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[2015] ZAKZDHC 69
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MEC for Human Settlements and Public Works of the Province of KwaZulu-Natal v Ethekwini Municipality and Others (3329/2013, 9189/2013) [2015] ZAKZDHC 69; [2015] 4 All SA 190 (KZD) (20 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO : 3329/2013
DATE:
20 AUGUST 2015
In the matter
between
THE MEC FOR HUMAN
SETTLEMENTS & PUBLIC WORKS
OF THE PROVINCE
OF
KWAZULU-NATAL
..............................................................
APPLICANT
And
ETHEKWINI
MUNICIPALITY
......................................................................
FIRST
RESPONDENT
MINISTER OF
POLICE
..............................................................................
SECOND
RESPONDENT
JABULANI ZULU AND
389
OTHERS
..........................................................
THIRD
RESPONDENT
And
CASE
NO: 9189/2013
In the matter
between
ABAHLALI
BASEMJONDOLO AND 30 OTHERS
..............................
1st
TO 31ST APPLICANTS
And
ETHEKWINI
MUNICIPALITY
......................................................................
FIRST
RESPONDENT
THE MEC FOR HUMAN
SETTLEMENTS & PUBLIC WORKS OF THE PROVINCE OF
KWAZULU-NATAL
….................................................................................
SECOND
RESPONDENT
JUDGMENT
MOKGOHLOA J
[1] The four matters
served before me on special motion session i.e 3329/2013, 9189/2013,
4431/2013 and 1762/2014. The first case
relates to the confirmation
of the rule issued under an interim interdict granted on 28 March
2013, the second relates to leave
to intervene in the proceedings
under case number 3329/2013, the third relates to an order to compel
the reconstruction of the
demolished houses, and the fourth relates
to an interdict against the eviction of the residents of the Madlala
Village.
[2] At the
commencement of the hearing I was informed that the third respondents
have withdrawn their application under case number
4431/2013 as well
as their opposition in the application under 1762/2014. What remains
to be dealt with are case numbers 3329/2013
and 9189/2013.
Case number
3329/2013
[3] The applicant
(the MEC of the Executive Council for Human Settlements and Public
Works KZN Province), is the owner of various
immovable properties
which are fully described in annexures ‘NOM1 to NOM37’ of
the notice of motion. The properties
are earmarked for housing
development and other public services.
[4] On or about 25
February 2013, officials of the applicant became aware that one of
the properties i.e. Lot 532 Bonela was being
unlawfully invaded. The
applicant sought the assistance of the South African Police Services
(the SAPS), the first respondent’s
Land Invasion Control Unit
(the LICU) and the Metro Police Unit (the MPU) in order to prevent
the invasion. The SAPS, LICU and
MPU succeeded in preventing the
invasion and undertook the removal of all materials
that were taken to
the property for the purposes of the construction of the proposed
structures.
[5] An affidavit
deposed to in isiZulu by one Angel Duma on 5 March 2013 was
communicated to the applicant. The affidavit translated
in English
reads:
‘Our houses
have been demolished and we have no place to stay.
We tried to secure
shelter and now we are being chased away from the forest. They say we
must figure out what to do next and we
have no idea where to go.
We intend going back
to the forest on Monday.’
The content of the
affidavit was endorsed and supported by 71 other named persons. The
applicant understood the content of the aforesaid
affidavit as a
proposal to undertake the unlawful invasion of other vacant areas.
The LICU succeeded in repelling the proposed
land invasion.
[6] On 8 March 2013
the Legal Resources Centre (the LRC), acting on behalf of the
occupants of the shacks, addressed a letter to
the officials of the
applicant and the first respondent. The LRC alleged, inter alia, that
the rights of occupation of their clients
had apparently been
interfered with by officials of the first respondent.
[7] A meeting was
convened on 11 March 2013 between the representatives of the
applicant, the first respondent and the LRC. The
LRC indicated at
that meeting that they were ready to launch an urgent application to
have their clients’ homes restored
to the position in which
they were prior to its unlawful destruction by members of the LICU
and to prevent further demolitions
of their clients’ homes by
the first respondent. It was then agreed that the LRC would provide
the applicant with a list
setting out the names and identity numbers
of their clients for purposes of a verification exercise to establish
whether their
clients were indeed homeless.
[8] On 13 March 2013
a group of unknown individuals sought to invade the private property
of one Mansoor in Cato Manor. Mansoor
engaged the services of a
private company to repel the invasion. Attempts were made to invade
Lot 1010, Bonela (a property owned
by the applicant). The applicant
engaged the services of the SAPS, LICU and MPU who removed the
invaders together with the material
they placed on the property.
During the night of 13 March 2013 further attempts were made to
construct four structures on this
property. These structures were
however demolished during the morning of 14 March 2013.
[9] On 15 March 2013
the applicant launched an urgent application in this court under case
number 2778/2013 for an order interdicting
Angel Duma as well as the
supporters to her affidavit from invading and/or occupying the
properties owned and controlled by the
applicant in Cato Manor. D
Pillay J granted the order prayed and other appropriate relief
including an order authorising SAPS and
the first respondent to take
all reasonable and necessary steps to prevent such invasions.
[10] Subsequent to
the above-mentioned order being granted, and on the same day, 15
March 2013, a meeting was held between the LRC,
the applicant and the
first respondent The LRC produced a list of persons who were
allegedly in occupation of the Lamontville property.
During the
course of the meeting the representatives of the first respondent
expressed concern about the ongoing land invasions.
They indicated
that all known and existing informal settlements had been audited and
properly documented for accommodation purposes.
They wanted to know
where the persons who claimed to have lived on the Lamontville
property came from. It was then agreed that
the list provided by the
LRC would have to be verified and that those without identity
documents would be assisted by the LRC in
applying for identity
documents. It was further agreed that the LRC would provide the first
respondent with information as to where
its clients came from. The
LRC undertook to do so within a week.
[11] The
representatives of the applicant indicated to the LRC that they were
not convinced that the persons occupying the Lamontville
property
were in fact homeless. They noted that in the event that their
negotiations with the LRC failed, they would pursue an
application
for the eviction of the persons in occupation of the Lamontville
property. The LRC requested that they be given notice
of any such
application.
[12] On 28 March
2013 the applicant launched an urgent application under case number
3329/2013. This application was against the
first and second
respondents respectively. The applicant acknowledged in her affidavit
that there were people occupying the Lamontville
property but only
disputed those people’s right to occupy such property. The
application was enrolled for 11 h30 and was
served on the LRC at 11
h30.
[13] The application
came before Koen J on 28 March 2013 who issued a rule nisi with an
interim interdict in the foliqwing terms:
‘1. That a
rule nisi do hereby issue calling upon the Respondents and all other
interested persons to show cause to this Honourable
Court on the 11
day of April 2013 at 09H30 or soon thereafter as the matter may be
heard why an order in the following terms should
not be granted:
1.1 that the first
and second respondents are hereby authorised to take ail reasonable
and necessary steps:
1.1.1 to prevent any
persons from invading/or occupying and/or undertaking the
construction of any structures and/or placing any
material upon the
immovable properties described in “NOM1-37” to the notice
of motion;
1.1.2 to remove any
materials placed by any persons upon the aforementioned properties;
1.1.3 to dismantle
and/or demolish any structure or structures that may be constructed
upon the aforementioned properties subsequent
to the grant of this
order.
1.2 interdicting and
restraining any persons from invading and/or occupying and/or
undertaking the construction of any structures
and/or placing of any
material upon any of the aforementioned properties;
1.3 that any
respondent or respondents or any other party who opposes this
application be ordered to pay the costs occasioned thereby
jointly
and severally, in the event that more than one respondent does so.
2. That paragraph
1.1 and 1.2 hereof shall operate as interim order with immediate
effect pending the return date of the rule nisi.
3. That the grant of
this order shall be advertised:
3.1 by placing a
copy of this order together with a translation thereof in isiZulu in
prominent places upon each of the aforementioned
properties;
3.2 By publishing
this order together with a translation thereof in isiZulu in the
llanga newspaper for a period of three days consequent
upon the grant
of this order.’
[14] The third
respondents anticipated the return date and brought an application
for leave to intervene in the proceedings. They
complained that the
applicant had not cited them in that application notwithstanding the
fact that the order sought affected them
as it is related to the
property on which they lived. They contended that they had a direct
and substantial interest in the proceedings
and therefore, had locus
standi. The applicant and the first respondent opposed the
application and they argued that the third
respondents had no locus
standi in the proceedings because the interim order did not affect
them or their rights since it is only
related to invasions or
attempted invasions that occurred or would occur after the grant of
that order.
[15] The application
for leave to intervene came before Kruger J who dismissed it. Leave
to appeal in the High Court and the petition
for leave to appeal to
the Supreme Court of Appeal were dismissed as well. The third
respondents, aggrieved by the dismissals,
approached the
Constitutional Court which granted them leave to appeal and set the
appeal down for hearing. The Constitutional
Court upheld the appeal
and set aside the order of Kruger J.
[16] The matter was
finally set down for confirmation of the rule granted by Koen J. The
third respondents opposed the confirmation
of the rule on the grounds
that the interim interdict
15.1 contravenes
section 26(3) of the Constitution Act 108 of 1996;
15.2 authorises
ongoing evictions and demolitions absent a further order of Court and
absent any consideration of the relevant circumstances
particular to
the persons affected by such eviction or demolition;
15.3 seeks to
condone ongoing non-compliance with the prescriptive requirements and
rules of PIE;
15.4 seeks to limit
a constitutional guarantee against arbitrary eviction as encapsulated
by Section 26(3) of the Constitution;
and
15.5 seeks to
empower the first and second respondents with the discretionary
powers and the oversight function which is reserved
solely for the
Honourable Court by virtue of the provisions of Section 26(3) of the
Constitution.
[17] The third
respondents argued that the application should be dismissed and the
rule be discharged. The first respondent decided
to abide by the
decision of this court.
[18] The applicant
on the other hand submitted that the application had been set down at
the instance of the third respondents with
a view to determine the
constitutionality and/or validity of the interim order granted by
Koen J. According to the applicant, the
order was granted against the
first and second respondents who were duly cited as parties in the
application and that there is
therefore no basis to set the order
aside. The applicant submitted that the fact that the third
respondents were not joined in
the proceedings, does not render the
interim order a nullity.
[19] The applicant
referred to a case of Kayamandi Town Committee v Mkhwaso & Others
1991 (2) SA 630
(C). In this case, the applicant, a town committee,
launched an urgent application against nine named respondents for an
order
that they vacate and be prohibited from reoccupying certain
specified stands under the control of the applicant in the township
of Kayamandi, an area outside Stellenbosch. The applicant alleged
that a group of approximately 150 persons, among them the residents,
had erected shacks on land which had been earmarked for residential
development. Service was affected only on first and sixth respondents
and the applicant alleged that it was not reasonably practicable to
effect services on the other respondents.
The court, accepted
that it was impossible for the applicant to identify the persons
residing on the stands in question, refused
to grant any order
against the unidentified occupiers and held that the applicant had
other remedies under the Prevention of Illegal
Squatting Act 52 of
1951.
[20] The applicant
contended that the facts in casu are fundamentally distinguishable
from those in Kayamandi. It submitted that
the order in casu was
sought against a background of orchestrated land invasions which had
taken place and which the applicant
apprehended on reasonable grounds
would continue. Furthermore, that it was impossible in the prevailing
circumstances to establish
the identities of such prospective
invaders. According to the applicant,
the order was not
intended to be and is not an eviction order. Its purpose, it
contended, was to prevent the threatened unlawful
invasion of its
properties.
[21] I have
considered the facts in Kayamandi and cannot find any fundamental
distinction with the present case. In my view, the
distinction sought
to be made appears to be a distinction without any difference in
that, the land in Kayamandi was earmarked for
residential development
and the town committee also had fears than an explosive situation may
arise if the squatters were not removed.
Accordingly, the applicant,
as was the town committee in Kayamandi, has other remedies under the
Prevention of Illegal Eviction
from and Unlawful Occupation of Land
Act 19 of 1998 (PIE) and was not entitled to obtain an interdict
against the third respondents
without them being joined in the
proceedings. To do so would contravene the provisions of section 26
(3) of the Constitution Act
which requires that prior to an eviction
being granted or the demolition of home being authorised, an order of
Court must be sought
by the applicant and that such order may only be
granted after a consideration of all of the relevant circumstances.
[22] Against its
argument, the applicant produced an amended order and prayed for same
to be confirmed. The amended order reads:
"1.
"That a Rule
nisi do hereby issue calling upon the respondents and any and all
other interested persons to show cause to this
Honourable Court on
the day of 2014 at 09h30 or so soon thereafter as the matter be heard
why an order should not be granted in
the following terms:
1.1 That the first
and second respondents are hereby authorised to take all reasonable
and necessary steps to:
1.1.1 prevent any
person from:
1.1.1.1 invading;
and or
I. 1.1.2 undertaking
the construction of any structures and /or
II. 1.3 placing any
materia], subsequent to the grant of this order upon any of the
immovable properties (“the properties”)
described in
annexure NOM1-37’ of the notice of motion;
1.1.2 prevent any
persons other than those who are already in occupation and/or who
have taken occupation of any of the properties
from taking any steps
to occupy any of the properties;
1.1.3 remove any
material placed by any of the persons foreshadowed by sub-paragraph
1.1.1 hereof form the properties.
1.2 Interdicting and
restraining any persons:
1.2.1 from invading
and/or undertaking the construction of any structures; and/or
1.2.2 other than
those who are already in occupation from placing any material upon,
any of the properties.
1.3 That any
respondent or respondents or any other party who opposes this
application be ordered to pay the costs occasioned thereby
jointly
and severally in the event that more than one respondent does so.
That paragraph 1.1
and 1.2 hereof shall operate as an interim order with immediate
effect pending the return date of the Rule nisi."
[23] I have serious
concerns in respect of the proposed amended order. Firstly, the
amended order was attached to the applicant’s
heads of argument
which were served five (5) days after the third respondents had filed
their heads of argument and three (3) days
before the hearing of the
application. The third respondents were not granted an opportunity to
file affidavits to answer and respond
to the amended order. The
applicant does not advance any reason why the proposed amended order
was filed late. In fact, no application
to amend Koen J’s order
was sought. The applicant did not ask for an adjournment to allow the
respondents to respond to the
proposed amended order. Instead the
applicant submitted that the objection that the interim order is
unconstitutional and/or invalid
should be dismissed and the proposed
amended order should be confirmed.
[24] Secondly, the
proposed amended order draws a distinction between invaders and
persons who are already in occupation of the
properties. There is no
guidance to the first respondent, LICU and SAPS as to who is an
invader and who was already in occupation
of the property. In my
view, the proposed amended order will permit the applicant, the first
and second respondents to decide who
is an invader and not an
occupier and then to evict that person at will. This will amount to
self-help which is in violation of
the provision of s 1(c) of the
Constitution 108 of 1996.
[25] Thirdly, none
of the occupants of any properties to which the proposed amended
order would apply have been joined in the proceedings.
The applicant
argued that it is impractical to join all occupants of those
properties to the proceedings. This argument is untenable.
Evictions
are governed by the provisions of PIE. The rules and requirements of
PIE are not optional. The Supreme Court of Appeal
held in Ndiovu v
Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) para 3:
‘PIE has its
roots, inter alia, in s 26(3) of the Bill of Rights, which provides
that 'no one may be evicted from their home
without an order of court
made after consideration of all the relevant circumstances’.
Cape Killarney Property investments
(Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA) at 1229E. It invests in the courts the right
and duty to make the order, which, in the circumstances of the case,
would be
just and equitable and it prescribes some circumstances that
have to be taken into account in determining the terms of the
eviction.’
[26] In any event,
it is not impractical to join the residents of the property. What is
required is not a list of names, but a description
of the affected
parties.
[27] Although the
majority of the Constitutional Court in Zulu & Others v Ethekwini
Municipality & Others 2014(8) BCLR 971
(CC) refrained from
determining the validity of the interim interdict granted by Koen J,
Van der Westhuizen J pointed out that:
“[44] Eviction
is governed by the provisions of PIE, which aim to ensure that the
most vulnerable among us are protected.
Its rules and requirements
are not optional. The interim order authorises evictions - and has
been used as authority for at least
three evictions - without
providing the unlawful occupiers a hearing and ensuring that they
were protected to the extent required
by law. An order of this nature
deprives unlawful occupiers of rights enshrined in the Constitution
and recalls a time when the
destitute and landless were considered
unworthy of hearing before they were unceremoniously removed from the
land where they had
tried to make their homes.
[45] At the very
least, an eviction could not lawfully have been issued without
judicial determination that it was just and equitable
to do so,
considering all relevant circumstances and having allowed affected
persons, especially the most vulnerable, to present
evidence of their
circumstances in a hearing. The order was issued without
consideration of those persons whom it would impact,
in obvious
contravention of PIE and in direct violation of underlying
constitutional rights. I would find that the interim order
is
unlawful and therefore unconstitutional on the basis that it negates
the Madiala Village resident’s rights (as well as
those unnamed
others) under PIE and section 26(3) of the Constitution.
[46] Not for a
moment do I doubt the seriousness of illegal invasions. But serious
too is the illegal eviction of vulnerable individuals
with nowhere
else to live. This was the motivation for the enactment of PIE and
its protective measures which are intended to ensure
due process and
sufficient consideration of housing needs prior to eviction. As State
organs, the respondents have failed in their
constitutional
obligations by repeatedly evicting (or, as the case may be,
sanctioning the eviction of) the Madiala Village residents
without an
appropriate court order.”
[28] I fully agree
with Van der Westhuizen J. Koen J’s interim order deprives the
third respondents and other people affected
of their rights enshrined
in the Constitution of being heard before they are removed from the
land they have tried to make their
homes. In my view, the interim
order is in contravention of the rules and requirements of PIE and
consequently unlawful and invalid
and remain to be set aside.
Case number
9189/2013
[29] The applicants
in this matter (Abahlali Basemjondolo) are residents of an informal
settlement known as Cato Crest which is
owned by the MEC (the
applicant in case number 3329/2013). They ask for leave to intervene
in the present proceedings. It is clear
that the applicants’
right of occupation is affected by the interim interdict in this case
and have to be granted leave to
intervene.
[30] The applicants
have lived in Cato Crest for a period of about 15 years. During
August and September 2013 the eThekwini Municipality
(the
Municipality) the police evicted the applicants from their homes on a
number of occasions. On each occasion, the applicants’
homes
were destroyed.
[31] The applicants
sought and obtained interdicts restraining the Municipality from
evicting them without a valid court order.
The evictions continued.
The applicants then brought an application to hold the Municipality
in contempt of the orders restraining
it from evicting them. This did
not stop the Municipality from continuing with the evictions. In
fact, the Municipality in case
number 3329/2013 stated that the
evictions were as a result of the interim order granted by Koen J and
that they were merely implementing
the provisions of that order.
[32] It is a general
rule that an order of court has to be obeyed irrespective of whether
it has been wrongly made. An order of
court, whether correctly or
incorrectly granted has to be obeyed until it is properly set aside
(see CufverweH v Beira
1992 (4) SA 490
(W) at 494A-C).
[33] I agree with
the Municipality that it is obliged as a state organ to comply with
the court orders.
[34] In the result,
the following order shall issue:
Order:
1. The applicants in
case number 9189/2013 are granted leave to intervene.
2. The interim order
granted on 28 March 2013 is set aside and the rule is discharged.
3. The applicant
(i.e. MEC) is ordered to pay costs in respect of the third
respondents under Case No: 3329/2013 and the applicants
under Case
No: 9189/2013.
MOKGOHLOA J
COUNSEL
Counsel for the
Applicants Adv Gajoo SCI Adv Abraham
Instructing
Attorneys : The State Attorney
Sixth Floor
Metropolitan Life Building Anton Lembede Street, Durban Ref:
551/000079/13/A/P21
Counsel for the
1st Respondent : Adv T Norman SC/ Adv Bhangwandeen
Instructing
Attorneys Gcolotela & Peter Incorporated
294 Mathews
Meyiwa Street Morningside, Durban Ref: Mr Peter/NR/ETH153
Counsel for the
3rd Respondent Adv Broster SC/ Adv Veerasamy
Instructing
Attorneys Legal Resources Centre
N240 Diakonia
Centre
20 Diakonia
Avenue, Durban
Ref:
CRN1086013/D/FBM/FBM/WN/ED
Counsel for the
Interveners : Adv S Wilson
Instructing
Attorneys Seri-Law Clinic
6lh Floor, Aspern
House 52 De Korte Street Blamfontein, JHB
c/o Bowman
Gilfillen Unit 3, The Crescent West Westway Office Park Harry Gwala
Road Westville
Ref: Ms T
Nichols/it/MSER0011
Date of hearing :
21 May 2015
Date of Judgment
: 20 August 2015