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[2019] ZAGPPHC 27
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Gauteng Department of Human Settlements v Persons Whose Identitities are Unknown to to The Applicant and Who have Attempted to or Are Threatening to Unlawfully Occupy the Land Situated on the Remainder of The Farm Olifantsfontein 410 JR, Clayville EXT 45 and Others (58864/2017) [2019] ZAGPPHC 27 (21 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
No. 58864/2017
In
the matter between:
GAUTENG
DEPARTMENT OF HUMAN SETTLEMENTS
Applicant
and
PERSONS
WHOSE IDENTITIES ARE UNKNOWN TO TO THE APPLICANT AND WHO HAVE
ATTEMPTED TO OR ARE THREATENING TO UNLAWFULLY OCCUPY THE LAND
SITUATED ON THE REMAINDER OF THE FARM OLIFANTSFONTEIN 410 JR,
CLAYVILLE EXT 45
1st Respondent
THE
UNLAWFUL OCCUPIERS OF THE LAND SITUATED ON THE REMAINDER OF THE FARM
OLIFANTSFONTEIN 410 JR,
CLAYVILLE
EXT
45
2nd Respondent
EKHURULENI
METROPOLITAN MUNICIPALITY
3rd Respondent
JUDGMENT
Brand
AJ
Introduction
[1]
The Applicant, a provincial government
department, seeks the eviction of the 1st and 2nd
Respondents from residential
buildings under its control.
[2]
By the time this matter proceeded before
me, all relief sought against the 1st Respondents had been disposed
of so that the matter
before me concerned only the 2nd Respondents'
eviction. The 2nd Respondents are a group of 71 disabled persons who,
some with families
and dependents, occupy the residential units in
question. They oppose this application in part through what they
style as a 'collateral
or constitutional challenge' to their
eviction, seeking an order that the Applicant in seeking their
eviction is in breach of its
policies, national legislation, the
Constitution of the Republic of South Africa, 1996 and international
obligations to prioritise
and advance people with disabilities.
[3]
The 3rd Respondent, being the local
authority in whose area of jurisdiction the land in question falls,
is cited by virtue of this
fact, but did not participate in the
proceedings.
Background
[4]
The Applicant is in the process of
constructing a large scale mixed land use social housing
development on the
farm Olifantsfontein
410 JR, Clayville Extension 45, Tembisa (Clayville). The
development is a so-called Mega
Project, which will, when
complete, comprise 1 421 so-called high density walk up units
(which I understood to be flats in
multiple apartment blocks), 200
so called RDP houses, 1 134 further 'finance-linked' houses and
420 high density rental units
(a total of 3 175 housing units),
covering approximately 364 hectares of land.
[5]
On 5 December 2017 the occupiers, lead
in this by the deponent to their answering affidavit, Ms Minah Funani
occupied one unit in
a block of high density units (Block 9) in
Clayville. Their purpose initially was political: they sought to
stage a sit-in to protest
against what they claim to be the neglect
of their housing interests as disabled people by the Applicant. They
were resolved to
remain in the unit until they were given a credible
and firm undertaking by the Applicant that housing would be allocated
to them.
[6)
Despite a number of meetings with
officials
from the Applicant no such
undertaking was forthcoming. Accordingly, in the face of various
visits from the police
and a constant presence of the applicant's
on-site security detail, the 2nd Respondents remained in the unit
they occupied. By
7 December, they posed an ultimatum to the
Applicant: would they not be given the undertaking they sought by 8
December, they would
invite the media to publicise their plight and
would proceed to occupy as many units of the blocks in the vicinity
of their sit
in as their number required.
[7]
Come 8 December there had been no
movement from the Applicant. The Respondents then invited the media
to the site and in their full
view proceeded to occupy all the units
in Blocks 9, 10 and 11. Here they settled, making the units their
homes.
[8]
This prompted the Applicant to bring an
urgent application on 15 December 2017 under a part A for an interim
order prohibiting anyone
else (then still the 1st Respondents) from
occupying further units and under a part B for an order for the 2nd
Respondents' urgent
eviction in terms of section 5(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE).
[9]
On 18 December 2017 the relief sought in
part A of the urgent application was granted as a rule
nisi,
with a return date of 20 December
2017 and the part B (the eviction application) postponed for hearing
also on 20 December. On 20
December the rule
nisi
was confirmed and the Part B
eviction application postponed
sine
die.
It is this Part B that I must
now dispose of.
[10]
There are two issues to decide:
Whether
or not to grant the application for the 2nd Respondents' eviction.
Given that there is no complaint that the Applicant has
failed to
comply with any of the procedural requirements of the PIE Act, and
given that the eviction application is for final relief,
this boils
down to a consideration of whether the 2nd Respondents'
eviction would be just and equitable under the circumstances.
Whether
to grant the 2nd Respondents' 'collateral or constitutional
challenge' and grant the declaratory relief they seem to seek
through
it.
It
is convenient to proceed with the 'collateral challenge' first.
Collateral/constitutional
challenge
[11]
The 2nd Respondents seek to raise what
they term a collateral or constitutional challenge to the Applicant's
failure to comply with
its housing-related duties in terms of
national legislation, the Constitution and international law. For
relief, to the extent
that it is ascertainable, they seem to pray for
a declaratory order to this effect.
[12]
This aspect of the 2nd Respondents' case
was not pressed with conviction at the hearing before me, and it is
just as well, because
it does not get out of the starting blocks.
[13]
A
collateral challenge is raised against the enforcement of an invalid
administrative act by an organ of state - it is, that is,
a mechanism
through which to prevent the consequences of an invalid
administrative act that has not yet been set aside on review
and so
remains in force.
[1]
[14]
The 2nd Respondents do not style their
collateral challenge as such, explicitly or otherwise. They do not
show in any manner why
the administrative act that is sought to be
enforced against them here - the Applicant's administrative decision
to proceed with
evicting them - is invalid in terms of the
Promotion
of Administrative Justice Act 3 of 2000
or the constitutional
principle of legality. They would have been hard-pressed to do so had
they tried. Their complaint is not
that the decision to evict them is
in some way unlawful, procedurally unfair or unreasonable, but in
essence that the Applicant
does not have adequate measures in place
to see to the needs of impoverished disabled people's housing needs,
within its area of
jurisdiction. They ask for a declarator to this
effect, coupled, perhaps, with a direction that such measures be
devised. It is
of course open to them to do so, but then they would
have had to bring a counter application to that effect according to
the ordinary
processes and rules in that respect. This, they have not
done.
[15]
Accordingly, the 2nd Respondents'
collateral or constitutional challenge must fail. This does not, of
course mean that the information
placed before this court in respect
of the scope and nature of the Applicant's housing obligations for
disabled persons and its
failure in giving effect to those is
irrelevant to the further conduct of this matter. As will become
clear below, this information
is eminently relevant to the question
whether it just and equitable to grant the eviction order the
Applicant seeks and to fashioning
the terms of any order I issue. To
this I now turn.
Would
an eviction order be just and equitable under the circumstances?
[16]
The application for the 2nd Respondents'
eviction was initially in the Part B of the Notice of Motion brought
in terms of
section 5(2)
of PIE - that is as an application for the
urgent eviction of the 2nd Respondents. As such, it was brought on
the basis of
section 5(2)
of PIE.
Section 5(2)
of PIE indeed provides
for applications for urgent evictions. However, it provides only for
applications for interim relief, pending
determination of an
application for a final order for eviction - it reads, that is, in
relevant part that an 'owner or person in
charge of land may
institute urgent proceedings for the eviction of an unlawful occupier
of that land
pending the outcome of
proceedings for a final order
(my
emphasis). Applications for urgent evictions in terms of
section 5(2)
for that reason usually take the form of applications for interim
relief, in which an order for eviction in the form of a rule
nisiwith
a return date is sought.
[17]
Whether an application is brought in
terms of
section 5(2)
or
section 4
of PIE is significant, because
importantly different tests apply in terms of which to determine such
applications. To succeed in
terms of
section 5(2)
for interim relief,
an applicant must show that:
(a)
there is a real and imminent danger of
substantial injury or damage to any person or property if the
unlawful occupier is not forthwith
evicted from the land;
(b)
the likely hardship to the owner or any
other affected person if an order for eviction is not granted,
exceeds the likely hardship
to the unlawful occupier against whom the
order is sought, if an order for eviction is granted; and
(c)
there is no other effective remedy
available.
[18]
To succeed with an application for final
eviction relief in terms of
section 4
of PIE, an applicant must by
contrast show that it would be just and equitable
under
the circumstances to evict its respondents.
[2]
This section is clearly intended to give
effect to the constitutional command in section 26(3) of the
Constitution of the Republic of South Africa, 1996, that no one may
be evicted from their home without an order of court made after
considering all. the relevant circumstances.
[19]
Section 5 of PIE in turn allows for
application for an urgent eviction order that may be granted without
a court considering the
justice and equity of the eviction in light
of all relevant circumstances. The departure from the constitutional
command in section
26(3) of the Constitution that no eviction from a
home may be granted without a court having considered all relevant
circumstances
may be explained by the fact that section 5 allows for
application only for an interim eviction order, that applies pending
finalisation
of an application for final eviction. There is no
foregoing of consideration of the justice and equity of the eviction
- this consideration
is only postponed.
[20]
In this light, this application was from
the outset improperly brought in terms of section 5(2) - it was
always for final, rather
than interim relief, so that section 4
rather than section 5 applied. In addition, the initial urgency of
the matter has been overtaken
by events, already in December of 2017
when the eviction application was postponed
sine
die
and the matter later placed on
the ordinary roll, as it appeared before me. For these reasons, this
matter stands to be decided
in terms of section 4 of PIE and not
section 5(2), despite the terms of the notice of motion. It is also
on this basis that the
matter proceeded before me. I nevertheless,
for the sake of completeness, refer to the provisions of section 5(2)
in the process
of determining the matter in terms of section 4 and
show that I would reach the same conclusion on that section as with
section
4's justice and equity.
[21]
Given
that the 2nd Respondents had at the time proceedings were initiated
clearly occupied the units for less than six months the
justice and
equity enquiry must occur in terms of section 6(6), which enjoins me
to decide whether an eviction order would be 'just
and equitable ...
[in light of] all the relevant circumstances, including the rights
and needs of the elderly, children, disabled
persons and households
headed by women.' It is trite that it is the Applicant that bears the
burden to persuade me of justice and
equity. The Applicant may not
simply make allegations to this effect. It must persuade this court
on the basis of facts.
[3]
'Just
and equitable'
-
the
Applicant's case
[22]
The Applicant points out in this respect
that the 2nd Respondents occupy the units in question unlawfully. It
further alleges that
the units they occupy had at the time of their
occupation already been allocated to other beneficiaries living in
informal settlements
in the vicinity and that those beneficiaries had
in fact in anticipation of taking occupation of the new units already
vacated
and demolished their then current dwellings, so that they
were effectively rendered homeless by the 2nd Respondents' occupation
of the units.
[23]
In short, the Applicant claims that the
2nd Respondents' occupation of the units amounted to them jumping the
housing queue and
that their queue-jumping had not only deprived
others of taking their rightful place in new using units for which
they have been
waiting patiently, but had caused them already to
forfeit their existing homes.
[24]
This, if shown to be true on the facts,
is a serious accusation that would go far in tilting the balance of
justice and equity in
favour of the Applicant. It cannot be gainsaid
that the demand for housing is dire and that there are many thousands
of people
under the jurisdiction of the Applicant who are in
desperate need of housing and have been waiting for placement in
housing provided
by the Applicant for extended periods of time. It is
also not controverted by the 2nd Respondents that there are specific
people
who have already been promised allocation of housing units in
the mega-project of which they have occupied some units. The 2nd
Respondents' housing needs, however desperate they are, can simply
not be regarded in isolation from the needs of others - it must
be
given effect to taking account also of the needs of others.
[25]
But the Applicant's allegations in this
respect to be determinative must be borne out by the facts. On what
was placed before me
in the papers, they are not. To start with the
high-water mark of the Applicant's case, that the 2nd Respondents'
occupation of
the units effectively deprived others of their homes:
the deponent for the Applicant states simply that '[t]he units which
are
unlawfully occupied have already been allocated by the Applicant
to deserving beneficiaries who were moved from their shack dwellings
in anticipation of relocation to the Property. Their shack dwellings
had to be demolished for purposes of their relocation to the
Property.' It simply defies belief that a responsible organ of state,
engaged in an orderly process of provision of new housing
to
impoverished persons under its jurisdiction will require of housing
recipients to vacate and demolish their existing homes
before
specific new units have been
allocated to them and are available for them to move into directly.
It equally defies belief that any
person, and particularly persons
who have dire experience of the exigencies of homelessness, would
relinquish whatever existing
shelter they have on a vague promise
that alternative houses will be provided to them at some time,
somewhere, without being sure
that a specific house is in fact
waiting for them, ready to occupy. This, most serious, allegation of
the Applicant's, cannot be
accepted in its face. Despite having been
invited to do so through filing of a supplementary affidavit, the
Applicant was unsurprisingly
unable to place any facts before the
court to discount its inherent improbability. At the very least the
Applicant could have acquired
confirmatory affidavits from the
persons involved; or a schedule detailing the process of vacating
existing homes, demolishing
them and moving into new ones such as
must be available. No such substantiation was forthcoming. Thus, this
allegation of the Applicant's
cannot be considered in determining the
justice and equity of any eviction.
[26]
The allegation that the 2nd Respondents
had occupied specific units that had already been allocated to
specific other beneficiaries
- that is, that they had in fact pushed
specific other people out of the housing 'queue' - is certainly not
inherently improbable.
But for it to be persuasive in this
consideration the Applicant must provide facts that support the
allegation, and be specific,
rather than vague and general in its
assertions.
[27]
In its founding affidavit, the
Applicant's deponent simply makes the statement already related
above, namely that '[t]he units which
are unlawfully occupied have
already been allocated by the Applicant to deserving beneficiaries...
'. In its replying
affidavit, the Applicant's deponent
repeats this statement, but then provides a little more detail,
indicating that of the 215
people on the Applicant's waiting list for
units in the development, 77 people had been approved and were ready
to move into their
new homes by late November 2017, but were
prevented from doing so in December 2018 by the presence in those
very units of
the 2nd Respondents. In support of these statements the
Applicant provides only two Annexures (RA1 and RA2), the one being
the
waiting list for allocation of units in the project; and the
other said to be the list of approved persons who had already been
allocated specific units. Neither of these Annexures, but
specifically not the list of approved persons who are said to have
been
allocated specific units at all indicate the allocation of
specific units to specific people - the latter, being the
relevant
one, is simply a list of names of 77 people with
their contact details, identity numbers and then current physical
addresses.
[28]
Mindful of the fact that I am bound
mero
motu
to ensure that all the relevant
information be placed before me necessary to determine the issue of
justice and equity, at the hearing
of this matter I directed the
Applicant to file a supplementary affidavit with information, if any,
indicating a link between the
77 approved beneficiaries and the
specific units occupied by the 2nd Respondents. The 2nd Respondent
was given leave to file an
answer to this supplementary affidavit.
[29]
The supplementary affidavit was indeed
filed, but takes the matter no further. In it the Applicant's
deponent simply repeats the
allegation and again refers the court to
the two annexures to the replying affidavit, clarifying only that it
is RA1 that in fact
contains the list of approved beneficiaries.
[30]
Accordingly, the Applicant's assertion
of actual, physical queue jumping by the 2nd Respondents remains
unsubstantiated and so,
in the determination of the justice and
equity of the eviction applied for, unpersuasive.
[31]
But more than that: as pointed out by Mr
Mohapi, who appeared for the 2nd Respondents at the hearing and in
his written heads of
argument, the allegation that the 2nd
Respondents through their occupation of the units had prevented
others who had already been
allocated housing from moving in faces
another hurdle. Nowhere in the papers is it stated or implied that
the three units occupied
by the 2nd Respondents were at the time of
their occupation the only units that were ready to move into. It is
common cause that
the project, being a mega-project, will provide
access when completed to a far larger number of housing units of
different kinds
than is required to house even the longer waiting
list of people contained in RA2 to the replying affidavit. At the
time of institution
of proceedings, 1 421 of the kind of units that
the 2nd Respondents occupy were already complete. In its answer to
the Applicant's
supplementary affidavit the deponent for the 2nd
Respondents points out that since November 2017 at least 11
additional blocks
of between 20 and 40 units have become available.
The Applicant does not explain why the 77 approved beneficiaries,
even had they
been allocated the specific units occupied by the 2nd
Respondents, could not simply be moved to other available units.
[32]
I belabour this point somewhat, because
the allegation of queue-jumping levelled against the 2nd Respondents
is a serious one. Few
conventions in our society, as in others, are
as strong as that you wait your turn and you don't jump a queue. Few
others attract
quite the same level of opprobrium when transgressed.
For an organ of state such as the Applicant, tasked with providing
access
to housing to the impoverished people under its care to level
an accusation of 'pushing in' without proper and full substantiation
against desperate people who compete for access to resources with
other desperate people through no choice of their own, is nothing
short of gratuitous.
'Just
and equitable'
-
the
2nd Respondents' case
[33]
Although
they avoid engaging in a 'race to the bottom',
[4]
the 2nd Respondent's case revolves around their peculiar position of
vulnerability as disabled persons; the range of focussed and
specific
obligations that the State as a whole but specifically the Applicant
bears toward them; and their desperation, born out
of a history of
allegedly unrequited engagement with the Applicant and other organs
of state about their housing needs and rights.
[34]
It is common cause that all of the 2nd
Respondents are disabled persons. Their disabilities, ranging from
visual to mobility-related
impairments, are all permanent and
serious. They are all also impoverished: although housed in a range
of forms, from informal
to formal housing, their pre-occupation
housing conditions were all dire and specifically inadequate for
their needs as disabled
persons. The Applicant makes much of the fact
that the 2nd Respondents left housing that they had lawful access to
in order to
occupy the units where they now reside unlawfully. It did
so to make the point that they were not homeless, and so in some way
not as vulnerable as they claim to have been when they
took the step of leaving their prior housing and occupying the
units
where they now reside. I can find nothing in the papers to support
this point. It is clear that the position of the 2nd Respondents
was
so inadequate and dire that, after they had to their minds exhausted
all lawful avenues through which to address those conditions
through
attempted negotiation with the Applicant and other state agencies,
they took the desperate step of abandoning their existing
housing and
occupying that which they needed. This was a step of desperation, not
cynical calculation. For the Applicant to suggest
otherwise is,
again, gratuitous.
[35]
Importantly, whereas the applicants were
all housed before they occupied the units in question, they have
since all let that prior
housing go. That is, should they be now
evicted, they will have nowhere to go.
[36]
That the law requires special
consideration for people in the position of the 2nd Respondents
(impoverished disabled persons) is
trite. Mr Mohapi referred this
court to copious material at the international regional and domestic
level to this effect. Chief
among these in this context is of course
section 4(6) of the PIE Act that specifically identifies the rights
and needs of disabled
persons as a circumstance that must be
considered in deciding whether it would be just and
equitable
to order eviction.
[37]
The 2nd Respondents detail a long history of attempted engagement
with state agencies, including
the applicant to address their plight.
Due to what can at best be described as benign neglect, these all
came to naught. Although
this court should be careful not to
encourage self-help under these circumstances for impoverished people
it is not effectively
gainsaid by the Applicant that the 2nd
Respondents' self-help here was as an absolute last resort and
follows extended attempts
lawfully to resolve their plight. It also
does well to remind that the simple fact that the 2nd Respondents'
occupation is unlawful
and that they occupied the units in question
in full knowledge that their occupation would be unlawful is for all
intents and purposes
irrelevant to the consideration of the justice
and equity of their possible eviction - PIE's protections apply only
to unlawful
occupiers; and it has clearly been held to apply also to
occupation that was unlawful from the outset.
[5]
[38]
In light of the foregoing I cannot but
conclude that it would not be just and equitable to order the 2n d
Respondents' eviction.
In short, the impact of such eviction on the
2nd Respondents, being in the uniquely vulnerable position that they
are, would be
catastrophic; while the impact on the Applicant's
operations and even on other impoverished intended beneficiaries of
the housing
project, should they be allowed to stay, would be
negligible-it is clear from the numbers of units that are
available already
and that still stand to be constructed,
as compared to the number of people on the applicants waiting list,
that at least
for this particular project housing is not yet a zero
sum game. Accommodation of the 2nd Respondents would require a
negligible
adjustment of plans involving less than 5% of the
eventually available units.
[39]
What remains to be determined is the
form of my order. Mr Mohapi urged me to issue in addition to an order
dismissing the application
also one directing the Applicant to either
formalise the 2nd Respondents' occupation of the current units or
allocate and provide
to them suitable alternative permanent
accommodation. I do not accept that invitation: dismissing the
application means that the
2nd Respondents are now entitled to remain
in occupation of the units in the housing project. I am satisfied
that the Applicant,
as a responsible state agency mindful of its
obligations toward this particular group of impoverished people will
make the required
effort to reach a suitable agreement with them.
[40]
In the result, I order as follows:
The
application is dismissed with costs.
JFD
Brand
Acting
Judge of the High Court
Appearances:
-
For
the Applicant
:
Adv. S. Mahlangu
Instructed
by :
Ningiza Horner Attorneys
For
the Respondent
:
Adv.SL Mohapi
Instructed
by
:
KMNF
Attorneys
Date
of Hearing
: 29 October 2018
Date
of Judgment
: 21 February 2019
[1]
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004
(6) SA 222
(SCA) para [32].
[2]
PIE sections 4(6) and (7).
[3]
See eg
Dwele
v Phalatse and Others
(11112/15)
(2017] ZAGPJHC 146 (7 June 2017).
[4]
Dladla
v City of Johannesburg
[2017]
ZACC 42
para 89 (per Cameron J).
[5]
Ndlovu
v Ngcobo, Bekker and Another v Jika
(2002]
4 All SA 384
(SCA).