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2024
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[2024] ZANCHC 36
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Harmse and Others v Kamiesberg Local Municipality and Another (CA&R 39/2021 & 1013/2023) [2024] ZANCHC 36 (12 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
CA&R
39/2021 &
1013/2023
Heard:
14/11/2023
Date available:
12/04/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
DEON
HARMSE
First Applicant
CORNELIS
HARMSE
Second Applicant
HELENA
ALBERTA CORNELIA
HARMSE
Third Applicant
OCKERT
JORDAAN
Fourth Applicant
ANDREAS
JS
PENTELBURY
Fifth Applicant
ELSABE
PENTELBURY
Sixth Applicant
ANITA
ECK
Seventh Applicant
and
KAMIESBERG
LOCAL MUNICIPALITY
First Respondent
THE
MINISTER OF TRADE AND INDUSTRY
Second Respondent
JUDGMENT
Mamosebo
J
et
L Lever J
[1]
This application was brought by seven of the initial 24 litigants.
It
comprises the following: First, an application for
condonation for their failure to comply with paragraph 2 of the order
dated
21 February 2022; secondly, a review in terms of s 7(1) of the
Promotion of Administrative Justice Act, 3 of 2000, (PAJA) and
thirdly,
the constitutionality of s 21 of the National Building
Regulations and Building Standard Act, 103 of 1977 (the NBSA).
[2]
The fourth applicant, Mr Ockert Jordaan, died of natural causes on 06
September 2023 as recorded in the death certificate issued on 07
September 2023. Six applicants remain, namely, Mr Deon Harmse,
Mr Cornelis Harmse, Ms Helena Alberta Cornelia Harmse, Mr Andreas JS
Pentelbury, Ms Elsabé Pentelbury and Ms Anita Eck;
all
residing at Eureka Settlement, Farm Dikdoorn, Garies, Northern Cape
Province. For convenience they will be referred to
as the
applicants. The first respondent is the Kamiesberg Local
Municipality (the Municipality) and the second is the Minister
of
Trade, Industry and Competition (the Minister).
[3]
This matter came before us on appeal under Case Number CA&R
39/2021
on 21 February 2022 with the Municipality as the appellant
and 24 respondents, including Mr Pieter Albertus Schreuder, the owner
of the farm which is the subject matter of this application, cited as
the first respondent. The current applicants were the
3
rd
,
5
th
, 6
th
, 9
th
, 13
th
14
th
and 16
th
respondents. The other respondents have
abandoned this litigation and some are said to have vacated the
premises and will
no longer be referred to.
[4]
The following order was made by agreement between the Municipality
and
the third to the twenty-fourth respondents on 21 February 2022:
“
1.
The appeal is postponed sine die.
2.
The third to the twenty-fourth respondents will launch an application
pertaining to the constitutionality and/or the correct constitutional
interpretation of section 21 of the National Building Regulations
and
Building Standard Act, 103 of 1977, on or before 30 April 2022. That
application may include further relief.
3.
The
third to the twenty-fourth
respondents undertake not to participate in any unlawful building
work on the farm known as Dikdoorn
within the jurisdictional area of
the appellant, while the contemplated further legal action and this
appeal remain pending.
AND THE COURT DIRECTS
THAT:
4.
This appeal be set down as soon as the proceedings in paragraph 2
above have been finally determined.
5.
The Kamiesberg Municipality file the report on the alternative
emergency
accommodation before the appeal is set down for hearing.
6.
A copy of this order be served on the first and second respondents
pending the appeal hearing.
7.
The office of the registrar of this Court is directed to furnish a
copy of the appeal record to the Director of Public Prosecutions,
Northern Cape, to determine if there is any criminal conduct
on the
part of the first and second respondents and any of the other
respondents.
8.
The costs of this appeal are reserved.
THE CONDONATION
APPLICATION
[5]
It is the failure by the aforementioned third to twenty-fourth
respondents,
now the six applicants, to comply with the second order
of the Court in para 4 above that led to the condonation application.
The
Constitutional Court in
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[1]
succinctly
explained the requirements as follows:
“
[22]
An applicant for condonation must give a full explanation for the
delay. In addition, the
explanation must cover the entire
period of delay. And, what is more the explanation must be
reasonable.”
It is
settled that condonation cannot be had for the mere asking. Moseneke
ACJ in
Ferris
and Another v Firstrand Bank Ltd
[2]
reiterated that lateness is not the only consideration when the court
considers whether condonation may be granted. The test
for
condonation is whether it is in the interests of justice to grant it.
[6]
The applicants did not bring their application on or before 30 April
2022
as ordered by the Court but brought it 13 months later with
significant unexplained gaps. Their explanation for the delay
is the following as deposed to by Harmse in the founding affidavit:
6.1
Immediately after the granting of the court order on 21 February 2022
‘
it was agreed that the legal representative of the 19
th
to 24
th
respondents [would] draft this
application. Such draft was circulated to our legal
representative on 29 April 2022, however,
the legal representatives
did not finalise the court papers due to a disagreement in respect of
Mr Nieuwoudt.
The
founding affidavit is silent regarding, when, where and by whom the
purported arrangement was agreed to.
6.2
Van Rensburg Attorneys who initially represented the 19
th
to the 24
th
respondents as attorneys of record withdrew
from the matter during or about August 2022 leading to a need to
obtain new legal representation.
WN Attorneys were instructed
during or about September 2022.
6.3
Advocate van Staden was briefed in October 2022 to settle the
application which was received
from him on 21 November 2022.
6.4
The 7
th
and 8
th
respondents (Potgieter), 17
th
and 18
th
(Kühn), became ill
and left the settlement. The following
also left around the
same time: 10
th
and 11
th
respondents (Locke),
12
th
respondent (Gothan) as well as the 15
th
respondent (Gouws). The 19
th
to 24
th
respondents (Van Rensburg’s clients) also
left the settlement. The residences are currently
occupied by
new individuals.
[7]
The explanation furnished does not account for the entire period.
The
email communication marked annexure “AC1”
attached to the applicants’ founding affidavit shows that the
legal
representatives of the nineteenth to the twenty-fourth
respondents forwarded the application to the current applicants’
attorney,
Mr Niedinger, on 29
April 2022. This was literally on the eve of the 30
th
April 2022, the date on which the applicants were to have filed the
constitutional challenge, if so advised. No explanation
was
furnished for the delay between 21 February 2022 and 29 April 2022.
[8]
Niedinger’s response dated 03 June 2022 to Dr Van Rensberg, the
non-participating parties’ attorney, adds to the silence
regarding the period of delay between 29 April 2022 and 03 June
2022. Whereas Van Rensberg responded to Niedinger on 08 June
2022 there is no explanation for the further delay between 08
June
2022 and the unspecified date in October 2022 when their counsel, Mr
van Staden, was allegedly briefed. A further unexplained
gap
appears between the period 21 November 2022 and 31 May 2023 when the
application was filed.
[9]
Whereas counsel for the applicants submitted that there was a clash
of
interest between Van Rensburg and Niedinger, as attorneys
representing the two groups of occupiers, they distanced themselves
from
Nieuwoudt without providing any detail save to say the
applicants have ‘touched’ on this matter in their
application.
No specific details surrounding Nieuwoudt are
furnished in the founding affidavit. The contents of the draft
that was
circulated between the legal representatives and their
clients on 29 April 2022, the eve (30 April 2022) of the deadline, is
also
not explained.
[10]
The aforementioned explanation given by the applicants is superficial
and unconvincing.
It falls far short of the requirements to be
met in condonation applications. We are not satisfied that the
applicants
are entitled to condonation in respect of their failure to
launch their application timeously. There is an important
principle
that a litigant is entitled to have closure on litigation.
The principle of finality in litigation is intended to allow
parties
to administer their affairs and get on with their lives. In
the judicial exercise of our discretion we are not disposed to
grant
condonation in view of the inordinate delay and the absence of a
reasonable explanation. In addition, as will become
evident,
the application is without merit.
THE REVIEW APPLICATION
[11]
The applicants brought the review application in terms of s 7(1) read
with 9(1)(b)
of the Promotion of Administrative Justice Act
[3]
(PAJA) seeking an extension of the 180-day period within which to
bring the review application. In it, they base their challenge
on the assumption that the Municipality has failed to comply with the
National Building Regulation A25(9) and A25(10) by failing
to take a
decision as contemplated in s 6(2)(g) of PAJA.
[12]
A brief background to this review application is to this effect. The
applicants
are among the many others who joined the Eureka Movement
formed by Mr Adriaan Nieuwoudt in 2016. Members of this
movement
erected houses on a farm known as Dikdoorn which was and
still is owned by Mr Pieter Albertus Schreuder after payment was made
to the Eureka Movement. These houses were erected without
approved building plans. The Municipality became aware of
this
development in November 2017 and addressed a letter under signature
of the Municipal Manager, Mr JG Cloete, to Nieuwoudt (DH3)
which
reads:
“
INSAKE:
BEWEERDE DORPSTIGTING
Dit het onder ons
aandag gekom dat daar na bewering ‘n tipe van dorpsontwikkeling
op u plaas beoog word met die naam van Eureka.
Indien
daar waarheid steek in die bogenoemde bewering, word u hiermee
versoek om die ontwikkeling te stop en te sorg dat die wetlike
prosesse eers afgehandel word, voordat enige verdere ontwikkeling kan
geskied. Die munisipaliteit het geen rekord van enige
aansoek
wat ingedien is in hiedie verband.
Verder
vereis die Ruimtelike Beplanning en Grondgebruiks Bestuurswet, 2013,
Wet 16 van 2013 dat alle aansoeke om grondgebruiksverandering
in ‘n
Munisipale gebied, moet dien voor ‘n Munisipale
Beplanningstribunaal vir goedkeuring en in u geval waar landbougrond
betrokke is, ook ‘n goedkeuringsbrief van die Departement van
Landbou.
U
samewerking in hierdie verband word waardeer.”
[4]
[13]
Nieuwoudt responded to the Municipal Manager on 27 November 2017
under the Letter
Head “Eureka Beweging” which reads:
INSAKE: BLANKE
KULTUURGROEP
Geagte meneer Cloete
Ek antwoord op u pos
van 13 November 2017 en verwys na die skrywe van 25 September 2017
per geregistreerde pos aan u kantoor, wat
ek hierby aanheg.
Soos in aangehegte
skrywe vermeld,
is ek die sameroeper van die EUREKA Beweging en is
gemagtig om namens die beweging te reageer
op sake wat die
beweging aangaan.
Ek respekteer u
belangstelling en bevestig graag hiermee as volg.
1.
Daar sal geen poging aangewend word
om die grond ter spake sonder ‘n behoorlike aansoek te
onderverdeel nie.
2.
Lede wat by die intensiewe boerdery
metodes betrokke wil raak sal egter op die gesamentlike regte vir hul
wonings kan oprig om hier
tydelik of permanent te woon en te werk.
3.
Daar is geen begeerte anders as om
net hier ons taal en kultuur tussen ons eie mense uit te leef soos
wat ander kaltuurgroepe vir
jare reeds doen nie.
Alhoewel ons begeer om
onsself hier te handhaaf bly ons steeds daartoe verbind om waar
moontlik tot die ontwikkeling van die hele
omgewing ons bydrae te
maak.
Ons beplan om in die
loop van 2018 ons eerste groente tonnels op te rig. Ons beplan
voedsel verbouing met gevorderde moderne
tegnologie. Ons moet
egter eers behuising vir ons mense hê voordat ons daarby kan
uitkom.
Wees verseker van ons
heelhartige samewerking in die toekoms en dat ons enige bepaling van
die reg sal volg. Daar is geen
begeerte om die regte van enige
ander landsburgers ooit te skaad nie.
Vriendelike
Groete.”
[5]
[14]
On 26 March 2018 Mr Carlo Viljoen, referring to himself as the legal
executive officer
for Eureka, wrote an email to the Municipality
(DH6) recording Eureka’s intention to establish a township on
the farm Dikdoorn.
He, among others, mentioned that the farm
was bought by Eureka Pty Ltd, that the sale was concluded and that
the transfer
was pending. Viljoen requested to be put in
contact with the Chief Town Planner and any other relevant person who
would assist
them with the application. On 05 October 2018 the
Municipality launched an application against Schreuder in the Garies
Magistrates
Court. The applicants applied to be joined in the
application. The Magistrate dismissed the application by the
Municipality.
This resulted in an appeal which was postponed
sine die
to afford the applicants an opportunity to challenge
the constitutionality of s 21 of the NBSA.
[15]
Essentially, the application boils down to a move by the applicants
to prevent the
Municipality from demolishing their homes which they
concede were erected on Dikdoorn Farm without first obtaining
approved building
plans by the municipality as required by s 4(1) of
the National Building Regulations and Building Standards Act
[6]
.
[16]
It is the applicants’ case that the Municipality failed to
serve them with
notices as contemplated in Regulations A25(9) and
A25(10) of the NBSA which stipulate:
“
(9)
Where any building is being or has been erected and any contravention
of these regulations
other than those relating to matters referred to
in sub-regulation (4) or (5) has been committed,
the
local authority shall serve a notice on the owner of such building
and in such notice shall specify
a date by which such owner shall have complied with the regulations,
cite the regulations contravened
and specify the steps to be taken in
order to comply with such regulations.
(10)
Where any building, excluding a temporary building, is being or has
been erected without
the prior approval contemplated in section 4(1)
of the Act, the local authority shall serve a notice on the owner of
such building,
calling upon him to obtain the approval, in writing,
as required by the Act, by a date specified in such notice.”
[17]
Section 4 of the NBSA, which is couched in peremptory terms, deals
with the approval
by local authorities of applications in respect of
erection of buildings by providing the following:
“
(1)
No person shall
without the prior approval in
writing
of the local authority
in question, erect any building in respect of which plans and
specifications are to be drawn and submitted
in terms of this Act.
(2)
Any application for approval referred to in subsection (1) shall be
in writing
on a form made available for that purpose by the local
authority in question.
(3)
Any application referred to in subsection (2)
shall
-
(a)
contain the name and address of the
applicant and, if the applicant is not the owner of the land on which
the building in question
is to be erected, of the owner of such land;
(b)
be accompanied by such plans,
specifications, documents and information as may be required by or
under this Act, and by such particulars
as may be required by the
local authority in question for the carrying out of the objects and
purposes of this Act.
(4)
Any person
erecting any building in contravention of the provisions of
subsection (1)
shall
be
guilty of an offence and liable on conviction to a fine not exceeding
R100 for each day on which he was engaged in so erecting
such
building.
”
[18]
Section 7(1) provides for the procedure for judicial review as
follows:
“
(1)
Any proceedings for judicial review in terms of section 6 (1) must be
instituted without
unreasonable delay and not later than 180 days
after the date-
(a)
subject to subsection (2) (c), on which any proceedings instituted in
terms of internal remedies as
contemplated in subsection (2) (a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative action,
became aware of the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and
the reasons.”
[19]
Section 9(1)(b) makes provision for the variation of time by stating
that (1) the
period of-
(b)
90 days or 180 days referred to in sections
5 and 7 may be extended for a fixed period, by agreement between the
parties or, failing
such agreement, by a court or tribunal on
application by the person or administrator concerned.
The municipality has not
consented to the period being extended and has opposed the
application for the extension.
[20]
The contention by the applicants that the Municipality has failed to
serve them with
the required notice as stipulated by the National
Building Regulation A25(9) and A25(10) is without merit. “Owner”
is defined in section 1 of the NBSA as: ‘owner’, in
relation to a building or land, means the person in whose name
the
land on which such building was or is erected or such land, as the
case may be, is registered in the deeds office in question.
According to the deeds search (DH2) Schreuder is the registered
owner of Dikdoorn Farm. He was rightfully served and
even cited
as the respondent for the transgression. Consequently, there
was no need for the Municipality to have served the
applicants with
such notices. What exacerbates the applicants’ case is
that despite Nieuwoudt, as the purported coordinator,
undertaking to
comply with the cited law after communication by Cloete that Eureka
refrain from further construction activities,
the number of homes
erected continued to increase.
[21]
Harmse made this startling admission in his founding affidavit which
this Court must
have regard to:
“
Dikdoorn
farm and the houses which form the basis of this application are out
of sight, not an environmental or health hazard and
should be out of
mind. These houses bother nobody except the first respondent.”
[22]
In the circumstances, it is our view that the Municipality has not,
as alleged by
the applicants, failed to serve the required notice as
contemplated in the National Building Regulation A25(9) and A25(10).
[23]
The applicants have also not explained the relevance of invoking s
6(2)(g) of PAJA.
The clause is intended to compel the
administrator to take a particular administrative decision. The
relief sought
by the applicants by invoking s 6(2)(g) of PAJA is to
oblige the Municipality to issue the Regulation A25(9) and A25(10)
notice
to them. Not only does this type of relief amount to a
mandamus
whose requirements have not been met, but, as stated
earlier, we are not persuaded that they were entitled to be served
with such
notices.
[24]
It is unclear how extending the period of lateness will assist the
applicants with
the review application when a notice was served on
the owner of the land. This, notwithstanding the fact that the
delay was
inordinate and without adequate explanation. The
Constitutional Court settled this aspect regarding the delay that is
longer
than 180 days in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[7]
by affirming that the court must consider whether it is in the
interests of justice for the time period to be extended. In
Camps
Bay Ratepayers and Residents Association and Another v Harrison
[8]
Maya
JA, then, writing for a unanimous court made the following salutary
remarks pertaining to determining whether it is in the
interests of
justice to extend the 180 days:
“
And
the question whether the interests of justice require the grant of
such extension depends on the facts and circumstances of
each case:
the party seeking it must furnish a full and reasonable explanation
for the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration
of justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.”
[25]
The following information is significant.
25.1
The land on which the applicants have erected their houses is zoned
for agricultural purposes
only. The applicants have to date not
submitted any application with the Municipality to develop a town or
township on Dikdoorn
farm.
25.2
The Municipality must implement the Spatial Planning Land Use
Management Act, 16 of 2013 (SPLUMA).
According to s
26(2)(a) of SPLUMA land may be used only for the purposes permitted
by a land use scheme.
Clause 2 of Schedule 2 to SPLUMA defines
agricultural purposes as “
purposes normally or otherwise
reasonably associated with the use of land for agricultural
activities, including the use of land
for structures, building and
dwelling units reasonably necessary for or associated to the use of
the land for agricultural activities.”
In this
instance there has been no legalisation of town planning by the
applicants or their representatives.
25.3
Section 26(3) of SPLUMA provides that where no town planning or land
use scheme applied to a
piece of land before a land use scheme is
approved in terms of SPLUMA, such land may be used only for the
purposes listed in Schedule
2 to SPLUMA and for which such land was
lawfully used or could lawfully have been used immediately before the
commencement of SPLUMA.
25.4
The applicants’ residences were erected contrary to the
provisions of SPLUMA, which conduct
amounts to an offence punishable
in terms of s 58(1)(b) of SPLUMA to a term of imprisonment for a
period not exceeding 20 years
or to a fine calculated according to
the ratio determined for such imprisonment in terms of the Adjustment
of Fines Act, 1991.
[26]
Regard being had to the aforesaid and mindful of the purpose of the
NBSA being: To
provide for the promotion of uniformity in the
law relating to the erection of buildings in the areas of
jurisdiction of local
authorities; for the prescribing of building
standards; and for matters connected therewith, the provisions of the
NBSA apply to
the Kamiesberg Municipality too. Nothing exempts
this Municipality from the application of the NBSA. To date no
application
was filed with the Municipality in an endeavour to
regularise the situation.
[27]
The applicants have not only failed to make out a case for the
extension of the 180-day
period within which to bring the review but
also failed to furnish any explanation for such failure. They
have further failed
to furnish reasons why it would be in the
interests of justice to extend the period. It follows,
therefore, that the application
stands to be dismissed.
It
therefore follows that their application to have the impugned failure
reviewed and set aside must also fail because the interests
of
justice requirement has not been satisfied.
[28]
It must be pointed out that counsel for the applicants raised a new
ground of review
challenging the administrative action by the
Municipality to have them evicted and because of that they have a
right to be informed.
This ground is not in the papers.
Counsel conceded that this new ground is not contained in the
founding affidavit
nor belatedly in the replying affidavit. He
was further unable to refer the Court to any specific section in the
Constitution
to support his submission and sensibly abandoned the
argument.
THE CONSTITUTIONALITY
OF SECTION 21 OF THE NBSA
[29]
The relief sought by the applicants under this head is a declarator
in respect of
the constitutionality of s 21 of the National Building
Regulations and Building Standards Act (the NBSA), that s 21 is
unconstitutional.
In the alternative, that the phrase in s 21
which reads: “…
.or authorising such local authority
to demolish such building….”
be declared in breach
of the Constitution and therefore unconstitutional as contemplated in
s 172(2)(a) of the Constitution. This,
they argue, is based on
the fact that the section gives a Magistrate, acting in terms of s
21, a wide and equitable discretion
to order demolition, whereas a
Magistrate is a creature of statute.
Section 21 of the NBSA
deals with the erection and demolition of buildings and provides:
“
Notwithstanding
anything to the contrary contained in any law relating to
magistrates' courts, a magistrate shall have jurisdiction,
on the
application of any local authority or the Minister, to make an order
prohibiting any person from commencing or proceeding
with the
erection of any building or authorizing such local authority to
demolish such building if such magistrate is satisfied
that such
erection is contrary to or does not comply with the provisions of
this Act or any approval or authorization granted thereunder.”
[30]
Mr van Staden, for the applicants, submitted that in
BSB
International Link CC v Readam South Africa (Pty) Ltd and Another
[9]
the SCA expressed a critical view that in its interpretation of s 21
the Court in
Lester
v Ndlambe Municipality
[10]
may
not have taken certain factors pertaining to s 21 into consideration.
Counsel submitted that the applicants are vulnerable
people and
since they do not own any other property elsewhere the demolition of
their houses may result in their eviction. The
applicants
contend that s 21 may not be justifiable in terms of s 36 of
the Constitution and further does not accord with
Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
[11]
(PIE)
and Extension of Security of Tenure Act
[12]
(ESTA). The applicants contend that in
Lester
the judgment does not take into consideration s 10 of the
Constitution which affords everyone the right to dignity as well as s
26(1) of the Constitution which affords everyone the right to have
access to adequate housing.
[31]
The correct approach when interpreting documents, including
legislation, has become
settled. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[13]
Wallis JA said:
“
[18]
Interpretation is the process of attributing meaning to the words
used in a document, be it legislation,
some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions
in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of
the document, consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context
in which the provision appears;
the apparent purpose to which it is directed and the material known
to those responsible for its
production. Where more than one meaning
is possible each possibility must be weighed in the light of all
these factors. The
process is objective, not subjective. A
sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike
results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute
what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to
a statute or
statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract
for the parties other than the one they in fact made.
The 'inevitable point of departure is the language of the
provision
itself', read in context and having regard to the purpose
of the provision and the background to the preparation and production
of the document.”
[32]
Section 172 of the Constitution
[14]
deals with powers of courts in constitutional matters and provides:
“
(1)
When deciding a constitutional matter within its power, a court-
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent
of its inconsistency; and
(b)
may make any order that is just and equitable, including-
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the
competent authority to correct the
defect.”
[33]
Mr Knoetze SC, for the Municipality, invoked
Miya
v Matleko - Seifert
[15]
in
countering the submission by Mr Van Staden that s 21 does not give a
Magistrate any discretion to take the circumstances of the
people
involved into account. Counsel maintained that the Court found
in
Miya
that
eviction and demolition are constitutional issues which enjoins a
Magistrate to consider s 172 of the Constitution before making
an
order. The Court in
Miya
[16]
remarked:
“
[77]
In any event, s 172(1)(b) of the Constitution empowers a court to
make any order that is just
and equitable when deciding a
constitutional matter within its power. The granting of an eviction
order in terms of PIE is a constitutional
matter, in that it
implicates the appellant's right to have access to adequate housing
in terms of s 26(1) of the Constitution,
and her right in terms of s
26(3) of the Constitution not to be evicted from her home without an
order of court made after considering
all the relevant
circumstances. At the same time, the respondent's right to
property in s 25 of the Constitution is implicated.
An order
can be made in terms of s 172 of the Constitution, that is just and
equitable without first necessarily declaring
any law or conduct
invalid as being inconsistent with the Constitution.”
[34]
Ackermann J in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powel NO and Others
[17]
stated
that the test for invalidity of a statutory provision is objective;
and that the subjective positions in which parties to
a dispute may
find themselves cannot have a bearing on the status of the provisions
of a statute under attack. The Constitutional
Court, or any
competent Court, ought not to restrict its enquiry to the position of
one of the parties to a dispute in order to
determine the validity of
a law, the Court stated. Whereas Mr Van Staden has emphasised
the age of the applicants for consideration
by this Court, that
should not be the only consideration to tilt the decision in their
favour. Doing so would, in our view,
afford litigants unequal
protection of the law.
[35]
Ms Moroka SC, for the Minister, submitted that despite s 21 being
assailed by the
applicants, the Minister maintains the stance that it
is constitutional. The applicants refer in emotive terms that
the section
was legislated during the apartheid era but the law must
be read through the prism of the Constitution. The attack on
the
constitutional validity is misconceived, regard being had to the
provisions of s 39(2) of the Constitution. The interpretation
of s 21 must be done through the prism of the Bill of Rights, counsel
contended.
[36]
The interpretation of s 21 is crucial because all the parties
referred to the three
judgments by the Supreme Court of Appeal (SCA)
namely,
Lester,
BSB International Link CC v Readam SA
[18]
(Readam)
and
Serengeti
Rise Industries v Aboobaker
[19]
(Serengeti).
In
Readam
[20]
,
the
court of first instance granted an order in favour of Readam for a
partial demolition in a case involving an encroachment on
Readam’s
land. BSB international noted an appeal. Notwithstanding
that the Municipality was cited as respondent,
it did not participate
in the proceedings. Ponnan et Swain JJA stated:
“
[23]
…However, it is clear that only a local authority or the
Minister has locus standi to
bring an application in terms of s 21
before a magistrate. The statutory right to seek the remedies
provided for in s 21
is clearly intended to enable local authorities
and the Minister to ensure compliance with the provisions of the NBSA
in relation
to town-planning schemes. Consequently an
individual with standing to bring an application to review and set
aside the unlawful
approval of building plans by a local authority
would not have locus standi to pursue the remedies provided for in s
21. Such
an individual would be restricted to seeking a
mandamus in appropriate circumstances to compel the municipality or
the Minister
to act in terms of s 21 of the NBSA, should the
municipality or Minister have failed so to act.”
The
distinction between
Lester
and
Readam
is
that in
Lester
the
Municipality was a party to the proceedings and invoked s 21 as
required unlike in
Readam
.
The criticism levelled against
Lester
appears in paras 27 and 28 of Readam’s
judgment. Emphasis is that because of the draconian nature of s
21 there must
be judicial oversight.
Readam
did not seek a public law remedy under
s 21 nor rely on any of the provisions of the NBSA. We are of
the view that
Readam
is distinguishable on the facts.
[37]
In
Serengeti
the appeal court considered the validity of a
demolition order granted by the KwaZulu-Natal Division of the High
Court. The
SCA stated that
Lester
must now be read in
the light of
BSB International (Pty) Ltd v Readam South Africa,
which is the later judgment
.
The facts in
Serengeti
are also distinguishable from the facts in
Lester.
[38]
The case of
Lester
involved the unlawful erection of a primary
residence without approved building plans as required by s 4(1) of
the NBSA. The
Court in
Lester
found that the protection
afforded in s 26(3) must therefore always, without exception, be read
against the backdrop of the right
to have access to adequate housing,
enshrined in s 26(1). Thus, where a person facing a demolition
order does not adduce
any evidence that he or she would not, in the
event of his or her dwelling being demolished by order of a court, be
able to afford
alternative housing, s 26(1) is of no avail to him or
her. The applicants
in casu,
apart from emphasising
their age and vulnerability, the calamitous financial implications,
that the residences are out of sight
and do not bother anyone, were
also adamant that they are developing Eureka as a town to promote
their culture and language. They
did not aver anywhere in the
papers that they would be rendered homeless and destitute by the
demolition.
[39]
The Courts have already pronounced in several matters that what
constitutes ‘
adequate housing
’ is a factual
enquiry. The question that remains to be answered is whether
the right of access to adequate housing
would be compromised by the
demolition of the erected unlawful structures. We do not think
so. The primary issue is
not that they cannot occupy the farm
and any lawful structures but the unlawfully erected structures
without approved plans.
[40]
As pointed out by Majiedt JA, then, in
Lester
, s 21 must be
read with ss 4(1) and 4(4) of the NBSA. Sec 21 authorises a
Magistrate on application of a local authority
or the Minister to
order demolition of a building erected without any approval under the
Act. The applicants have conceded
that the residences have been
erected unlawfully and without building plans. It follows that
the law cannot and does not
countenance an ongoing illegality which
is also a criminal offence. To do so, Majiet JA found, would be
to subvert the doctrine
of legality and to undermine the rule of law.
[41]
In any event, the applicants had been aware since November 2017 that
the town development
was embarked upon in contravention of the law
and without building plans. Nothing prevented Schreuder as the
owner of the
property and Nieuwoudt as the coordinator or their
experts or even legal advisors from accessing the relevant
documentation from
the Municipality and following the required
processes. The reaction by the applicants at this stage is
nothing short of arrogant
indifference.
[42]
We are mindful of the financial implications, the inconvenience and
some degree of
disruption in the lives of the applicants that may
ensue in consequence of an adverse decision. Sight cannot be
lost of the
fact that the houses that form the subject of this
application are detrimental to the environment and are a health
hazard as highlighted
in the report dated 07 October 2019 compiled by
the Department of Water and Sanitation. Should this court
incline to find
s 21 unconstitutional, the effect thereof would lead
to unlawful land invasions.
[43]
Dambuza JA in
Serengeti
held that sections 38 and 172 enjoin
Courts to order case-appropriate remedies. This means that when
a party seeks a relief
in terms of s 21 the court is not compelled to
order demolition but is enjoined to order a case-appropriate order
promoting the
spirit, purport and objects of the Constitution and the
Bill of Rights. We are not persuaded that s 21 is in conflict
with
the provisions of the Constitution, in fact, that it is
unconstitutional. There is also nothing wrong with the phrase
in
s 21 that reads “or authorising such local authority to
demolish such building”, as was contended for by the
applicants.
[44]
Section 172(1)(b) of the Constitution empowers a Court to make any
order that is
just and equitable when deciding a constitutional
matter within its power. In
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[21]
Moseneke
DCJ made the following salutary remarks:
“
[97]
It is clear that s 172(1)(b) confers wide remedial powers on a
competent court adjudicating a
constitutional matter. The
remedial power envisaged in s 172(1)(b) is not only available when a
court makes an order of constitutional
invalidity of a law or conduct
under s 172(1)(a). A just and equitable order may be made even
in instances where the outcome
of a constitutional dispute does not
hinge on constitutional invalidity of legislation or conduct. This
ample and flexible
remedial jurisdiction in constitutional disputes
permits a court to forge an order that would place substance above
mere form by
identifying the actual underlying dispute between the
parties and by requiring the parties to take steps directed at
resolving
the dispute in a manner consistent with constitutional
requirements. In several cases this court has found it fair to
fashion
orders to facilitate a substantive resolution of the
underlying dispute between the parties. Sometimes orders of
this class
have taken the form of structural interdicts or
supervisory orders. This approach is valuable and advances
constitutional
justice, particularly by ensuring that the parties
themselves become part of the solution.”
[45]
The applicants have, in our view, failed to make out a case for the
declaration of
s 21 of the NBSA unconstitutional. There is also
no merit in finding that the Magistrate, in ordering the demolition
of a
building or some buildings, lacks discretionary powers. We
are of the view that whereas the Magistrate is not obliged to issue
the order once the jurisdictional fact is established, he or she may
issue the order if justified. The applicants’
reliance on
sections 25 and 26 of the Constitution was misplaced.
It follows that the
application to declare s21 unconstitutional stands to fail.
[46]
On the question of costs. Awarding of costs remains a
discretion of the Court
which must be exercised judicially. The
applicants have been truant in their handling of this matter leading
to unnecessary
delays in litigation coupled with spurious court
processes. Their conduct is not completely innocent. However,
this
case does implicate constitutional issues such as the
applicants’ rights under the Bill of Rights. Hence senior
counsel
was involved. It would accordingly be fair and
equitable to invoke
Biowatch
Trust v Registrar Genetic Resources and Others
[22]
and
order that each party must bear its own costs.
[47]
In the result, the following order is made:
1.
The application for condonation is denied.
2.
The whole of the application is dismissed.
3.
It is ordered that each party bears its own costs.
MC
MAMOSEBO
L
LEVER
JUDGE
OF THE HIGH COURT
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
NORTHERN
CAPE DIVISION
For
the Applicants:
Adv.
HP van Staden
Instructed
by:
WN
Attorneys Inc
c/o
PGMO Attorneys
For
the 1
st
Respondent:
Adv.
B Knoetze SC
Instructed
by:
Duncan
& Rothman Inc
For
the 2
nd
Respondent:
Adv.
KD Moroka SC
Instructed
by:
Office
of the State Attorney
[1]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para 22
[2]
2014
(3) SA 39
(CC) at para 10
[3]
3
of 2000
[4]
Loosely
translated: RE: TOWN DEVELOPMENT
It has come to our
attention that there is allegedly a type of town development planned
on your farm with the name of Eureka.
If there is any truth in
the above assertion, you are hereby requested to stop the
development and ensure that the legal
processes are completed before
any further development can take place. The municipality has
no record of any application
submitted in this regard. Furthermore,
the
Spatial Planning and Land Use Management Act, 2013
, Act 16 of
2013 requires that all applications for land use change in a
Municipal area must be submitted to a Municipal Planning
Tribunal
for approval; and in your case where agricultural land is involved,
also an approval letter from the Department of Agriculture.
Your
cooperation in this regard is appreciated.
[5]
Loosely
translated: RE: WHITE CULTURAL GROUP
Dear Mr. Cloete
I reply to your mail of
13 November 2017 and refer to the letter of 25 September 2017 by
registered post to your office, which
I am attaching hereto.
As stated in the
attached letter, I am the convener of the EUREKA Movement and
authorized to respond on behalf of the movement
to matters
concerning it.
I respect your interest
and hereby confirm as follows.
1. No attempt will be
made to subdivide the land without a proper application.
2. Members who want to
get involved in intensive farming methods will, however, rely on the
joint rights to erect their homes
to live and work here temporarily
or permanently.
3. There is no desire
other than to promote our language and culture here among our own
people as other cultural groups have been
doing for years.
Although we wish to
maintain ourselves, we remain committed to making our contribution
to the development of the entire region
wherever possible.
We plan to establish our
first vegetable tunnels in the course of 2018. We plan food
cultivation with advanced modern technology.
We must first
have housing for our people before reaching that stage.
Be assured of our
wholehearted cooperation in future and that we will follow any
provision of the law. There is no desire to vitiate
the rights of
any citizen ever.
Kind regards."
[6]
103
of 1977
[7]
2019
(4) SA 331
(CC) at para 47
[8]
[2010]
2 All SA 519
(SCA) at para 54
[9]
2016
(4) SA 83 (SCA)
[10]
2015
(6) SA 283 (SCA)
[11]
19
of 1998
[12]
62
of 1997
[13]
2012
(4) SA 593 (SCA)
[14]
Act
108 of 1996
[15]
2023
(1) SA 208
(GJ)
[16]
Ibid
at para 77
[17]
1996
(1) SA 984 (CC)
[18]
2016
(4) SA 83
(SCA)
[19]
2017
(6) SA 581 (SCA).
[20]
Ibid
at para 23
[21]
2010
(2) SA 415
(CC) para 97
[22]
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC) ;
2009 (10) BCLR 1014
(CC) (3 June 2009)