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[2021] ZAGPJHC 460
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City of Johannesburg Metropolitan Municipality v K2016498847 (Pty) Ltd (38634/19) [2021] ZAGPJHC 460; 2022 (3) SA 497 (GJ) (29 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
DATE:
29 September 2021
Case No: 38634/19
In
the matter between:
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Applicant
and
K2016498847
(PTY)
LTD
Respondent
JUDGMENT
WILSON
AJ
:
1
The central question in this case is
whether a local authority is entitled to an interdict on common law
grounds restraining the
use of property as an accommodation
establishment in breach of its Land Use Scheme, in circumstances
where the effect of the interdict
sought would be to evict
individuals residing on the property and to impound their
possessions.
The
property
2
The applicant (“the City”)
seeks an interdict against the respondent (“the company”)
in restraint of the
company’s use of 1 Willow Place, Kelvin,
Johannesburg (“the property”) as an “accommodation
establishment”
in breach of the City’s Land Use Scheme,
2018 (“the Scheme”). The Scheme neither defines nor uses
the term “accommodation
establishment”, so it is
difficult on the papers to establish the exact nature of the
contravention of which the City complains.
3
The essence of the City’s
case, however, is that the property is being let out to multiple
households. There are two buildings
on the property, and each has
been subdivided into single-room apartments. Each of the rooms is in
turn home to a particular household.
The City does not say how many
occupiers there are on the property, but a site inspection report
compiled by Ms. Ndivhuho Thamagane,
one of the City’s Law
Enforcement Officers, states that there are “children all over
the property”.
4
The City states that the letting of
the property out in this manner is contrary to the way the property
is zoned under the Scheme.
The property is zoned “Residential
1”. The primary permitted use of a “Residential 1”
property under the
Scheme is that of a “dwelling house”.
There are a number of secondary uses also permitted. These include
using the
property for “religious purposes”, as a “place
of instruction”, as a “child care centre”, for
“social halls”, for “institutions”, as
“residential buildings (excluding hostels),” as “special
buildings”, for “sport and recreational clubs”, as
“public or private parking areas”, for “medical
consulting rooms” as a “tavern” or “shebeen”
or as a “guesthouse”. The Scheme prohibits
the use of a
“Residential 1” property for any purpose other than these
prescribed primary and secondary uses.
5
It is not clear to me exactly how it
breaches the Scheme to let the property out in the manner the City
alleges it has been. An
“accommodation establishment”,
though not defined in the Scheme, is, in its most natural sense, a
business that provides
a person with somewhere to stay in return for
a fee. The term usually refers to hotels, guesthouses and other
short-term rental
arrangements, but could stretch to longer-term
tenancies. The use of the property for these purposes falls well
within the secondary
uses permitted in a Residential 1 area. There is
no suggestion that the property is being used as a hostel. Other than
that, the
use of the property for “residential” purposes,
or as a “guesthouse” is a permitted secondary use in
terms
of the Scheme.
6
The City’s true complaint is
probably that the property is being employed for its secondary uses
without the City’s
consent, but that is not the case made out
in the papers. There is an allegation on the papers that the City has
not consented
to the use of the property as an accommodation
establishment, but the mainstay of the City’s case is that the
Scheme simply
does not allow for the use of the property as an
accommodation establishment.
7
Notwithstanding the obscure way in
which the City has chosen to make out its case, I shall accept for
present purposes that the
use of the property as an accommodation
establishment is in breach of the Scheme, because the City’s
consent is required
for that use, and has not been obtained.
Effect
of the relief sought
8
At first blush, then, the use of the
property as an “accommodation establishment” is unlawful.
It follows that all those
living in the accommodation establishment
are doing so unlawfully, in breach of the Scheme.
9
The City seeks an interdict
restraining the company from continuing to use the property as an
accommodation establishment, and directing
that the company must
forthwith use the property only for the purposes the Scheme permits.
In the event of the company not complying
with the Scheme within 15
days of the service of the order directing it to do so, the City asks
that the Sheriff be authorised
to “take all necessary steps for
purposes of giving effect to” the interdict. These steps are to
include permitting
the Sheriff to take into their custody “all
that is found at the property” and “to keep such goods /
instruments
/ tools / utensils / apparatus” that the company is
using to conduct an accommodation establishment, pending payment of
the
City’s “reasonable fees and disbursements”
incurred in the execution of the order.
10
There can be little argument that
what the City seeks is, in effect, an order evicting everyone who
lives on the property, and sanctioning
the seizure of their
possessions. The order sought also authorises the seizure of the
company’s property, insofar as it is
used “for conducting
an accommodation establishment”. The City’s notice of
motion provides that the company must
then pay the City and the
Sheriff for the trouble they went to in seizing its property before
the company can get its property
back. There is no indication of how,
if at all, the occupiers will be entitled to the return of their
possessions.
11
I can appreciate that there may be a
rational connection between the removal of the occupiers from the
property and the need to
enforce the Scheme.
12
However, there is no rational
connection, in my view, between the need to enforce the Scheme and
the seizure of the occupiers’
possessions or those of the
company. Besides being an order of some cruelty, relief of that
nature would constitute an arbitrary
deprivation of property,
contrary to section 25 (1) of the Constitution, 1996. There is no
legally cognisable link between the
need to enforce a town planning
scheme, and the seizure of the household goods of those who are
letting their homes from an entity
that may be in violation of that
scheme. (On the need for a sufficiently close link between a
deprivation of property and the regulatory
purpose it is meant to
serve, see
First National Bank of SA
Limited t/a Wesbank v Commissioner for the South African Revenue
Services and Another; First National
Bank of SA Limited t/a Wesbank v
Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC), paragraph 100).
Eviction
relief incompetent
13
The larger problem, though, is that
the City seeks the eviction of the occupiers in breach of the
constitutional and statutory framework
that has been constructed to
regulate the grant of relief of that nature.
The
relief sought is, in substance, the eviction of the occupiers
14
Mr. Ralikhuvhana, who appeared for
the City, readily conceded that the goal of the relief sought is to
have the occupiers of the
property evicted. That concession was
well-made. Although the order does not explicitly authorise eviction,
the conduct it does
authorise amounts to the same thing. The company
is to be restrained from letting out the property, and is directed to
comply with
the Scheme that prohibits the occupiers from making their
homes at the property. The Sheriff is empowered to “take all
necessary
steps” to enforce these orders in the event of
non-compliance. In doing so, the Sheriff may seize the occupiers’
possessions
if the order is not complied with within 15 days. There
can accordingly be little real doubt about what the order sought is
meant
to achieve.
15
In
Zulu
v eThewkini Municipality
2014 (4) SA
590
(CC), the Constitutional Court had to deal with the meaning and
application of an interim interdict which restrained any person
from
occupying a series of properties in and around Durban, KwaZulu-Natal
and directed the eThekwini Municipality and the Minister
of Police to
take all reasonable and necessary steps to enforce the interdict. The
court held that, insofar as the effect of the
relief was to prevent
occupation of a property, it sanctioned the removal of existing
occupiers from that property.
16
Here, the structure of the relief
the City seeks is the same, although the words used and the
individuals involved are different.
The City seeks relief restraining
the company from using the property as an “accommodation
establishment”, and directing
the Sheriff to do what is
necessary to achieve that result. This plainly encompasses the
eviction of the occupiers.
17
Even if the relief the City seeks is
capable of a narrower interpretation that would not exclude the
occupiers from the property,
the portion of the relief that permits
the seizure of the occupiers’ possessions constitutes a
substantial interference with
their use and occupation of the
property. In
Motswagae v Rustenburg
Local Municipality
2013 (2) SA 613
(CC), the Constitutional Court held that “an eviction does not
have to consist solely in the expulsion of someone from their
home.
It can also consist in the attenuation or obliteration of the
incidents of occupation” (paragraph 12). On any reasonable
interpretation, the relief the City seeks constitutes a significant
attenuation of the occupiers’ possession of their homes
on the
property.
Non-joinder
of the occupiers
18
Once it is accepted that the City in
effect seeks the eviction of the occupiers, the fact that they have
not been joined in these
proceedings means that no relief can be
granted. For that reason alone, the application cannot succeed.
19
However, it is, in my view,
appropriate to consider the other requirements that apply to
applications of this nature, since this
matter is one of two
substantially similar cases that appeared on my unopposed motion
court roll over the course of a week. To
the extent that obtaining
interdicts of this nature is part of a broader practice directed at
the enforcement of the Scheme, it
is as well to point out the
respects in which the enforcement of the Scheme requires adjustment.
20
Where the enforcement of the Scheme
affects the rights of people living on property to which the Scheme
applies, they are obviously
necessary parties to any enforcement
application, and must be joined. Where the City means to enforce the
Scheme through the eviction
of people living on the relevant
property, further requirements are triggered.
Section
26 (3) of the Constitution, 1996
21
The principal requirement is
compliance with section 26 (3) of the Constitution, 1996. Section 26
(3) provides that “[n]o-one
may be evicted from their home
without an order of court made after considering all the relevant
circumstances. No legislation
may permit arbitrary evictions.”
22
In
Occupiers,
51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg
[2008] ZACC 1
;
2008 (3) SA 208
(CC) (“
Olivia Road
”),
the Constitutional Court had to consider how section 26 (3) applied
to an application to give effect to a notice to vacate
a dangerous
building issued by a local authority in terms of section 12 (4) (b)
of the National Building Standards and Building
Regulations Act 103
of 1997 (“the Building Standards Act”). The Supreme Court
of Appeal, against whose judgment the
Constitutional Court was
considering an appeal, had held that section 26 (3) meant no more
than that a court was bound to give
effect to such a notice by means
of an interdict restraining the occupation of the property. The
“relevant circumstances”
to be considered were, the
Supreme Court of Appeal held, that the building in question was
deemed to be dangerous, a notice to
vacate had been issued, and the
notice had not been complied with (see
City
of Johannesburg v Rand Properties
2007
(6) SA 417
(SCA), paragraph 41).
23
The Constitutional Court disagreed.
The court held that it was, at the very least, relevant to the
application that the local authority
had not considered whether the
enforcement of the notice declaring a property to be a dangerous
building might render those living
on the property homeless. If the
enforcement of the notice would lead to homelessness, then the local
authority had a duty to engage
with the occupiers in order to
consider whether and what form of alternative accommodation might be
appropriate to provide. Only
once the local authority had made a real
effort to engage meaningfully with those who would be affected by its
decision to enforce
the notice to vacate could it ask a court to
issue an order giving effect to the notice. In its application, the
local authority
would have to provide a complete and accurate account
of its efforts to engage with the affected individuals, set out what
alternative
accommodation, if any, it would provide to them, and
justify both its engagement strategy and its decisions on how to
respond to
any expressed need for alternative accommodation (
Olivia
Road
, paragraphs 9 to 22).
24
I see no principled reason why the
requirements the Constitutional Court has imposed on local
authorities seeking to evacuate dangerous
buildings in terms of the
Building Standards Act should not be extended to local authorities
who seek to enforce compliance with
a Land Use Scheme through an
interdict that is to be implemented through an eviction. It follows
that in seeking relief to give
effect to its Land Use Scheme by
removing people who reside on property in breach of that Scheme from
their homes, the City is
required to demonstrate that it has engaged
meaningfully with each of the affected individuals, and that it will
provide alternative
accommodation to those individuals where it is
reasonable to do so. In my view, it is reasonable to provide
alternative accommodation
where an occupier would be left homeless
without it.
25
To put it another way, I hold that
the City cannot demonstrate a clear right to an interdict which
enforces its Land Use Scheme
through an eviction unless it has shown
that it has meaningfully engaged the occupiers of the property in
question, and offered
to provide alternative accommodation where it
is reasonably needed.
26
The City has, of course, not made
out that case in this application. The application must accordingly
be dismissed. It remains open
to the City, however, to bring a fresh
application which joins the occupiers of the property, and which
addresses the requirements
I have set out.
The
Prevention of Illegal Eviction from, and Unlawful Occupation of, Land
Act 19 of 1998 (“the PIE Act”)
27
When this matter was called on my
unopposed motion roll on 10 August 2021, I asked Mr. Ralikhuvhana
whether this application should
not have been brought as an eviction
proceeding under the PIE Act. Mr. Ralikhuvhana submitted that the PIE
Act is of no application
to these proceedings because the City sought
merely to compel the company to comply with its obligations under the
Scheme. He also
submitted that the PIE Act could not apply in
circumstances where, as seems evident here, the company consents to
the occupiers’
presence on the property.
28
I reserved judgment on the
application, but I afforded the City until 27 August 2021 to make
further submissions and deliver further
affidavits on the nature of
the relief it seeks, whether the PIE Act applies, and on any other
matter it deemed appropriate. No
submissions were forthcoming, which
is unfortunate.
29
Be that as it may, Mr.
Ralikhuvhana’s submissions in court deserve consideration. His
submission that the City seeks “merely”
to enforce the
company’s obligations cannot be sustained in circumstances
where, as he readily accepted, in the event of
non-compliance, the
City sought leave to remove the occupiers from the property and seize
their possessions.
30
Mr. Ralikhuvhana’s submission
on the application of the PIE Act, is, however, of some substance.
The PIE Act applies to “unlawful
occupiers”. An unlawful
occupier is “a person who occupies land without the express or
tacit consent of the owner or
person in charge, or without any other
right in law to occupy such land”, and to whom no other tenure
protection legislation
applies. It follows that where a person
occupies property
with
the consent of the owner or person in charge, they are not an
“unlawful occupier” for the purposes of the PIE Act.
31
Section 6 of the PIE Act empowers a
municipality to seek the eviction of people who are living in
structures erected without its
consent, or where it is otherwise in
the public interest to evict a person or persons. But section 6 makes
clear that a municipality
may only evict “unlawful occupiers”
in these circumstances.
32
On the face of it, then, section 6
of PIE does not apply where a municipality seeks to enforce its Land
Use Scheme against individuals
who are living on property in breach
of that Scheme, but with the permission of the owner or the person in
charge. That is the
situation in this case.
33
I need not, however, finally decide
the issue. Even if the PIE Act does not apply, section 26 (3) of the
Constitution does. In this
case, the requirements of section 26 (3)
have not been met, and the application cannot succeed.
Order
34
In summary, the City has not
demonstrated a clear right to the interdictory relief it seeks in
this case, because the order it asks
for would authorise the
arbitrary deprivation of the company’s and the occupiers’
property, in breach of section 25
(1) of the Constitution; because it
would authorise an eviction without the consideration of all the
relevant circumstances, in
breach of section 26 (3) of the
Constitution; and because, in any event, the occupiers of the
property, who are clearly interested
in relief that would have these
drastic consequences, have not been joined to the proceedings.
35
For all these reasons, the
application is dismissed.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. It is
handed down electronically by circulation to the parties or
their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines. The date for hand-down
is deemed to
be 29 September 2021.
HEARD
ON:
10 August 2021
FURTHER
SUBMISSIONS DUE ON:
27 August 2021
DECIDED
ON:
29 September 2021
For
the Applicant:
N Ralikhuvhana
Instructed
by BM Kolisi Inc
For
the Respondent:
No appearance
Sithathu
and Stanley Attorneys