Thubelisha Homes and Others v Various Occupants and Others (13189/07) [2008] ZAWCHC 14 (10 March 2008)

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[2008] ZAWCHC 14
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Thubelisha Homes and Others v Various Occupants and Others (13189/07) [2008] ZAWCHC 14 (10 March 2008)

REPORATBLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 13189/07
In the matter between:
THUBELISHA
HOMES
First
Applicant
MINISTER
OF HOUSING
Second
Applicant
MINISTER
OF LOCAL GOVERNMENT
Third
Applicant
AND
HOUSING, WESTERN CAPE
and
VARIOUS
OCCUPANTS
Respondents
THE
CITY OF CAPE TOWN
Second
Respondent
FIRSTRAND
BANK LIMITED
Third
Respondent
JUDGMENT
delivered on this 10
th
day of MARCH 2008
Introduction
[1]
This is an application for the eviction of various occupants,
Respondents, from the informal settlement commonly known as Joe
Slovo. The Applicants allege that the Respondents are occupying the
property in question unlawfully inasmuch as no consent was given
to
them for such occupation. Within this main application, various other
applications were brought.
[2]
Firstly, as part of the main application, an application was brought
for an order in terms of which the Applicants could be allowed
to
dispense with the forms and service provided by the Uniform Rules of
the High Court, and enabling this matter to be treated as
one of
urgency in terms of Rule 6(12), and in accordance with the provisions
of
section 5
of the
Prevention
of Illegal Eviction From and Unlawful Occupation of Land Act
19 of 1998
[hereinafter referred to as PIE].
[3]
Secondly, the essence of the main application, an application for the
eviction of the various occupiers (Respondents) from the
area known
as Joe Slovo informal settlement, and in the event of their failure
and/or refusal to vacate the said area, an order to
authorize and
direct the Sheriff of this Court to enter the premises occupied by
the Respondents and to remove all the movable items
in the premises
to an identified place in the temporary relocation area in Delft and
to eject such Respondents in accordance with
the schedule which was
handed in as annexure “XS31” to the principal founding affidavit.
Furthermore, an order in terms of which
the various occupiers would
be interdicted from returning to the Joe Slovo area for purposes of
erecting a new informal settlement
or from taking up residence
thereat in a manner that undermines the implementation of the
national housing policy and the achievement
of the N2 Gateway Housing
Project.
[4]
In response thereto, the Respondents brought an Interlocutory
application for review of the various Land availability agreements
and the decision taken to eject the occupants from the property. To
counter this interlocutory application, applicants brought a
Rule 30
Application to set aside same as being unprocedural and irregular.
The
Parties and legal representation
[5]
The First Applicant THUBELISHA HOMES, is a company duly registered in
terms of section 21 of the
Companies
Act
61 of 1973. The First Applicant is charged with the responsibility to
transform the Joe Slovo informal settlement in terms of the
national
housing policy and develop proper formal housing in the area. It was
legally represented by Mr. Kirk-Cohen SC, Ms. Rabkin-Naicker
and Mr.
Masuku. The Second Applicant is the MINISTER OF HOUSING, The
Honourable Ms.
Lindiwe
Nonceba Sisulu. She was represented in court by Mr.
Donen SC, who was assisted by Ms. Pillay. The Third Applicant is the
PROVINCIAL MINISTER OF THE WESTERN CAPE responsible for the
DEPARTMENT OF LOCAL GOVERNMENT AND HOUSING. He was similarly legally
represented by Mr. Kirk-Cohen SC, Ms. Rabkin-Naicker and Mr.
Masuku.
[6]
Respondents are the occupiers of the informal dwellings comprising
the informal settlement known as “Joe Slovo”. The respondents
were represented by two committees, the Task Team, represented by Mr.
Budlender and Mr. Kubukeli. The other committee chaired by
Mr. Penze
was legally represented by Mr. Hathorn. The CITY OF CAPE TOWN is the
Second Respondent, which is a municipality established
in terms of
sections 12
and
14
of the
Local
Government: Municipal Structures Act
117 of 1998
, read with the City of Cape Town Establishment Notice
(Provincial Notice 479 of 22 September 2000, as amended by Provincial
Notice
665 of 4
th
of December 2000). Second Respondent did not file any opposing papers
and therefore there was no legal representation on its behalf.
The
Third Respondent is FIRSTRAND BANK LIMITED, a company duly registered
under registration number 1929/001225/06, and a bank duly
registered
in terms of the
Banks
Act
94 of 1990. Similarly the Third Respondent did not file opposing
papers in court. Accordingly no one legally represented Third
Respondent
in court.
Joe
Slovo informal settlement
[7]
Obtaining a precise or exact identification of the persons occupying
the area is exceedingly difficult. The generally accepted
description
is that Joe Slovo is an informal settlement on the northern side of
the N2 between the Langa Township turn off and Vanguard
Drive turn
off. Joe Slovo became occupied from December 1994. The settlement
grew from an estimated dwelling count of 1 195 in 1996
to 4 571 in
2002. The size of Joe Slovo in total has been determined to be
approximately 30.68Ha. It is situated approximately 10km
from Cape
Town City Centre, making it an attractive place to stay for thousands
of people. It is one of Cape Town’s biggest informal
settlements
with very high dwelling densities. There are approximately 4500
informal dwellings comprising Joe Slovo, and approximately
18 000 to
20 000 persons occupying these informal dwellings.
[8]
Like other informal settlements, it is densely composed of self-built
shacks constructed from odd assortments of wood, plastic
and
corrugated iron. The shacks are small, cramped and overcrowded, and
built mostly of combustible materials. They pose a significant
fire
risk, and indeed in recent years the area has been devastated on more
than one occasion by runaway fires, causing extensive
damage to
property and personal effects. Over the last 13 years the Joe Slovo
community has suffered from some devastating fires,
but has received
some benefit from an increasing programme of basic services and
emergency relief from the City of Cape Town and
the Province.
[9]
The area is hugely overcrowded. In winter the area floods intolerably
and residents are compelled to live in unhealthy, wet conditions.
Diseases are rife and crime is endemic. It is not an exaggeration
that the men, women and children that live there live in squalor.
Moreover, it is clear that if more people move into the area, the
more the living conditions in Joe Slovo will worsen. All informal
dwellings at Joe Slovo are illegal structures and are built in
substantial non-compliance with building laws and related
regulations.
[10]
Joe Slovo informal settlement is one of the areas targeted by the
Applicants for Roll Over upgrading envisaged in terms of the
N2
Gateway Housing Project. In situ upgrade techniques would not
necessarily require a relocation of residents to Delft out of the
land in Joe Slovo, while Roll Over upgrade technique requires the
residents to relocate strategically from the land so that the land
can be stabilised and serviced and thereafter houses built. It is
just not possible to rehabilitate and develop the land without
first
strategically relocating the occupiers of the informal settlement.
[11]
The obligation of the State to provide access to adequate housing is
now constitutionally binding. Such obligation must include
the
upgrading of informal settlements in order to provide decent housing
in terms of applicable and acceptable building standards
and norms.
In response to its constitutional obligations, particularly under
section 26 of the Constitution, the national housing
policy which
informs the N2 Gateway housing project – (Breaking New Grounds: A
Comprehensive Plan for the Development of Sustainable
Human
Settlement) – came into existence. The principal objective of the
BNG national housing policy includes the creation of well-managed
housing projects involving the upgrading or redevelopment of the
informal settlements and the reversal of the conditions that millions
of South Africans live under in the informal settlements. The BNG
policy represents the boldest national housing policy ever undertaken
in South Africa since the dispensation of democratic governance and
reflects the State’s attempt to meet its constitutional
responsibilities
in terms of section 26(2) to provide access to
adequate housing on a progressive basis.
[12]
The aim of the policy is to give effect to the right of access to
adequate housing in a manner that promotes sustainable development,
wealth creation, poverty alleviation and equity. Properly
implemented, the sustainable human settlements so created would
provide
for a safe and secure environment, with adequate access to
economic opportunities, a mix of safe and secure housing and tenure
types,
reliable and affordable basic services, educational,
entertainment and cultural activities, social amenities and health,
welfare
and police services. The implementation of the N2 Gateway
project in Joe Slovo informal settlement requires the relocation of
residents
to the temporary relocation areas (TRAs) to ensure the
rehabilitation, the laying out of infrastructure and services and the
building
of houses. An essential ingredient for the redevelopment of
Joe Slovo informal settlement is vacant land. It is, however,
envisaged
that once the houses have been built and completed, a
significant number of the residents will be offered the opportunity
of returning
to Joe Slovo, to occupy the houses in terms of the
qualifying criteria. It was not seriously argued on behalf of the
Respondents
that those criteria are unreasonable or unlawful.
[13]
The relocation of residents into TRAs at Delft and other areas on the
N2 Gateway that may be made available is therefore an indispensable
requirement of the redevelopment of Joe Slovo in accordance with the
N2 Gateway housing project. Discussions with the residents have
yielded limited success on voluntary relocation and since the
formation of the Task Team there is a clear indication that some
residents
will not offer voluntary relocation without an order of
Court. The clearest example of the resistance to voluntary
relocations came
with a very disruptive protest in September 2007
resulting in property damage on Phase 2, the intimidation of
constructors on the
vacant site of Phase 2 and the disruption of the
N2 arterial. It was this protest in September that precipitated this
application
because it was the clearest indication of a breakdown in
attempt to achieve a voluntary relocation. The structured removal and
relocation
order on the terms sought by the Applicants is designed to
provide alternative suitable accommodation for the residents as
required
in terms of
Prevention
of Illegal Eviction and Unlawful Occupation of Land Act
19 of 1998 (PIE).
[14]
In terms of the order sought by the applicants, the removal of
residents will be coordinated and structured in such a manner
that
only a limited number of residents within a particular zone of Joe
Slovo would be moved at one time and relocated into TRAs
that are
available. The applicant’s intention is only to relocate persons if
they can provide alternative access to other housing
opportunities
and – unlike some cases which have been dealt with by the Courts
[
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA)] - no person so strategically relocated who
qualifies to obtain a house under the government housing program will
not be given
access to adequate housing, whether it is in the TRAs or
in the finished houses at Delft or elsewhere on the N2 Gateway.
Applicants
have taken great care to ensure that the implementation of
the N2 Gateway Housing Project is done in a manner that affirms the
human
dignity of the people concerned, but unless it is given vacant
land, an essential ingredient for the implementation of the housing
program is missing.
[15]
It is against this background of Joe Slovo informal settlement that
the entire N2 Gateway Project must be assessed.
Reasons
for and relief sought
[16]
The relief sought by the applicants which includes periodic reporting
to the Court on the progress of relocation to adequate
shelter in the
TRAs is a novel one, but certainly demonstrates that the State has
become more sensitized to the constitutional values
underpinning any
development project. The court was assured that no one person
relocated to any area on the N2 Gateway Project would
be rendered
homeless or without adequate access to shelter and such assurance was
found in the relocation schedule provided to the
court. I deal with
this further on in the judgment suffice to point out that the relief
sought in this application was crafted with
due regard to the basic
constitutional obligations on the State to affirm the dignity of
those it sought to relocate in order to
implement the goals of the
national housing policy. The application was brought on an urgent
basis which urgency was challenged by
the Respondents. I am persuaded
about the urgency of the matter. Firstly, because of the eruption of
violence orchestrated to bring
any voluntary relocation efforts to an
end, and secondly because the housing crisis in South Africa remains
one of urgency to resolve
so that the people may live in dignity and
the security of homes. In this case, and notwithstanding extensive
efforts over a protracted
period of time to persuade the residents of
Joe Slovo to cooperate with an orderly move to the housing provided,
these efforts have
been unsuccessful. On Monday 10 September 2007
tensions in Joe Slovo regarding the proposed move boiled over,
resulting in an intolerable
situation of violence, damage to property
and the blockading of the major arterial road into the city of Cape
Town, the N2, by those
of the Respondents opposed to the project.
This event led to this application as both urgent and inevitable.
[17]
This is therefore an urgent application for an order for the orderly
relocation of the Respondents, with observance of the requirements
of
PIE. Due to the scale involved in granting the relief, the
application is for an eviction order, structured over a period of
time,
with provision made for Applicants to report back to this Court
as to the progress of the matter and the implementation of the orders
granted. This is not a normal eviction application. In fact it is a
misnomer to refer to it as such. It is the application for a
strategic relocation of the residents of Joe Slovo to temporary
accommodation to enable the land to be rehabilitated in order that
proper housing would be built for the benefit of the people living in
such conditions. Furthermore, this application is also nothing
close
to what was done under the previous Apartheid-regime whereby Black
people were forcibly moved from their traditional land so
that the
land would be developed for the benefit of and occupation by other
race groups.
Notice
Application (Section 5 of
Prevention
of Illegal Eviction From and Unlawful Occupation of Land Act
19 of 1998
)
[18]
The Applicants brought an application to this Court on 19 September
2007 for an order in terms of which the applicants would
be allowed
to dispense with the forms and service provided by the Uniform Rules
of the High Court, and entertaining this matter as
one of urgency in
terms of Rule 6(12), and in accordance with the provisions of Section
5 of PIE. Such order was made by this Court
on 20 September 2007,
authorising the applicants to give notice to Respondents in specified
languages and in a manner that would
allow for proper service of the
notice. On the day of the hearing more than 2000 people regarded as
occupants of Joe Slovo informal
settlement attended the court
proceedings. Due to the limited space of the court room and the large
crowd of interested persons in
this matter, additional arrangements
were made to set up a loud speaker system outside the court building
to enable those who could
not make it to the actual court room to be
accommodated and to hear the court proceedings.
[19]
It is clear that the order of court of 20 September 2007 was
substantially complied with. How this order was effected may be
seen
from the Affidavit of Service, deposed to by Lister Gcinikaya Nuku,
the applicants’ attorney of record. According to Mr Nuku’s
affidavit the order caused approximately 5000 copies of the notice in
the various languages to be made. Arrangements for service
on the
Second and Third Respondents had been made, as well as service on E
Moosa, Waglay & Petersen, a firm of attorneys of Klipfontein
Road, Rondebosch, Cape Town. There were also arrangements made to
effect service by the offices of the Sheriff, Goodwood, in whose
jurisdiction the Joe Slovo informal settlement is situated. Also
copies of the notice were delivered to the South African Police
Services, Langa Township.
[20]
In order to serve the papers as best as would be possible additional
arrangements were made to ask the community leaders of Joe
Slovo to
distribute the notices informally. Various methods were used to
effect service of the notice. The order of court relating
to service
and eviction notices was therefore substantially complied with. It is
also clear from the attendance of the occupants,
more than 2000
occupants of Joe Slovo were present outside and some in the court
building on each court day, from the day that the
order with regard
to the manner of effecting notice of the application was granted up
until the last court day of 13 December 2007.
It is my judgment that
no one can seriously contend that he/she was not aware of the
eviction notices. That much is clear from the
aforesaid.
Subsequent
Developments
[21]
Additional arrangements were made to assist those Respondents who
wanted to deliver notices of opposition. Respondents filed
in excess
of 2000 notices. In his affidavit Mr. Nuku stated that he became
aware of the fact that many of the Respondents wanted
to file notices
of opposition at his offices on 25 September 2007, and due to the
logistics of serving and helping such a large group
of persons as
well as the need to file the notices within normal court hours,
arrangements were made in order for the Respondents
to serve and file
such notices from the steps of the Cape High Court. The large number
of persons wanting to serve and file notices
necessitated the
blocking off of a portion of Keerom Street in front of the High Court
building as well as the deployment of a large
number of police
officers. Arrangements were made with the administration personnel at
the High Court for the filing room to remain
open until such time as
all notices of opposition could be filed. The Cape High Court staff
co-operated in this regard. Arrangements
were also made to provide
the Respondents with free transportation to and from Cape Town. These
arrangements were made to facilitate
their ability to serve and file
the notices, as well as to facilitate their court presence at all the
remaining court dates.
[22]
Pursuant to the order of court of 20 September 2007 the court
reconvened on 4 October 2007. On this occasion the Respondents
were
legally represented and indicated that they were represented in two
groups as already indicated above. During this court hearing
an order
was essentially made by agreement between the parties to postpone the
proceedings for hearing until 12 December 2007. The
order by
agreement also made provision for the filing of Court Papers –
answering and replying affidavits and Heads of argument.
Proceedings
on 12 DECEMBER 2007
[23]
Respondents brought a counter Interlocutory application for the
review and setting aside of the Land Availability Agreement(s).
They
contended that they were entitled to raise a collateral challenge to:
the validity of the land availability agreement between
the MEC and
the City of Cape Town; the validity of the land availability
agreement between the MEC and Thubelisha Homes; the validity
of the
agreement between the First Applicant and Firstrand Bank Ltd; and the
decision of the Applicants to seek the eviction of the
Respondents
from the land. The interlocutory counter application seems to have
been designed to result in the postponement of the
main application,
and, properly conceived, such a result was possible. I could not
countenance an application which would result
in a postponement in
which the housing project would be stalled with the attendant delays
in the provision of decent housing for
the poor people. Even if I
were to hold that the review application was good, such a finding
would simply be corrected by the authorities
by making the necessary
adjustments to the documents on which this housing project was
constructed.
[24]
The main argument advanced by Mr. Budlender on behalf of the Task
Team representing the Respondents, was that for a section 5
PIE
application the applicant must be the owner or the person in control
of the premises. It was also contended that some statutory
regulations were not complied with in order to effect a valid
transfer of the property. This was based on the proposition that the
underlying contracts and agreements were contrary to the N2 Gateway
Housing Project since they introduced bonded houses as opposed
to
BNGs – Breaking New Ground or free houses. Furthermore, that the
transfer of land by the Second Applicant to the Third Applicant
was
contrary to the provisions of the
Local
Government: Municipal Finance Management Act
56
of 2003
and therefore, so ran the argument, that the applicants did
not have standing to bring the application for eviction of
Respondents
since none were either owners of property or persons in
charge of the land as required under PIE. Furthermore, he argued that
the
Respondents had a legitimate expectation regarding the agreement
that 70% of the houses built in Joe Slovo would be allocated to
the
existing occupants and the remaining 30% would go to the
‘Backyarders’. The legitimate expectation, he argued, arose from
promises and undertakings made by representatives of the City Council
at various meetings convened to deal with problems and challenges
facing the Joe Slovo residents. (This along with multiple averments
in the court papers of meetings and/or consultations that were
held
with residents of Joe Slovo indicates that there was a sufficient
amount of engagements between the applicants and the respondents
regarding this matter. As such this will suffice and be in line with
the recent, as yet unreported, Constitutional Court judgment
of
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg, Rand Properties (Pty) Ltd, Minister
of Trade
and Industry, and the President of the Republic of South Africa with
the Centre on Housing Rights and Evictions and the
Community Law
Centre, University of the Western Cape as amici curiae
CCT
24/07
[2008] ZACC 1
as given on 19 February 2008. See paragraphs [10]
to [23], with specific reference to paragraphs [16], [22] and [23].)
In amplification
of his argument, Mr. Budlender submitted that the
70%:30% ratio would not be adhered to due to the problem already
experienced with
regard to Phase 1 already completed. It is common
cause that Phase 1 consists of rented flats and Thubelisha Homes
therefore acted
for an unauthorised purpose. Therefore Mr. Budlender
sought an order that 70% of the houses in Joe Slovo should be
allocated to Joe
Slovo residents. Such an order was, however, not
necessary since none of the respondents sought to review the
decisions made in relation
to the allocation of Phase 1.
[25]
Counsel on behalf of Second Applicant, Mr. Donen, SC, contended that
the Respondents seek to review three contracts which do
not
constitute administrative action, and for that reason are not
susceptible to judicial review. Furthermore, the contracts are
not
the outcome of decisions, but of a Memorandum of Understanding
[annexure “XS18” to the founding affidavit of Prince Sigcawu]
that was concluded between the three spheres of government. This
primary agreement regulating the state of affairs in respect of
certain key elements regarding the N2 Housing Gateway Project would
remain intact even if the agreements are susceptible to being
set
aside.
[26]
The Court gave a ruling dismissing the Interlocutory Application. No
order was made regarding costs. There were many reasons
for this
order. Firstly, it was not disputed that the Second and Third
Applicants have
locus
standi
.
Therefore even if the court were to find that the First Applicant has
no
locus
standi
,
that would not dispose of the matter as Second and Third Applicants
certainly have
locus
standi
.
Secondly, the request for review was in essence a request for a
review of contracts, the Land Availability Agreement(s). A contract
cannot in itself be regarded as an administrative action which could
be up for review. Its very nature does not allow for a contract
to be
reviewed, especially not by someone who is not even a party to the
contract. Thirdly, there was an undue delay in bringing
the review
application. In March 2006 Thubelisha Homes became a known presence
in Joe Slovo informal settlement. As can be seen from
the affidavit
deposed to by Bernard Gutman, the Respondents raised concerns about
pressure on them to move to Delft. Some occupants
moved voluntarily
as early as August 2006. There was evidence that there were some Joe
Slovo residents who visited the offices of
E Moosa, Waglay &
Petersen to obtain legal advice. This indicates that they were aware
that an eviction was possible and/or imminent.
By that time some
other occupants moved voluntarily to the Temporary Relocation Areas
(Hereinafter referred to as TRAs) housing,
which made enough space
available required for the development of Phase 1.
[27]
In
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) the Supreme Court of Appeal held that there are
two ways in terms of which a party may challenge the validity of
administrative
action in proceedings which have been brought against
it:
-
In certain cases, a collateral challenge is permitted. In such a
case the affected party challenges in those proceedings the validity
of the action which has been taken. This is done without bringing
review proceedings;
-
In other cases the party challenging the validity of the
administrative action is required to bring review proceedings to
have
the action set aside. (At paragraphs [35] and [36] of the
judgment)
For
the reasons given above, in my view the principles of law laid down
by the SCA in the
Oudekraal
Estates
-case
do not apply
in
casu
.
[28]
Furthermore the Applicants brought an application to declare the
counter-application proceedings launched by First Respondents
on the
21 November 2007 to be an irregular proceeding in terms of
Rule 30.
The
Rule 30
Application was granted by the Court. No order as to
costs was made. Clearly the Interlocutory application was an
irregular step
in terms of Court Rules.
Main
Application
[29]
The Applicants allege that the persons who occupy Joe Slovo do so
without the consent of the City which is the owner of the property
and without the consent of Thubelisha Homes, a party in charge of the
land in question. Furthermore, notwithstanding that there have
been
extensive efforts over a protracted period of time to persuade the
residents of Joe Slovo to co-operate with an orderly move
to housing
provided, these efforts have been unsuccessful. And, moreover, that
there has been compliance with the requisites for
the grant of an
eviction order in terms of sections 5 and 6 of PIE.
[30]
The intervention of this Court has been sought in order to reconcile
the duty of the Second and Third Applicants to achieve the
progressive realisation of the constitutional right of access to
adequate housing (through the relocation of the residents in a manner
which is consistent with a valid national housing policy) with the
right of the residents not to be evicted from their homes without
an
Order of Court (made after considering all the relevant
circumstances). Applicants contend that despite meaningful
consultation,
consensus as to relocation cannot be reached between
the spheres of the government responsible for housing and the
residents of Joe
Slovo informal settlement.
[31]
The Applicants have instituted these proceedings on two bases: a)
section 5 of PIE; and b) section 6 of PIE. Section 5 of PIE
provides
as follows:
“(1)
Notwithstanding the provisions of section 4, 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, and the court may
grant such an
order if it is satisfied that-
(a) there
is a real and imminent danger of substantial injury or damage to
any person or property if the unlawful occupier
is not forthwith
evicted from the land;
(b) the
likely hardship to the owner or any other affected person if an
order for eviction is not granted, exceeds the
likely hardship to
the unlawful occupier against whom the order is sought, if an
order for eviction is granted; and
(c) there
is no other effective remedy available.
(2)
Before the hearing of the proceedings contemplated in subsection
(1), the court must give written and effective notice
of the
intention of the owner or person in charge to obtain an order for
eviction of the unlawful occupier to the unlawful
occupier and
the municipality in whose area of jurisdiction the land is
situated.
(3)
The notice of proceedings contemplated in subsection (2) must-
(a) state
that proceedings will be instituted in terms of subsection (1)
for an order for the eviction of the unlawful occupier;
(b) indicate
on what date and at what time the court will hear the
proceedings;
(c) set
out the grounds for the proposed eviction; and
(d) state
that the unlawful occupier is entitled to appear before the court
and defend the case and, where necessary, has
the right to apply
for legal aid.”
[32]
The Respondents contended that the Applicants misconceived their
remedy in seeking relief in terms of section 5 of PIE. The essence
of
their primary objections is that section 5 makes provision for urgent
interim relief pending the final determination of a party’s
rights
under sections 4 and 6 of PIE. Therefore the Applicants should have
sought a final eviction order on the basis of sections
4 and 6 of
PIE. This argument is untenable. The applicants clearly complied with
the procedure laid down in Section 5 of PIE. I have
already found
that valid and proper eviction notices were issued and served on the
respondents. Furthermore, the expedited hearing
of this matter was
agreed to between the parties in terms of the order by agreement
referred to above. This argument does not merit
further attention. It
is simply devoid of substance.
[33]
Section 6 of PIE regulates the eviction at the instance of an organ
of state. It provides as follows:
“(1)
An organ of state may institute proceedings for the eviction of an
unlawful occupier from land which falls within its area
of
jurisdiction, except where the unlawful occupier is a mortgagor
and the land in question is sold in a sale in execution
pursuant
to a mortgage, and the court may grant such an order if it is
just and equitable to do so, after considering all the
relevant
circumstances, and if-
(a) the
consent of that organ of state is required for the erection of a
building or structure on that land or for the
occupation of the
land, and the unlawful occupier is occupying a building or
structure on that land without such consent
having been obtained;
or
(b) it
is in the public interest to grant such an order.
(2)
For the purposes of this section, 'public interest' includes the
interest of the health and safety of those occupying the
land and
the public in general.
(3)
In deciding whether it is just and equitable to grant an order for
eviction, the court must have regard to-
(a) the
circumstances under which the unlawful occupier occupied the
land and erected the building or structure;
(b) the
period the unlawful occupier and his or her family have resided
on the land in question; and
(c) the
availability to the unlawful occupier of suitable alternative
accommodation or land.
(4)
An organ of state contemplated in subsection (1) may, before
instituting such proceedings, give not less than 14 days'
written
notice to the owner or person in charge of the land to institute
proceedings for the eviction of the unlawful occupier.
(5)
If an organ of state gives the owner or person in charge of land
notice in terms of subsection (4) to institute proceedings
for
eviction, and the owner or person in charge fails to do so within
the period stipulated in the notice, the court may, at
the request
of the organ of state, order the owner or person in charge of the
land to pay the costs of the proceedings
contemplated in
subsection (1).
(6)
The procedures set out in section 4 apply, with the necessary
changes, to any proceedings in terms of subsection (1).”
[34]
It is clear that section 6 applies only to an “Organ of State”.
Section
239 of the Constitution defines an “organ of state” as follows:
“(a)
any department of state or administration in the national,
provincial or local sphere of government; or
(b)
any other functionary or institution-
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms
of any legislation,
But
does not include a court or a judicial officer.”
[35]
As already stated these proceedings were brought by Thubelisha Homes
being the First Applicant, the National Minister of Housing
as Second
Applicant, and the MEC for Housing, Western Cape, the Third
Applicant. The Respondents contended that none of the Applicants
met
the requirements of section 6 of PIE. I agree with Applicant’s
Counsel that there is no merit to any of the contentions raised
by
the Respondents regarding section 6 of PIE. The National Minister
(who falls within the definition of an organ of state) has been
cited
as a co-Applicant and for that reason alone meets the requirements of
sections 6(1) in respect of the institution of these
proceedings. In
any event the National Minister has deposed to an affidavit in which
she states that she is fully aware of the application
being made by
the First Applicant for the relief set forth in the Notice of Motion,
and that in her capacity as National Minister
of Housing she fully
aligns herself with the relief sought, and refers to the founding
affidavit deposed to by Prince Sigcawu. Furthermore,
it is
self-evident and indeed a fact (and one which the Court can take
judicial notice of) that the National Minister of Housing’s
jurisdiction extends to a national level, within which the Joe Slovo
informal settlement is included.
[36]
Accordingly, I agree with the applicants’ submission that the first
requirement of section 6 of PIE has been complied with.
Thubelisha
Homes is “an organ of state” within the meaning of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA), or
alternatively a
juristic person other than an organ of state exercising a public
power or performing a public function in terms of
the empowering
provision. It is not without significance that both PAJA and PIE
define an “organ of state” in section 1 of each
of these Acts
with reference to section 239 of the Constitution.
[37]
One of the pre-requisites for the application of PIE is that the
person sought to be evicted must be an “unlawful occupier”
in
terms of section 1. The residents of Joe Slovo contended that they
are not unlawful occupiers as defined in PIE in that they have
the
express, alternatively tacit consent of the City to occupy the land
and their structures. In support thereof, they contended
that they
have been issued with “red cards” which entitled them to remain
in undisturbed possession of their houses, a fact which
they averred
was given further credence by the City’s provision of certain
services to them. Ms Mfeketo, the then Mayor of Cape
Town, disputed
such allegations. She stated that services were provided for “basic
humanitarian reasons” and should not be construed
as consent by the
City or granting the residents any enforceable right to remain in the
area. It was always intended that informal
settlements in general
would be upgraded, moved or redeveloped in conformity with
government’s constitutional imperative to provide
access to
adequate housing on a progressive basis.
[38]
Thus the respondents have failed to demonstrate any basis for having
obtained consent to occupy the property in question. In
any event and
to the extent that the provision of services may have been construed
as such consent (which the Applicants do not accept),
it was
submitted that by virtue of the institution of these proceedings the
residents no longer have such consent. Not only did the
residents of
Joe Slovo not have a right in law to occupy the said properties, but
insofar as they constructed their informal structures
on such
property they did so in contravention of the law. All informal
dwellings at Joe Slovo are “illegal structures and are built
in
substantial non-compliance with building laws and related
regulations”. In answer thereto, Sopaqa stated on oath that he had
no knowledge of the building laws and regulations and accordingly
denied the averment that informal dwellings were built in violation
of building regulations. However, the chairperson of one of the
committees representing the residents (Penze) stated that he
“confirms”
that no building plans were submitted for the erection
of the dwellings but that notwithstanding contended that their
structures
are not illegal because government provided the residents
with the land. This argument is, of course, nonsensical. It cannot
seriously
be argued that the shacks complied with building
regulations. The mere fact that Joe Slovo land is approximately 30
hectares and
has about 20 000 residents bears testimony to the fact
that the informal dwellings in question do not comply with the
building regulations.
The
South African Housing Crisis and PIE
[39]
The nature of the South African housing crisis is recorded in
numerous cases and is a well-known historical fact. However it
is
necessary background to appreciate and understand the nature of the
constitutional obligations imposed on the State in terms of
Section
26 of the Constitution. The problem of access to adequate housing in
South Africa is acute and critical, and arises largely
as a direct
consequence of the apartheid land and housing policies and planning.
The democratic state accordingly inherited a very
complex and
extensive housing problem. This necessitated the drafting of
legislative measures and policy frameworks on the provision
of
housing. The recognition of the State’s obligation to provide
access to adequate housing in section 26 of the Constitution must
be
understood from these basic historical facts. The right to adequate
housing as one of the most important of all basic human rights
is
recognised in a number of international human rights instruments and
treaties. [Universal Declaration of Human Rights, 1948, Art
25;
European Convention on Human Rights and Fundamental Freedoms, 1950,
Art 8(1)]
[40]
The law envisaged in section 26(3) of the Constitution is the PIE Act
and in it are procedural requirements that act as safeguards
against
arbitrary evictions. A particular striking feature of this
application is that, firstly, it seeks the eviction of residents
only
in circumstances where it is able to provide alternative
accommodation in the TRAs. Secondly, it seeks to evict residents in
order to provide them with access to adequate accommodation. It
follows, therefore, that the strategic removal of the residents of
Joe Slovo will not result in homelessness. It is undoubtedly for the
benefit of the residents of the informal settlement and in line
with
the constitutional values. The protection against arbitrary evictions
finds expression in sections 4, 5 and 6 of PIE. These
circumstances
are, in effect, jurisdictional prerequisites for the consideration of
the merits of an eviction application. The key
requirement for a
successful eviction application is that the residents are notified
before a Court can grant an eviction order.
The Applicants have
complied with the notice requirement of section 5. The effect of the
section 5 notice was that it elicited over
2000 individual notices of
intention to defend and a subsequent arrangement regarding legal
representation that would cover all the
residents affected by the
relief sought.
[41]
The substantive requirements for an eviction under PIE Act are all
based on the unlawfulness of the occupation. It follows therefore
that where a person resides lawfully, no eviction order can
successfully be obtained under PIE. The residents of Joe Slovo are
unlawful
occupants as envisaged in the PIE Act. They occupy the land
without the consent of the City or the person in charge of the land.
I have already made a positive finding to that effect above. The
“land” referred to in the Section 2(1) of ESTA is essentially
rural land which has not been proclaimed as a township. PIE applies
to persons who are occupying land unlawfully, i.e. “
unlawful
occupiers
”.
They are those “
who
have for historic or other reasons and without the permission of the
owner moved onto an owner’s land and created an informal
settlement.
”
As we shall see below, the Respondents have failed to establish any
rights under IPILRA or ESTA which entitle them to frustrate
a lawful
housing project designed to improve the conditions of informal
settlements. The Joe Slovo residents fall into the class
of unlawful
occupiers in terms of the PIE Act.
Breaking
New Ground Policy and the N2 Gateway Project
[42]
The
Housing
Act
107 of 1997
is one of the central pieces of housing legislation that
provides for the State to give effect to its obligations under the
Constitution
on the right of access to adequate housing. The N2
Gateway Housing Project is a project as envisaged in the definition
of national
housing programme in the Act and it is critical to assess
it against the principles set out in the
Housing Act. The
government’s “Breaking New Ground: A Comprehensive Plan for the
Development of Sustainable Human Settlements” (August 2004)
is the
central policy guiding the implementation of the N2 Gateway project.
The respondents do not contend that the national housing
policy is
unreasonable. They also do not contend that the N2 Gateway Housing
Project is unreasonable or that it is being implemented
unreasonably.
[43]
The national housing policy follows the guidance of the
Constitutional Court case of
Government
of the RSA and Others v Grootboom and Others
2001
(1) SA 46
(CC), which I extensively quote below:
“
[35]
…housing entails more than bricks and mortar. It requires
available land, appropriate services such as the provision of
water and the removal of sewage and the financing of all of
these, including the building of the house itself. For a person
to
have access to adequate housing all of these conditions need to
be met: there must be land, there must be services, there
must
be a dwelling. Access to land for the purpose of housing is
therefore included in the right of access to adequate housing
in
s 26.
A right of access to adequate housing also suggests that it
is not only the State who is responsible for the provision of
houses,
but that other agents within our society, including
individuals themselves, must be enabled by legislative and other
measures
to provide housing. The State must create the
conditions for access to adequate housing for people at all
economic levels
of our society. State policy dealing with housing
must therefore take account of different economic levels in our
society.
[36]
In this regard, there is a difference between the position of
those who can afford to pay for housing, even if it is only
basic
though adequate housing, and those who cannot. For those who can
afford to pay for adequate housing, the State's primary
obligation
lies in unlocking the system, providing access to housing stock
and a legislative framework to facilitate self-built
houses
through planning laws and access to finance. Issues of
development and social welfare are raised in respect of those
who cannot afford to provide themselves with housing. State
policy needs to address both these groups. The poor are
particularly
vulnerable and their needs require special
attention. It is in this context that the relationship between
ss
26
and
27
and the other socio-economic rights is most apparent. If
under
s 27
the State has in place programs to provide adequate
social assistance to those who are otherwise unable to support
themselves
and their dependants, that would be relevant to the
State's obligations in respect of other socio-economic rights.
[37]
The State's obligation to provide access to adequate housing
depends on context, and may differ from province to province,
from
city to city, from rural to urban areas and from person to person.
Some may need access to land and no more; some may
need access to
land and building materials; some may need access to finance; some
may need access to services such as water,
sewage, electricity and
roads. What might be appropriate in a rural area where people live
together in communities engaging
in subsistence farming may not
be appropriate in an urban area where people are looking for
employment and a place to live.
[38]
Subsection (2) speaks to the positive obligation imposed upon the
State. It requires the State to devise a comprehensive
and
workable plan to meet its obligations in terms of the subsection.
However ss (2) also makes it clear that the obligation
imposed
upon the State is not an absolute or unqualified one. The extent
of the State's obligation is defined by three key
elements that
are considered separately: (a) the obligation to 'take reasonable
legislative and other measures'; (b) 'to achieve
the progressive
realisation' of the right; and (c) 'within available resources'
.
“
Judicial
Powers to Interfere with the Project
[44]
The Court in exercising its powers to decide whether or not to grant
the relief sought, taking all factors into account, must
also be
guided by the principle of the separation of powers. The N2 Gateway
Housing Project is a pilot project and in the nature
will not have
all the attributes of perfection. It will be adjusted as the
circumstances permit and be refined as it goes along.
The basics of a
reasonable housing project however remain intact. In that regard it
is important to heed the words of the Constitutional
Court. In
dealing with the State’s duty under the Constitution to give effect
to health rights, in
Soobramoney
v Minister of Health, Kwazulu-Natal
[1997] ZACC 17
;
1998
(1) SA 765
(CC) para [42] Madala J stated:
“
[42]
The Constitution is forward-looking and guarantees to every citizen
fundamental rights in such a manner that the ordinary
person-in-the-street,
who is aware of these guarantees, immediately
claims them without further ado - and assumes that every right so
guaranteed is available
to him or her on demand. Some rights in the
Constitution are the ideal and something to be strived for. They
amount to a promise,
in some cases, and an indication of what a
democratic society aiming to salvage lost dignity, freedom and
equality should embark
upon. They are values which the Constitution
seeks to provide, nurture and protect for a future South Africa.
“
And
further
“[43]
…In its language, the Constitution accepts that it cannot solve
all of our society's woes overnight, but must go on trying
to
resolve these problems. One of the limiting factors to the
attainment of the Constitution's guarantees is that of limited or
scarce resources…”
[45]
It is clear from the jurisprudence and leading case law that the
Courts correctly adopt a cautious approach when assessing
socio-economic
policies because in the first place they are
ill-equipped to make choices on which policies the executive must
follow; secondly,
courts are obliged to ensure that there is
separation of powers and will not unduly interfere with the choices
of the executive as
long as they pass the rationality or
reasonableness test; and finally, courts are obliged to ensure that
institutions best equipped
to make the policy choices are not
paralyzed by indiscriminant challenges to government socio-economic
policies. (See also
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) where the court decided that courts are
ill-equipped to adjudicate upon socio-economic policies).
[46]
Furthermore, in the
Grootboom
-case
the following was stated at paragraph 6:
“
[6]
The cause of the acute housing shortage lies in apartheid. A central
feature of that policy was a system of influx control that
sought to
limit African occupation of urban areas. Influx control was
rigorously
enforced in the Western Cape, where government policy favoured the
exclusion of African people in order to accord preference to the
coloured community: a policy adopted in 1954 and referred to as the
'coloured labour preference policy'. In consequence, the provision
of
family housing for African people in the Cape Peninsula was frozen in
1962. This freeze was extended to other urban areas in the
Western
Cape in 1968. Despite the harsh application of influx control in the
Western Cape, African people continued to move to the
area in search
of jobs. Colonial dispossession and a rigidly enforced racial
distribution of land in the rural areas had dislocated
the rural
economy and rendered sustainable and independent African farming
increasingly precarious. Given the absence of formal housing,
large
numbers of people moved into informal settlements throughout the Cape
Peninsula. The cycle of the apartheid era, therefore,
was one of
untenable restrictions on the movement of African people into urban
areas, the inexorable tide of the rural poor to the
cities,
inadequate housing, resultant overcrowding, mushrooming squatter
settlements, constant harassment by officials and intermittent
forced
removals. The legacy of influx control in the Western Cape is the
acute housing shortage that exists there now. Although the
precise
extent is uncertain, the shortage stood at more than 100 000 units in
the Cape Metro at the time of the inception of the
Constitution of
the Republic of South Africa Act 200 of 1993 (interim Constitution)
in 1994. Hundreds of thousands of people in need
of housing occupied
rudimentary informal settlements providing for minimal shelter, but
little else
.”
[47]
Government at every level and in varying degrees is constitutionally
obliged to realise the right of every person to have access
to
adequate housing. Due to limited resources and the large number of
persons in need of housing, this obligation can only be realised
progressively. It is beyond dispute that there is a crisis with
formal housing in South Africa, a fact to which this court cannot
turn a blind eye.
The
Constitution of the Republic of South Africa, 1996
[48]
The advent of the Constitution ushered with it new and very demanding
obligations for the constitutional state to recognise the
socio-political and economic landscape of the country. The preamble
to the Constitution clearly indicates the broad objectives of
the
constitutional state, which is to “
improve
the quality of life of all citizens and to free the potential of each
person
”.
The State is shouldered with demanding constitutional obligations to
“
heal
the divisions of the past and establish a society based on democratic
values, social justice and fundamental human rights; lay
the
foundations for a democratic and open society in which government is
based on the will of the people and every citizen is equally
protected by law…and build a united and democratic South Africa
able to take its place as a sovereign state in the family of
nations
”.
The use and reference to the preamble in the interpretation of state
obligations under the Constitution has been accepted as
important not
just to create an atmosphere, but to understand the nature and extent
of the obligation.
[49]
Section 26 of the Constitution reads 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
.”
[50]
In order to appreciate the policy underpinning the N2 Gateway Housing
Project and the relief sought by the Applicants, it is
important to
assess the ambit of the section 26 right. Section 26 provides
everyone with the right of access to adequate housing.
The State has
an obligation progressively to realise the right of adequate housing
by taking meaningful steps or measures towards
the goal of achieving
the full enjoyment of housing rights for all. The Constitutional
Court stated this duty to take measures as
follows (
Government
of the RSA and Others v Grootboom and Others
2001
(1) SA 46
(CC) at para 42B-43E):
“
[42]
The State is required to take reasonable legislative and other
measures. Legislative measures by themselves are not likely to
constitute constitutional compliance. Mere legislation is not enough.
The State is obliged to act to achieve the intended result,
and the
legislative measures will invariably have to be supported by
appropriate, well-directed policies and programs implemented
by the
Executive. These policies and programs must be reasonable both in
their conception and their implementation. The formulation
of a
program is only the first stage in meeting the State's obligations.
The program must also be reasonably implemented. An otherwise
reasonable program that is not implemented reasonably will not
constitute compliance with the State's obligations.
[43]
In determining whether a set of measures is reasonable, it will be
necessary to consider housing problems in their social,
economic
and historical context and to consider the capacity of
institutions responsible for implementing the program. The
program must be balanced and flexible and make appropriate
provision for attention to housing crises and to short, medium

and long term needs. A program that excludes a significant
segment of society cannot be said to be reasonable. Conditions

do not remain static and therefore the program will require
continuous review.
“
[51]
The Constitutional Court went further to hold that the section 26(2)
speaks to the positive obligation imposed upon the State.
It requires
the State to devise a comprehensive policy and workable plan to meet
its obligations in terms of the constitution. Section
26(3) requires
the Court to order an eviction “after considering all the relevant
circumstances”. The PIE Act describes the circumstances
which will
be “relevant” where that Act is applicable. The overarching test
is whether the eviction will be “just and equitable”
(sections
4(6) and (7), and 6(1) of PIE). In essence this amounts to asking
whether the eviction will be fair. The Constitutional
Court put it
succinctly in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC):
“
[28]
Section 6(3) states that the availability of a suitable alternative
place to go to is something to which regard must be had,
not an
inflexible requirement. There is therefore no unqualified
constitutional duty on local authorities to ensure that in no
circumstances
should a home be destroyed unless alternative
accommodation or land is made available. In general terms, however, a
court should
be reluctant to grant an eviction against relatively
settled occupiers unless it is satisfied that a reasonable
alternative is available,
even if only as an interim measure pending
ultimate access to housing in the formal housing programme…
[37]
Thus, PIE expressly requires the court to infuse elements of grace
and compassion into the formal structures of the law. It is
called
upon to balance competing interests in a principled way and to
promote the constitutional vision of a caring society based
on good
neighbourliness and shared concern. The Constitution and PIE confirm
that we are not islands unto ourselves. The spirit of
ubuntu, part of
the deep cultural heritage of the majority of the population,
suffuses the whole constitutional order. It combines
individual
rights with a communitarian philosophy. It is a unifying motive of
the Bill of Rights, which is nothing if not a structured,
institutionalised and operational declaration in our evolving new
society of the need for human interdependence, respect and concern.
“
[52]
Professor Van der Walt (AJ Van der Walt Constitutional Property Law p
426) sums up the requirements of section 26(3), as set
out in the
Port
Elizabeth Municipality-
judgment,
as follows:
“
…in
line with section 26(3), the order can only be granted if eviction
is justifiable in view of all the circumstances. Secondly,
consideration of the order in view of the circumstances amounts to
a balancing exercise…Thirdly, this balancing exercise takes
place
against the background of the history of eviction in the apartheid
era and its lasting and enduring effects on the distribution
of land
and access to housing today.
”
[53]
Another important aspect of the national housing obligation on the
State to consider is that which was raised in the recent Supreme
Court of Appeal judgment of
City
of Johannesburg v Rand Properties (Pty) Ltd and Others
2007 (6) SA 417.
Harms ADP at paragraph 44 stated as follows:
‘…the
Constitution does not give a person a right to housing at State
expense at a locality of that person’s choice. Obviously,
the
State would be failing in its duty if it were to ignore or fail to
give due regard to the relationship between location of
residence
and the place where persons earn or try to earn their living…’
Furthermore,
he added:
‘Where
housing is to be provided for any particular economic group is a
matter that lies within the province of the policy- making
functions
of the city and I do not think a Court can usurp that function.’
[at paragraph 75 of the judgment]
Evidence
[54]
The evidence of Prince Sigcawu who deposed to the founding affidavit
was largely undisputed in so far as it relates to the N2
Gateway
Project and its rationale. His evidence was that informal settlements
must urgently be integrated into the broader urban
fabric to overcome
spatial, social and economic exclusion. The Department will
accordingly introduce a new informal settlement upgrading
instrument
to support the focused eradication of informal settlements. The new
human settlements plan adopts a phased in-situ upgrading
approach to
informal settlements. Thus the plan supports the eradication of
informal settlements through in-situ upgrading in desired
locations,
coupled with the relocation of households where development is not
possible or desirable. The upgrading process is not
prescriptive, but
rather supports a range of tenure options and housing typologies.
Where informal settlements are upgraded on well-located
land,
mechanisms will be introduced to optimise the locational value and
preference will generally be given to social housing (medium-density)
solutions. Upgrading projects will be implemented by municipalities
and will commence with nine pilot projects, one in each province
building up to full programme implementation status by 2007/8. In
addition, he testified that a joint programme by the National
Department,
the Western Cape Provincial Government and Cape Town
Metropolitan Council has already initiated the N2 upgrading project
from the
Airport to Cape Town, covering the informal settlement in
Gugulethu, Cross Roads, Khayelitsha and Langa as a lead pilot
project.
[55]
The attainment of the constitutional imperative to provide access to
adequate housing necessitated the formulation of a policy
which would
halt the growth of informal settlements, and where appropriate
upgrade existing informal settlements by the construction
of adequate
housing. The N2 Gateway Project is a joint initiative of all three
spheres of Government, namely the national Department
of Housing, the
provincial Department of Housing and Local Government and the City of
Cape Town. The scale of the project can only
be described as immense,
envisaging the provision of between 25 000 and 30 000 housing
opportunities.
[56]
Prince Sigcawu further testified that the end goal is to deliver
adequate housing to each household, and such houses are currently
being constructed at Delft, an area approximately 15 kilometres from
Joe Slovo. The houses in question are mostly semi-detached (two
to a
unit) and are in extent 40 square metres per house. They are of brick
and mortar construction on solid concrete foundations,
with a tiled
roof. The floor is a slab of concrete, with wooden doors. The roof is
insulated with a fire-resistant polystyrene product.
Furthermore, he
said, the houses comprise two separate bedrooms; a bathroom equipped
with a bath and toilet where there is room for
the installation of a
hand-basin; an open plan living area with a hand-basin near the door
- the intention is for this portion of
the living area to serve as a
kitchenette; the house has two doors (front and back) and windows in
each room. Furthermore, he said,
the house is fully serviced with
water-borne sewerage as well as running water and electricity
(pre-paid meters). The layout of the
houses is designed to ensure
that the area is not over-densified. The plot size for each house is
between 90 and 100 square metres.
A tarred road infrastructure is in
place connecting the area to the arterial roads. The aforesaid is
partially evident from a series
of photographs.
[57]
As regards Joe Slovo, the end goal is to construct such houses on the
area which currently comprises Joe Slovo. As this area
is currently
hopelessly too densely inhabited, it will not be possible to re-house
all the current occupants of Joe Slovo in the
same area. Completed
housing is transferred into the names of the beneficiaries at the
deeds office. The terms upon which the beneficiaries
acquire
ownership of the houses are the following:
The
house is provided free of charge if the income of a household is
below R1 500 per month. The cost is borne entirely by the State;
If
the income of the household falls between R1 501 and R3 500 per
month, the house is transferred to the beneficiary as against
a
once-off payment of R2 479.00;
In
approximately 80% of all cases, Respondents will qualify for one of
the above two. However, if the income of the household is
in excess
of R3 500 that household does not qualify for housing of this sort
(referred to as “BNG” housing) but will be expected
to buy other
housing on the open market. The N2 Gateway Project involves the
construction of such accommodation, which is referred
to as
“affordable housing” or “credit linked housing”. In this
regard, agreement has been reached with the Third Respondent
regarding their participation in the project. They take transfer of
the land and sell the houses to first-time owners at a price
which
is dependant upon the unit construction. There is a subsidy provided
by government to assist purchasers whose income falls
between R3 501
and R7 500 per month.
[58]
In order to achieve the goals described above, Applicants intend
using what they refer to as a “roll-over development” of
Joe
Slovo. Because of the dense population of the area, the absence of
services and infrastructure therefrom and because of the condition
of
the land itself, it is necessary to clear the area, rehabilitate the
ground, lay down services and infrastructure, and thereafter
to build
housing. The in-situ development is simply not feasible in Joe Slovo.
The area is too densely populated and there is woefully
too little
free space onto which to move occupants on a temporary basis. As a
simple example, there is no water-borne sewerage in
Joe Slovo, and it
is necessary – as part of the upgrading – to lay in a large
sewerage pipe over the length of the area. This
cannot be done until
the area is cleared and housing cannot be built until the sewer is in
place. By virtue of the foregoing, it
will be necessary to move
occupants to temporary accommodation, pending the construction of
permanent housing as discussed above.
[59]
Importantly, and while recognising the shortcomings of the TRAs,
Applicants averred that:
The
TRA is a marked improvement on the quality of accommodation at Joe
Slovo. Fire risks are all but eliminated (there have been
no fires
at all at TRA areas, whereas informal settlements are notoriously
plagued by runaway fires), services are provided with
obvious
positive consequence as regards health and the absence of diseases,
and the ground drains adequate whereas Joe Slovo is
characterised by
continual flooding during winter;
The
TRA itself, Applicants averred, qualifies as adequate housing (as
contemplated by the Constitution and as further dealt with
in the
Housing Act 107 of 1997
as amended) whereas the shacks at Joe Slovo
do not so qualify;
The
TRAs have a sound infrastructure, entirely lacking in Joe Slovo.
[60]
The provision of access to adequate housing (whether temporary or
permanent) cannot be viewed in a vacuum. Applicants are mindful
of
the disruptive effect on the lives of the persons moved, and the need
to provide related facilities (other than housing) to provide
continuity in the lives of those relocated. He added that via the
Department of Education, provision has been made for school buses
to
leave Delft and take children to and from existing schools,
principally in Langa. The transport is provided free of charge.
Provision
has also been made for schools to be set up and in the long
term residents will probably move their children to schools in Delft.
Furthermore, there is an established clinic in Delft and provision
has been made for the establishment of more. Pensioners are given
the
option of continuing to receive their pension payouts in Langa, or of
receiving their pension at established pay-points in Delft.
The
pay-points in Delft are open five days per month, in contrast to the
two days per month at most other pay-points. There is also
a police
station servicing the whole area. Second Respondent and various
provincial departments will provide sporting facilities
and public
amenities.
[61]
The evidence of Prince Sigcawu
in
this regard was by and large undisputed. There is no reason to reject
it. Therefore the court accepts that the TRAs in Delft are
far better
than the undesirable living conditions in the Joe Slovo informal
settlement. It is my view that in so far as the Delft
TRAs are
concerned, the State has certainly discharged its obligation to
provide access to adequate housing in terms of section 26
of the
Constitution. The contrary is untenable. (This is in line with the
recent, as yet unreported, Constitutional Court judgment
of
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg, Rand Properties (Pty) Ltd, Minister
of Trade
and Industry, and the President of the Republic of South Africa with
the Centre on Housing Rights and Evictions and the
Community Law
Centre, University of the Western Cape as amici curiae
CCT
24/07
[2008] ZACC 1
as given on 19 February 2008. Here the court
decided that while the City has obligations to eliminate unsafe and
unhealthy buildings,
its constitutional duty to provide access to
adequate housing means that potential homelessness must be
considered. See paragraphs
[44] and [46].)
Arguments
and Evaluation of Evidence
(i)
Locus standi of Thubelisha
[62]
The
locus
standi
of Thubelisha comes, in the first instance from its position as
implementing agent of the Project in terms of the Amendment to the
Memorandum of Understanding between the three spheres of government
read together with the land availability agreements. When the
N2
Gateway Project was conceived, it was appreciated from the outset
that it was an inter-governmental project which would involve
governmental cooperation across all three spheres of government.
Although it was a project of the national department of Second
Applicant,
by agreement between all parties Second Respondent was
initially the implementing agent in regard to the project, with the
necessary
rights being accorded to it by the other parties. This much
is evident from a memorandum of understanding of February 2005.
Second
Respondent’s role as implementing agent is recorded in
clause 4 thereof.
[63]
By February 2006, Second Applicant had become the de facto
implementing agent, the provisions of the above agreement
notwithstanding.
Circumstances had arisen which made it appropriate
for Second Applicant, Third Applicant, and Second Respondent to
appoint a project
manager as implementing agent, and for that project
manager to assume overall control of the project, removing
implementation obligations
from both Third Applicant and from Second
Respondent. A copy of the agreement “XS19” was annexed to court
papers and is dated
February 2006, and the following is important
regarding standing:
First
Applicant was duly appointed project manager in paragraph 2.1.1;
The
three tiers of government all undertook to conclude separate
agreements with First Applicant in the above regard;
First
Applicant is not a party to this agreement.
[64]
To the extent that the above agreement comprises a contract which
creates a benefit for a third party which is not a party to
the
agreement (being First Applicant), First Applicant recorded that it
had adopted the benefit conferred upon it, and had at all
times since
the conclusion of this agreement acted as implementing agent in
respect of the project. First Applicant had reached agreement
with
the three tiers of government regarding its role as implementing
agent. In February 2006, First Applicant concluded an agreement
with
Third Applicant (A copy thereof marked “XS20” annexed to court
papers). First Applicant came to be in dispute with Third
Applicant
regarding this contract. These disputes were resolved by the
conclusion of a subsequent agreement in May 2007. In February
2006,
First Applicant concluded an agreement with Second Respondent
(Annexed to court papers as “XS21”). In this agreement the
following is important to note: The preamble is reflective of the
change in implementing authority; Clause 3.3 mentions the conclusion
of land availability agreements as between Second Respondent and
Third Applicant, as also a broader assistance in handing over
responsibilities
to First Applicant; First Applicant’s role as
implementing agent is referred to in clause 4.1.
[65]
First Applicant had reached agreement with Second Applicant that it
is to proceed as implementing agent in terms of the above
two
agreements. The matter was taken further with the conclusion, in
March 2007, of a land availability agreement as between Third
Applicant and Second Respondent (Annexed to court papers as “XS23”).
The following appears therefrom: The “N2 Gateway Project”
is
defined such as to include Joe Slovo phase 2; The “properties”
are defined so as to include Joe Slovo informal settlement;
Clause 2
and 3 provide for Second Respondent to make the property (as defined)
available to Third Applicant for the development of
housing thereon;
Second Respondent granted Third Applicant the right to take
possession and occupation of the properties. Third Applicant
in turn
duly contracted with First Applicant in regard to this land. Pursuant
to all the foregoing, First Applicant took possession
of the land
comprising Joe Slovo, and intends carrying out its development rights
and responsibilities thereon. In the circumstances,
First Applicant
averred that it is the party which is “in charge” of the land as
contemplated by Section 5(1) of PIE and that
therefore it has
standing to move for the relief in the notice of motion. To the
extent that there may be any dispute in this regard,
First Applicant
averred in the alternative that Third Applicant has such standing. I
have already determined above that anyone of
the three applicants has
locus
standi
.
I am also of the view that the Respondents’ argument relating to
standing is not borne out by evidence.
(ii)
Availability of alternative accommodation
[66]
In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) the Constitutional Court observed that section
6(3) of PIE states that the availability of a suitable alternative
place to go
to is something to which regard must be had. It is not an
inflexible requirement. There is therefore no unqualified
constitutional
duty on local authorities to ensure that in no
circumstances should a home be destroyed unless alternative
accommodation or land
is made available. Generally a court should be
reluctant to grant an eviction against relatively settled occupiers
unless it is satisfied
that a reasonable alternative is available,
even if only as an interim measure pending ultimate access to housing
in the formal housing
programme.
[67]
In the same matter the Court observed that the availability of
suitable alternative accommodation will vary from municipality
to
municipality and be affected by the number of people facing eviction
in each case. In the circumstances, Applicants submitted
that even
though not a pre-requisite for the grant of an eviction order,
alternative accommodation is being made available to all
residents
evicted from Joe Slovo. No person will be rendered homeless on
account of the relief sought in this application. (Once
again, as
referred to above in paragraph [61] this is in line with the recent,
as yet unreported, Constitutional Court judgment of
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg, Rand Properties (Pty) Ltd, Minister
of Trade
and Industry, and the President of the Republic of South Africa with
the Centre on Housing Rights and Evictions and the
Community Law
Centre, University of the Western Cape as amici curiae
CCT
24/07
[2008] ZACC 1
as given on 19 February 2008. See specifically
paragraph [46] which deals with the consideration that the court must
have in ordering
an eviction that may lead to homelessness.)
Regarding the suitability or otherwise of the TRAs, applicants
submitted that the following
factors were important, namely:
The
nature of the informal structures that residents are currently
residing in. Whilst there is a fair degree of dispute as to the
exact nature of the conditions at Joe Slovo, it appears to be
accepted by the residents that Joe Slovo informal settlement is

densely composed of “self built shacks” constructed from an
assortment of wood, plastic and corrugated iron;
The
fact that the TRAs constitute temporary accommodation, from which
the residents will in due course be moved to permanent housing;
The
suitability or otherwise of these structures in terms of feedback
received from Joe Slovo residents who have already relocated
to the
TRAs in Delft;
The
basis upon which the residents contend that the TRAs are not
suitable.
As
was highlighted in paragraphs [56] and [59] above, the TRAs are far
better than the shacks in Joe Slovo. The respondents did not
seriously contend otherwise, other than to raise concerns that the
TRAs have asbestos, which argument was not seriously pursued in
Court. In any event it seems that the concerns relating to the
presence of asbestos were without substance. And, moreover, the
Minister
of Housing, Second Applicant, pointed out in her replying
affidavit, tents could be provided forthwith and in the longer term
the
TRAs will be built of wood.
[68]
Applicants further drew attention to the matter of
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) [at para 10] (“the School Site case”). In that
case in the Court
a
quo
the appellant’s central argument why the eviction order sought
would not be just and equitable was that Bramfischerville (the area
where they were to be located to) was too far from the Alexandra area
where many of them were gainfully employed and where their
children
were at school. The municipality did not deny that the relocation
over a distance of some 37 kilometres would be the cause
of
inconvenience and in many cases even hardship to the appellants. Its
answer was that this could not be avoided since it was simply
impossible, both financially and practically, to find an area for
relocation closer to Alexandra (a fact which appellants submitted
is
no different from the present matter). The Court a quo devoted a
considerable part of its judgment to the weighing up of all the
arguments and counter-arguments on the merits. In the end, according
to the Supreme Court of Appeal, it came to the well-reasoned
conclusion that in all the circumstances it was in fact just and
equitable within the meaning of section 6 of PIE, to grant the
eviction
order sought.
(iii)
Legitimate Expectation
[69]
Mr Sopaqa deposed to an affidavit stating that the residents of Joe
Slovo have a substantive legitimate expectation that the
housing to
be developed at Joe Slovo, or at least 70% of it, would be made
available to members of the community. The applicants
now seek to
make the overwhelming bulk of that housing available to other
persons, and to have the Respondents evicted from the land
in order
to achieve that unlawful purpose. Furthermore, he said the
Respondents have a legitimate expectation that the authorities
will
not make the housing to be provided at Joe Slovo available to other
persons such that less than 70% of the housing will be made
available
to the residents of Joe Slovo, without first giving them a hearing in
accordance with the common law rules of natural justice.
The
Applicants, he said, have abandoned their undertaking – which was a
condition of the agreement in terms of which the City made
the land
available to the MEC – that 70% of the housing opportunities at Joe
Slovo would be made available to residents of Joe
Slovo. The
Respondents further claim a legitimate expectation in respect of a
right of all residents to return to Joe Slovo and be
accommodated in
the permanent housing thereat. In this regard, he pointed out that
the people who moved out of Phase 1 did so on
the basis that they
were assured of housing on their return to Phase 1.
[70]
It cannot be denied that the first respondents had an expectation
that at least 70% of the housing opportunities at Joe Slovo
would be
made available to residents of Joe Slovo. The legal question however
is whether that expectation was legitimate? English
and South African
decisions show that a legitimate expectation “
may
arise from a variety of circumstances”,
and
that
“it is essential not to close the list of possible sources of a
legitimate expectation. To do so would hinder the inherent
flexibility
and further development of the doctrine to meet the needs
of modern societies
”.
[J.M. Hlophe “The Doctrine of Legitimate Expectation and the
Appellate Division”
(1990) 107 SALJ 197
at p.200-201.]
[71]
The requirements for a legitimate expectation were set out by Heher J
in
National
Director of Public Prosecutions v Phillips and Others
2002
(4) SA 60
(W) para 28. He said that the law does not protect every
expectation but only those which are “legitimate”. The
requirements
for legitimacy of the expectation, he noted, include the
following:
-
The representation underlying the expectation must be “clear,
unambiguous and devoid of relevant qualification”. The requirement
is a sensible one. It accords with the principle of fairness in
public administration, fairness both to the administration and
the
subject. It protects public officials against the risk that their
unwritten ambiguous statements may create legitimate expectations.
It is also not unfair to those who choose to rely on such
statements. It is always open to them to seek clarification before
they
do so, failing which they act at their peril;
-
The expectation must be reasonable;
-
The representation must have been induced by the decision-maker;
-
The representation must be one which it was competent and lawful for
the decision-maker to make without which the reliance cannot
be
legitimate.
[72]
Mr Budlender further submitted that it was clear that, with regard to
Phase 1 in Joe Slovo consisting of the flats, that Phase
1 has been
completed and that there are 705 units, few of those units are
occupied by the residents of Joe Slovo. The Applicants
were silent
with regard to how many Joe Slovo residents were accommodated in the
Phase 1 flats. Similarly, he argued, with regard
to the proposed
development in Phase 2, which will consist of 35 housing units, the
applicants were also quiet as to how many of
those units would be
allocated to the residents of Joe Slovo in line with the undertaking
made previously. This, Mr Budlender argued,
was a clear violation of
the Respondents’ substantive legitimate expectation to have the
houses allocated to them as residents
of Joe Slovo. In any event, Mr.
Budlender further submitted, First Respondents have a legitimate
expectation that the authorities
will not make the housing to be
provided at Joe Slovo available to other persons, such that less than
70% of the housing would be
made available to the residents of Joe
Slovo, without first giving them a hearing in accordance with the
common law rules of natural
justice.
[73]
Mr Kirk-Cohen argued on behalf of First and Third Applicants that it
was common cause that there were utterances and undertakings
made
regarding the 70:30 % allocation ratio between Joe Slovo residents
and “backyarders” of Langa Township respectively. Furthermore,
he
argued, Phase 1 has been completed and cannot be done away with. Joe
Slovo and the entire N2 Gateway Project is a pilot project
and as
such it will not have the attributes of perfection. The 70:30% ratio
related to the entire area of Joe Slovo as opposed to
just Phase 1 or
2 thereof. He further submitted that the 70:30% ratio and
undertakings made in relation thereto would be accommodated
when
Phase 3 is developed, or in other parts of the N2 Gateway Project. I
agree with Mr. Kirk-Cohen. The evidence of Prince Sigcawu
in this
regard was not contradicted nor seriously challenged, namely that
undertakings and promises related to the entire Joe Slovo
informal
settlement in the context of the N2 Gateway Project.
[74]
In
University
of the Western Cape v MEC for Health and Social Services
1998 (3) SA 124
, the court held that:
“ …
no
one can have a legitimate expectation of doing something contrary to
the law, or of preventing a functionary from discharging his
statutory duty.”[at 134C-D]
(See
also JM Hlophe
“Legitimate
Expectation and Natural Justice, English, Australian and South
African Law
”
(1987) 104 SALJ p. 165).
[75]
The difficulty with Mr Budlenders’ argument relating to legitimate
expectation is that it is based on the assumption that the
residents
of Joe Slovo had the consent of the City Council of Cape Town to
reside in Joe Slovo. The argument about to consent has
already been
rejected by this court in the discussion above. Quite clearly the
residents had no consent to reside in Joe Slovo; therefore
they are
occupying the area unlawfully. Unlawful conduct, it has been held,
cannot give rise to a legitimate expectation. Furthermore
the
applicants are under a constitutional obligation to provide housing
vide
Section
26 of the Constitution. Clearly to hold that the respondents have a
legitimate expectation would have an effect of frustrating
the
applicants in an attempt to comply with a statutory/constitutional
obligation to provide housing. That, in my view, cannot be.
The
respondents had no substantive nor procedural legitimate expectation
because they are occupying Joe Slovo unlawfully. Such unlawful
conduct, irrespective of utterances and/or undertakings, cannot give
rise to a legitimate expectation capable of being enforced and/or
protected in law. In my view there is no merit in Mr Budlenders
argument that Respondents had a legitimate expectation.
[76]
To conclude this aspect of the judgment, Mr. Budlender’s argument
also loses sight of what was authoritatively laid down by
the Supreme
Court of Appeal in
City
of Johannesburg v Rand Properties (Pty) Ltd and Others
2007 (6) SA 417
referred to in paragraph [53] supra, where the court
held “
…the
Constitution does not give a person a right to housing at State
expense at a locality of that person’s choice…”
.
Ironically Mr. Budlender was one of the counsel involved in the
Rand
Properties
-case,
yet he made no reference to the case at all. It is my judgment that
the residents of Joe Slovo had no legitimate expectation
nor any
right to remain at Joe Slovo. The right is the right of access to
adequate housing. It is not the right to remain at the
locality of
their choice, namely Joe Slovo.
(iv)
ESTA and IPILRA
[77]
Mr. Hathorn contended on behalf of Respondents that the residents of
Joe Slovo Informal Settlement have acquired tenure rights
in terms of
the
Interim
Protection of Informal Rights Act
31
of 1996 (IPILRA) and the
Extension
of Security of Tenure Act
62
of 1997 (ESTA). Respondents, he argued, had consent of the City of
Cape Town to occupy the informal settlement in question. PIE
regulates the eviction of unlawful occupiers (as defined in section 1
of the Act) from land. The term “unlawful occupier” is
defined as
excluding a person who is an occupier in terms of the
Extension
of Security of Tenure Act
62 of 1997 (“ESTA”).
[78]
In amplification of his argument, Mr. Hathorn submitted that it is
not in dispute that a number of the Residents have been in
occupation
of Joe Slovo since the early 1990s and that many Joe Slovo residents
are poor people earning less than R5 000 per month.
An unlawful
occupier is defined in section 1 of PIE as excluding ‘a person
whose informal right to land, but for the provisions
of this Act,
would be protected by the provisions of the
Interim
Protection of Informal Land Rights Act
.’
Mr Sopaqa in his opposing affidavit raised the defence that a number
of Respondents are holders of informal land rights in terms
of the
Interim
Protection of Informal Land Rights Act
31 of 1996 (IPILRA). In terms of section 1 of IPILRA an informal
right to land is defined as
inter
alia
“beneficial occupation of land for a continuous period of not less
than five years prior to 31 December 1997.” Section 2(1) of
IPILRA
states that subject to certain exceptions which are not applicable:
“
No
person may be deprived of any informal right to land without his or
her consent.”
Thus
the Respondents were not consenting to evictions.
[79]
Mr. Hathorn relied heavily on the decision of
Rademeyer
and Others v Western District Council and Others
1998
(3) SA 1011
(SE) at 1017B. He submitted that the
Rademeyer
-decision
is authority for the view that where the City Council permits people
to remain on its property and provides them with water
and sanitation
(and other services) it consents tacitly to them residing on that
property. This submission is flawed. It flies in
the face of the
evidence of former Mayor of Cape Town, Ms Mfeketo that services were
provided to the Joe Slovo residents for humanitarian
reasons and that
it was always the intention to build proper houses thereby
eliminating informal settlements. She further gave evidence
that the
Red Cards issued to Respondents were proof of applying for housing
and served as recognition of receipt of basic services,
not giving
the bearer thereof entitlement to occupy property legally. In any
event the
Rademeyer
-decision
was before the PIE Act came into operation and prior to the
Grootboom
-decision
which affirmed the Department of Housing’s obligation under the
Constitution to provide adequate housing. Furthermore,
the ESTA
argument is misconceived as Joe Slovo is not rural land.
(v)
Allied Relief
[80]
The argument that the Second and Third Applicants did not ask for the
eviction of Joe Slovo residents, but merely aligned themselves
with
the relief sought by the First Applicant is devoid of substance. Mr.
Budlender was asked to cite authority for this argument
that it is
not enough to merely align with relief, but that Second and Third
Applicants should ask for the eviction order specifically
on the
papers. He conceded, properly in my view, that there is no such
authority. This argument does not merit any further consideration.
All applicants have standing and are seeking the same relief.
Conclusion
[81]
In the light of the conclusion to which this court has come, it is
not necessary to deal with other arguments advanced by the
respondents’ counsel. This case is not about normal eviction. It is
a strategic relocation of Joe Slovo residents and although
this is
not required of the Applicants, they subject themselves to judicial
supervision and to report back on the progress and faults
experienced
during the implementation and fulfilment of this pilot project. No
pilot project can exist without obstacles. Mistakes
are expected,
corrections to mistakes are inevitable, and from here the persons
responsible for the implementation of the project
and similar ones at
a later stage must learn. Neither the reasonableness of the housing
policy relating to the N2 Gateway project
nor the implementation
thereof was seriously challenged by the Respondents. Respondents,
furthermore, did not challenge Applicants’
evidence concerning
factors to be taken into account to decide whether it is just and
equitable to order eviction.
[82]
Joe Slovo informal settlement is defined sufficiently to give effect
to an eviction order against various occupants. Respondents
are
presently occupying the land unlawfully and without consent of the
owner thereof. Alternative adequate accommodation (in such
a manner
that it is more than adequate) is provided at State’s expense.
Transport, safety, educational, health and even pension
needs have
been catered for at State’s expense in order to be of some help in
alleviating difficulties that are inevitable in the
circumstances of
the Respondents.
[83]
The occupants of Joe Slovo Informal Settlement have an opportunity to
live in better accommodation than they reside in presently.
This
accommodation is merely temporary, until such time as the
restructuring, soil treatment, and building of permanent housing in
Phase 2 and Phase 3 of Joe Slovo have been completed in terms of the
government’s Housing Policy, the N2 Gateway Housing Project
and in
line with the State’s obligation to provide housing within its
available resources. The TRAs in comparison to the present
informal
dwellings can be regarded as being safer, asbestos free and
relatively more fire-resistant accommodation. Almost 70% of
the
present occupants of the area and 30% of the “backyarders” of
Langa Township will be able to return to Joe Slovo to newly
built,
better equipped and safer permanent homes. Homes and a community
where overcrowding is a thing of the past, where fire dangers
are
much less, where proper water facilities are led to the houses,
sewerage facilities are in place, and where floods could leave
lesser
damage if any at all after the soil has been rehabilitated and
stronger more steady houses have been built.
[84]
In terms of the National Housing Policy, the State is in no way
attempting to re-enact the apartheid ghost of forced removals
from
the past. The Department of Housing is merely complying with a
constitutional obligation to provide adequate housing. This is
not a
mass eviction, but a strategic relocation, working in phases
according to availability of TRAs and even with assistance for
the
moving of residents. Respondents are not evicted and on the streets
to fend for themselves, but moved to much better accommodation
at
State’s expense and assistance. The majority of them will be able
to return to Joe Slovo to live in newly built permanent houses.
They
will be able to return to the area they know well and enjoy fairly
decent accommodation.
Order
[85]
In the event it is ordered that:
1.1
The various occupiers of the area known as Joe Slovo informal
settlement are directed to vacate the area in accordance with
the
schedule annexed to the order and marked “X”, more particularly:
They
are directed to move from the blocks (in the zones) set forth in
the third (and in the second) columns set forth on annexure
“X”
to the order;
They
are directed to move on the dates set forth in the column styled
“Target Date” on annexure “X” to the order.
Those
who are subject to this order are interdicted and restrained –
once they have vacated or been ejected from the area known
as Joe
Slovo informal settlement – from returning thereto for the purpose
of erecting or taking up residence in informal dwellings.
3.1
Those affected by this order shall be entitled to remove their
informal structures upon leaving the Joe Slovo informal
settlement;
3.2
After the dwellings situate at Joe Slovo informal settlement have
been vacated in accordance with this order, Applicants
are
authorized to demolish such informal housing as remains in the
areas vacated.
First
Applicant is directed – in accordance with its tender to do so –
to render assistance to the parties affected to move
their
possessions to the extent that it is able to do so.
In
the event of the failure and/or refusal of the residents of Joe
Slovo informal settlement to vacate their dwellings as set forth
above, the Sheriff of this Court is authorized and directed to carry
into execution this order in accordance with “X” to the
order,
and:
In
the event of the refusal of the occupants to move their movable
possessions, the Sheriff is authorized to move all the movable
items in the premises to an identified place in the temporary
relocation area in Delft for safekeeping;
To
eject such Respondents from their dwellings at the times indicated
on annexure “X” to the order.
Applicants
are directed:
To
report on affidavit at intervals of no less than 8 weeks (but at
more frequent intervals should they deem it necessary) to
report
back to this Court as to:
The
implementation of this order;
The
allocation of permanent housing opportunities to those affected by
this order.
To
furnish copies of the affidavits comprising its reporting to the
Legal Resources Centre, or to such other address as may be
directed
from time to time.
_________________________
HLOPHE,
JP
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