUX at any point or in such
entrance, passage or staircase.
3. Every such entrance,
passage or staircase shall be kept in a clean state and in good
repair.
4. Eliminate the cause of
dampness in the wall(s) / ceiling(s) of the premises and repaint with
a light coloured washable paint.
5. Reglaze all broken
windowpanes.
6. Provide an adequate
and constant supply of hot and cold running water to every bath, wash
hand basin, shower and wash up sink.
7. Provide an adequate
and constant supply of cold running water to the cistern(s),
urinal(s).
8. Repair / replace the
defective cistern(s).
9. Replace the broken /
missing toilet seat(s) and cover(s).
10. Replace the broken /
leaking water supply pipe(s).
11. Replace the broken /
leaking soil pipe(s) / waste pipe(s).
12. Remove the
accumulation(s) of domestic refuse; builder’s rubble from the
courtyard area.
13. Repair / replace all
broken suspended wooden floors.
14. Repair / replace all
broken wooden doors throughout the premises.
15. Ensure adequate
ventilation throughout the premises by installing windows where there
are no windows.
16. Provide ablution
facilities for use by separate sexes.
17. Take effective
measures to prevent wastewater / sewerage from running down into the
street.
18. Maintain the premises
in a clean and sanitary condition and in good repair at all times.’
[16] This led to Blue Moonlight
posting a further notice to the occupiers to vacate on 6 January
2006. This was followed by
an application to court for substituted
service. The application was subsequently served and was opposed.
When the main application
was brought in May 2006 the buildings were
occupied by 62 adults and nine children. One of the children was 12
years old at the
time and is disabled. Two of the occupiers are
pensioners. Ten of the households are headed by women. All of the
occupiers have
lived on the property for more than six months. The
majority have lived there for more than two years. The occupiers are
all desperately
poor and most of them have no formal employment. Many
have no income at all. The average household income at the time the
application
was brought was R790 per month.
[17] In opposing the application for
their eviction the occupiers stated that if evicted they would be
rendered homeless and in
the short term would have no shelter at all.
In the medium term they were unaware of alternative accommodation
which any of them
could afford. They contended that the City was
obliged to take reasonable measures to ensure the progressive
realisation of their
constitutional right of access to adequate
housing and that this included an obligation to provide shelter
should they be rendered
homeless as a result of their eviction.
Importantly, they accepted that they were unlawful occupiers and
contended that for that
very reason they were entitled to assistance
from the City.
[18] This led to an application by the
occupiers for the City to be joined as a respondent. Furthermore,
they sought an order declaring
that the City had a constitutional
obligation to make temporary emergency shelter available to them on
the basis that in the event
of their eviction they would have no
alternative accommodation available and that they would be in a
crisis or intolerable situation.
[19] The City was
duly joined as a respondent and entered the fray. Numerous delays
occurred in the prosecution of the case due,
amongst other reasons,
to a pending decision in the Constitutional Court involving the City
and dealing with the City’s obligations
to occupiers of
privately owned buildings whom the City had applied to evict on the
basis that the buildings they had occupied
were unsafe and unhealthy.
The case in question is
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg & others
.
5
[20] Before us, the City submitted
that the court below had not properly taken into account that there
had been a full judicial
process by Blue Moonlight, in compliance
with the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of
1998 (PIE) and that the position of the occupiers
was not comparable to persons evicted due to fire, flood or unsafe
buildings.
Thus, it was argued, the City was not obliged to make
emergency provision for them. Put simply, the City adopted the
position that
it bore no constitutional obligation to provide shelter
when an eviction is prompted by a private landlord asserting its
superior
right to property against occupiers. The City pointed out
that, in any event, it has limited housing stock to deal with life
threatening
emergencies.
[21] The City contended that its
housing policy that prioritises life threatening situations was not
random, arbitrary or discriminatory
but was carefully developed,
within its budgetary constraints, giving priority to the most
pressing demands. The City was adamant
that this policy was in line
with the policy of the national government in terms of a national
legislative framework and that it
was unable to make policy that does
not conform to that policy and framework. It was emphatic that the
duty to approve and fund
emergency relief in terms of prevailing
legislation rests on the provincial government through its housing
department. The City
was aggrieved that the court below had refused
its application to join the provincial government, which the City had
argued was
a necessary party to the proceedings. The City argued that
the occupiers were seeking to obtain an unfair advantage over others

who were in the queue for State subsidised housing. In this regard it
pointed to the sequence of steps in its housing policy directed
at
the
progressive
realisation of housing rights, namely, from
emergency housing to temporary accommodation and then finally to
permanent accommodation.
[22] The City was adamant in its
submission that it had no original power to initiate housing schemes
or provide accommodation on
its own. It contended that it could not
use ratepayer contributions or any of its own income to that end. The
corollary is that
it had no obligation to house persons other than in
terms of national housing policy and only to the extent that it was
funded
by national or provincial government. The contention that the
City was precluded from using ratepayer contributions to meet housing

needs was mentioned for the first time in argument before us. It was
submitted that if any of the housing schemes referred to by
the City
in its affidavit had in fact used ratepayer contributions the City
might have acted
ulta vires
. In a report it had filed pursuant
to an order by the high court to do so, it stated, however, that
while it was not obliged to
do so, it focused on the ‘provision
of shelter to occupants of dangerous buildings, who qualify as being
desperately poor
and who find themselves in a true crisis situation’
and that this assistance was funded ‘from its own resources and

within its financial constraints’.
[23] The City was particularly
aggrieved at the ‘constitutional damages’ that the court
below appeared to have granted
against it. It labelled the order
imposing direct financial obligations on it by payment to the
landlord, and the provision of
a stipend of sorts to the occupiers,
as extraordinary and unwarranted.
[24] Blue Moonlight, on the other
hand, contended that its rights to the property owned by it could not
indefinitely be thwarted
by the occupants and that it should not be
obliged to carry the burden of continuing to house persons who were
in unlawful occupation,
particularly since it received no income and
was under threat from the City about meeting safety and health
regulations. It was
submitted that the occupiers stood in the path of
its right to develop the property in question. Significantly, before
us, Blue
Moonlight refrained from asserting any entitlement to the
monetary orders granted in its favour by the court below. It
expressly
abandoned any reliance on those orders and limited itself
to contending that the eviction order by the court below was
justified.
[25] In order to begin to appreciate
the issues raised in this appeal it is necessary to start with the
constitutional and legislative
framework against which they fall to
be decided.
The legal framework
[26] In order to determine if the City
owes the occupiers any obligations concerning their accommodation on
eviction from the property
and, if so, the nature of those
obligations, it is necessary to start with s 26 of the Constitution.
It provides:
'(1) Everyone has the
right to have access to adequate housing.
(2) The state must take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of this right.
(3) No one may be evicted
from their home, or have their home demolished, without an order of
court made after considering all the
relevant circumstances. No
legislation may permit arbitrary evictions.'
[27] The Constitutional Court held, in
Government of the Republic of South
Africa &
others v Grootboom & others
6
that subsecs (1)
and (2) of s 26, being related, need to be read together: the first
defines the scope of the right,
7
while the second
'speaks to the positive obligation imposed upon the State'.
8
The court proceeded
to say:
9
'It requires the State to
devise a comprehensive and workable plan to meet its obligations in
terms of the subsection.
However subsec (2) also makes it clear that the obligation imposed
upon the State is not an
absolute or unqualified one. The extent of the State's obligation is
defined by three key elements that
are considered separately: (a) the
obligation to "take reasonable legislative and other measures";
(b) "to achieve
the progressive realisation" of the right;
and (c) "within available resources".'
[28] In order to give effect to the
fundamental right of access to adequate housing, the state has
developed a legislative and policy
framework. In its preamble, the
Housing Act 107 of 1997
recognises, in express terms, that it forms
part of the legislative measures required to give effect to
s 26.
Its
long title states that its purpose is:
'To
provide for the facilitation of a sustainable housing development
process; for this purpose to lay down general principles applicable

to housing development
in
all spheres of government
,
to define the functions of national, provincial and local governments
in respect of housing development and to provide for the

establishment of a South African Housing Development Board, the
continued existence of provincial boards under the name of provincial

housing development boards and the financing of national housing
programmes; to repeal certain laws; and to provide for matters

connected therewith.' (Our emphasis.)
[29] The Act deals
specifically with the functions of the national, provincial and local
spheres of government in respect of housing.
The national sphere of
government has the function, in essence, of establishing and
facilitating a 'sustainable national housing
development process'
10
and for that
purpose the Minister is required,
inter
alia
,
to determine national policy and set national norms and standards,
11
set national
housing delivery goals and facilitate the setting of provincial and
local government housing delivery goals
12
and monitor
performance, in all three spheres of government, against 'delivery
goals and budgetary goals'.
13
In order to perform
the functions allocated to him or her the Minister is,
inter
alia
,
vested with the power to 'allocate funds for national housing
programmes to provincial governments, including funds for national

housing programmes administered by municipalities in terms of section
10'.
14
In terms of s 3(7),
all provincial governments and municipalities are obliged to furnish
any 'reports, returns and other information'
that the Minister may
require. Finally, the Minister is required to publish a National
Housing Code
15
which must contain
national housing policy and may contain administrative or procedural
guidelines concerning the ‘effective
implementation and
application of national housing policy’ and 'any other matter
that is reasonably incidental to national
housing policy'.
16
[30] Section 7 of
the Act defines the role of provincial government. Section 7(1)
provides that every provincial government must,
after consultation
with organised local government, 'do everything in its power to
promote and facilitate the provision of adequate
housing in its
province within the framework of national housing policy'. Section
7(2) spells out what this obligation (which is
to be undertaken by
the respective MEC's for Housing) entails. It includes the
determination of provincial housing policy,
17
the promotion of
the adoption of provincial legislation to ‘ensure effective
housing delivery';
18
the taking of 'all
reasonable and necessary steps to support and strengthen the
capacities of municipalities, to effectively exercise
their powers
and perform their duties in respect of housing development',
19
the coordination of
housing development provincially,
20
and the taking of
'all reasonable and necessary steps to support municipalities in the
exercise of their powers and the performance
of their duties in
respect of housing development'.
21
[31] The functions of local government
in respect of housing are set out in s 9. Section 9(1) provides:
'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) . . . ;
(f) initiate, plan,
co-ordinate, facilitate, promote and enable appropriate housing
development in its area of jurisdiction;
(g) . . . ;
(h) . . . .'
[32] These
functions must be viewed in the wider context of what are described
as the 'rights and duties’ of municipalities
in
s 4
of the
Local Government: Municipal Systems Act 32 of 2000
.
22
Section 4(1)
empowers municipal councils to govern, on their own initiative, 'the
local government affairs of the local community', to exercise
their
executive and legislative authority without 'improper interference'
and to finance their 'affairs' by charging fees for services
and
imposing rates and other forms of taxation.
[33]
Section 4(2)
prescribes a set of duties that municipalities are required to comply
with, subject to ‘financial and administrative capacity
and
having regard to practical considerations'. For present purposes,
only one of these duties needs be mentioned. It is the duty
to
'contribute, together with other organs of state, to the progressive
realisation of the fundamental rights contained in sections
24, 25,
26, 27 and 29 of the Constitution'.
23
Section 8(2)
provides that a City may do ‘anything reasonably necessary for,
or incidental to, the effective performance of
its functions and the
exercise of its powers'.
[34] Section 11(3)
vests legislative or executive authority in municipalities to perform
a number of functions, including 'developing
and adopting policies,
plans, strategies and programmes including setting targets for
delivery';
24
the 'promoting and
undertaking of delivery';
25
the implementation
of 'applicable national and provincial legislation' as well as
by-laws;
26
the preparation,
approval and implementation of budgets;
27
the imposition and
recovery of rates, taxes, levies, duties, service fees and surcharges
on fees . . .';
28
and the doing of
'anything else within its legislative and executive competence'.
29
Finally, s 23(1)
places an obligation on municipalities to undertake
'developmentally-oriented planning' aimed at ensuring that
they
achieve their constitutional objects, give effect to their
constitutionally enshrined developmental duties and 'contribute
to
the progressive realization of the fundamental rights contained in
sections 24, 25, 26, 27 and 29 of the Constitution'.
30
[35] The third part
of the legislative scheme is the National Housing Code contemplated
by
s 4
of the
Housing Act. Chapter
12 of the Code is headed 'Housing
Assistance in Emergency Housing Circumstances'. As its heading
suggests, chapter 12 records policy
in respect of 'assistance to
people who, for reasons beyond their control, find themselves in an
emergency housing situation such
as the fact that their existing
shelter has been destroyed or damaged, their prevailing situation
poses an immediate threat to
their life, health and safety, or they
have been evicted, or, face the threat of imminent eviction'.
31
[36] The process created by chapter 12
is that when a municipality considers that a housing emergency that
falls within the terms
of chapter 12 has arisen within its area of
jurisdiction, it is required to apply to the provincial government
for 'project approval'
for its plan to deal with the emergency. If
the provincial government approves the project, it provides funding
to the municipality
to enable it provide temporary shelter for the
victims of the emergency. In this case, the City belatedly applied
for funding to
provide temporary shelter for the occupiers and others
who were similarly situated but the provincial government, pleading a
lack
of funds, refused to assist.
[37] The final part of the legislative
scheme is the City's own housing programme. In dealing with the
provision of alternative
accommodation in the inner city, the City
draws a distinction between the following forms of emergency
accommodation: (a) accommodation
kept in reserve for possible
disasters; (b) temporary accommodation as decant, which is
accommodation 'custom built to receive
people who need to be removed
from informal settlements or bad buildings that are unsafe to
occupy’; (c) transitional accommodation,
which is similar in
nature to temporary accommodation but 'refers to accommodation
established under the transitional housing programme
of government';
and (d) shelters, which are ‘social development interventions'
in terms of which private bodies such as churches
provide shelter,
with limited support from the City, for vulnerable groups of people
such as street children.
[38] As far as the provision of any
form of accommodation to people in the position of the occupiers is
concerned, the City's policy
has been set out as follows in its first
report in terms of
s 4(2)
of PIE:
'The City itself has a
programme that seeks to address the dangerous conditions presented by
bad buildings in the Inner City and
elsewhere. These buildings
present a danger to the lives of those occupying them and the
buildings surrounding them. There are
hundreds of problem buildings,
and safety concerns make it inevitable that the City will have to
evict the occupiers of many of
these bad buildings. The City is in
fact obliged to do so in terms of the National Building Regulations
and Building Standards
Act. The City will probably have to
accommodate many of the occupants of these buildings for various
periods of time. Because these
occupants will be evicted for safety
reasons, the City will obviously have to utilise any accommodation
available to it to accommodate
those evicted from bad buildings. The
temporary accommodation as decant is just beginning to come on stream
at the time this Report
is made. Because of the scale of the task
facing the City, the City cannot for the time being make any of its
emergency shelters
available for any persons evicted from private
property by way of PIE.’
[39] In
Grootboom
,
the Constitutional Court considered it to be essential to a
reasonable housing programme that responsibilities be allocated not

only to the national and provincial spheres of government but also to
the local sphere of government, principally because of its
important
role in ensuring that ‘services are provided in a sustainable
manner to the communities they govern’.
32
The court continued
to say:
33
‘
Thus,
a co-ordinated State housing program must be a comprehensive one
determined by all three spheres of government in consultation
with
each other as contemplated by chap 3 of the Constitution. It may also
require framework legislation at national level, a matter
we need not
consider further in this case as there is national framework
legislation in place. Each sphere of government must accept

responsibility for the implementation of particular parts of the
program but the national sphere of government must assume
responsibility
for ensuring that laws, policies, programs and
strategies are adequate to meet the State's s 26 obligations. In
particular, the
national framework, if there is one, must be designed
so that these obligations can be met. It should be emphasised that
national
government bears an important responsibility in relation to
the allocation of national revenue to the provinces and local
government
on an equitable basis. Furthermore, national and
provincial government must ensure that executive obligations imposed
by the housing
legislation are met.’
[40] The
legislative framework that has been described above appears in large
measure to be designed to give effect to the obligations
referred to
in
Grootboom
in a co-ordinated
manner. It is clear from that framework that each sphere of
government has obligations imposed on it in respect
of the right of
access to adequate housing; that they are required to work together ─
as one would expect in a system predicated
on principles of
co-operative government
34
─
to ‘achieve
the progressive realisation of this right’; and that each
sphere is an independent bearer of the obligation.
From this, and the
legislative scheme as a whole, we conclude that the City’s
obligations to the occupiers is not derivative,
as was argued on its
behalf, but direct and that the City has the authority to fund its
own housing programme and administer its
own housing policy from its
own resources as well as from the national and provincial spheres of
government, within the parameters
of the national housing policy.
Conclusions
[41] The City appeals against the
order in terms of which it was required to accommodate the occupiers
and the associated monetary
orders. It also appeals against the order
declaring its housing policy to be unconstitutional. The City is also
aggrieved that
the court below refused its application to join the
provincial government as a party to the proceedings.
[42] We consider it convenient to deal
first with the contention on behalf of the City set out in para 22
above, namely, that it
has no power to act other than in accordance
with national legislation and policy and only in circumstances where
it receives funding
from national or provincial government to that
end. The City is obviously constrained to act within the applicable
legislative
and policy framework. It is clear, however, from what is
set out in paras 32-38 above, that the City is not only empowered to
act
in circumstances such as those under consideration, but is
obliged to.
[43] We begin with
the Constitution. Section 26(2), which is set out in para 26 above,
obliges the State in all its guises to take
reasonable legislative
and other measures ‘within its available resources’, to
achieve the progressive realisation
of the right of access to
adequate housing. Whatever the precise parameters of the term ‘the
State’ may be, there can
be no doubt that for purposes of the
Bill of Rights and s 26 of the Constitution, in particular, it
includes the local sphere of
government.
35
Furthermore, the
Constitutional Court has made it clear, in
Olivia
Road
,
that the City owes those who live within its precincts certain
obligations. The court stated:
36
‘
The
city has constitutional obligations towards the occupants of
Johannesburg. It must provide services to communities in a
sustainable
manner, promote social and economic development, and
encourage the involvement of communities and community organisations
in matters
of local government. It also has the obligation to fulfil
the objectives mentioned in the preamble to the Constitution to
“[i]mprove
the quality of life of all citizens and free the
potential of each person”. Most importantly it must respect,
protect, promote
and fulfil the rights in the Bill of Rights.’
Later in the
judgment the court stated, in the context of the interplay between
ensuring safe buildings and preventing homelessness,
that ‘the
city has a duty to ensure safe and healthy buildings on the one hand
and to take reasonable measures within its
available resources to
make the right of access to adequate housing more accessible as time
progresses on the other’.
37
[44] In
Port
Elizabeth Municipality v Various Occupiers
38
the Constitutional
Court made the point that, generally speaking, courts should be
reluctant to grant eviction orders against persons
who are
‘relatively settled’ in the absence of reasonable
alternative accommodation for them ‘even if only as
an interim
measure pending ultimate access to housing in the formal housing
programme’. The court proceeded to state:
39
‘
The
availability of suitable alternative accommodation will vary from
municipality to municipality and be affected by the number
of people
facing eviction in each case. The problem will always be to find
something suitable for the unlawful occupiers without
prejudicing the
claims of lawful occupiers and those in line for formal housing. In
this respect, it is important that the actual
situation of the
persons concerned be taken account of. It is not enough to have a
programme that works in theory. The Constitution
requires that
everyone must be treated with care and concern; if the measures,
though statistically successful, fail to respond
to the needs of
those most desperate, they may not pass the test. In a society
founded on human dignity, equality and freedom,
it cannot be
presupposed that the greatest good for the many can be achieved at
the cost of intolerable hardship for the few, particularly
if, by a
reasonable application of judicial and administrative statecraft,
such human distress could be avoided.’
[45] The provisions
of the
Housing Act, referred
to earlier in this judgment, envisages
an interactive approach between local and other spheres of government
to facilitate the
provision of housing. In
Port
Elizabeth Municipality
the
Constitutional Court said that ‘municipalities have a major
function to perform with regard to the fulfilment of the rights
of
all to have access to adequate housing’. It went on to say that
municipalities have a ‘duty systematically to improve
access to
housing to all within their area’.
40
[46]
Section 9
of
the
Housing Act, set
out in para 31 above, obliges every
municipality, within the framework of national and provincial housing
legislation and policy,
to ensure that inhabitants within its area of
jurisdiction have access to adequate housing on a progressive basis
and to provide
conditions conducive to the health and safety of such
persons. In terms of
s 9(1)(f)
every municipality must initiate,
plan, coordinate, facilitate, promote and enable appropriate housing
development in its area
of jurisdiction.
Section 4(2)
of the
Local Government: Municipal Systems Act, referred
to in para 33
above, imposes a duty on municipalities to contribute ‘together
with other organs of State’,
inter
alia
,
to the progressive realisation of the right of access to adequate
housing.
Section 8(2)
of the same Act empowers municipalities to take
such steps as are reasonably necessary for or incidental to the
effective performance
of their functions and powers.
[47] It is clear from the City’s
own affidavits and reports that it has an extensive and impressive
housing programme, signifying
that it is indeed taking steps to
comply with its constitutional and statutory obligations. The
question before us is whether it
is doing so in respect of the
occupiers.
[48] In our view, for all the stated
reasons, there is no merit in the submission that the City is not
empowered or obliged to act
other than as an agent of national or
provincial government with funding from those sources. As we have
shown, it uses its own
resources to fund the housing needs of certain
persons who find themselves in dire circumstances of homelessness. It
would appear
that the City has done so without any concern, before
the issue was raised in argument before us, that it may have been
acting
beyond its powers. We conclude that the City is, indeed,
empowered to provide for the progressive realisation of the right of
access
to adequate housing within its area of jurisdiction and to
utilise its own resources to do so, if needs be, as long as its
actions
in this regard are not inconsistent with the
Housing Act or
the National Housing Code.
[49] The next question that falls to
be addressed is whether the City is able, within its available
resources, to meet the needs
of the occupiers. Whilst the City has
explained that operating within a budget surplus, which it
acknowledges, for at least one
financial year, does not mean that it
can employ such monies at will, it does not anywhere state that it is
unable to re-allocate
funds or that it is unable financially to meet
the temporary housing needs of the occupiers. All that is being
sought at the moment,
by the occupiers, is temporary accommodation as
an entrée to the progressive scheme which envisages permanent
accommodation
in the future in the sequence referred to earlier in
this judgment. While we appreciate that the City faces immense
challenges
as a result of the influx of persons into Johannesburg,
the papers do not attempt to grapple with, and inform us, as to what
is
possible.
[50] In dealing with its financial
constraints the City speaks in the vaguest terms about the
affordability of meeting demands for
housing. Much of the affidavits
deposed to on behalf of the City is devoted to the cost of providing
permanent accommodation. It
states that for the 2008/2009 financial
year its projections indicate a movement towards a budget deficit. It
does not say in terms
that it has no funds to provide temporary
emergency housing as decant for the occupiers.
[51] The City has for a long time been
faced with emergency housing situations of all kinds. It appears to
have adopted an entrenched
position that excludes persons such as the
occupiers from assistance. It is abundantly clear that but for this
approach it could
have adopted a long-term strategy, which ought to
have included financial planning, to deal with such exigencies. It
did not do
so and that is what caused it to apply belatedly to the
provincial government for funding to deal with the occupiers’
needs.
The City’s application to provincial government for
last-minute funding was misdirected as it must have been clear to the

City that the former’s budgetary and financial resources had
already been committed. The written response by the provincial

government to that effect could hardly have been surprising.
[52] To a great extent the City is to
blame for its present unpreparedness to deal with the plight of the
occupiers. It knew of
their situation from the time that the
litigation started, through its many delays extending over three
financial years. It did
not, in all that time, make any provision,
financial or otherwise, to deal with a potentially adverse court
order or take steps
to re-allocate resources or re-work priorities so
that the occupiers could be accommodated. As a result, the City has,
through
its general reports, vague responses to its budget surplus
and denial of any obligations towards the occupiers, failed to make
out a case that it does not have the resources to provide temporary
accommodation for the occupiers if they are to be evicted.
[53] The use of ratepayer
contributions or any of the City’s own funds to prevent the
City being exposed to long standing
residents, who in their humble
way contributed to the economic life-blood of Johannesburg, squatting
in public places accompanied
by the attendant environmental impact
can hardly be objectionable. The City’s recent disavowal of its
power and entitlement
to engage in accommodation projects on its own,
without funding from national or provincial government, is
contradicted by its
own accommodation report in which it indicated
that of its capital budget of R170 million for housing for the
2007/2008 financial
year for R55 million is derived from the City’s
own funds. As indicated above, the City has an indispensible role to
play
in the progressive realisation of the right of access to
adequate housing. It has a constitutional obligation in the
circumstances
of this case to provide temporary emergency housing to
the occupiers. We were not referred by counsel on behalf of the City
to
any statutory prohibition against the use by the City of its own
funds to provide temporary emergency accommodation.
[54] Proportionality is a
constitutional watchword. In dealing with the interrelated issues of
the limits of judicial intrusion
and the reality of available
resources, balanced against the assertion of socio-economic rights, a
court’s role can rightly
be described as ‘the art of the
possible’.
[55] It is necessary at this stage to
deal with the submission on behalf of the City, that if it were
compelled to accommodate the
occupiers, it would be enabling them to
jump the queue of persons waiting their turn in the various stages
that lead ultimately
to permanent accommodation. We fail to see how
they would be jumping the queue. They would be the last in the line
and would have
to wait their turn like everyone else. Counsel for the
occupiers accepted, correctly, that this was the position and that,
at this
stage, they were entitled to nothing more than temporary
emergency accommodation.
[56] The court below found that the
City’s housing policy was unfairly discriminatory and hence
unconstitutional because it
drew an illegitimate distinction between
persons evicted from state-owned property and those evicted from
privately-owned property,
rendering assistance to the former category
only. The court below erred in two respects.
[57] First, it categorised the
differentiation in treatment incorrectly. It did not involve a
difference in treatment between those
evicted from state-owned
properties and those evicted from privately-owned properties. Rather
the difference was one between persons
evicted from privately-owned
unsafe buildings by the City itself, acting in terms of s 12(6)
of the National Building Regulations
and Building Standards Act, and
those evicted from privately-owned buildings (which are not
necessarily, but could be, dangerous
buildings) by private
landowners.
[58] Secondly, the
court below erred in categorising the differentiation in treatment as
unfair discrimination as contemplated by
s 9(3) of the Constitution.
In
Harksen
v Lane NO & others
41
the Constitutional
Court held that the right to be protected from unfair discrimination
sought to ‘prevent the unequal treatment
of people based on
such criteria which may, amongst other things, result in the
construction of patterns of disadvantage such as
has occurred only
too visibly in our history’
42
and that
discrimination on unspecified grounds (ie on grounds other than the
grounds listed in s 8(2) of the interim Constitution
and s 9(3) of
the final Constitution) is established if a differentiation of
treatment ‘is based on attributes or characteristics
which have
the potential to impair the fundamental dignity of persons as human
beings, or to affect them adversely in a comparably
serious manner’.
43
That does not apply
in respect of the differentiation in treatment in this matter: the
constitutionality of the differentiation
must be considered against s
9(1) which provides that ‘[e]veryone is equal before the law
and has the right to equal protection
and benefit of the law’.
[59] We turn now to a consideration of
the City’s policy against s 9(1) of the Constitution. The
policy is inflexible because
it does not allow at all for the
provision of temporary accommodation for persons evicted from
privately-owned land, even if they
are desperately poor and find
themselves in a crisis, while it provides temporary accommodation to
those whom it evicts from privately-owned
dangerous buildings, if
they are desperately poor and find themselves in a crisis. It
excludes one category of evictees from consideration
completely and
includes another category completely without concerning itself with
any other personal circumstances of those to
be evicted.
[60] The
inflexibility of the policy, which effectively precludes a proper
consideration of the merits of the claims of evictees
to be housed by
the City, is in itself a basis for setting it aside. In the
pre-constitutional era, in dealing with a fixed policy
applied to the
granting of housing permits by a township housing authority, the
court in
Mahlaela
v De Beer NO
,
44
said the following:
‘
[I]f
the permit is refused or the grant of a permit is not considered on
the ground of a fixed policy, there can be no proper exercise
of a
discretion or a performance of a duty and the decision of the
superintendent falls to be set aside on this ground. This is
also
trite.’
[61] The policy is,
as a result of its inflexibility, also irrational and can on that
basis alone be impugned. In
Pharmaceutical
Manufacturers Association of SA & another: In Re Ex Parte
President of the Republic of South Africa & others
,
45
Chaskalson P held:
‘
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.’
In
Grootboom
the Constitutional
Court, in the context of the right of access to adequate housing,
held that ‘the real question in terms
of our Constitution is
whether the measures taken by the State to realise the right afforded
by s 26 are reasonable’.
46
[62] It is,
furthermore, arbitrary and unequal in its operation and effect. The
connection between arbitrariness and inequality
was drawn by
Ackermann J in
S
v Makwanyane & others
47
as follows:
‘
Arbitrariness,
by its very nature, is dissonant with these core concepts of our new
constitutional order. Neither arbitrary action
nor laws or rules
which are inherently arbitrary or must lead to arbitrary application
can, in any real sense, be tested against
the precepts or principles
of the Constitution. Arbitrariness must also inevitably, by its very
nature, lead to the unequal treatment
of persons. Arbitrary action or
decision-making is incapable of providing a rational explanation as
to why similarly placed persons
are treated in a substantially
different way. Without such a rational justifying mechanism, unequal
treatment must follow.'
[63] Arbitrariness
thus offends against equality which is a founding value of our
Constitution. Equal protection under the law is
central to the rule
of law, another founding value of the Constitution.
48
[64] In
Harksen
v Lane NO & others
,
49
the Constitutional
Court set out the method for analysing allegations of unequal
treatment in the following terms:
‘
Where
s 8 [of the interim Constitution] is invoked to attack a legislative
provision or executive conduct on the ground that it
differentiates
between people or categories of people in a manner that amounts to
unequal treatment or unfair discrimination, the
first enquiry must be
directed to the question as to whether the impugned provision does
differentiate between people or categories
of people. If it does so
differentiate, then in order not to fall foul of s 8(1) of the
interim Constitution there must be a rational
connection between the
differentiation in question and the legitimate governmental purpose
it is designed to further or achieve.
If it is justified in that way,
then it does not amount to a breach of s 8(1).’
[65] In the application of its policy
the City effectively ties its own hands and renders itself blind to
the real plight and homelessness
of persons who find themselves in
the circumstances of the occupiers. It precludes itself from
considering the duties placed on
it by the Constitution. As stated
above, by drawing the irrational and arbitrary distinction referred
to, it is effectively putting
potentially vast numbers of persons
beyond State assistance in the face of an obligation to take positive
steps to assist those
who, because of their poverty and because of
circumstances beyond their control, find themselves in dire need.
[66] The
differentiation between persons who have been evicted by the City
from privately-owned dangerous buildings and by private
landowners
bears no rational connection to the City’s legitimate purpose
of providing temporary accommodation to those who
are vulnerable and
most in need. Its policy does not factor in the degree of need of
evictees in either situation because the personal
circumstances and
needs of
all
are irrelevant:
while the unsafe condition of buildings is a sufficient basis for the
City providing accommodation, as long as that
the eviction is at its
instance, the same does not apply when persons are evicted from
unsafe buildings by private landlords even
though the danger in the
latter instance might in some cases be greater. The City’s
policy does not take this into account.
Even though the City’s
notices to Blue Moonlight, referred to in paras 13 and 14 above, were
not in terms of the National
Building Regulations and Buildings
Standards Act, in substance they addressed health and safety
concerns. The distinction drawn
by the City between the occupiers and
those evicted by virtue of a notice in terms of the Act is also
irrational.
[67] Having regard
to the above, a further foundational value is implicated, namely, the
right to dignity entrenched in s 10 of
the Constitution. This section
provides that ‘everyone has inherent dignity and the right to
have their dignity respected
and protected’. The importance of
dignity ─ particularly in the light of our history ─ was
emphasised by O’Regan
J in
S
v Makwanyane & another
50
when she stated
that recognition of the right to dignity ‘is an acknowledgment
of the intrinsic worth of human beings: human
beings are entitled to
be treated as worthy of respect and concern’. And in
Grootboom
,
within the specific context of the right of access to adequate
housing, the Constitutional Court made the point that the
‘Constitution
would be worth infinitely less than its paper if
the reasonableness of State action concerned with housing is
determined without
regard to the fundamental constitutional value of
human dignity’.
51
The inflexible
application of the City’s policy subjects the occupiers to
continued violation of their dignity because its
effect is that they
are rendered homeless on eviction and vulnerable to eviction wherever
they go because they are, on the uncontested
evidence, unable to
afford other accommodation. We conclude, therefore, that to the
extent that the City’s policy treats
the occupiers differently
to those who are evicted from privately-owned unsafe buildings by the
City, it is unconstitutional. (There
is no need to enquire whether it
is nonetheless a reasonable and justifiable infringement of the right
to equality in terms of
s 36(1) of the Constitution because the
City’s policy is not a ‘law of general application’.)
[68] We turn to the
question of non-joinder of the provincial government. Generally
speaking, the provincial government has an important
role to play in
the progressive realisation of the constitutional right of access to
adequate housing. However, in these proceedings
it is not clear to us
that it has any role at all. First, it was called upon at the
eleventh hour by the City to provide funds
to deal with the crisis
situation in which the occupiers (and others) found themselves, a
crisis which it could not on its own
have foreseen or planned for. It
refused to assist because, it said, it lacked the resources in that
financial year, and that decision
is not being challenged in these
proceedings. The provincial government fell out of the picture at
that point. Secondly, no relief
is sought against the provincial
government by either the owner, the occupiers or the City. Thirdly,
the joinder of the provincial
government was sought by the City on
the basis of its own incorrect view that it had no primary obligation
towards the occupiers
to provide accommodation. Last, it appears to
us that there is no impediment to the City’s fulfilment of its
own constitutional
obligation to provide temporary emergency housing,
by placing the occupiers on the lowest rung of their climb towards
ultimate
permanent accommodation, which sequence it should be borne
in mind the City laudably established on its own. Joinder of the
provincial
government would only be necessary if it had a direct and
substantial interest in any order that might be made or if that order

could not be carried into effect without prejudicing the provincial
government.
52
This case, apart
from the eviction order that is sought by Blue Moonlight, concerns
the City’s obligations and the obligations
of no-one else: no
relief is claimed against the provincial, it cannot be said to have a
real and substantial interest in any order
that may be made and any
order that is made can be carried out without any prejudice to the
provincial government. Consequently,
its joinder was not necessary.
[69] It is necessary to deal briefly
with two further aspects of the order made by the court below. We
begin with the structural
interdict which the occupiers persisted in
before us. Counsel for the occupiers conceded that the setting aside
of the unconstitutional
aspect of the policy coupled with an order
that obliged the City to house the occupiers in temporary emergency
accommodation en
route to the ultimate realisation of permanent
accommodation would mean that they had succeeded in their primary
objective. Questioned
by the court about the need for the structural
interdict counsel was unable to persuade us that it was necessary. In
our view,
the structural interdict would serve no purpose and, that
being so, it cannot be said to be relief which is appropriate.
[70] The other
aspect concerns the compensation order ─ the so-called
constitutional damages awarded to the owner. Allied
to this was the
stipend referred to above. The compensation order, an order that is,
to say the least, far-reaching, was ostensibly
modelled on the
decision of this court in
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae); President of
the Republic of South Africa and others v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre,
Amici Curiae)
.
53
In our view, the
peculiar facts of
Modderklip
render it
distinguishable and it certainly is not authority for the proposition
that constitutional damages is always available,
or ordinarily
appropriate, as a remedy whenever a fundamental right has been
breached.
[71] In
Modderklip
Harms
JA found that compensation was the only remedy that was appropriate
in the circumstances in order to remedy the violation
of the owner’s
rights by the State.
54
The Constitutional
Court agreed with this finding.
55
It is, in any event
distinguishable. First, in
Modderklip
the compensation
order was made not, as in this case, as an ancillary to an eviction
order but after an eviction order had been
granted and ignored by the
40 000 unlawful occupiers of Modderklip Boerdery’s land.
Secondly, compensation was ordered because
the State had violated the
fundamental rights of Modderklip Boedery by failing to assist it to
execute the eviction order which,
in view of the large number of
occupiers who had invaded the land, Modderklip Boerdery was unable to
do on its own. There is no
question that, in this case, Blue
Moonlight will be able to execute an eviction order if it has to.
Thirdly, because of the large
number of persons on the land, their
eviction was, for all practical purposes, impossible to achieve and
that left Modderklip Boerdery
without the use and enjoyment of its
land and, as stated above, with compensation as the only viable and
hence appropriate remedy.
Once again, the facts of this case are very
different and there is no suggestion that Blue Moonlight cannot evict
the occupiers
if it has to. Finally, Modderklip Boerdery was the
innocent victim of a land invasion and it took all reasonable steps –
and did so expeditiously – to safeguard its interests. In this
case, Blue Moonlight bought the property in the full knowledge
that
it was occupied by a number of persons. For these reasons we consider
that
Modderklip
is no authority for
the granting of the compensation order in the circumstances of this
case and that compensation cannot be said
to be appropriate relief.
Wisely, Blue Moonlight eschewed any reliance on the compensation
granted to them.
[72] The granting of the stipend to
the occupiers, albeit in the alternative, is in itself extraordinary.
It has no basis in law
that we can discern and, if allowed to stand,
would have had the potential to serve as a precedent for abuse by
unscrupulous landlords
who might see the State as a default source of
rental income. It, like the compensation order, is relief which is
not appropriate.
[73] In arriving at
our conclusions we have been mindful of the doctrine of the
separation of powers and the limits of judicial
intrusion into the
domains of other branches of government. We are, however, compelled
to give effect to the rights being asserted
before us and to the
extent that this may take us into the City’s administrative
system, we are of the view that it is an
intrusion that is mandated
by the Constitution. In
Minister
of Health & others v Treatment Action Campaign & others (No
2)
56
the Constitutional
Court held:
‘
The
primary duty of Courts is to the Constitution and the law, “which
they must apply impartially and without fear, favour
or prejudice”.
The Constitution requires the State to “respect, protect,
promote, and fulfil the rights in the Bill
of Rights”. Where
State policy is challenged as inconsistent with the Constitution,
Courts have to consider whether in formulating
and implementing such
policy the State has given effect to its constitutional obligations.
If it should hold in any given case
that the State has failed to do
so, it is obliged by the Constitution to say so. Insofar as that
constitutes an intrusion into
the domain of the Executive, that is an
intrusion mandated by the Constitution itself.’
[74] It is not in dispute that Blue
Moonlight has complied with the requirements of PIE and that it is
entitled to an eviction order.
All that remains is for us to
determine the timing of the eviction. This is necessary in order to
allow the City to make the necessary
arrangements for the temporary
accommodation of the occupiers and for the occupiers to make their
preparations for moving from
a building that has, for many of them,
been home for many years. Taking all of the circumstances into
account and the suggestions
of the parties, we consider a period of
two months from the date of this judgment to be just and equitable.
[75] For the reasons set out above, a
number of orders issued by the court below fall to be set aside. The
eviction order has to
be amended in accordance with what is set out
in the preceding paragraph. The declaration of invalidity has to be
in line with
our reasoning. Even though the order of the court below
is being changed to a significant degree, the City has nevertheless
failed
in its resistance to the order imposing an obligation on it to
accommodate the occupiers. Consequently, the appeal must fail in

respect of their primary point. The cross-appeal by the occupiers on
the basis that the court below ought to have made the eviction
order
conditional upon the provision of suitable alternative accommodation
to them became academic for the reason set out in para
69 above and
there is no need to make any order in relation thereto. Blue
Moonlight’s cross-appeal for the compensation order
to be
varied was abandoned during the hearing. That cross-appeal therefore
should also fail.
[76] The City applied to have new
evidence admitted on appeal, namely, an updated housing report dated
21 December 2010. The application
was opposed by the occupiers. We
inclined to admit the report and considered it in arriving at our
conclusions.
[77] The following order is made:
1. The application by the appellant to
have new evidence admitted on appeal succeeds and the appellant is to
pay the costs of the
application on the unopposed scale.
2. Save as is reflected in the
substituted order set out hereunder the appeal is dismissed and the
appellant is ordered to pay the
second respondents’ costs,
including the costs of two counsel.
3. No order is made in respect of the
cross-appeal by the second respondent.
4. In respect of the abandoned
cross-appeal by the first respondent, no costs order is made in
relation thereto.
5. The order of the court below is set
aside and substituted as follows:
‘
1. The first
respondent and all persons occupying through them (collectively “the
occupiers”) are evicted from the immovable
property situate at
Saratoga Avenue, Johannesburg and described as Portion 1 of Erf 1308
Berea Township, Registration Division
IR, Gauteng (“the
property”);
2. The first respondent and all
persons occupying through them are ordered to vacate by no later than
1 June 2011, failing which
the Sheriff of the Court is authorised to
carry out the eviction order;
3. The second respondent’s
housing policy to the effect that it only provides temporary
emergency accommodation to those evicted
from unsafe buildings by the
City itself or at its instance, in terms of the National Building
Regulations and Building Standards
Act 103 of 1977 is declared
unconstitutional to the extent that it excludes the occupiers from
consideration for such accommodation;
4. The second respondent shall provide
those occupiers whose names appear in the document entitled “Survey
of Occupiers of
7 Saratoga Avenue, Johannesburg” filed on 30
April 2008, and those occupying through them, with temporary
emergency accommodation
as decant in a location as near as feasibly
possible to the area where the property is situated, provided that
they are still resident
at the property and have not voluntarily
vacated it;
5. The second respondent is ordered to
pay the applicant’s costs and the costs of the first
respondent, including the costs
of two counsel.’
_________________
M S NAVSA
JUDGE OF APPEAL
________________________
C PLASKET
ACTING JUDGE OF APPEAL
APPEARANCES:
For
Appellant: J J Gauntlett SC
J
Both SC
A
W Pullinger
Instructed
by
Moodie
& Robertson Johannesburg
Claude
Reid Bloemfontein
For
1
st
Respondent: M S M Brassey SC
G
A Fourie
Instructed
by
Schindlers
Attorneys
Webbers Bloemfontein
For 2
nd
Respondent: P
Kennedy SC
H Barnes
S Wilson
Instructed
by
The
Wits Law Clinic Braamfontein
McIntyre & Van Der Post
Bloemfontein
1
See
Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC) para 78.
2
Government
of the Republic of South Africa & others v Grootboom &
others
2001 (1) SA 46
(CC) paras 23-24.
3
Government
of the Republic of South Africa & others v Grootboom &
others
2001 (1) SA 46
(CC).
4
Paras
35-37.
5
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg
v City of Johannesburg and others
[2008] ZACC 1
;
2008
(3) SA 208
(CC).
6
Footnote
2.
7
Para
34.
8
Para
38.
9
Para
38.
10
Section
1.
11
Section
3(2)(a).
12
Section
3(2)(b).
13
Section
3(2)(c).
14
Section
3(4)(d).
15
Section
4(2)(a)
16
Section
4(2)(b).
17
Section
7(2(a).
18
Section
792)(b).
19
Section
7(2)(c).
20
Section
7(2)(d).
21
Section
7(2)(e).
22
A
more correct description would be powers and duties.
23
Section
4(2)(j).
24
Section
11(3)(a).
25
Section
11(3)(b).
26
Section
11(3)(e).
27
Section
11(3)(h).
28
Section
11(3)(i).
29
Section
11(3)(n).
30
See
generally
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & others
(Centre on Housing Rights and Evictions and another,
Amici Curiae)
2010 (3) SA 454
(CC) paras 348-351.
31
Introductory
paragraph to chapter 12.
32
Footn
ote
2 para 39.
33
Para
40.
34
Constitution
s 40.
35
See
too, s 40, although in this section, the term ‘government’
is used. Section 40(1) provides: ‘In the Republic,
government
is constituted as national, provincial and local spheres of
government which are distinctive, interdependent and interrelated.’
36
Footnote
4 para 16.
37
Para
44.
38
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) para 28.
39
Para
29.
40
Para
56.
41
Harksen
v Lane NO & others
1998
(1) SA 300 (CC).
42
Para
50.
43
Para
47. See too
National
Coalition for Gay & Lesbian Equality and another v Minister of
Justice & another
1999
(1) SA 6
(CC) paras 16-17.
44
Mahlaela
v De Beer NO
1986 (4) 782 (T) at p 791I.
45
Pharmaceutical
Manufacturers Association of SA & another: In Re Ex Parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) para 85.
46
Para
33.
47
S
v Makwanyane & others
[1995] ZACC 3
;
1995 (3) SA 391
(CC) para 156.
48
Van
der Walt v Metcash Trading Ltd
[2002] ZACC 4
;
2002 (4) SA 317
(CC) para 36.
49
Footnote
39 para 42.
50
Footnote
46 p
ara 328.
51
Footnote
2 para 83.
52
Amalgamated
Engineering Union v Minister of Labour
1949
(3) SA 637
(A). See too
Occupiers
of Erf 101,102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy
Dear Investments (Pty) Ltd and others
2010
(4) BCLR 354
(SCA) paras 11-14.
53
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae); President of
the Republic of South Africa and others v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre,
Amici Curiae)
2004 (6) SA 40
(SCA).
54
Para
43.
55
President
of the Republic of South Africa & another v Modderklip Boerdery
(Pty) Ltd (Agri SA & others, Amici Curiae)
2005 (5) SA 3
(CC)
para 66. Note that Langa ACJ categorised the relief ordered by this
court as being ‘the most appropriate in the circumstances’.

The only other remedy suggested as being appropriate was a
declarator.
56
Minister
of Health & others v Treatment Action Campaign & others (No
2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) para 99.