City of Cape Town v Persons who are presently unlawfully occupying erf 1800, Capricorn: Vrygrond Development and Another (9617/2002) [2003] ZAWCHC 15; [2003] 3 All SA 371 (C) [2004] 2 All SA 438 (C) (20 May 2003)

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[2003] ZAWCHC 15
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City of Cape Town v Persons who are presently unlawfully occupying erf 1800, Capricorn: Vrygrond Development and Another (9617/2002) [2003] ZAWCHC 15; [2003] 3 All SA 371 (C); 2003 (6) SA 140 (C); 2003 (8) BCLR 878 (C) (20 May 2003)

REPORTABLE
IN THE HIGH
COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
no: 9617/02
In
the matter between:
CITY OF CAPE
TOWN Applicant
and
THE
PERSONS WHO ARE PRESENTLY
UNLAWFULLY
OCCUPYING
ERF
1800, CAPRICORN: VRYGROND
DEVELOPMENT
First
Respondent
THE
PERSONS INTENDING TO
UNLAWFULLY
OCCUPY ERF 1800,
CAPRICORN:
VRYGROND
DEVELOPMENT
Second
Respondent
Judgment
delivered this 20
th
day of May 2003
___________________________________________________________
N
C ERASMUS J
Background
This
application is concerned with the very difficult and pressing
question of the State’s constitutional obligation to provide
access
to adequate housing. Many South Africans still live in intolerable
conditions and, as this case demonstrates, there is a very
real
danger that communities will be tempted to take the law into their
own hands in order to escape these conditions. According
to Mr
Johannes Smit, the executive director of housing at the applicant’s
South Peninsula Administration(SPA), the applicant’s
waiting list
for houses currently stands at around 240 000 applicants and this
figure is growing by 19 000 every year.
Planning
and approval of the development of section 3 of Erf 1800, Capricorn,
Vrygrond in the Western Cape (`Vrygrond’) took place
during 1997
and 1998. At that time the land was being used as an informal
settlement. The Vrygrond development was approved by the
Western Cape
Provincial Government in 1999. The development is characterised as an
in
situ
upgrade
which involves the development of the existing informal settlement
into a formal low cost housing township. The development
of Vrygrond
took place in consultation with various community organisations, and
in particular between the South Peninsula Municipality
(SPM) and the
Vrygrond Community Development Trust (VCDT). The applicant alleges
that it was agreed between SPA and VCDT that the
houses to be built
first would be allocated to
bona
fide
Vrygronders
(ie members of the community who were resident on the land at that
time). To that end a list was drawn up during 1998.
Applicant
considered the list closed in the sense that no-one other than those
appearing on the initial list would be considered
as
bona
fide
Vrygronders.
Of course this makes sense: it is impossible to plan the building of
houses when the numbers simply keep on increasing.
The applicant
claims that the entire development was to consist of 1604 erven, 247
of which comprise section 3, the subject land
of the present
application. Of these 209 have had houses erected on them and 38 are
to remain as serviced erven. The reason for the
serviced erven lies
in the qualification requirements for housing from the applicant. The
National Government has set up various
policies regarding township
developments. It has set up the National Housing Subsidy Scheme
which,
inter
alia
provides
for the establishment of the South African Housing Subsidy Fund. This
fund allocates funds to the Provincial Governments
to whom local
governments apply for approval of development plans and funding.
Furthermore, a National Housing Code has been approved
and adopted by
National Government which,
inter
alia,
sets
out criteria and procedures relating to eligibility for a housing
subsidy.
In
the case of an
in
situ
upgrade,
there are two basic requirements for qualification as a beneficiary,
namely that the applicant must be a member of the existing
informal
community (
in
casu
they
must appear on the 1998 list of
bona
fide
Vrygronders)
and secondly, qualify for a subsidy in terms of the National Housing
Code. Subsidies are approved by the Provincial Housing
Development
Board which determines the amount of the subsidy depending on the
earnings of the applicant in accordance with state
capital subsidy
programme guidelines. To qualify for a subsidy the applicant must be
South African, have dependents, be over 21 years
of age, must not
have benefitted from a subsidy before and must not be a land owner,
which includes being a beneficiary of another
state housing
development. The applicant must also not earn less than a prescribed
amount.
It
was further agreed between SPA and VCDT that those
bona
fide
Vrygronders
who did not meet the second criterion, ie those who failed to qualify
for a subsidy, would be entitled to one of the 38
serviced erven.
The
respondents do not challenge this evidence and I accept it.
Effectively
then all the
bona
fide
Vrygronders
on the 1998 list would be accomodated by the development of the 247
erven in section 3 of the Vrygrond development unless
they do not
comply with the national policy guidelines.
In
order for civil services to be installed and houses built it was
necessary for the land to be vacated by the
bona
fide
Vrygronders.
Understandably, some of the residents were unwilling to move and some
refused causing applicant to approach the court
for their eviction.
The entire site was vacated by the beginning of 2001. Many of the
residents were accomodated on an adjoining
road reserve and the
applicant supplied water and electricity. The respondents deny that
they had electricity or other amenities
and from their description of
the reserve they appear to have suffered intolerably. By 15 June 2002
the construction of houses and
installation of services on the
individual erven at section 3 was completed.
The
applicant argues, however, that as at 15 June 2002 no-one (except two
or three beneficiaries who had been granted subsidies and
had
complied with the procedures set out below) had permission to occupy
any of the houses or serviced erven because firstly, some
of the
subsidies had not yet been approved and even if they had been, the
applicant prescribes a strict procedure which is to be
followed for
the orderly occupation of houses and erven. The procedure is as
follows. Once a qualifying beneficiary has been identified,
they are
notified and asked to present themselves at the allocated house on a
particular date when they will be asked to sign a “first
delivery
certificate” which is essentially an acknowledgment that the
services are in place and that the house appears to be in
good
condition. The beneficiary is then granted permission to occupy the
house. They are then asked to draw up a snaglist which,
if
legitimate, will be attended to by the applicant’s contractors.
After three months the beneficiary is asked to sign a final
delivery
form. Applicant claims that this procedure is vital to the orderly
occupation of houses and identification of problems.
Shortly
after the houses were completed however, certain of the respondents
started to occupy the houses and erven. Respondents concede
that
`[t]he community resolved to move into the homes and to allocate them
in accordance with the need and the time particular families
had
lived in Vrygrond. We do not believe that there was anything unlawful
about this move, and we waited for months and had a clear
right to
our homes.’
The
respondents claim that, at first, they did not occupy the land but
after the first phase of houses had been built, unidentified
persons
(not
bona fide
Vrygronders) moved
into them. They questioned one Daniel Lopez, whom they took to be an
employee of applicant, who apparently, after
a meeting on 21 June
2002, and after still more people had moved into newly completed
houses, told respondents that they should also
just move into the
houses. This is denied by the applicant. In any event, the occupation
of the land occurred at least from 21 June
2002.
As
at 28 February 2003 (the date of filing of the applicants replying
papers) the position was as follows: of the 209 houses at Vrygrond,
104 have been allocated and the proper beneficiaries have taken
occupation. The remaining 105 have been unlawfully occupied and form
the subject of this application. Of the remaining 105, 91 have been
allocated but the beneficiaries cannot take occupation. It appears
that the remaining 14 houses and 38 serviced erven were not allocated
at the time of the launching of these proceedings.
The
applicants seek an order evicting everyone (save for three individual
families) from the 105 houses in section 3 of Vrygrond in
the first
instance but making provision for various categories of people to
take possession of the land in a systematic way. The
result of the
order they seek will be that everyone whose name appears on the 1998
list (the
bona
fide
Vrygronders)
or those whose names do not appear but who can prove that they were
residents of Vrygrond as at 1998 will be provided
with either houses
or serviced erven.
Grounds for the
Application
The
applicant’s case is based upon the common law
mandament
van spolie
as
well as section 4 of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act No. 19 of 1998 (“PIE”). In
view
of the decision I have come to, it is unnecessary for me to consider
the common law ground of the application. There is in any
event some
uncertainty in the case law about whether the common law
mandament
van spolie
remains
available to an applicant whose application is based on PIE. See for
example the unreported CPD case of
The
Provincial Housing Development Board Western Cape v The Occupiers of
the Erven in Delft South Cape Town
case
number 9206/98 at page 15.
Section
4 of PIE reads as follows:
4 Eviction
of unlawful occupiers
(
1)
Notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to proceedings
by
an owner or person in charge of land for the eviction of an unlawful
occupier
.
(2) At least 14
days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective
notice of
the proceedings on the unlawful occupier and the municipality having
jurisdiction.
(3) Subject to
the provisions of subsection (2), the procedure for the serving of
notices and filing of papers is as prescribed by
the rules of the
court in question.
(
4)
Subject to the provisions of subsection (2), if a court is satisfied
that service cannot conveniently or expeditiously be effected
in the
manner provided in the rules of the court, service must be effected
in the manner directed by the court: Provided that the
court must
consider the rights of the unlawful occupier to receive adequate
notice and to defend the case.
(5) The notice
of proceedings contemplated in subsection (2) must -
(a) state
that proceedings are being 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.
(6) If an
unlawful occupier has occupied the land in question for less than six
months at the time when the proceedings are initiated,
a court may
grant an order for eviction if it is of the opinion that it is just
and equitable to do so, after considering all the
relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed by women.
(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to
do
so, after considering all the relevant circumstances, including,
except where the land is sold in a sale of execution pursuant
to a
mortgage, whether land has been made available or can reasonably be
made available by a municipality or other organ of state
or another
land owner for the relocation of the unlawful occupier, and including
the rights and needs of the elderly, children, disabled
persons
and households headed by women
.
(8) If the
court is satisfied that all the requirements of this section have
been complied with and that no valid defence has been
raised by the
unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a) a
just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b) the
date on which an eviction order may be carried out if the unlawful
occupier has not vacated the land on the date contemplated
in
paragraph (a)
.
(9)
In determining a just and equitable date contemplated in subsection
(8), the court must have regard to all relevant factors, including
the period the
unlawful
occupier and his or her family have resided on the land in question
.
(10) The court
which orders the eviction of any person in terms of this section may
make an order for the demolition and removal of
the buildings or
structures that were occupied by such person on the land in question.
(11) A court
may, at the request of the sheriff, authorise any person to assist
the sheriff to carry out an order for eviction, demolition
or removal
subject to conditions determined by the court: Provided that the
sheriff must at all times be present during such eviction,
demolition
or removal.
(12) Any order
for the eviction of an unlawful occupier or for the demolition or
removal of buildings or structures in terms of this
section is
subject to the conditions deemed reasonable by the court, and the
court may, on good cause shown, vary any condition
for an eviction
order.
An
`unlawful occupier’ is defined as meaning `a person who occupies
land without the express or tacit consent of the owner or person
in
charge, or without any other right in law to occupy such land.’
(s.1) Applicants argue that the respondents are clearly unlawful
occupiers as they had no permission to occupy the land when they did.
Respondents argued that they are not unlawful occupiers and
appeared
to rely for this contention on the so-called doctrine of aboriginal
title as has been recognised in, particularly, Australia
in the now
well known case of
Mabo
v Queensland (No. 2)
1992
CLR 1.
In the as yet unreported SCA judgment of
The
Richtersveld Community and Others v Alexkor Limited and Another
case
number 488/2001 (judgment delivered on 24 March 2003) Vivier ADP
expressly avoided the question of whether the doctrine forms
part of
our common law or whether our common law ought to be developed to
recognise aboriginal rights. The court did however say
that not all
the aspects of the doctrine fitted comfortably into our common law.
In the light of such doubt as well as the fact that,
in my view,
respondents have not made out a case for aboriginal title, the matter
need not be pursued.
As
mentioned above, respondents further claim that they did have
permission to occupy the premises from one Daniel Lopez who, on the
applicants version was used simply to complete and collect housing
applications. On the very limited evidence I have before me, I
cannot
make a proper finding regarding whether Lopez was authorised to give
permission or whether he in fact did do so. Suffice it
to say that I
think it is unlikely that he did have authority to do so, especially
in light of the respondents’ concession that
`[t]he community
resolved to move into the homes and to allocate them in accordance
with the need and the time particular families
had lived in
Vrygrond.’ I therefore accept that, for the purposes of this
application, the respondents are unlawful occupiers as
defined by the
Act.
Applicant
brings the application in terms of section 4 of the Act as both the
owner and ‘person in charge’ of the property. It
is common cause
that all the requirements prescribed by section 4 have been complied
with. The application envisaged by section 4(4)
was granted on 5
December 2002 and applicant served the Notice of Motion in the main
application in terms of that order on 5 and
6 December 2002. As the
date of occupation was at least 21 June 2002 and the proceedings in
the main application initiated on 5 and
6 December 2002 (in other
words just short of six months after the occupation), this matter
stands to be determined in terms of section
4(6) instead of the more
onerous section 4(7).
In
short, the applicant contends that respondents, not content to wait
out the finalisation of the allocation process occupied the
houses
and serviced plots without permission and in doing so took the law
into their own hands.
Before
I deal with the substance of the application, respondents raised an
issue
in
limine
arguing that the application is defective because, as an organ of
state, applicant ought to have proceeded in terms of section 6
and
not section 4 of the of the Act. Section 6 of the Act reads:
6 Eviction
at instance of organ of state
(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 of 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).
Respondents
argue that it is not open to the applicant to proceed in terms of
section 4 as an organ of state ought to proceed in terms
of section
6. I cannot agree with this submission. It will be remembered that
section 4 applies in proceedings by an owner or person
in charge of
land for the eviction of an unlawful occupier. The Act defines an
owner as `the registered owner of land, including
an organ of state.’
The fact that an organ of state may proceed in terms of either
section is not a mere anomaly. Section 6 accords
an organ of state
the right to initiate proceedings against unlawful occupiers of land
within its jurisdiction
irrespective
of who owns the land
.
See the unreported CPD judgment of
Ngwenya
J
in
Paarl
Municipality v The Occupiers of Houses Situated at Certain Erven,
Mbekweni, Paarl
case
number 8937/2000 at page 14.
“
In the first
instance, section 6 of PIE accords to the local authority powers to
initiate legal proceedings against unlawful occupation
of land within
its area of jurisdiction irrespective of who the owner thereof is.”
I
now proceed to consider whether an order evicting respondents is just
and equitable considering all the circumstances of this case
including the rights and needs of the elderly, children, disabled
persons and households headed by women from the point of view of
both
the parties.
Assessment
The
application is opposed by the respondents represented by Ms Lulu
Agnes Mtini who deposed to the main answering affidavit. Another
affidavit was deposed to by Themba Dennis Menze. Many of the
respondents filed confirmatory affidavits to Mtini’s answering
affidavit,
but some did not. Applicant argued that Mtini could not
represent those who did not sign confirmatory affidavits. I do not
agree.
Section 38 of the Constitution allows anyone to approach court
on behalf of others. Subsection (c) in particular provides that a
person may approach a court if acting `as a member of, or in the
interest of a group or class of persons.’ I cannot imagine that
this section requires the representative of the group to obtain
confirmatory affidavits from every member of the group. This appears
also to have been accepted by Ngwenya J in the
Paarl
Municipality
case
at page 2 of the judgment.
The
evidence of Mtini and Menze is that the respondents are poor. A
report on research carried out by Jacobus Saayman De Swardt at
the
University of the Western Cape and referred to in Menze’s affidavit
found that in the Greater Nyanga and Khayalitsha areas,
more than 76%
of households fell below the official poverty line of R352,00 per
adult per month. I accept that the respondents find
themselves in a
similar position. The respondents are disadvantaged and continue to
live on the margins of society in intolerable
conditions. At the end
of 1997 or beginning of 1998, the applicant made it clear that the
land they were living on would be developed
and they would get
houses. They have waited for over five years for their houses, an
unacceptably long wait. Applicant explains the
delays by referring to
the community’s reluctance to relocate and political volatility in
the area in addition to the normal logistical
delays. While I have
sympathy for the enormous task facing the applicant, in my view 5
years remains an unacceptably long delay.
Conditions in the road
reserve were also described by the respondents as intolerable and I
accept that evidence.
Respondents
have a constitutional right to access to adequate housing. Section 26
of the Constitution provides:
`(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.’
As
respondents point out however, in cases like the present, most, if
not all of the socio-economic rights of the Bill of Rights find
application. Indeed, all the rights in the Bill of Rights are
inter-related and mutually supporting. The right of access to
adequate
housing cannot therefore be viewed in isolation. The State
is obliged to take positive action to meet the needs of those living
in
homelessness or intolerable housing. In
Government
of the RSA and Others v Grootboom and Others
2001
(1) SA 36
(CC) the constitutional court discussed the right of access
to adequate housing comprehensively.
At 67 F-I and
Yacoob J held that
`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….Subsection (2) [of the section 26] 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
this 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.’
The
obligations of each of the three spheres of government in fulfilling
the requirements of section 26 of the Constitution find expression
in
the
Housing Act 107 of 1997
. Section 9 of the Act provides:
`
Functions
of municipalities.
– (1) Every municipality must, as part of the municipality’s
process of integrated development planning, take all reasonable
and
necessary steps within the framework of national and provincial
housing legislation policy to –
ensure that –
the
inhabitants of its area of jurisdiction have access to adequate
housing on a progressive basis;
…
…
The
applicant’s housing development policy was scrutinised by the
constitutional court in
Grootboom.
After
outlining the Cape Metro’s (as it was then) land program the court
considered whether it was reasonable in terms of section
26 of the
Constitution. The court found that on the face of it the Cape Metro’s
program meets the obligations which the State has
towards people in
the position of the applicants in that case and, by extension, the
applicants in the present case. The court added
however, that the
program was only the starting point and that effective implementation
of the program was needed. The court concluded
that the State was not
meeting its obligations in terms of section 26 of the Constitution in
the area of the Cape Metro because no
provision was made for relief
for families living in crisis conditions.
Applicant
claims that it spends approximately R140 Million on housing
developments every year and that there are currently around
30
housing projects being developed by applicant. Furthermore, applicant
claims that it has also developed `The Accelerated Managed
Land
Settlement Program’ which seeks to benefit families in crisis: that
is, it seeks to remedy the inadequacies of the State’s
housing
policy as expressed in
Grootboom.
To date however this program has not been adopted for lack of funds
from the national government.
This
judgment is not concerned with evaluating applicant’s fulfillment
of its constitutional obligations. I have raised it simply
because,
in my view, if it were shown that applicants were failing
substantially in the fulfillment of this duty, this would weigh
in
favour of the respondents in a consideration of all the relevant
circumstances of the case.
It
was not argued by the respondents that the applicant’s policies are
not consistent with its available resources. In the absence
of such
an argument and in the absence of evidence which would tend to
support it, I cannot fault the applicants housing development
policies or their implementation.
Turning
to a consideration of applicant’s interests, it obviously has an
interest in ensuring that its housing development programs
are
implemented in a predictable and fair manner. To this end, the
procedures described at the start of this judgment need to be
complied with. Furthermore, in order to plan well, I accept that it
is necessary to draw up a list of potential beneficiaries and
then
have a cut off date after which no more applications will be accepted
for a particular development. I do not see how it can
be done in any
other way.
In my
view, the most compelling factor weighing in applicants favour is
simply that it is, in my view, imperative that land invasions
are
denounced and rejected as an appropriate way to enforce one’s
constitutional right to access to adequate housing. As pointed
out by
Yacoob
J
in
Grootboom
at
paragraph 92
`This judgment
must not be understood as approving any practice of land invasion for
the purpose of coercing a State structure into
providing housing on a
preferential basis to those who participate in any exercise of this
kind. Land invasion is inimical to the
systematic provision of
adequate housing on a planned basis.’
Also,
as pointed out by
Ngwenya
J
in
Paarl
Municipality,
at
26,
even
where delivery is slow
`that will not
be a justification for anyone to take the law into his hands. The
respondents nevertheless deemed it appropriate to
do just that. If
any disgruntled citizen were to follow the example of the
respondents, the country could soon plunge into chaos.’
I
respectfully concur with these views. Self-help land invasions cannot
be condoned.
What
is just and equitable in this situation will differ from one person
to the next and it would accordingly be convenient to separate
the
respondents into the following categories:
Respondents on
the 1998 list who have had subsidies approved, who have been
allocated a house and who are in occupation of either
the house
allocated to them or another house or a serviced Erf in section 3.
Respondents who
are on the 1998 list who have had subsidies approved but no house
allocated to them but who are nevertheless in
occupation of a house
or serviced Erf in section 3.
Respondents who
are on the 1998 list but who have not had subsidies approved and
are in occupation of a house or a serviced Erf
in section 3.
Respondents who
are not on the 1998 list at all.
The
respondents in group 1 have done everything that is required of them
except that they have not signed a first delivery certificate,
snaglist (if applicable) and final delivery form. These are mere
formalities and there is no question that these people are entitled
to a house. I do not believe it is just and equitable to evict these
respondents.
The
respondents in group 2 also qualify for a house and again, it would
not be just and equitable to evict them simply because the
beauracratic step of allocation has not been performed by applicant.
The
respondents in group 3 are different because they may or may not
qualify for a house. If their subsidies are not approved, they
will
only qualify for a serviced Erf. These respondents have not applied
for subsidies and this, in my view sets them somewhat apart
from the
first two categories of respondent. In my view, if any of these
respondents are elderly, disabled or women who head households,
it
would not be just and equitable to evict them. If they do not fall
into these exceptions however, it is just and equitable to
evict them
pending their application for subsidies.
The
respondents in group 4 may or may not have applied for subsidies but
do not,
prima
facie
form
part of the Vrygrond community. In my view it is just and equitable
to evict them subject to what is ordered below.
Costs
The
usual rule in so far as costs are concerned is that costs follow the
result. In this case the applicants have been partially successful.
I
am in any event not inclined to grant full costs in favour of the
respondents because their conduct is premised upon an unlawful
land
invasion. I shall endeavour to make a cost order which is appropriate
in all the circumstances.
Having
regard to all of the circumstances of this case I order the
following:
Peter Stokes and
his immediate family occupying Erf 782, Mr Mchunu and his immediate
family occupying Erf 759 and Ms Natasha Pelser
and her immediate
family occupying Erf 944 shall not be evicted from their houses or
serviced erven.
The
respondents (if any) who are in occupation of houses in section 3
of the Vrygrond Development
and
who have had their subsidies approved
and
have been allocated a house shall not be evicted from their houses
irrespective of whether they are in occupation of the houses
specifically allocated to them or not.
The respondents
(if any) who have had their subsidies approved and have been
allocated a house and are in occupation of a serviced
Erf at section
3 shall be moved as soon as practically possible into a house.
The respondents
(if any) who have had their subsidies approved, and have not been
allocated a house but are in occupation of one
shall not be evicted
and shall be allocated the house which they occupy as soon as
practically possible.
5. The respondents
(if any) who have had their subsidies approved, have not been
allocated a house and are in occupation of a serviced
Erf at section
3 shall be moved into a house as soon as practically possible.
6. The Applicant
shall ensure that the subsidy application of those respondents who
are on the 1998 list and who have applied for
subsidies which have
not yet been approved and either approve or reject the application in
terms of its usual policies within I
(one) month of the date of this
order. Those respondents whose applications are successful shall not
be evicted from their houses
if they are in occupation of one, and
if in occupation of a serviced Erf, shall be moved into a house as
soon as it is practically
possible. Those respondents whose
applications are rejected shall be evicted from houses in accordance
with paragraph 8 below if
they are in occupation of a house but shall
not be evicted from a serviced Erf.
7. The respondents
who are on the 1998 list who have not yet applied for subsidies and
are in occupation of a house or serviced Erf
shall not be evicted if
they are elderly, disabled or women heading households in which case
the provisions of paragraph 6 shall
apply to them. Respondents who do
not fall into one of these three exceptions are ordered to vacate
section 3 of the Vrygrond Development
(as demarcated on annexure
“JAS1” annexed to applicant’s founding papers) within I (one)
month of the date of this order failing
which they may be evicted by
the Sheriff of this Court and, if necessary with the assistance of
members of the South African Police
Force provided that the Sheriff
must at all times be present during such eviction. They may however
make application for a subsidy
in accordance with applicant’s
policies and applicant shall be obliged to provide them with a house
or serviced Erf as the case
may be.
In every case
where the respondents are not ordered to vacate the premises, they
shall ensure that, within one month of the date
of this order a
first delivery certificate is signed and snaglist completed
whereafter a final delivery form shall be signed no
later than a
time prescribed by the applicant.
The respondents
who do not appear on the 1998 list as well as those referred to in
paragraph 6 above are ordered to vacate section
3 of the Vrygrond
Development (as demarcated on annexure “JAS1” annexed to
applicant’s founding papers) within I (one) month
of the date of
this order failing which they may be evicted by the Sheriff of this
Court and, if necessary with the assistance
of members of the South
African Police Force provided that the Sheriff must at all times be
present during such eviction.
The applicant is
ordered to pay 50% of the respondent’s costs, as taxed or agreed,
on a party and party basis.
____________________
N.C.
ERASMUS J