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[2009] ZAGPJHC 55
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Mnisi and Others v City of Johannesburg (08/17819) [2009] ZAGPJHC 55 (4 August 2009)
IN THE SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
Case No. 08/17819
In the matter between:
MNISI,
MAUREEN AND OTHERS
Applicants
and
CITY
OF JOHANNESBURG
Respondent
JUDGMENT
BERGER, AJ
:
1. The applicants are
residents of the Protea South Informal Settlement, an informal
settlement in Soweto, within the respondent
municipality. In
this judgment, I shall refer to the informal settlement as “the
settlement” or “Protea
South” and to the respondent
as “the City of Johannesburg” or “the City”.
2. The first applicant,
in addition to being a resident of the settlement, is also the
chairperson of both the provincial and local
structures of the
Landless Peoples’ Movement (“the LPM”), a social
movement focused primarily on land related
issues.
3. As she was entitled to
do in terms of sections 38(a), (b), (c) and (d) of the Constitution
of the Republic of South Africa (“the
Constitution”), the
first applicant instituted the present application: (a) in her own
interest, (b) on behalf of those residents
of the settlement who have
authorised her to do so (the second and further applicants), (c) as a
member of a group of persons (the
second and further applicants) and
in the interest of that group and (d) in the public interest.
4. At the heart of the
application is the contention that the residents of Protea South are
living in a desperate situation, in
particular that their housing is
inadequate, that they are living with the prospect of being forcibly
removed from their homes
and that basic interim services such as
water, sanitation, refuse removal and high mast lighting are not
being provided to them.
5. The application was
launched on 13 June 2008. In their notice of motion the
applicants sought relief in the following terms:
“
1. The Respondent
is under a constitutional and statutory obligation in terms of
section 26 of The Constitution of The Republic
of South Africa, 1996
and Chapters 12 and 13 of the Housing Code read with
section 9(1)
of
The
Housing Act, 1997
, to have a policy and or programme in place
which:
1.1 makes short-term
provision for the applicants residing at The Protea South Informal
Settlement, who are in a crisis or in a
desperate situation;
1.2 provides housing
relief for the applicants, who are in a crisis or desperate
situation;
1.3 gives adequate
priority and resources to the needs of the applicants residing at
Protea South Informal Settlement, who do not
have access to a
suitable place where they may lawfully live;
2. The Respondent
is directed within one month of the date of this order to deliver a
report or reports under oath stating:
2.1 What steps it has
taken, including steps to get an agreed, mediated solution, to comply
with its constitutional and statutory
obligations to devise and
implement within its available resources a comprehensive and
co-ordinated programme to progressively
realise the right to adequate
housing for the Applicants, stating in particular whether it has
fully investigated the options of
in
situ
upgrading of the Protea South Informal Settlement and/or relocation
to sites as close as possible to the Protea South Informal
Settlement.
2.2 What steps it has
taken, pending the formulation and implementation of permanent
housing solutions for the occupiers of the
Protea South Informal
Settlement, in compliance with its constitutional and statutory
obligations in terms of sections 26 and 27
of The Constitution of The
Republic of South Africa, 1996 and Chapters 12 and 13 of the Housing
Code read with
section 9(1)
of The
Housing Act, 1997
,
Regulation 3(b)
of the Regulations Relating to Compulsory National Standards and
Measures to Conserve Water promulgated in Government Notice No.
R.
509 dated 8 June 2001 in terms of the
Water Services Act, 108 of 1997
and By-Law 3 of the Johannesburg Metropolitan Municipality Water
Services By-Laws published in Provincial Gazette Extraordinary
No.
179, dated 21 May 2004, Notice No 835, to provide to the Protea South
Informal Settlement, the following basic interim services:
2.2.1 The provision of
potable water;
2.2.2 Temporary
Sanitation Facilities;
2.2.3 Refuse Removal
Facilitation; and
2.2.4 High Mast Lighting
in key areas to enhance community safety and access by emergency
vehicles.
3. The Applicants
may within four weeks of delivery of that Report, deliver commentary
thereon, under oath.
4. The Respondent
may within two weeks of delivery of that commentary, deliver its
reply thereto, under oath.
5. The case is
postponed to a date to be fixed by the Registrar for consideration
and determination of the aforesaid report,
commentary and reply.
6. Pending the
finalization of this case, alternatively until such time as suitable
accommodation is provided to the Applicants,
the Respondent is
interdicted from evicting or seeking to evict the Applicants from the
Protea South Informal Settlement.
7. Further and/or
alternative relief.
8. Costs of suit.”
6. In the notice of
motion the respondent was given five days within which to notify the
applicants’ attorney of its intention
to oppose the application
and a further fifteen days within which to deliver its answering
affidavits, if any.
7. Although the
respondent delivered its notice of intention to oppose on 23 June
2008, the City filed no answering affidavits.
8. On 12 August 2008 the
application came before Goldstein J. Without admitting to the
truth of the contents of the applicants’
founding affidavit,
the respondent consented to an order in terms similar to those of
prayers 1 to 5 of the notice of motion.
The order of Goldstein
J provided that:
“
1. The Respondent
is under a constitutional and statutory obligation in terms of
section 26 of The Constitution of The Republic
of South Africa, 1996
and Chapters 12 and 13 of the Housing Code read with
section 9(1)
of
The
Housing Act, 1997
, to have a policy and or programme in place
which:
1.1 makes short-term
provision for residents in the area of jurisdiction of the Respondent
who are in a crisis or in a desperate
situation, including those of
the Applicants who are living in a similar situation at the Protea
South [Informal] Settlement;
1.2 provides housing
relief for residents in the area of jurisdiction of the Respondent,
including those of the Applicants, who
are in a crisis or desperate
situation;
1.3 gives adequate
priority and resources to the needs of the residents in the area of
jurisdiction of the Respondent, including
those of the Applicants
residing at Protea South [Informal] Settlement, who do not have
access to [a] suitable place where they
may lawfully live.
2. The Respondent
is directed within one month of the date of this order to deliver a
report or reports under oath stating:
2.1 what steps it has
taken, including steps to get an agreed, mediated solution, to comply
with its constitutional and statutory
obligations to devise and
implement within its available resources a comprehensive and
co-ordinated programme to progressively
realise the right to adequate
housing for the Applicants, stating in particular whether it has
fully investigated the options of
in situ upgrading of the Protea
South [Informal] Settlement and/or relocation to sites as close as
possible to the Protea South
Informal Settlement; …
2.2 What steps it has
taken, pending the formulation and implementation of permanent,
housing solutions for the occupiers of the
Protea South Informal
Settlement in compliance with its constitutional and statutory
obligations in terms of sections 26 and 27
of the Constitution of The
Republic of South Africa, 1996 and Chapters 12 and 13 of the Housing
Code read with
section 9(1)
of The
Housing Act, 1997
,
Regulation 3(b)
of the Regulations Relating to Compulsory National Standards and
Measures to Conserve Water promulgated in Government Notice No.
R.
509 dated 8
th
June 2001 in terms of the
Water Services Act, 108 of 1997
and By-Law
3 of the Johannesburg Metropolitan Municipality Water Services
By-Laws published in Provincial Gazette Extraordinary
No. 179, dated
21
st
May 2004, Notice No. 835, to provide to the Protea South [Informal]
Settlement, the following [basic] interim services:
2.2.1 The provision of
potable water;
2.2.2 Temporary
Sanitation Facilities;
2.2.3 Refuse Removal
Facilitation; and
2.2.4 High Mast Lighting
in key areas to enhance community safety and access by emergency
vehicles.
3. The Applicants
may within four weeks of delivery of that Report, deliver commentary
thereon, under oath.
4. The Respondent
may within two weeks of delivery of that commentary, deliver its
reply thereto, under oath.
5. The case is
postponed to a date to be fixed by the Registrar for consideration
and determination of the aforesaid report,
commentary and reply.
6. The parties
shall pay their own costs to the date of this order.”
9. Save in three respects
- (a) the recognition by the learned Judge that the constitutional
and statutory obligations of the respondent
extend to all residents
within its area of jurisdiction (including the residents of Protea
South), (b) the fact that the learned
Judge did not grant the
interdict sought and (c) costs - the terms of the order granted by
Goldstein J reflect the essential terms
of the relief originally
sought by the applicants.
10. On 26 September 2008
the respondent produced a report pursuant to paragraph 2 of the order
of Goldstein J. The applicants’
response to the report
(being the commentary envisaged by paragraph 3 of the order of
Goldstein J) was delivered on 27 October
2008. On 3 November
2008 a supplementary response by the applicants was also delivered.
No reply in terms of paragraph
4 of the order of Goldstein J was
delivered.
The relevant
constitutional and statutory provisions
11. Before embarking upon
a consideration and determination of the report and the commentary, I
pause to consider the constitutional
and statutory provisions upon
which the order of Goldstein J is premised.
11.1. Section 26 of the
Constitution deals with the right to housing. It provides as
follows:
“
(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) No one may be evicted
from their home, or have their home demolished, without an order of
court made after considering all the
relevant circumstances. No
legislation may permit arbitrary evictions.”
11.2. The right to health
care, food, water and social security is dealt with in section 27 of
the Constitution. The section
states:
“
(1) Everyone has
the right to have access to -
a) health care services,
including reproductive health care;
b) sufficient food and
water; and
c) social security,
including, if they are unable to support themselves and their
dependants, appropriate social assistance.
(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) No one may be refused
emergency medical treatment.”
11.3. Chapters 12 and 13
of the National Housing Code are voluminous documents. It is
neither practical nor necessary for
me to quote their content
verbatim
. Chapter 12 deals with “
housing
assistance in emergency housing circumstances
”; chapter 13
with “
upgrading of informal settlements
”.
The following paragraphs of chapter 13 are however of particular
significance in light of the facts of this matter
and warrant
quotation (emphasis in the original):
“
13.3.2
Application of programme
This programme is
applicable to the in situ upgrading of informal settlements, the
relocation of an entire settlement and or in
cases where persons will
be required to be resettled due to the revised township layout as a
result of the upgrading project. ...”
“
13.3.4.2 Phase
2: Project Initiation
During this phase of the
upgrading process, municipalities will receive funding to undertake
the following activities:
…
· Install
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. Funding for the latter should first and foremost
be obtained from the MIG project funding. Should this fail the
programme could finance such;
…”
“
13.4
RELOCATIONS
Residents living in
informal settlements are often dependant on fragile networks to
ensure their livelihoods and survival. A guiding
principle in the
upgrading of these communities is the minimisation of disruption and
the preservation of community cohesion. The
Programme accordingly
discourages the displacement of households, as this not only creates
a relocation burden, but is often a
source of conflict, further
dividing and fragmenting already vulnerable communities.
In certain limited
circumstances, it may however be necessary to permanently relocate
households living in hazardous circumstances
or in the way of
essential engineering or municipal infrastructure. In all such cases
and where feasible and practicable, the relocation
must take place at
a location as close as possible to the existing settlement and within
the context of [a] community approved
relocation strategy that must
be submitted with the final business plan for approval by the MEC.
…
Where possible,
relocations should be undertaken in a voluntary and negotiated
manner.
…”
11.4. The functions of
municipalities in respect of housing development are set out in
section 9
of the
Housing Act, No. 107 of 1997
. In terms of
section 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 the 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;
b) set housing delivery
goals in respect of its area of jurisdiction;
c) identify and designate
land for housing development;
d) create and maintain a
public environment conducive to housing development which is
financially and socially viable;
e) promote the resolution
of conflicts arising in the housing development process;
f) initiate, plan,
co-ordinate, facilitate, promote and enable appropriate housing
development in its area of jurisdiction;
g) provide bulk
engineering services, and revenue generating services in so far as
such services are not provided by specialist
utility suppliers; and
h) plan and manage land
use and development.”
11.5.
Section 3
of the
Water Services Act, No. 108 of 1997
deals with the right of access to
basic water supply and basic sanitation. The section provides as
follows:
“
(1) Everyone has a
right of access to basic water supply and basic sanitation.
(2) Every water services
institution must take reasonable measures to realise these rights.
(3) Every water services
authority must, in its water services development plan, provide for
measures to realise these rights.
(4) The rights mentioned
in this section are subject to the limitations contained in this
Act.”
11.6. The relevant
definitions (Water Services Act, section 1) stipulate that:
“
basic
sanitation
”
means the prescribed minimum standard of services necessary for the
safe, hygienic and adequate collection, removal, disposal
or
purification of human excreta, domestic wastewater and sewage from
households, including informal households;
“
basic water
supply
”
means the prescribed minimum standard of water supply services
necessary for the reliable supply of a sufficient quantity
and
quality of water to households, including informal households, to
support life and personal hygiene;
“
water services
authority
”
means any municipality, including a district or rural council as
defined in the Local Government Transition Act, 1993 (Act
No. 209 of
1993), responsible for ensuring access to water services;
“
water services
institution
”
means a water services authority, a water services provider, a water
board and a water services committee:
11.7. The Regulations
Relating to Compulsory National Standards and Measures to Conserve
Water, promulgated on 8 June 2001 in terms
of the
Water Services Act
in
Government Notice No. R. 509 provide in
regulation 3(b)
thereof
that the minimum standard for basic water supply services is at least
25 litres of potable water per person per day or
6 kilolitres per
household per month, such water to be supplied within 200 metres of
the household.
12. There is no dispute
between the parties that the respondent is bound by the
constitutional and statutory provisions quoted above
to devise and
implement a comprehensive and co-ordinated programme to achieve the
progressive realisation of the applicants’
(and the other
residents’) right to access to adequate housing, focusing in
particular on the viability of
in situ
upgrading of Protea
South and/or the relocation of the applicants (and the other
residents) to sites as close as possible to Protea
South. Nor
is there any dispute that such a programme ought to be arrived at
within the context of community approval.
13. There is also no
dispute between the parties that, pending the formulation and
implementation of the programme, the respondent
is bound to provide
basic interim services to the residents of the settlement, including
potable water, temporary sanitation facilities,
refuse removal
facilities and high mast lighting in key areas to enhance community
safety and access by emergency vehicles.
The report and the
commentary thereon
14. I now turn to a
consideration of the report and the commentary thereon. It is
significant that the report was produced
as a result of an
application to this Court. No answering affidavit was filed on
behalf of the respondent. The report
ought therefore to have
been written against the backdrop of the allegations in the
applicants’ founding affidavit.
15. The main thrust of
the founding affidavit concerns the alleged failure of the respondent
to consult with the Landless Peoples’
Movement on the future
development of Protea South and the housing needs of its residents.
The affidavit also deals briefly
with the respondent’s alleged
failure to provide basic interim services (potable water, temporary
sanitation facilities,
refuse removal facilities and high mast
lighting) to the residents of the settlement.
16. The report begins
with a description of the background circumstances. It states
that there are presently more than 6000
“
beneficiaries
”
housed in the informal settlement. This appears to confirm the
applicants’ contention that there are some 6400
households in
the informal settlement.
17. According to the
report, the original township of Protea South was meant to
accommodate approximately 800 stands on 45 hectares
of land. In
November 2003 the Gauteng Department of Housing (“GDOH”)
appointed the Johannesburg Social Housing
Company (“Joshco”)
to implement high density housing in Protea South. Joshco
awarded a contract to Lumekani Developments
in March 2004. It
was said that, through consolidation and sub-division of the 800
stands, 3200 units could be achieved.
The balance of the
beneficiaries “
were to be relocated
” into the
Doornkop / Greenfields project.
18. The report states
that the development of Protea South was to commence on 1 April
2006. However, development was delayed
for various reasons.
In January 2006 consultants known as Africa Exposed were appointed to
conduct geotechnical investigations
of the area. According to
the report, the investigations of Africa Exposed indicated that the
area is dolomitic. Recommended
densities by the Council for
Geoscience (“CGS”) envisage approximately 583 stands
being developed on those parts of
Protea South that are suitable for
such development. The GDOH therefore needed to identify
alternative areas of land to house
the balance of the Protea South
beneficiaries.
19. Of the various areas
considered, the Doornkop / Greenfields project was considered best
placed to accommodate “
overflows from Protea South
”.
The report records that, as far back as 2003, the City of
Johannesburg identified this area as having the potential
to
accommodate those who could not be housed at Protea South.
According to the report, the project has already commenced.
The issue of
consultation
20. In response to the
applicants’ allegations of lack of consultation the report
states that:
“
Throughout the
process, the community was at all times
informed
of the development. For some time now and currently,
communication takes place through the Protea South Development Forum
(the “Forum”), which has adopted a comprehensive
communication plan. The Forum has met with the Protea South community
on various occasions,
inter
alia
,
as follows:-
1. Meeting of the Forum -
11 July 2004.
2. Meeting of the Forum -
18 January 2006.
3. Meeting of the Forum -
June 2006. Members of the Protea South Informal Settlement
informed
of the new proposal for the relocation of the Protea
South community to Doornkop / Lufhereng.
4. Meeting of the Forum -
30 July 2006. Members of the Protea South Informal Settlement
informed
that in terms of a geo-tech study on dolomite in the
area, large parts of Protea South not suitable for low income housing
development.
Further
informed
that the roll-over partial
in situ
development of Protea South would be abandoned and the
“decant” camp would be closed. Further
informed
that 329 houses only could be built in Protea South and that the
contractor will not agree to build such a small number of houses.”
(Underlining added)
21. On the basis of the
extract quoted above it is not reasonably possible to conclude that
there has been proper consultation with
the members of the Protea
South community on the future development of the settlement and the
housing needs of its residents.
There is clearly a profound
difference between informing the community of decisions taken and
engaging the community in arriving
at agreed or mediated solutions.
22. The report does
however cite other meetings between 25 July 2005 and 24 February 2008
at which it is alleged developments were
communicated to the
residents of the settlement. In order to assess the veracity of
this allegation, it is necessary to have
regard to the correspondence
attached to the applicants’ founding affidavit.
22.1. On 30 March 2004
the applicants’ attorney, Mr Moray Hathorn, wrote to Mr Mavi
Panyani, the Director of Housing, Region
6, City of Johannesburg
requesting a meeting between Mr Panyani and his clients, the members
of the LPM resident in the settlement,
to discuss the future
development of the settlement and the housing needs of his clients.
22.2. A few days later,
on 2 April 2004, Mr M S Sekgota, the Assistant Director: Legal
Services, City of Johannesburg wrote to Mr
Hathorn, confirming an
earlier discussion with Mr Hathorn that he (Mr Hathorn) would send a
breakdown of the issues which the LPM
wished to discuss and that the
Housing Department would respond in writing. Mr Sekgota added
that a petition could be addressed
by the LPM to the Public
Participation and Petitions Committee of the City.
22.3. Mr Hathorn replied
to Mr Sekgota on 8 April 2004. He said that the LPM required
the following information: the details
of plans for the future
development of the settlement; how the housing needs of the residents
would be accommodated; if not at
the settlement, then where and how
would residents be accommodated; whether the City intended to consult
with the people.
Mr Hathorn stated that a thorough programme of
consultation was important.
22.4. Having received no
response to his letter, Mr Hathorn wrote to Mr Sekgota on 21 May 2004
asking him to respond.
22.5. On 10 June 2004 Mr
M.A. Lekabe, the Legal Advisor: Legal Services, City of Johannesburg
wrote to Mr Hathorn to inform him
that the City intended to
de-densify the settlement and that a feasibility study revealed that
not all families in the area would
be accommodated. Mr Lekabe
further stated that a forum had been established but that Mr
Hathorn’s clients had not accepted
an invitation to be part of
the process. Mr Hathorn was informed that his clients were
invited to attend a meeting of the
forum, to be held the following
day, 11 June 2004, at 09h00.
22.6. Mr Hathorn
responded to Mr Lekabe on 29 June 2004. He stated that it was
not true that his clients had rejected an invitation.
Mr
Hathorn attached a letter (dated 14 April 2004) sent by the first
applicant to the Area Manager, Protea South, in which the
Protea
South branch of the LPM expressed its desire to participate in the
Protea South Development Committee. Mr Hathorn
further stated
that a sign board had been put up during May 2004 at the entrance to
the settlement informing the residents that
3200 houses were to be
developed by Joshco (Pty) Ltd. Mr Hathorn pointed out that a
notice establishing a township could
not be found in the Government
Gazette. He requested details of both the plans for the
development of the settlement and
the relevant gazette.
22.7. A mass meeting of
all residents of the settlement was held on 25 July 2004. This
meeting is referred to in the respondent’s
report.
Although the applicants and the respondent refer to this meeting
having taken place in 2005, it appears from the
contemporaneous
documents that the meeting took place in 2004. Unfortunately
the report does not contain any detail of the
meeting. The
applicants contend that the residents were informed by Mr Panyani
that 3200 houses were to be built in Protea
South. A feature of
the meeting was Mr Panyani’s insistence that Mr Hathorn leave
the meeting before it could proceed.
22.8. On 29 July 2004 Mr
Hathorn wrote to Mr Lekabe to register the objection of the LPM to
the exclusion of their legal representative
from the meeting of 25
July 2004. Mr Lekabe responded on 2 August 2004. He
stated that the Council’s Legal Section
was not informed that
Mr Hathorn would be attending the meeting; further that Mr Hathorn
was not allowed to attend such a meeting
unless he was a member of
the community. In future, according to Mr Lekabe, only the
LPM’s nominated forum representatives
should attend such
meetings.
22.9. Accordingly, on 3
November 2004 Mr Hathorn wrote to Mr Lekabe to inform him that Ms
Liza Khoza and Ms Angelina Thebula would
represent the LPM at
meetings of the Protea South Development Forum. He further
recorded that the LPM representatives on
the forum were being
frustrated, in that the details of plans were not being divulged or
discussed. The respondent was requested
to furnish the plans
before 14 November 2004, so that the LPM could make informed inputs
at the next meeting of the forum.
22.10. On 3 January 2005
Mr Hathorn submitted a formal request for information on behalf of
the LPM to the respondent in terms of
the Promotion of Access to
Information Act, No. 2 of 2000 (“PAIA”). The
information in respect of which access
was sought was described as
follows:
“
(1) Details of any
plans for the future development of Protea South, specifically the
areas of Protea South in which the informal
settlement is situated. …
(2) Details of plans to
accommodate the housing needs of residents of the informal settlement
at Protea South.
(3) Details of plans to
accommodate the housing needs of the residents of Protea South
informal settlement to the extent that the
City of Johannesburg does
not intend to accommodate the housing needs of the informal
settlement at Protea South.”
22.11. On 6 September
2005 a further request was made by Mr Hathorn for the plan for the
development of Protea South. This
time the request was made to
Mr Pat Nhlapo, the Director, Community Participation, Office of the
Speaker because Mr Panyani had
told the first applicant that the plan
would be furnished by Mr Nhlapo.
22.12. Despite getting no
response of substance from any official source, Mr Hathorn continued
undeterred. On 13 October 2005 he
wrote again to Mr Sekgota. He
pointed out that he had not received a single response to any of his
letters requesting the
plan for the future development of Protea
South and that the LPM’s request for information in terms of
PAIA had also been
ignored. He quoted the provisions of section 13.4
of the National Housing Code to emphasise the need for all
relocations from informal
settlements to be undertaken in a voluntary
and negotiated manner and with community approval. He referred
to the
dictum
of Sachs J in
Port Elizabeth Municipality v
Various Occupiers
(reported at
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 246F-G) to
underline the need for municipalities to take all reasonable steps to
secure agreed, mediated solutions.
He gave reasons for his
clients not wishing to move to alternative land.
22.13. It is significant
that, although the applicants had been attempting to gain access to
the City’s plans for Protea South
for more than a year, the
City saw no need to respond to Mr Hathorn’s letters or to
conduct meetings of its own with the
residents of the settlement.
Other than the meeting which is mistakenly alleged to have taken
place on 25 July 2005 (instead
of 25 July 2004), the respondent’s
report is silent on any meetings or other forms of communication
during 2005.
22.14. On 26 January 2006
Mr Hathorn again wrote to Mr Sekgota. He referred to a meeting
on Sunday 22 January 2006 at which
Mr Panyani had stated that people
would be moved from 2 April 2006 to the Midway area until their
houses have been built in Protea
South. Mr Hathorn said that it
seemed that only 3200 households would be accommodated in Protea
South. As a result
of the lack of consultation, certain
questions remained unanswered, such as whether 3200 units at Protea
South were appropriate;
who was to stay and who was to move; the
basis for identifying those who would be allowed to stay; where those
who were to be moved
would be housed; what would happen to the
education of the children of those who were to be moved. Mr
Hathorn mentioned the
statement to him by the Headmaster of the
Altmont Technical High School in Protea South on 10 February 2004
concerning the prejudice
that would be suffered by those children who
would be required to leave his school, having regard to the
specialist nature of the
school.
22.15. The respondent’s
report records a visit by the then Gauteng MEC for Housing (Ms
Nomvula Mokonyane) and the Executive
Mayor of Johannesburg (Mr Amos
Masondo) to Protea South on 25 February 2006. The report does
not disclose any further details
regarding the visit. In their
commentary, the applicants state that the MEC told the residents that
3200 houses would be
built in Protea South, that the remaining 3200
households would be relocated to Lehae and that the people who moved
would do so
voluntarily.
22.16. Mr Hathorn tried
again on 30 March 2006 when he wrote to Mr Sekgota to inform him that
his clients had been told that those
not accommodated in Protea South
would be housed either at Protea Glen or at Lehae, without them ever
being shown Lehae; and that
the Johannesburg Social Housing Company
had informed his clients that 800 households were to be moved to the
decant camp in Midway,
commencing on 2 April 2006, so that the
development of Protea South could begin. Once again, Mr Hathorn
pointed out that
the threatened actions of the respondent were
unlawful and urged the City to engage in proper consultations.
22.17. On 26 April 2006
Mr Lekabe wrote to Mr Hathorn. Instead of addressing the issues
raised in the earlier correspondence,
Mr Lekabe informed Mr Hathorn
that all issues regarding Protea South would be addressed by
officials of Region 6. Mr Hathorn
was asked to contact Central
Housing in Braamfontein.
22.18. The LPM and others
were invited to a meeting on 11 October 2006 with the MEC for Housing
at the offices of the Department
of Housing in Sauer Street,
Johannesburg. According to the report of the respondent on this
meeting, the residents of Protea
South were “
informed
”
by the MEC that 3800 households were to be relocated to Doornkop, 478
to Unity at Pumpings, 400 to Orange Farm and others
to private land
at Jeppestown. According to the applicants, this was the first
time they had heard of residents being relocated
to Doornkop.
Despite this, the LPM raised certain issues at the meeting (the
purchasing of privately owned land around Protea
South, the education
of children in Protea South and transport for people who had
employment in nearby Lenasia). The applicants
contend that the
MEC undertook to revert to them but has not yet done so.
22.19. On 13 February
2007 Mr Hathorn wrote to the Regional Manager Housing, Region 6 to
inform him that the LPM had, by invoking
the provisions of PAIA,
obtained a copy of the report by Africa Exposed concerning dolomite
at Protea South. Mr Hathorn also
advised that the LPM had
consulted with independent geologists and the Council for Geoscience
in Pretoria. Mr Hathorn conceded
that it seemed “
that
low income housing development is in the premises not appropriate at
Protea South.
” However, Mr Hathorn referred to a
newspaper report in which it was stated that 583 houses would be
built in Protea
South. If that was the case, Mr Hathorn said,
such housing should be for members of the low income group (such as
the applicants).
Mr Hathorn noted that there had been no
consultations with the community after the publication of the
dolomite study and once again
urged the City to do so.
22.20. The report of the
respondent records a public meeting on 17 March 2007 where Mr James
Maluleke of Joshco “
informed the occupiers of Protea South
informal settlement that they would be relocated to Doornkop /
Greenfields (Lufhereng)
”. Once again, it is clear
from the report itself that there was no consultation with the
residents. They were
simply informed.
22.21. On 3 April 2007 Mr
Hathorn addressed the Regional Manager Housing, Region 6 by letter.
He recorded that no reply to
his letter of 13 February 2007 had been
received; and further that the residents were informed by Joshco on
17 March 2007 at a
public meeting that they would be relocated to
Doornkop.
22.22. Still Mr Hathorn
was unable to elicit a response. On 11 April 2007 he wrote
again to the Regional Manager Housing,
Region 6. He asked for a
response to his letters of 13 February and 3 April 2007. He
recorded that the LPM’s
two representatives on the Community
Development Forum (“CDF”) had withdrawn because of a rule
that all attendees who
signed the attendance register were deemed to
have agreed with any decision of CDF, whether that was in fact the
case or not.
Mr Hathorn pointed out that such a rule undermined
the requirement for community consultation.
22.23. Mr Hathorn
addressed the Regional Manager Housing, Region 6 on 9 May 2007, for
the fourth time. He referred to his unanswered
letters. He
attached an article from the
Protea Urban News
of 27 April
2007 which had reported the possible relocation of residents to
Doornkop. He repeated that there had been no
consultation
concerning the possible relocation and the fact that, as a result,
there were many unanswered questions. He
noted that low income
housing development had taken place at the Winnie Mandela Park
informal settlement in spite of the fact that
it was underlain by
dolomite. That being the case, he said, the City was required
to demonstrate in proper and open consultations
why the same was not
possible in Protea South.
22.24. Mr Hathorn
followed his letter of 9 May 2007 with another letter, dated 22 May
2007, to the Regional Manager Housing, Region
6 in which the City was
called upon to demonstrate why low income housing was not possible in
Protea South, in light of the fact
that two schools and a community
hall had been built in the area and were functioning. Mr
Hathorn also pointed to other developments
in the area such as the
People’s Housing Development Project, the RDP housing
development and the middle income houses.
He reiterated the
LPM’s call for open consultations.
22.25. On 20 June 2007 a
meeting took place at the office of Counsellor S M Ralegoma, a member
of the Mayoral Committee of the City
of Johannesburg. In the
applicants’ founding affidavit, the point is made that Clr
Ralegoma failed to address the question
of housing those moved from
Protea South on land as close as possible to the settlement; and
that, in any event, the decision to
relocate residents of Protea
South had been taken without consultation. In the respondent’s
report, it is simply recorded
that a meeting took place between Clr
Ralegoma and representatives of the LPM. No further details are
provided. Nor
is any attempt made to deal with the points
raised in the founding affidavit.
22.26. Councillor
Ralegoma’s account of the meeting is contained in his letter,
dated 16 July 2007 and addressed to the first
applicant in her
capacity as Branch Chairperson of the LPM (Protea South). He denied
that there had been a lack of consultation
and pointed in this regard
to meetings of the Community Development Forum and general public
meetings. After recording the
various stand sizes as they had
evolved over time, he referred to the report by Africa Exposed and
advised that the City Council
“
has since resolved that the
proposed housing project be put on hold, and the housing
beneficiaries be relocated to the Doornkop
Greenfields Project, which
is currently being planned
”. He admitted that parts
of Doornkop are also dolomitic, but contended that the problem at
Doornkop is not as severe
as that at Protea South. He stated
that no residential development was planned in the dolomitic areas of
Doornkop.
He assured the LPM that his doors are always open for
further contact.
22.27. A public meeting
was held in Protea South on 5 September 2007. Clr Ralegoma
addressed the meeting. The applicants
state that the meeting
followed upon public demonstrations by the residents of the
settlement at the failure of the City to consult
them about their
future. Clr Ralegoma was very angry when he addressed the
meeting. He said that Government’s
decision that the
people would be moving to Doornkop was final. The respondent’s
report once again lacks detail.
It states that Clr Ralegoma
repeated the City’s position that all households registered by
Joshco “
would be moved
” from Protea South to
Doornkop / Greenfields.
22.28. No further
meetings were held until February 2008. It seems that a meeting
was held on 7 February 2008, although the
report of the respondent
gives the date as “
February 2008
”. The
report states that it was a public meeting held at Doornkop to
discuss the Doornkop development and that it was
organised by the
Gauteng Department of Housing (GDOH). No further details are
given. The applicants, in their commentary,
state that the
meeting was organised by the GDOH to inform the Doornkop farmers of
the impending development at Doornkop.
This seems likely given
that the meeting was held at Doornkop. The applicants further
state that the LPM was invited to the
meeting by the Doornkop
farmers. Even though the respondent’s report cites this
meeting as evidence of communication
with the residents of Protea
South, it appears that this meeting was not intended to consult with
the LPM or the residents of the
settlement.
22.29. The final meeting
cited in the respondent’s report is the one held on 24 February
2008 at the Multi Purpose Centre
in Protea South. It was called
by Counsellor Mapule M Khumalo. Mr Andre van der Walt, an
official of the GDOH, also
addressed the meeting. The contents
of the respondent’s report in this regard follow the precise
wording of paragraphs
54.1 to 54.4 of the applicants’ founding
affidavit. Accordingly, the points made by the officials at the
meeting are
common cause. One such point is the statement that
“
the Government had decided that the occupiers at the Protea
South Informal Settlement would be housed at Doornkop.
”
At the meeting, the LPM once again raised the complaint that the
occupiers of Protea South had not been consulted
on the decision to
relocate them to Doornkop and the impact this would have on access to
schools, health care facilities and their
places of work.
23. I have traversed the
correspondence attached to the founding affidavit in some detail
because it reveals a disturbing pattern
of official indifference to
the plight of the residents of Protea South. While the
persistence and determination of Mr Hathorn
to persuade the
respondent of the need to engage in open and proper consultations is
commendable, the conduct of the officials
with whom he attempted to
communicate is shameful.
24. The respondent, in
seeking to devise and implement a comprehensive and co-ordinated
programme to progressively realise the right
of the residents of
Protea South to access to adequate housing, ought to have welcomed
the intervention of Mr Hathorn and the LPM.
Instead, they were
sent on a wild goose chase, from official to official, without anyone
engaging meaningfully with the real and
legitimate concerns of the
residents.
25. The respondent
contends in its report that
in situ
development at Protea
South is not viable because of the findings of the report by Africa
Exposed. The respondent further
contends that the risk posed by
dolomite at the Doornkop site “
can be mitigated
”.
The applicants, on the other hand, rely on a review of the Africa
Exposed report by a firm of consulting engineers
with specialist
geotechnical knowledge (the “SRK report”). The SRK report
found that, as far as the risk of dolomite
was concerned, there
appeared to be no advantage of Doornkop over Protea South. It
is neither necessary nor desirable for
me to attempt to resolve this
dispute between the parties. The relevant point that is not
disputed is that these opposing
contentions have not been the focus
of any consultations between the City and the residents of the
settlement.
26. The respondent is
obligated to consult meaningfully with the residents of Protea South
with the intention of agreeing on a comprehensive
and co-ordinated
programme that would progressively realise their right to access to
adequate housing. However, if no agreement
is reached after
bona fide
discussions have deadlocked and a mediator has been
unable to bring the parties together, the respondent must
nevertheless ensure
that its housing programme is reasonably and
appropriately implemented in the light of all the provisions in the
Constitution.
(
Government of the Republic of South Africa and
Others v Grootboom and Others
2001 (1) SA 46
(CC) at 83E - 84B,
par. [82] - [84]; Compare, within the context of evictions,
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC) at 216G -
217D, par. [17] - [18];
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 239B - 240C, par. [39] - [42])
27. However, despite
repeated calls by the applicants that they be consulted on the future
development of Protea South, the respondent
has paid lip-service to
the issue of consultation and has carried on regardless, making
unilateral decisions.
28. There is no community
approved relocation strategy in place nor has any attempt been made
to secure one. It follows therefore
that the decision to
relocate the residents of the settlement to Doornkop was made
contrary to the provisions of section 13.4 of
the National Housing
Code. The decision is also in conflict with the requirements of
section 26 of the Constitution, read
with section 10 of the
Constitution and
section 2(1)(b)
of the
Housing Act.
29. In
order to reach a
negotiated outcome, the respondent will have to start afresh with
full and open consultations involving all relevant
stakeholders,
including the applicants and the LPM. Mr Hathorn’s
participation should also be welcomed.
30. However, the
consultations will only be meaningful if the respondent, in advance,
makes available all relevant information,
including development plans
and technical reports. The applicants must be able to consider
the information in advance of
the consultations. If it
subsequently appears during the consultations that
in situ
development of Protea South is not possible and that relocation is
unavoidable, the applicants must be given a proper opportunity
of
contributing to the identification of an appropriate location and the
development of a fair relocation programme. Even
if it appears
that
in situ
development of Protea South is possible, it might
still be that certain households will have to be relocated within the
context
of a community approved strategy.
31. Above all, the
respondent must realise that the need to consult with those affected
by its decisions is not a formalistic requirement.
Rather,
genuine consultation respects the dignity of those consulted and
ensures that any agreement reached as a result will sustain
itself
because of its legitimacy.
32. Ms Mansingh, on
behalf of the applicants, submitted that I should order the
respondent to commence with
in situ
development of Protea
South without any further consultations between the parties. In
the alternative, she submitted that
I should order the respondent to
engage in proper consultations with the applicants. I do not
agree with Ms Mansingh that
I should order
in situ
development.
33. Section 172(1)(b) of
the Constitution empowers this Court, when deciding a constitutional
matter within its power, to make any
order that is just and
equitable. It is not necessary at this stage for me to decide
whether this Court has the power to
order an institution of
government to embark on
in situ
development of an informal
settlement. In my view, the evidence presently before me is not
sufficient to justify the conclusion
that
in situ
development
of Protea South is viable.
34. Further, the
applicants have not sought an order for
in situ
development in
their notice of motion. Ms Mansingh attempted to cure this by
relying on the
dictum
of Harms JA in
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre,
Amici Curiae
)
;
President of the Republic of South Africa and Others v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre,
Amici
Curiae
)
2004 (6) SA 40
(A) at 52D - E. However, in my
view, the evidence does not establish that the failure of the
respondent to develop the settlement
in situ
constitutes a
constitutional breach. Its failure properly to consult on
in situ
development and other issues is of course another matter.
The provision of
interim services to the settlement
35. The respondent claims
that it is complying with its obligation to provide basic interim
services to the settlement. The
section of the report dealing
with this issue is so brief and uninformative that it merits
quotation in full:
“
In line with the
City of Johannesburg’s policies on provision of rudimentary
services, the following basic services are available
at Protea South
Informal Settlement:-
1. Communal stand pipes
2. VIP toilets
3. Public lighting “high
mast”
4. Periodic collection of
refuse by Pikitup”
36. In their founding
affidavit, the applicants contend that the respondent has failed to
provide potable water, temporary sanitation
facilities, refuse
removal facilities and high mast lighting in key areas.
However, in her argument, Ms Mansingh informed
me that refuse
collection was no longer an issue between the parties.
37. It therefore remains
in issue whether the respondent has complied with its constitutional
and statutory obligations to provide
potable water, temporary
sanitation facilities and high mast lighting. On the
information provided by the respondent, and
in view of the
applicants’ persistent denial, it is not possible to assess
whether these basic interim services have indeed
been provided, or to
what extent.
38. Ms Mansingh submitted
that this Court should, without further delay, order the respondent
to provide the aforesaid services.
She argued that there is no
need for another report by the respondent on this issue. I do
not agree.
39. In their notice of
motion, the applicants have not sought any order for specific
performance in relation to the provision of
basic interim services.
For the reasons set out above, the
dictum
of Harms JA in the
Modderklip Boerdery
case at 52D - E cannot assist the
applicants in this respect either. The evidence does not
establish that the respondent
has failed to provide the basic interim
services; the difficulty I have is that the report of the respondent
is so lacking in the
detail required by the order of Goldstein J that
it is not possible to determine what steps have been taken, if any,
to provide
the services.
40. Furthermore, even if
I were mindful to order specific performance, it is not clear how
much water, how many toilets or how many
high mast lights the
respondent should be ordered to provide. In relation to the
issue of water, Ms Mansingh referred me
to regulation 3(b) of the
Regulations Relating to Compulsory National Standards and Measures to
Conserve Water. The minimum
standard stipulated in that
regulation is 25 litres of potable water per person per day or 6
kilolitres per household per month,
such water to be supplied within
200 metres of the household. However, Ms Mansingh also referred
me to the unreported judgment
of Tsoka J in
Mazibuko and Others v
City of Johannesburg and Others
(Case No. 06/13865, South Gauteng
High Court), in which the Court,
inter alia
, reviewed and set
aside the limitation of 25 litres per day or 6 kilolitres per month
and ordered the City of Johannesburg or Johannesburg
Water (Pty) Ltd
to provide each applicant and other similarly placed residents of the
applicants’ township a free basic water
supply of 50 litres per
person per day.
41. The order of Tsoka J
in the
Mazibuko
case has since been replaced by the order of
the Supreme Court of Appeal in
City of Johannesburg and Others v
Mazibuko and Others
2009 (3) SA 592
(SCA), where the SCA
declared,
inter alia
, that 42 litres of water per person per
day (for residents of the township concerned) would constitute
sufficient water in terms
of section 27(1) of the Constitution.
42. The facts of the
present application and the manner in which the case has been
presented are so far removed from the facts and
presentation of the
Mazibuko
case that I cannot simply replicate an order that the
respondent provide 42 litres of water to each resident of Protea
South.
43. In relation to the
provision of temporary sanitation facilities and high mast lighting,
the position is even starker.
The statutory provisions to which
I was referred do not specify a minimum number of toilets or high
mast lights per person or per
household.
Conclusion
44. Having considered the
respondent’s report and the commentary thereon, I find that the
report fails to set out the steps
envisaged in paragraphs 2.1 and 2.2
of the order of Goldstein J, in particular:
44.1. As a result of its
failure to engage meaningfully with the applicants and their
representatives (the LPM and Mr Hathorn),
no steps of substance have
been taken by the respondent to seek an agreed or mediated solution
with the applicants. Indeed,
the intervention of a mediator has
not even been suggested. As a result, the report purports to
deal with these issues but
fails to do so.
44.2. No steps have been
identified by the respondent to demonstrate that it has complied with
its constitutional and statutory
obligations to provide basic interim
services to the residents of Protea South.
45. In my view, an
appropriate order in the circumstances would be to give the parties
an opportunity to engage in fresh consultations
and then to require
that the respondent deliver a report dealing with the issues
contemplated in the order of Goldstein J.
I intend to detail
the matters to be covered in the report. The applicants will
then have an opportunity to comment on the
report and the respondent
will have an opportunity to reply. (Compare
City of Cape
Town v Rudolph and Others
2004 (5) SA 39
(C) at 76B - 77B and 87E
- 88H)
46. As for the question
of costs, Mr Hathorn has acted
pro bono
throughout this
matter. However, having regard to the conduct of the respondent
and the contents of its first report, it
is my view that it would be
just and fair for the respondent to be ordered to pay the applicants’
disbursements since the
order of Goldstein J, including the costs of
counsel.
47. In the result, I make
the following order:
1. The respondent is
ordered to furnish the legal representatives of the applicants, by no
later than 14 August 2009, with all information
necessary to conduct
proper consultations in relation to the future development of Protea
South Informal Settlement (“Protea
South”), including but
not limited to:
i. Copies of all plans
(past and present) in the possession of the respondent concerning the
development of Protea South;
ii. Copies of all
plans (past and present) in the possession of the respondent
concerning development at Doornkop/Greenfields;
iii. The identification
of the areas in Protea South that are currently earmarked for future
development;
iv. The identification
of parcels of land (both privately and publicly owned), within a 12
kilometre radius of Protea South, which
are not presently used or
developed;
v. The
identification of the land referred to in paragraph 1 on page 6 of
the respondent’s report dated 26 September 2008;
and
vi. All information in
the possession of the respondent relevant to a determination whether
the land in (v) above may be developed
for low income housing.
2. The parties (assisted,
if they so wish, by their legal representatives) are ordered to
engage in open and
bona fide
consultations aimed at reaching
agreement on a comprehensive and co-ordinated programme to achieve
the progressive realisation
of the applicants’ right to access
to adequate housing, focusing in particular on the viability of
in
situ
upgrading of Protea South and/or the relocation of the
applicants to sites as close as possible to Protea South. Such
consultations
are to commence no later than 1 September 2009 and may
include the appointment of a mediator, if so required.
3. The respondent is
ordered to deliver a report or reports under oath (“the
report”) by no later than 15 October 2009,
stating:
i. what steps it has
taken since the date of this order to engage in the open and
bona
fide
consultations required by par. 2 of this order;
ii. a full
description of the consultations conducted in terms of par. 2 of this
order, including a full description of all meetings
held,
communications made and agreements reached. If no mediator was
appointed, the respondent must state the reasons for
such non
appointment.
iii. what steps it has
taken since 13 June 2008, to provide the following basic interim
services to the occupiers of the Protea
South Informal Settlement:
a) The provision of
potable water. In addition, the respondent must state the
amount of water that is currently supplied to
each person per day or
to each household per month and must specify the manner in which such
water is supplied. If the amount
of water supplied is less than
42 litres per person per day, the respondent must specify the reasons
for such discrepancy.
b) Temporary Sanitation
Facilities. In addition, the respondent must specify the nature and
location of the facilities and the number
of people on average who
currently use each such facility on a daily basis. If more than
one household on average is currently
using any particular facility
on any day, the respondent must specify the reasons for not providing
one such facility per household.
c) High Mast Lighting in
key areas. In addition, the respondent must indicate the
location of each high mast light on a map
of the settlement and
provide an explanation for such locations, having regard to issues of
community safety and access by emergency
vehicles.
4. The applicants may,
within four weeks of delivery of the report by the respondent,
deliver their commentary thereon, under oath.
5. The respondent may,
within two weeks of delivery of the applicants’ commentary,
deliver a reply thereto, under oath.
6. Any party may
thereafter set the matter down for consideration and determination of
the report, commentary and reply.
7. The respondent is
ordered to pay the applicants’ disbursements, including the
costs of counsel, from 13 August 2008 to
the date of this order.
On
behalf of the applicants
:
Adv
U.R.D. Mansingh
Instructed
by:
Webber Wentzel
(incorporating
Mallinicks)
Ref: Mr. M. Hathorn
On
behalf of the respondent
:
Mr G.B. McMaster
(attorney)
Kunene Ramapala Botha
Attorneys
Date
of hearing
: 13 February 2009
Date
of judgment
: 4 August 2009