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WILSON J:

1 The applicants own land in Elandsfontein, near Kempton Park. Their land is
immediately adjacent to a farm owned by the first respondent, Mount Carmel.
There is a substantial informal settlement on Mount Carmel’s property. It is not presently known exactly how many people live in the informal settlement, but the applicants say that there were at least 162 structures present on the
property in 2015. That number had grown to 269 structures by February 2020.
The second respondent, the Ekurhuleni Municipality, says that there were at least 126 households living on the property in December 2021. That figure was based on what the Municipality refers to as an “audit” of the property that
is, apparently, only 70% complete.
2 The Mount Carmel property originally housed nothing more than an
abandoned farmhouse and a dumpsite. The property has been occupied since 2011, apparently without Mount Carmel’s consent, and against its will – although I am not convinced that Mount Carmel made much of an effort to stop the occupation. The Municipality says that those of the residents of the
informal settlement who are employed work on neighbouring farms, and that
they earn an average of R4200 per month from doing so. The land does not appear to have been prepared for residential occupation. There are few if any services on the property. At least some of the residents are forced to wash themselves and launder their clothes in a stream that runs through it.
3 The applicants regard the informal settlement as a nuisance. They point to
what they say are the clear health and environmental hazards posed by a large number of people living without basic services in such close proximity to
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their land. In their founding affidavit, the applicants complain that the residents
of the informal settlement regularly trespass on their property, sometimes using dogs to hunt there. The applicants emphasise what they say are the consequent risks of “rabies and other diseases” being spread by that activity. They say that the noise emanating from the informal settlement is “extreme” over weekends, and that “crime ha[s] increased exponentially” as a result of the informal settlement’s occupation.
The relief sought before me
4 Aggrieved, the applicants instituted a two part application in this court. In their
“first order prayed”, the applicants ask for three declarations. First, the
applicants ask that I declare that the “establishment of a township” on the Mount Carmel property contravenes both the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”) and the Municipality’s own Spatial Planning and Land Use Management by-laws. Second, they ask for a declaration that the structures erected on the Mount Carmel property
contravene the National Building Regulations and Building Standards Act 103 of 1997 (“the NBRA”). Thirdly, they ask for declaration that the structures were erected in contravention of the National Environmental Management Act 107 of 1998 (“NEMA”), of the regulations promulgated under it , and, of the right to
an environment that is not harmful to their health or well-being, enshrined in
section 24 of the Constitution, 1996.
5 The applicants also seek an order directing Mount Carmel, the Municipality
and the sixth respondent, the MEC, to compile a list of the names of the residents of the informal settlement, together with further information
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concerning the residents’ relationships to each other, their nationalities and
their immigration status. The applicants also seek an order directing the
Municipality and the MEC to file a report addressing availability of alternative accommodation to the residents of the informal settlement.
6 Furthermore, the applicants ask for an order interdicting and restraining Mount
Carmel from “allowing additional occupiers to take occupation” of its property, to “take steps to prevent pollution” of water on the applicants’ property, and to file a report setting out the steps it intends to take to achieve that objective.
7 In the second part of their application - the “second order prayed” – the
applicants seek an order directing Mount Carmel and the Municipality to demolish the informal settlement, to provide alternative accommodation to those residents of the informal settlement who would be rendered homeless by the demolition, and to interdict and restrain the Municipality and the fourth respondent, the Minister, from granting permission to establish a township on Mount Carmel’s property.
The relief sought is incompetent
8 Only the “first order prayed” is before me. None of it can be granted for at least
the following reasons.
Non-joinder
9 In the first place, none of the residents of the informal settlement on Mount
Carmel’s land has been joined to these proceedings. This is despite the fact
that the applicants seek final relief which clearly affects the residents’ interests. Far-reaching final declaratory orders are sought in relation to which
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the residents must be given a reasonable opportunity to be heard. I am also
asked to authorise a highly invasive form of census, which will see the residents being asked to disclose a wide range of personal information. None of this relief can be granted without the residents being joined to the proceedings and heard in relation to the relief, should they wish to be so heard.
10 Mr. Roberts, who appeared together with Ms. Roberts for the applicants, was
unable to submit that the residents of the informal settlement did not have a direct and substantial interest in the “first order prayed”. He instead submitted that the residents could not be joined to the proceedings because nobody can
say who they were. He followed that submission up with the proposition that the relief sought in the “first order prayed” is so obviously meritorious as to be
incapable of dispute.
11 Mr. Roberts was wrong to submit that there was no way of joining the residents
of the informal settlement to these proceedings. The applicants know that they seek relief in respect of all of the occupiers of Mount Carmel’s property. They need only have identified and joined the residents in that capacity. The practice of citing all of the residents of a particular property, usually in eviction proceedings, is so well-known that I have some difficulty in accepting that this did not occur to the applicants. Be that as it may, the applicants were plainly in a position to identify the residents of the informal settlement with sufficient particularity to make them parties to these proceedings.
12 I was, in addition, constrained to point out to Mr. Roberts that the compulsory
practice of joining all directly and substantially interested parties to a lawsuit
applies even to apparently unlosable cases. What matters is not the strength
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of the applicants’ case, but the fact that the relief sought will directly affect the
rights of others. For the reasons I have given, the relief the applicants seek plainly directly affects the rights of the residents of Mount Carmel’s property, who ought to have been joined from the outset.
No prima facie right to the second order prayed
13 Mr. Roberts submitted that the relief sought in the “first order prayed” is merely
preparatory to the relief being sought in the “second order prayed” . The
“second order prayed” is essentially an eviction order. Accepting for a moment that the “first order prayed” really is no more than interim relief pending the determination of the “second order prayed”, it is trite that I cannot grant it unless I am satisfied that the applicants have a prima facie right to the “second
order prayed”.
14 The applicants plainly have no such right. I can think of no cause of action in
law for an order directing a neighbour to evict an occupier of their property. Even if that remedy is available at common law to abate a nuisance, the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (“the PIE Act”) has long since supplanted any such remedy against an unlawful occupier. Everyone before me accepted that the residents of the Mount Carmel property are unlawful occupiers within the meaning given to that term under section 1 of the PIE Act. The PIE Act makes clear that eviction applications may only be brought against unlawful occupiers by the owner or person in charge of the relevant property, or by a local authority acting in the public interest. The applicants simply have no standing to seek the eviction of the residents.
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15 That being so, the applicants have no right to the “second order prayed”. To
the extent that the absence of such a right precludes the grant of the “first
order prayed”, the application for it must be dismissed.
The declaratory orders sought
16 In any event, the three declarators the applicants seek in their “first order
prayed” are neither interim in nature nor preparatory to an application for the second order prayed. They are, in substance, orders that confirm that the informal settlement is neither an approved township under SPLUMA, nor an approved structure under the NBRA, nor a development that has been approved under NEMA.
17 It is well established that I have a discretion to refuse an application for
declaratory relief, even if it has some merit. That discretion is normally exercised where there is no live controversy between the parties that would be resolved by a declaratory order. This is clearly such a case. Neither the Municipality nor Mount Carmel contend that the informal settlement has been erected in compliance with SPLUMA, the NBRA or NEMA. Indeed, in 2012,
the Municipality instituted proceedings against Mount Carmel to compel the eviction of the people then resident at the property, on the basis that they had moved on to the property in breach of the Municipality’s Town Planning Scheme. The Municipality, wisely in my view, has not pressed that application to a hearing, but the very existence of the application indicates that the
Municipality takes no issue with the applicants’ claims that the informal settlement was erected without complying with NEMA, SPLUMA or the NBRA. There is accordingly no controversy to resolve.
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18 There is a further, more fundamental, reason why I will not grant the
declaratory orders. Neither SPLUMA, nor the NBRA, nor NEMA were ever
intended to provide a mechanism to stigmatise informal settlements as illegal or unwanted blights on the environment or on urban development. They are intended to govern the terms under which sustainable, inclusive and
environmentally friendly urban development takes place. It seems to me to be
an abuse of these statutes to seek relief which is ultimately intended to eradicate a large number of people’s homes – whether or not those homes are perceived to constitute a nuisance to neighbouring property owners.
19 If the conditions in the informal settlement are to be addressed, they cannot
sustainably be addressed as if the people living there are no more than sources of urban blight. The Constitution, the PIE Act and the National Housing Code, 2009 (especially the Upgrading of Informal Settlements Policy contained in the Code) provide the proper vehicles through which to address the needs of the informal settlers. I will not assist in applicants’ attempts to
repurpose SPLUMA, the NBRA and NEMA to evict the residents and destroy their homes. Nor, as a matter of law, may I do so.
The amendment
20 The applicants and the residents of the informal settlement, may, of course,
have administrative law remedies against the Municipality and the other state
respondents to take steps to improve living conditions there, or to provide alternative shelter if such steps cannot be taken while the residents remain in
situ. It was perhaps an inkling that these remedies might be the proper route to a resolution of their difficulties that led the applicants, in April 2022, to
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amend the relief they sought, albeit without a formal application to do so .
Instead of a straightforward eviction order in their “second order prayed”, the
applicants’ amendment envisages a mandamus against the Municipality,
compelling it to bring eviction proceedings under the PIE Act against the residents of the informal settlement.
21 The problem with the amendment, however, is that it completely redefines the
legal issues between the parties. The question of whether a local authority may be compelled to bring eviction proceedings in the public interest is one of some difficulty (see, for example, Abahlali Basemjondolo Movement SA v
Premier of the Province of Kwazulu-Natal 2010 (2) BCLR 99 (CC), paragraph
112). The PIE Act affords a Municipality the discretion to institute eviction
proceedings. That discretion must, of course, be lawfully exercised, and a neighbour may well be heard to complain that a Municipality has failed to exercise that discretion lawfully in respect of a group of unlawful occupiers on adjacent land.
22 That issue is, however, nowhere canvassed in the papers . The applicants
were not entitled to introduce it without a formal application to do so, and without affording the other parties to this case, especially Municipality, the opportunity to file further papers dealing with it. At the hearing of the matter, Mr. Hulley, who appeared with Mr. Sithole for the Municipality, strenuously objected to the introduction of the amendment on the grounds that the Municipality had no fair opportunity to deal with it. Mr. Hulley’s objection was clearly well-taken. The amendment is not properly before me, and I do not think I can fairly entertain it.
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For the Applicants: MG Roberts SC
E Roberts
Instructed by Moolman & Pienaar Inc

For the First Respondent: ACJ van Dyk
Instructed by Krouse Attorneys Inc
For the Second Respondent: GI Hulley SC
E Sithole
Instructed by Chiba & Tourapi Attorneys.