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[2016] ZAECMHC 10
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Ntantana and Others v Mhlontlo Local Municipality and Another (CA51/15, CA52/15, 75/15/ 76/15, 3412/14, 3434/14, 3407/14) [2016] ZAECMHC 10 (5 April 2016)
OF
INTEREST
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO: CA 51/15
(Under
which are consolidated CA52/15, 75/15, 76/15)
CASE
NO. 3412/2014
(Under
which are consolidated 3424/14, 3434/14, 3407/14)
In
the matter between
NOMKHITHA
NTANTANA & OTHERS
Appellants
versus
MHLONTLO
LOCAL MUNICIPALITY
&
ANOTHER
Respondents
APPEAL
JUDGMENT
HARTLE
J:
1.
The
matter comes before us as an appeal against a judgment of this court
sitting as the court of first instance, leave on petition
having been
granted to the appellants by the Supreme Court of Appeal.
2.
The
appellants, all indigent residents of the Chris Hani Park informal
settlement in the District of Tsolo, issued four separate
applications
[1]
out of the
court
a
quo
on
an urgent basis on 26 November 2014 after their homes were summarily
demolished, in which the respondents (the local municipality
and its
municipal manager respectively) were called upon to show cause by the
following morning why certain interim relief and
other orders should
not be granted in the following terms:
“
1.1
THAT the First, Second, Third and Fourth Respondents
[2]
be
and are hereby authorised to take all reasonable and necessary steps;
1.1.1
THAT the Respondents or
anyone acting through them are interdicted or restrained from not
preventing any persons acting through
them from invading and/or
undertaking the demolition of any structure and/or placing any
material upon the Applicants immovable
properties situate at Chris
Hani Park in the district of Tsolo in the Province of Eastern Cape.
1.1.2
THAT the Respondents be
and are hereby interdicted and/or restrained from removing any
materials or movable property in the Applicants
houses situate at
Chris Hani Park in the district of Tsolo in the Province of Eastern
Cape;
1.1.3
THAT the Respondents be
and are hereby ordered to restore the Applicants whose immovable
property has been dismantled and/or demolished
to their status quo
before the cause of action.
1.1.4
THAT the Respondents or
anyone acting through them be and are hereby interdicted and/or
restrained from dismantling and/or demolishing
any immovable
structure or structures that have been constructed by the Applicants
at their own costs.
1.2
THAT the Respondents or
anyone acting through them be and are hereby interdicted and/or
restrained from invading the Applicant’s
already constructed
structures (houses) pending the provision of an alternative
accommodation.
1.3
THAT the Respondents be
and are hereby ordered to pay the costs occasioned thereby jointly
and severally the one paying the other
to be absolved.
2.
That paragraphs 1.1 and
1.2 hereof shall operate as an interim mandamus with immediate effect
pending the return date.”
[3]
(Sic)
3.
Apart
from each appellant’s personal circumstances being set
forth,
[4]
the allegations in
each application were essentially the same and each matter was
predicated on a standard certificate of urgency.
The lead
appellant, if I may refer to her as such, Ms. Nomkitha Ntantana,
explains that once it became clear to them that the respondents
were
intent on demolishing their structures, the affected residents
rallied together and resolved that one of them should approach
Legal
Aid South Africa in Mthatha to launch an application for an interdict
restraining the first respondent from carrying out
such intention.
Rather lamentably Legal Aid South Africa did nothing to advance their
cause and so she and the rest of the
appellants approached various
attorneys who were prepared to assist them on a
pro
bono
basis.
[5]
4.
The
essential allegations gleaned from a conspectus of the founding
affidavits in the four applications are the following:
4.1
the
appellants are all indigent persons, alternatively derive an income
from informal sources;
4.2
each
of them had moved to and informally settled in the area known as
Chris Hani Park because they could not afford to pay rent
to property
owners in the nearby township;
4.3
the
municipality never had any issue with them settling where they did;
4.4
some
of the appellants have lived at the informal settlement together with
their children for more than a decade;
4.5
on 5
November 2014 the speaker and mayor of the first respondent called a
meeting with the residents of Chris Hani Park at the town
hall;
4.6
the
residents were informed by them that the municipality wished to build
subsidy (“RDP”) houses for them in Chris Hani
Park;
4.7
an
“agreement” or understanding was reached that the
residents would not be without accommodation pending construction
of
the RDP houses;
[6]
4.8
the
following day the mayor and the speaker instructed the residents to
vacate their structures on or before 21 November 2014;
4.9
the
appellants claim that they did so in breach of the “agreement”
reached on 5 November 2014;
[7]
4.10
on 21
November 2014 Mr. Hlabiso, a ward councilor of the first respondent,
arrived with a TLB machine
[8]
and started to demolish the appellants’ homes without a court
order;
4.11
some
residents began demolishing their own structures with a view to
salvaging materials;
4.12
residents
protested; and
4.13
Mr.
Hlabiso said that he would return on 24 November 2014 to continue the
demolitions. He did not do so on that day, but made
a
reappearance on 25 November 2014.
5.
The
appellants contended generally in their founding affidavits that:
5.1
the
demolishment and dismantling of their structures constituted illegal
acts since the ward councilor and other unknown officials
of the
first respondent who displaced them from their homes in this manner
did so without an order of court, in violation of the
law and the
Constitution;
5.2
in
respect of their evictions (made manifest by demolishing their
structures) they were entitled to proper notice and alternative
accommodation being put in place;
5.3
the
first respondent at whose instance the demolitions were effected was
liable for the unlawful action and in any event liable
on a statutory
and constitutional basis to facilitate their access to adequate
housing under the circumstances;
5.4
an
interdict would in the short term and pending the return
date/finalization of the application in respect of the constitutional
relief being sought restrain the respondents from demolishing their
homes further or evicting them or removing their belongings
without
an order of court;
5.5
even
in respect of the partly demolished houses, these were not conducive
for habitation in such an un-reconstituted state;
[9]
5.6
none
of the applicants were in a position to arrange alternative
accommodation for themselves or for their families;
5.7
even
though the respondents may have been acting in terms of a policy by
seeking to address the constitutional rights of access
of all the
affected parties to adequate housing, the implementation of that
policy, in the manner in which it was being undertaken,
was not
reasonable by virtue of the fact that it entailed the residents
being removed from their homes without any alternative
accommodation being provided in the interim while the subsidy houses
were being built;
5.8
the
conduct of the respondents amounted also to spoliation. The
appellants had been in peaceful and undisturbed possession
of their
property, which the respondents had deprived them of in a violent or
unlawful manner and against their will.
6.
The
respondents under great haste prepared a short standard affidavit, a
copy of which was filed in each matter, the ostensible
objective of
which was to deal with, and stave off, interim relief only at that
time.
[10]
It was stated
at paragraph 2 of the affidavit deposed to by the acting municipal
manager of the first respondent that:
"This
is a short affidavit that I depose to in order to avert the granting
of an interim interdict against me and the First
Respondent. We have
not had sufficient time to consult with legal Counsel and to deal
with all the allegations made in the various
Applicants' affidavit. I
also do not propose to deal with those allegations on a paragraph –
by – paragraph basis as
time is simply not permitting. This
matter was called in Court at about 12h00 on the 27 November 2014 and
I had time to meet Counsel
and had this affidavit prepared between
then and 14h15 when the matter was due to be called. Within the time
available, I could
only lay the basis for the opposition of the
application for interim relief, which if granted, I will motivate and
file a full
answering affidavit that deals with the totality of the
issues that come out of the various Applicants' affidavits."
7.
Setting
out the basis for their opposition “today”, the
respondents:
7.1
averred
that the application stood to be dismissed on account of the
appellants’ non-compliance with the provisions of section
35 of
the General Law Amendment Act,
[11]
which requires not
less than seventy-two hours’ notice of an application against
an organ of state for interim relief.
(It was further contended
that in any event the appellants had not made out a case for their
failure to be condoned);
[12]
7.2
deny
that
the
respondents
had demolished or intended to demolish any of the applicants’
structures;
7.3
deny
that the first respondent’s employees had taken possession of
any of the appellants’ property or threatened to
dispossess
them;
7.4
deny
that the first respondent could in any event be held vicariously
liable for the acts of its mayor and speaker, not being its
employees. It was however acknowledged that the municipality
had not had time to investigate the veracity of the allegations
against the speaker, mayor and unknown officials said to be
implicated in the demolishment of the appellants’ homes given
the haste with which they had been brought before the court to deal
with the appellants’ request for interim relief at least
at
that time; and
7.5
contended
that since the appellants had either demolished their own homes or
that the demolitions had already occurred and were
not imminent so to
speak, the grant of a spoliation remedy was not competent.
8.
Whilst
shying away from the claim that the first respondent had been
responsible for this unfortunate turn of events, there was
no denial
by either of the respondent that the appellants had in effect been
evicted from their homes without an order of court.
As an aside
I point to the irony that, in opposition to the appellants’
later application to the Supreme Court of Appeal
for leave to appeal
to this court, the respondents deposed to an affidavit in which they
averred that they “never intended
to demolish the appellants’
houses without following due process of the law,” thus
acknowledging and respecting that
(if they were so minded to evict
them) such a process is vitally necessary.
9.
When
the matter was called before the court
a
quo
in motion court there was a request that the applications be dealt
with together, with a single order being issued. In the
result
and on the basis of this request it appears that the court
consolidated the four matters. This aspect is of some relevance
to the issue of costs which I deal with later.
10.
In
a pithy, if not uncharitable, reading of what the appellants’
complaints were about and how they required the court
a
quo
to deal with the matter going forward, the respondents’ counsel
submitted that their case made out on the papers was simply
that of
spoliation, and because the appellant’s dwellings had already
been demolished, the remedy of restoration was no longer
possible.
The remedy was also not available to those who had themselves taken
down their structures to salvage the building
materials.
11.
In
the Ntantana matter counsel pressed in for interim relief in the form
of orders preventing the respondents from demolishing the
appellants’
structures (some of which were alleged to still be standing) and from
removing material from their properties.
In the other
applications interim relief was sought in the form of orders that the
respondents refrain from interfering with their
properties and that
they be ordered to rebuild the dwellings that had been demolished.
Counsel for the appellants further
sought to urge upon the court
a
quo
that the relief being sought by them in the long term was more in the
nature of an adaptation of the
mandament
van spolie
,
or constitutional relief, to include reconstituted restoration in
respect of those homes which had evidently been flattened arising
upon the unlawful eviction from their homes.
12.
In
a judgment delivered five days later the court
a
quo
- remarking upon the pity that these applications had come before it
in the form of
mandament
van spolie
,
refused the relief without further ado on the basis that “the
mandamentum
van spolie
does not avail in these proceedings”. Being sensitive to
the plight of the destitute appellants, however, no order
as to costs
was made.
13.
Having
viewed the application before it as strictly spoliation proceedings,
it appears that the rationale for the decision of the
court
a
quo
was that restoration was no longer possible because the appellants’
structures were demolished completely
[13]
.
To order them to be rebuilt would further according to the court be
going beyond the ambit of the
mandament
.
That this was the basis for the decision is clear from the following
passage:
“
Spoliation
proceedings have an underlying principle that of restoration of the
status
quo
ante
.
These being application proceedings, there is no evidence on the
papers as to whether that is still possible. The
respondents in
their answering affidavit mention that restoration is no longer
possible in that the structures were demolished
completely and
therefore spoliation, the mandamentum van spolie, does not avail the
applicants. In a number of decisions
of our courts this is a
view that has always been taken by our courts, except for a few cases
where it has been held that where
structures have been demolished,
the municipality or whoever has destroyed those structures must again
rebuild. In a number
of cases in our law that has been held to
go beyond the scope of the mandament van spolie that borders on
holding the other party
liable for damages and not restoring what was
there before.”
14.
In
the later application by the appellants for leave to appeal founded
upon the grounds
inter
alia
that the court
a
quo
had erred in finding that the respondents could not be ordered by
crafting constitutional relief to rebuild or restore the houses
that
had been demolished pending the provision of alternative
accommodation, the court
a
quo
- despite the issue of the respondents’ liability for the
demolitions/evictions not ostensibly being in issue in its judgment,
purported to justify for the first time the refusal of relief to the
appellants on the further basis that the respondents could
not be
held liable for the demolition of the properties. Apart from
this reservation, however, the court appeared to lean
in favour of
finding that the constitutional issue
might
have been relevant
.
15.
The
following passages from the judgment demonstrate this shift change in
approach:
“
In
broad terms the arguments advanced by (counsel for the applicants)
attacked the judgement on the following grounds:
The court a quo erred in not
considering the applicability of the provisions of sections 1(C),
26(3) and 38 of the Constitution.
In substantiation, Counsel
for the applicants argued that whilst they had no issue on the
judgment of the court a quo regarding
the law on spoliation, they
were of the view that the court should have applied section 38 of the
Constitution and ordered that
those houses be reconstructed as the
applicants were arbitrarily deprived of their rights and were left
remediless due to the non-applicability
of spoliation. In this
regard Counsel referred to a number of decided cases, amongst others,
namely
Tswelopele Non-Profit Organisation and 23 Others v City of
Tshwane Metropolitan Municipality & Others
2007 (6) SA 511
(SCA).
The
court erred in not making an order that alternative accommodation be
made available to the applicants as was decided in the
Tshwelopele
matter.
(And
after referring to paragraph 17 of the
Tswelopele
judgment continued as follows…. :)
Whilst
the constitutional issue might have been relevant in this matter and
as such the Tswelopele decision binding, there is a
missing link,
namely had it been established that Mr Hlabiso was an employee of the
municipality and can the municipality or its
manager be held labile
for the demoltion of the said properties? If the answer thereto
is negative, there would be no basis
for this court to grant the
orders sought by the applicants against the respondents.”
16.
Counsel
for the appellants assert in the appeal before us that the court
a
quo
-
apart from failing in respect of the immediate interim relief being
sought to distinguish one appellant’s situation from
another in
the sense that some of their structures were completely demolished
and others still under threat of demolishment (the
mandament
thus not being precluded and/or an interdict justified in certain of
the scenarios), erred in not finding that an order of reconstituted
restoration in the case of complete destruction could be fashioned by
the court as an effective constitutional remedy in the peculiar
circumstances of the matter. In so doing the court had
disregarded the infringement of the appellants’ rights not to
have their structures demolished or to be evicted without an order of
court and had in effect condoned the illegality.
17.
There
is merit in this submission. What loomed on 27 November 2014
before the court
a
quo
was the question of interim relief in the form of an interim
interdict and, in the long term, the issue of constitutional relief
advanced by counsel and foreshadowed by the papers. The court
certainly shut the door to the issue of an effective constitutional
remedy by summarily dismissing all the applications.
18.
It
is necessary to examine how our courts have dealt with remedies aimed
at reparation in the context of evictions in our post-constitutional
democracy.
19.
In
Schubart Park Residents' Association and Others v City of Tshwane
Metropolitan Municipality and Another
[14]
the Constitutional Court noted the interplay between the ordinary
requirements of spoliation and the demands of section 26 (3)
of the
Constitution. When an applicant seeks an order in the High
Court for restoration on the ground that he was despoiled
of the
possession of his home, this immediately adds the dimension of
section 26 (3) of the Constitution to what would otherwise
have been
a normal spoliation application. The limited spoliation remedy
is however aimed only at restoration of possession.
It does not
determine the lawfulness of competing claims to the object or
property. For this reason, there are, under the
common law,
only a limited number of defences available to a spoliation claim,
impossibility being one of them.
[15]
20.
In
Rikhotso v Northcliff Ceramics (Pty) Ltd & Others
[16]
it was emphasized that a spoliation order may not be granted if the
property in issue has ceased to exist. This is because
the
remedy is of limited effect, namely for the restoration of
possession, not for the making of reparation. The Supreme
Court
of Appeal in Twelopele Non-Profit Organisation & Others v City of
Tshwane Metropolitan Municipality & Others
[17]
confirmed the doctrinal analysis in Rikhotso to be correct.
21.
A
mandament
enjoins breaches of the rule of law and serves as a disincentive to
self-help. The express object of the common law remedy
is the
interim restoration of physical control and enjoyment of specified
property – not its “reconstituted equivalent”.
The court in Tshwelopele observed that an insistence that the
mandament
be
extended to mandatory substitution of the property in dispute would
be to create a different and wider remedy than that received
into our
law which would result in its losing its possessory focus in favour
of different objectives, including a peacekeeping
function.
[18]
22.
In
Tswelopele approximately one hundred people were removed from their
homes on a vacant piece of land in Garsfontein, a suburb
of
Pretoria. They approached the High Court for a spoliation
order. In the process of removal the materials used in
the
construction of their dwellings had been destroyed, with the result
that they could not be restored to the possession of their
homes.
The High Court, following Rikhotso, held that because of this
destruction, it could not order restoration under the
mandament
van spolie
.
On appeal the Supreme Court of Appeal wrestled with the conundrum
that people whose homes have been destroyed would for
this reason
then be left remediless. The question with which it was faced
was whether the present day remedy lay in the development
of the
common law spoliation, or in some other way. The court resolved
that, having regard to the anomaly that the residents
would be left
remediless, relief under section 38 of the Constitution was
necessary. It concluded as follows:
“
It
is correct … that the rule of law is a founding value of the
Constitution. This would suggest that constitutional
development
of the common law might make it appropriate to adapt the
mandament
to include reconstituted restoration in cases of destruction. And
counsel is certainly correct in submitting that the absence of
a
remedy mandating substitution of unlawfully destroyed property could
create a perverse incentive for those taking the law into
their own
hands to destroy the disputed property, rather than leaving it
substantially intact.
But
as already indicated, I do not think that formulating an appropriate
constitutional remedy in this case requires us to seize
upon a common
law analogy and force it to perform a constitutional function. For
there is a further dimension to the case, which
takes the matter
beyond even a developmentally enhanced
mandament
: the relief
we give must vindicate the Constitution. As Kriegler J noted in
Fose
,
‘the harm caused by violating the Constitution is a harm to the
society as a whole, even where the direct implications of
the
violation are highly parochial. The rights violator not only harms a
particular person, but impedes the fuller realisation
of our
constitutional promise’:
‘
Our
object in remedying these kinds of harms should, at least, be to
vindicate the Constitution, and to deter its further infringement’.
Vindication,
Kriegler J noted, ‘recognises that a Constitution has as little
or as such weight as the prevailing political
culture affords
it’. Essentially, the remedy we grant should aim to instil
recognition on the part of the governmental
agencies that
participated in the unlawful operation that the occupiers, too, are
bearers of constitutional rights, and that official
conduct violating
those rights tramples not only on them but on all. The remedy should
instil humility without humiliation, and
should bear the
instructional message that respect for the Constitution protects and
enhances the rights of all. It is a remedy
special to the
Constitution, whose engraftment on the mandament would constitute an
unnecessary superfluity.
The
occupiers must therefore get their shelters back. Placing them on the
list for emergency
Grootboom
assistance
will not attain the simultaneously constitutional and individual
objectives that re-construction of their shelters
will achieve. The
respondents should, jointly and severally, be ordered to reconstruct
them. And, since the materials belonging
to the occupiers have been
destroyed, they should be replaced with materials that afford
habitable shelters. But because the occupiers
are avowedly unlawful
occupiers, who are vulnerable to a properly obtained eviction order
under PIE, the structures to be erected
must be capable of being
dismantled.”
[19]
(Footnotes
omitted.)
23.
Fose
v Minister of Safety and Security (referred to in the passage
above)
[20]
was decided under
section 7 (4) (a) of the Interim Constitution. Section 38 of
the Constitution, its present day complement,
provides that:
“
(a)nyone
listed in the section had the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
24.
Whilst
in Tswelopele the court upheld the distinction between the common law
requirements for spoliation and that of constitutional
relief under
section 38 of the Constitution, it granted the eventual
constitutional relief even though the matter was brought purely
as a
spoliation application. In the present instance, however, as in
Schubart Park, the appellants pertinently referred to
an infringement
of section 26 (3) of the Constitution, which provides that:
(3)
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. ...”
25.
The
appellants relied
in
casu
upon an infringement of section 26(2), read with 26(1), of the
Constitution as well. Sub-section (1) provides that “everyone
has the right to have access to adequate housing” and
sub-section (3) that “(t)he State must take reasonable
legislative
and other measures, within its available resources, to
achieve the progressive realisation of this right”. This
gives
a context to the appellants’ insistence that it is
tantamount to an unreasonable implementation of the subsidy scheme
that
they find themselves without their homes or alternative
accommodation whilst the building of the RDP houses are underway.
There is no contest in the brief affidavits that were exchanged
between the parties that there was an obligation on the part of
the
first respondent to consider the interests of the residents in
undertaking the building of the contemplated subsidy programme
to
upgrade the settlement. Further, as indicated above, the first
respondent acknowledges that it is impermissible that the
appellants
should be evicted without due process of the law.
26.
The
last word on the distinction to be drawn between the
mandament
remedy and that of constitutional relief under section 38 of the
Constitution was dealt with in
Schubart
Park
in
the following manner:
“
I
agree that it is conducive to clarity to retain the “possessory
focus” of the remedy of spoliation and keep it
distinct
from constitutional relief under section 38 of the Constitution. This
is because the order made in relation to factual
possession in
spoliation proceedings does not in itself directly determine
constitutional rights, but merely sets the scene for
a possible
return to the
status
quo
,
in order for the subsequent determination of constitutional rights in
relation to the property.
The
implication of this is that spoliation proceedings, whether they
result in restoration or not, should not serve as the judicial
foundation for permanent dispossession – that is, eviction –
in terms of section 26(3) of the Constitution.”
[21]
27.
The
judgment of the court
a
quo
reflects in my view a misconception as to the true nature of the
appellants’ causes of action and the case made out in the
papers. In the lead application it was not clearly spelt out in
the notice of motion that, apart from the necessity to grant
a
spoliation order where the circumstances justified this, an enquiry
in the long term into the illegality was also required
[22]
but in the other applications orders were pertinently sought
declaring the conduct of the respondents in interfering with or
demolishing
the property of the appellants to be unlawful. In
the absence of any justification by the respondents for the eviction
of
the appellants such as that it was necessary, or unavoidable, or
warranted on any particular basis, the question whether the alleged
interference with the appellants’ rights not arbitrarily to be
deprived of their homes was unlawful as a precursor to the
court then
determining appropriate constitutional relief would certainly still
require to be determined. There remains a
need to interrogate,
leaving aside the respondents’ denial that
they
are responsible therefor, whether there existed a valid reason for
the evictions. Having had regard to the very valid
considerations
placed on the record by the appellants which militated
against the precipitate demolition of their homes, it certainly seems
necessary
that the court’s reproval of the first respondent’s
conduct be starkly stated, and attenuated by appropriate orders.
28.
It
is unfortunate that, due to the all too hasty dismissal of the
appellants’ applications, leaving them without any remedy
whatsoever except the balm of not having to pay the costs of the
application to redress the tragic situation in which they found
themselves, they were denied the opportunity, on a return date and
once the respondents had replied more fully to their allegations,
of
the court redressing the harm to them occasioned as a result of
the violation of their constitutional rights by
the patently illegal
evictions (ostensibly by or at the instance of the first respondent)
without regard to the provisions of PIE.
I am inclined to agree
with Mr Zilwa that the consequence of the outright dismissal of the
applications is that the illegality
was in effect condoned.
29.
Further,
what the court
a
quo
was enjoined to do on 27 November 2014 was to consider the interim
relief, at least to the extent of an interdict to restore possession
and/or to prevent further destruction to the dwellings in those
instances where this was still possible. In this respect the court
a
quo
erred by not distinguishing one appellant’s situation from
another. Some of the appellant’s structures had not
been
entirely flattened and it was possible to return these to the status
quo
ante
.
The spoliation remedy remains a potent tool when it can avail a
person who has been dispossessed of something as vital as
his or her
home especially since it maintains
the
property for the subsequent determination of their constitutional
rights in relation thereto. The speedy nature of the
mandament
to assuage the unlawful deprivation of property before all else,
where possession is still possible, is ideal to counter unlawful
eviction and its value, as a stand-alone cause of action with its
peculiar remedy, should not be underestimated.
30.
The
evidence establishes overwhelmingly in my view that the well- known
requisites for the grant of interim relief were present
in the case
of those appellants whose structures were still standing and who
faced the imminent threat of eviction by the demolition
of their
homes.
[23]
Although the
respondents had denied that they were legally responsible for the
demolitions
[24]
it was
unnecessary for the court
a
quo
to determine that factual dispute conclusively on 27 November 2014.
31.
In
an application for interim relief, as opposed to final relief, an
applicant is saddled with a far less exacting onus of proof
particularly because the intent of such relief is, in most cases, to
preserve the status
quo
between the parties so as to allow them space and time to place full
and proper evidence before the court to facilitate the determination
of final relief, which carries with it a far more exacting onus.
Jones J was clearly alive to this distinction in the matter of
Pinzon
Traders 8 (Pty) Ltd. v Clublink (Pty) Ltd. & Another
[25]
when he said the following:
“
This
conclusion makes it unnecessary for me to consider whether or not the
applicant has proved a clear contractual right, alternatively,
a
clear right, based on the first respondent's breach of statutory
obligations, rendering the construction of the walls illegal,
which
entitles it to the relief of a final interdict. This is, perhaps,
just as well, from the point of urgency. A proper consideration
of
the issues and side issues on the interdict question would have
involved considerable time, analysis and possible delay. As
it is,
the parties now have the benefit of a speedy judgment in a matter of
urgency. My prima facie conclusion is that, while I
think there may
be merit in Mr Ford's argument, that I could decide the interdict on
the papers and that I could disregard so-called
disputes of fact as
totally confused and insufficiently formulated, it would
not be proper to do so, in the light of
certain deeply contested
credibility issues.”
32.
In
the result this court is entitled to interfere with the orders of the
court
a
quo
.
33.
In
the long term (and assuming a finding in favour of the appellants on
the issue of the liability of the respondents) the court
will be
obliged to consider what remedy falls to be granted to the appellants
in the circumstances which effectively redresses
the harm done to
them, vindicates the Constitution and seeks to deter its further
infringement.
34.
In
Hoffman v South African Airways
[26]
the court approached the question of appropriate relief under section
38 as follows:
“
The
determination of appropriate relief, therefore, calls for the
balancing of the various interests that might be affected by the
remedy. The balancing process must at least be guided by the
objective, first, to address the wrong occasioned by the infringement
of the constitutional right; second, to deter future violations;
third, to make an order that can be complied with; and fourth,
of
fairness to all those who might be affected by the relief.
Invariably, the nature of the right infringed and the nature of the
infringement will provide guidance as to the appropriate relief in
the particular case. Therefore, in determining appropriate relief,
‘we must carefully analyse the nature of [the] constitutional
infringement, and strike effectively at its source’.”
35.
Mr
Zilwa pointed out that the appellants no longer require an interim
interdict since the threat of demolishment has come and gone
and
culminated in the permanent eviction of the appellants from their
homes. However he submitted that it remained incumbent
on this
court to impose a remedy in line with the provisions of section 38 of
the Constitution and what is proposed is reconstituted
restoration by
allowing the appellants to put up their structures again, albeit on a
temporary basis until they are allocated permanent
homes in the RDP
programme. It appears that this is both possible, since the
respondent has vacant land available and that
the proposed
intervention is affordable. The temporary accommodation need
not be where their structures previously stood.
[27]
36.
Despite
counsel’s submission that interim relief is no longer
necessary, it appears desirable that whatever order this court
makes
in substitution of the order of the court
a
quo
should
be in the form of interim relief to enable the respondents on the
return date to show cause why final relief should not be
granted.
This is because (in respect of the issues in dispute) the respondents
should be afforded an opportunity to respond
more fully and because
the test used to resolve factual issues is entirely different when
final relief is under consideration.
In this regard the
dictum
of Harms DP in the case of National Director of Public Prosecutions v
Zuma
[28]
is apposite:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant's (Mr
Zuma's) affidavits, which have been admitted by the
respondent (the
NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent's
version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact,
is palpably implausible, far-fetched or
so clearly untenable that the
court is justified in rejecting them merely on the papers. The court
below did not have regard to
these propositions and instead decided
the case on probabilities without rejecting the NDPP's version.”
37.
But
regardless of the factual dispute concerning who demolished the
appellants’ properties, the first respondent should not
lose
sight of its obligation to meaningfully engage with the appellants
and to find a reasonable solution to the problem which
is that they
have been permanently evicted from their homes, whether it is as a
result of the respondents’ own making or
someone else’s.
Even if the property on which the appellants’ shacks were
located has been handed over to the
Department of Human Settlements,
the first respondent remains the developer and responsible at its
sphere of government on a co-operative
basis with the national
department to ensure a reasonable implementation of the housing
programme.
[29]
It has
not been denied that the appellants were long time occupiers at the
informal settlement and adversely affected by
what appears to be the
unreasonable implementation of a housing policy. We were
informed by Mr Zilwa that the appellants
have not been included in
the list of beneficiaries to whom permanent RPD houses in the
settlement have been allocated. This
must be explained in
response to the complaint that the appellants’ rights of access
to adequate housing have also been infringed.
The most
reasonable solution appears to be to include them. The first
respondent is in any event enjoined to give priority
to the needs of
the poor in respect of housing development.
[30]
38.
Before
concluding I need mention that the respondents applied at the
eleventh hour to introduce further evidence on the basis that
it
would demonstrate that the subject matter of the appeal had become
academic. The exchange of affidavits in that interlocutory
application brought with it its own dispute of fact regarding whether
the housing development of Tsolo Extension 7 (now in an advanced
stage) was being built on the self-same sites from which the
appellants had been displaced, or elsewhere. I am inclined to
allow the application but not for the effect intended by the
respondents. Once it is accepted that the appellants were
seeking
more than just a spoliation remedy it matters not whether
factual possession is still or isn’t possible. The fact
remains
that the appellants have been evicted in effect and are
homeless, and it is this information which I consider relevant to
permit
in amplification, in terms of section 19 (b) of the Superior
Courts Act
[31]
.
39.
I
looked with some expectation in the recent affidavits to see what
solution may have been offered by the first respondent to the
appellants to ameliorate their predicament, given that it is at least
constitutionally bound to do so, but I found none.
On the
contrary what the affidavits reveal, quite lamentably, is an
unacceptable attitude on its part that it has no constitutional
obligation to concern itself with the appellants’ plight.
It is narrow-minded to seek to persuade this court that because
the
site which the appellants first occupied has now been built upon that
that is the end of the matter. The affidavits also,
as Mr Zilwa
astutely observed, give the unfortunate impression that the first
respondent is thumbing its nose at the destitute
appellants, showing
them glossy photographs of the houses that have been built on the
sites previously occupied by them which they
are evidently not to
benefit from. If the first respondent does so unwittingly then
it is reprehensible that it has no idea
of its constitutional and
statutory obligations toward the appellants. It is worse if the
intention behind the elucidation
was to add insult to injury.
40.
It
is apposite to refer to the description by Cameron JA (as he then
was) in Tswelopele,
supra
- expressed with deep pathos, of the extent of the damage wrought on
unlawful occupiers arising upon the unlawful eviction from
their
homes and community even if only rudimentary shelters fashioned from
pieces of plastic and other waste materials salvaged
from surrounding
building sites had been used to construct their humble “homes”:
“
That the wanton
destruction of the occupiers' dwellings violated the Constitution was
not disputed. What must be owned is how far-reaching
and damaging the
breach was. The governmental agencies violated not merely the
fundamental warrant against unauthorised eviction, but
(given
the implicit menace with which the eviction was carried out) the
occupiers' right to personal security and their right
to
privacy. It infringed not only the occupiers' property rights
in their materials and belongings, but trampled on
their
feelings and affronted their social standing. For to be hounded
unheralded from the privacy and shelter of one's home, even
in the
most reduced circumstances, is a painful and humiliating indignity.
And it is not for nothing
that the constitutional entrenchment of the right to dignity
emphasises that "everyone" has
inherent dignity, which must
be respected and protected. Historically, police actions against the
most vulnerable in this country
had a distinctive racial trajectory:
white police abusing blacks. The racial element may have disappeared,
but what has not changed
is the exposure of the most vulnerable in
society to police power and their vulnerability to its abuse. Reading
comparable case
reports from the decades preceding these events,
it is impossible not to endorse appellant's counsel's submission that
in
its lack of respect for the poor and the vulnerable, and in the
official hubris displayed, what happened displays a repetition of
the
worst of the pre-constitutional past.”
[32]
41.
Although
I cannot condemn the respondents for ostensibly not owning their part
in this unfortunate tragedy - given their denial
of liability and
their procedural right to still file full and proper answering
affidavits and thus to place their full case before
the court, (as
opposed to the brief and hastily drawn affidavit which was evidently
designed to deal strictly with interim relief),
it is regrettable
that they appear not to appreciate the extent of the injury to the
appellants by the mere fact of the evictions.
They have also
seemingly disavowed any constitutional accountability for the
appellants’ situation which has endured now
for a considerable
period.
42.
For
this reason the application to introduce further evidence succeeds.
The aspect of costs is however an issue which should
stand over for
determination on the return date since there is a dispute of fact
even in respect of this exchange of affidavits.
43.
Given
the considerable lapse of time since the applications were dismissed
and the further delay that may be occasioned by the matter
being
remitted to the court
a
quo
for the exchange of further affidavits, the order which I intend to
make in substitution of the order appealed from will anticipate
the
issue of what relief may be appropriate should the High Court find in
the appellants’ favour that the eviction from their
homes, at
the particular instance of the respondents, was unlawful. This
aspect, of constitutional reparation, is in my view required
to be
addressed with some urgency.
44.
I
indicated above that I would return to deal with the aspect of costs
relative to the consolidation of the various matters. Mr
Dodson who
appeared for the respondents submitted that it would be unfair, if
the appeal was upheld, to mulct them with the costs
as if four
separate appeals were before us. It is to be noted however that
prior to the appeal being heard the appellants
were under the
impression (not unreasonably so) that the four matters, despite what
was said in the judgment of the court
a
quo
,
had not been consolidated. There had been no formal application
for consolidation although counsel for the appellants who
appeared at
the hearing before the court
a
quo
made a “special request” that an order in respect
of one matter should apply to the other 3 matter as well.
The
respondents’ counsel reverted after taking instructions
regarding the matters which were required to be opposed and placed
on
record that consolidation could be effected without a formal
application being made. But despite the court ostensibly
consolidating the matters, separate orders were still issued by the
Registrar after the applications were dismissed and four separate
applications for leave to appeal ensued. It appears that four
separate orders were also issued by the Supreme Court of Appeal
granting the appellants leave to appeal to this court. The
respondents filed only one set of heads of argument and were inclined
instead to treat the matter as a single consolidated matter upon
appeal.
45.
Whilst
being mindful that a costs order on any basis other than on the
premise that the matters were indeed consolidated by the
judgment of
the court
a
quo
seems proper, the attorneys who put themselves at risk to take on the
matters on a
pro
bono
basis should also not be deprived of their reasonable attendances in
cautiously ensuring that the circumstances of each separate
group of
appellants was properly placed before court, both in the separate
applications for leave to appeal and upon appeal ultimately.
I
expect therefore that the taxing master will be astute to recognize
that each firm representing each group of appellants (and
the counsel
employed by them) should be reasonably indemnified for their
respective attendances. It is commendable I must add that
the
attorneys (and counsel) were prepared to come to the assistance of
the appellants on a
pro
bono
basis in all the circumstances of the matter.
46.
In
the result I make the following order:
1.
The
appeal succeeds and the court
a
quo’s
orders dismissing the four applications are set aside.
2.
The
orders of the court
a
quo
are substituted with a single order, given the consolidation of the
matters, in the following terms:
"1.
A rule nisi issues calling upon the respondents to show cause, if
any, on Thursday, the 5
th
day of May 2016 at 09h30, or as
soon thereafter as the matter may be heard, why the following final
relief should not be granted:
1.1
that
it be declared that the eviction of each appellant by the respondents
by the demolition of their homes was unlawful;
1.2
that
the appellants are entitled to reconstituted restoration of their
homes as soon as possible, albeit on a temporary basis pending
the
permanent allocation of subsidy (“RDP”) homes to them, at
a place where they can be accommodated in the interim;
1.3
that
the temporary structures (using such of the materials still at the
appellants’ disposal as can be employed towards this
end) must
be such that they afford shelter, privacy and amenities at least
equivalent to the appellants’ structures that
were demolished,
and which are capable of being dismantled upon the allocation of
permanent RDP homes to them;
1.4
that
the appellants and the first respondent must through their legal
representatives, engage meaningfully with each other with
a view to
reaching agreement on the aspects referred to below and report on
affidavit to the High Court on a date to be determined
what they have
agreed and under what time frame their agreement is to be
implemented:
1.4.1
the
location where the appellants will be permitted to temporarily
reconstruct their dwellings;
1.4.2
the
manner in which the appellants will be assisted by officials or
agents of the first respondent in the substituted restoration
of
their dwellings;
1.4.3
the
stage at which the appellants can expect to be accommodated in the
permanent RDP homes and the time frames generally applicable
to the
expected milestones to be achieved in realizing their rights of
access to adequate housing ; and
1.4.4
the
availability of services to the appellants by the first respondent
and the conditions regarding payment under which these will
be
provided;
1.5
that
the court grant such other or further constitutional reparation to
the appellants as may seem meet as a result of the unlawful
eviction
from their homes by the respondents; and
1.6
that
the respondents pay the costs of the application.”
3.
The
appellants’ representatives shall by the return date envisaged
in prayer 1 above furnish to the respondents’ legal
representatives and to the High Court a comprehensive schedule
(reflecting the names, ages and gender of each person who occupied
the respective dwellings as at 25 November 2104 including whether
they are scholars or adults and whether they are employed or
not; the
original site allotment number of each dwelling if applicable; the
size of each dwelling (for e.g. 1 or 2 or 3 roomed
structure) and
what materials they were comprised of; the original date upon which
each appellant took up occupation of their sites
at the informal
settlement and confirmation of the status of each appellant’s
application for subsidy assistance;
4.
The
respondents are ordered to pay the costs of the appeal which costs
are to include the costs consequent upon the employment of
two
counsel.
5.
The
interlocutory application to introduce further evidence succeeds,
provided that the costs of this application shall be reserved
for
determination by the High Court upon finalisation of the entire
matter.
6.
The
Registrar is requested to forward a copy of this judgment to the
Director, Legal Aid South Africa, with a view to noting the
comment
of this court stated in footnote 5, read together with paragraph 5 of
the judgment.
_________________
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
_________________
Z
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA
I
AGREE
_________________
R
GRIFFITHS
JUDGE
OF THE HIGH COURT
DATE
OF APPEAL
:
19 February 2016
DATE
OF JUDGMENT :
5 April 2016
Appearances:
For
the appellants Mr. PHS Zilwa with Mr. L Kunju instructed by Babe &
Talapile Inc in Case no 3412/14; Mr. PHS Zilwa with Mr.
Z Nabela
instructed by Lwazi Gwaza Inc in Case no 3424/14; Mr. PHS Zilwa with
Mr.V Kunju instructed by Nkoli Madaza & Associates
in Case
no3434/14; and Mr. PHS Zilwa with Mr. Matotie instructed by Z Ntelezi
& Co in Case no 3407/14.
For
the respondents: Mr. A Dodson with Mr. A Bodlani instructed by Cingo
Attorneys.
[1]
The original four case numbers appear from the
face of the judgment. The appellants were joined variably in
the separate
applications which were ultimately consolidated.
The groups were represented by different firms of attorney, each of
which
had taken the matters on on a
pro
bono
basis.
[2]
There were no third or fourth respondents cited
in the matter ultimately. I assume that the appellants
intended to include
the speaker and mayor of the first respondent
respectively who were involved in community meetings with the
residents to inform
them of the housing development and how it would
impact them.
[3]
The notice of motion in the lead matter differed
somewhat from the other three applications in which the
applicants in those
matters prayed for an order in the following
terms:
“
1.
1.1 That
Applicant’s non-compliance with the rules relating
to forms,
short service and time limits be and is hereby condoned.
1.2 That
Applicant be and (are) hereby granted leave to move this
application
on urgent basis in terms of Rule 6(12) of the Uniform Rules of
Court.
2.
That a Rule Nisi do hereby issue calling upon the
Respondents to
show cause if any, on Thursday, the 4
th
day of November
2014 or so soon thereafter as the matter may be heard, why an Order
in the following terms should not be made
final.
2.1 That
the conduct of the Respondents of interfering and demolishing
Applicant’s property be declared unlawful;
2.2 That
the Respondents or any persons acting under their authority
be and
are hereby interdicted and/or restrained from interfering with
Applicant’s property;
2.3 That
the Respondents or any persons acting under their authority
be and
are hereby Ordered to rebuild the Applicants’ dwelling they
demolished;
2.4 The
1
st
and 2
nd
Respondents pay the costs of the
Applicant jointly and severally the one paying the other to be
absolved.
2.5 That
sub-paragraphs 2.1, 2.2 and 2.3 shall operate as interim
mandamus
pending the finalisation of this application;
2.5
Granting such further and/or alternative relief as it deems meet.”
(Sic)
[4]
Most of the appellants are women, each with dependent children, who
have been devastatingly impacted by the dispossession of
their
homes.
[5]
It is unacceptable that Legal Aid South Africa turned away the
appellants. Their mandate as provided for in the Legal Aid
South Africa Act, No. 39 of 2014, is to provide legal aid to
indigent persons who cannot afford legal representation, especially
vulnerable groups such as women and children (applicable in this
case) with a view to enhancing justice and public confidence
in the
law and administration of justice. It cannot be gainsaid that
an application by an obviously vulnerable person summarily
dispossessed of her home occupied for more than a decade, in order
to vindicate her constitutional rights of access to adequate
housing
and not to be evicted from her home or have it demolished without an
order of court after considering all the relevant
circumstances
(section 26(1) and (3) of the Constitution), should be among the
most urgent and pressing matters requiring legal
representation at
state expense. A copy of this judgment will be forwarded to
the Board of Directors of Legal Aid SA with
a view to establishing
why the appellants were failed in this instance so as to avoid a
recurrence of such an iniquity in the
future.
[6]
It is not clear whether the residents were informed that the new
houses would be built alongside their makeshift ones and the
latter
then destroyed with their consent, or whether they would be moved to
alternative accommodation pending the construction
of the new RDP
homes. The crux of the matter, however, is that despite
whatever undertakings were given, what followed
afterwards –
the ultimatum to residents to vacate their structures followed by
their summary demolition, was without their
consent or orders of
court.
[7]
See footnote 6.
[8]
I assume from the context that this is a
vehicle
that consists of a
tractor
like
unit fitted with a
shovel
/
bucket
on
the front and a small backhoe on the back, commonly used on
construction sites.
[9]
The import of this contention is that even part
demolition is in effect tantamount to an eviction. In section 1 of
the Prevention
of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (“PIE”) “evict”
means
to deprive a person of occupation of a building or structure, or the
land on which such building or structure is erected,
against his or
her will, and “eviction” has a corresponding meaning.
[10]
The affidavit is headed “Answering
Affidavit to oppose interim relief”.
[11]
62 of 1955.
[12]
This technical objection is richly ironic having regard to the
summary eviction of the appellants. The respondents did
not
insist at the hearing however that the matter was not urgent, or
that the aspect of at least the interim relief sought did
not
warrant the abridgement of time periods under the circumstances.
[13]
The court appears to have dealt with the matter
as if the infringement of the appellants’ rights had been
transient only,
without appreciating that their eviction, made
manifest by the demolitions, was of a permanent nature.
[14]
2013 (1) SA 323
(CC) at para 22.
[15]
Schubart Park
supra
at para 24.
[16]
1997 (1) SA 526
(WLD) at 535 A – B.
[17]
2007 (6) SA 511 (SCA).
[18]
Tswelopele
supra
at para 24
[19]
Tswelopele
supra
at
paras 25-8.
[20]
1997 (3) SA 786 (CC).
[21]
Schubart Park
supra
at para 29.
[22]
That a “
review” into the
constitutionality of the evictions was contemplated was certainly
emphasised in the certificate of urgency
filed in the Ntantana
application.
[23]
The
requisites for the granting of interim interdicts are well known.
Corbett J (as he then was) set them out in L F Boshoff Investments
(Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F
Boshoff Investments (Pty) Ltd
1969 (2) SA 256
(C) at 267A-F as
follows:
“
Briefly
these requisites are that the applicant for such temporary relief
must show:
(a)
that
the right which is the subject-matter of the main action and which
he seeks to protect by means of interim relief is clear
or, if
not clear, is prima
facie established, though open to some doubt;
(b)
that,
if the right is only prima facie established, there is a
well-grounded apprehension of irreparable harm to the applicant
if
the interim relief is not granted and he ultimately succeeds in
establishing his right;
(c)
that
the balance of convenience favours the granting of interim relief;
and
(d)
that the applicant has no other satisfactory remedy.”
[24]
The physical aspect of demolishment is but a part
of the act of an eviction. See footnote 9.
[25]
2010
(1) SA 506
(ECG) at paras 10 – 11.
[26]
2001 (1) SA 1
(CC) at par 45.
[27]
In Schubart Park
supra
,
the court ordered that alternative accommodation had to be provided
to the residents until the restoration of their occupation
from the
informal settlement from which they had been removed.
[28]
2009 (2) SA 290
at para 26.
[29]
See
Government of the Republic of South Africa
and Others v Grootboom and Others
2000 (11) BCLR 1169
(CC) at paras
[39] to [44] in which the court sets out the important functions of
municipalities with regard to the rights of
all to have access to
adequate housing;
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at par
[56]
;
See also section 2 (1)(b) of the
National Housing Act which obliges a municipality to consult
meaningfully with individuals and
communities affected by housing
development; section 2 (1) (c) which provides that a municipality
must ensure that housing development
is administered in a
transparent, accountable and equitable manner, and upholds the
practice of good governance; section 2 (e)
(x) that obliges it to
promote the housing needs of marginalised women,
inter
alia
; section 2 (h) which requires it
in the administration of any matter relating to housing development
to respect, protect, promote
and fulfil the rights in the Bill of
Rights in Chapter 2 of the Constitution, to observe and adhere to
the principles of co-operative
government and intergovernmental
relations, and to comply with all other applicable provisions of the
Constitution. See section
9 of that Act too with regard to its
functions in fulfilment of the objective in section 26 (2) of the
Constitution relating
to the progressive realisation of the
right of access to housing.
See also the provisions of
section 6 (3) of PIE which provide in relation to a proposed
eviction at the instance of an organ of
State that:
“
(3) In
deciding whether it is just and equitable to grant an order for
eviction, the court must have regard to—
(
a
) the circumstances
under which the unlawful occupier occupied the land and erected the
building or structure;
(
b
) the period the
unlawful occupier and his or her family have resided on the land in
question; and
(
c
)
the availability to the unlawful
occupier of suitable alternative accommodation or land
”.
(Emphasis added)
PIE preamble, in relevant
part, reads further that:
“
special
consideration should be given to the rights of the elderly,
children, disabled persons and particularly households headed
by
women”.
[30]
Section 2 (1) (a) of the National Housing Act.
[31]
No 10 of 2013.
[32]
Tswelopele
supra
at
paras 15-6. See also Port Elizabeth Municipality
supra
at paras [17] and [18]. Mrs Ntantana described the experience of the
appellants and their families losing their homes as the
shock of a
lifetime.