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[2007] ZASCA 25
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City of Johannesburg v Rand Properties (Pty) Ltd (253/06) [2007] ZASCA 25; [2007] 2 All SA 459 (SCA) ; 2007 (6) SA 417 (SCA); 2007 (6) BCLR 643 (SCA) (26 March 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No 253/06
In the matter between:
THE CITY OF JOHANNESBURG
......................
Appellant
and
RAND
PROPERTIES (PTY) LTD
......................
1
st
Respondent
OCCUPIERS
OF ERF 381 BEREA TOWNSHIP
......................
2
nd
Respondent
MINISTER
OF TRADE AND INDUSTRY
......................
3
rd
Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
......................
4
th
Respondent
Coram:
HARMS ADP, SCOTT, FARLAM,
NUGENT AND CLOETE JJA
Heard:
20 FEBRUARY 2007
Delivered:
26 MARCH 2007
Summary:
National
Building Regulations and Building Standards Act 103 of 1977 s 12 –
Dangerous building – Access to housing –
s 26 of the
Constitution – Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 – interaction.
Neutral citation:
City of
Johannesburg v Rand Properties (Pty) Ltd
2007 SCA 25 (RSA)
J U D G M E N T
HARMS ADP/
HARMS ADP:
Introduction
[1] This appeal, which is against a reported judgment of Jajbhay J,
1
concerns in the main the right of a local authority to order
occupiers by notice to vacate a building because it is necessary for
their safety or the safety of others and its right, if they fail to
comply, to apply for an order of court for their eviction.
[2] By way of introduction I refer to the findings of the high court
after an inspection in loco during February 2006. It found that
the
condition of the buildings concerned was appalling, abysmal and at
times disgraceful; that the occupants were in an emergency
situation;
and that there existed fire and health hazards. As far as the
respondents were concerned, the court held (based on the
allegations
in the papers) that many of them had been in occupation for a
substantial period; that they were desperately poor; that
most of
them had no formal employment; and that many of them had no income.
[3] Like countless other South Africans, many living in and around
Johannesburg, most of the occupiers live in poverty, which seriously
compromises their human rights, including those relating to housing.
Any reasonable person would wish that matters could have been
otherwise; that all had appropriate housing close to where they wish
to live and derive their income; that all had proper employment
opportunities; and that all had more than the basic needs in life.
[4] This case is only peripherally about the constitutional duty of
organs of state towards those who are evicted from their homes
and
are in a desperate condition. The central dispute (which is apparent
from the high court’s order and was confirmed during
the course
of argument in this appeal) is rather whether the City is precluded
from exercising its powers to order persons to vacate
unsafe
buildings unless it first provides them (or at least tenders to
provide them) with adequate alternative housing. A subsidiary
question that arises if the earlier question is answered against the
City is whether such alternative housing must be within the
inner
city itself.
[5] We find that the powers of the City to order the vacation of
unsafe buildings are not dependent upon its being able to offer
alternative housing to the occupants. But we also find that the
eviction of occupants triggers a constitutional obligation upon the
City to provide at least minimum shelter to those occupants who have
no access to alternative housing. We find further that the shelter
that the City is obliged to provide need not necessarily be located
within the inner city as demanded by the respondents.
The applications
[6] The City, the present appellant, launched separate applications
against the owners and occupants of a number of buildings in
the
inner city. These were based on notices that had been issued under
the provisions of the National Building Regulations and Building
Standards Act 103 of 1977, more particularly s 12(4)(b) thereof.
Section 12(4)(b) provides:
‘
If
the local authority in question deems it necessary for the safety of
any person, it may by notice in writing . . . order any person
occupying or working or being for any other purpose in any building,
to vacate such building immediately or within a period specified
in
such notice.’
(All references to s 12 in this judgment
will be this s 12.)
[7] San Jose is a sixteen-storey residential building comprising
anything between 90 and 123 sectional title units (depending on
which
version one relies on). Of these ‘only around three of the
units were verifiably owner-occupied.’ As far as the
others
were concerned, they were (as put euphemistically in the COHRE
report)
2
‘informally alienated’ from their owners. Because of an
accumulation of arrears of property taxes and the like the owners
had
abandoned their properties. The number of occupants of San Jose
cannot be established. In the papers of the occupants one finds
an
allegation that it was occupied by 95 adults and 51 children but they
also allege in an attached memorandum that there were 120
families
comprising about 600 persons. The COHRE report, on the other hand,
estimated that there were 322 occupiers.
[8] A task team comprising, inter alia, a town planner, a building
control inspector and an official from the Fire and Emergency
Services Department of the City first inspected the building on 20
August 2003. It found that all the floors were flooded with sewer
water and that water ran through the building and spilled out of the
parking level onto the pavement. The team also found that the
building was a fire hazard because there were no fire extinguishers,
the fire hydrants were unusable, there was no water supply,
smoke and
draught doors had been broken and unsafe electrical wiring abounded.
In the event of a fire, the occupants would not be
able to escape or
be rescued. The team concluded, in short, that the building was a
fire trap.
[9] Consequently, the City issued on 28 August 2003 a notice under s
12(1) of the Act addressed to the non existent body corporate
of San
Jose.
3
After a further inspection on 31 March 2004 the City decided to issue
a s 12(4)(b) notice requiring the occupiers to vacate but deemed
it
prudent to obtain a court order for substituted service of the
notice. The Johannesburg High Court granted the order and also
one
for substituted service of a notice of motion applying for the
eviction of those who would not comply with the s 12(4)(b) notice.
In
the event no one complied, and the eviction application was likewise
served.
[10] Although the occupiers did some cleaning-up, an inspection on 21
October 2004 revealed that the parking garage was filled with
waste
and sewer water as well as refuse and faeces; the fire escapes were
totally filled with refuse and were unusable; there was
no fire
fighting equipment in the entire building; all the courtyards and
other open spaces were filled with faeces and refuse; one
passage on
the first floor was flooded with sewer water; and the lift shafts on
the ground floor were open and filled with water.
An inspection on 2
February 2005 did not show any improvement.
[11] The second application related to a commercial property located
in Main Street, Johannesburg, which belongs to Zinns Investments
CC.
The owner abandoned the building and some 23 homeless persons of both
sexes are in occupation. It is a two-storey building but
the upper
floor was destroyed in a fire. One of the respondents described the
residential area as follows: it is a single rectangular
area (an
abandoned workshop) with two small rooms in which several of the
respondents sleep; the greater part is an open area in
which the
others sleep; at the back are windows but the street side has an
opening without any door or gate; and there is no kitchen,
bathroom,
toilet or water and electricity. In fact, every basic provision of
the City Accommodation Establishment By-Laws was being
contravened
and the building was a serious fire hazard. Having served the owner
with the necessary notices under s 12(1) as well
as the said by-laws
and not having received any response, the City followed more or less
the same procedure as in the San Jose case
by having s 12(4)(b)
notices and later an application for eviction served on the
occupiers.
[12] Lastly, the City launched applications on similar grounds in
respect of a number of residential houses in Joel Street. In these
cases, however, at the time of the court’s inspection the
occupiers had rectified matters and the City did not proceed with
its
eviction applications. Instead it sought postponements sine die to
enable it to re-enrol these matters should the position deteriorate.
The court refused and dismissed these applications. The City did not
appeal this order.
The defences and counter-applications
[13] The occupiers (the only respondents represented in the high
court and on appeal and to whom I shall henceforth refer as the
respondents), ably assisted by the Wits Law Clinic and a
public-spirited firm of attorneys, opposed the eviction orders and
sought
(save in the Zinns application) wide-ranging relief in
counter-applications. The City’s applications were opposed on
three
grounds: (a) the unconstitutionality of s 12(4) of the Act; (b)
the City’s failure to have followed the procedure prescribed
by
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (also known as PIE); and (c) that an eviction
order would not be just and equitable. The counter-applications were
for the setting aside of the City’s s 12(4)(b) notices
as
having been made in conflict with the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (called PAJA) and furthermore
for a number of orders relating to the constitutional duty of the
City to provide suitable alternative accommodation to the respondents
(and others in a like position) who are in desperate need of
accommodation in the inner city of Johannesburg.
The proceedings in the high court
[14] The applications were consolidated and the applications and
counter-applications will be referred to in the singular. The
Minister
of Trade and Industry, under whom the administration of the
Act falls, and the President of the Republic indicated that they
would
abide the decision of the court in relation to the
constitutionality of s 12(4). However, the MEC for Housing (Gauteng)
and the National
Minister of Housing were not joined.
[15] As indicated, the City’s application was dismissed with
costs. The counter-application, on the other hand, was partly
successful and the following order was made in consequence:
‘
1.
It is declared that the housing programme of the applicant fails to
comply with the constitutional and statutory obligations of
the
applicant. The applicant has failed to provide suitable relief for
people in the inner city of Johannesburg who are in a crisis
situation or otherwise in desperate need of accommodation;
2. The applicant has failed to give
adequate priority and resources to people in the inner city of
Johannesburg who are in a crisis
situation or otherwise in desperate
need of accommodation.
3. The applicant is directed to devise
and implement within its available resources a comprehensive and
co-ordinated programme to
progressively realise the right to adequate
housing to people in the inner city of Johannesburg who are in a
crisis situation or
otherwise in desperate need of accommodation.
4. Pending the implementation of the
programme referred to in paragraph 3 above, alternatively until such
time as suitable adequate
accommodation is provided to the
respondents, the applicant is interdicted from evicting or seeking to
evict the current respondents
from the properties in this
application.’
The appeal
[16] Both sides were dissatisfied with the order and their respective
applications for leave to appeal and cross-appeal were granted
by the
high court. The main complaint of the respondents is that the court
failed to decide many of the issues raised by them with
the result
that all the relief they sought was not granted and that matters of
importance for them and others in a like position
remain unresolved.
[17] The principal objection of the City is that the high court
court’s order and the reasons for granting it were marred by
normative confusion. In particular, the court confused the City’s
obligation to prevent unsafe conditions from prevailing with
its
constitutional duty to provide access to adequate housing, with the
result that it incorrectly made the former dependent upon
the
fulfilment of the latter. In other respects too, it was submitted,
the high court failed to properly isolate and consider the
matters in
issue. To illustrate: despite a finding that many of the occupants
were illegal occupiers as contemplated by PIE, the
court failed to
hold whether or not PIE applied. In fact, the interdict (para 4 of
the order quoted above) preventing the City from
evicting the
respondents was not made dependent on compliance with PIE. On the
other hand, the court used the case law dealing with
PIE in
dismissing the eviction application. Another example is that while
holding that an eviction under s 12(4)(b) amounts to arbitrary
eviction, the court did not hold that the provision is
unconstitutional in spite of the provision in s 26(3) of the Bill of
Rights
that no legislation may permit arbitrary evictions. Lastly,
without setting aside the City’s notice to vacate, the court
nevertheless
failed to give effect thereto.
The circumstances of the respondents
[18] Although the circumstances of the respondents are obviously not
identical (some have reasonable employment and income levels
and, as
mentioned, about three of them own their flats in San Jose), many if
not most are in dire straits. Two random examples will
suffice for
present purposes. Mr M G Ndlovu, who resides on the Zinns property,
lost his parents when he was still young. Although
he was about 40
years of age and has a standard 8 education he was never been able to
find employment. He had to leave the family
home and came to
Johannesburg and makes a living by begging in the CBD. He initially
found a place to sleep in a public park in the
inner city. He then
moved to the Zinns property where he had been living for some time
before the order. In San Jose one finds, for
instance, Ms T E
Plaatjie who at the time was 36 years of age. She has two children,
aged 3 and 8, and they live on a child support
grant which, at the
time, amounted to R340. She stated that she had moved to San Jose
during 1987 and said that she lived there because
she believed that
there were work opportunities in the inner city.
[19] Housing is a global problem that is not peculiar to this
country. Many international human rights conventions and covenants
4
acknowledge and seek to address the problem but in spite of this
‘
the
right to adequate housing remains unrealized for the vast majority of
poor and vulnerable people and communities across the world.’
It has been estimated that almost 100 million people are forced to
live with no shelter; that women constitute 70 per cent of those
living in absolute poverty; that between 30 million and 70 million
children are living on the streets; and that 1.7 billion persons
lack
access to clean water and 3.3 billion are without adequate
sanitation.
5
‘
Statistics,
however, do not fully capture the global dimension of the state of
housing. To gain an understanding of the sheer inadequacy
and
insecurity with which people and communities are forced to live,
consider just some of the following contemporary forms of distressed
housing: slums and squatter settlements, old buses, shipping
containers, pavements, railway platforms and alongside railway
tracks,
streets and roadside embankments, cellars, staircases,
rooftops, elevator enclosures, cages, cardboard boxes, plastic sheets
and
aluminium and tin shelters.’
[20] The international ideal
has been described by UNESCO in these terms:
6
‘
The
right to adequate housing should not be understood narrowly as the
right to have a roof over one's head. Rather, it should be
seen as
the right to live somewhere in security, peace and dignity. This
right has a number of components, including the following:
(i) Legal security of tenure: everyone
should enjoy legal protection from forced eviction, harassment and
other threats;
(ii) Habitability: housing must provide
inhabitants with adequate space and protection from the elements and
other threats to health;
(iii) Location: housing must be in a safe
and healthy location which allows access to opportunities to earn an
adequate livelihood,
as well as access to schools, health care,
transport and other services;
(iv) Economic accessibility: personal or
household costs associated with housing should be at such a level
that the attainment and
satisfaction of other basic needs are not
compromised;
(v) Physical accessibility: housing must
be accessible to everyone, especially vulnerable groups such as the
elderly, persons with
physical disabilities and the mentally ill;
(vi) Cultural acceptability: housing must
be culturally acceptable to the inhabitants, for example reflective
of their cultural preferences
in relation to design, site
organization and other features;
(vii)
Availability of services, materials, facilities and infrastructure
that are essential for health, security, comfort and nutrition,
such
as safe drinking water, sanitation and washing facilities.
’
The Johannesburg Inner
City Regeneration Strategy Business Plan
[21] The City adopted a
business plan for inner city regeneration for the financial years
2004 to 2007. It was based on a vision for
the inner city, which was
decaying rapidly, launched by the then Deputy President of the
Republic in July 1997, and followed on an
intensive process involving
provincial and local government, the private sector, and community
and organized labour structures. The
object was to regenerate the
inner city by capitalizing on its position in South Africa, Africa
and the world and by creating a ‘truly
global city that could
serve as the golden heartbeat of Africa’. This requires a
‘livable, safe, well-managed and welcoming
city’ for
‘residents, workers, tourists, entrepreneurs and learners’.
[22] The goal of the
regeneration effort was to raise and sustain private investment in
the inner city leading to a steady rise in
property values. The first
step in the process was to address so-called sinkholes, i.e.,
properties that have become slums or are
abandoned, overcrowded or
poorly maintained and also properties used for illegal or unsuitable
purposes. This required, amongst other
things, the continuation of
the City’s ‘Better Buildings Programme’; fast track
implementation of its social housing
programme; a survey of
buildings;
identifying
and
acting in respect of dangerous buildings; reviewing the transitional
shelter programme; addressing homelessness and street children;
and
upgrading identified areas and buildings using different financial
models. The anticipated costs are staggering.
[23] This
vision and plan effectively deny the poor access to housing in the
inner city. The cost of inner city accommodation, including
emergency
housing, is prohibitive (a matter dealt with in more detail in the
affidavit by Mr Stuart Wilson filed after the appeal
hearing).
Cooperative and social housing in the inner city, according to COHRE,
is targeted at people earning between R 1 250 and
R 3 500 and the
cheapest unsubsidized rental accommodation for a single room without
services amounts to around R 850 per month.
[24] The
City has a housing plan for households without adequate shelter. This
includes the 209 000 households (comprising about 800
000 people)
that were at the time living in approved informal settlements and the
countless households living in backyard shacks,
persons displaced by
the conversion of single sex hostels, those in the position of the
respondents, and the homeless living in the
streets of the city. The
projected cost of the provision of housing for 370 000 households
amounts some R3 700m. This plan provides
for the settlement of those
who qualify in townships around but not within the inner city.
Because of this, some respondents refuse
to register for assistance
and, one can surmise from the absence of any allegation to the
contrary, all the others have failed to
register.
Emergency Housing
[25] Shortly before the
launch of the application the central government issued its National
Housing Programme in an apparent response
to the judgment of the
Constitutional Court in
Grootboom
.
7
Chapter 12 dealt with
housing assistance in emergency housing situations. The central
government undertook to provide a grant to local
authorities of some
R24 000 per household to assist people who, for reasons beyond their
control, find themselves in an emergency
situation, for instance,
because of the destruction of existing shelter, or because their
prevailing situation posed an immediate
threat to their life, health
and safety, or if they are evicted or face the threat of imminent
eviction. According to the scheme
the funds have to be used by
municipalities to provide land, the infrastructure for services, and
shelter.
[26]
Before a municipality is entitled to any funds for emergency purposes
it is obliged to assess its requirements and to prepare
a plan for
submission to the relevant provincial authorities. It must then
submit the necessary application to the province. The
province has to
assess the programme and once funds become available the municipality
must implement the programme.
[27] At the hearing in the
high court the City filed an additional affidavit concerning the
availability of emergency housing in the
inner city. This evidence
was germane in view of the insistence of the respondents that they
had a right to shelter in the inner
city. The court was dismissive of
the options presented, presumably because they had been designed for
short term occupation, demanded
a rental of R 150 per month per bed,
and because applicants had to produce an identity document, a pay
slip and pay two months’
rental in advance. The court also
rejected a proposal that the respondents be relocated to an informal
settlement, probably because
of its finding (to which I shall revert)
that the respondents were entitled to adequate housing in the inner
city which had to be
provided by the City and because they had all
along resisted any suggestion that they could be relocated except
within the inner
city.
[28] The
affidavit also dealt with the Better Building Project mentioned
earlier. If the amount owed to the City by the owner justifies
it,
the City attaches a building, buys it back and makes it available for
commercial upgrading. These renovated buildings provide
accommodation
for those who can afford the relatively low rentals of R200 per month
(whether that is per person or per unit is unclear).
Once again, this
project does not satisfy either the requirements or the demands of
the respondents.
[29] At
the hearing of the appeal the City sought leave to file an affidavit
updating the information relating to emergency shelter.
The affidavit
was subsequently filed. It transpires that the City had indeed filed
a chapter 12 application on 22 December 2005 shortly
before the
hearing in the court below. Despite follow-up requests the provincial
authorities have not responded in any manner to
the application.
[30]
Further, according to the affidavit, the City has 100 beds available
in the inner city for emergency situations. These beds are
only
available for three nights per person. However, it has 1600 beds
available in Protea, Soweto for the same purpose. In addition,
it is
in the process of upgrading and converting seven buildings in the
inner city into emergency shelters. The expected date of
completion
is 5 April 2007 and the costs are to be funded by the City. This is
not intended to provide permanent or semi-permanent
housing –
indeed it is for a maximum of two weeks’ free accommodation.
This alternative emergency accommodation, in whatever
form, is not
acceptable to the respondents. Protea is too far from the inner city
and the temporary nature of the other accommodation
(assuming it to
become available) does not satisfy their demands.
The judgment of the High Court
[31] It is convenient to
deal first with the orders made by the high court against the City
before dealing with the City’s application
and the responses
thereto, including the review application. This will enable me to
have regard to the constitutional provision that
impacts on the
application and counter-application, namely s 26 of the Bill of
Rights.
[32] It is
not always easy to follow the reasoning of the high court because, as
mentioned, the different issues were often conflated.
However, the
following findings appear to be germane for present purposes:
(a)
The ‘right
to housing’ is a basic human right. According to international
human rights law all states have a minimum core
obligation to ensure
the satisfaction of, at the very least, the minimum essential levels
of this right. This minimum core requirement
with respect to the
right to ‘adequate housing’ entails a state’s duty
to immediately address the housing needs
of its population, if any
significant number of individuals are deprived of basic shelter and
housing. The failure to do so constitutes
a prima facie violation of
the right to ‘adequate housing’.
8
(b) The right to (adequate) housing means that the State
9
‘
undertakes
to endeavour, by appropriate means, to ensure that everyone has
access to affordable and acceptable housing; the State
will undertake
a series of measures which indicate policy and legislative
recognition of each of the constituent aspects of the right
to
housing; the State will protect and improve houses and neighbourhoods
rather than damage or destroy them.’
(c) The right of access to adequate housing includes a duty on organs
of State to respect the access to ‘inadequate’
housing of
those who enjoy it.
10
(d) The City is not entitled to exercise its powers and perform its
functions and duties in relation to health and safety in a manner
that violates the right of access to housing, protection against
arbitrary eviction and the right to dignity. This is especially
so
where the City has failed to provide any alternative adequate
accommodation.
11
(e) The City is obliged to foster conditions to enable the
respondents to have access to adequate housing in the inner city. The
sole criteria for living in the inner city should not depend on
affordability.
12
(f) A local authority’s constitutional duty towards the general
public to promote a safe and healthy environment has to be
reconciled
with the State’s constitutional duty towards the poor and the
destitute.
13
(g) The presence of the s 12(4)(b) jurisdictional facts merely
triggers the court’s discretion whether to evict. Factors such
as the length of occupation and the motive of occupation have to be
taken into account in deciding whether to grant an order of
eviction.
14
[33] These extracts, I hope,
fairly reflect the main features of the judgment. It is apparent that
the high court’s basic hypothesis
was that the State has a
minimum core obligation in respect of housing (without distinguishing
between the right to housing, the
right to adequate housing and the
right of access to adequate housing). From that premise it reasoned
that the right of access to
adequate housing includes the negative
right to remain in occupation of unsafe (‘inadequate’)
housing. The court also
held that the Constitution provides an
overriding discretion to courts whether or not to evict irrespective
of other statutory provisions.
And lastly, it held that the
respondents are entitled to be adequately housed by organs of state
in the inner city because that is
where they wish to try and earn a
living. The footprints of the last mentioned finding are evident from
the court order, more particularly
para 3.
Section 26 of the Constitution
[34] It is now necessary to
determine whether the high court’s approach was consistent with
the provisions of especially s 26
of the Constitution. We were not
referred to comparative jurisprudence that is of assistance in
understanding the provision but fortunately
the Constitutional Court
on more than one occasion has had the opportunity to throw light on
its meaning and scope and I shall attempt,
without lengthy
quotations, to summarize the jurisprudence relevant to the present
case.
[35]
Section 26 reads as follows:
‘
(1) Everyone
has the right to have access to adequate housing.
(2) The
State must take reasonable legislative and other measures, within its
available resources, to achieve the progressive
realisation of this
right.
(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.
No legislation may permit arbitrary evictions.’
[36] Section 26 must be read
in context and with s 27, which deals with health care, food, water
and social security. Section 26 must
also be seen in another context.
It reinforces other human rights such as the right to dignity,
equality and freedom.
15
It is based on, but
is not co-terminous with, the right to housing contained in the
international instruments mentioned earlier that
speak of a right to
‘adequate housing’ whereas s 26(1) is limited to a right
of ‘access to adequate housing’.
16
They also speak of a
minimum core to which everyone in need is entitled whereas the
underlying assumption of the Constitution is that
it does not
guarantee a minimum core.
17
[37] Section 26(1) has a
positive and negative aspect. The positive duty on the State is
circumscribed by ss (2), which acts as an
internal limitation on the
content and ambit of ss (1). The effect is that the obligation
imposed on the State is not absolute or
unqualified
18
but that the extent
of its obligation is defined by three key elements that have to be
considered separately: (a) the obligation to
‘take reasonable
legislative and other measures’; (b) ‘to achieve the
progressive realisation’ of the right;
and (c) ‘within
available resources.’
19
[38] The
negative aspect of s 26(1) is the
‘
obligation
placed upon the State and all other entities and persons to desist
from preventing or impairing the right of access to
adequate
housing.’
20
Although everyone has the
right of access, the State may ‘interfere’ with that
right if it would be justifiable to do
so.
21
Even though the
Constitutional Court has as yet not delineated the negative content
of ss (1), any measure that permits a person to
be deprived of
‘existing access to adequate housing’ limits the rights
protected in ss (1) although the limitation may
be justified under s
36.
22
[39]
Turning then to ss (3), it prohibits (a) any eviction without an
order of court; (b) any court order granted without a consideration
of all the relevant circumstances; and (c) any legislation that
permits ‘arbitrary’ evictions. Its effect is threefold.
First, it does not sanction arbitrary seizure of land and it
therefore creates a defensive rather than an affirmative right.
Secondly,
it expressly acknowledges that eviction from homes in
informal settlements may take place, ‘even if it results in
loss of a
home’ because there is
‘
no
unqualified constitutional duty on local authorities to ensure that
in no circumstances should a home be destroyed unless alternative
accommodation or land is made available.’
23
And thirdly, the requirement
that a court has to take into account all relevant circumstances
underlines how non-prescriptive the
provision was intended to be.
24
[40] The questions not yet
addressed by the Constitutional Court are the meaning of ‘relevant
circumstances’ and whether
a court has a general discretion
after having considered the ‘relevant circumstances’. A
statute such as PIE, which follows
the wording of ss (3) by requiring
a consideration of all the relevant circumstances, but adds that the
court must in addition consider
whether it would be ‘just and
equitable’ to grant the order, no doubt gives the court a
discretion based on what is just
and equitable. But, as has been
pointed out by this Court in
Brisley
v Drotsky
,
25
when an eviction
application is not covered by PIE a court does not without more have
a discretion based on what is just and equitable.
What is required is
a consideration of all
legally
relevant factors.
This Court recognized that where a state organ wishes to evict, the
state’s obligations under ss (1) and (2)
may possibly and in
particular circumstances place a limitation on the right of eviction.
[41] The
following example illustrates the issue. Suppose a law of general
application prohibits the use of a national heritage site
for
residential purposes and criminalizes a breach. Does a court have a
general discretion under s 26(3) to decide whether or not
to evict
when the State, in enforcing that law, applies for the eviction of an
occupier? Do equitable considerations, such as the
length of or
motive behind the occupation, enter the picture? May the court by
refusing to grant the order allow the continuation
of a criminal
breach? I think not. The relevant circumstances that have to be
considered, it appears to me, are the fact that the
law is
constitutional and that there is a breach of the statute.
[42] The final aspect of s
26(3) that requires consideration is the prohibition of any law that
permits arbitrary evictions. The term
‘arbitrary’ as used
in s 25(1) of the Constitution, namely that ‘no law may permit
arbitrary deprivation of property’,
has been interpreted to
refer to a ‘law’ that does not provide sufficient reason
for the deprivation of ownership or
is procedurally unfair.
26
Applied to s 26(3),
sufficient reason in essence requires an evaluation of the
relationship between the means employed, namely the
eviction, and the
end sought to be achieved, namely the purpose of the law in question.
Assessment of the high court’s judgment
[43] I fear that the high
court has failed to have regard to material parts of this
jurisprudence. The court erred by assuming the
existence of a duty in
respect of a minimum core and failing to limit the right involved to
that which is contained in the Constitution,
namely a right of access
to housing.
[44] More
particularly, the Constitution does not give a person a right to
housing at state expense at a locality of that person’s
choice
(in this case the inner city). Obviously, the State would be failing
in its duty if it were to ignore or fail to give due
regard to the
relationship between location of residence and the place where
persons earn or try to earn their living but a right
of the nature
envisaged by the court and the respondents is not to be found in the
Constitution.
[45] A related problem is
that the high court had insufficient regard to the division of power.
It is for the democratically elected
government of the City to
determine what its vision of the inner city is. Courts are not
equipped or entitled to second-guess this
type of policy decision.
The court also failed to have regard to the constitutional limitation
on the right of access to housing.
In particular it took no account
of the uncontradicted evidence of the City that it did not have the
means to provide the respondents
with inner city accommodation. I
have already referred to the City’s housing obligations and
plans. There is no suggestion
that the City has failed in its general
obligations in this regard considering that its duty is to provide
housing progressively
within its means. One can easily disagree with
the allocation of resources by organs of state and one may
justifiably debate priorities
but thus far the Constitutional Court
has not sanctioned the reallocation of public funds by courts.
Significant in this regard is
the manner in which the Constitutional
Court dealt with the right to health care services and emergency
medical treatment in
Soobramoney
.
27
The issue was whether
terminally ill patients who require treatment such as renal dialysis
may require the State to provide funding
and resources for their
treatment. The patient’s right to life, which is at least
morally of a higher value than the right
to housing, is compromised.
In the context of negative rights the Constitutional Court was at
pains to point out that the position
of the patient was not one of
emergency but it was an ongoing state of affairs (not unlike the
position of the respondents).
28
It expressed sympathy
for the patient but denied him the relief sought and explained as
follows:
‘
The
provincial administration . . . has to make decisions about the
funding that should be made available for health care and how
such
funds should be spent. These choices involve difficult decisions to
be taken at the political level in fixing the health budget,
and at
the functional level in deciding upon the priorities to be met. A
court will be slow to interfere with rational decisions
taken in good
faith by the political organs and medical authorities whose
responsibility it is to deal with such matters.’
29
‘
The
hard and unpalatable fact is that if the appellant were a wealthy man
he would be able to procure such treatment from private
sources; he
is not and has to look to the State to provide him with the
treatment. But the State’s resources are limited and
the
appellant does not meet the criteria for admission to the renal
dialysis programme. Unfortunately, this is true not only of the
appellant but of many others who need access to renal dialysis units
or to other health services. There are also those who need access
to
housing, food and water, employment opportunities, and social
security. These too are aspects of the right to
“
.
. . human life: the right to live as a human being, to be part of a
broader community, to share in the experience of humanity.”
The
State has to manage its limited resources in order to address all
these claims. There will be times when this requires it to adopt
a
holistic approach to the larger needs of society rather than to focus
on the specific needs of particular individuals within society.’
30
[46] The finding that
persons in desperate situations may not be evicted unless alternative
or adequate housing is provided does not
fit comfortably with the
dicta in the
Port
Elizabeth Municipality
case
31
referred to earlier.
This finding is closely related to the finding that the City was not
entitled to infringe the respondents’
right to unsafe
(‘inadequate’) housing. In my view, the contention that
to deprive a person of unsafe housing denies
him or her access to
adequate housing is not correct. The corollary would be that to deny
someone poisonous food is to deny that
person food. Significantly,
the court of first instance in
Grootboom
had ordered state
organs to provide the evicted applicants with shelter within a given
time frame.
32
The Constitutional
Court, in response, held that the court had erred in this regard
because s 26 did not entitle the applicants ‘to
claim shelter
or housing immediately upon demand.’
33
[47] There is, however,
another side to the coin.
Grootboom
has held that organs
of state have a special duty towards persons in crisis who have ‘no
access to land, no roof over their
heads, and who were living in
intolerable conditions or crisis situations’. This duty has
been recognized by the central government
and the City as appears
from my exposition under the heading ‘Emergency Housing’
earlier. And both (presumably also the
provincial government) have
plans to cope with such situations. It is therefore not necessary to
delve further and to search for
a justification for this recognition.
Eviction, at the very least, triggers an obligation resting on the
City to provide emergency
and basic shelter to any affected
respondent.
34
[48] The respondents relied
on
Baartman
35
for the proposition
that unless evicted persons are given some security of tenure they
ought not to be relocated from a place where
they reside. That is
obviously an ideal but it is not a rule.
Baartman
was decided under PIE
and dealt with the statutory requirement that if an organ of State
seeks to evict persons under s 6 of PIE,
a court is obliged to
consider the availability of ‘suitable’ alternative land.
On the facts of the case, it was held,
that the municipality had not
established that the alternative land was indeed suitable because it
did not provide some security
of tenure.
[49] The underlying
hypothesis for the assumption that a court has an overriding
discretion to refuse to enforce legislation appears
to have been that
the PIE discretion is to be read into s 12(4)(b) via the
Constitution. That is not correct and is contrary to authority
binding on that court. (We have not, I may add, been invited to
revisit
Brisley
v Drotsky
36
and I have not found
anything in the Constitutional Court jurisprudence to suggest that it
was wrongly decided.)
[50]
Before dealing with the question whether in the light of this
analysis the respondents were entitled to any relief and, if so,
in
what form, it will be convenient first to consider the merit of the
respondents’ answers to the City’s application
for
eviction.
The National Building Regulations and Building Standards Act 103
of 1977
[51] The respondents
(supported by the amici) allege that s 12(4), read with ss (5) and
(6), is unconstitutional. They accepted that
a prohibition on the
occupation of unsafe buildings contained in an Act of general
application is in principle not unconstitutional.
This has to be
correct. If one has regard to s 12 in its totality, it firstly
enables a local authority to require of an owner to
make a building
safe (ss (1)). But if a local authority deems it ‘
necessary
for the safety of any person’ to have a building vacated it may
issue the necessary s 12(4)(b) notice. That does not
make any
subsequent eviction by virtue of a court order arbitrary.
[52] The decision to issue a s 12(4)(b) notice must be based on
necessity on the ground of the safety of persons. That is the
jurisdictional
fact for the notice. But the decision to issue a
notice must nevertheless be rational. Thus, if reasonable
alternatives are available,
for instance if a fire hazard can be
abated through other measures, they have to be explored and, if
reasonable, be adopted. (In
the present instances the evidence is
that the buildings cannot be made safe while occupied.)
[53] The case on unconstitutionality was based primarily on the
ground that the section allows for eviction without a court order.
I
disagree. All the Act permits is the issuing of an administrative
order to vacate and, in the event of non-compliance, for a criminal
sanction. Nothing in the Act permits self-help.
[54] Another argument was that the Act allows for eviction without a
consideration of all the relevant circumstances as required
by s
26(3). The argument is flawed because it was based on the supposition
that the s 12(4)(b) notice is the equivalent of a court
order. There
is nevertheless a duty on the local authority to consider all
circumstances relevant to the safety of the building but
this duty is
an administrative justice requirement and does not flow from the
provisions of s 26(3).
[55] The amici argued that the Act is constitutionally defective
because it does not require a court order empowering a local
authority
to issue a s 12(4)(b) notice. Administrative notices and
orders do not require prior court orders for their validity. The law
assumes
that law-abiding citizens will comply with valid
administrative notices without court orders compelling them to do so.
Voluntary
compliance with an administrative notice does not amount to
a proscribed eviction. It is only in the event of a failure to comply
that the need for a court order arises.
[56] The amici argued that the Act authorises administrative action
that is procedurally unfair. I disagree. PAJA by definition applies
to all decisions taken by an organ of state exercising a public power
in terms of ‘any legislation’ and which affects
the
rights of anyone and which has a direct external legal effect. This
definition describes a decision by a local authority to issue
a
notice to vacate under the Act. The extent to which PAJA is
applicable or has been breached is a question that arises in the
context
of the application to review the City’s decision,
something I shall deal with in due course. My conclusion is therefore
that
the constitutional attack on the Act has to fail.
The Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (PIE)
[57] The next question to consider is whether an eviction order under
present circumstances is subject to the provisions PIE (more
especially s 6, which deals with evictions at the instance of organs
of state).
37
The respondents allege that many of them are unlawful occupiers as
defined in s 1 of PIE and that therefore the provisions of PIE
apply
to those of them that do not have the owners’ permission to
occupy. The argument leads to an incongruous result because
it means
that evacuations in emergency situations require that a distinction
be drawn between lawful and unlawful occupiers: lawful
occupiers can
be evacuated without more whereas unlawful occupiers are protected by
PIE. To draw such a distinction when the concern
is safety of persons
makes no sense. Parliament is not presumed to make laws that give
rise to anomalous results and impinge on the
basic requirement of
equal protection.
[58] It must be borne in mind that the obligation to vacate unsafe
premises follows from the issue of a notice in terms of s 12(4)(b).
Clearly PIE has no application to the issuing of such a notice. And I
have already pointed out that the provisions of PAJA function
to
ensure that the issuing of such a notice accords with administrative
justice. Once such a notice has been validly issued the continued
occupation of the premises is unlawful and constitutes a criminal
offence. The role of a court order is to prohibit that unlawful
state
of affairs from continuing. I see nothing in PIE that permits a court
to sanction the continuation of an unlawful state of
affairs by
declining to grant an order in a proper case. PIE must be seen in the
light of it history and purpose, which is to resolve
a clash between
proprietary rights and the plight of the poor.
38
I do not think it applies to orders that are directed at preventing
illegal conduct. There are, however, in my view two further reasons
why PIE cannot apply and they are dealt with in the subsequent
paragraphs.
[59] An ‘unlawful occupier’ is someone who occupies
without the ‘express or tacit consent of the owner or without
any other right in law to occupy such land’ (PIE s 1). On the
facts of this case we know that the respondents did not have
express
consent but we also know that the owners had abandoned their
properties. (I am excluding the case of owner-occupiers.) By
abandoning their properties the owners by necessary implication gave
tacit consent to whomsoever to occupy. (It is not without interest
to
note that not one respondent admits to having dispossessed any owner
against his or her will.)
[60] Section 6 differs in scope from s 4 of PIE because it permits
the organ of state to apply for eviction ‘where it is in
the
public interest’, which includes the ‘interests of the
health and safety’ of occupiers. There is thus a potential
overlap between this provision and s 12(4)(b). Section 6, in contrast
to s 4, does not contain the qualification ‘notwithstanding
anything to the contrary contained in any law or the common law’.
This means that s 6 recognises that PIE is not the exclusive
statutory mechanism in terms of which persons may be evicted at the
behest of organs of state. It will also be noted that PIE does
not
permit an organ of state to apply for urgent relief and that it would
be strange to have such a prohibition in the case of necessity
as
postulated by s 12(4)(b).
[61] I therefore conclude that the provisions of PIE do not apply.
This disposes of the defence that an eviction order would have
been
unjust and inequitable because the requirement that an eviction order
may only be granted if it is just and equitable is, as
we have seen,
not mandated by the Constitution but is to be found only in PIE.
The review application
[62] The respondents sought to review the decision of the City to
issue s 12(4)(b) notices on three grounds namely (a) the lack of
an
opportunity to be heard; (b) the City’s failure to take into
account relevant considerations; and (c) ulterior purpose and
irrationality. The high court, whilst not deciding the review
application, made some findings that give the impression that its
view
was that the decision was reviewable. But despite the fact that
the City’s notice was allowed to stand, the court issued an
interdict that effectively emasculated the City’s decision and
consequent notice. The interdict also prohibits further evictions
(although none was ever threatened) and eviction proceedings.
[63] The right to be heard has now been constitutionalised and has
effectively been codified in s 3 of PAJA. It is not an absolute
or
immutable right. What is required is a fair administrative procedure
and fairness depends on the circumstances of each case. As
a general
rule, the ‘administrator’ must give the affected person
the opportunity to make representations but if it is
reasonable and
justifiable in the circumstances the administrator may depart from
this requirement (s 3(4) of PAJA). In this case
the only issue on
which the administrator might have been obliged to hear and consider
representations was in relation to the question
whether it was
necessary for the safety of any person that the buildings be vacated.
It is clearly desirable that there should be
consultation in matters
of this nature but this is not such a case. In cases of crisis the
audi principle can hardly apply.
39
There is no suggestion that the jurisdictional facts for the decision
did not exist or that the respondents wished to make any
representations
in that regard. I have already mentioned the problem
in establishing the number, apart from the identity, of occupiers of
San Jose.
I therefore conclude that, taking into account all relevant
factors, the City was entitled to dispense with a prior hearing (see
s 3(4)(b) of PAJA).
[64] The second ground, namely that the City failed to take relevant
considerations into account, was based on the assertion that
the City
failed to consider the availability of suitable alternative
accommodation or land for the respondents. The submission presupposes
that the right to act under s 12(4)(b) and the right to access to
adequate housing are reciprocal and that the former is dependent
or
conditional on the latter. There is in my view no merit in the
submission.
[65] The final attack, based on ulterior purpose and irrationality,
was premised on the argument that the City was not genuinely
concerned about health and fire risks. Many factors were mentioned
such as the delay of the City in acting; the fact that there are
also
other ‘bad buildings’; and that the City could instead
have acted against informal settlements around the city where
there
are also health and fire hazards. Once again, whether or not the City
was concerned about the respondents’ safety or
was dilatory in
exercising its duties or could or should have taken similar steps in
relation to others are all beside the point.
The question is simply
whether it was ‘necessary’ to vacate these buildings for
the sake of the safety of respondents
and others and in my view the
evidence establishes that it was.
[66] The amici submitted that we should regard the City’s use
of s 12(4)(b) with a measure of scepticism because the notice
was
issued in the context of a policy to rejuvenate the inner city by
removing what the City considered to be sinkholes and because
of the
leisurely pace with which the City moved without consulting the
respondents.
[67] It is true that the vision that the City has for the inner city
does not accommodate the poor but I do not think it follows
that its
present actions are directed by an ulterior motive. The evidence
shows that many buildings in the inner city have reached
such a state
of decay that they pose a danger both to their occupants and to the
public at large. The City cannot be faulted for
undertaking its duty
not to permit that state of affairs to persist. Once having acted to
prevent that occurring the question necessarily
arises what is to be
done with the buildings concerned. The City has decided as a matter
of policy that the buildings are to be rejuvenated
in the interest of
the economic health of the inner city, but I do not think that
implies that the eradication of unsafe conditions
is no more than a
ploy. It seems to me that the two questions – what is to be
done to avoid unsafe conditions and what is to
be done with the
buildings thereafter – are two unrelated questions, and the
choice that has been made in relation to the latter
does not imply
that the decision in relation to the former was taken with an
ulterior motive.
The City’s application: conclusion
[68] I have found that the City’s s 12(4)(b) notice is neither
unconstitutional nor otherwise unlawful and in those circumstances
a
court has no discretion to disregard it and condone the continuance
of unlawful acts either by refusing to give effect to it or
by
suspending it. Moreover, the obligation of the occupiers to comply
with that order is not dependent upon their being provided
with
alternative accommodation even if the effect of complying with the
order will be that they are left without access to adequate
housing.
It follows that the order dismissing the application by the City
cannot stand.
[69] But it does not follow that the City is absolved from any
constitutional obligations. It is apparent that immediately upon
eviction
at least some of the occupiers will not have access to any
housing as a consequence of their eviction. To some degree, at least,
that will place obligations upon the City to provide a measure of
relief. I consider that relief in dealing with the
counter-application
below.
The counter-application: conclusion
[70] I have already found that the respondent’s
counter-application for the review and setting aside of the s
12(4)(b) notices
cannot be upheld. The same applies to the attempt to
have s 12(4)(b) and the practice of the City in employing it declared
unconstitutional.
I have also disposed of the attempt to suspend the
operation of the eviction order until such time as suitable
alternative accommodation
is available.
[71] What remains is the question of a declaratory order that the
City has failed in its constitutional duties to provide access
to
housing within the inner city to those in desperate need of
accommodation and, consequent thereon, a structural interdict to
compel
the City to comply with its duties.
[72] I
need no persuading that government, at every level in varying
degrees, is constitutionally obliged to realize the right of
every
person to have access to adequate housing, albeit that it can only be
realized progressively, if it can ever by fully realized
at all. I
also need no persuading that the enormity of meeting that commitment
cannot excuse inaction on the part of government.
[ 73]
There is some merit in the submission on behalf of the respondents
and the amici that government at all levels and the City
in
particular have yet to firmly grasp the nettle of the obligations
that they have towards the poor. For while it is true that the
City
has developed, with broad strokes, visions and plans that it has for
the city, and that those plans do not altogether leave
out the poor,
there is little evidence to demonstrate what the City has actually
done.
[ 74] But
I do not think this is the case in which to attempt to make an
assessment of the extent to which the City has or has not
made
acceptable progress towards fulfilling its obligations, nor, if it
has not, in which to devise structural relief to spur it
along that
path. I have already indicated that the present respondents are not
concerned with such an enquiry being conducted in
general terms nor
in structural relief that might be appropriate to that enquiry. They
ask for nothing less than that the City should
provide adequate
housing for the poor in the inner city and they seek structural
relief only if it is directed towards that end.
Even at the end of
argument in the present appeal the respondents remained steadfast in
that stance.
[ 75] I
have already held that the City is not obliged to provide housing for
the poor in the inner city specifically (though it might
be obliged
to do so elsewhere). Where housing is to be provided for any
particular economic group is a matter that lies within the
province
of the policy-making functions of the City and I do not think a court
can usurp that function. In those circumstances an
enquiry to
determine whether structural relief is appropriate is not material to
the relief that is sought in the present proceedings.
[ 76] But notwithstanding the approach taken by
the respondents this Court, in my view, would be remiss if it were to
ignore the consequences
that might follow upon eviction. It seems
probable that, once evicted, at least some respondents will be left
without any shelter
at all, and will have no resources with which to
secure any. In my view the duties the City accepts that it has extend
to ensuring
that persons who are left in that position are provided
at least with temporary shelter to alleviate the desperate plight in
which
they will find themselves.
[ 77] The respondents’ insistence on nothing
short of permanent accommodation in the inner city has meant that we
have had little
assistance in devising what the extent of those
obligations might be and we have been compelled to rely in this
regard largely upon
the tender that has been made by the City. That
is unfortunate because we have little doubt that a more constructive
approach by
the respondents might have been capable of producing a
more constructive solution. However, eviction at the hand of the City
creates
an emergency for some that triggers, as mentioned, special
duties. The City has offered, as mentioned, emergency shelter for two
weeks at no cost. But that is not enough and something more is
required. I am not satisfied that the City has pursued with any
vigour
the application under chapter 12. Writing a letter or two is
not enough. Plans are one thing, execution is another. This failure
means that the City has failed to make any provision for those that
are evicted beyond the first two weeks. To order the City to
comply
with its accepted duty appears to me to be eminently fair and since
it only caters for those who are to be evicted cannot
tax its budget
unduly. The order that issues follows in this regard the lines of the
agreement that was sanctioned in
Grootboom
.
The order
[78] It follows from this
that the appeal must be upheld and the cross-appeal dismissed.
Bearing in mind that the Joel Street costs
order in the court below
stands (which will to a large extent cover the costs incurred by the
respondents), and bearing in mind the
nature of the relief, a costs
order in the court below is not justified. The following order
issues:
(a) The appeal is upheld and
the cross-appeal dismissed.
(b) The order of the court
below is set aside save that the order dismissing the applications in
cases WLD 04/10330, 04/10331, 04/10332
and 04/10332 (the Joel Street
applications) with costs remains.
(c) The following order
issues in cases WLD 03/24101 (Zinns) and WLD 04/13835 (San Jose):
1.1. The respondents are interdicted from
occupying the property concerned until such time as the applicant has
granted permission
in writing that the property may be occupied or
used.
1.2. In the event that the respondents or any of
them do not vacate the property within one month of this order, the
sheriff is permitted
to remove from the property all persons
occupying the property and to take such steps as may be necessary to
prevent the re-occupation
of the building, including the sealing of
all entrances.
1.3. The sheriff is authorized to approach the
South African Police Services for any assistance that may be required
and the South
African Police Services are directed to render such
assistance or support as may be required to enforce this order.
2.1
The City of Johannesburg is ordered to
offer and provide to those respondents who are evicted and are
desperately in need of housing
assistance with relocation to a
temporary settlement area as described in chapter 12 of the National
Housing Code (April 2004) within
its municipal area. The temporary
accommodation is to consist of at least the following elements: a
place where they may live secure
against eviction; a structure that
is waterproof and secure against the elements; and with access to
basic sanitation, water and
refuse services.
2.3 In order to implement the foregoing, the City of Johannesburg
must open within seven days a register of persons who qualify and
the
respondents’ attorneys of record shall provide the City with a
list of those respondents who wish to avail themselves of
this order
and the City shall after consultation (if requested by any
respondent) determine the location of the alternative accommodation.
2.4 The City of Johannesburg is ordered to serve on the respondents’
attorneys of record and the amici and file with the registrar
a
compliance affidavit within four months of this order.
2.5 The counter-application is, save to the extent set out,
dismissed.
_____________________
L T C HARMS
ACTING DEPUTY PRESIDENT
AGREE:
SCOTT JA
FARLAM JA
NUGENT JA
CLOETE JA
1
City
of Johannesburg v Rand Properties (Pty) Ltd
2007 (1) SA 78
(W),
2006 (6) BCLR 728
(W).
2
A
report relied on by the respondents, which was prepared by the
Centre of Housing Rights and Evictions, COHRE, entitled ‘Any
Room for the Poor? Forced Evictions in Johannesburg, South Africa’
(8 March 2005).
3
Section
12(1) reads:
‘
If the local authority in question is of
the opinion that—
(a) any building is dilapidated or in a state of disrepair or shows
signs thereof;
(b) any building or the land on which a building was or is being or
is to be erected or any earthwork is dangerous or is showing
signs
of becoming dangerous to life or property,
it may by notice in writing, served by post or delivered, order the
owner of such building, land or earthwork, within the period
specified in such notice to demolish such building or to alter or
secure it in such manner that it will no longer be dilapidated
or in
a state of disrepair or show signs thereof or be dangerous or show
signs of becoming dangerous to life or property or to
alter or
secure such land or earthwork in such manner that it will no longer
be dangerous or show signs of becoming dangerous to
life or
property: Provided that if such local authority is of the opinion
that the condition of any building, land or earthwork
is such that
steps should forthwith be taken to protect life or property, it may
take such steps without serving or delivering
such notice on or to
the owner of such building, land or earthwork and may recover the
costs of such steps from such owner.’
4
Article
25 (1), Universal Declaration of Human Rights; Article 11 (1),
International Covenant on Economic, Social and Cultural Rights;
Article 27 (3), Convention on the Rights of the Child;
Article
14 (h), Convention on the Elimination of All Forms of Discrimination
against Women; Article 5 (c), International Convention
on the
Elimination of All Forms of Racial Discrimination;
Paragraph
61, Habitat Agenda (Second United Nations Conference on Human
Settlements, Habitat II).
5
The
quotations and information come from Miloon Kothari ‘The Right
to Adequate Housing is a Human Right’ 2001 (XXXVIII)
no 1 UN
Chronicle.
6
‘
Poverty
and Human Rights: UNESCO's Anti-Poverty Projects.’
7
Government
of the RSA v Grootboom
2001 (1) SA 46
(CC), 2000(11) BCLR 1169
(CC).
8
Judgment
para 1.
9
Judgment
para 50.
10
Judgment
para 54.
11
Judgment
para 59.
12
Judgment
para 66.
13
Judgment
para 26.
14
Judgment
para 29.
15
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC),
2004 (12) BCLR 1268
(CC) para 17-18;
Khoza
v Minister of Social Development
[2004] ZACC 11
;
2004 (6) SA
505
(CC),
2006 (6) BCLR 569
(CC) para 40. Cf Office of the High
Commissioner for Human Rights ‘Fact Sheet No 21, The Human
Right to Adequate Housing’:
‘
The indivisibility and
interdependence of all human rights find clear expression through
the right to housing. As recognized by
several human rights bodies
of the United Nations, the full enjoyment of such rights as the
right to human dignity, the principle
of non-discrimination, the
right to an adequate standard of living, the right to freedom to
choose one's residence, the right to
freedom of association and
expression (such as for tenants and other community-based groups),
the right to security of person (in
the case of forced or arbitrary
evictions or other forms of harassment) and the right not to be
subjected to arbitrary interference
with one's privacy, family, home
or correspondence is indispensable for the right to adequate housing
to be realized, possessed
and maintained by all groups in society.
At the same time, having access to adequate, safe and
secure housing substantially strengthens the likelihood of people
being
able to enjoy certain additional rights. Housing is a
foundation from which other legal entitlements can be achieved. For
example:
the adequacy of one's housing and living conditions is
closely linked to the degree to which the right to environmental
hygiene
and the right to the highest attainable level of mental and
physical health can be enjoyed. The World Health Organization has
asserted
that housing is the single most important environmental
factor associated with disease conditions and higher mortality and
morbidity
rates.
This relationship or "permeability"
between certain human rights and the right to adequate housing show
clearly
how central are the notions of indivisibility and
interdependence to the full enjoyment of
all
rights.’
16
Government
of the RSA v Grootboom
2001 (1) SA 46
(CC),
2000 (11) BCLR 1169
(CC) para 35. There are statements in
Jaftha v Schoeman
[2004] ZACC 25
;
2005
(2) SA 140
(CC),
2005 (1) BCLR 78
(CC) para 25-30 that appear to
overlook this difference but there does not appear to be any
intention to overrule
Grootboom
in this regard
17
Grootboom
para 33;
Minister of Health v Treatment Action Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC),
2002 (10) BCLR 1033
(CC) para 26 et seq
especially para 35.
18
Cf
Khoza
para 43.
19
Grootboom
para 38.
20
Grootboom
para 34. This obligation is there referred to as a negative
obligation but, with respect, it appears to me to be a positive
obligation.
I have the same problem with the statement that the
prohibition against eviction in ss (3) creates a ‘negative’
right.
However, nothing turns on this semantic debate.
21
Jaftha
v Schoeman
[2004] ZACC 25
;
2005 (2) SA 140
(CC) para 28.
22
Jaftha
para 34.
23
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC),
2004 (12) BCLR 1268
(CC) para 28.
24
Port
Elizabeth Municipality
para 20-22.
25
2002
(4) SA 1
(SCA),
2002 (12) BCLR 1229
(SCA) para 38 and 42.
26
First
National Bank of SA Ltd t/a Wesbank v Commissioner for the SA
Revenue Service
[2002] ZACC 5
;
2002 (7) BCLR 702
(CC),
2002 (4) SA 768
(CC)
para 100.
27
Soobramoney
v Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC),
1997
(12) BCLR 1696
(CC).
28
Soobramoney
para 20-21.
29
Soobramoney
para 29.
30
Soobramoney
para 31.
31
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC),
2004 (12) BCLR 1268
(CC).
32
Government
of the RSA v Grootboom
2001 (1) SA 46
(CC), 2000(11) BCLR 1169
(CC) para 16.
33
Grootboom
para 95. Cf
Minister of Health v Treatment Action Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC),
2002 (10) BCLR 1033
(CC) para 30-35.
34
Cf
City of Cape Town v Rudolph
2004 (5) SA 39 (C), 2003 (11)
BCLR 1236 (C).
35
Baartman
v Port Elizabeth Municipality
2004 (1) SA 560
(SCA).
36
2002
(4) SA 1
(SCA).
37
Section
6:
(1) An organ of State may institute proceedings for the
eviction of an unlawful occupier from land which falls within
its
area of jurisdiction, except where the unlawful occupier is a
mortgagor and the land in question is sold in a sale of execution
pursuant to a mortgage, and the court may grant such an order if it
is just and equitable to do so, after considering all the relevant
circumstances, and if—
(a) the consent of that organ of State is required for the erection
of a building or structure on that land or for the occupation
of the
land, and the unlawful occupier is occupying a building or structure
on that land without such consent having been obtained;
or
(b) it is in the public interest to grant such an order.
(2) For the purposes of this section, “public
interest” includes the interest of the health and safety of
those occupying the land and the public in general.
(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.
(4) An organ of State contemplated in subsection (1) may,
before instituting such proceedings, give not less than 14
days’
written notice to the owner or person in charge of the land to
institute proceedings for the eviction of the unlawful
occupier.
(5) If an organ of State gives the owner or person in
charge of land notice in terms of subsection (4) to institute
proceedings for eviction, and the owner or person in charge fails to
do so within the period stipulated in the notice, the court
may, at
the request of the organ of State, order the owner or person in
charge of the land to pay the costs of the proceedings
contemplated
in subsection (1).
(6) The procedures set out in section 4 apply, with the
necessary changes, to any proceedings in terms of subsection
(1).
38
The
statement (relied on by the amici) by AJ van der Walt
Constitutional
Property Law
(2005) p 413 n 45 that in the apartheid era
‘normal’ eviction proceedings in laws relating to health
and public safety
‘were applied on a racial basis and so
served the agenda of apartheid rather than public health and safety’
may be
factually correct but the problem is that the author makes
the bald statement without providing any factual basis for it. His
only
reference is a previous article by him which does not mention
the issue.
39
Cf
De Smith, Woolf and Jowell
Judicial Review of Administrative
Action 5 ed (1995) p 482 – 485. For older instances:
White
v Redfern
(1879) 5 QBD 15
;
R v Davey
[1899] 2 QB 301.