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[2011] ZASCA 227
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City of Tshwane Metropolitan Municipality v Mamelodi Hostel Residents Association and Others (025/2011) [2011] ZASCA 227 (30 November 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
No precedential significance
Case No: 025/2011
In the matter between:
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
….................................................................................
APPELLANT
and
THE MAMELODI HOSTEL RESIDENTS
ASSOCIATION
…....................................................................
FIRST
RESPONDENT
DANIEL SELLO
…..............................................................
SECOND
RESPONDENT
THOSE PERSONS LISTED IN
ANNEXURE “A”
…................................................................
THIRD
RESPONDENT
Neutral citation:
City of Tshwane Metropolitan
Municipality v The Mamelodi Hostel Residents Association
(025/2011)
[2011] ZASCA 227
(30 November 2011)
Coram: MTHIYANE, VAN HEERDEN, MAYA, SHONGWE and
MAJIEDT JJA
Heard: 15 NOVEMBER 2011
Delivered: 30 NOVEMBER 2011
Summary: Spoliation order – eviction –
whether removal of the residents’ roof coverings constituted
eviction –
whether eviction lawful.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Omar AJ sitting as court of first instance):
1 The appeal is upheld to the extent that the order in
paragraph 1.2 of the rule nisi, as confirmed by the court below, is
amended
to read:
‘
1.2 First to Third respondents
are ordered jointly and severally to restore the roof structures and
roof covering of Block J of
the Mamelodi Hostels to at least an
equivalent of the condition they were in prior to destruction thereof
on 15 November 2009,
and to restore possession thereof to the
applicants.’
2 The appeal is otherwise dismissed with costs,
including the costs of two counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (MTHIYANE, VAN HEERDEN, MAYA, SHONGWE JA
concurring):
[1] On 15 November 2011 this court made an ex tempore
order as set out above and indicated that the reasons for that order
would
follow. These are the reasons.
[2] During the colonial and apartheid eras, thousands of
migrant labourers (almost exclusively male) were employed on the
mines
in what is now known as Gauteng Province. They were
accommodated in single male hostels, which today remain as a grim
legacy of
those times. This appeal concerns one such hostel, namely
Block J of the Mamelodi West hostel complex. In the court below the
respondents
obtained confirmation of a rule nisi which restored to
them their occupation of Block J. With leave of the court below (Omar
AJ,
sitting as court of first instance in the North Gauteng High
Court, Pretoria) they appeal to this Court against that order.
[3] The interim order, issued by Du Plessis AJ on an
unopposed basis,
1
reads as follows:
‘
1. A
rule nisi is issued against First to Third Respondents
2
,
with return date in the urgent court on 24 November 2009, calling on
the Respondents to show cause why the following order should
not be
made final:
1.1 First to Third Respondents
are ordered to immediately stop demolishing hostel structures in
Mamelodi West.
1.2 First to Third Respondents
are ordered to immediately restore the roof structures and roof
covering of Block J of the Mamelodi
Hostels to the condition it was
in prior to the destruction thereof on 15 November 2009, and to
restore possession thereof to the
Applicants.
1.3 First Respondent is ordered
not to continue with the demolition of hostels in the hostel
precincts of Mamelodi West before they
have either:
followed procedures prescribed
in Part 3, Chapter 10 of the Housing Code as published in terms of
section 4
of the
Housing Act 107 of 1997
,
and
have obtained a court order for
eviction.
1.4 First to Third Respondents
are ordered to pay the costs of this application on an attorney and
client scale.
2. Paragraphs 1.1 to 1.3 above
shall have immediate effect pending the return date.
3. Costs of 16 November 2009 to
be costs in the cause.’
[4] The appellant, City of Tshwane Metropolitan
Municipality (the City), in due compliance with its constitutional
obligation to
erect adequate housing for its inhabitants
3
and in accordance with a comprehensive national housing
plan known as the Integrated Residential Development Programme, began
addressing
human settlement inefficiencies, including an extensive
hostel redevelopment programme. It is common cause that Block J, like
so
many other single male hostels, is badly dilapidated, to the point
of allegedly being unsafe and uninhabitable. Considerable planning,
information sessions and negotiations with hostel dwellers have gone
into the hostel redevelopment programme in Mamelodi since
2004. On 15
November 2009 City officials, aided by private contractors and under
the watchful eye of a large police contingent,
removed the roof
structures and roof covering of Block J, while the occupants were
still inside it. This gave rise to the urgent
spoliation proceedings
before Du Plessis AJ.
[5] The first respondent is the Mamelodi Hostel
Residents Association, an unincorporated body representing Mamelodi
Hostel residents
(the Association). A challenge in the court below to
its legal standing to sue found no favour with the learned judge and
no appeal
has been noted against his order in that regard. The second
respondent, Mr Daniel Sello, is the chairperson of the Association’s
Executive Committee and the deponent to the respondents’
founding and replying affidavits. The third respondent consists
of a
large number of persons who were in occupation of Block J on 15
November 2009 and who refused to vacate their dwellings.
[6] It is not disputed that the respondents, as
spoliation applicants, needed only to prove that they were in
peaceful and undisturbed
possession on that day and that they were
unlawfully deprived of such possession. Before us the City’s
counsel was driven
to concede that the Block J occupants were in
peaceful and undisturbed possession when the roof structures and
covering were removed.
The City’s main defence is that the
occupants had consented to the removal as a first step in demolishing
Block J. In addition,
it contended that alternative accommodation had
been arranged and was available to the Block J dwellers. This latter
contention
can be dismissed without more. Omar AJ correctly held that
that is an irrelevant consideration in spoliation proceedings. It is
relevant in eviction proceedings.
4
[7] The City’s main defence is fraught with a
myriad of difficulties. First
s 26(3) of the Constitution prohibits evictions and
demolitions without a court order. It reads:
‘
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.’
PIE is the legislative tool which further expands on
this right. It is common cause that the City did not seek an eviction
of the
Block J dwellers prior to the events of 15 November 2009. The
respondents sued on the mandament van spolie. In
Tswelopele
Non-Profit Organisation v City of Tshwane Metropolitan Municipality
5
this Court discussed
6
whether there is a need to develop this common law
remedy to afford broader relief. The court formulated instead an
appropriate
constitutional remedy. The requirements for the mandament
van spolie have been outlined above – the merits regarding
competing
claims to the object are irrelevant, the only consideration
is that unlawful deprivation must be remedied before all else.
7
The City’s reliance on an alleged agreement to the
demolition must therefore fail. The respondents proved in the court
below
that they were in peaceful and undisturbed possession and were
unlawfully deprived of their possession, ie that deprivation
commenced
when the roof structures and covering were removed as a
first step of eviction, while they were still in the property.
[8] But even if the City could have sought refuge in
consent or agreement by the respondents, such consent or agreement
was not
proved on the papers. I interpose to mention that the appeal
record is in a lamentable state. Numerous annexures were omitted
altogether,
while others were incomplete, including Annexure SLR 12
to the City’s answering affidavit on which the City placed
particular
reliance. This annexure is the minutes of a meeting held
by City officials to verify the list of Block J dwellers. This state
of
affairs is exacerbated by the fact that the City had to seek, and
was granted, condonation for the late filing of its notice of
appeal
in this Court. But the City pressed on nevertheless, intimating that
it was content to argue the appeal on the defective
record. The
notices referred to during argument establish no more than that there
had been an ongoing process of engagement, notification
and
information sessions between the City and hostel dwellers, including
those in Block J. But nowhere does the respondents’
consent to
the proposed demolition and their concomitant relocation appear; on
the contrary, the founding papers contain a letter
written by the
respondents’ attorneys to the City Manager, dated 21 July 2009,
in which the City was notified that the hostel
dwellers refused to
relocate, unless they received certain assurances. There was no
response to this letter.
[9] And even if the City could have relied on an
agreement which had been proved and even if the respondents had been
proved to
be in breach thereof and had been in unlawful occupation,
the summary deprivation of possession by the City was untenable.
Eviction
proceedings under PIE would have had to be launched. And the
City would have been obliged to engage in meaningful consultation
with the respondents prior to obtaining an eviction order.
8
[10] In summary therefore, the respondents have proved
the requirements for a spoliation order and the appeal must therefore
fail.
Two final aspects require attention. Before us the City
cautioned against the difficulties it may face if the order in para
1.2
of the rule nisi above should remain extant. Its primary
difficulties are that the roof coverings are constructed of asbestos
(which
has been prohibited by the authorities) and that it may not be
possible to erect roof coverings on the unsafe hostel buildings.
The
order was accordingly amended to address this concern. En passant,
and with reference to the alleged unsafeness of the building,
it begs
the question how the Block J dwellers have been able to live in those
premises for the last two years. And one is reminded
of the adage
that ‘every man’s (and woman’s) home is his (or
her) castle’. The facts and conclusions in
Tswelopele
provide ample illustration of the point. Lastly, mention
must be made of the laudable efforts of the City to meet its
constitutional
obligation to provide adequate housing. Much has been
done by it to work towards alleviating the hostel dwellers’
plight.
But this is a delicate process and there have been
difficulties, judging by previous litigation between it and hostel
dwellers
as well as
Tswelopele
where
it was also involved in unlawful evictions. Reasonableness ought to
prevail so that the City is able, in constructive engagement
with the
hostel dwellers, to find lasting solutions to the problem.
[11] For these reasons the following order was issued:
1 The appeal is upheld to the extent that the order in
paragraph 1.2 of the rule nisi as confirmed by the court below is
amended
to read:
‘
1.2 First to Third respondents
are ordered jointly and severally to restore the roof structures and
roof covering of Block J of
the Mamelodi Hostels to at least an
equivalent of the condition they were in prior to destruction thereof
on 15 November 2009,
and to restore possession thereof to the
applicants.’
2 The appeal is otherwise dismissed with costs,
including the costs of two counsel.
___________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES:
Counsel for appellants : N CASSIM SC
Instructed by : Moduka More Attorneys, Pretoria
Matsepe’s Attorneys, Bloemfontein
Counsel for respondents : R JANSEN (WITH M DEWRANCE)
Instructed by : Gilflan du Plessis Attorneys, Pretoria
Webbers Attorneys, Bloemfontein
1
Although
the appellant was duly served with the urgent spoliation application
papers, there was no appearance on its behalf at
the hearing.
2
In
the high court the appellant was the first respondent, the Minister
of Safety and Security was the second respondent, while
the MEC for
Human Settlements was the third respondent.
3
Section
26(2) of the Constitution states: ‘The state must take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of this right.’
(ie
the right under s 26(1) to have access to adequate housing).’
4
Section
6(3)(
c
)
of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (PIE);
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at para 28.
5
Tswelopele
Non-Profit Organisation v City of Tshwane Metropolitan Municipality
2007 (6) SA 511
(SCA).
6
para
20.
7
Ibid,
para 21.
8
Section
2(1)(
b
)
of the
Housing Act 107 of 1997
:
‘
National, provincial and
local spheres of government must-
. . .
consult meaningfully with individuals and communities
affected by housing development.’
And see, generally:
Port Elizabeth Municipality v
Various Occupiers
, supra, para 43;
Occupiers of 51 Olivia
Road and 197 Main Street, Johannesburg v City of Johannesburg
[2008] ZACC 1
;
2008 (3) SA 208
(CC) para 13.