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[2012] ZAKZDHC 78
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Mchunu and Others v Executive Mayor, Ethekwini Municipality and Others (13904/2011) [2012] ZAKZDHC 78; 2013 (1) SA 555 (KZD) (19 September 2012)
IN THE KWAZULU-NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO : 13904/2011
In the matter between:
MTHUNZI
ALSON MCHUNU
AND
36 OTHERS
.................................................................
First
to Thirty-Seventh Applicants
ABAHLALI
BASEMJONDOLO
MOVEMENT
SOUTH AFRICA
...............................................................
Thirty-Eighth
Applicant
and
THE
EXECUTIVE MAYOR, ETHEKWINI
MUNICIPALITY
............................................................................................
First
Respondent
THE
MUNICIPAL MANAGER,
ETHEKWINI
MUNICIPALITY
....................................................................
Second
Respondent
THE
DIRECTOR OF HOUSING,
ETHEKWINI
MUNICIPALITY
........................................................................
Third
Respondent
THE
FURTHER RESIDENTS OF
THE
RICHMOND FARM TRANSIT CAMP
...................................................
Fourth
Respondent
THE
MEC FOR TRANSPORT,
KWAZULU-NATAL
PROVINCE
.....................................................................
Fifth
Respondent
ETHEKWINI
MUNICIPALITY
..............................................................................
Sixth
Respondent
JUDGMENT
(delivered 19 SEPTEMBER 2012)
HOLLIS AJ
[1] On 6
March 2009
Sishi
J
granted
an order in Case No
16732/2008, KwaZulu-Natal High
Court Durban against the Ethekwini
Municipality,
hereinafter referred to as the 6
th
respondent,
inter
alia,
in
the
following terms:
"1. That the respondents
(which include the applicants in this application (my insertion))
will be relocated to the transit
camp situated at Richmond Farm for
a period of no more than one year.
2.
That the 52
nd
respondent
(i.e. the eThekwini Municipality (my insertion)) is directed to
investigate the misallocation of houses designated
for the
respondents in the Khulula housing project forthwith and to correct
the misallocation by providing such houses to the
respondents,
alternatively by providing other houses, commensurate with the
houses in the Khulula housing project to the respondents.
3.
That the 52
nd
respondent
is directed to serve on the respondents' attorneys of record and
file an affidavit setting forth the outcome of its
investigation
referred to in paragraph 2 above and the actions taken and to be
taken by the 52
nd
respondent
in accordance with paragraph 2
within
one month of the date of this order and at three monthly intervals
thereafter.
4.
That should the 52
nd
respondent
fail to comply with the order referred to in paragraph 3 above, that
it serve and file an affidavit on the same day
setting forth the
reasons for its non-compliance.
5.
That the respondents are entitled to file a response to the
affidavit filed on behalf of the 52
nd
respondent
within 14 days of service of such affidavit on the respondents'
attorneys of record.
6.
That should any dispute arise as to the compliance on the part of
the 52
nd
respondent
with the orders referred to in paragraphs 2, 3
and
4 above, that any (sic) party is entitled to set the matter down for
hearing on 5 days' notice, for the determination of that
issue.
7.
That the
respondents reserve their rights after they have relocated to the
transit camps and vacated the road reserve by 17 March
2009 to
approach this Court for any relief deemed appropriate on proper
notice to the applicant and the 52
nd
respondent
or any other interested party.
"
I shall refer to this order as "the Court order".
[2]
Simultaneously with the granting of the Court order, another order
granted by
Sishi
J
ordered
the eviction of the applicants from their homes at the Siyanda
informal settlement, Newlands East, situated inside the
road
reserve, to make way for the construction of the M577 Road. The
eviction proceedings had been instituted by the MEC for
Transport
(KwaZulu-Natal).
[3] The
applicants duly vacated the road reserve, but notwithstanding the
terms of the Court order that they would not remain
in the transit
camp for a period of more than one year, they remain and live there
in unsafe and unhygienic conditions. They
vacated the road reserve
as they had been assured by the Department of Transport in
conjunction with the 6
th
respondent
that they would be provided with permanent housing at a housing
project situated at Khulula, the construction of which
was to be
undertaken by the 6
th
respondent.
[4] The 6
th
respondent
became aware of the order granted against it on or about 23 March
2009. In consequence of this the 6
th
respondent
referred the matter to the office of the Ombudsperson to investigate
the misallocation of the houses designated for
the applicants. In
its report dated 12 February 2010 the Acting Ombudsperson and Head
of Investigations concluded,
inter
alia,
that
the applicants were part of the beneficiaries of the low cost houses
entitled to housing because of the construction of M577
Road and
recommended to the 6
th
respondent
that houses be allocated to them. The Head: Housing of the 6
th
respondent
was directed to implement the recommendation and advise the
Ombudsperson of the date of implementation and the responsible
official responsible therefor. Since then correspondence has passed
between the attorneys acting for the applicants and the 6
th
respondent
and a meeting was finally held with the Executive Mayor of the 6
th
respondent
on 13 October 2011 in an endeavour to have the 6
th
respondent
comply with the Court order. The Court order, as mentioned,
anticipated the relocation of the applicants to low cost
housing by
7 March 2010. Unfortunately this did not occur and in consequence
these proceedings were launched in December 2011.
[5] The
nature of these proceedings is to hold the Executive Mayor, the
Municipal Manager and the Director of Housing of the 6
th
respondent,
(hereinafter referred to as the 1
st
,
2
nd
and 3
rd
respondents
respectively in their official capacities) accountable for
compliance with the terms of the Court order. The reason
for this is
that they are the functionaries of the 6
th
respondent
and have the power and duty to ensure that the 6
th
respondent
complies with the Court order. The relief sought in these
proceedings and amended during argument was formulated as
follows:
"1. It is declared the the
first, second and third respondents in their respective capacities
as the Executive Mayor, Municipal
Manager and Director of Housing of
the sixth respondent, are constitutionally and statutorily obliged
to take all necessary steps
to ensure that the Ethekwini
Municipality ("the Municipality") complies with the terms
of the order of his Lordship
Mr Justice Sishi handed down on 9 March
2009 under case number 16732/2008 ("the court order").
"2. The first, second and
third respondents in their aforesaid capacities are ordered to take
all the administrative and
other steps necessary to ensure that the
Municipality -
2.1.
complies, within 60 days of the date of this order, with its
obligations in terms of paragraph 2 of the court order
either
to correct
the misallocation of houses designated for the first to
thirty-eighth applicants at the Khulula housing project by
providing
houses at the Khulula housing project to the first to thirty-eighth
applicants or to provide other houses, commensurate
with the houses
in the Khulula housing project, to the first to thirty-eighth
applicants;
2.2. complies, within 30 days
of the date of this order, with its obligations in terms of
paragraph 3 of the court order to serve
on the applicants' attorneys
of record and file with the Registrar of this Court an affidavit
setting out the outcome of its
investigation referred to in
paragraph 2.1 above and the steps the Municipality has taken, and
will in future take, and when
such steps will be taken, to comply
with its obligations to provide housing to the first to
thirty-eighth applicants;
3. If the first to third
respondents in their aforesaid capacities fail to comply with either
of the orders in paragraph 2 above,
the applicants are given leave
to supplement their notice of motion and founding affidavit and to
enrol this application on reasonable
notice to the respondents, for
a further hearing on, and determination of, such complaints of
contempt of court against the first
to third respondents as the
applicants might then advance.
4. The sixth respondent is
ordered to pay the costs of this application."
[6] Although Mr Pammenter SC
who, with Ms Bhagwandeen
appeared for
the 1
st
,
2
nd
,
3
rd
and 6
th
respondents,
did not contend that the 6
th
respondent
did not have a constitutional obligation to provide low cost housing
for indigent persons, he submitted that there
was no absolute
obligation imposed upon the 6
th
respondent
to provide permanent housing.
[7] The
nature of the opposition contained in the answering affidavit to the
relief sought was firstly to raise two points
in
limine,
one
relating to
lis
pendens
and
the other to a misjoinder, but both of these were abandoned and then
secondly, to explain what the 6
th
respondent
had done in an endeavour to comply with the terms of the Court
order. It had referred the investigation relating to
the
misallocation of the homes to the Ombudsperson and because of
budgetary constraints and the unavailability of units that
could be
allocated to the applicants, it had been unable to comply with the
Court order. It further contended that it would be
very unfair to
put applicants ahead of other beneficiaries of the 6
th
respondent's
housing projects as this would amount to "queue jumping".
I have some difficulty understanding this proposition
as the
applicants had already been allocated houses in the Khulula project,
but had been hijacked in having houses allocated
to them through no
fault of their own. The 6
th
respondent
also claimed no fault in this regard and said it had been the
responsibility of the Department of Transport acting
through its own
consultants to have homes allocated to the applicants. The thrust of
the answering affidavit deposed to by a
legal advisor employed by
the 6
th
respondent
in its Legal Services Department and duly authorised by the 1
st
,
2
nd
,
3
rd
and 6
th
respondents
(although no confirmatory affidavits were deposed to by the 1
st
,
2
nd
and 3
rd
respondents)
was that the
6
th
respondent
was not in wilful default and had not been neglecting its
obligations and had attempted to carry out its obligations
in terms
of the Court order.
[8] Mr
Pammenter, for the first time in heads of argument filed on behalf
of the 6
th
respondent,
raised a further defence, namely that the Court order was a nullity
as it had been granted in circumstances in which
the 6
th
respondent
had been advised in the eviction proceedings instituted by the MEC
for Transport (KwaZulu-Natal) that no relief was
being sought
against it.
[9] In those
proceedings (Case No: 16732/2008) the 6
th
respondent
had been cited as the 52
nd
respondent
and had been served with the application papers pursuant to the
provisions of the Prevention of Illegal Eviction from
and Unlawful
Occupation of Land Act, No 19 of 1998 commonly referred to as the
PIE Act, more particularly in terms of section
4(2) thereof.
[10] Mr Budlender SC, who
appeared with Mr Wilson and Ms Lewis for the applicants, submitted
that a Court order is a nullity in
terms of the common law only in
three types of cases, namely:
(a) where there was no proper
service or the party concerned was not properly cited;
(b) where the Court lacks
jurisdiction; and
(c) where the attorney lacks a
proper mandate.
[11] For
this submission he relied upon the judgment in
Todt
v Ipser
1993(3)
SA 577 (AD) at 589 C-D. The position postulated on behalf of the 6
th
respondent
did not fall into any of these categories and accordingly the
Court order was not a nullity.
[12] Mr
Pammenter, on the other hand, relied upon the principle expounded in
Lewis
and Marks v Middel
1904
TS 291
at 303 for the submission that the Court order was a nullity.
In my view, that case is distinguishable as the legal proceedings
in
that matter had been initiated against a party who should have been
cited and served with notice of the proceedings before
an order was
made against it. In that case no notice of the Land Commission's
sitting had been given as required by statute.
Even though the 6
th
respondent
was advised that no relief was being sought against it by the
applicant (which would have been the MEC for Transport
(KwaZulu-Natal)), this did not mean that a Court was entitled to
make an order in terms of the provisions of PIE, namely section
4(12) thereof which provides as follows:
"Any order for the
eviction of an unlawful occupier or for the demolition or removal of
buildings or structures in terms
of this section is subject to the
conditions deemed reasonable by the court, and the court may, on
good cause shown, vary any
condition for an eviction order."
Section 6(6) of PIE makes the provisions of section 4(12) applicable
to an organ of state.
[13] A
further ground of nullity submitted by Mr Pammenter, was that the
Court lacked jurisdiction as the 6
th
respondent
had not provided details to the Court of the units that were
available and therefore the Court did not have the power
to order
the 6
th
respondent
to make housing available to the applicants. It clearly would have
been desirable for the 6
th
respondent
to have submitted an affidavit by a responsible official dealing
with the position of the applicants' plight, but its
failure to do
so, did not, in my view, prevent the Court from making the order it
did.
[14] As was
stated by
Wallis
JA
in
a very recent, as yet unreported, Supreme Court of Appeal judgment
in
The
City of Johannesburg v Changing Tides 74 (Pty) Limited and Others,
Case
No 735/2011 at paragraph 54, such judgment being delivered on 14
September 2012:
"... The City needs to be
actively engaged in addressing the situation where people are living
in squalid conditions such
as these, and should be as concerned as
the owner and the occupiers to resolve that situation as soon as
possible. The legal
representatives of the parties must also be
mindful that what is being sought is a solution to a social problem
and conduct the
litigation with that in mind."
Although in
that case the issue related to the provision of temporary emergency
accommodation for the evictees, the principle,
in my view, is
equally applicable as the 6
th
respondent
should have been far more active than it was in resolving this
matter, more particularly in the light of the Court
order.
[15] Mr
Pammenter had no answer to the question why, once the 6
th
respondent
had become aware of the order just over a fortnight after it had
been granted, it had been taken no steps to have the
Court order set
aside on the basis that it had been granted by default in its
absence. In its answering affidavit, the 6
th
respondent's
complaint is not that an order should not have been granted against
it, but the timeframe stipulated would have been
impossible to
comply with and should have been extended. Be that as it may, I do
not consider for the aforegoing reasons that
the Court order granted
by
Sishi
J
was
a nullity. Furthermore, as stated by Goldstein, J in
Culverwell
v Beira
1992 (4) SA 490
(WLD) at 494A-C
all
orders of court, whether correctly or incorrectly granted, have to
be obeyed until they are properly set aside. This principle
was
endorsed in
Clipsal
Australia (Pty) Ltd and others v GAP Distributors and others
2010
(2) SA 289
(SCA) at paragraph 22 on 298-299.
[16] In
these circumstances, the 6
th
respondent
is and was bound by the Court order. In terms of section 165(5) of
the Constitution, a Court order binds the 6
th
respondent
as an organ of State to adhere to it. As the Constitutional Court
has held, the State must lead by example in its conduct.
In
Mohamed
and Another v President of the Republic of South Africa and Others
2001(3)
SA 893 (CC) on page 921 at para 68, the celebrated words of
Justice
Brandeis
in
Olmstead
et al v United States
were
endorsed by the Court as follows:
"In a government of laws,
existence of the government will be imperilled if it fails to
observe the law scrupulously ...
Government is the potent,
omnipresent teacher. For good or for ill, it teaches the whole
people by its example ... If the government
becomes a law-breaker,
it breeds contempt for the law; it invites every man to become a law
unto himself; it invites anarchy."
This
principle applies to the 6
th
respondent
as an organ of State.
Furthermore,
in S
v
Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA
409
(CC)
Kriegler
J stated at paragraph 63 on 438 the following: "They, as
servants of the State, were obliged to be exemplary in
their
obedience to court orders, subject of course to the right that
existed to take the order on appeal. Moreover, the Constitution
recognises and expressly commands not only exemplary conduct by the
Executive and Legislative branches of the State, but the
active
support of all organs of State in s 165(3), (4) and (5)."
and at paragraph 65 on 438:
"It would have been a very
serious matter indeed, calling for speedy and decisive action, if
the order had actually been
defied. The spectre of executive
officers refusing to obey orders of court because they think they
were wrongly granted is ominous.
It strikes at the very foundations
of the rule of law when government servants presume to disregard
orders of court. ... "
[17] I asked
Mr Pammenter if I found that the Court order was not a nullity, what
type of order should be made against the 6
th
respondent
to compel the 6
th
respondent
to provide the required low cost housing to the applicants.
Understandably he was not able to furnish an alternative
order to
the one contended for by the applicants other than submit that the
timeframes of 60 and 30 days should be extended.
Mr Pammenter
emphasised the budgetary constraints of the 6
th
respondent
and the unavailability of units in housing projects commensurate
with the units in the Khulula housing project.
[18]
Unfortunately the answering affidavit deposed to on behalf of the
1
st
,
2
nd
,
3
rd
and 6
th
respondents
by a legal advisor in the 6
th
respondent's
employ, lacks particularity in regard to:
(a) the 6
th
respondent's
budgetary constraints;
(b) the
reason why the 6
th
respondent
did not implement the recommendation made by the Ombudsperson more
than two and a half years ago;
(c) the position when
circumstances change after a person who has been allocated housing
does not take it up, for instance where
the person is unable to
secure funding, dies or finds alternative accommodation;
(d) whether
the full amount allocated by the Province for housing to the 6
th
respondent
in the relevant financial years 2010, 2011 and 2012 had been fully
utilised; and
(e) why particular provision
for additional funding in those budgets could not have been made to
cater for the applicants' situation.
Even
accepting there is a huge backlog of some 220 000 units, this
application relates to a limited number of 37 units. It is
indeed
unfortunate that the 1
st
,
2
nd
and 3
rd
respondents
did not depose to affidavits setting out the position to assist the
Court to make an order.
[19] I find that the applicants
have made out a case for the relief sought but before making an
order, as amended, extending the
time periods, there is the question
of costs.
[20] Mr
Pammenter conceded that if the application was granted a cost order
should make provision for the employment of two counsel.
Mr
Budlender, however, submitted that because the 6
th
respondent
had ignored the Court order over many years, had conducted the
litigation in a cynical manner and had shown callous
disregard for
the desperate situation in which the applicants find themselves, a
punitive order of costs should be made. I have
carefully considered
this submission, but I do not think that at this stage a punitive
order is justified. It is correct that
the officials of the 6
th
respondent
have failed to comply with the terms of the Court order, but I am
unable at this stage to say they have ignored it
wilfully. Their
efforts to comply with the Court order have fallen far short of what
should have been done. I point out further
that the relief sought in
the application contemplated only the granting of party and party
costs. It may have been that Mr Budlender,
in claiming an order for
punitive costs, was motivated by the 6
th
respondent
raising the defence of the alleged nullity of the order at the
eleventh hour. Be that as it may, I consider costs should
only be
awarded on a party and party basis.
[21] Before making the order, I
record my appreciation to counsel representing the parties for their
helpful heads of argument
without which it would not have been
possible to deliver this judgment within two days of the hearing. In
conclusion therefore,
I make the following order:
1. It is
declared that the 1
st
,
2
nd
and 3
rd
respondents
in their respective capacities as the Executive Mayor, Municipal
Manager and Director of Housing of the 6
th
respondent,
are constitutionally and statutorily obliged to take all necessary
steps to ensure that the Ethekwini Municipality
("the
Municipality") complies with the terms of the order of his
Lordship Mr Justice Sishi handed down on 9 March 2009
under case
number 16732/2008 ("the court order").
2. The 1
st
,
2
nd
and 3
rd
respondents
in their aforesaid capacities are ordered to take all the
administrative and other steps necessary to ensure that
the
Municipality:
2.1.
complies, within 3 months of the date of this order, with its
obligations in terms of paragraph 2 of the court order
either
to correct
the misallocation of houses designated for the 1
st
to 38
th
applicants
at the Khulula housing project by providing houses at the Khulula
housing project to the 1
st
to 38
th
applicants
or to provide other houses, commensurate with the houses in the
Khulula housing project, to the 1
st
to 38
th
applicants;
2.2.
complies, within 2 months of the date of this order, with its
obligations in terms of paragraph 3 of the court order to serve
on
the applicants' attorneys of record and file with the Registrar of
this Court an affidavit setting out the outcome of its
investigation
referred to in paragraph 2.1 above and the steps the Municipality
has taken, and will in future take, and when
such steps will be
taken, to comply with its obligations to provide housing to the 1
st
to 38
th
applicants;
3. If the
1
st
to 3rd
respondents in their aforesaid capacities fail to comply with either
of the orders in paragraph 2 above, the applicants
are given leave
to supplement their notice of motion and founding affidavit and to
enrol this application on reasonable notice
to the respondents, for
a further hearing on, and determination of, such complaints of
contempt of court against the 1
st
to 3
rd
respondents
as the applicants might then advance.
4. The 6
th
respondent
is ordered to pay the costs of this application, such costs to
include the costs occasioned consequent upon the employment
of two
counsel where this occurred.
COUNSEL
FOR THE APPLICANTS:
Mr
G. BUDLENDER S.C.
MR S. WILSON
MISS N. LEWIS
Instructed by:
SERI LAW CLINIC
c/o NICHOLS ATTORNEYS
COUNSEL
FOR 1
st
,
2
nd
,
3
rd
AND
6
th
RESPONDENTS:
MR C. J.
PAMMENTER S.C.
MISS N. BHAGWANDEEN
Instructed by:
GCOLOTELA & PETER INC.
DATE OF
HEARING:
17
SEPTEMBER 2012
DATE OF
JUDGMENT
19
SEPTEMBER 2012
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN REPUBLIC OF SOUTH AFRICA
CASE NO: 13904/11
DATE: 19 SEPTEMBER 2012
M A MCHUNU & OTHERS
versus
MEC FOR TRANSPORT & OTHERS
BEFORE THE HONOURABLE MR ACTING
JUSTICE HOLLIS
ON BEHALF OF APPLICANT MR T
NICHOLS
ON BEHALF OF RESPONDENT : MR N
BHAGWANDEEN
INTERPRETER NOT REQUIRED
EXTRACT
JUDGMENT
REPORT ON RECORDING
CLEAR. Thank you.