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[2018] ZAKZPHC 43
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Endumeni Civic Association and Others v Endumeni Local Municipality and Others (4610/2017) [2018] ZAKZPHC 43 (9 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 4610/2017
In
the matter between:
ENDUMENI
CIVIC ASSOCIATION
FIRST APPLICANT
MUZIWAKHE
SITHEBE
SECOND APPLICANT
THABO
MANYATHI
THIRD APPLICANT
BONGINKOSI
MFEKA
FOURTH APPLICANT
ZANELE
MOLOI
FIFTH
APPLICANT
THOKOZANI
NENE
SIXTH
APPLICANT
SINDISIWE
MANYATHI
SEVENTH APPLICANT
ZAMA
ZIQUBU
EIGHTH APPLICANT
JABULANI
NTOMBELA
NINTH APPLICANT
PHAKAMANI
MIYA
TENTH
APPLICANT
PHUMLANI
ZAMA MASIMLA
ELEVENTH APPLICANT
PINKY
MDULI
TWELFTH APPLICANT
NOKUTHULA
KUNENE
THIRTEENTH APPLICANT
and
ENDUMENI
LOCAL MUNICIPALITY
FIRST RESPONDENT
MEC, DEPARTMENT OF
HUMAN
SETTLEMENT
KWAZULU NATAL
SECOND RESPONDENT
MINISTER OF THE
DEPARTMENT
OF
HUMAN SETTLEMENTS
THIRD RESPONDENT
JUDGMENT
Delivered
on
09 February 2018
POYO DLWATI J:
[1]
This application concerns the enforcement of the right of access to
housing.
[2]
The first applicant is a voluntary association
with its headquarters in Dundee in the Province of KwaZulu-Natal. One
of its objects
is to represent and protect the interests of a number
of people who reside in Dundee with respect to service delivery
there. All
the other applicants are the first applicant’s
executive committee members.
[3]
The first respondent is the local municipality in Dundee responsible,
in particular, for all the
housing needs for the people of Dundee.
The second and third respondents are sufficiently described in the
founding affidavit and
I need not explain them any further.
Furthermore, there is no relief sought against the second and third
respondents; they are
merely cited as they are the responsible
political heads of the first respondent, provincially and nationally,
respectively.
[4]
The applicants had been approached by a number of RDP housing
applicants in the Endumeni Local
Municipal Area with the following
complaints (this is not a limited list): that the first respondent
had arbitrarily allocated
RDP houses by manipulating the RDP housing
list, the allocation system and policies of the scheme were unclear,
and that RDP housing
allocation was corrupt. This resulted in the
applicants accusing the first respondent and its officials of
impropriety, fraud and
corruption in the allocation of RDP houses
within the first respondent’s municipal district.
[5]
Mr Muziwakhe Sithebe, the second applicant, who is also the
chairperson of the first applicant
averred in the founding affidavit
that some of the RDP housing applicants had not been informed about
their prospects of having
decent shelter over their heads, whilst
some people were occupying houses that they were not supposed to
occupy due to the misallocation.
The application, therefore, was
brought in anticipation of a scuffle that might break out between
people who have been wrongly
allocated houses and those that were
supposed to be allocated the said houses.
[6]
According to Mr Sithebe, these problems were brought to the attention
of the first respondent’s
officials but no attempt was made to
resolve same. Various meetings were held between the officials of the
first respondent, the
members of the first applicant, councillors of
ward 4 and 5, officials from the office of the second respondent and
the affected
community members. Even though at some meetings it was
agreed that those beneficiaries of the RDP houses who had submitted
their
applications late would be eligible to benefit from the RDP
housing subsidies, this did not come to fruition.
[7]
However, during June 2016 further complaints arose when it was
discovered that the sites and houses
situated in section 19 had been
swapped between various residents without their prior knowledge or
consent. For instance, some
RDP applicants would discover that their
houses were already occupied by unknown people. Whilst this was
temporarily resolved by
allocating alternate houses to those RDP
applicants, still further disputes arose. This led to the members of
the first applicant
requesting for a list reflecting the names of
those who had applied for RDP housing and the subsequent residential
addresses. Mr
Sithebe, in the founding affidavit, averred that even
though this list was furnished it was, however, incomplete and seemed
to
have been tampered with.
[8]
It further emerged that other RDP houses were rented out to various
people desperate for housing,
allegedly by members of the ward
committees. A meeting was arranged on 30 May 2016 to address this
issue. At the meeting it was
resolved that the first respondent’s
legal department would investigate the allegations that had been
addressed and would
report back to the members of the first applicant
before 3 June 2016. This did not happen. Even though subsequent
meetings were
held, nothing much was achieved. On 7 July 2016 the
first respondent’s council resolved to refer the issues of RDP
housing
swapping and rental to the second respondent’s forensic
department to conduct a forensic investigation.
[9]
The members of the first applicant, however, believed that the
investigation might not yield any
positive results and might instead
be a cover up of the corrupt activities of the first respondent’s
officials. As a result,
members of the first applicant assisted
affected beneficiaries to open up criminal cases against the first
respondent and its suspected
officials. These matters are still under
investigation by the Dundee police services.
[10]
With the assistance of its current attorneys of record, the
applicants requested further information regarding
the RDP housing
lists from the first respondent. They received various lists relating
to the RDP housing subsidies, as well as
the RDP housing applicants
with their details and the status of their applications. Various
shortcomings were identified on these
lists. There were numerous
discrepancies and inaccuracies in the lists. For instance, some
applicants appeared to have withdrawn
their applications, yet this
was not the case. Furthermore, some sites were allocated to more than
one person and the list of housing
applicants did not tally with the
first respondent’s Housing Review Plan of 2012/13 to 2016/17.
[11]
The list of examples demonstrating the inaccuracies and discrepancies
is endless in the housing lists furnished
by the first respondent.
Furthermore, Mr Sithebe demonstrated in detail in his founding
affidavit the plight of the RDP housing
applicants and the effects
and potential harm that could be caused by these inaccuracies and
discrepancies. As a result, the applicants
were of the firm view that
the lists have been either tampered with or manipulated by the first
respondent’s officials in
order to hide the truth as to what is
happening with the RDP housing allocations.
[12]
It is against this brief history that the applicants averred that the
actions of the first respondent, namely,
its failure to provide
adequate housing to RDP applicants living within its jurisdiction,
retards the progressive realisation of
the right of access to
adequate housing in the Dundee area. Furthermore, the first
respondent had failed to adhere to the principles
of good governance
and accountability in its allocation of the RDP houses.
[13]
Finally, the applicants averred that since the first respondent’s
actions and conduct of failing to
provide housing were administrative
actions in terms of the Promotion of Administrative Justice Act 3 of
2000 (PAJA), they were
therefore procedurally and substantively
unfair, taken in bad faith, arbitrary and capriciously. They were
therefore reviewable
since most actions had failed to comply with the
Constitution and the relevant legislative prescripts.
[14]
It is therefore the applicant’s case that the court should
evaluate the first respondent’s conduct
against the principles
of legality, reasonableness, good governance, justice, equity,
impartiality, fairness, equitability and
objectively in order to
establish whether the first respondent has complied with its
constitutional obligation of providing social
housing to those
successful applicants qualifying for RDP housing. The applicants
submit that the first respondent acted against
these principles and
therefore violated the first applicant’s members’
constitutional rights.
[15]
Disappointingly, considering the importance of the matter to
constitutional and basic human rights and the
duty to engage
meaningfully, the second respondent filed a notice to abide by the
court’s decision. I take it that they do
not challenge anything
that has been averred about them in the applicant’s founding
and replying affidavits. Equally disconcerting
is the third
respondent election not to participate in the matter.
[16]
The first respondent, however, has opposed the application. Whilst it
accepted that there are problems with
its allocation of RDP houses
and a solution ought to be found, it averred that the orders sought
by the applicants do not constitute
a proper and appropriate solution
to the problem. Although it was conceded that the process of
delivering RDP houses to those
who had qualified was bedevilled by
irregularities and unlawful conduct of some of the officials of the
first respondent, the first
respondent has complained that the orders
sought were too vague, too broad to have a meaningful purpose and
undefined. It
was submitted on behalf of the first respondent
that the declaratory order sought had to be formulated with proper
precision so
that the order could have some practical effect on the
parties or others.
[17]
Furthermore, the first respondent conceded that the matter needed to
be investigated further and where applicable
those found responsible
for any irregularities, fraud and corruption should be brought to
book. It, however, disputed the suggestion
that an external auditor
outside government should be appointed as this would result in
incurring unbudgeted costs. Instead, it
recommended that the
investigative units within government should be used to unearth these
problems. The first respondent further
contended that it would be
inappropriate for the court to involve itself in a monitoring process
as this would be time consuming
and would be over a long period.
[18]
It was further submitted that the order seeking to review and set
aside the arbitrary allocation of RDP houses
by the first respondent
ought not to be granted as it would undo everything that the first
respondent has done in the allocation
of RDP houses generally. This,
so went the submission, would affect even areas where there were no
complaints of any irregularities.
It therefore submitted that for all
these reasons, the application should be dismissed with costs.
[19]
It is therefore common cause that the provision of RDP houses in the
first respondent’s municipality
is bedevilled by various
irregularities and needs to be fixed.
The
only issue in dispute
is how to fix it. The applicants sought an amended order from that
which was initially sought in their notice
of motion. This was filed
into court immediately prior to the hearing of the matter. The gist
of what is sought in that order is
to declare the first respondent’s
actions in failing to provide RDP houses to the qualifying
beneficiaries as invalid and
in breach of the constitution.
Furthermore, the applicants sought an order reviewing and setting
aside the arbitrary, irrational
and unreasonable allocation of the
RDP houses especially in ward 4 and 5 of the first respondent. The
applicants also sought a
detailed report regarding the allocation of
RDP houses and for this court to play a supervisory role in bringing
in to order the
allocation of RDP houses. In support of these
arguments, the applicants relied on various case law authorities and
in particular,
Constitutional Court cases dealing with declaratory
relief and monitoring or supervisory roles usually played by the
courts. The
applicants abandoned the order seeking the appointment of
external auditors in their revised draft order.
[20]
In my view it was necessary for the applicants to approach the court
in order to get adequate and appropriate
responses from the first
respondent. This became more evident when the first respondent, in
its answering affidavit, acknowledged
that there were problems in its
allocation of RDP houses without any offer of how to resolve those
problems. Despite numerous meetings
to try and resolve the issues,
nothing has come to fruition. This concession and the failure by the
first respondent to properly
regularise its allocation of RDP houses
is clear evidence of the first respondent’s failure to comply
with its constitutional
obligation of providing adequate houses to
the qualifying RDP applicants. The applicants, therefore, were
justified to come to
court to enforce their rights as enshrined in
the constitution and the various pieces of legislation referred to in
the draft order.
[21]
The next question to be answered is what remedies should the court
award. In
Minister of Health and Others v Treatment Action
Campaign and Others
(No.2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) para 106 the
court held that
‘
[w]here
a breach of any right has taken place including a socio-economic
right, a court is under a duty to ensure that effective
relief is
granted. The nature of the right infringed and the nature of the
infringement will provide guidance as to the appropriate
relief in a
particular case. Where this is necessary this may include both
issuing of a
mandamus
and the exercise of supervisory jurisdiction.’
[22]
Are the declaratory orders sought by the applicants are vague, too
broad to have any meaningful content?
Mr
Blomkamp
SC
referred this court to a quote from
The
Minister of Justice and Constitutional Development vs Southern Africa
Litigation Centre and others
2016 (3) SA 317
(SCA) para 107 that ‘a broad statement that
conduct was inconsistent with the Constitution did little to define
where the
shortcoming lay’.
This passage does not
assist the first respondent in the face of the applicant’s
founding affidavit where it outlined the
glaring shortcomings in the
first respondent’s allocation of RDP houses.
[23]
This went to the extent that criminal charges were laid against some
employees of the first respondent. This
was after the first
respondent failed to investigate the allegations of misconduct
against its employees. This evidence was never
refuted or challenged
by the first respondent. Furthermore, despite numerous meetings being
held with the first respondent in order
for it to sort out the
issues, these were fruitless. Where the first respondent fails to
discharge its duties and obligations towards
its residents, it cannot
be said to be consistent with the constitution.
[24]
Furthermore, as held in
Economic Freedom Fighters vs Speaker,
National Assembly and others
2016 (3) SA 580
(CC) para 103,
‘
[d]eclaring
law or conduct inconsistent with the constitution and invalid is
plainly an obligatory power vested in the court as
borne out by the
word “must”. … [Declaring such conduct or law to
be inconsistent with the Constitution] is
not reserved for special
cases of constitutional invalidity’.
In
my view, therefore, the conduct of the first respondent in failing to
allocate appropriately RDP houses to rightful and qualifying
recipients, to prevent fraudulent activities and manipulation of the
RDP housing lists, to resolve all the disputes relating to
the
allocation of the RDP houses including contradictory RDP housing
lists and to take steps to resolve these issues is inconsistent
with
the first respondent’s obligations as outlined in section 26 of
the Constitution and
section 9
of the
Housing Act 107 of 1997
and
various other related legislation.
[25]
Mr
Blomkamp
argued that it would not be appropriate for this
court to grant a declaratory order as no consequential relief had
been sought
in the event of such order being granted. This is not
correct. There are various consequential remedies sought by the
applicants
as indicated in the draft order. One is a structural
relief which Mr
Blomkamp
has opposed on the basis that it can
only be granted where there has been a failure to comply with court
orders and further that
this court should not involve itself in the
process of monitoring steps to be taken to remedy the problematic
situation. His concession
is a clear indication that this court
should do or have something done to remedy the situation.
[26]
Section 172(1)(b) of the Constitution enjoins the courts to make any
order that is just and equitable after a finding
of inconsistency
with the Constitution has been made. As held in
Kenton-on-Sea
Ratepayers Association and others vs Ndlambe Local Municipality and
others
2017 (2) SA 86
(ECG) para 115 it
is appropriate in certain matters to grant the structural interdict
also referred to as a supervisory order.
This is so especially where
there is a reason to believe that the government (the municipality)
will not comply completely with
the order which is very likely in
this application as the municipality has failed to comply with its
constitutional obligations.
The court, therefore, has a duty to
ensure that the conduct and the actions complained of are remedied.
Since the first respondent
has not been co-operating with the
applicants, it is necessary to grant a supervisory order. In the
circumstances the court has
a duty in terms of section 172(1)(a) of
the Constitution to declare the conduct of officials of the first
respondent to be unlawful.
[27]
It follows therefore that where there has been improper performance
of an administrative function, the aggrieved
party is entitled to an
appropriate relief.
Moseneke
DCJ emphasized in
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
CC
para 29 that
‘
In
each case the remedy must fit the injury. The remedy must be fair to
those affected by it and yet vindicate effectively the right
violated
… The purpose of a public law remedy is to pre-empt or correct
or reverse an improper administrative function …
Ultimately
the purpose of a public remedy is to afford the prejudiced party
administrative justice, to advance efficient and effective
public
administration compelled by constitutional precepts and at a broader
level to entrench the rule of law.’
In
light of the importance of the right to housing and the impact on and
potential prejudice to a large number of beneficiaries,
it is, in my
view, in the public interest that the RDP houses are allocated
properly. In these circumstances it is appropriate
to impose a
structural interdict requiring the first respondent to report back to
this court at various stages of such allocations.
[28]
The applicants have succeeded in their application for the various
orders it sought. I see no reason why
the costs should not follow the
result.
Order
[29]
Accordingly I grant the following order:
1.
The first respondent’s action is inconsistent with and in
breach of the Constitution
of the Republic of South Africa,
particularly in terms of sections 1, 9, 10, 25, 26, 33, 41 and 195
and is declared invalid in
that it manifests the following:
1.1
Arbitrary application and manipulation of the reconstruction and
development programme (RDP) housing
waiting lists;
1.2
Unclear RDP housing allocation system and policies; and
1.3
Corrupt allocation of RDP houses to RDP housing applicants.
2.
The first respondent’s action regarding the arbitrary,
irrational and unreasonable
allocation of RDP houses in wards 4 and 5
of the first respondent is reviewed and set aside in terms of
Promotion of Administrative Justice Act No. 3 of 2000
.
3.
The first
respondent is directed to file a report with this court within two
(2) months of the date of this order.
3.1
The report
shall:
3.1.1
Identify all the applications for RDP houses pertaining to ward 4 and
5 within the first respondent’s jurisdiction;
3.1.2
For each application for RDP house, indicate whether it has been:
3.1.2.1
Approved or rejected;
3.1.2.2
If rejected, indicate why it was rejected; and
3.1.2.3
What the applicants for RDP housing subsidy should do in order for
their applications to be approved.
3.1.2.4
Explain the steps the first respondent will take in order to process
and finalize applications for RDP houses
and allocate houses to the
correct applicants;
3.1.2.5
Explain the steps and criterion the first respondent will take in
order to ensure that people who are not eligible
for allocation of
houses are removed from occupation of houses;
3.1.2.6
Set measurable, periodic deadlines for progress.
4.
The said report shall be served on the applicants and be made
available on the first respondent’s
website. The parties,
including the second and third respondents, and any other interested
parties, shall engage meaningfully on
the report with a view to
identifying and agreeing on further remedies that would conduce to
granting access to housing.
5.
The parties shall submit preferably a joint report and failing that
individual reports to
the court regarding further remedies that would
conduce to granting access to housing.
6.
On receipt of the report(s) referred to in the preceding paragraphs
by 30 April 2018, the
court may, at any stage of its own accord or at
the request of any party, after having considered the submissions by
the parties,
make any further directions or orders as it deems fit to
enable the right of access to housing.
7.
The applicants, and any other interested party, shall be entitled to
comment on these monthly
reports within 30 days after the date on
which they are filed and published on the first respondent’s
website.
8.
The first respondent shall pay the costs of this application.
POYO
DLWATI J
APPEARANCES
Date
of Hearing
:
27
November 2017
Date
of Judgment
:
09
February 2018
Counsel
for Applicant
:
Mr
Gama
Instructed
by
:
The
Legal Resources Centre c/o Mzila
Inc.
Respondent
:
Mr
Blomkamp SC
Instructed
by
:
Acutt
& Worthington Inc. c/o Tomlison
Mnguni
and James Inc.