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[2009] ZASCA 21
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Ekurhuleni Metropolian Municipality v Dada NO and Others (280/2009) [2009] ZASCA 21; 2009 (4) SA 463 (SCA) ; [2009] 3 All SA 379 (SCA) (27 March 2009)
Links to summary
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 280/2008
EKURHULENI METROPOLITAN
MUNICIPALITY
Appellant
and
EBRAHIM DADA N.O.
First Respondent
YUSAF EBRAHIM OSMAN N.O.
Second Respondent
ESSOP SHAIK N.O.
Third Respondent
SHAUKAT THOKAN N.O.
Fourth Respondent
ABDULâ MAJEED DAWOOD N.O.
Fifth Respondent
ISMAEL ESSA PATEL N.O.
Sixth Respondent
THE UNLAWFUL OCCUPIERS OF PORTION 41 Seventh
Respondent
Neutral citation:
Ekurhuleni
Municipality v Dada N.O.
(280/2008)[2009]
ZASCA 21 (27 March 2009)
Coram:
Harms DP, Brand,
Mhlantla JJA, Hurt and Bosielo AJJA
Heard:
5 March 2009
Delivered:
27 March 2009
Summary:
Review by court
of conduct of municipality â Judge making order that municipality
should purchase property on which informal settlement
established â
Such order not sought by parties, but clearly the result of a
preconceived solution arrived at by the judge â
Such a prohibited
usurpation by judge of the functions and duties of the municipality â
Lack of âjudicial deferenceâ displayed
by judge in considering
the municipalityâs working procedures, conduct and decisions â
Order to purchase property set aside.
_____________________________________________________________
ORDER
On appeal from:
Johannesburg
High
Court (Cassim AJ sitting as court of first instance)
1 The appeal succeeds to the extent that paragraph 1 of
the order of the high court is set aside. There will be no order as
to costs.
JUDGMENT
HURT AJA (HARMS DP, BRAND, MHLANTLA JJA and BOSIELO AJA
concurring):
[1] 'In exercising the judicial function, judges are
themselves constrained by the law.'
This
dictum
from
the recent decision of this court in
National
Director of Public Prosecutions v Zuma
1
restates a time-honoured rule and is probably a
sanguine reminder to a judiciary which might often, in its efforts to
achieve the
objects of the Bill of Rights in the Constitution, be
tempted to chafe against the concept of 'progressive' as opposed to
'immediate'
realisation of constitutional objectives, especially at
the governmental and municipal levels. This is a case in point. It is
an
appeal against an order granted by Cassim AJ in the Johannesburg
High Court, in which,
inter alia
,
he ordered the appellant, a municipality, to purchase a property on
which an informal settlement had been established, in an application
in which the eviction of the occupants of the property had been
sought. The appeal is brought with leave granted by Cassim AJ.
[2] The first six respondents are the trustees of the
Islamic Dawah Movement Trust, the owner of a property described as
'Portion
41 of the Farm Rooikop 140' (and referred to in this
judgment as 'the property') situated in the area of jurisdiction of
the Ekurhuleni
Municipality. In November and December 2004
approximately 76 families moved onto the property from an informal
settlement on a
neighbouring piece of land which had become
uninhabitable because of flooding and marshy conditions generated by
the summer rains.
[3] In July, 2006, the Trust brought an application in
the Witwatersrand Local Division of the High Court for the eviction
of these
families, collectively cited in this appeal as the seventh
respondent, to whom I shall refer as 'the occupiers'. The application
was governed by the procedure prescribed in the
Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act, 19 of 1998
, and
the municipality was joined as the second respondent (the occupiers
being jointly cited as the first).
[4] The occupiers opposed the application. They did not
deny that their occupation of the property was unlawful, but alleged
that
they had taken occupation under a
bona
fide
belief that they had authority from an
official of the municipality to do so. In a counter application in
which the municipality
was cited as the respondent in reconvention,
they contended that the municipality was duty-bound in terms of
s
26(2)
of the Constitution to 'devise and implement within its
available resources a comprehensive and co-ordinated programme
progressively
to realise (the occupiers) right of access to adequate
housing'. It was submitted, in this regard, that the municipality was
obliged
to 'include reasonable measures to provide relief for (the
occupiers) who, upon eviction from (the property) will have no roof
over their heads and will have to live in intolerable conditions and
in a situation of crisis'.
2
The broad contention in this regard was that the plight in which the
occupiers found themselves was due to the municipality having
failed
to comply with its constitutional duties. In a Notice of Counter
Application, annexed to the answering affidavit in the
main
application, they sought elaborately-framed relief in the form of a
declarator concerning the municipality's constitutional
obligations;
an interim interdict against their eviction by the Trust; an order
that the municipality comply with its constitutional
obligations and
report to the court as to its compliance within a period of three
months; and provisions to regulate any debate
before the court
arising from the contents of such report.
[5] The municipality, in its riposte to the contentions
founding the counter application, took certain procedural objections
which,
though they were certainly not without substance, need not be
dealt with in this judgment. As to the contentions by the occupiers
that the municipality had done nothing to afford them access to
housing for the four-year period from 2002 to 2006, and appeared
to
have no plan to render their living conditions more acceptable, the
deponent for the municipality dealt in detail with the statutory
framework in place for this aspect of the municipality's
administrative duties and annexed to his affidavit voluminous
documents
setting out what are described as 'Strategic Frameworks'
and 'Integrated Development Plans'. These reflect the municipality's
planning
to achieve the objects of s 26(2) of the Constitution
through implementation of the provisions of,
inter
alia
, the
Housing Act 107 of 1997
, the
National Housing Programme, the
Development Facilitation Act, 67 of
1995
, the
National Environmental Management Act, 107 of 1998
and the
Regulations promulgated under
ss 24
and
24D
of that Act. The
contention was that these statutes, regulations, policies and plans
represented an ordered, properly prioritised,
progressive policy to
achieve the objects of the Constitution.
[6] In reply to the municipality's answering affidavit,
the deponent for the occupiers pinpointed the provisions concerning
'emergency
housing' in chapters 12 and 13 of the Housing Code. There
had been no reference in the founding affidavit in the counter
application
to these provisions. The municipality delivered an
application to strike out the passages in the replying affidavit,
referring
in particular to the
Housing Act and
the Housing Code, on
the basis that they constituted 'new matter'.
[7] In this state, the matter came before Cassim AJ
in the court
a
quo.
As to what transpired on the first day
of the hearing, the record is silent. But one gleans from what was
said at the commencement
of proceedings on the second day, that the
Judge had informed counsel that there should be evidence from
representatives of the
municipality about what had been done by that
body to alleviate the plight of the occupiers during the twenty
months which had,
by the date of the hearing, elapsed since the
application had been lodged in July, 2006. Whether the learned Judge
took the view
that there were disputes of fact on the papers which
required oral evidence for their resolution, or whether he considered
that
he should conduct a personal investigation by questioning the
employees of the municipality for the purpose of exercising the
discretion
to evict in terms of s 4(7)
3
of PIE, is not clear. At the commencement of the proceedings on the
second day, he was told that the parties had agreed to ask
him to
separate the issues and to rule first on the counter application.
[8] It is apparent from the tenor of the questions put
by him to the two municipal employees, that the Judge had, before
hearing
their evidence, resolved to order the municipality to buy the
property for a price of R250 000. I say this because, having asked
the first witness what the municipality was doing to provide homes
for poor people, and having been told that there was a plan
in place
aimed at eradicating all informal settlements by the year 2014, the
record of his further questioning runs thus :
'
Now
if I were to make an order that (the municipality has) to buy the
property, will Gauteng then make the moneys available? . .
. Ja, well
we can apply for the, to make money available.
But look, if you said there is
an order of the judge of the high court, we need R250 000.00 they
must make the money available?
. . . . They must make the money
available ja.'
[9] The answer to the second question above was clearly
a hypothetical one, because, for the rest of his sojourn in the
witness
box, this witness endeavoured to explain the prescribed
procedure which the municipality was obliged to follow before it
could
properly resolve to buy immovable property. The second witness
called on behalf of the municipality fared similarly. She tried in
vain to point out to the judge that before the municipality could
acquire the property for development, certain statutory procedures
had to be followed, such as an environmental impact assessment, a
geotechnical assessment,
4
the acquisition of the requisite additional funds from the
Provincial Housing Department, formal municipal procedures such as
obtaining an empowering resolution from the Council, the provision of
essential services to the property, etc. All of these the
judge
simply shrugged off as unnecessary beaurocracy, reiterating to the
witness his suggestion that if an order was made by a
high court
judge directing the municipality to buy the property, that order
would have to be complied with without the delays occasioned
by the
prescribed procedures. I should mention that in the course of this
evidence, reference was made of a proposal to lease the
property for
a year at a rental of R1800 per month, but this information, too, was
received with discernible apathy by the Judge.
[10] In his judgment the Judge expressed his disapproval
of the level of inactivity, with regard to the circumstances of the
occupiers,
shown by the municipality particularly over the period
between the lodging of the eviction application and the date of the
hearing.
He found that this constituted a failure by the municipality
to comply with its constitutional duties. In the course of reviewing
the law concerning the court's role in the enforcement of fundamental
rights, such as the right of access to housing, he referred
to the
well-known decisions in
Government of the RSA
and Others v Grootboom
2001 (1) SA 46
(CC)
and
President of RSA v
Modderklip Boerdery (Pty) Ltd
2005 (5) SA 3
(CC), but expressed the view that the courts had not gone far enough
towards enforcing the rights in s 26 of the Constitution in
these
cases.
5
On this basis, it seems, he apparently decided that the courts should
be galvanized into taking a 'robust approach' to the implementation
of the provisions of the Constitution. This type of approach is
probably the very antithesis of the approach which this court and
the
Constitutional Court have endorsed in a number of recent decisions.
In
Logbro Properties CC v Bedderson NO and
Others
2003 (2) SA 460
(SCA), para 21,
Cameron JA referred, in the context of a necessity for 'judicial
deference', with approval to the following passage
from an article by
Cora Hoexter
entitled
'The Future of Judicial Review in South African Administrative Law'
(2000) 117
SALJ
484
,
at 501 to 502, which is to the following effect:
'. . . the sort of deference we
should be aspiring to consists of a judicial willingness to
appreciate the legitimate and constitutionally-ordained
province of
administrative agencies; to admit the expertise of these agencies in
policy-laden or polycentric issues; to accord
their interpretation of
fact and law due respect; and to be sensitive in general to the
interests legitimately pursued by administrative
bodies and the
practical and financial constraints under which they operate. This
type of deference is perfectly consistent with
a concern for
individual rights and a refusal to tolerate maladministration.'
This passage was also referred to with approval and the
theme taken up by Schutz JA in
Minister of
Environmental Affairs v Phambili Fisheries (Pty) Ltd
2003
(6) SA 407
(SCA), paras 52 and 53, where, after quoting the passage
set out above, the learned judge said:
'I agree with what is said by
Hoexter
(
op
cit
at 185):
"The important thing is
that Judges should not use the opportunity of scrutiny to prefer
their own views as to the correctness
of the decision, and thus
obliterate the distinction between review and appeal."
[53] Judicial deference is
particularly appropriate where the subject matter of an
administrative action is very technical or of
a kind in which a Court
has no particular proficiency. We cannot even pretend to have the
skills and access to knowledge that is
available to the Chief
Director. It is not our task to better his allocations, unless we
conclude that his decision cannot be sustained
on rational grounds.'
6
[11] The learned Judge failed to have regard to these
precepts and, in the result, he made an order in the following terms:
'(1) The Second Respondent is
directed to purchase the property from the Applicants at a purchase
consideration of R250 000.00 within
30 (thirty) days from the date of
this order.
(2) The Second Respondent is
required to forthwith make provision of essential services to the
occupiers of the property.
(3) There will be no order as to
costs.'
[12] On appeal before us the municipality sought only to
set aside paragraph (1) of this order, the services referred to in
paragraph
(2) having apparently been supplied (or being in the
process of being supplied) already.
[13] There can be no doubt that the order that the
municipality should purchase the property stemmed from a
pre-conceived notion
on the part of the Judge that it was time 'to
get things moving' as it were. He was not asked, in the papers or in
the course of
evidence, to make such an order and it was not
rationally related to the evidence which was adduced concerning the
municipality's
policies and plans and the extent of its immediate
obligations to alleviate the plight of these particular occupiers. He
had plainly
persuaded himself that it was time to cut across the
principles of 'progressive realisation' of housing access emphasized
in the
decisions of the Constitutional Court to which he had
referred. In this he fell foul of another fundamental rule emphasized
in
Bato Star
and the
other cases dealt with in para 10, and also in
Zuma
,
supra
, at para 16,
viz:
'Judges as members of civil
society are entitled to hold views about issues of the day and they
may express their views provided
they do not compromise their
judicial office. But they are not entitled to inject their personal
views into judgments . . . '
[14] Counsel for the occupiers was asked, in argument,
to refer this court to any decided case, in the Republic or
elsewhere, where
an equivalent order had been made and she was (not
surprisingly) unable to do so. The only basis upon which she
attempted to defend
the order was that the court had taken an
appropriately 'robust' approach to the solution of the occupiers'
problems, but such
a submission does not warrant serious
consideration in the circumstances of this case. The Judge was
perhaps right in coming to
the conclusion that the municipality had
not dealt with the problems of the informal settlement on the
property with the measure
of alacrity which could reasonably be
expected of them. But that did not justify his adopting a solution
which was well outside
the limits of his powers. Even if he
considered that the occupiers were entitled to by-pass the statutory
provisions expressly
enacted by Parliament for the purpose of
implementing the rights entrenched in chapter 2 of the Constitution,
7
he was nevertheless bound to consider the occupiers' case under the
provisions of s 38 of the Constitution, in which event he was
empowered to grant 'appropriate relief'. The order that the
municipality should purchase the property was plainly not
'appropriate
relief'. It follows that the appeal should succeed to
the extent that that part of the order must be set aside. The order
for the
provision of services to the property by the municipality,
being accepted by that body, will stand. The issue in the main
application
relating to the eviction of the occupiers has yet to be
set down for hearing and dealt with by the court of first instance.
Neither
party contended that it was entitled to an order for costs of
the appeal.
[15] The appeal succeeds to the extent that paragraph 1
of the order of the court a quo is set aside. There will be no order
as
to costs.
_______________________
NV HURT
ACTING JUDGE OF APPEAL
Appearances:
For Appellant: GI Hulley
Instructed by:
Klopper Jonker Alberton
Wessels & Smith Inc Bloemfontein
For Respondent: URD Mansingh (Ms)
Instructed by:
Respondents 1 â 6
Fullard Mayer Morrison Inc Sandton
Respondent 7
Webber Wentzel Bowens Johannesburg
Respondents 1 â 6
Lovius Block Bloemfontein
Respondent 7
Webbers Bloemfontein
1
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 15.
2
The quotation is from the affidavit supporting the counter
application.
3
It emerges from para 9 of his judgment that he called for the oral
evidence 'in the exercise of (his) discretion', for the purpose
of
'considering the counter-application in motion proceedings' although
he appears to have made no attempt to define the issues
of fact
which he intended to resolve by way of the oral evidence.
4
To ensure that the land was not rendered unfit for housing by
subterranean dolomite deposits which occur regularly in that area.
5
In para 37 of the judgment he said 'I appreciate and understand that
the approach I adopt in this matter may well be viewed not
only as
ordering the State to fulfil its obligations, but also telling it
how to do so and that this would be a breach of the
rule on
separation of powers (see for instance :
President of the RSA v
Modderklip Boerdery (Pty) Ltd
2005 (5) SA 3
(CC) at
27B)'.
6
Paras 52 and 53. This
dictum
was expressly approved in the
subsequent appeal to the Constitutional Court
sub nom Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
7
See, e.g.
MEC for Education, KwaZulu-Natal, and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at para 40.