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[2008] ZAWCHC 15
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Minister of Local Government and Housing for the Western Cape and Others v Various Unlawful Occupiers of Houses Situated in Precincts 4 and 6, Delft Symphony and Others (102/08) [2008] ZAWCHC 15 (6 February 2008)
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No:
102/08
In the matter between:
MINISTER OF LOCAL
GOVERNMENT AND HOUSING
FOR THE WESTERN CAPE
First Applicant
THUBELISHA HOMES
Second Applicant
SEAKAY ENGINEERING
SERVICES (PTY) LTD
Third Applicant
and
VARIOUS UNLAWFUL
OCCUPIERS OF HOUSES
SITUATED IN
PRECINCTS 4 AND 6, DELFT SYMPHONY
First Respondents
CITY OF CAPE
TOWN
Second Respondent
COUNCILLOR FRANK
MARTIN
Third Respondent
REASONS
FOR ORDER GRANTED ON 6 FEBRUARY 2008
VAN ZYL J:
[1] On 6 February 2008 I granted an order directing the first
respondents, being the unlawful occupiers of houses situated in
precincts
4 and 6 of Delft Symphony, to vacate such houses by no
later than 18h00 on Sunday 17 February 2008. On Friday 15 February
2008, being
the last working day before the eviction order was to
come into operation, the first respondents gave notice of request for
reasons
for the said order. On the same day they served a notice of
application for leave to appeal against the order on the following
grounds,
namely that this court had erred: (1) in entertaining the
application as one of urgency in terms of the relevant rule or
statutory
provision; (2) in granting a final order in terms of
section 5(1) of the
Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act
18 of 1998 (the PIE Act); (3) in
failing, on various grounds to which I need not now refer, to take
into account that it would not
be just and equitable to order that
the first respondents vacate the houses in terms of the order; (4) in
failing to order that the
parties should engage in mediation as
contemplated in section 7 of the PIE Act instead of making an
eviction order; alternatively
(5) in failing to order mediation as a
precursor to an order of eviction.
[2] I have certain reservations as to the good faith of the first
respondents in seeking reasons for the said order at this late
stage.
If they were contemplating an appeal, they could have requested
reasons the day after the order was made or as soon thereafter
as
possible. I was not in chambers when the notice requesting reasons
was served on Friday afternoon and only this morning did I
have sight
thereof. In view of the urgency of the matter, however, I am prepared
to give brief reasons for the order.
[3] The first applicant was represented by Mr M Donen SC, assisted by
Ms H Rabkin-Naicker, the second to fourth applicants were represented
by Mr S C Kirk-Cohen SC assisted by Mr T Masuku, and the first
respondents were represented by Mr A Coetzee. There was no
representation
for the second and third respondents, who indicated
that they would abide by the decision of this court. The court
expresses its
appreciation to the said counsel for their full heads
of argument and presentation of the cases on behalf of the respective
parties.
[4] This matter commenced on 16 December 2007, when some 1600
persons, to whom I shall refer as the first respondents, occupied
houses
in various stages of completion and built under the national
housing project colloquially referred to as N2 Gateway. On 24
December
2007, when I was on recess duty, the first respondents
approached this court for an order interdicting their eviction from
the said
houses. I granted the order in chambers on the basis that
the order in terms of which they were being evicted was stale in that
it
dated back to 23 October 2006 and had been granted by the
Bellville Magistrateâs Court at the instance of the second
respondent.
In addition I was of the view that it was inappropriate
for any eviction to be executed on Christmas Eve. For these reasons I
allowed
the matter to stand down to 3 January 2008, on which date I
set aside the stale order with a view to preventing its being used
again
for purposes of evicting any of the first respondents.
[5] The matter then stood down to 8 January 2008, when the applicants
filed their application and brought an application for directions,
in
terms of section 5(2) of the PIE Act, regarding service of their
proposed eviction application on the first respondents. I granted
such order and the matter stood down once again to 15 January 2008,
on which date, after hearing argument on behalf of the respective
parties, it was postponed to 29 January 2008 for hearing. The
respondents were to file answering papers by 21 January and the
applicants
were to reply thereto by 25 January 2008.
[6] The hearing commenced on 30 January 2008, when a group of
unlawful occupiers, who were not represented by the attorney and
counsel
acting for the first respondents, requested a postponement to
6 February 2008 to enable them to join forces with the first
respondents.
They were given leave to deliver supplementary answering
affidavits by 1 February 2008, to which the applicants had to reply
by 5
February 2008. After full argument had been heard, I granted the
eviction order in terms of a draft prepared by the applicants.
Although
the applicants initially sought an order that the first
respondents be evicted within forty-eight hours, I was not prepared
to do
so in view of the fact that their unlawful occupation of the
houses in question had been instigated by the third respondent, who
was, in terms of the order, interdicted from inciting third persons
to take possession of or occupy the houses unlawfully. By ordering
a
much later date than usual for vacating the houses, I believed that
this would give the first respondents sufficient time to arrange
for
returning to their previous homes or for acquiring alternative
accommodation. I requested them urgently to exercise patience
and to
give cooperation to the authorities so that the next phase of the
project could be completed as soon as possible and they
could stand
in line for future allocations, provided they qualified for housing.
[7] The first applicant participated in these proceedings in his
official capacity as the representative of the provincial executive
authority responsible for housing. The second applicant is a public
company described as the implementing agent for the N2 Gateway
project. In such capacity it contracted with the third and fourth
applicants, being members of a consortium with which the second
applicant contracted for building the said houses. It was not
disputed that the third and fourth applicants were in undisturbed
possession
of the houses prior to the unlawful occupation thereof by
the first respondents. That is also the basis on which such
applicants
have approached this court for a spoliation order inasmuch
as they do not qualify to bring an application in terms of the PIE
Act.
[8] The gist of the applicantsâ case was that the houses unlawfully
occupied by the first respondents had been allocated, or were
in the
process of being allocated, to other parties, who were being severely
prejudiced by the conduct of the first respondents.
Much as this
court and all other role players sympathise with the first
respondents, many of whom had been on waiting lists for housing
for
long periods of time, this does not entitle them to take the law into
their own hands. If this should be sanctioned by the courts,
the rule
of law would be gravely transgressed and anarchy would ensue,
particularly if persons in authority, such as the third respondent,
should instigate and incite such conduct.
[9] It is quite true that section 26(1) and (2) of the Constitution
provide that everyone has the right of access to adequate housing
and
that the State is required to take such measures, within its
available resources, as may achieve the progressive realisation
of
this right. Section 26(3) in turn provides that no one may be evicted
from their home without an order of court. In the present
case the
first respondents left their existing homes, most of which were in
backyards, and occupied the houses in question unlawfully.
Such
conduct cannot be justified and the unlawfully occupied houses cannot
be regarded as homes for purposes of the said section.
[10] It is common cause that the first respondents are unlawful
occupiers as defined in section 1 of the PIE Act. The first and
second
applicants have brought the present application in terms of
section 5(1) of such Act. This provides that the owner or person in
charge
of land may institute urgent proceedings for the eviction of
an unlawful occupier of that land pending the outcome of proceedings
for a final order. The court may grant such order if it is satisfied,
firstly, that there is real and imminent danger of substantial
injury
or damage to any person or property if the unlawful occupier should
not be evicted; secondly, that the likely hardship to
the owner or
other affected person exceeds that which the unlawful occupier might
suffer should such order be granted; and, thirdly,
that there is no
effective alternative remedy available.
[11] I was quite satisfied, after reading the papers and hearing
argument, that the first and second applicants have complied with
all
the requirements for an order in terms of section 5(1) of the PIE
Act. The only question is whether a final order should have
been
granted. In this regard all the relevant facts were fully canvassed
before me by way of founding, answering and replying affidavits.
At
no stage did the first respondents indicate, in their answering
affidavits or during argument, that they wished, or intended,
to
place any further information before the court, be it by way of
supplementary affidavits or otherwise. Section 5(1) allows for
the
granting of an interim order on the basis of the initial proceedings
(notice of motion and founding affidavit) filed by the applicant.
On
the return day, after answering and replying papers have been filed,
the order may be made final. In the present case no interim
order was
granted in view of the agreement of the parties as to the further
conduct of the proceedings with regard to the filing
of such further
papers. There would have been no sense in granting an interim order
if such papers have already been finalised.
[12] Even if the issuing of an interim order should be peremptory in
terms of section 5(1) of the PIE Act, the applicants would,
in my
view, be entitled to make use of the provisions of section 4(6)
thereof in that the first respondents had occupied the houses
for
less than six months at the time the proceedings were initiated. When
all the relevant circumstances placed before me are considered,
I am
satisfied that it is just and equitable for an eviction order to be
granted against the first respondents. In this regard I
should point
out that the first respondents did not furnish any concrete facts
relating to the rights and needs of the elderly, children,
disabled
persons and households managed by women, as mentioned in section
4(6). They clearly had more than sufficient time to do
so.
[13] The gravamen of the case for the first respondents is that they
feel aggrieved at the allocation procedure which has hitherto
excluded them from acquiring housing. Such allocation procedure, they
aver, is flawed, irrational and seriously prejudicial to their
rights. They would be left homeless should they be evicted, thereby
making the granting of the relief claimed unjust and inequitable.
In
this regard they allege that their personal circumstances have not
been properly considered, especially in respect of women, children
and the elderly, and that they are being discriminated against. The
applicants should have offered them alternative accommodation
and
engaged in mediation discussions with them prior to bringing the
present application.
[14] There may be justification for these grievances. They do not,
however, constitute a defence against an application for eviction.
As
I mentioned during argument, mediation or, failing that, review
proceedings could have been considered at the time the allocations
were made. It is not the function of this court to make any decision
or tender any views in this regard. It is likewise not the function
of the court to order parties to submit themselves to mediation
proceedings. That is not what section 7 of the PIE Act provides.
At
most a court may recommend such course of action.
[15] It follows that I am satisfied that the first and second
applicants have made out a proper case for the relief claimed in
terms
of the PIE Act. I am likewise satisfied that the third and
fourth applicants have made out a case for a spoliation order. The
first
respondents in fact offered no defence to counter this relief.
[16] It is for these reasons that I granted the aforesaid order of 6
February 2008.
D H VAN ZYL