Baartman and Others v Port Elizabeth Municipality (464/2002) [2003] ZASCA 99 (26 September 2003)

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[2003] ZASCA 99
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Baartman and Others v Port Elizabeth Municipality (464/2002) [2003] ZASCA 99; 2004 (1) SA 548 (SCA) (26 September 2003)

REPUBLIC
OF SOUTH AFRICA
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case number: 464/2002
In
the matter between:
CECIL
BAARTMAN 1
st
Appellant
JAFTA
JACOBS 2
nd
Appellant
ISACK
LEVACK 3
rd
Appellant
GLADMAN
SAM 4
th
Appellant
ISAK
LEVACK 5
th
Appellant
VUYANI
NDOTSHAYISA 6
th
Appellant
JAN
LEVACK 7
th
Appellant
CHARMAIN
RICHTENBURG 8
th
Appellant
JACOB
DAVIDS 9
th
Appellant
ANITA
VAN RENSBURG 10
th
Appellant
WILLEM
AFRIKA 11
th
Appellant
ISAK
UITHALER 12
th
Appellant
and
PORT
ELIZABETH MUNICIPALITY
Respondent
CORAM
: MPATI
DP, STREICHER, BRAND, LEWIS JJA and MOTATA AJA
HEARD
: 15
AUGUST 2003
DELIVERED
: 26
SEPTEMBER 2003
Summary:
Land – Land reform – eviction by organ of state – application
of s 6(3) of the Prevention of Illegal Eviction and
Unlawful
Occupation of Land Act 19 of 1998.
___________________________________________________________________
JUDGMENT
__________________________________________________________________
MPATI
DP:
[1] This
appeal concerns the application of s 6(1) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998
(the Act). The section provides:
‘
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 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] The
Port Elizabeth Municipality (respondent) applied in the South Eastern
Cape Local Division of the High Court for an order for
the eviction
of the appellants (respondents
a quo
) from privately owned
land, erven 113 to 128 inclusive, Lorraine, Port Elizabeth. These
erven form part of an undeveloped piece
of land within a proclaimed
township and fall within the area of jurisdiction of the respondent.
They are zoned for residential
purposes and dwellings erected thereon
for residential purposes must be in accordance with plans approved by
the Building Control
Officer in terms of s 4 of the National Building
Regulations and Building Standards Act 103 of 1977, as amended. I
shall refer to
the erven collectively as ‘the property’.
[3] The
appellants occupy a number of shacks which they have erected on the
property without first having obtained respondent’s
consent, which
they required. In the founding affidavit respondent alleges that it
had approached the various owners of the property
and established
that none of the appellants occupy the property with the express or
tacit permission of the owners and that the appellants
have failed to
vacate the property notwithstanding their having been requested by
the owners to do so. The appellants opposed the
proceedings, but the
court
a quo
(Jennett J) granted the order sought and
directed,
inter alia
, that the appellants vacate the property
within a period of eight weeks after the date of his order. Their
subsequent application
for leave to appeal was refused by the court
a
quo
and the appellants are before us with leave of this Court.
[4] The appellants deny that they occupy the property
unlawfully and allege that permission to occupy was obtained from an
old woman
who they assume to be one of the owners. They also deny
that they have been requested by any owner to vacate the property.
[5] Although
in its founding affidavit respondent states that the owners of the
property did not want to depose to affidavits for
security reasons,
respondent annexed to its replying affidavit no less than seventeen
affidavits deposed to by the registered owners,
each denying having
granted any of the appellants permission to occupy the property and
withdrawing any consent which might have
been given by a previous
owner or owners. The court
a quo
found that the appellants
occupy the property unlawfully. This finding has not been challenged
on appeal and I shall accordingly
proceed from the premise that the
appellants’ occupation of the property is indeed unlawful.
[6] When
seeking an eviction order in terms of s 6 of the Act an organ of
state is required by subsec 6 to follow the procedures
set out in s
4, with the necessary changes. In this regard Jennett J said:
‘
The
present application was launched in June 2000 and since then in
Cape
Killarney Property Investment (Pty) Ltd v Mahamba
(2001) 4 All SA
479
(SCA) the Supreme Court of Appeal has confirmed the peremptory
nature of the provisions of section 4 of the Act. To the extent,
however, that the provisions of section 4(2) of the Act have not been
followed in the present case, all parties to the present application
accepted that to have postponed the application further to enable the
provisions of section 4(2) of the Act to be complied with,
would
serve no purpose whatsoever. The respondents have had ample
opportunity to deal with the merits of the case and they have
in fact
placed their versions fully before the Court.’
Again no argument to the contrary was advanced before us
and nothing further need be said in this regard.
[7] Section
6(3) of the Act reads:
‘
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.’
Mr
Scott, who, together with Mr Jurgens, appeared for the appellants,
submitted that a distinction should be drawn between ss 4 and
6 of
the Act. Whilst subsecs 6 and 7 of s 4 provide that ‘a court may
grant an order of eviction if it is of the opinion that
it is just
and equitable to do so after considering all relevant circumstances’,
including the rights and needs of the elderly,
children, disabled
persons and households headed by woman, the factors mentioned in s
6(3) are a
numerus
clausus
.
A Court, when dealing with eviction proceedings in terms of s 6(1)
of the Act, is precluded from considering any relevant circumstance
other than those enumerated in s 6(3), so it was argued.
[8] I
do not agree. A court is indeed enjoined to have regard to the
factors mentioned in s 6(3) of the Act when considering whether
it is
just and equitable to grant an eviction order. But the section does
not state that those are the only factors to be considered.
I can
find nothing wrong in a court, for example, taking into account the
very factors mentioned in section 4(6) and (7) in deciding
whether it
would be just and equitable to grant an order of eviction in
proceedings instituted in terms of s 6(1) of the Act. In
my view, a
court would be entitled to have regard to all relevant circumstances.
[9] Although
subsecs 1(a) and (b) of s 6 of the Act are separated by the
disjunctive ‘or’, which might arguably indicate that
a court may
grant an eviction order without having regard to the public interest
when the person sought to be evicted occupies a
building or structure
which had been erected without the consent of the organ of state
concerned, it is, in my view, imperative in
this case, as will
probably be the position in the majority of cases of eviction, that
the question whether it is in the public interest
to grant such an
order also be considered. The interests of the public inevitably
impact upon the justness and equitability of the
order.
[10] In
its founding affidavit respondent alleges that the occupation of the
property by the appellants has drawn complaints from
various
residents of Lorraine, that the appellants have no free access to
water and that they have no toilet facilities with the
result that
they use the surrounding area of bush as a toilet, which in turn is a
health risk. The residents of Lorraine have expressed
their
displeasure at the fact that respondent ‘is allegedly allowing
people to occupy shacks in a residential area’. Consequently
respondent dispatched an official to inspect the property and he
requested the appellants to vacate it.
[11] It
is common cause that the appellants are willing to vacate the
property if they are provided with alternative land. In this
regard
respondent says in its founding affidavit:
‘
The [appellants] indicated that they have no
objection to relocate to the area which is known as Walmer Township.
As Walmer Township
has grown steadily on an informal basis the
[appellants] could move to Walmer Township and erect their structures
there.’
The
allegation that the appellants have no objection to relocate to
Walmer Township is denied by them. They strongly object to the
suggested move to Walmer Township because, so they allege, it is
overcrowded and the crime rate is high. Whilst they are prepared
to
vacate the property they require respondent to designate alternative
land ‘to which we can move to ensure that we do not have
to face
the prospect of being evicted again due to the fact that we illegally
occupy land without the [respondent’s] consent’.
[12] In
response to this demand for alternative land respondent alleges that
it is aware of its obligation in regard to housing and
has for that
reason embarked on a comprehensive housing development programme
which it refers to as a 4 peg policy programme. It
is not necessary
to explain this programme here. Suffice it to say that it involves
the development of 3000 erven per financial
year. It is a programme
for which respondent is to be commended.
[13] However,
the programme does not provide any form of interim relief to those in
desperate need of access to housing. I say this
because respondent,
whilst conceding that it has vast tracts of undeveloped land, alleges
that such land will be developed ‘on
a systematic basis in the
future as funds become available’. The implication, therefore, is
that respondent is unable to allocate
land to the appellants even on
an interim basis. Its attitude is that what the appellants have
sought to do is to unilaterally occupy
private land and when
requested to vacate, to allege that they have nowhere else to go ‘and
[respondent] must solve their problem
by providing alternative land’.
[14] This
indeed highlights the dilemma with which local authorities such as
respondent have to contend. Whilst they may have devised
comprehensive housing programmes such as that of respondent, they are
often faced with people who are in desperate need of access
to
housing or land and whom they are unable to assist immediately. In
the instant case, and at the rate of 3000 erven being developed
in a
year, it will take a considerable time before the appellants can be
assisted under respondent’s housing development programme.

Respondent contends that the appellants, by occupying private land
and, when asked to vacate it, demanding that they be provided
with
alternative land, will disrupt the housing programme. If they are
successful this will result in other people forcing it (respondent)
to grant them preferential treatment. This, respondent says, will in
turn result in ‘queue jumping’. However, the appellants
are not
asking for preferential treatment in the sense that they are asking
that housing be made available to them in preference
to people in the
housing queue. They are merely asking that land be identified where
they can put up their shacks and where they
will have some measure of
security of tenure.
[15] There was a suggestion in the founding affidavit
that the appellants could also move to Greenbushes, an area that
falls within
the jurisdiction of the Western Region District Council.
It is not clear from the papers what the relationship is between
respondent
and the Western Region District Council but the suggestion
was that the appellants were at liberty to approach the latter. In
the
replying affidavit, however, it is alleged that Greenbushes now
falls within respondent’s jurisdiction, but that the land has been
earmarked for other people who are already part of respondent’s
housing programme and thus not available to the appellants. It
is
then suggested that the appellants ‘should act in the same manner
that other newcomers to the city do by renting accommodation
in
recognised residential areas, of which there are many in Port
Elizabeth’.
[16] Of
the thirteen appellants nine are heads of households whilst the rest
are single persons. Three, of whom two are heads of
households, are
disabled. As at the time the application was launched the children
in the various households were 23 in total.
The appellants allege
that they previously resided at an informal settlement in Glenroy,
Port Elizabeth, from where they were removed
approximately eight
years ago – the appellants’ answering and supporting affidavits
were deposed to on 8 August 2000. But one
of them, the 13
th
appellant, presumably with his family, is said to have resided on the
property ‘for the past ten years’, while three are said
to have
lived there for four years, one for two years and the rest for eight
years. Only the second appellant appears to be in full-time
employment. He is employed as a shoemaker. The fourth appellant is
unemployed; the seventh and twelfth appellants receive disability
grants, while the tenth appellant is awaiting the approval of a
disability grant. The rest hold temporary employment. One can
hardly
think that under these circumstances the appellants would be
able to rent accommodation as suggested by respondent.
[17] As
to the basis of the appellants’ objection to moving to Walmer
Township the court
a quo
considered that whether Walmer
Township is ‘suitable’ alternative land (s 6(3)(c)) is not
an issue dependent on the subjective
views of the person sought to be
evicted but rather upon whether the alternative land is objectively
suitable for occupation. Jennett
J consequently held that it can
hardly be gainsaid that Walmer Township is alternative land to which
the appellants can move. The
learned judge considered the fact that
respondent seeks to evict the appellants from privately owned land,
and not from municipal
land, as important in deciding whether it is
just and equitable that an eviction order be granted. The appellants
occupy the property
unlawfully and the issue, according to the
learned judge, was not so much whether an eviction order should
issue, but rather when
should the eviction order be carried out in
the event of the appellants’ failure to vacate the land by the date
fixed.
[18] In
my view, although it is not a precondition for the granting of an
eviction order but rather one of the factors to be considered
by a
court, as was said in
P E Municipality v Peoples Dialogue on Land
and Shelter
(2001) All SA 381
(E) at 387, the availability of
suitable alternative land becomes
the
important factor in the
instant case. This is because of the length of time the appellants
have resided on the property and, perhaps
more importantly, because
the eviction order is not sought by the owners of the property but by
an organ of state. The State is
obliged, in terms of s 26 of the
Constitution, to take legislative and other measures, within its
available resources, to achieve
the progressive realisation of the
right which everyone has, namely to have access to adequate housing.
[19] The
appellants do not object to being moved from the property but merely
wish to settle where they will be assured of security
of tenure,
something to which the respondent seems reluctant to commit itself
although it has vast tracks of vacant land available.
The court
a
quo
found that Walmer Township is alternative land to which the
appellants can move. But it is certainly not in the public interest,
in my view, to evict the appellants from the property only for them
to be evicted again from Walmer Township on grounds of being
unlawful
occupants. On the papers it is not clear whether Walmer Township is
on land owned by the respondent or whether it is privately
owned
land. If it were owned by respondent, something we cannot ascertain
from the papers, the appellants’ objection to it as
being
overcrowded, with a high crime rate, would probably not have been
sufficient to move a court to refuse an order of eviction
on that
basis alone. But in the absence of an assurance that the appellants
will have some measure of security of tenure at Walmer
Township I
consider that the court
a quo
should not have granted the
order sought.
[20] Mr
Beyleveld, who, together with Mr Laher, appeared for respondent,
urged us to infer from respondent’s allegation in the papers
that
Walmer Township is available for appellants to move to, that
respondent has control of or owns the land in Walmer Township.
In my
view, such an inference is not supported by any fact that is readily
ascertainable on the papers.
[21] In
the result I make the following order:
(a) The appeal is upheld with costs, such costs to
include those consequent upon the employment of two counsel.
(b) The order of the
court
a quo
is set aside. For it is substituted the following
order:
‘The application is dismissed with costs.’
……………………...
L MPATI DP
CONCUR:
STREICHER JA
BRAND JA
LEWIS JA
MOTATA AJA