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[2009] ZAGPJHC 14
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Nokotyana and Others v Ekurhuleni Metropolitan Municipality (08/17815) [2009] ZAGPJHC 14 (24 March 2009)
IN
THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
(JOHANNESBURG)
CASE
NO: 08/17815
In
the matter between
JOHNSON
MATOTOBA NOKOTYANA AND OTHERS Applicants
and
THE
EKURHULENI METROPOLITAN MUNICIPALITY Respondent
JUDGMENT
EPSTEIN
AJ
:
[1]
The Applicants seek an order directing the Respondent to provide the
Harry Gwala Informal Settlement
("HGS")
with
certain basic services pending the decision on whether the HGS
should be upgraded in terms of chapter 13 of the National
Housing
Code.
[2]
The Applicants are represented by Johnson Matotoba Nokotyana
("Nokotyana")
who
is a resident of the HGS which is located in Benoni. Nokotyana has
been authorised by the other Applicants to bring this application
on
their behalf. His authority appears from the power of attorney
attached to the founding affidavit which in turn has attached
to it
a list of the Applicants together with their signatures.
[3]
The Respondent is the Ekurhuleni Metropolitan Municipality which is
a Metropolitan Municipality established in terms of the
Local
Government Municipal Structures Act 117 of 1998
, as amended.
[4]
The original occupiers of the HGS occupied the land during the
1980's. Subsequently, Iscor, one of the owners of the land,
initiated a process of relocation. Most of the people who occupied
the Iscor land moved voluntarily to Chief Albert Luthuli Extension
4
("Extension
4").
The Respondent claims that those who relocated to Extension 4 have
access to permanent services but this is disputed
by the Applicants
who allege that they do not have access to electricity nor are there
schools at Extension 4. Most of the people
who occupy portions 29
and 68 of the Farm Rietfontein (where the HGS is located), have
refused to be relocated but the Applicants
contend that they have
not refused to be relocated without reason. They state that they
have insisted on enforcement of their
rights as contemplated in
Chapter 13 of the Housing Code, that is to be housed in the HGS and
for the Settlement to be upgraded
if it is found to be feasible as
contemplated in Chapter 13.
[5]
The services which the Applicants require the Respondent to
provide, as appears from the Notice of Motion, are the following:
1. Communal
water taps: for the provision of water in accordance with the basic
standards required by Regulation 3 (b) of the
Regulations Relating
to Compulsory National Standards and Measure to Conserve Water
promulgated in Government Gazette Notice
No. R. 509 dated June 2001
in terms of the
Water Services Act, 108 of 1997
;
2. Temporary
sanitation facilities;
3. Refuse
removal facilitation;
4. High
mast lighting in key areas to enhance community safety and access by
emergency vehicles.
[6]
When argument commenced before me, it became apparent that there was
really no dispute in respect of water taps and refuse
removal. The
Respondent accepts the obligation to provide communal water taps for
the provision of water in accordance with the
Basic Standards
required by
Regulation 3
(b) of the Regulations relating to
Compulsory National Standards and Measures to conserve water. This
provides that the minimum
standard for basic water supply services
is a minimum quantity of potable water of 25 litres per person per
day or 6 kilolitres
per household per month and a minimum flow rate
of not less than 10 litres per minute within 200 metres of a
household. There
are 48 taps in the area with a result that no
resident is more than 100 metres from a tap.
[7]
The Respondent provides a refuse removal service which involves
every household being furnished with an 85 litre plastic bin
which
is emptied and collected once per week subject to accessibility. In
cases where it is not possible to access areas for
purposes of
refuse collection, residents are required to drag the plastic bin to
a position where the bins can be accessed. Previously
all households
had been provided with a bin but the Respondent recognized that it
is possible that in cases where people had
moved, new residents may
have moved into the area and these new residents do not have bins.
The Respondent, in its answering
affidavit, invited the community
committee of the Applicant to provide the Respondent with a list of
names and identity numbers
so that the Respondent could ensure that
all households are provided with a refuse bin. The Applicants
disputed that the refuse
is collected by the Respondent and stated
that the Applicants have resorted to recycling their refuse in
vegetable gardens within
the informal settlement. Nevertheless, in
the light of the Respondent's attitude to the application for the
provision of water
and refuse services, there was no objection to my
granting an order as sought. In the circumstances, at the conclusion
of the
hearing, I granted the following Order:
1.
Pending the decision whether the Harry Gwala Informal Settlement
("HGS") shall be upgraded
in
situ,
the
Respondent is ordered to comply with its constitutional and
statutory obligations in terms of section 26 and 27 of the
Constitution
of the Republic of South Africa, 1996 and chapters 12
and 13 of the National Housing Code read with
section 9
(1) of the
Housing Act, 1997
, that it provide to the HGS, the following basic
interim services immediately:
1.1.
Communal water taps for the provision of water in accordance with
the basic standards required by
Regulation 3
(b) of the Regulations
Relating to Compulsory National Standards and Measure to Conserve
Water promulgated in Government Gazette
Notice No. R. 509 dated June
2001 in terms of the
Water Services Act, 108 of 1997
.
1.2.
Refuse removal facilitation which is to commence from 1 January
2009.
[8]
Accordingly, the remaining issue in this case concerns whether the
Applicants are entitled to an order for the provision of
the
following services:
i)
Temporary
sanitation facilities;
ii)
High
mast lighting in key areas to enhance community safety and access
by
emergency vehicles.
[9]
The Applicants have approached this Court in terms of section 38 of
the Constitution of the Republic of South Africa, 1996,
the
Applicant alleging that he is acting in his own interest, as well as
on behalf of persons who cannot act in their own name
and, further,
on behalf of a group of persons. The Applicant also states that he
is acting in the public interest, all of this
as envisaged in
section 38 (a), (b), (c) and (d).
[10]
The grounds for the relief relied upon are sections 26 and 27 of the
Constitution, as well as
section 9
(1) of the
Housing Act, 107 of
1997
. I repeat the various relevant sections:
“
Section
26
of the constitution provides:
26
(1) Everyone has the right to have access to adequate housing.
(2)
The State must take reasonable legislative and other measures,
within its available
resources,
to achieve the progressive realisation of this right.
(3)
Section
27 of the Constitution provides
:
27
(1) Everyone has the right to have access to -
(a)
(b)
sufficient food and water; and
(c)
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
(3)
Section
9
(1) of the
Housing Act provides
:
9
(1) Every Municipality must, as part of the Municipality's process
of integrated development planning, take all reasonable and
necessary steps within the framework of National and Provincial
Housing Legislation and Policy to -
(a)
ensure that -
(i)
the
inhabitants of its area of jurisdiction have access to adequate
housing
on a progressive basis;
(ii)
conditions
not conducive to health and safety of the inhabitants of its area
of
jurisdiction are prevented or removed;
(iii)
services
in respect of water, sanitation, electricity, roads, storm
water
drainage and transport are provided in a manner which is
economically
efficient.
set
housing delivery goals in respect of its area of jurisdiction;
identify
and designate land for housing development'
create
and maintain a public environment conducive to housing development
which is financially and socially viable;
promote
the resolution of conflicts arising in the housing development
process;
initiate,
plan, coordinate, facilitate, promote and enable appropriate
housing development in its area of jurisdiction;
(g)
provide
bulk engineering services, and revenue generating services insofar
as
such services are not provided by specialist utility
suppliers; and
(h)
plan
and manage land use and development."
[11]
The Respondent has submitted a proposal for the upgrading of the
HGS. This application has been submitted to the Gauteng
Department
of Housing
("GDH")
in
terms of chapter 13 of the Housing Code. A decision on the proposal
is still being awaited from the Housing Advisory Committee
of the
GDH. It is the Applicants case that pending the decision on whether
the HGS should be upgraded, the Respondent is in terms
of its
statutory obligations, sections 26 and 27 of the Constitution, and
Chapters 12 and 13 of the Housing Code read with
section 9
(1) of
the
Housing Act, under
a legal obligation to provide the HGS with
the basic services sought in the Notice of Motion. (In view of the
Order I have already
made, I need only adjudicate on the temporary
sanitation facilities and high mast lighting.)
[12]
According to Mr John Hutton
("Hutton"),
a
project manager employed by the Respondent, (and who has deposed to
a confirmatory affidavit which is attached to the answering
affidavit), the Applicants have access to temporary sanitation
facilities in the form of stand related pit latrines. Hutton states
that there are no conditions which would render the use of pit
latrines hazardous.
[13]
No steps have been taken for high mast lighting although this has
been referred to the electricity department.
[14]
It is the Applicants' case that they live in conditions that pose
immediate threats to their lives, health and safety and
that they
are in need of emergency assistance. It is further the Applicants'
case that they meet the eligibility requirement
of Chapter 12 and
that they fall under Chapter 13 of the Housing Code (paragraph
13.7.1).
[15]
The defences raised by the Respondent are the following: -
i)
Chapter
12 is not applicable as the Applicants do not fall within the
emergency
housing requirements of this Chapter.
ii)
The
provision of services in terms of Chapter 13, with the exception of
the
provision of access to water, is only applicable where it has
been decided to
develop an informal settlement
in
situ.
It
is the Respondent's case that no
decision to upgrade the HGS has
been made. Accordingly the Respondent,
save with the exception
relating to the provision of access to water, has no
obligation
to provide the interim services. The Respondent's defence is that
it
has no obligation until such time as it has been decided that
the land in question
is fit for development for residential
purposes and the development process for
the township is
complete.
Iii)
The installation of engineering services can only be provided once
the layout of the township is established to prevent wastage
of
pipes, cables and other structures.
[16]
In
order to determine the applicability of Chapters 12 and 13 of the
Housing
Code,
it is necessary to have regard to the contents thereof. Chapter 12
deals with housing assistance in emergency housing circumstances.
The following objectives and policies,
inter
alia,
are
stated, in Chapter 12:
a.
The
rules relate to assistance to people who, for reasons beyond their
control, find themselves in an emergency housing situation
such as
the fact that their existing shelter has been destroyed or damaged,
their prevailing situation poses an immediate threat
to their life,
health and safety, or they have been evicted, or faced the threat of
imminent eviction.
b.
The
assistance provided consists of funds in the form of grants to
Municipalities to give effect to accelerated land development,
the
provision of basic municipal engineering services and shelter.
(The
grants to Municipalities are given by the Provincial Government once
the Municipality has applied for project approval via
the Provincial
Government's Department
of Housing to the member of the Executive
Council responsible for housing.)
c.
The
assistance provided falls short of formal housing as provided for in
other
Programmes of a Housing Subsidy Scheme contained in the
Housing Code, and is thus rendered only in emergency situations of
exceptional
housing needs.
d.
The
main objective of the Programme is to provide temporary assistance
in the form of secure access to land and/or basic municipal
engineering services and/or shelter in a wide range of emergency
situations of exceptional housing need through the allocation
of
grants to Municipalities instead of housing subsidies to
individuals.
e.
Assistance
to be provided will only constitute the provision of temporary aid
and be of a temporary nature.
f.
Assistance
will be limited to absolute essentials. It will not seek to provide
housing or engineering services commensurate with
those that might
have been previously enjoyed.
g.
The
Programme serves to augment and supplement existing programmes and
may not be employed to substitute normal planning and projects
with
the subsequent so-called "queue jumping" of any priority
planning, approved and communicated projects, relating
to the
provision of housing.
h.
The
Programme applies to emergency situations of exceptional housing
need defined in paragraph 12.3.1 of Chapter 12. Such an emergency
includes a situation where persons' living conditions that pose
immediate threats to life, health and safety and require emergency
assistance, or are in a situation of exceptional housing need, which
constitutes an emergency that can reasonably be addressed
only by
resettlement or other appropriate
assistance in ternis of the
Programme. Funds approved in temis of Chapter 12 may not be used for
street lighting and electrical
services, except that the provision
of high mast lighting could be considered in special circumstances.
[17]
The question which then arises is whether the claim for an order
that the Respondent provide temporary sanitation facilities
and high
mast lighting can be made under Chapter 12. In other words, does
this constitute assistance to people who find themselves
in an
emergency housing situation as contemplated by Chapter 12.
[18]
I take note of the statement in the replying affidavit that it is
self evident that the Applicants live in conditions that
pose
immediate threats to their lives, health and safety and that they
are accordingly in need of emergency assistance. However,
the
Applicants have been living on the land since the 1980's. A number
of the occupiers chose to move to Extension 4, whereas
the
Applicants chose to stay. Whilst there is a dispute as to whether
Extension 4 offers permanent services as alleged by the
Respondent,
the Applicants state that there is no electricity at Extension 4 and
they refer to the fact that people with children
in the settlement
must send their children to schools either in Daveyton or back to
Wattville.
(See
Soobramoney v Minister of Health, Kwazulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC)
at 774)
[19]
Although there is an allegation of an immediate threat to the lives,
health and safety of the occupants of the HGS, there is
no evidence
of this. The squalid and putrid conditions in which the occupiers
live is apparent from the affidavits and the annexures
which include
photographs. However, Chapter 12 provides for the provision of
housing and services in defined emergency situations.
Taking into
account the provision of
water,
refuse removal and the pit latrines, these squalid conditions cannot
be categorized as an eventuality envisaged in Chapter
12. The
occupiers of the HGS do not find themselves requiring assistance
for
reasons beyond their control.
They
could have moved to Extension 4. Moreover, their existing shelter
has not been destroyed nor damaged. Whilst the Applicants
seek
assistance pending the decision on the proposal for upgrading, this
is not the type of temporary situation envisaged in
Chapter 12. The
Applicants are not entitled to resources set aside for real
emergencies as envisaged in Chapter 12. Utilization
of those funds
for the present purposes would be detrimental to others who may find
themselves in emergency situations envisaged
by the Code.
[19]
Finally, assistance in terms of Chapter 12 is to be limited to
absolute
essentials.
Although
the provision of the latrines, poor as it is, does not create a
situation which could demand assistance in terms of Chapter
12.
[20]
In my view there is merit in the submission made on behalf of the
Respondent that treating the situation of the Applicants
as an
emergency housing situation will inevitably result in the Applicants
being preferred over other communities, which is contrary
to the
principle stated in paragraph 12.2.2 of the Programme.
[21]
The Applicants also rely upon Chapter 13. This chapter deals with
the rules for the
in
situ
upgrading
of informal settlements. The Housing Code states that these rules in
Chapter 13 relate to the provision of grants to
a Municipality to
enable it to upgrade informal settlements in its jurisdiction in a
structured way and on the basis of a phased
development approach.
[22]
Chapter
13 contains, inter alia, the following relevant criteria:
i)
Grants
under the Programme will be made available to Municipalities for
the
undertaking of projects based on the upgrading of whole
settlements on a
community basis.
ii)
The
Programme provides funding for the installation of interim and
permanent
municipal engineering services. Where interim services
are to be provided it
must always be undertaken on the basis that
such interim services constitute
the first phase of the provision
of permanent services.
iii)
Municipalities
will be invited to apply for funding for the upgrading of
informal
settlements through the submission of Interim Business
Plans. The MEC will
consider applications based on the criteria
detailed in the implementations
guidelines.
v)
During the phase of the upgrading process, Municipalities will
receive funding to undertake,
inter
alia,
the
installation of interim services to provide basic water and
sanitation services to householders within the settlement on an
interim basis pending the formalisation of the settlement. The
principle must be upheld that any interim services should first
and
foremost be designed on the basis that it could be utilised/upgraded
for the permanent services infrastructure. The provision
of interim
services should also address lighting in key areas to enhance
community safety and access by emergency vehicles.
vi)
Having
regard to
section 9
(1) of the
Housing Act, Municipalities
are
responsible
to consider whether a matter merits the submission of
an application for
assistance under the Programme. If the
Municipality considers that it does merit
the submission of an
application, then the Municipality must,
inter
alia:
Initiate,
plan and formulate applications for projects relating to the
in
situ
upgrading
of informal settlements;
Request
assistance from the Provincial Housing Department on any of the
matters concerned if the Municipality lacks the capacity,
resources
or expertise;
Implement
projects in accordance with agreements entered into at Provincial
Housing Departments;
Provide
basic Municipal engineering services such as water, sanitation,
refuse removal services and other municipal services;
vii)
The
township establishment must under no circumstances be compromised
and
the approval of the general plan of the areas, the surveying
and pegging of
stands, the approval of the services design and
standards by the Municipal
Council and the actual proclamation of
the town must be pursued.
[23]
The Applicants submit that pending the decision on whether the
Settlement shall be upgraded
in
situ,
the
Respondent is obliged to provide the basic services in terms of,
inter
alia,
Chapter
13. The Respondent's case, on the other hand, is that reliance upon
Chapter 13 is misplaced.
[24]
The Applicants would only be entitled to rely upon Chapter 13 once
it has been decided to develop the HGS (if this is so
decided).
[25]
The Respondent points out that it is only once the layout of the
township has been established by the division of the land
into
individual stands, as well as the layout of the roads, that the
necessary infrastructure for the purposes of the installation
of
engineering services can be provided. The Respondent submits that if
this is done earlier, the cost incurred in providing
interim
services would be wasted because cables, pipes and other structures
would have to be removed and re-laid when the final
layout of the
stands and the road has been determined.
[26]
To determine whether the land is suitable for the development of a
township, it is necessary to conduct a feasibility study.
Such a
feasibility study was undertaken but as a result of shortcomings,
the Housing Department of the Gauteng Province, in August
2006, was
asked to commission a further feasibility study which will include a
geotechnical investigation and an indication of
the exact layout of
the stands. The first report had provided for only 389 stands which
the Respondent regarded as insufficient
to house all the existing
occupants of the land.
[27]
Despite enquiries having been made regarding progress with the
further feasibility study, it does not appear that any progress
has
been made. According to the Respondent, there are 16 feasibility
studies which the Respondent has requested and which are
outstanding.
[28]
If the feasibility study, when it is produced, favours the
development of the land for residential purposes, the Respondent
states that it will apply to the Department of Housing for the
approval of the land as a township in terms of Chapter 13 of the
National Housing Code. Should such approval be obtained, the
Respondent states that the development of the HGS will be included
in the Respondent's integrated development plan according to the
priority of the project. Before this can be done, it will be
necessary to undertake an environmental impact assessment study
which the Respondent states normally takes up to a year to complete.
[29]
The deponent to the Respondent's affidavit, Shami Solomon Teboho
Kholong
("Kholong"),
who
is the Executive Director: Legal and Administrative Services of the
Respondent, states that the HGS is only one of 106 informal
settlements which fall within the area of jurisdiction of the
Respondent, involving approximately 130,000 informal housing
structures. The HGS has approximately 400 structures at present. The
implementation of the development plan of the Respondent which
is to
eradicate the backlog in the provision of water and sanitation
services to all communities within its area of jurisdiction
by the
year 2014, is subject to funding provided for in an approved budget.
Kholong states that at present the budget, which
provides for the
provision of basic engineering services to stands forming part of
informal settlements, amounts to R210 million
per year. He however
states that this is sufficient to cater for
13,000
stands per year. The amount budgeted for had been allocated to the
provision of basic engineering services to townships
that had
already been approved and according to the priority determined by
the Respondent. In terms of the provision of the Municipal
Finance
Management Act, 56 of 2003
(MFMA),
the
Respondent is only entitled to incur expenditure in terms of an
approved budget. Kholong submits that providing the sanitation
and
street lighting services would amount to fruitless and wasteful
expenditure contrary to the express provisions of the MFMA.
He
states that the provision of street lighting requires the laying of
cables and the erection of masts on concrete platforms
constructed
for that purpose. Moreover, the cost of providing street lighting to
the HGS will be substantial and in the event
of it not being
possible to upgrade the settlement
in
situ,
the
cost in providing the street lighting will be wasted. Kholong states
that no provision has been made in the integrated development
plan
nor in the annual budget for the provision of the sanitation and
street lighting services which the Applicants demand.
[30]
I have already found that the current situation does not constitute
an emergency in terms of Chapter 12. Nevertheless, even
in terms of
a Chapter 12 emergency, it is provided in paragraph 12.3.4.2 that
approved funds may not be used for the provision
of street lighting
and electrical services and that the provision of high mast lighting
could only be considered in special circumstances.
Such special
circumstances do not exist in the present case.
[31]
In argument it was submitted on behalf of the Applicants that the
Respondent made various promises to comply with the provision
of
basic services. It is argued that the Respondent is now estopped
from reneging on its verbal and physical actions. The
Applicants
argue that they have a legitimate expectation that the basic
services would be provided. In support of this the Applicants
refer
to the principle that good administration requires that public
authorities be held to their promises. This principle was
ennunciated by Laws LJ, in the Court of Appeal in
R
(Abdi and Nadarajah) v Secretary of State for the Home Department
[2005] EWCA Civ 1363
, para 68.
The
facts relied upon by the Applicants relate to interaction between
the residents of HGS and the Respondent going back to August
2005 as
well as correspondence exchanged on behalf of the residents with the
Respondent. It is alleged,
inter
alia,
that
at a meeting between community representatives and the HGS committee
on 23 September 2005, the committee was informed that
street
lighting would be provided in the Settlement. At a meeting on 13
October 2006 between members of the HGS civic committee
and
officials of the Respondent, the provision of interim services was
discussed. Further meetings were held on 26 March 2007
and on 24
April 2007. Minutes were kept of the latter meeting in which it was
recorded that Councilor Sambo stated that;
i)
A
refuse removal service would be instituted immediately.
ii)
No
resident of the HGS should be required to walk more than 200 meters
to the
nearest tap and that a survey would be conducted
immediately to check how
many more taps should be installed and
then install them.
iii)
That
in July 2007, high mast lighting would be installed in the
settlement.
iv)
That toilets could be installed only in the event of a decision
to be made t< upgrade the HGS
in
situ.
[32]
Kholong however states that at the meeting on 13 October 2006 there
was ar undertaking merely to refer the demand regarding
the
installation of street lights to the Electricity Department of the
Respondent.
[33]
Insofar as Councilor Sambo is concerned, he has passed away.
However, Kholont points out that Councilor Sambo was one of
178
Councilors of the Respondent anc that he did not have the authority
to bind the Respondent which authority vests only ir
the Council of
the Respondent. Kholong also points out that the funding of stree
lighting is provided by the National Electricity
Regulator who will
not approve fundinc unless a township has been approved. Kholong
states that no decision in conformity o what
was allegedly stated by
Sambo has been taken by the Council. In fact, no such item even
appears on its agendas.
[34]
The Applicants also rely upon the obligations imposed in terms of
the
Water Services Act 108 of 1997
and the regulations thereto. With
reference to sanitation, the Applicants' counsel in argument
referred to the definition of
"basic sanitation" in the
regulations which provides:
"2.
Basic
Sanitation
- the minimum standard for basic sanitation services is - (a) The
provision of appropriate health and hygiene education; and
(b) a
toilet which is safe, reliable, environmentally sound, easy to keep
clean, provides privacy and protection against the
weather, well
ventilated, keeps smells to a minimum and prevents the entry and
exit of Hies and other disease-carrying pests."
[35]
The Applicants' counsel referred to an unreported decision in the
matter of
Lindiwe
Mazibulo & Others v the City of Johannesburg & Others, case
no. 06/13865
(a
judgment of Tsoka J in the WLD). In that case, the learned judge,
correctly with respect, found against the denial of the Minister
of
Water Affairs and Forestry that there is an obligation to provide
free basic water to the poor. The learned judge stated the
obligation is to ensure that every person has both physical and
economic access to water. Accordingly the Applicants in the present
case submit that the Respondent is obliged to comply with its
constitutional and statutory obligations to provide basic
sanitation.
However, in considering the obligations of the
Respondent, it is necessary to have regard to section 26 (2) of the
Constitution
which provides that the obligations are to be performed
within available resources. Whilst
section 9
(1) of the
Housing Act
requires
steps to be taken by every Municipality to provide adequate
housing as part of the Municipalities' process of integrated
development
planning, such as are reasonable and necessary, steps
must be taken within the framework of national and provincial and
housing
legislation and policy. All this must be done to create and
maintain a public environment conducive to housing development which
is financially and socially viable
(section 9
(1) (d)).
[36]
The objects of local Government are set out in section 152 (1) of
the Constitution. This includes the object to ensure the
provision
of services to communities in a sustainable manner and to promote a
safe and healthy environment. However, importantly,
section
152
(2) provides that a Municipality must strive, within its financial
and administrative capacity, to achieve, inter alia, the
aforementioned objects.
[37]
The Applicants have relied upon a number of authorities to
demonstrate the constitutional and statutory obligations imposed
on
the Respondent. These include
Government
of the Republic of South Africa & Others v Grootboom &
Others
2001 (1) SA 46
(CC) at para 44; Jafta v Schoeman & Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC) at para 28; President of the Republic of South
Africa & Another v Modderklip Boerdery (Pty) Ltd & Others
2005 (5) SA 3
(CC) at para 36,
These
cases set out important principles which much be applied. However,
they do not serve as authority which would entitle me
to deviate
from the fact that a municipality is obliged to act within the
framework and constraints of legislation and the Housing
Code. It
cannot, for example, simply ignore the Code and regard a situation
as an emergency when it is not. Moreover, it cannot
use Chapter 13
before it has been decided to develop HGS
in
situ.
[38]
In argument, the Applicants' counsel was alive to the fact that the
relief sought could amount to an intrusion into the domain
of
another branch of Government. In support of submissions that the
Courts can in certain circumstances so intrude, a number
of
authorities were referred to.
See
SA Association of Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001 (1) SA 883
(CC) paras 18 - 22; Ex Parte Chairperson of the Constitutional
Assembly : in Re Certification of the Constitution of RSA
1996 (4)
SA 744
(CC) at paras109 -111; Doctors for Life International v
Speaker of the National Assembly & Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC)
para 70;
Sato
Star
Fishing (Pty) Ltd v Minister of Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
The
Applicants also relied upon the unreported judgment in
Dada
& Others v Unlawful Occupiers of Portion 41 Rooikop
&
The Ukurhuleni Metropolitan Municipality,
[(WLD)
dated 15/02/08]. In this latter case the learned Judge, Cassim AJ,
referred to the State's primary obligation toward those
who cannot
afford to pay for adequate housing
"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".
The
learned Judge stated that he appreciated and understood that the
approach he was adopting
"may
well be viewed not only as ordering the State to fulfill its
obligations, but also telling it how to do so and that
this would be
a breach of the rule on separation of powers".
The
learned Judge further stated that "a
Court
of law must interfere in appropriate cases when an Organ of State is
consistently failing in its functions and obligations,
particularly,
insofar as the plight of poor people is concerned. Indigent people
cannot look after themselves and when the executive
fails them, a
court of law must come to their assistance".
However,
in
City
of Johannesburg v Rand Properties (Pty) Ltd & Others
2007 (6) SA
417
SCA, at 432, para 45E-G
Harms
ADP said:
"A
related problem is that the High Court had insufficient regard to
the division of power. It is for the democratically
elected
government of the city to detenrtine what its vision of the inner
city is. Courts are not equipped or entitled to second-guess
this
type of policy decision. The Court also failed to have regard to the
constitutional limitation on the right of access to
housing. In
particular it took no account of the uncontradicted evidence of the
city that it did not have the means to provide
the respondents with
inner city accommodation. I have already referred to the city's
housing obligations and plans. There is
no suggestion that the city
has failed in its general obligations in this regard considering
that its duty is to provide housing
progressively within its means.
One can easily disagree with the allocation of resources by organs
of State and one may justifiably
debate priorities but thus far the
Constitutional Court has not sanctioned the re-allocation of public
funds by Courts."
[39]
Similarly, in the present case, there is no suggestion, (nor could
there be substance to such a suggestion), that the Municipality
is
not carrying out its obligations to take all reasonable and
necessary steps within the framework of national and provincial
housing legislation and policy to ensure that services are provided
in a manner which is economically efficient.
[40]
In all the circumstances I conclude that the Applicants are not
entitled to the relief sought.
[41]
The Applicants sought an order for costs. They have been partly
successful in respect of the Order I granted after argument
was
completed. Whilst it is true that the application was argued
essentially in respect of the issues concerning temporary sanitation
facilities and high mast lighting, and notwithstanding that the
Applicants have been unsuccessful, this is not in my view the
type
of matter where an adverse costs order should be granted. In my view
it is appropriate to order that each party should bear
its own
costs.
[42]
I have already made an order in terms of paragraphs 1,1.1 and 1.3 of
the Notice of Motion (see paragraph [7] above).
[43]
In the premises I make the following Order:
1.
The application for the relief sought in paragraphs 1.2 and 1.4 of
the Notice of Motion is dismissed.
2.
No Order is made in respect of costs.
Epstein
AJ 24 March 2009