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2015
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[2015] ZAKZDHC 24
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Ethekwini Municipality v Gumbi and Others (6652/2014) [2015] ZAKZDHC 24 (17 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 6652/2014
In
the matter between:
ETHEKWINI
MUNICIPALITY
..................................................................................
APPLICANT
and
BAZAMILE
GERVASIA
GUMBI
..............................................................
FIRST RESPONDENT
NHLANHLA
GUMBI
.............................................................................
SECOND
RESPONDENT
THEMBELIHLE
GUMBI
..........................................................................
THIRD
RESPONDENT
JUDGMENT
THATCHER
AJ:
[1]
The applicant, the eThekwini Municipality, is the owner of a tract of
land in an area known as Umlazi Infill Part 4 Phase 1.
Some
years ago people settled on it and built informal dwellings or
structures in which to live. In 2009, the applicant decided
to
develop this tract of land and to that end, in May 2009, nearly six
years ago, concluded what is described as a Social Compact
Agreement
with ward committees representing those living on that land in terms
of which the parties agreed to work together so
that the land could
be developed for the benefit of the community.
[2]
The intention was that the applicant would demarcate sites on the
land and allocate those sites to individuals who would receive
ownership of them. Clause 6 of the agreement provided that the
allocation of sites would "be managed in accordance with the
[applicant’s] Housing Department’s allocation policy and
the DoH beneficiary qualification criteria.” Sub-clause
5
of clause 7 of the agreement provided that all sites in the
development would “be allocated in accordance with the
Allocations
Policy of the [applicant] at the time.”
[3]
The papers do not disclose what these policies and criteria are.
However in paragraphs 13 to 15 of the founding affidavit,
what
appears to be some of the criteria are set out, and these paragraphs
are not disputed.
[4]
According to the applicant, once a site had been demarcated, if the
site was occupied by two persons, the person who was the
first to
occupy it and who had dependants would be allocated the title to it.
If the person who had been granted the title
of the site also met
certain criteria, the applicant would, at its expense, build him or
her a low cost house and have it registered
in his or her name.
The other person who used to co-occupy the site would be moved to
another site, and if he or she met
the criteria, would also be given
the same benefit, that is, the construction of a low cost house at
the applicant’s expense
and have the site registered in his or
her name.
[5]
This application concerns two sites demarcated by the applicant,
namely a site which has the address No. 1507 W Extension 2,
Umlazi,
Durban, and the other which has the address No. 1661 W Extension 2,
Umlazi. It is common cause that the first and
second
respondents, who are married to each other, and their dependants,
were allocated the latter site and that the applicant
has built a
house on that site which has been registered in the names of the
first and second respondents. The former property
(hereinafter
called “the property”) has been allocated to the Mchunu
family. A building contractor has been contracted
to construct a
house on the property for them. According to the applicant, the
respondents occupy the property. According
to the third
respondent, who is the daughter of the first and second respondents,
she occupies the property with her daughter who
was born on 16 May
2014. She states that her brother also lives on the property.
(A copy of the birth certificate of
the third respondent’s
daughter indicates that the third respondent was born on 16 May 1993
and she is thus 21 years old.)
She denies that the first and
second respondents occupy the property, stating that they occupy the
house at No.1661 W Extension
2, Umlazi. The first and second
respondents confirm this.
[6]
According to the applicant, the respondents occupy the property
allocated to them, but in the evenings the third respondent
repairs
to an informal structure on the property. Her occupation of the
property is preventing the applicant from causing
construction of a
formal house on the property to be occupied by the Mchunu family.
In this application the applicant seeks
an order ejecting the
respondents and all those who occupy through them from the property.
[7]
It is not disputed that the applicant has complied with the
procedural requirements laid down in the
Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act, No.19 of 1998
,
hereinafter called “the Act”.
[8]
Section 6
of the Act governs the matter. The relevant part of
section 6
is as follows:
“
6.Eviction
at instance of organ of state.
—
(1)An organ of state
may institute proceedings for the eviction of an unlawful occupier
from land which falls within its area of
jurisdiction … 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.
”
However
the circumstances identified in
section 6
are not the only
circumstances to which the court may refer in deciding what is just
and equitable. The court must give consideration
to all
circumstances that might be relevant including for instance those
mentioned in section 4, namely the elderly, children,
disabled
persons and households headed by women. The application of the
Act depends upon the facts of each case, and each
case may require a
different approach.
[1]
What is required is that the courts must have regard to the interests
and circumstances of the occupier and pay due regard
to broader
considerations of fairness and other constitutional values so as to
produce a just and equitable result.
[2]
Provided it acts reasonably, the applicant, like the State,
must be afforded some leeway in the design and structure of
housing.
[3]
[9]
According to the applicant, the property was, before the demarcation
of the sites, first occupied by the Mchunu family and later
the third
respondent’s family occupied the same site. This is
disputed by the third respondent who states that her
uncle, one
Wiseman Gumbi, and the Mchunu family took occupation of the site at
the same time. She states that she lived with her
uncle for the last
five years on the site and that she has continued to do so after her
uncle passed away. She does not however
set out any dates in this
regard, or disclose where the first and second respondents have been
staying over the last five years.
[10]
It is unclear on the papers precisely when the sites were demarcated
by the applicant. The agreement was concluded in
May 2009 and
presumably planning for the demarcation commenced approximately at or
soon after that date. The applicant contends
that the
respondents have known since approximately August 2012 that there was
a prospect of them having to move.
[11]
It is common cause that a house has been constructed on No.1661 W,
Extension 2, Umlazi, and according to the respondents is
occupied by
the first and second respondents. Given that this application was
launched on 9 June 2014, it can be assumed that the
first and second
respondents have enjoyed occupation of their new home from a date
prior to the launching of this application and
in all probability at
a time when the third respondent could validly be considered a
dependant of her parents.
[12]
It appears from the founding affidavit that the Mchunu family, to
whom the applicant has allocated the property, are the children
of Mr
Mchunu who has apparently passed away. The children of Mchunu
are described in the replying affidavit as orphans. According
to the
applicant, they meet its criteria entitling them to have a low cost
house built by the applicant on the property and to
have it
registered in their names.
[13]
It is the applicant’s case that:
(a) the property is
still owned by it (the applicant);
(b) the applicant
has provided the respondents with a house at no cost to the
respondents (while no date as to when the allocation
of the sites was
made is reflected in the papers, it is, as I have stated, safe to
assume that the third respondent had not given
birth to her daughter
when the allocation was made);
(c) a contractor is
poised to commence construction of a house on the property but is
unable to do so because the respondents, or
at least the third
respondent, occupies it;
(d) the contract
with the building contractor provides that the applicant is liable
for any damages that the contractor may suffer
as a result of delays
in performing the contract which are not attributable to the
contractor;
(e)
the applicant is unable to cause the property to be developed so that
the Mchunu family have the benefit of occupying a formal
dwelling, a
benefit afforded the respondents.
[14]
The first and second respondents oppose the application on the basis
that they should not have been joined as respondents as
they do not
occupy the property. The third respondent opposes the
application on the basis that she has resided on the property
for a
period in excess of five years and she is now a single parent of a
minor child, having given birth to a girl in May 2014.
She also
states that the applicant has on its own version undertaken to
identify a site for her but that undertaking has not been
fulfilled.
[15]
The question to be determined is whether in these circumstances it is
just and equitable in terms of
section 6
of the Act that an order be
granted for the eviction of the respondents from the property.
[16]
The applicant is endeavouring to upgrade the living environment of
the occupants of Umlazi Infill
Part 4
Phase One. The first and
second respondents have benefited from the applicant’s
endeavour in that they have been allocated
a site and had constructed
for them a house in which they are now living. It is probable
that at the time the allocation
was made and their house constructed,
the third respondent, if she was not a minor, certainly had no
dependant, and was, not unreasonably,
regarded by the applicant as
being a dependant of the first and second respondents.
[17]
Even if that assumption is incorrect, there is nothing on the papers
to indicate that the third respondent does not have alternative
accommodation. She has not disclosed any facts supportive of
the notion that she is not able to live in the house where the
first
and second respondents are living. While she may not regard
this as ideal, her desire to have a house of her own must
at this
stage yield to the opportunity the Mchunu family have of benefiting
in the same way in which the first and second respondents
have
benefited, namely by having a house constructed for them of which
they can receive title and in which they can live.
There is
nothing in the papers to suggest that the Mchunu family has access to
alternative accommodation.
[18]
The applicant is trying to improve the quality of the lives of as
many people as possible and has been trying to do so since
2009.
It is no doubt faced with many competing claims for sites. In
the circumstances of this case, the applicant has
acted reasonably in
reconciling the competing claims for the property by allocating a
site and house to the first and second respondents
and their family,
and a site and house to another family, the Mchunu family. It
is not unreasonable to expect the third respondent
to share the house
with her parents in those circumstances. It is thus just and
equitable that the applicant obtains vacant
possession of the
property.
[19]
The respondents contend that no order ought to be made against the
first and second respondents as they do not occupy the property,
a
fact disputed by the applicant. The respondents have not
incurred any legal costs in opposing the application and I do
not
propose to make any order for costs against the respondents in favour
of the applicant. To avoid any uncertainty, I think it
appropriate
that an order issue that all of the respondents and any person
occupying through them be ordered to vacate the property.
The
first and second respondents will suffer no prejudice if I make such
an order.
[20]
Insofar as the date by which the property has to be vacated is
concerned, it is reasonable to afford the respondents a period
of
twenty (20) days of the service of this order upon them to vacate the
property.
Accordingly
I make an order in the following terms:
1.
The respondents and any or all persons
occupying through them are ordered to vacate the immovable property
bearing the physical
address No.1507 W, Extension 2, Umlazi, Durban,
within twenty (20) days of the service of this order upon them.
2.
In the event that the respondents and any
or all persons occupying through them fail to comply with the order
set out in paragraph
1 above, the Sheriff of this Court is authorised
and directed forthwith to eject the respondents and any or all
persons occupying
through them, from the property, and to hand vacant
possession thereof to the applicant.
_____________________
Date
of Hearing : 6 March 2015
Date
of Judgment : 17 March 2015
Counsel
for Applicant : Mr L.L. Ngumle
Instructed
by : Gcolotela & Peter Incorporated
Counsel
for Respondents : Ms T. Gopal
Instructed
by : Durban Justice Centre
[1]
Port
Elizabeth Municipality v Various Occupiers 2005(1) SA 217 (CC) at
234F – 235E.
[2]
Port
Elizabeth Municipality v Various Occupiers (supra) at 237D.
[3]
Residents
of Joe Slovo Community v Thubelisha Homes 2010(3) SA 454 (CC)
paragraph [111] at page 494.