Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC) ; 2008 (5) BCLR 475 (CC) (19 February 2008)

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Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC) ; 2008 (5) BCLR 475 (CC) (19 February 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 24/07
[2008]
ZACC 1
OCCUPIERS OF 51 OLIVIA ROAD,
BEREA
TOWNSHIP
, AND 197
MAIN STREET
, JOHANNESBURG
                                                                     Â
Applicants
                                                                                                                                        Â
versus
CITY OF JOHANNESBURG                                                                      Â
First
Respondent
RAND
PROPERTIES
(PTY) LTD                                                          Â
Second
Respondent
MINISTER OF TRADE AND INDUSTRY                                                  Third

Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA                        Fourth Respondent
with
CENTRE ON HOUSING RIGHTS AND EVICTIONS                                   Amicus
Curiae
COMMUNITY LAW CENTRE,
UNIVERSITY OF THE WESTERN CAPE                                                    Â
Amicus
Curiae
Heard on         :           28 August 2007
Decided on     :           19 February 2008
JUDGMENT
YACOOB J:
Introduction
[1]
More than 400 occupiers of two buildings in the
inner city of Johannesburg (the occupiers) applied for leave to appeal against
a
decision of the Supreme Court of Appeal.
[1]
Â
They challenged the correctness of the judgment and order of that Court
authorising their eviction at the instance of the City
of Johannesburg (the
City) based on the finding that the buildings they occupied were unsafe
[2]
and unhealthy.
[3]
  The City was ordered to
provide those of the occupiers who were “desperately in need of housing
assistance with relocation
to a temporary settlement area”.
[4]
[2]
The appeal to the Supreme Court of Appeal was
directed by the City against a judgment and order in the Johannesburg High Court
(the
High Court).
[5]
Â
The High Court had before it applications by the City for the ejectment of the
occupiers as well as counter-applications by the
latter aimed at securing
alternative accommodation or housing as a pre-condition to their eviction.  The
judge in the High Court
declared that the City’s housing programme fell short
of what was required, ordered the City to produce a programme to cater for

those people in desperate need, and interdicted the eviction of the occupiers
on certain terms.
[6]
[3]
The broad questions initially raised in the
application for leave to appeal were whether the order for the eviction of the
occupiers
ought to have been granted and whether the City’s housing programme
complied with the obligations imposed upon it by section 26(3)
of the
Constitution.
[7]
Â
I stress that the question in both courts was not limited to whether the City
had complied with its housing obligations to the
occupiers.  They raised, in
the public interest, the broader question whether the City had made reasonable
provision for housing
for those thousands of people who were said to be living
in desperate conditions in the inner city.
[4]
Since this case was argued, certain developments
have occurred which have had a significant impact on whether any or all of the
issues raised in it should be considered by this Court.  These details are
briefly set out now.
[5]
Two days after the application for leave to
appeal was heard, this Court issued an interim order
[8]
aimed at ensuring that the City
and the occupiers engaged with each other meaningfully on certain issues.  That
order was
in the following terms—
“1.        The City of Johannesburg and the applicants are required
to engage with each other meaningfully and as soon as
it is possible for them
to do so, in an effort to resolve the differences and difficulties aired in
this application in the light
of the values of the Constitution, the constitutional
and statutory duties of the municipality and the rights and duties of the

citizens concerned.
2.         The City of Johannesburg and the applicants must also
engage with each other in an effort to alleviate the plight
of the applicants
who live in the two buildings concerned in this application by making the
buildings as safe and as conducive
to health as is reasonably practicable.
3.         The City of Johannesburg and the applicants must file
affidavits before this Court on or before 3 October 2007
reporting on the
results of the engagement between the parties as at 27 September 2007.
4.         Account will be taken of the contents of the affidavits
in the preparation of the judgment in this matter for
the issuing of further
directions, should this become necessary.”
We did not furnish reasons for the
order and I do so later in this judgment.
[6]
After extensions of time were twice sought,
[9]
the City and the occupiers
filed affidavits in which we were informed that an agreement of settlement had
been entered into between
the City and the occupiers.  As will appear from what
is set out later in this judgment, the parties differed in relation to the
issues
that remained for adjudication by this Court consequent upon the conclusion of
the agreement.  To determine the issues
that remain for decision we must first
define the issues raised by the application for leave to appeal.  This judgment
will next
set out the reasons for issuing the engagement order as well as the
terms of the agreement entered into consequent upon engagement.Â
I will then
investigate the effect of the agreement on those issues.  The issues that
remain to be decided are those not disposed
of in that part of the judgment
concerned with the reasons for engagement.  Further the remaining issues will
call for consideration
only if they raise constitutional issues and if it is in
the interests of justice for us to decide them.
[10]
Issues raised by this application
[7]
The first broad issue raised by the application
is whether the Supreme Court of Appeal was right when it granted an order for
the
ejectment of all the occupiers.  This broad issue encapsulates five
questions.  None of these was determined in the High Court.Â
They arise out of
the defences of the occupiers to the ejectment application.
[11]
  The first of these was that
section 12 of the Act is inconsistent with the Constitution because it provides
for arbitrary evictions
and evictions without a court order.  Second, the
occupiers attacked the constitutional validity of the decision by the City to

evict them as being unfair because it had been taken without giving them a
hearing.  The next point taken was that the administrative
decision to evict
them was not reasonable in all the circumstances because in particular the City
did not take into account that
the occupiers would be homeless after the
eviction.  Fourthly, it was contended that section 26(3) of the Constitution
precluded
their eviction.
[12]
Â
The final argument made was that the standards set by the Prevention of Illegal
Eviction from and Unlawful Occupation of Land
Act (PIE)
[13]
were applicable to these
evictions.  The Supreme Court of Appeal dismissed all these objections and, as
already mentioned, granted
the eviction orders on the basis that temporary
accommodation should be provided to those occupiers who fulfil certain
requirements.
[8]
The housing issues raised in the
counter-applications are whether the City’s housing programme then in operation
catered reasonably
for the occupiers and whether that programme also catered
reasonably for the many thousands of people who lived in desperate conditions

within the inner city.  The essential question to be asked is whether the High
Court was right in making the orders it did.Â
The Supreme Court of Appeal
disagreed with the High Court in this regard and made a limited order for
temporary accommodation.
Reasons for the engagement order
[9]
The need for meaningful engagement between the
City and the occupiers was not directly raised by the parties before this
Court.Â
It was however in some sense foreshadowed by their contention that the
City was obliged to give the occupiers a hearing before taking
the decision to
evict on the basis that the decision was an administrative one.
[14]
  The City contended that the
occupiers had indeed been given a hearing because they had had an opportunity
to file affidavits
in the High Court in opposition to the ejectment
application.
[10]
In
Grootboom
[15]
this Court said, on the
relationship between reasonable state action and the need to treat human beings
with the appropriate respect
and care for their dignity to which they have a
right as members of humanity—
“All levels of government must ensure that
the housing program is reasonably and appropriately implemented in the light of
all
the provisions in the Constitution.  All implementation mechanisms and all
State action in relation to housing falls to be assessed
against the
requirements of s 26 of the Constitution.  Every step at every level of
government must be consistent with the constitutional
obligation to take
reasonable measures to provide adequate housing.
But s 26 is not the only provision relevant
to a decision as to whether State action at any particular level of government
is reasonable
and consistent with the Constitution.  The proposition that
rights are interrelated and are all equally important is not merely
a
theoretical postulate.  The concept has immense human and practical
significance in a society founded on human dignity, equality
and freedom.  It
is fundamental to an evaluation of the reasonableness of State action that
account be taken of the inherent dignity
of human beings.  The Constitution
will be worth infinitely less than its paper if the reasonableness of State
action concerned
with housing is determined without regard to the fundamental
constitutional value of human dignity.  Section 26, read in the context
of the
Bill of Rights as a whole, must mean that the respondents have a right to reasonable
action by the State in all circumstances
and with particular regard to human
dignity.  In short, I emphasise that human beings are required to be treated as
human beings.Â
This is the backdrop against which the conduct of the [State]
must be seen.”
[16]
[11]
The Court went on to say more specifically about
engagement and its importance—
“The respondents began to move onto the New
Rust land during September 1998 and the number of people on this land continued
to
grow relentlessly.  I would have expected officials of the municipality
responsible for housing to engage with these people as
soon as they became
aware of the occupation.  I would have also thought that some effort would have
been made by the municipality
to resolve the difficulty on a case-by-case basis
after an investigation of their circumstances before the matter got out of
hand.Â
The municipality did nothing and the settlement grew by leaps and
bounds.”
[17]
[12]
In
Port Elizabeth
Municipality
[18]
this Court said—
“ . . . the procedural and substantive
aspects of justice and equity cannot always be separated.  The managerial role
of the
courts may need to find expression in innovative ways.  Thus, one
potentially dignified and effective mode of achieving sustainable

reconciliations of the different interests involved is to encourage and require
the parties to engage with each other in a proactive
and honest endeavour to
find mutually acceptable solutions.  Wherever possible, respectful face-to-face
engagement or mediation
through a third party should replace arm's-length
combat by intransigent opponents.”
[19]
[13]
It became evident during argument that the City
had made no effort at all to engage with the occupiers at any time before
proceedings
for their eviction were brought.  Yet the City must have been aware
of the possibility, even the probability, that people would
become homeless as
a direct result of their eviction at its instance.  In these circumstances
those involved in the management
of the municipality ought at the very least to
have engaged meaningfully with the occupiers both individually and collectively.
[14]
Engagement is a two-way process in which the City
and those about to become homeless would talk to each other meaningfully in
order
to achieve certain objectives.  There is no closed list of the objectives
of engagement.  Some of the objectives of engagement
in the context of a city
wishing to evict people who might be rendered homeless consequent upon the
eviction would be to determine—
(a)
what the consequences of the eviction might be;
(b)
whether the city could help in alleviating those dire consequences;
(c)
whether it was possible to render the buildings concerned relatively
safe and conducive to health for an interim period;
(d)
whether the city had any obligations to the occupiers in the
prevailing circumstances; and
(e)
when and how the city could or would fulfil these obligations.
[15]
Engagement has the potential to contribute
towards the resolution of disputes and to increased understanding and
sympathetic care
if both sides are willing to participate in the process.Â
People about to be evicted may be so vulnerable that they may not be
able to
understand the importance of engagement and may refuse to take part in the
process.  If this happens, a municipality cannot
walk away without more.  It
must make reasonable efforts to engage and it is only if these reasonable
efforts fail that a municipality
may proceed without appropriate engagement.Â
It is precisely to ensure that a city is able to engage meaningfully with poor,
vulnerable
or illiterate people that the engagement process should preferably
be managed by careful and sensitive people on its side.
[16]
The City has constitutional obligations towards
the occupants of Johannesburg.  It must provide services to communities in a
sustainable
manner,
[20]
promote social and economic development,
[21]
and encourage the involvement of communities and community organisations in
matters of local government.
[22]
Â
It also has the obligation to fulfil the objectives mentioned in the preamble
to the Constitution to “[i]mprove the quality
of life of all citizens and free
the potential of each person”.  Most importantly it must respect, protect,
promote and fulfil
the rights in the Bill of Rights.
[23]
  The most important of these
rights for present purposes is the right to human dignity
[24]
and the right to life.
[25]
  In the light of these
constitutional provisions a municipality that ejects people from their homes
without first meaningfully
engaging with them acts in a manner that is broadly
at odds with the spirit and purpose of the constitutional obligations set out

in this paragraph taken together.
[17]
But the duty of the City to engage people who
may be rendered homeless after an ejectment to be secured by it is also
squarely grounded
in section 26(2) of the Constitution.
[26]
  It was said in
Grootboom
that
“[e]very step at every level of government must be consistent with the
constitutional obligation to take reasonable measures
to provide adequate
housing.”
[27]
Â
Reasonable conduct of a municipality pursuant to section 26(2) includes the
reasonableness of every step taken in the provision
of adequate housing.  Every
homeless person is in need of housing and this means that every step taken in
relation to a potentially
homeless person must also be reasonable if it is to
comply with section 26(2).
[18]
And, what is more, section 26(2) mandates that
the response of any municipality to potentially homeless people with whom it
engages
must also be reasonable.  It may in some circumstances be reasonable to
make permanent housing available and, in others, to provide
no housing at all.Â
The possibilities between these extremes are almost endless.  It must not be
forgotten that the City cannot
be expected to make provision for housing beyond
the extent to which available resources allow.  As long as the response of the

municipality in the engagement process is reasonable, that response complies
with section 26(2).  The Constitution therefore obliges
every municipality to
engage meaningfully with people who would become homeless because it evicts
them.  It also follows that,
where a municipality is the applicant in eviction
proceedings that could result in homelessness, a circumstance that a court must

take into account to comply with section 26(3) of the Constitution is whether
there has been meaningful engagement.
[19]
It has been suggested that there are around 67 000
people living in the inner city of Johannesburg in unsafe and unhealthy
buildings
in relation to whom ejectment orders will have to be issued and that
it would be impractical to expect meaningful engagement in
every case.  I cannot
agree.  It is common cause that the implementation of the City’s Regeneration
Strategy
[28]
is an important reason that founded the decision to evict.  That strategy was
adopted in 2003.  If structures had been put in
place with competent sensitive
council workers skilled in engagement, the process could have begun when the
strategy was adopted.Â
It must then have been apparent that the eviction of a
large number of people was inevitable.  Indeed the larger the number of
people
potentially to be affected by eviction, the greater the need for structured,
consistent and careful engagement.  Ad hoc
engagement may be appropriate in a
small municipality where an eviction or two might occur each year, but is
entirely inappropriate
in the circumstances prevalent in the City.
[20]
It must be understood that the process of
engagement will work only if both sides act reasonably and in good faith.  The
people
who might be rendered homeless as a result of an order of eviction must,
in their turn, not content themselves with an intransigent
attitude or nullify
the engagement process by making non-negotiable, unreasonable demands.  People
in need of housing are not,
and must not be regarded as a disempowered mass.Â
They must be encouraged to be pro-active and not purely defensive.  Civil
society
organisations that support the peoples’ claims should preferably facilitate
the engagement process in every possible way.
[21]
Finally it must be mentioned that secrecy is
counter-productive to the process of engagement.  The constitutional value of
openness
is inimical to secrecy.  Moreover, as I have already pointed out, it
is the duty of a court to take into account whether, before
an order of
eviction that would lead to homelessness is granted at the instance of a
municipality, there has been meaningful engagement
or, at least, that the
municipality has made reasonable efforts towards meaningful engagement.  In any
eviction proceedings at
the instance of a municipality therefore, the provision
of a complete and accurate account of the process of engagement including
at
least the reasonable efforts of the municipality within that process would ordinarily
be essential.  The absence of any engagement
or the unreasonable response of a
municipality in the engagement process would ordinarily be a weighty
consideration against the
grant of an ejectment order.
[22]
This Court made the interim order because it was
not appropriate to grant any eviction order against the occupiers, in the
circumstances
of this case, unless there had at least been some effort at meaningful
engagement.  It was common cause during argument that there
had been none.  The
ejectment of a resident by a municipality in circumstances where the resident
would possibly become homeless
should ordinarily take place only after
meaningful engagement.  Whether there had been meaningful engagement between a city
and
the resident about to be rendered homeless is a circumstance to be
considered by a court in terms of section 26(3).
[29]
[23]
It follows that the Supreme Court of Appeal
should not have granted the order of ejectment in the circumstances of this
case, in
the absence of meaningful engagement.
The engagement agreement
[24]
The post-engagement agreement concluded between
the City and the occupiers records at its inception that it “contemplates” the

resolution of two aspects of their dispute: the interim measures to be taken by
the City to improve the condition of the properties
as well as “[t]he City’s
application for the eviction of the occupiers”.  It is not necessary to go into
these two aspects
of the agreement in much detail.
[25]
The agreement makes explicit and meticulous
provision for measures aimed at rendering both properties “safer and more
habitable”
in the interim.  It is not necessary to set out each measure.  They
include the installation of chemical toilets, the cleaning
and sanitation of
the buildings, the delivery of refuse bags, the closing of a certain lift shaft
and the installation of fire
extinguishers.  The work aimed at rendering the
building more habitable was to be completed within 21 working days of the
signature
of the agreement.  The agreement was signed on 29 October 2007.
[26]
The eviction application of the City was
resolved on a somewhat different basis.  The agreement obliged the City to
provide all
occupiers with alternative accommodation in certain identified
buildings.  It defined with reasonable precision the nature and
standard of the
accommodation to be provided and determined the way in which the rent in
respect of this accommodation will be
calculated.  The agreement obliged all
occupiers to move into alternative accommodation by yesterday
[30]
and stipulated that this
alternative accommodation is provided “pending the provision of suitable
permanent housing solutions”
being developed by the City “in consultation” with
the occupiers concerned.
Approval of the agreement
[27]
I have already pointed out that work on the
improvement of buildings now occupied was to begin 21 days after the signature
of the
agreement.  However the rest of the agreement was to take effect only on
the date on which it was approved or endorsed by this
Court.  On 5 November
2007 this Court made the following order—
“1.        The Agreement entered into between the City of Johannesburg and those Occupiers who have signed the Agreement
dated 29 October 2007 is
endorsed.
2.         Residual issues arising from the parties’ reports will be
considered in the judgment to be delivered in this
matter in due course.”
[28]
No reasons were given for the endorsement
order.  I state them briefly.  This judgment holds that the City is required to
respond
reasonably to the process of engagement.
[31]
  The agreement would call for
endorsement by this Court if it does indeed represent a reasonable response to
the engagement process.Â
There was no doubt that the agreement represented a
reasonable response to the engagement process.  The City must be commended
for
the fact that its position became more humane as the case proceeded through the
different courts, and for its ultimate reasonable
response to the engagement
order.
[29]
This is the first time this Court has approved
an agreement between the parties before it in circumstances where the parties
required
approval before important aspects of it came into operation.  This
Court deemed it appropriate to consider and evaluate the terms
of the agreement
for the purpose of deciding whether to approve it because—
(a)
the City and the occupiers engaged with each other in the process of
complying with the order of this Court;
(b)
the parties reported to this Court also in compliance with our
order;
(c)
considerable expenditure on the part of the City was obviously
required in the implementation of the agreement; and
(d)
the City and the occupiers would have been in an invidious position
if this Court had later held that the agreement was not a reasonable
response
to engagement.
[30]
It will not always be appropriate for a court to
approve all agreements entered into consequent upon engagement.  It is always
for the municipality to ensure that its response to the process of engagement
is reasonable.  The deciding factor in this case
in my view was that engagement
was ordered by this Court, and the parties had been asked to report back on the
process while proceedings
were pending before it.  Courts would ordinarily consider
agreements entered into consequent upon engagement ordered by them in
the
course of litigation.  It must be emphasised that the process of engagement
should take place before litigation commences
unless it is not possible or
reasonable to do so because of urgency or some other compelling reason.
Effect of development
[31]
There are issues in relation to which there is
either a dispute or, at the very least, the absence of complete agreement
whether
they should be considered by this Court.  Apart from costs, the
contention of the occupiers in relation to the disputes that remain
is set out
as follows—
“11.1.   The relief claimed by the applicants in respect of the
City’s failure to formulate and implement a housing plan for
the applicants and
the class of persons on behalf of whom the current litigation was initiated;
11.2.     The practice to be adopted by the City in dealing with
persons occupying so-called “bad” buildings in future;
11.3.     The constitutionality of Section 12(4)(b) of the National
Building Regulations and Building Standards Act 103 of 1977
(“the NBRA”);
11.4      The applicants’ review of the City’s decisions to issue
the notices in terms of Section 12(4)(b) of the NBRA in
respect of the 51
Olivia Road and 197 Main Street properties, assuming that the NBRA is valid;
11.5.     The applicability of the Prevention of Illegal Eviction
from, and Unlawful Occupation of, Land Act 19 of 1998;
11.6.     The reach and applicability of Sections 26(1), 26(2) and
26(3) of the Constitution . . . ”.
We must now determine whether any
of these issues should be decided.
Relief concerning the housing plan
[32]
The occupiers contend that this Court must
adjudicate their contention that the City has failed to formulate and implement
a housing
plan for them and the class of person they say they represent.  Since
the agreement has disposed of the issue of temporary accommodation,
the
occupiers evidently require adjudication of the housing plan in relation to
whether it facilitates permanent housing solutions
for them and for the
thousands of other people who might later be evicted from unsafe and unhealthy
buildings.  The agreement
acknowledges that a permanent housing solution has
not yet been found and records that—
“The nature and location of any permanent housing
options to be made available to the occupiers will be developed by the City in

consultation with the occupiers concerned, having regard to applicable
national, provincial and municipal housing policies and
implementation plans.”
[33]
The occupiers contend in their reporting
affidavit that negotiations concerning “permanent housing solutions have been
marred
by the absence of any concrete plan to provide housing for the inner city
poor” in general or for the occupiers in particular.Â
The City attaches to its
post-engagement settlement affidavit a housing plan and requires this Court to
consider this plan in the
context of the challenges and complexities inherent
in the process of housing provision.
[32]
Â
The occupiers in a supplementary affidavit contend that we should, if we are
minded to consider the plan, give them a 30-day
opportunity to deal with the
plan and to provide the City with a similar opportunity to address their
response before we do so.
[34]
It is not necessary for this Court to consider
the question of “permanent housing solutions” for the occupiers.  The City has

agreed that these solutions will be developed in consultation with them.  The
complaint by the occupiers that negotiations have
been marred by unclear and
inconcrete housing plans is not in my view a sufficient reason for this Court
to consider this question
at this stage.  There is every reason to believe that
negotiations will continue in good faith.  The situation now is very different

from that which confronted the occupiers in the High Court.  The City has shown
a willingness to engage.  As a result, the desperate
situation of the occupiers
has been alleviated by the reasonable response of the City to the engagement
process.  There is no
reason to think that future engagement will not be
meaningful and will not lead to a reasonable result.  In any event this Court
should
not be the court of first and last instance on whether the City has acted
reasonably in the process.
[33]
Â
Nor should it be the only determinant of whether the plan is reasonable in the
sense of being sufficiently concrete and clear.Â
It is the duty of both parties
to continue with the process of negotiation and for the occupiers or the City
to approach the High
Court if this course becomes necessary.
[35]
Much the same reasoning applies to the plea of
the occupiers that we consider the plight of thousands of other poor people in
the
inner city and evaluate the housing plan in relation to them.  The housing
plan before the High Court differs from the one that
we are required to
consider in this case.  This Court should not be the court of first and last
instance in deciding whether it
complies with the Constitution and the law.  We
must bear in mind that the engagement between the occupiers and the City has
resulted
in an agreement that represents a reasonable response by the City.Â
There is no reason to believe that the City will not in the
future engage
meaningfully with other occupants whose evictions become either necessary or
desirable.  The City has undertaken
to negotiate permanent housing solutions
for the occupiers in consultation with them.  It is not unreasonable to expect
that the
City will, in the ordinary course, adopt a similar approach in respect
of other people who are affected in the future.  In the
circumstances, it would
be premature to examine the plan and evaluate it in a generalised way.  A
process of this kind comes close
to an abstract evaluation which is undesirable
at the best of times.  A case can always be brought in the High Court in
relation
to particular occupiers with specific allegations as to the respects
in which the housing obligations imposed by the Constitution
have not been
complied with.  This is preferable to dealing with a generalised claim in
relation to anticipated future occurrences.Â
At the same time the High Court
order has been overtaken by events and cannot be allowed to stand.
[36]
It must be apparent by now that this Court did
not afford any opportunity for further response to the housing plan because,
though
the evaluation of these plans did raise a constitutional issue, it was
not in the interests of justice to follow that course and
to consider and
evaluate the plan.
Other issues that need not be
decided
[37]
Enough has been said in this judgment about what
the occupiers call the practice to be adopted by the City in dealing with
people
who occupy unsafe and unhealthy buildings in the future.  I can also see
no need for a further general discussion on “the reach
and applicability of Sections
26(1), 26(2) and 26(3)”.  This judgment should say no more about these issues.
[38]
There is equally no need for this judgment to be
concerned with the question whether PIE applies in the present case or to
expand
on the relationship between section 26 and PIE.  The question may never
arise if the City engages meaningfully with those people
who would become
homeless if evicted by it.
The section 12 issues
[39]
This leaves two matters mentioned by the
occupiers.  Both concern section 12 of the Act.  The one is a claim for a
review of the
City’s decision to issue the section 12(4)(b) notices.  The other
concerns the constitutionality of section 12(4)(b).  I do
not think the review
remains relevant because the ejectment proceedings have been effectively
settled.  However it is in my view
in the interests of justice to investigate the
narrower question of the considerations relevant to the issuing of the section
12(4)(b)
notice.  The same applies to the question of the constitutionality of
section 12(6).  The section 12 procedure is likely to be
applied by
municipalities in the future and it is appropriate that some guidance be given
to them.  The importance of the issues
to be considered will become apparent
when they are discussed.
[40]
Both these aspects have been fully argued before
the Supreme Court of Appeal and this Court.  Moreover the Supreme Court of
Appeal
has held that—
(a)
relevant considerations were indeed taken into account by the City
in making the section 12(4)(b) decision to evict.
[34]
(b)
section 12 is consistent with the Constitution.
[35]
[41]
Sections 12(4), 12(5) and 12(6) provide—
“(4)      If the local authority in question deems it necessary for
the safety of any person, it may by notice in writing,
served by post or
delivered—
(a)        order the owner of any building to remove, within the
period specified in such notice, all persons occupying or
working or being for
any other purpose in such building therefrom, and to take care that any person
not authorised by such local
authority does not enter such building;
(b)        order any person occupying or working or being for any
other purpose in any building, to vacate such building immediately
or within a
period specified in such notice.
(5)        No person shall occupy or use or permit the occupation or
use of any building in respect of which a notice was
served or delivered in
terms of this section or steps were taken by the local authority in question in
terms of subsection (1),
unless such local authority has granted permission in
writing that such building may again be occupied or used.
(6)        Any person who contravenes or fails to comply with any
provision of this section or any notice issued thereunder,
shall be guilty of
an offence and, in the case of a contravention of the provisions of subsection
(5), liable on conviction to
a fine not exceeding R100 for each day on which he
so contravened.”
Relevant considerations
[42]
One of the grounds upon which the lawfulness of
the City’s decision to issue the section 12(4)(b) notices was challenged was that

the City had failed to take relevant considerations into account.  The
particular contention and the way in which it was disposed
of appear in one
paragraph of the judgment of the Supreme Court of Appeal
[36]
in the following terms—
“The second ground, namely that the city
failed to take relevant considerations into account, was based on the assertion
that
the city failed to consider the availability of suitable alternative
accommodation or land for the respondents.  The submission
presupposes that the
right to act under s 12(4)(b) and the right to access to adequate housing are
reciprocal and that the former
is dependent or conditional on the latter.Â
There is in my view no merit in the submission.”
[43]
The Supreme Court of Appeal is undoubtedly right
in the conclusion that the right to act under section 12(4)(b) and the right to

access adequate housing are not reciprocal and that the former is neither
dependent nor conditional on the latter.  However the
difficulty is the
inescapable inference from the passage just quoted that it is neither
appropriate nor necessary for a decision-maker
to consider at all the
availability of suitable alternative accommodation or land when making a section
12(4)(b) decision.  Any
suggestion that the availability of alternative
accommodation need not be considered carries the implication that whether a
person
or family is rendered homeless after an eviction consequent upon a
section 12(4)(b) decision is irrelevant to the decision itself.Â
The reasoning
postulates the false premise that there is no relationship between section
12(4)(b) of the Act and section 26(2)
even if the person is rendered homeless
by the decision.
[44]
It is common cause that the City in making the
decision to evict the people concerned took no account whatsoever of the fact
that
the people concerned would be rendered homeless.  This is regrettable.  Municipal
officials do not act appropriately if they take
insulated decisions in respect
of different duties that they are obliged to perform.  In this case the City
had a duty to ensure
safe and healthy buildings on the one hand and to take
reasonable measures within its available resources to make the right of access

to adequate housing more accessible as time progresses on the other.  It cannot
be that the City is entitled to make decisions
on each of these two aspects
separately, one department making a decision on whether someone should be
evicted and some other department
in the bureaucratic maze determining whether
housing should be provided.  The housing provision and the health and safety
provision
must be read together.  There is a single City.  That City must take
a holistic decision in relation to eviction after appropriate
engagement taking
into account the possible homelessness of the people concerned and the capacity
of the City to do something about
it.
[45]
The Supreme Court of Appeal did not wholly
embrace the inter-relationship between section 12(4)(b) of the Act and section
26(2)
of the Constitution.  It said that the appeal before it concerned—
“ . . . in the main the right of a local
authority to order occupiers by notice to vacate a building because it is
necessary for
their safety or the safety of others and its right, if they fail
to comply, to apply for an order of court for their eviction.”
[37]
The Court saw the case as “only
peripherally about the constitutional duty of organs of state towards those who
are evicted from
their homes and are in a desperate condition.”
[38]
  This characterisation is
unfortunate.
[46]
The Supreme Court of Appeal was incorrect in its
conclusion that the failure of the City to consider the availability of
suitable
alternative accommodation or land for the occupiers in the process of
making a section 12(4)(b) decision was unobjectionable.
[39]
  The relationship between the
eviction of people by the City pursuant to section 12(4)(b) and the possibility
of their being rendered
homeless consequent upon that eviction cannot be
gainsaid.  It follows that the City must take into account the possibility of

the homelessness of any resident consequent upon a section 12(4)(b) eviction in
the process of making the decision as to whether
or not to proceed with the
eviction.
The constitutional validity of section
12(6) of the Act
[47]
Sections 12(4), 12(5) and 12(6) were attacked
before the Supreme Court of Appeal on numerous grounds.
[40]
  None of these grounds of
attack was expressly taken forward before this Court nor does it appear to be
in the interests of justice
for each of these grounds to be dealt with here.
[48]
There is however one finding that does occasion
sufficient constitutional concern to render it in the interests of justice for
it
to be considered.  It is the conclusion of the Supreme Court of Appeal that
there is nothing objectionable about a legislative
provision that permits “the
issuing of an administrative order to vacate and, in the event of
non-compliance, for a criminal
sanction.”
[41]
Â
It would have been noticed that the criminal sanction is imposed by section
12(6).  Section 12(4)(b) authorises the municipality
concerned by notice to
“order any person occupying . . . any building” to “vacate” it “immediately” or
within a specified
period.  In terms of section 12(5) no person may occupy the
building after the notice has been issued without the permission of
the
municipality.  It is in this context that section 12(6) provides that any
person who continues to occupy despite the “order”
is liable on conviction to a
maximum fine of R100 for each day of unlawful occupation.
[49]
Section 26(3), like all provisions of the Bill
of Rights, deserves a generous construction.  The section prohibits eviction of
people from their home absent a court order that must be made after taking into
account all the relevant circumstances.  It means
in effect that no person may
be compelled to leave their home unless there exists an appropriate court
order.  The provisions
of section 26(3) would be virtually nugatory and would
amount to little protection if people who were in occupation of their homes

could be constitutionally compelled to leave by the exertion of the pressure of
a criminal sanction without a court order.  It
follows that any provision that
compels people to leave their homes on pain of criminal sanction in the absence
of a court order
is contrary to the provisions of section 26(3) of the Constitution.Â
Section 12(6) provides for this criminal compulsion and is
not consistent with
the Constitution.  Continued occupation of the property should not be a
criminal offence absent a court order
for eviction.
[50]
It is neither just nor equitable to set the
provisions of section 12(6) of the Act aside.  It is appropriate to encourage
people
to leave unsafe or unhealthy buildings in compliance with the court
order for their eviction.  A criminal sanction does have this
effect.
[42]
  It provides an additional
incentive for occupiers to leave unhealthy and unsafe buildings and reduces the
need for a forced eviction
at the instance of the State.  A reading-in order
that provides for a criminal sanction only after a court order for eviction has

already been made would in my view be appropriate to save the section.
[43]
 As has already been pointed
out in this judgment, a court must take into account all relevant circumstances
before making an
order for eviction.  Any eviction order would also afford the
occupier a reasonable time within which to vacate the property.
[51]
This is not a case in which there are a myriad
ways in which the Legislature could cure the section.  The order should be to
the
effect that section 12(6) of the National Building Regulations and Building
Standards Act 103 of 1977 must be read as if the following
proviso has been
added: “
This subsection applies only to people who,
after service upon them of an order of court for their eviction, continue to
occupy
the property concerned
.”
Retrospectivity
[52]
It will not be just and equitable for this order
to be retrospective.  The read-in proviso should not apply to cases in which
people
have already been convicted of a contravention of section 12(6) of the
Act, the period provided for the lodging of an application
for leave to appeal
has expired and no notice of appeal has been lodged.
Costs
[53]
This is an appropriate case in which the City
should be ordered to pay the costs of the applicants.  The proceedings would
have
been obviated if there had been meaningful engagement before the case had
been started.  In the circumstances the City should also
pay the applicants’
costs in the High Court and in the Supreme Court of Appeal.  The appeal
succeeds to this extent.
Order
[54]
The following order is made—
1.
The application for leave to appeal is granted.
2.
The appeal succeeds to the extent set out in
this order.
3.
The order of the Supreme Court of Appeal is set
aside.
4.
The order of the High Court is set aside.
5.
Section 12(6) of the National Building
Regulations and Building Standards Act 103 of 1977 is declared to be inconsistent
with the
Constitution.
6.
Section 12(6) of the National Building
Regulations and Building Standards Act 103 of 1977 must be read as if the
following proviso
has been added at the end of it—
“
This subsection applies only to people who, after service upon them
of an order of court for their eviction, continue to occupy the
property
concerned.”
7.
The read-in proviso contained in paragraph 6 of
this order shall not apply to cases in which people have already been convicted
of a contravention of section 12(6) of the National Building Regulations and
Building Standards Act 103 of 1977, the period provided
for the lodging of an application
for leave to appeal has expired and no notice of appeal has been lodged.
8.
The first respondent is ordered to pay the costs
of the applicants in the High Court, in the Supreme Court of Appeal and in this

Court, including the costs of two counsel.
Langa CJ, Moseneke DCJ, Madala J,
Mpati AJ, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J and Van der Westhuizen J
concur in the judgment
of Yacoob J.
For the Applicants:                                        Advocate
P Kennedy SC and Advocate
H Barnes instructed by Webber
Wentzel Bowens and Wits Law Clinic.
For the First Respondent:                             Advocate
JJ Gauntlett SC and Advocate
FA Snyckers instructed by Moodie
and Robertson.
For the Amici
Curiae:                                   Advocate G Budlender, Advocate O
Mooki
and Advocate R Moultrie instructed by
the Legal Resources Centre.
[1]
City of Johannesburg v Rand Properties (Pty) Ltd and Others
2007 (6) SA 417 (SCA); 2007 (6) BCLR 643 (SCA); [2007] 2 All SA 459 (SCA).
[2]
Pursuant to notices issued in terms of section 12(4)(b) of the
National Building Regulations and Building Standards Act 103 of 1977
(the Act).
[3]
The relevant portion of section 20 of the Health Act 63 of
1977 reads—
“(1)         Every local
authority shall take all lawful, necessary and reasonably practicable measures—
(a) to
maintain its district at all times in a hygienic and clean condition;
(b) to
prevent the occurrence within its district of—
                                (i)            any
nuisance;
                                (ii)           any
unhygienic condition;
(iii)
any offensive condition; or
(iv)
any other condition which will or could be harmful or dangerous to the
health of any person within its district or the district of
any other local
authority,
or, where a nuisance or condition referred to in
subparagraphs (i) to (iv), inclusive, has so occurred, to abate, or cause to be

abated, such nuisance, or remedy, or cause to be remedied, such condition, as
the case may be”.
[4]
The order reads—
“(a)         The
appeal is upheld and the cross-appeal dismissed.
(b)           The
order of the court below is set aside save that the order dismissing the
applications in cases WLD 04/10330,
04/10331, 04/10332 and 04/10332 (the Joel
Street applications) with costs remains.
(c)           The following order issues in cases WLD 03/24101
(Zinns) and WLD 04/13835 (
San Jose
):
1.1           The
respondents are interdicted from occupying the property concerned until such
time as the applicant has
granted permission in writing that the property may
be occupied or used.
1.2           In
the event that the respondents or any of them do not vacate the property within
one month of this order,
the sheriff is permitted to remove from the property
all persons occupying the property and to take such steps as may be necessary

to prevent the re-occupation of the building, including the sealing of all
entrances.
1.3           The
sheriff is authorised to approach the South African Police Services for any
assistance that may be required
and the South African Police Services are
directed to render such assistance or support as may be required to enforce
this order.
2.1           The
City of Johannesburg is ordered to offer and provide to those respondents who
are evicted and are desperately
in need of housing assistance with relocation
to a temporary settlement area as described in chapter 12 of the National
Housing
Code (April 2004) within its municipal area.  The temporary
accommodation is to consist of at least the following elements: a place
where
they may live secure against eviction; a structure that is waterproof and
secure against the elements; and with access to
basic sanitation, water and
refuse services.
2.3           In
order to implement the foregoing, the City of Johannesburg must open within
seven days a register of
persons who qualify and the respondents’ attorneys of
record shall provide the City with a list of those respondents who wish
to
avail themselves of this order and the City shall after consultation (if
requested by any respondent) determine the location
of the alternative
accommodation.
2.4           The
City of Johannesburg is ordered to serve on the respondents’ attorneys of
record and the amici and
file with the registrar a compliance affidavit within
four months of this order.
2.5           The
counter-application is, save to the extent set out, dismissed.
”
[5]
City of Johannesburg v Rand Properties
(Pty) Ltd and Others
2007 (1) SA 78 (W); 2006 (6)
BCLR 728 (W); [2006] 2 All SA 240 (W).
[6]
The order reads—
“1.           It
is declared that the housing programme of the Applicant fails to comply with
the constitutional and
statutory obligations of the Applicant.  The Applicant
has failed to provide suitable relief for people in the inner city of Johannesburg
who are in a crisis situation or otherwise in desperate need of accommodation;
2.             The
Applicant has failed to give adequate priority and resources to people in the
inner city of Johannesburg
who are in a crisis situation or otherwise in
desperate need of accommodation.
3.             The
Applicant is directed to devise and implement within its available resources a
comprehensive and
co-ordinated programme to progressively realise the right to
adequate housing to people in the inner city of Johannesburg who are
in a
crisis situation or otherwise in desperate need of accommodation.
4.             Pending
the implementation of the programme referred to in paragraph 3 above,
alternatively until such
time as suitable adequate accommodation is provided to
the Respondents, the Applicant is interdicted from evicting or seeking to
evict
the current Respondents from the properties in this application.
5.             In
the circumstances the application is dismissed with costs, including the costs
occasioned by the employment
of two counsel.”
[7]
Section 26(3) provides—
“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.”
[8]
The order was issued on
30 August 2007.
[9]
The first application for extension of time on 27 September
2007 required the time for engagement to be extended until 16 October
2007 and
for affidavits to be filed on 19 October 2007.  The second, made on 18 October
2007 sought to file affidavits by 24 October
2007.
[10]
I would suggest that the standard for deciding whether or
not to consider applications for leave to appeal should also apply when
we are
to decide whether to consider particular issues in an application for leave to
appeal.
[11]
The High Court did not deem it necessary to decide these
questions because it held that the occupiers could not be evicted until
and
unless alternative accommodation was found for them.
[12]
Above n 7.
[13]
19 of 1998.
[14]
The decision would therefore be subject to section
3(2)(b)(ii) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) as

well as jurisprudence on administrative decisions.
[15]
Government of the Republic of South Africa and Others v
Grootboom and Others
2001(1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
[16]
Id at paras 82-83.
[17]
Id at para 87.
[18]
Port Elizabeth Municipality v Various
Occupiers
2005 (1) SA 217 (CC); 2004 (12) BCLR 1268
(CC).
[19]
Id at para 39.
[20]
Section 152(1)(b).
[21]
Section 152(1)(c).
[22]
Section 152(1)(e).
[23]
Section 7(2).
[24]
Section 10.
[25]
Section 11.
[26]
Section 26(2) provides—
“The state must take
reasonable legislative and other measures, within its available resources, to
achieve the progressive
realisation
of [the right of
access to adequate housing].”
[27]
Above n 15 at para 82.
[28]
Johannesburg Inner City Regeneration Strategy.
[29]
Above n 7.
[30]
18 February 2008.
[31]
Above para [18].
[32]
There is a debate about whether the plight of thousands of
other poor residents of the inner city apart from the occupiers has been

properly raised.
[33]
See for example:
Van Vuren v Minister of Justice and
Constitutional Development and Another
[2007] ZACC 11
;
2007 (8) BCLR 903
(CC) at paras
10-11;
De Kock v Minister of Water Affairs and Forestry and Others
2005
(12) BCLR 1183
(CC) at paras 3-4;
Mnguni v Minister of Correctional Services
and Others
2005 (12) BCLR 1187
(CC) at para 6;
Mkontwana v Nelson
Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo
City Municipality and Others; Transfer
Rights Action Campaign and Others v MEC,
Local Government and Housing, Gauteng and Others (KwaZulu-Natal Law Society and
Msunduzi
Municipality as
Amici Curiae)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR
150
(CC) at para 11 and
Bruce and Another v Fleecytex Johannesburg CC and
Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at paras 7-9.
[34]
Above n 1
at para 64.
[35]
Id at paras 51-56.
[36]
Id at para 64.
[37]
Id at para 1.
[38]
Id at para 4.
[39]
Above para [42].
[40]
Above n 1 at p
aras 51, 52 and 54-56.
[41]
Id at para 53.
[42]
The constitutionality of the use of criminal law to compel
evictions of the poor was not raised and I express no opinion on it, save
to
note that imprisonment is not involved in this matter.
[43]
See
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at paras 64-67, 70 and 73-75.