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[2011] ZAECMHC 12
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Premier of the Province of the Eastern Cape and Another v Mtshelakana and Others (249/07) [2011] ZAECMHC 12; 2011 (5) SA 640 (ECM) (23 June 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION : MTHATHA
CASE
NO. 249/07
In
the matter between:
THE
PREMIER IN THE EXECUTIVE
COUNCIL
IN THE PROVINCE OF THE
EASTERN
CAPE
…..........................................................................
1
st
Applicant
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR PUBLIC WORKS,
EASTERN
CAPE
.............................................................................
2
nd
Applicant
and
JOYCE
MTSHELAKANA
….....................................................
13
th
Respondent
VUMANI
MDLANZA
….............................................................
17
th
Respondent
TEMBA
BUTHI
….......................................................................
24
th
Respondent
PORTIA
MBANGE
….................................................................
29
th
Respondent
RECHARD
XOLO NDABENI
…...............................................
31
st
Respondent
AIY
SOQASHE
….......................................................................
42
nd
Respondent
BULELWA
ZOZO
…..................................................................
47
th
Respondent
NOSIPHO
PLATJIE
…...............................................................
48
th
Respondent
S.
SIBONGISENI DLONGOLO
…............................................
49
th
Respondent
M.
S. MZOLI
…...........................................................................
52
nd
Respondent
PHATHEKA
SIKITI
…...............................................................
53
rd
Respondent
JUDGMENT
GRIFFITHS. J.:
[1] The applicant sought an eviction order as against
the 57 respondents together with certain ancillary relief. Subsequent
to the
launching of the application, a number of the respondents
voluntarily vacated the premises concerned and when the matter came
before
me on opposed motion, only 11 of the original respondents
remained in occupation and opposed the grant of the eviction order.
These
remaining respondents were represented by Mr. Mtshabe whilst
the applicant was represented Ms. da Silva. For the purposes of
convenience,
these remaining 11 respondents shall be referred to in
the balance of this judgment as "the respondents".
[2] It appears from the papers that the premises
concerned are comprised of certain building in Lusikiki forming part
of a cluster
of buildings which were formerly administered by the
Department of Education for the purposes of running the College of
Education.
When the College of Education closed down prior to 2003,
the Department of Works took over the administration thereof. These
buildings
were then demarcated for use as government offices and
certain of them were renovated for this purpose. However, certain
flats
situated in what is referred to as "A Block" could
not be renovated due to the fact that certain employees of the
erstwhile
college of Education had, without the consent of the
Department, taken occupation thereof.
[3] After an application for eviction was launched in
the Lusikiki Magistrate’s Court, a number of these occupiers
duly vacated
the premises. However, it appears that a number of other
persons whom the applicant has identified as being the respondents in
this application, thereafter unlawfully took their places. Apparently
certain meetings have been held with the occupants of A Block
and
rent has been demanded. According to the applicant, the respondents
have been utilizing the water and electricity paid for
by the
government which services cannot be discontinued by the government as
this would affect other lawful occupiers. The applicant
has also
alleged in its founding affidavit that some of the tenants are
government employees such as teachers, principals, clerks,
administration officers, social workers et cetera. It is alleged that
they are paid by the government and can well afford to rent
alternate
premises for residential purposes but refuse to do so.
[4] In response, the respondents raised two points
in
limine
. Firstly they raised the question of
non-compliance with the Prevention of Illegal Eviction from and
Unlawful Occupation of Land
Act
1
("PIE") and, secondly, they raised the
question of
lis alibi pendens.
This
latter point was not pursued by Mr. Mtshabe, presumably in view of
the fact that the applicant maintained in its reply that
the same
respondents were not involved in the other application which had been
targeted by this point
in limine
and that that application had, in any event, been
withdrawn. The respondents also denied that the applicant
administered the building
in question which aspect was again
canvassed in the replying affidavit and a letter was annexed
indicating clearly that the Department
of Works was responsible for
administering this property. In any event, the applicant is the
Premier of this province, and not
the Department of Works and there
can be little doubt on all the evidence before me that the property
in question belongs to, and
is administered by, the Provincial
Government. During argument, Mr. Mtshabe indicated that his clients
did not abandon this point
but it was pointed out to him that he had
not pursued this aspect in his heads of argument thus leading his
opposition, and the
court, into the belief that he was not pursuing
it. In my view, in any event, there is absolutely no substance in
this contention
whatsoever.
[5] The only defence raised by the respondents with
regard to the merits was that the Department of Education who, as
indicated
earlier, had previously administered this particular
building, had entered into some form of lease agreement with the
respondents.
No indication was given as to precisely when such
agreement was concluded although from the papers had there been any
such discussions
in this regard such must have taken place well
before 2006 and probably before 2003 when the Department of Education
had been responsible
for the building. According to the respondents,
despite this alleged agreement, there was no agreement as to the
amount of rental
to be paid or as to who was to pay for the services
such as electricity and water. Indeed, during 2006 the Department of
Education
apparently attempted to deduct the sum of R1000 from each
of the respondents’ salaries in lieu of rental for the
premises.
This triggered an application to court on the part of the
respondents for an order, which they ultimately obtained,
interdicting
that Department from deducting these amounts from their
salaries. This, so it is alleged by the respondents, was proof of the
fact
that they were in possession of the premises with the consent of
the Department of Education.
[6] In argument before me Mr. Mtshabe attempted to
pursue the 2nd point
in limine
which
I have already dealt with. Apart from this, he argued the other point
in limine
, namely,
that in terms of the provisions of section 4(2) of PIE there had been
a non-joinder of the local municipality as, in his
submission, such
municipality had a direct and substantial interest in the matter. On
the merits, he argued that it had been established
that there was
either a lease agreement with, or some form of consent to, the
occupation of the premises given by the Department
of Education.
[7] In expanding his argument relating to non-joinder of
the municipality, Mr. Mtshabe maintained that PIE required not only
effective
service of the papers on the municipality pursuant to the
provisions of section 4(2) but that it required, in all instances,
that
the relevant municipality be joined as a party to the
proceedings. This, he maintained, is not only a requirement in
circumstances
where one is dealing with the poorest sectors of the
community but when one is dealing with persons who, as in the
situation of
the respondents, are earning sufficient income to be
able to afford to pay for their own accommodation. For this he relied
on the
provisions of section 6(3) of the Act and the following cases:
Port Elizabeth Municipality v Various
Occupiers
2
;Mzoli
Diko v Umzimvubu Municipality and Others
3
;
and City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (PTY) Ltd. and others
4
.
[8] From these, and other relevant cases, the following
general principles may be distilled which are relevant to the matter
at
hand:
1. The pre-Constitutional dispensation in terms of which
the rights of a landowner (or possessor) were paramount and the
rights
of an unlawful occupier were minimal or practically
nonexistent has been swept away by the repeal of a cluster of
statutes that
gave effect to this state of affairs.
2. The Constitution, and in particular sections 25 and
26 thereof, has been given expression in this regard in the form of
PIE,
which "
not only repealed PISA
5
but, in a sense, inverted it: Squatting was
decriminalized and the eviction process was made subject to a number
of requirements,
some necessary to comply with certain demands of the
Bill of Rights
."
6
3. In an eviction application, the courts are not
entitled to remain supine but have a far more active role to play in
ensuring
that the principles enshrined in the Constitution are
properly applied. In this regard, Sachs J. in the
Port
Elizabeth Municipality v Various Occupiers
case
had this to say
7
:
"
The court is thus called
upon to go beyond its normal functions and to engage in active
judicial management according to equitable
principles of an ongoing,
stressful and law - governed social process. This has major
implications for the manner in which it must
deal with the issues
before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which it
exercises its powers and
the orders it might make. The Constitution and PIE require that, in
addition to considering the lawfulness
of the occupation, the court
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"
4. In such matters, the courts are dealing with two
diametrically opposed fundamental interests. Sachs J., in dealing
with Horn
J's judgment in
Port Elizabeth
Municipality v Peoples Dialogue on Land and Shelter and Others
8
dealt with this dynamic situation as follows
9
:
"On the one hand, there is the traditional real
right inherent in ownership, reserving exclusive use and protection
of property
by the landowner. On the other hand, there is the genuine
despair of people in dire need of adequate accommodation. It was with
this regard that the Legislature had, by virtue of its provisions of
PIE, set about implementing a procedure which envisaged the
orderly
and controlled removal of informal settlements. It is the duty of the
court, in applying the requirements of the Act, to
balance these
opposing interests and bring out a decision that is just and
equitable. He went on to say that the use of the term
"just and
equitable" relates to both interests, that is, what is just and
equitable not only to the persons who occupied
the land illegally but
to the landowner as well. He held that the term also implies that a
court, when deciding on a matter of
this nature, would be obliged to
break away from a purely legalistic approach and have regard to
extraneous factors such as morality,
fairness, social values and
implications and circumstances which would necessitate bringing out
an equitably principled judgment."
5. Within this framework however, each case must be
decided on its own facts
10
.
6. In most of these cases the courts have dealt with
situations relating to poor, landless persons who would previously
have been
referred to as "squatters". Yacoob J in the
matter of
Government of the RSA and Others v
Grootboom and Others
11
differentiated between two groups of persons and the
responsibilities of Government relating to each. He stated
12
:
"In this regard, there is a difference between
the position of those who can afford to pay for housing, even if it
is only
basic though adequate housing, and of those who cannot. For
those who can afford to pay for adequate housing, the State's primary
obligation lies in unlocking the system, providing access to housing
stock and a legislative framework to facilitate self built
houses
through planning laws and access to finance. Issues of development
and social welfare are raised in respect of those who
cannot afford
to provide themselves with housing. State policy needs to address
both these groups. The poor are particularly vulnerable
and their
needs require special attention. It is in this context that the
relationship between ss 26 and 27 and the other socioeconomic
rights
is most apparent. If under section 27 the State has in place programs
to provide adequate social assistance to those who
are otherwise
unable to support themselves and their dependents, that would be
relevant to the State's obligations in respect of
other social
economic rights."
7. The extent of the State's obligation in this regard
"
usually telescopes into an enquiry
concerning the State's resources to meet its constitutional
obligations….. the precise
form of the State's obligation to
provide housing depends on the context within which the right is
asserted by an aggrieved citizen
."
13
[9] As I understand these cases, the function of a court
in performing its judicial oversight is to examine the papers before
it
and determine therefrom whether or not there is an apparent abuse
of a fundamental right or the rights of the respondent or
respondents.
In practically every case which has come before me in
this regard it is generally clear from the papers as to whether or
not this
is the case. On the one extreme, there are the cases
generally dealt with in the above-mentioned judgments involving
extremely
poor, landless people who are merely attempting to exercise
the rights afforded them by the Constitution in claiming a small
portion
of land and erecting a modest shelter in order to protect
themselves from the elements. On the other extreme, there are those
cases
where well-heeled tenants have remained in occupation of rented
premises well beyond the rights accorded them in terms of the lease
without paying rental therefor, despite be to position to do so.
[10] It seems to me that in the former case, and
depending on the circumstances thereof, the court may well decide (in
the exercise
of its judicial oversight) that the local municipality
should be joined as a party to the proceedings on the basis that it
may
in those circumstances have a direct and substantial interest in
the proceedings in that it is obliged to ensure adequate
accommodation
for such persons in dire need of adequate shelter.
[11] In the latter case, however, it does not appear to
me that the municipality would have a direct and substantial interest
in
the matter in that the respondent concerned would clearly have the
means to be able to source accommodation elsewhere, either on
a
rental basis or by purchasing his or her own property. Thus, in such
a case, there would be no obligation on the court to ensure
that the
municipality is joined as a party.
[12] In the present matter the applicant is an organ of
state. Accordingly, the provisions of section 6 of the Act (as read
with
section 4) come into play. In particular, I am obliged in
deciding whether it is just and equitable to grant an eviction order,
to have regard to those factors mentioned in section 6(3). It is
clear that when an eviction order sought by an organ of state
under
the provisions of section 6, the requirements are somewhat more
onerous than in the situation of an eviction at the instance
of a
private person or institution
14
.
[13] The respondents have not, being clearly aware of
their rights in this regard, placed any evidence before me indicating
that
any one of them are not in a position to afford alternative
accommodation or that such alternative accommodation is not available
to them. On the contrary, the evidence appears to indicate that all
of them are employed by the State in one form or another and
are
earning reasonable incomes. It appears, furthermore, that for many
years they have not paid any rental whatsoever for their
accommodation and have been provided with free services such as
electricity and water which ought, had they been frugal, to have
translated into considerable savings.
[14] The respondents have not, furthermore, indicated
the exact period that they have been in occupation of the premises
concerned
or whether they have children or if in any instance the
households are headed by women. They have not apprised me as to
whether
or not any infirm or elderly persons are involved. In fact,
it is apparent from the answering affidavit that they have steered
clear of these factors in all probability because they are aware that
they can afford accommodation elsewhere without much difficulty.
Their entire defence, apart from the points
in
limine
, is based on their alleged right to
occupy in terms of an agreement with the Department of Education.
[15] In all these circumstances, and having considered
all the matters referred to in section 6(3) of PIE, it is my view
that the
local municipality do not have a direct and substantial
interest in this matter and that they are not required to be joined
in
these proceedings as submitted by Mr. Mtshabe.
[16] The only aspect remaining is the question as to
whether or not the respondents are in occupation by virtue of a right
afforded
them by the Department of Education. In my view this
contention cannot hold any water. As alluded to above, the
respondents have
made extremely vague allegations in this regard
which amount to nothing more than that the Department of Education,
at the time
when they administered the property prior to the
Department of Works taking over, had indicated that the respondents
could lease
the premises. Absolutely no agreement was reached with
regard to the amount of rental or as to who was to pay for the
services
such as electricity and water. Indeed, when the Department
attempted to deduct rental from the salaries of the respondents, the
respondents obtained a High Court interdict preventing them from
doing so. In addition, the Department of Works, which has
administered
the property since approximately 2002, has indicated
clearly that it does not wish to conclude lease agreements with the
respondents.
[17] It seems clear to me that the
essentialia
for a lease agreement are therefore lacking. It is most improbable
that any landowner would agree with its tenants that they could
remain in occupation on a vague notion that their rental and other
payments would be agreed upon some time in the future. Clearly
no
agreement was reached in this regard and the respondents have no
right to remain on the property. This view is fortified by
the fact
that when this application was launched there were 57 respondents who
were apparently all in the same situation. After
the launching of the
application the majority of those respondents voluntarily vacated or
agreed to a court order to that effect.
Had they been genuinely of
the belief that they had a right to such occupation they would not
have done so.
[18] In all these circumstances, I grant an order in the
following terms. In this order, the term "respondents"
refers
to respondent numbers 13, 17, 24, 29, 31, 42, 47, 48, 49, 52
and 53:
1. The respondents are declared to be in unlawful
occupation of the residential flats attached to the College of
Education in Lusikisiki;
2. The respondents are ordered to vacate the premises
within 30 days of this order being granted;
3. The Sheriff of the High Court and members of the
South African police services, if necessary, are directed to evict
the respondents
in the event of them not vacating the premises within
30 days of this order;
4. The respondents are ordered to pay the costs of
this application, jointly and severally, the one paying the others to
be absolved.
JUDGE OF THE HIGH COURT
HEARD ON : 14 JUNE 2011
DELIVERED ON : 23 JUNE 2011
COUNSEL FOR APPLICANTS : Ms Da Silva
INSTRUCTED BY : State Attorney
COUNSEL FOR RESPONDENTS : Mr Mtshabe
INSTRUCTED BY : Messrs N. Z. Mtshabe
1
No.
19 of 1998
2
[2004] ZACC 7
;
2005
(1) SA 217
(CC)
3
Unreported:
Mthatha case number 845/2002
4
Unreported:
(3384/10)
[2011] ZASCA 47
(30 March 2011)
5
The
Prevention of Illegal Squatting Act 52 of 1951
6
Port
Elizabeth Municipality v Various Occupies (supra) at paragraph 12
7
supra
at paragraph 36
8
2000
(2) SA 1074
(SECLD)
9
Port
Elizabeth Municipality v Various Occupiers (supra) at paragraph 33
10
Port
Elizabeth Municipality v Various Occupiers (supra) at paragraph 34
11
2001
(1) SA 46 (CC)
12
at
Paragraph 36
13
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (PTY) Ltd. and Another (supra) at paragraph 2
14
Mzoli
Diko and Another v Umzimvubu Municipality and Others (supra)