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2015
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[2015] ZANCHC 36
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Emthanjeni Local Municipality v South African National Civic Organisation (SANCO) and Others (442/15) [2015] ZANCHC 36 (23 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 442/15
Heard
on: 04/09/2015
Delivered
on: 23/10/2015
In
the matter between
EMTHANJENI
LOCAL
MUNICIPALITY
Applicant
And
SOUTH
AFRICAN NATIONAL
CIVIC
First Respondent
ORGANISATION
(SANCO)
BABALWA
MADYO
Second
Respondent
ALL
PERSONS INTENDING OCCUPYING
Third Respondent
ERF
124, NONZWAKAZI TOWNSHIP
JUDGMENT
PAKATI
J
[1]
The applicant, Emthanjeni Municipality, seeks confirmation of a
Rule
Nisi
granted by Lacock J on 06 March 2015 on urgent basis against
the respondents, the South African National Civic Organisation, Ms
Babalwa Madyo, the secretary of the first respondent, and all persons
occupying or intending to occupy Erf 124 of Nonzwakazi Township
(“the
property”), the first to third respondents respectively. On 27
March 2015 further interim relief was included
in the order of 06
March 2015 against first and second respondents. Emthanjeni
Municipality also seeks confirmation of this order.
The order of 06
March 2015 reads:
“
1.
A rule nisi is granted on the following terms:
1.1
That
the Third and other unknown Respondents are interdicted and
prohibited from invading and/or trespassing and/or erecting any
homes
and/or abodes and/or dwellings or other structures on Erf 124,
NONZWAKAZI
TOWNSHIP
in the district of De Aar.
1.2
That
the Third and other Respondents are interdicted and prohibited from
taking occupation of and/or occupying or inhabiting any
home and/or
dwelling and/or abode and/or other structure which was erected or
might be erected on Erf 124,
NONZWAKAZI
TOWNSHIP
in the district of De Aar.
1.3
That
the Third and other unknown Respondents are interdicted and
prohibited from conducting any activity whatsoever on Erf 124,
NONZWAKAZI
TOWNSHIP
in the district of De Aar, which is aimed either directly or
indirectly at establishing a home and/or dwelling and/or abode and/or
other structure on the said Erf 124,
NONZWAKAZI
TOWNSHIP
in the district of De Aar.
1.4
That
the First and/or other Respondents jointly and severally, are ordered
to pay the costs of the application, the one paying the
other to be
absolved, only if the application is opposed by any of the
respondents.
2. The
Respondents are called upon to show cause, if any, on Friday,
27
MARCH 2015
at 09h30 or so soon thereafter as the matter may be
heard, why the prayers 1.1 to 1.4 above should not be made a final
order of
Court.
3. That
prayers 1.1 to 1.3 above shall operate as an interim interdict with
immediate effect.
4. That the
Sheriff of the district of De Aar, effect service of the court papers
by
4.1
serving a copy of the notice of motion, together with the Founding
Affidavit and Annexures thereto on each person found to be
on
ERF
124, NONZWAKAZI TOWNSHIP
in
the district of De Aar, and/or busy with erecting of any home,
dwelling, abode and/or other structure;
4.2
by announcing the terms of the order granted by way of loud hailer
on, at and near Erf 124,
NONZWAKAZI
TOWNSHIP
in the district of De Aar; and
4.3
by affixing a copy of this notice of motion together with the
Founding Affidavit and Annexures thereto and order on temporary
notice boards at prominent places on Erf 124,
NONZWAKAZI
TOWNSHIP
in the district of De Aar.
5. That the
relief against the first and second respondents is postponed until
the return day being 27 March 2015 at 09h30 and that
service on the
first and second respondents be effected in accordance with the Court
Rules.”
[2]
The order granted on 27 March 2015 states:
“
IT
IS ORDERED THAT:
1.
The
matter is postponed and the rule nisi [granted] on 06 March 2015 is
extended to 08 May 2015;
2.
The
following order be included in the existing interim order as
paragraph 1.3 A
“
That
the First Respondent, through any of its members and the Second
respondent, are interdicted and prohibited from conducting
any
activity whatsoever, which is aimed either directly or indirectly at
establishing, enticing and/or instructing and/or enabling
any person
to erect and/or establish a home and/or dwelling and/or abode and/or
other structure on Erf 124, NONZWAKAZI TOWNSHIP,
in the district of
De Aar.”
[3]
The respondents opposed the application. They were unrepresented but
Mr Sicelo Williams, the Deputy Provincial Secretary of
the South
African National Civic Organisation and the deponent to the opposing
affidavit, sought to argue the matter on their behalf,
which is
impermissible. However, to avoid duplication and in the interests of
saving time, they merely confirmed his submissions.
The
respondents argued that they were unaware that the property belonged
to Emthanjeni Municipality until 10 March 2015 and
that there were no
boards identifying the property as belonging to Emthanjeni
Municipality and warning that trespassers would be
prosecuted.
[4]
The following facts are undisputed:
(a)
That Emthanjeni Municipality is the registered owner of the property;
(b)
That on 10 February 2015 approximately 15 sections of the land on the
property were cleared and pegged out but no structures
were erected
at that stage;
(c)
That the community informed Ms Nozibonelo Sanna Qondani, the Speaker
and the law enforcement officer employed by Emthanjeni
Municipality,
that they intended to erect corrugated iron structures with the
intention of occupying them permanently;
(d)
That they refused to vacate the property when instructed to;
(e)
That on 12 February 2015 Ms Qondani informed the respondents
via
a loud hailer that they had no right to occupy the property;
(f)
That on 28 February 2015 the threatened structures were built on the
property; and
(g)
That the respondents had no permission to build structures on the
property.
[5]
On 03 February 2015 Emthanjeni Municipality ostensibly responded to a
letter (which does not form part of the papers) addressed
to it by
the South African National Civic Organisation on 29 January 2015 as
follows:
“
REQUEST
FOR MEETING
Your
letter dated 29 January 2015 bears reference.
The
matter has been referred to the Mayor’s Office and you will be
informed of the outcome of your request by the Manager
of the Mayor’s
Office which will be dealing with this matter. A date for the
requested meeting will be communicated to you
by the Mayor’s
Office.”
[6]
The South African National Civic Organisation forwarded another
letter to Emthanjeni Municipality on 12 February 2015 with the
following recording:
“
RE:
Letter of Request
I
am instructed by the abovementioned organisation to request a meeting
with you and the council on 16/02/2015 at 10h00 at your
offices.
1.
Sites
to build houses for Nonzwakazi community.
2.
Building
of Shacks in Nonzwakazi Ward 3 as our houses are too small for the
people who are staying in them as our one rooms are
having more than
8 people staying in them and four rooms more than 12 people staying
in them as that is very unhealthy and we request
this due to the
promises made to us by the council during 2014 election campaign and
the council meets the people meetings of 2014.
3.
Renovating
of Street 8 one-roomed houses as also promised in a council meets the
people meeting of 2012.
I
close here with hope that our request will reach your favourable
consideration.”
It
should be noted that this letter was sent to Emthanjeni Municipality
two days after the community had pegged out the said approximately
15
sections of the land.
[7]
On 19 February 2015 Ms Madyo (the second respondent) together with
100 to 200 community members (the third and further respondents)
handed a petition (Annexure “V1”) to Ms Qondani on behalf
of the third and further respondents. Emthanjeni Municipality
contends that first and second respondents promote the actions of the
third and further respondents. The petition reads:
“
We,
the community of Nonzwakazi (Ward 3) under the leadership of SANCO
[the South African National Civic Organisation] hereby request
you as
Emthanjeni Municipality to respond and agree on the following matters
as soon as possible:
1.
We
request the building of 800 houses in Nonzwakazi (Ward 3) from the
2 500 houses allocated for De Aar.
2.
We
request you to renovate [extend is what is meant] the [one-roomed]
houses in Street 8 at Nonzwakazi (Ward 3) as soon as possible
starting from 1
st
April 2015.
3.
We
request you to stop charging our indigent people R10-00 for them to
get their free electricity.
4.
We
request you to please stop cutting our electricity as we don’t
owe the electricity, please deal with what we owe you, not
what we
don’t owe.
5.
We
also request you to avail sites for people or community members to
build for themselves houses in Nonzwakazi (Ward 3).
6.
We
also want to bring [to your attention] that when both parties sign
this petition, we legally agree that you as Emthanjeni Municipality
will not destroy our shacks or remove them or us on the sites we are
going to build them. We are going to build the shacks on the
28
th
February 2015 and that you are not going to stop us the community to
build them or use your Law Enforcement, SAPS or Courts to
stop us in
building these shacks till you build houses for us as we don’t
have houses.
7.
We
request you to renovate the falling houses and toilets of Streets 1,
2, 4, 5, 6, and 7 in Nonzwakazi (Ward 3).
8.
We
request you to renovate the tennis court and the Nonzwakazi Stadium.
9.
We
request you to rent out the old Nonzwakazi Beer Hall as it is used to
commit crime, if not please get rid of it before people
are killed or
women are raped inside it.
10.
We
also request you to avail sites in Nonzwakazi (Ward 3) to build
churches.
11.
We
are giving you seven days to respond on points 1, 2, 3, 4, 5, 7, 8, 9
of our petition failing to do so then we will take further
action
against your Municipality.”
[8]
On 24 February 2015 Emthanjeni Municipality responded as follows:
“
We
received your petition and would like to respond as follows:
1.
The
Municipality is currently in the planning phase of the 4114 housing
project. Construction of the top structures will be done
over a few
MTEF periods depending on allocations received from the National
Department of Human Settlements. And people of Emthanjeni
will have
to stay where housing construction or development takes place in
terms of the Breaking New Grounds principles. This is
as government
strive to integrate the various communities;
2.
The
Municipality will attend to this process;
3.
We
are not aware of this, but the matter will be investigated and dealt
with accordingly;
4.
The
Municipality is rendering a basket of services, including
electricity. Emthanjeni Municipality adopted a Credit Control Policy
years ago and collection of outstanding revenue will be dealt with in
terms of this policy;
5.
There
are currently no available serviced sites in De Aar. However, an
individual who wants to build a house should feel free to
enquire at
the municipality;
6.
The
purpose of signing the petition was to
acknowledge
receipt.
In the event of illegal occupation of municipal land, the necessary
processes will be followed to correct the situation;
7.
Revitalization
of houses in all 7 Wards is an [on-going] process;
8.
We
can report that the tennis court [and] the stadium was renovated
during the past five years. Maintenance of municipal assets
is done
in accordance with an approved budget;
9.
The
Municipality is looking at ways of managing this particular asset;
10.
Please
see my response in 5 above; [and]
11.
Noted,
but you are also referred to my response in 6 above.”
[9]
On 28 February 2015 the third and further respondents erected their
shacks on the property. The same day Mr Faried Manuel, an
employee of
Emthanjeni Municipality, reported the matter to the police and a
criminal case was opened at De Aar Police Station
under Cas Number
227/02/2015.
[10]
On 05 March 2015 Mr Allen Nicolas Boucher, an employee of Emthanjeni
Municipality, inspected the property and compiled a report
which
showed that four shacks were thereon, three incomplete and one
complete but unoccupied. Furniture and clothing were on site.
On 06
March 2015 the completed shack was occupied. The community members
who were erecting shacks expressed their intention to
occupy same
permanently. Emthanjeni Municipality does not, at this stage, seek
the eviction of the occupier of the completed shack.
[11]
The respondents alleged that Emthanjeni Municipality promised them
adequate housing. One thousand houses were supposed
to have
been built for Ward 3 in 2014 already. In September 2014 the
respondents learned that 300 houses had been approved for
Ward 3.
They contended that Ward 1, 2, 4, and 5 were promised 3 100
houses which never materialised. The respondents contended
further
that their houses are too small, dilapidated and overcrowded. They
alleged that the signature on the petition by the Speaker
on behalf
of Emthanjeni Municipality was tantamount to acceptance of Clause 6
of the petition and therefore binding on the municipality.
That was
the reason why they did not lodge an application on or before 28
February 2015 when they built zinc structures.
[12]
It is important to note that the opposing affidavit did not deal with
the allegations as contained in the Founding Affidavit.
If the
respondents’ Answering Affidavit fail to admit or deny, or
confess and avoid, allegations in the applicant’s
affidavit,
the court will, for the purposes of the application, accept the
applicant’s allegations as correct.
[1]
Where in motion proceedings disputes of fact have arisen on
affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if facts averred in the applicant’s
affidavit, which have been admitted by the respondent,
together with
facts alleged by the respondent, justify such an order.
[2]
There may be exceptions to this rule, as, for example, where the
respondent’s allegations or denials are so implausible
or
clearly untenable that the Court is justified in rejecting them
merely on papers.
[3]
[13]
The issue that falls for determination is whether the respondents
should be allowed to occupy the applicant’s property
and/or
erect zinc structures without Emthanjeni Municipality’s
permission or whether proper procedures in relation to acquiring
land
should have been followed.
[14]
The requisites for the right to claim an interdict are a clear right,
an injury actually committed or reasonably apprehended
and the
absence of similar protection.
[4]
The courts should consider the circumstances under which the land has
been occupied and whether it would be in the public interest
to grant
an eviction order.
[5]
[15]
The Constitution guarantees that everyone has a right to have access
to adequate housing and that the State must take reasonable
legislative and other measures within its available resources to
achieve the progressive realisation of this right.
[6]
[16]
It is a well-known fact that the poor, constituting the majority of
our people, live under intolerable conditions and therefore
housing
is still a huge problem for them. This has resulted in the
communities helping themselves by unlawfully occupying or invading
vacant land. Unless the plight of these communities is
alleviated, they may be tempted to take the law into their own hands
in order to escape their circumstances. This case brings home the
harsh reality that the Constitution’s promise of dignity
and
equality for all remains a distant dream for many. People should not
be impelled by intolerable living conditions to resort
to land
invasions. Self-help of this kind cannot be tolerated, for the
unavailability of land suitable for housing development
is a key
factor in the fight against the country’s housing shortage.
[7]
The respondents conceded that they did not follow the correct
procedures to occupy the property.
[17]
In the instant case only a small number of people have infringed
Emthanjeni Municipality’s property or ownership rights.
Importantly
,
this problem should be nipped in the bud before
it spreads to larger communities. Regarding the fundamental
constitutional value
of human dignity Emthanjeni Municipality
appreciates that it is its primary obligation to provide access to
adequate housing. However,
it has set programmes and procedures that
have to be followed by those in need of housing who are indigent,
subject to the municipality’s
budgetary constraints. No
building plans were submitted to it for approval and there is no
infrastructure on the property; not
to regulate settlement would be
to invite health risk and anarchy.
[18]
The respondents’ argument that they did not know who the
property belonged to until 10 March 2015 cannot hold water taking
into account the petition served on Emthanjeni Municipality on 19
February 2015 and its response dated 24 February 2015. I restate
para
6 of the petition which states:
“
We
are going to build the shacks on the 28
th
February 2015 and that you are not going to stop us the community to
build them or use your Law Enforcement , SAPS or Courts to
stop us in
building these shacks till you build houses for us as we don’t
have houses.”
This
shows their determination to incite chaos. It also cannot be correct
that when the Speaker signed for the petition she was
accepting
Clause 6 of the petition as an agreement between the respondents and
Emthanjeni Municipality. The respondents referred
to Annexure “V7
(A)”, a document they identified as the permit that allowed
them permission to build shacks on Erf
124 Nonzwakazi Township.
However, this document does not refer to the said Erf.
[19]
In my view, Emthanjeni Municipality has made out a case for the
relief sought. The respondents have indeed infringed its rights
by
their unlawful invasion and building of structures on the property.
Programmes and procedures have to be followed in order to
provide
adequate housing to the needy as enshrined in the Constitution, but
this must be done in an orderly manner. The two
rules nisi
orders
stand to be confirmed.
COSTS
[20]
It was undisputed that the respondents entered the applicant’s
property without permission and built shacks for purposes
of
occupying them permanently as alluded to earlier. They refused to
vacate the property when requested. The application was lodged
on 06
March 2015 when the interim order was granted. A further order was
granted on 27 March 2015. The respondents opposed the
application on
22 April 2015 and the matter was postponed to the opposed roll. On 08
May 2015 it was postponed to 04 September
2015 when it was argued and
the
rule nisi
was extended. The respondents insisted on
conducting their own case when the matter was argued. They still
refused to vacate the
property. Their insistence to be on the
property and yet acknowledging their unlawful conduct renders them
liable for the costs
of this application.
ORDER
1.
The
Rule
Nisi
granted on 06 March 2015 is hereby confirmed.
2.
The
Rule
Nisi
granted on 27 March is hereby confirmed.
3.
The
respondents, the South African National Civic Organisation, Babalwa
Madyo and All persons occupying or intending to occupy Erf
124 of the
Nonzwakazi Township are ordered to pay the costs of this application,
the
one paying the other to be absolved.
______________
BM
PAKATI
JUDGE
NORTHERN
CAPE DIVISION-KIMBERLEY
On
behalf of the Applicant:
ADV D OLIVIER
Instructed
by:
DU TOIT & DE BEER ATTORNEYS
On
behalf of the 1
st
Respondent:
MR M WILLIAMS-IN PERSON
[1]
Rule
6 of the Uniform Rules of Court p B1- 43 to B1 – 44;
[2]
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
AD at 634H-I.
[3]
Plascon-Evans supra at 635.
[4]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[5]
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter and
Another
[2001] 1 All SA 381
(E) at 390.
[6]
S 26 of the
Constitution of the Republic of South Africa Act, 108 of 1996.
[7]
The
Government of the Republic of South Africa and Others v Grootboom
and Others
2001 (1) SA 46
(CC) at para 2.