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[2016] ZAGPPHC 408
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Residents of Arthurstone Village v Amashagana Tribal Authority and Others (17978/15) [2016] ZAGPPHC 408 (8 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No. 17978/15
DATE:
8/6/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
THE
RESIDENTS OF ARTHURSTONE
VILLAGE
Applicant
and
AMASHAGANA
TRIBAL AUTHORITY & OTHERS
First
Respondent
BUSHBUCKRIDGE
LOCAL MUNICIPALITY
Second
Respondent
THE
MAGISTRATE OF
THULAMAHASHE
Third
Respondent
JUDGMENT
VAN NIEKERK, AJ
[1]
This is an application for the review of an order granted by the
Third Respondent in terms whereof occupiers of land situated
within
the municipal area of Second Respondent was evicted and their homes
demolished.
[2]The
Applicants are referred to in the Founding Affidavit as “
The
Residents of Arthurstone Village
” who resided on land known
as “
Arthurstone Farm
” which is situated in the
jurisdiction of the Second Respondent being “
The
Bushbuckridge Local Municipality”.
Arthurstone Farm
comprises of some 3700 hectares of Government owned land zoned for
commercial use. In an affidavit under
Case no. 363/12 in the
Magistrate’s Court for the district of Mhala held at
Thulamahashe (where the Third Respondent exercises
powers and
functions as Magistrate) a certain Mpisame Erick Mxumalo deposed to
an affidavit stating the following:
“
I am an adult
male person and duly appointed in terms of the Black Administration
Act as the Chief of the Amashagana Tribe of Mhala
Bushbuckridge
Mpumalanga Province and the Chief of the Applicant. ……
the Applicant is in charge of various farms
situated in the
Magisterial area of Mhala which have been duly allocated to it as
tribal land and which land is administered by
the Applicant for the
benefit of the members of the Amashagana Tribe and the community at
large in an orderly and dignified way.
The farm Arthurstone
forms part of the number of farms over which the Applicant is in
charge.”
[3]
It is the same person who deposed to the Answering Affidavit in this
application on behalf of the First Respondent, and it is
also common
cause in this application (as it was alleged in the proceedings
referred to
supra
) that the land known as Arthurstone
Farm is administered by the First Respondent
qua
the
Government. First Respondent therefore does so as an Organ of State
as defined in terms of Section 239 of the Constitution of
the
Republic of South Africa read in conjunction with Section 212(2)(b)
of the Constitution of the Republic of South Africa.
[4]
The Third Respondent is the Magistrate of Thulamahashe who granted
the order for the eviction of the Applicants which is the
subject of
the order for review as sought in the Notice of Motion in this
application.
[5]
The deponent of the affidavit in support of the relief as claimed in
the Notice of Motion on behalf of the Applicants is a Commissioner
of
the South African Human Rights Commission which was established in
terms of Section 181(1)(b) of the Constitution of the Republic
of
South Africa Act (“
the Constitution
”) and in terms
of Section 184(2)(a) and (b) of the Constitution, the Commission is
enjoined to investigate and to report
on the observance of human
rights and take such steps to secure appropriate redress when human
rights have been violated.
The deponent then describes the
Applicants in the Founding Affidavit as follows:
“
The applicants
constitute the heads of household which constitute the evicted
members of the Arthurstone Village, a community of
approximately 150
individuals residing on the Arthurstone Farm in the district of
Bushbuckridge, Mpumalanga”.
[6]
The deponent thereafter sets out in the Founding Affidavit a
background of events leading up to the eventual granting of an
eviction and demolition order by the Third Respondent on the
application of the First Respondent against the Applicants which is
summarised as follows:
[6.1] On the 8
th
of March 2013 the Applicants lodged a complaint with the Commission
alleging violations of their human rights in that on the 7
th
of March 2013 they were evicted by the First and Second Respondents
from their houses and their shelters which were situated on
Arthurstone Farm and which houses and shelters were demolished by the
First Respondent;
[6.2] The Commission’s
Provincial Office in Mpumalanga did certain investigations and onsite
inspections, consulted
inter alia
with members of the
First Respondent and the Second Respondent, obtained copies of the
application launched in the Magistrate’s
Court of Thulamahashe
in terms of which such eviction and demolition order was sought, and
in general compiled a substantial amount
of information relating to
the dispute between the Applicants and the First Respondent revolving
around the Applicants’ occupation
of the land in question;
[6.3] The Commission were
inter alia
informed that many of the applicants paid
revenue to the First Respondent for occupation.
[6.4] The Commission
further established that the demolitions and evictions effected
school children, elderly persons, households
headed by woman, and
households headed by children (orphans) and that the demolitions took
place during the day whilst parents
were at work, the children were
at school, but that a house belonging to a relative of the Induna
Makama were not destroyed.
It was only subsequent to the
Commission consulting with the First Respondent that the Commission
was informed that the failure
to demolish two of the houses
(including that of the relative of the Induna Makama) that it was an
error and that same would be
demolished in the next couple of weeks;
[6.5] The investigation
by the Commission further revealed that most if not all of the
applicants who were evicted and whose homes
were demolished resided
permanently on the land in question, whilst many of the homes were
still under construction and the applicants
lived either in the
constructed portion of the building whilst other lived in more
informal shelters on the farm. This was
confirmed by five
applicants who deposed to Confirming affidavits and which was
attached to the Founding Affidavit and included
the affidavit of a 35
year old female widower who lived with 3 school going children on the
land in question and who seemed to
survive on Government grants, a 67
year old woman, living with 6 school going children whose only means
of support is a monthly
old age grant, and another 61 year unemployed
woman living with 5 children whom she supports on a monthly old age
grant;
[6.6] A copy of the
contents of the Court file in the Magistrate’s Court of
Thulamahashe obtained by the Commission revealed
that the First
Respondent brought an application in terms of Sections 4 and 5 of the
Prevention of Illegal Eviction from and Unlawful
Occupation of Land
Act 19 of 1998 (“
the PIE Act
”) wherein 13
respondents were cited by their names, and the 15
th
respondent was the Bushbuckridge Local Municipality who is the Second
Respondent in this application. The deponent to the
Founding
Affidavit is Mpisame Erick Mxumalo already referred to
supra
,
and on the same day that the Notice of Motion was issued out of that
Court being the 11
th
of September 2012, the Third
Respondent made an interim order restraining the respondents in that
application from invading the
land situated at the farm Arthurstone,
interdicting them from erecting any structures on the aforesaid land,
and authorising the
Sheriff or the Police and directing them to
remove any structures that might have been erected by any of the
respondents and further
ordered that the aforesaid orders operate as
a rule
nisi
pending the final order, and granting a
return date of 11
October 2012 calling on the respondents
to show cause why the order should not be made final. On the
11
th
of October 2012 the aforesaid interim order was made
a final order by the Third Respondent;
[6.7] Some five months
later the demolition order was executed and except for a copy of the
application which was attached to a
pole, no notice was given to the
Applicants.
[7]
Obviously, the effect of execution of the order evicting the
Applicants from the land and demolishing their homes was devastating
upon the Applicants. Attached to the application are
inter
alia
reports of social workers who dealt with the aftermath
of the event, and it is, to say the least, saddening to read as it
describes
the trauma of loss of what the people perceive to be their
“
homes
” in circumstances where they already
experienced extreme hardship and suffering brought about by their
socio-economic conditions.
[8]
Where the pre-amble to the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 reads:
“
AND WHEREAS
special consideration should be given to the rights of the elderly,
children, disabled persons and particularly households
headed by
woman, and that it should be recognised that the needs of these group
should be considered
;”
It
clearly refers to the class of personae referred to in the
investigation of the Commission.
[9]
The effect of the relief as claimed in the Notice of Motion is namely
that the rule
nisi
granted by the Third Respondent on
11 September 2012 and confirmed on 11 October 2012 which resulted in
the demolition and eviction,
be reviewed and set aside, and the
remainder of the relief as sought in the Notice of Motion is a
sequelae
of such order being set aside. In terms
of Section 38 of the Constitution anyone listed in that section has
the right to approach
a competent court, alleging that a right in the
bill of rights has been infringed of threatened, and the court may
grant appropriate
relief, including a declaration of rights.
The persons who may approach a court in terms of Section 38 of the
Constitution
includes anyone acting in the public interest and anyone
acting as a member of, or in the interest of, a group of class of
persons
and anyone acting on behalf of another person who cannot act
in their own name. It is the Applicants’ case that the
decision of the Third Respondent infringed their fundamental rights
as set out in Section 26(3) of the Constitution which confers
on
everyone the right to have access to adequate housing, and the
prohibition that no one may be evicted from their home, or have
their
home demolished, without an order of Court made after consulting all
the relevant circumstances and that no legislation may
permit
arbitrary evictions. In terms of the same Section, the State is
enjoined to take reasonable legislative and other
measures, within
its available resources, to achieve the progressive realisation of
this right to adequate housing.
[10]
The PIE Act flows from Section 26(3) of the Constitution and contains
various mandatory requirements that must be complied
with before the
granting of an order for eviction and/or demolition can be said to be
“
lawful
”. The review by a Superior Court of
a decision of an inferior Court which was alleged to be an
infringement of a fundamental
right is of a wide ranging nature and
the Court of review can decide the matter
de novo
.
Vide: Erasmus
Superior Court Practice, 2
nd
Edition Volume 1 at A22-32
and authorities quoted there
This
Court must therefore review the proceedings which led to the Third
Respondent granting the final eviction and demolition order,
and if
it is found that there was not substantial compliance with the
provisions of the PIE Act, such order may be set aside.
It is
therefore necessary to determine whether there was substantial
compliance with the PIE Act prior to and when the final order
was
granted by Third Respondent on 11 October 2012.
[11]
In the affidavit in support of the relief as claimed in the Notice of
Motion a number of non-compliance (with the PIE Act)
issues are
raised. Certain of the material issues in respect of which
there was non-compliance will be referred to hereinlater.
The
First and Second Respondents, in their respective Opposing Affidavits
join issue with the alleged non-compliance. At
the time when
the application was argued, Heads of Argument was filed on behalf of
the Applicants again highlighting the issues
of non-compliance, and
the Second Respondent’s Counsel, properly and responsibly,
conceded such material non-compliance in
Heads of Argument filed on
behalf of the Second Respondent. First Respondent’s
counsel, not only in Heads of Argument
filed on behalf of the First
Respondent but also during argument of the matter in open Court
persisted that there was “
substantial compliance
”
and urged me to dismiss the application. First Respondent
further raised a point
in limine
to the effect that the
application for review was not brought within a reasonable period of
time and should, on that ground, be
dismissed. I will
deal with the aforesaid two issues hereunder.
[12]
In deciding whether or not the proceedings were instituted within a
reasonable period of time, the approach as set out in
Guwetha v
Transkei Development Corporation Ltd & Others 2006 (2) 603 (SCA)
must be followed. Having regard to the explanation of the
Commissioner on behalf of the Human Rights Commission setting out
in
detail the process of investigation, collation of information, and
background leading to the eventual institution of this application,
the Applicants’ prospect of success on the merits, and weighing
up the prejudice which the Applicants will continue to suffer
should
the application be dismissed on that ground alone against the
prejudice which the Respondents would suffer in the event
of this
matter being fully ventilated in Court, and further considering the
fact that the Applicants are proverbially delivered
out into the
hands of third parties (in this case the Commission) insofar as the
litigation was concerned, I have no hesitation
in granting any
condonation that may be necessary and dismissing this point
in
limine
. I further am of the view that, considering the
objective facts of this matter, a point
in limine
such
as that taken by the First Respondent is, to say the least, uncalled
for. The First Respondent is an Organ of State
for the reasons
as set out
supra
, has an obligation to uphold the
values of the Constitution without fear or favour, is in fact the
custodian of State owned property
which is administered by the First
Respondent as a trustee
viz-a-viz
the persons who
reside there, and in my view is therefore expected to fulfil its
fiduciary duties with
uberrimae fides
. This
it clearly did not do.
[13]
The material non-compliance with the provisions of the PIE Act are as
set out hereunder. I mention that this is not an
exhaustive
list but serves to illustrate the issue of substantial
non-compliance. The examples listed hereunder are conceded
by
the Second Respondent and being objective facts, cannot be generally
placed in dispute by the First Respondent. They are:
[13.1] In terms of
Section 4(7) of PIE the Third Respondent was enjoined to
consider whether land had been made available
or could reasonably
have been made available by the Second Respondent. This was not done;
[13.2] In terms of
Section 4(7) of PIE the Third Respondent was enjoined to consider the
rights and needs of the elderly, children,
disabled persons and
households headed by woman. Again, this was not done;
[13.3] In terms of
Section 4(2) of PIE at least 14 days before the hearing of the
proceedings contemplated the Court must serve
written and effective
notice of the proceedings on the unlawful occupiers and the
municipality having jurisdiction. It is
clear on the papers
before me that there was non-compliance with this proviso.
Counsel for First Respondent attempted to
convince me that the
affixation of the application on a pole, suffice. I strongly
disagree.
[14]
The Third Respondent clearly derelicted its duties in ensuring that
there was compliance with the Constitutional imperatives
and the
applicable law, in this case the PIE Act and numerous decisions
pertaining to the proper application of the provisions
of the PIE Act
as delivered by the Constitutional Court and should never have
granted the order in the circumstances as it did.
I am
particularly concerned about the fact that the Third Respondent
allowed the matter to be proceeded with on a so-called “
urgent
basis
” without there being any proper grounds for urgency
in the application before it, and for failing to adopt a proactive
role
in enquiring what the effect of the order granted by the Third
Respondent would be on the persons affected thereby. In my
view
the Third Respondent simply adopted a passive role and proverbially
rubber stamped the application brought before it, without
applying an
independent judicial mind to the proceedings. The very least
that the Third Respondent could have done, was to
insist on a report
or affidavit or information from the Second Respondent on the issue
of the provision of alternative accommodation.
The Third
Respondent should also have been aware of the provision of Section 6
of the PIE Act, and failing any facts being set
out in the
application why the granting of the order is in the public interest,
should either have dismissed the application on
that ground alone or
at least have insisted on the supplementation of the papers on that
issue.
[15]
In the premises, the order
nisi
granted by the Third
Respondent on 11 September 2012 and confirmed on 11 October 2012 is
set aside and it is declared that the
eviction of the Applicants and
their dependents from the Arthurstone Farm and the demolition of
their houses is declared unlawful.
The issue then remains as to
what is competent relief that should be granted ancillary to the
aforesaid. Having discussed
this issue in open Court during
argument with Counsel for the Second Respondent as well as the
Applicants (Counsel for the First
Respondent was most uncooperative
in this regard) it was clear that the Second Respondent accept its
responsibility to assist in
restoring the Applicants into a position
where they at least be afforded shelter, privacy and amenities.
I am further of
the view that any order that I make in this regard
should be monitored by the South African Human Rights Commission in
terms of
their authority afforded to them as referred to
supra
and should be permitted to set the matter down on the same papers or
supplement this application should the need arise as a result
of
non-compliance with this order by any party.
[16]
I am further of the view that the Third Respondent’s
dereliction of duty is so gross and untenable that the Magistrate’s
Commission should be directed to investigate the conduct of the Third
Respondent to determine whether or not disciplinary and/or
any other
steps should be taken against the relevant Magistrate.
[17]
As far as the costs of the application is concerned, and for the
reasons as set out above, I have no hesitation in finding
that the
First Respondent should pay the costs of the application.
Applicants seek an order for costs against the First and
Second
Respondents jointly. Although the Second Respondent initially
opposed the application, it became clear after the filing
of Heads of
Argument on behalf of the Second Respondent that the Second
Respondent accepted its obligations
viz-a-viz
the
Applicants in terms of the relevant legislation, and made the
necessary and proper concessions which is to be expected of an
organ
of State in litigation. Had the First Respondent adopted the same
responsible
modus operandi
, there would not have been
any necessity to pursue this matter to its finality. I am therefore
of the view that the Second Respondent
should be ordered to pay the
costs of the application jointly and severally with the First
Respondent, with the proviso that the
Second Respondent’s costs
be restricted to the costs incurred up and until the date of the
filing of the Applicants’
Replying Affidavit.
[18]
In the premises, I make an order in the following terms:
[1] The order
nisi
by the Third Respondent dated 11 September 2012 and confirmed on 11
October 2012 in terms whereof the Applicants were evicted from
the
Arthurstone Farm is hereby reviewed and set aside, and the resultant
eviction of the Applicants and their dependents and the
demolition of
their houses and shelters on the Arthurstone Farm is hereby declared
unlawful;
[2] The First Respondent
is ordered to construct for the Applicants who were evicted and who
still require them, temporary habitable
dwellings that afford
shelter, privacy and amenities at least equivalent to those that were
destroyed by the demolition, at a site
on the Arthurstone Farm in the
immediate vicinity where the Applicants resided prior to the eviction
and demolition of their homes,
which construction is to be completed
within 30 (thirty) days from date of this order;
[3] The First and Second
Respondents are ordered, jointly and severally, to construct for the
Applicants who were evicted, permanent
habitable dwellings that
afford shelter, privacy and amenities at least equivalent to those
that were destroyed at a site to be
agreed upon between the parties
and which construction is to be completed within 4 (four) months from
date of this order;
[4] The aforementioned
orders shall operate under the auspices and supervision of the South
African Human Rights Commission, and
should there be non-compliance
with this order, the South African Human Rights Commission, shall be
permitted to set the matter
down for hearing on the same papers
alternatively
with supplemented papers;
[5] The Registrar of this
Court is requested to forward this judgement to the Magistrate’s
Commission who are requested to
investigate the circumstances
relating to the granting of the orders on 11 September 2012 and 11
October 2012 in order to determine
whether disciplinary or other
steps should be taken against the Magistrate who granted such order;
[6] The First and Second
Respondents are ordered to pay the costs of the application jointly
and severally, with the proviso that
the costs in respect of which
the Second Respondent is liable shall be limited to costs incurred up
until the 8
th
of May 2015 being the date of service of the
Applicant’s reply to the Second Respondent’s Opposing
Affidavit.
PA
VAN NIEKERK
ACTING
JUDGE OF THE HIGH COURT
Date
heard:
6 June 2016
Counsel
for Applicant:
Adv K Moreno
Attorney
for Applicant:
Norton Rose Fulbright
Counsel
for 1
st
Respondent:
Adv HW Sibuyi, Adv MD Skhosana
Attorney
for 1
st
Respondent:
Phungo Incorporated
Counsel
for 2
nd
Respondent:
Adv T Seleke
Attorney
for 2
nd
Respondent:
Mculu Incorporated
Judgment
delivered:
8 June 2016