Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC) ; 2010 (3) SA 454 (CC) (10 June 2009)

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[2009] ZACC 16
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Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC) ; 2010 (3) SA 454 (CC) (10 June 2009)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 22/08
[2009] ZACC 16
RESIDENTS OF JOE SLOVO COMMUNITY,
WESTERN
CAPE
.............................................................................
Applicants
versus
THUBELISHA HOMES
...................................................................
First Respondent
MINISTER FOR HOUSING
..............................................................
Second
Respondent
MINISTER OF LOCAL GOVERNMENT
AND HOUSING, WESTERN CAPE
..................................................
Third
Respondent
with
CENTRE ON HOUSING RIGHTS
AND EVICTIONS
..............................................................................
First
Amicus Curiae
COMMUNITY LAW CENTRE, UNIVERSITY
OF THE
WESTERN CAPE
.........................................................
Second
Amicus Curiae
Heard on : 21 August 2008
Decided on : 10 June 2009
JUDGMENT
THE COURT:
In this case, five judgments have
been prepared by different members of the Court: Moseneke DCJ,
Ngcobo J, O’Regan J, Sachs
J and Yacoob J. All the judgments
support the order set out at the end of this judgment. This
judgment has been prepared
to outline briefly the basis upon which
all judges agree that the order should be made.
The history of the matter and the relevant facts are
set out fully in the judgment of Yacoob J. Crisply, the question
the Court
has to answer is whether the application for leave to
appeal against the order of eviction made by the Western Cape High
Court,
Cape Town
1
should succeed and, if so, on what basis.
All the judgments agree that two key legal questions
must be answered. The first is whether the first to third
respondents
have made out a case for eviction of the applicants in
terms of the Prevention of Illegal Eviction from and Unlawful
Occupation
of Land Act 19 of 1998 (“the PIE Act” or “PIE”).
Key to the PIE question is whether, at the time the eviction
proceedings
were launched, the applicants were “unlawful
occupiers” within the meaning of PIE and whether it is just and
equitable
to issue an eviction order. The second question is
whether the respondents have acted reasonably within the meaning of
section
26 of the Constitution
2
in seeking the eviction of the applicants.
All the judgments accept that by the time the eviction
proceedings were launched, the applicants were “unlawful
occupiers”
within the meaning of PIE, although the reasoning
which supports this conclusion differs. The difference between the
judgments
concerns whether the applicants had the consent of the
municipality to occupy the land in question within the meaning of
PIE.
In this regard, Yacoob J holds that they did not have consent
at all, while Moseneke DCJ, Ngcobo J, O’Regan J and Sachs J
conclude that they did but that the consent was conditional and
subsequently revoked.
All the judgments agree, as well, that an eviction
order as crafted in the order annexed to this judgment is just and
equitable.
It should be noted, however, that the terms of the
eviction order made by this Court are different from the terms of
the eviction
order made by the High Court. The main differences
between the High Court order and the order made by this Court are
the following.
First, this Court’s order imposes an obligation
upon the respondents to ensure that 70% of the new homes to be
built on
the site of the Joe Slovo informal settlement are
allocated to those people who are currently resident there or who
were resident
there but moved away after the N2 Gateway Housing
Project had been launched. Secondly, this Court’s order
specifies the
quality of the temporary accommodation in which the
occupiers will be housed after the eviction; and thirdly, this
Court’s
order requires an ongoing process of engagement between
the residents and the respondents concerning the relocation
process.
Accordingly, the High Court order is set aside and
replaced with the order attached.
All the judgments, too, agree that the respondents,
and particularly the second and third respondents who bear
obligations to
act reasonably in seeking to promote the right of
access to adequate housing contained in section 26 of the
Constitution, have
acted reasonably in seeking the eviction of the
applicants in this case. There are differences in emphasis in the
reasoning
supporting this conclusion.
Accordingly, the following order (which is in the
terms proposed by Yacoob J) is made unanimously by the Court:
The application for leave to appeal is granted.
The appeal succeeds in part and is dismissed in
part.
The order of the Western Cape High Court, Cape
Town dated 10 March 2008 under case number CPD 13189/07 is
set aside.
The applicants are ordered to vacate the Joe
Slovo Informal Settlement (Joe Slovo) in accordance with the
timetable
set out in annexure “A” hereto, subject to any
revisions to that timetable agreed to in terms of paragraphs

5 – 7 of this order. The order to vacate is conditional
upon and subject to the applicants being relocated to

temporary residential units situated at Delft or another
appropriate location on the conditions set out in paragraphs

8 – 10 below.
The applicants and the respondents are ordered,
through their respective representatives, to engage
meaningfully
with each other with a view to reaching
agreement on the following issues:
5.1 a date upon which the relocation
will commence different to that contemplated in annexure “A”;
5.2 a timetable for the relocation process different
to that contemplated in annexure “A”; and
5.3 any other relevant matter upon which they agree to
engage.
The process of
engagement described in the previous paragraph of this order
must be completed by 30 June 2009.
If the process of engagement results in
agreement between the parties, the agreement must be placed
before this
Court, by 7 July 2009 for this Court to consider
whether it is appropriate to issue an order giving effect to
the
agreement.
The respondents are ordered to provide
alternative accommodation in the form of temporary
residential units to those
applicants who vacate Joe Slovo.
A temporary residential unit must be made
available to each household moved, and each temporary
residential accommodation
unit:
9.1 that already exists, must in all
respects comply with the specifications in paragraph 10 of this
order; and
9.2 that is newly constructed, must be of an
equivalent or superior quality.
The temporary
residential accommodation unit must:
10.1 be at least 24m
2
in
extent;
10.2 be serviced with tarred roads;
10.3 be individually numbered for purposes of
identification;
10.4 have walls constructed with a substance called
Nutec;
10.5 have a galvanised iron roof;
10.6 be supplied with electricity through a pre-paid
electricity meter;
10.7 be situated within reasonable proximity of a
communal ablution facility;
10.8 make reasonable provision (which may be communal)
for toilet facilities with water-borne sewerage; and
10.9 make reasonable provision (which
may be communal) for fresh water.
The respondents are
further directed to engage with the affected residents in
respect of each relocation that is
to take place, the
engagement to take place at least one week prior to the date
specified for the relocation in
annexure “A” or as
otherwise specified in an order of this Court. The
engagement must include (but not be
limited to) the following
issues:
11.1 Ascertainment of the names,
details and relevant personal circumstances of those who are to be
affected by each relocation;
11.2 The exact time, manner and conditions under which
the relocation of each affected household will be conducted;
11.3 The precise temporary residential accommodation
units to be allocated to those persons to be relocated;
11.4 The need for transport to be provided to those to
be relocated;
11.5 The need for transport of the possessions of
those to be relocated;
11.6 The provision of transport facilities to the
affected residents from the temporary residential accommodation
units to amenities,
including schools, health facilities and places
of work;
11.7 The prospect in due course of the allocation of
permanent housing to those relocated to temporary residential
accommodation
units, including information regarding their current
position on the housing waiting list, and the provision of
assistance
to those relocated with the completion of application
forms for housing subsidies.
The first
respondent is directed, in accordance with its tender to do
so, to render assistance to the parties affected
to move
their possessions insofar as it is reasonably practicable.
The applicants are interdicted, once they have
been relocated from Joe Slovo, from returning to Joe Slovo
for the
purpose of erecting or taking up residence in
informal dwellings.
The applicants are entitled to remove their
informal structures when they leave Joe Slovo.
After the informal dwellings at Joe Slovo have
been vacated in accordance with this order, the respondents
are authorised
to demolish the housing that remains in the
areas vacated.
The parties are directed:
16.1 to lodge affidavits with the
Registrar of this Court not later than 1 December 2009 setting out
a report on:
16.1.1 the implementation of this order;
16.1.2 the allocation of permanent housing
opportunities to those affected by this order.
16.2 to serve copies of the affidavits on the legal
representatives of all the parties.
The respondents are
directed to allocate 70% of the
Breaking New Ground
houses
(that is low-cost government housing available at low
rentals) to be built at the site of Joe Slovo to:
17.1 the current residents of Joe
Slovo; and
17.2 those former residents of Joe Slovo who left Joe
Slovo after the N2 Gateway Housing Project was launched after being
requested
to do so by the respondents or the City;
and who apply for and qualify for this housing.
It is recorded that
the respondents have indicated that the total number of
Breaking New Ground
houses to be built at the site of
Joe Slovo will not number fewer than 1 500. The respondents
are ordered to inform
the other parties and the Court within
14 days of this order if this number has changed or is likely
to change
whereupon the Court may issue further directions in
this regard.
The second respondent and third respondent are
directed to ensure – in accordance with their undertakings
to do
so – that any successor to the first respondent
agrees to the terms of this order, and agrees to be bound by

the obligations of the first respondent under this order.
If a successor to the first respondent is
appointed and becomes bound by the terms of this order, the
first respondent
will be relieved of its obligations to the
extent that they are taken over by its successor, with effect
from the
date upon which the successor becomes bound.
Should this order not be complied with by any
party, or should the order give rise to unforeseen
difficulties, any
party may approach the Court on notice to
the other parties for an amendment, supplementation or
variation of this
order.
The first, second and third respondents are
ordered, jointly and severally, to pay 50% of the costs of
the applicants
in this Court, and the High Court, such costs
to include the costs of both teams of legal representatives
employed
by the applicants and the costs of two counsel where
two counsel were employed.
Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan
J, Sachs J, Van der Westhuizen J and Yacoob J.

ANNEXURE A TO THE ORDER OF COURT DATED 10 JUNE 2009
WEEK
ZONE
BLOCK
HOUSEHOLDS
TARGET
DATE
RUNNING
TOTAL
AVG
WEEKLY
Week
1
32
D
45
17-Aug-09
45
45
Week
2
30
B
167
24-Aug-09
212
106
Week
3
30
B
31-Aug-09
212
71
Week
4
30
C
76
07-Sep-09
288
72
Week
5
32
C
159
14-Sep-09
447
89
Week
6
30
E
314
21-Sep-09
761
127
Week
7
30
E
28-Sep-09
761
109
Week
8
30
E
05-Oct-09
761
95
Week
9
32
B
219
12-Oct-09
980
109
Week
10
32
B
19-Oct-09
980
98
Week
11
30
H
7
26-Oct-09
987
90
Week
12
30
G
223
02-Nov-09
1210
101
Week
13
30
G
09-Nov-09
1210
93
Week
14
30
G
16-Nov-09
1210
86
Week
15
32
A
136
23-Nov-09
1346
90
Week
16
30
J
227
30-Nov-09
1573
98
Week
17
30
J
07-Dec-09
1573
93
Week
18
31
J
295
14-Dec-09
1868
104
Week
19
31
J
21-Dec-09
1868
98
Week
20
31
J
28-Dec-09
1868
93
Week
21
30
L
121
04-Jan-10
1989
95
Week
22
31
H1
198
11-Jan-10
2187
99
Week
23
30
H1
18-Jan-10
2187
95
Week
24
30
M
203
25-Jan-10
2390
100
Week
25
30
M
01-Feb-10
2390
96
Week
26
31
G
315
08-Feb-10
2705
104
Week
27
31
G
15-Feb-10
2705
100
Week
28
31
G
22-Feb-10
2705
97
Week
29
30
Q
401
01-Mar-10
3106
107
Week
30
30
Q
08-Mar-10
3106
104
Week
31
30
Q
15-Mar-10
3106
100
Week
32
30
Q
22-Mar-10
3106
97
Week
33
31
H2
66
29-Mar-10
3172
96
Week
34
31
F
79
05-Apr-10
3251
96
Week
35
31
E
196
12-Apr-10
3447
98
Week
36
31
E
19-Apr-10
3447
96
Week
37
31
D
309
26-Apr-10
3756
102
Week
38
31
D
03-May-10
3756
99
Week
39
31
D
10-May-10
3756
96
Week
40
31
C
119
17-May-10
3875
97
Week
41
31
B
169
24-May-10
4044
99
Week
42
31
B
31-May-10
4044
96
Week
43
31
A
342
07-Jun-10
4386
102
Week
44
31
A
14-Jun-10
4386
100
Week
45
31
A
21-Jun-10
4386
97
YACOOB J:
Introduction
We must in this case consider the difficult and
important question of the requirements, including those of fairness
and justice,
that must be complied with in the process of the
relocation of a large community so that better housing may be built
in these
informal settlement areas. This is an application for
leave to appeal against a judgment and a rather unusual order of
the
Western Cape High Court, Cape Town
1
for the relocation of 4 386 households (said to consist of around
20 000 residents) from a large informal settlement known
as Joe
Slovo settlement area (Joe Slovo settlement).
2
The settlement is about 10 kms to the east of Cape Town and
adjacent to kwaLanga. I must say at this early stage that the

relocation order was sought and granted in order to facilitate the
development there of better quality housing than the informal

housing presently in use. This is described in more detail later.
The applicants are, in effect, all the people who are
obliged by the order of the Western Cape High Court, Cape Town to
relocate.
They are represented in these proceedings (as they were
in the High Court) by two committees. The one is described as the

committee chaired by Mr Penze
3
while the other is referred to as a task team chaired by Mr
Mapasa.
4
Although each of these committees was separately represented,
there seems little point in referring to them separately. Although

the arguments submitted by the legal representative of each
committee differed somewhat, they supported and complemented each

other. In the circumstances, all the people who are subject to the
order of the High Court and who are in effect the applicants
for
leave to appeal will be referred to as the applicants.
The application for leave to appeal conveys that the
two committees together represent the applicants and the entire Joe
Slovo
community. This was not questioned by anyone and this
judgment will accept that this is so without qualification.
The City of Cape Town (the City), the owner of the
property occupied by the applicants, did not participate in the
eviction
proceedings. The relocation order was instead obtained at
the instance of the three respondents. Thubelisha Homes, the first

respondent, has been charged with the responsibility of developing
the housing at the Joe Slovo settlement. The national and
Western
Cape provincial Ministers responsible for housing are the second
and third respondents respectively. Although argument
was filed
separately on behalf of the first and third respondents on the one
hand and the second respondent on the other, they
make common cause
on every issue and can be referred to simply as the respondents.
They vigorously defended the High Court
order.
The Community Law Centre of the University of the
Western Cape and the Centre on Housing Rights and Evictions were
admitted
as amici curiae. Both are non-governmental organisations.
The Community Law Centre is born and based in our country and is
committed to “promote the achievement of the social and economic
rights in our Constitution”. The Centre on Housing Rights
and
Evictions is on the other hand, international and seeks to protect
the “right to adequate housing for everyone, everywhere”.
The
amici were not separately represented and advanced additional
dimensions in support of the applicants. These will be
considered
in due course.
I have already described the High Court order as
unusual. It reads as follows:
“
In the event it is ordered that:
1. 1.1 The various occupiers of the area known as Joe
Slovo informal settlement are directed to vacate the area in
accordance
with the schedule annexed to the order and marked ‘X’,
more particularly:
1.1.1 They are directed to move from the blocks (in
the zones) set forth in the third (and in the second) columns set
forth
on annexure ‘X’ to the order;
1.1.2 They are directed to move on the dates set forth
in the column styled ‘Target Date’ on annexure ‘X’ to the
order.
2. Those who are subject to this order are interdicted
and restrained – once they have vacated or been ejected from the
area
known as Joe Slovo informal settlement – from returning
thereto for the purpose of erecting or taking up residence in
informal
dwelling.
3. 3.1 Those affected by this order shall be entitled
to remove their informal structures upon leaving the Joe Slovo
informal
settlement;
3.2 After the dwelling situate at Joe Slovo informal
settlement have been vacated in accordance with this order,
Applicants
are authorized to demolish such informal housing as
remains in the areas vacated.
4. First Applicant is directed – in accordance with
its tender to do so – to render assistance to the parties
affected to
move their possessions to the extent that it is able to
do so.
5. In the event of the failure and/or refusal of the
residents of Joe Slovo informal settlement to vacate their
dwellings as
set forth above, the Sheriff of this Court is
authorized and directed to carry into execution this order in
accordance with
‘X’ to the order, and:
5.1 In the event of the refusal of the occupants to
move their movable possessions, the Sheriff is authorized to move
all the
movable items in the premises to an identified place in the
temporary relocation area in Delft for safekeeping;
5.2 To eject such Respondents from their dwellings at
the times indicated on annexure ‘X’ to the order.
6. Applicants are directed:
6.1 To report on affidavit at intervals of no less
than 8 weeks (but at more frequent intervals should they deem it
necessary)
to report back to this Court as to:
6.1.1 The implementation of this order;
6.1.2 The allocation of permanent housing
opportunities to those affected by this order.
6.2 To furnish copies of the affidavits comprising its
reporting to the Legal Resources Centre, or to such other address
as
may be directed from time to time.”
The order is to be read with annexure “X”. It
will be convenient not to introduce that annexure here but to
describe the
effect of the Court order read with annexure “X”.
More than 4 000 families had to be relocated from the Joe Slovo
settlement
to an area known as Delft, about 15 kms away. The
relocation was to occur over 45 weeks and the households to be
moved during
each weekly or sometimes fortnightly period were
identified. It is clear that, according to the order, an average
of about
97 households were to be relocated each week.
The issues
The matters raised in the High Court were more
extensive than those before this Court. The issues ultimately
raised before
this Court in the attack on the High Court decision
were:
whether the applicants were unlawful occupiers for
purposes of the PIE Act
5
and if not, whether their occupation was lawfully terminated;
whether sections 5 or 6 of the PIE Act were
applicable;
whether the technical requirements of the PIE Act had
been complied with;
whether the relocation of the applicants was just and
equitable;
whether the applicant had a substantive legitimate
expectation in relation to the allocation of housing opportunities
in the
Joe Slovo settlement to them and whether this expectation
had been or could be fulfilled;
is the eviction of the
applicants in all the circumstances, reasonable; and
the nature of the relief that is appropriate, just
and equitable.
It is necessary to say of the High Court judgment at
this stage that it considered in detail all issues presented in
that Court.
It is however not appropriate to summarise the
findings in full. Those findings of the High Court that have been
challenged
by the applicants will be fully traversed in the
relevant parts of this judgment.
Constitutional matters
This case plainly raises constitutional matters. The
constitutional matters, broadly speaking, are concerned with the
obligations
on the state to provide access to adequate housing in
terms of section 26(1) and (2) of the Constitution, as well as
whether
the circumstances justify the relocation of the applicants.
This case also concerns the interpretation and application of the

PIE Act which, in my view, is legislation enacted to give effect to
the provisions of section 26(3) of the Constitution.
Interests of justice
I also conclude that it is in the interests of justice
for leave to appeal to be granted. The case raises constitutional
issues
of considerable importance to reconstruction in South Africa
and to the appropriate provision of housing. As I have already
said, the case raises the vital issue as to the circumstances in
which large communities of people can be legitimately relocated

from informal settlements in order to allow for the development of
housing in the informal settlement areas concerned. This
is not
the last time that this issue will confront those involved in the
improvement of the quality of life of the people of
our country, as
well as our courts. It is necessary for this Court to grasp the
mettle and determine when and in what circumstances
relocation on
this massive scale is constitutionally appropriate.
Facts
The relevant facts must now be set out before going
into the High Court judgment and the evaluation of the contentions
of the
parties. All the factual material is inter-related but can
be said broadly to fall into three categories. The first concerns

a short history of their occupation and the nature of the
relationship between the applicants and the respondents. The

second will hopefully lead us to an understanding of the Gateway
housing project. The third aspect concerns what the applicants

refer to as “broken promises”.
Facts: the Joe Slovo settlement and the
relationship between the applicants and the City
The Joe Slovo settlement began to be occupied in the
early 1990s. The land, owned by the City, was wholly undeveloped.
It
was necessary for those who occupied the land to clear away vast
vegetation before rudimentary structures could be established
on
the land. During the early days of the settlement and during the
apartheid years, security operatives repeatedly and forcibly

removed the occupants from the land and cruelly destroyed their
accommodation and possessions. But the occupiers of the time

inevitably returned.
The numbers grew considerably, especially during
December 1994. The forced removals and demolitions soon ceased in
the new
South Africa. The City of Cape Town, understandably, began
to adopt a consistently more humane attitude towards the residents.

It began by providing them with water, then container toilets and
rudimentary cleaning facilities. After a fire had caused

considerable devastation in 2000, apparently by 2002, the City
provided tap water, toilets, refuse removal, roads, drainage
and
electricity. In addition each house was given a number.
Much of this was done as a consequence of pressure,
negotiations or demands by those representing the community in the
area.
At first, only one body represented all the residents. This
was the committee which has already been described as that
represented
by Mr Penze. Later, in the negotiations between the
City and the applicants, the community was represented by the two
entities
that represent them in this application. It must
therefore be accepted as a fact that improvements to the conditions
of life
to the applicants were effected by the City as a
consequence of consultation between the community and the City. I
may say
at this stage that although these extended negotiations
resulted in considerable improvement in the lives of the people in

the area, none of the community representatives provide any
evidence on whether there had been any discussions concerning the

rights of the residents to occupy. We must proceed on the basis
that there was no interaction of this kind, for if there had
been
discussions favourable to the applicants, it is inconceivable that
they would not have been mentioned.
The Joe Slovo settlement community was not static. It
grew as time went on. It also changed its character because some
people
moved out of the area and other people moved in. There is
no indication that those people who moved in acknowledged the City

as the owner of the property in any way. Nor is there any
indication that the City expressly acknowledged that the people
who
had settled on the property had the right to occupy it. There are
at least two instances where applicants who moved into
the
settlement area later deposed to the fact that they had purchased
their informal accommodation in transactions mediated
by Mr Penze.
Moreover, many of the applicants say, not that they occupied
pursuant to permission by the City, but that they
were given
permission by a committee of the residents to occupy.
A description of the conditions of life in the
settlement is appropriate. People in Joe Slovo settlement live in
overcrowded
conditions, in makeshift accommodation built of
insubstantial material. The conditions of life are unhygienic.
There is no
water-borne sewerage. Moreover, the area is unsafe
particularly because the makeshift structures are fire prone in the
extreme.
I have already spoken of one fire and will describe
another particularly devastating one later. It is no exaggeration
to
say that fires in the settlement have claimed lives and
destroyed property at least every summer. The applicants live in
deplorable
circumstances unfit for reasonable human habitation.
This, despite the improvements brought about by the City.
The housing development at issue in this case is the
N2 Gateway project which is briefly described later in this
judgment.
It is part of the national
Breaking New Ground
(BNG) policy aimed at eliminating informal settlements throughout
South Africa. The Joe Slovo settlement was targeted for

reconstruction in terms of this policy, no doubt because of the
deplorable and inhuman conditions under which the people live.
And it is incorrect to suggest that the applicants
have had no notice of the fact that they will have to move or of
the fact
that the housing development was contemplated. In late
2004, the City began to persuade residents to move out of the area

to facilitate the development. As I will show later the
development was to be in three phases and efforts were made to
persuade
people to move so as to allow the commencement of phase 1.
There is some debate in the papers as to why the people in fact

did move to facilitate phase 1 of the project. But the only
matters of importance for present purposes are that there were
negotiations between the authorised representatives of the people
and the people themselves; and that people moved pursuant
to this
engagement.
Another fire in January 2005 caused more devastation
of huge proportion leaving many families homeless. The mayor of
the City,
Ms Nomaindia Mfeketo, informed the residents that they
could not rebuild their homes where they previously had been.
There
were a number of meetings between the mayor and the people at
which the intention to undertake a housing project where the people

lived and the possibility of their having to move to alternative
accommodation was discussed.
The N2 Gateway project was officially launched
publicly, and with extensive media coverage, during February 2005.
The affidavits
demonstrate that the community was well aware of the
Gateway project from its inception. More importantly, there were
discussions
concerning the project between the representatives of
the City and the representatives of the people. Indeed, the
affidavits
on behalf of the applicants, including those made by the
representatives of the two entities that represented the people,
are
to the effect that the project initially met with the broad
approval of the residents and the community, and its leaders
supported
the project enthusiastically.
Facts: the Gateway housing project
The Gateway housing project is part of the national
BNG policy. That project is aimed at the provision of decent
reasonable
housing for those living in informal settlements. The
process of the development was carefully defined at the national
level.
It was to begin with surveys within the communities
concerned to determine housing and structural needs of the
community through
a process of consultation. This was to establish
the geo-technical and physical characteristics of the land so as to
determine
whether upgrading was possible without the removal of the
people or whether it was necessary for people to be moved to
alternative
accommodation before appropriate development could take
place. This stage of the process has been completed in Joe Slovo
settlement
and it has been determined that the people have to be
moved.
The process ends by the development of housing in
response to community demand. It was thought that the housing may
take a
variety of forms including medium density housing and free
standing housing. The housing development stage has been reached
in the Gateway project itself. The housing was to be constructed
in three phases. Housing in all the phases was, according
to the
applicants, to consist of BNG housing available to poor people at
minimal rentals, housing available at higher rentals,
as well as
bonded housing. Bonded housing can best be described as credit
linked housing. This housing would be bought by
people who could
afford it on the basis of privately obtained loans on mortgage.
Facts: “broken promises”
During 2006 - 2007 there was considerable effort to
persuade the residents to move to Delft in order to enable
Thubelisha Homes
to proceed with the development of phase 2 of the
project but these efforts failed. The applicants say that while
they were
initially happy with the project, they later became
dissatisfied because of what they called “broken promises”. I
have
already pointed out that there was to be a three-phase
development and that poor people were to be provided with
subsidised
low rental accommodation in all three phases. Indeed,
the applicants state that those who voluntarily moved from that
part
of Joe Slovo settlement intended for phase 1 development were
to be allocated houses in phase 1. More specifically, it is said

that community leaders were informed that housing in phase 1 would
be occupied at rents of between R150 and R300 per month.
These
proposed payments were acceptable to the applicants.
According to the applicants this promise was broken.
In fact the rent payable in respect of the houses in phase 1 ranged
from
R600 to R1 050 per month. To make matters worse, phase 2 has
no housing for poor people in it at all. According to the
respondents,
it is reasonably feasible to construct only bonded
housing in phase 2.
The applicants assert that they had been promised that
70% of the houses built in the Joe Slovo settlement would be
allocated
to Joe Slovo residents who qualify. The applicants’
second complaint is that the state had not kept this bargain in
phases
1 and 2. Understandably, they feared that the promise would
not be kept in phase 3 either.
There were ultimately petitions and protests in
relation to the development and the proceedings for the relocation
of the residents
were instituted in the High Court.
At some stage during their occupation of the premises
the City arranged for each of the occupiers to be given “red
cards”
which indicated that the holder had applied for housing
with the municipality.
Unlawful occupier
The case in the High Court was brought in terms of the
PIE Act. A fundamental requirement for any eviction of any person
in
terms of this legislation is that the person concerned must be
an unlawful occupier.
6
The term “unlawful occupier” is defined as follows:
“
[A] person who occupies land without the express or
tacit consent of the owner or person in charge, or without any
other right
in law to occupy such land, excluding a person who is
an occupier in terms of the
Extension of Security of Tenure Act,
1997
, and excluding a person whose informal right to land, but for
the provisions of this Act, would be protected by the provisions
of
the Interim Protection of Informal Land Rights Act, 1996 (Act No.
31 of 1996).”
The applicants contended both in the High Court and in
this Court that the evidence had not established that the
applicants
were all “unlawful occupiers” within the meaning of
the phrase as defined. The stance of the applicants was that the
City
of Cape Town, the owner of the property, had either expressly
or tacitly consented to their occupation of the Joe Slovo
settlement.
In the circumstances their eviction in terms of the
PIE Act was incompetent. The High Court rejected this contention.
The absence or otherwise of the consent of the
municipality is of more fundamental significance than would at
first blush appear.
The contention of the applicants is that the
PIE Act is applicable only if the residents are in unlawful
occupation and that
municipal consent renders the PIE Act
inapplicable. The more fundamental question not adverted to by the
parties directly
is whether the respondents are entitled to eject
the residents at all. If there had been consent to the occupation
and the
right to occupy had not been terminated, the respondents
would not have been entitled to any relocation order. Once there

is a right to eject, however, (and this is so only if there was no
municipal consent to occupy) the provisions of the PIE Act
become
applicable as a matter of protection to the person or people liable
to eviction.
It was common cause that all the services that the
applicants relied upon for their contention that the City had
consented to
their occupation of the land had in fact been
rendered. Ms Nomaindia Mfeketo was the mayor of Cape Town during
the period
1998 to 2000 and then between 2002 and the end of the
first quarter of 2006. Her evidence was to the effect that there
was
no intention on the part of the City to concede any right of
occupation, but that the City had acted from humanitarian
considerations.
Consent
The argument that this evidence together with certain
negative indicators referred to below amounted to the express or
tacit
consent by the City so that the Joe Slovo residents acquired
some right to occupy was rejected by the High Court. The Court
said:
“
In support thereof, they contended that they
have been issued with ‘red cards’ which entitled them to remain
in undisturbed
possession of their houses, a fact which they
averred was given further credence by the City’s provision of
certain services
to them. Ms Mfeketo, the then Mayor of Cape Town,
disputed such allegations. She stated that services were provided
for ‘basic
humanitarian reasons’ and should not be construed as
consent by the City or granting the residents any enforceable right

to remain in the area. It was always intended that informal
settlements in general would be upgraded, moved or redeveloped in

conformity with government’s constitutional imperative to provide
access to adequate housing on a progressive basis.”
7
The Court also concluded, in support of the finding
that the residents occupied the land unlawfully, that the informal
dwellings
at Joe Slovo were illegal structures that did not comply
with building regulations.
8
In the context of a contention that some of the
applicants had acquired tenure rights in terms of the
Interim
Protection of Informal Land Rights Act,
9
as
well as the
Extension of Security of Tenure Act (the
Tenure
Act),
10
the applicants relied heavily on the case of
Rademeyer
11
in the High Court.
12
Although this contention was not relied upon in this Court, the
Rademeyer
decision was. It was held in that case that a
city council, by providing water, sanitation and other services to
people occupying
its property had, in the circumstances of that
case consented tacitly to their occupation. It was contended that
in this case,
in like vein, the City had consented to the
occupation of the applicants. The High Court disagreed, holding
that:
“
This submission is flawed. It flies in the face
of the evidence of former Mayor of Cape Town, Ms Mfeketo that
services were
provided to the Joe Slovo residents for humanitarian
reasons and that it was always the intention to build proper houses
thereby
eliminating informal settlements. She further gave
evidence that the Red Cards issued to Respondents were proof of
applying
for housing and served as recognition of receipt of basic
services, not giving the bearer thereof entitlement to occupy
property
legally. In any event the
Rademeyer
decision was
before the PIE Act came into operation and prior to the
Grootboom
decision which affirmed the Department of Housing’s obligation
under the Constitution to provide adequate housing.”
13
The applicants contended in this Court that the
evidence had demonstrated the express or tacit consent of the City.
They relied
on the provision of services detailed above
14
as well as the issue of “red cards” to them.
15
They also depended on the fact that reconstruction work had been
done by the City after the fire, and on the conduct of a
City
councillor who had asked residents to move from one area to
another. The argument placed much emphasis on what the City
had
not done. It had not:
ejected the residents;
told the residents that they were in unlawful
occupation;
informed them that they would have to leave at any
time; or
told them that they had no right to occupy.
It was also urged upon us that the
occupiers had been on the land for 15 years and that the services
provided exceeded emergency
services.
It was argued on this factual foundation that the
phrase “tacit consent” deserved a broad construction and that
it was impossible
to suggest that the tacit consent of the City had
not been given. The applicants therefore had the right to occupy
and were
not unlawful occupiers. Since their right to occupy had
not been terminated, the applicants did not fall within the purview
of the definition of “unlawful occupier” in the PIE Act.
All the respondents relied for their contentions on
the affidavit of Ms Mfeketo who, I have already said, was the mayor
of Cape
Town during the period 1998 to 2000 and once again from
2002 until the end of the first quarter of 2006. I have already
referred
to reliance by the High Court on what the mayor had said
as a basis for the rejection of the applicants’ contention that

they had the express or tacit consent of the City to occupy the Joe
Slovo settlement. That affidavit is crucial and it is necessary

that much of it be set out to facilitate an understanding of the
argument of the respondents and of the approach proffered
in this
judgment.
Paragraphs 5 and 6 read as follows:
“
5. When I became mayor in 1998, Joe Slovo was
already a large informal settlement. Nothing, however, had been
done by way
of managing the settlement. Particularly:
5.1. There had been frequent fires in the area,
which tended to recur every year in summer;
5.2. There were no records at all as to who resided
in the informal settlement;
5.3. There were no services in the area;
6. The City of Cape Town, under my stewardship, had
various interventions as regards the welfare of those living in
the informal
settlement:
6.1. Fire breaks were implemented. This was done in
consultation with the residents and – as is alleged by
Respondent
– Councillor Gophe played a prominent role in this
process.
6.2. The City embarked upon an exercise akin to a
small census. The purpose was to compile records (as accurately
as circumstances
would permit) as to the number of dwellings in
Joe Slovo informal settlement, and the number of persons who
resided there.
These records would be used to plan for the
upgrading of the area, the orderly removal of the residents from
the area,
and the long-term goal of providing access to adequate
housing to the residents.
6.2.1. It was appreciated from the outset that,
if a project of the magnitude of the upgrading of Joe Slovo
was to
be achieved, community co-operation should be secured
as far as this was possible, and their fears allayed.
6.2.2. I realised that this ‘census’ would be
controversial within the community, and could be treated with
mistrust.
In the circumstances, I was entirely open with the
community regarding the City’s intentions. Meetings were
held,
and the intention to conduct the ‘census’ (with a
view ultimately to moving the residents) was explained.
6.2.3. I attended approximately four or five such
formal meetings with the community. They were held at the
Langa
Community Sports Complex and were attended by many
people.
6.2.4. There were several meetings that I did not
attend and these were attended by the local councillor.
6.2.5. In addition to the City holding such
meetings, I am aware that provincial government and national
government
held meetings as well.
6.2.6. At the very first of these meetings (which
I attended) I explained the ‘census’.
6.2.6.1. The community were informed in terms
that there were plans to redevelop Joe Slovo to provide
access to
adequate housing, and the information obtained in
the census would be used for this purpose.
6.2.6.2. It was moreover appreciated from the
outset that Joe Slovo was a densely populated area, and that
any
redevelopment would – to a greater or lesser extent –
involve the de-densification of the area. The practical

consequence of this was that it would be impossible for all
residents to return to Joe Slovo after development.
This
was known from the outset, and the community was informed
that it will be necessary for them to move to
temporary
accommodation, pending the allocation to them of housing on
a permanent basis. Importantly, there
was no guarantee
given to anyone that they would return to the area of Joe
Slovo. No such undertakings could
be given. In the first
instance it was impossible for all residents to return, and
in the second instance, national
policy had not yet been
formulated and finalised and it would have been precipitate
to give any undertakings
against this background.
6.2.6.3. A time frame of six months was
discussed for the commencement of the project. History has
proved this
to be optimistic, but it was genuinely intended
at the time.
6.2.7. Although small sections of the community
were averse to the census process, there was – by and large
–
community support for the process, which went ahead
without significant opposition. During the process, the
numbers
of dwellings were identified and each accorded a
number.
6.2.8. It is accordingly incorrect that this
census, and the allocation of numbers to dwellings which
formed a part
of it, evidences the recognition of any manner
of right by the City of Cape Town to the residents. To the
contrary,
and in context, it was just the opposite. It was
one of the first steps taken in an endeavour to move the
residents
from the area.
6.3. When I became mayor, there was no services in
Joe Slovo. There was no electricity, no sanitation, and no water
was
provided. For basic humanitarian reasons, the ANC government
in the City of Cape Town adopted an approach – consistent with

the ANC approach nationwide – that all residents in all
informal settlements should be afforded such basic services as

could progressively be realised, striving towards the value of
dignity enshrined in the Constitution. In conformity with
this
approach:
6.3.1. Portable toilets were installed at Joe
Slovo;
6.3.2. Water was reticulated to Joe Slovo by way
of communal taps;
6.3.3. Over a period of time, electricity was
laid on by way of overhead lines and pre-paid metering in
dwellings.
Respondents have – I understand – contended that
the provision of these services constitutes a recognition by the
City
of Cape Town of their right to reside in the Joe Slovo
informal settlement. I deny that this is the correct inference

to draw from the provision of the services, or from any of the
above interventions. The services were provided on humanitarian

grounds, and should not be construed as a consent by the City –
under my stewardship – for persons to regard themselves
as
having any enforceable right to remain in the area. To the
contrary, and from the outset, it was always intended that

informal settlements in general would be upgraded, moved or
redeveloped, in conformity with government’s constitutional

imperative to provide access to adequate housing on a progressive
basis.”
The respondents contended that the affidavit of the
mayor demonstrated beyond argument that there could not have been
any consent,
express or tacit. The services were provided for
humanitarian reasons, while the fact that there had been no
ejectment was
a direct result of the circumstance that alternative
humane housing provision was being investigated. There was no
intention
on the part of the City to grant a right to occupy to any
of the applicants.
The rival contentions of the parties must now be
discussed. This will be done by first defining the meaning of
“tacit consent”
and its requirements before investigating
whether on an evaluation of the evidence as a whole it can be said
that the City
did or did not give its consent. As will appear
later in this judgment, it is not necessary to answer the vexed
question whether
it is the duty of the respondents to establish the
unlawfulness of the occupation of the applicants on a balance of
probabilities
or whether, on the other hand, the applicants must
show that they had the tacit consent to occupy. The question is
complicated
by the fact that if the respondents attract the onus,
they will need to establish a negative proposition, namely that the
City
did not tacitly consent to the occupation by the applicants.
I am of the view however that it is not necessary to decide the

issue of onus in this case and I do not do so. It is evident from
a conspectus of all of the facts that there was no consent.
We remind ourselves that the occupiers become liable
to eviction and attract the benefits of the PIE Act only if they
are in
unlawful occupation. In other words their eviction cannot
take place whether in terms of the PIE Act, or at all, unless it is

established that the applicants do not have the express or tacit
consent of the owner. Now it must be understood that the

applicants are required by the PIE Act to be in occupation on
account of the actual consent of the owner. Express consent
and
tacit or implied consent, whatever the difference might be between
them (and I discuss this soon enough), are both species
of actual
consent. Tacit or implied consent must not be confused by imputing
concepts of estoppel into the concept of tacit
consent required by
the legislation. Permission by estoppel can easily be explained by
a short discussion of the concept of
authority. Authority may be
actual or ostensible; and actual authority may be express or
implied.
16
Ostensible authority is based on the principle that where an
entity creates the impression that a particular state of affairs

exists and another person is prejudiced by the creation of that
impression, the entity creating the impression cannot deny
that the
state of affairs exists.
17
If Thulile creates the impression that she has authorised her
husband Marimuthoo to sign cheques on her behalf, it does not

matter whether she has in fact granted the necessary authority.
Thulile can be prevented from denying the authority of Marimuthoo

to sign the cheques. She has no choice if sued to pay John, the
holder of the cheque.
There is no question of ostensible consent in this
case. There must be actual consent. In the circumstances, it does
not matter
if the municipality created the impression that it
consented to occupation of its property by the applicants and the
applicants
were prejudiced as a result; the municipality cannot be
precluded from denying the absence of consent. There are two
reasons
for this. First, the PIE Act speaks of tacit consent which
is a species of actual consent and has nothing to do with
ostensible
consent. If the purpose of the law maker was to confer
a right of occupation consequent upon ostensible consent it would
certainly
have said so. Secondly, the applicants do not rely upon
estoppel. In the circumstances, even if the PIE Act could be
understood
to refer to ostensible consent, the applicants have not
begun to make out any case on that basis.
One other factor must be adverted to before we try to
rein in the meaning of tacit consent in the legislation. It
concerns
an important implication that arises from the reference in
the PIE Act to the claim of “any other right”. The PIE Act

makes it plain that occupiers of property will not be regarded as
unlawful occupiers unless the owner’s express or tacit consent
is
absent or if they occupy the property in terms of any other right.
The question that must be answered in this context concerning
the
nature of the consent that is required is whether the ordinary
meaning of consent to occupy is appropriate. That is consent
to
occupy that entails the creation of a right to occupy on the part
of the occupier. On the assumption that there is a type
of consent
to occupation that does not entail the grant to the occupier of a
right to occupy, we must determine whether the
PIE Act speaks of
this kind of nebulous consent or consent, as it were, in the air.
I think not. The occupation is not unlawful
if there is consent or
some other right to occupy. It follows ineluctably that the
consent referred to in the statute is consent
to occupy or
permission that creates a defensible right of occupation.
In support of this conclusion, a proposition which
many may take to be obvious must be stated. Occupation is either
lawful
or unlawful. It is true that it may not be possible in a
particular case to determine on the evidence available whether the
occupation is lawful or unlawful. That is quite beside the point.
It is necessary to emphasise here that there are only two
kinds of
occupation: lawful or unlawful. Lawful occupiers cannot be evicted
by virtue of the lawfulness of their occupation
and do not need the
protection of the PIE Act. Only unlawful occupiers may be evicted
and only they need the protection of
the PIE Act.
The question that will need to be answered in this
case is whether the City has through its tacit consent conceded an
enforceable
right of occupation to the applicants.
The meaning of consent
The Supreme Court of Appeal,
18
in the context of a somewhat contradictory argument that the fact
that a party does have to give his consent does not mean
that the
cancellation is consensual, said the following:
“
The argument ignores the meaning of ‘consent’.
Its primary meaning as a noun is, according to the
Concise
Oxford Dictionary
, ‘voluntary agreement’.”
19
I agree that the Supreme Court of
Appeal was correct in adopting the Oxford Dictionary meaning of the
word “consent”. And
it is in this primary sense which the
concept of consent is employed in the PIE Act. What is required by
the PIE Act is not
just some kind of acquiescence by the owner or
person in charge of land but the “voluntary agreement” of the
owner or person
in charge. The occupier will not be on the land
with the consent of the owner or person in charge if the owner
simply allowed
the person to stay or occupy because he, she or it
had no choice but to do so, or felt under a duty to do so, or for
any other
reason did not agree voluntarily. Secondly, the word
“agreement” implies something bilateral. In other words
consent
as contemplated in the PIE Act is not unilateral consent
but bilateral. It cannot be consent unless it was first asked for

and later given, or unless it was accepted after it had been given
even though it had not been requested. I will return later
to the
complications for the case of the applicants that they do not even
know whether the consent upon which they rely was
express or tacit.
The definition of consent by the Supreme Court of
Appeal was appropriately embraced by the Land Claims Court in the
case of
Klaasen
20
in the process of determining the meaning of consent for
purposes of section 1(1) of the Tenure Act
21
which referred to express or tacit consent.
22
After referring to the acceptance of the Oxford Dictionary
definition by the Supreme Court of Appeal
23
the Court explained:
“
There are two parties to any consent: the party
giving it and the party receiving it. Consent, as envisaged in the
definition
of ‘occupier’ contained in the Tenure Act, is more
than a mere indication of the inclination of the grantor. It
creates
legally enforceable rights and obligations between the
grantor and the recipient. The requirement of the Tenure Act that
an
occupier must have or must have had consent to reside on the
land, means that the person concerned must be or must have been a

party to a consent agreement with the owner of the land or with the
person in charge, or with the predecessor in title of any
of
them.”
24
(Footnotes omitted.)
There is no reason why consent in
the PIE Act should have another meaning. It means voluntary
agreement. If consent means
voluntary agreement, then tacit
consent means a tacit voluntary agreement. The meaning of tacit
consent is therefore inextricably
bound up with what is meant by a
tacit agreement.
A tacit agreement is not an agreement of a different
kind from that of an express agreement. The distinction really
revolves
around the question of evidence and proof. The evidence
of an express agreement consists of proof of either a written
express
agreement or a verbal one. A tacit agreement is one which
is established by evidence short of that relating to an express

agreement. I agree with Corbett JA
25
—
“
that a court may hold that a tacit contract has
been established where, by a process of inference, it concludes
that the most
plausible probable conclusion from all the proved
facts and circumstances is that a contract came into existence”.
26
This reasoning may properly be
applied to the concept of consent. This Court may hold that there
has been the tacit consent
of the municipality to occupy only if we
were to conclude, by a process of inference,
that the most plausible and probable conclusion from all proved
facts and circumstances
is that there was actual consent by the
municipality. In cases where the only inference to be drawn is
that there was tacit
consent, there can be no difficulty. However,
where more than one inference is legitimate, we must select that
which is the
most probable or the most plausible in all the
circumstances.
One more case concerning tacit consent and unlawful
occupation must be mentioned. In
Atkinson
27
the Court was concerned with the tacit consent to occupy for the
purposes of the Tenure Act. The Court said:
“
However, in the absence of any explanation to
the contrary, the probability is that the plaintiff, as owner,
would have been
aware of a person who occupied one of his
employee’s cottages with the consent of the employee. If he was
aware of her occupation
and did not object to it when the
employment contract still subsisted, that would have been
sufficient to constitute tacit
consent.”
28
The phrase that must be emphasised
from the above quotation is the phrase “in the absence of any
explanation to the contrary”.
Furthermore, as I will show, there
are important differences between a private entity or person on the
one hand, and a municipality
on the other, in relation to consent.
An important difference is that a person or private entity does not
necessarily have to
take an authorised resolution in order to
consent to the occupation of its land. A municipality does.
Broad meaning to consent?
As I have already pointed out, it was submitted in
argument that we are required to give a broad meaning to the word
“consent”.
The applicants did not put any evidence of tacit
consent before us nor did they rely on any estoppel. Indeed, we
were not
told precisely what the word “consent” in its broad
construction would mean. I would assume that what was intended was

a broader meaning to the word “consent” than has been
determined in this judgment. The contention was that it was
necessary
to give consent a broad meaning in order to protect the
vulnerable people to whom the PIE Act applies. In my view, there
is
no room for such a broad meaning if the words “tacit consent”
are understood in the way in which they had been understood
at the
time the legislation was prepared and adopted. Parliament
deliberately used the phrase “express or tacit consent
of the
owner” and it must be taken that the law maker understood the
meaning of the words “express” and “tacit” and
that the
purpose of the definition was to impute to these terms the meaning
that has always been ascribed to them. I may mention
that, to the
best of my knowledge, no other meaning has been ascribed to these
words by our courts even after the PIE Act was
passed.
There are moreover contextual elements that support
the approach suggested in this judgment.
It is beyond doubt that the PIE Act was brought into
force in order to give effect to the provisions of section 26(3) of
the
Constitution. That section 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.”
At the time this constitutional
provision came into force, the legal position was that people could
be evicted from their homes,
provided that they were not in lawful
occupation, without taking into account any other circumstance.
29
It was understood at the time the Constitution was drafted that
there were, as a consequence of the evil of apartheid, literally

millions of people who occupied housing without any right, that is,
unlawfully. The constitutional prescript was aimed at
ensuring
that even people in unlawful occupation were not to be evicted
without taking into account all the circumstances.
The purpose, in
my view, was not to obliterate the distinction between lawful and
unlawful occupation as then understood but
to ensure that unlawful
occupiers were treated fairly.
The PIE Act must be interpreted in this context. The
purpose of the PIE Act, to the extent relevant, is “to provide
for procedures
for the eviction of unlawful occupiers”. In
conformity with this, the Preamble provides:
“
WHEREAS no one may be deprived of property
except in terms of law of general application, and no law may
permit arbitrary deprivation
of property;
AND WHEREAS 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;
AND WHEREAS it is desirable that the law should
regulate the eviction of unlawful occupiers from land in a fair
manner, while
recognising the right of land owners to apply to a
court for an eviction order in appropriate circumstances;
AND WHEREAS special consideration should be given
to the rights of the elderly, children, disabled persons and
particularly
households headed by women, and that it should be
recognised that the needs of those groups should be considered”.
It is evident that the purpose of the PIE Act and its
Preamble say nothing at all about the broadening of the definition
of
“consent” or of the narrowing of the definition of “unlawful
occupiers”. These parts of the Act do not evince the purpose
of
ensuring that occupiers who would have been regarded as unlawful in
the past should be regarded, in terms of the PIE Act,
as having a
right of occupation. The objective in relation to unlawful
occupiers is not to define them differently from the
way in which
they were defined before but “to provide for procedures” for
their eviction. The way in which the purpose
is expressed begins
to herald the notion that what the PIE Act purports to achieve is
fair procedures to be followed when unlawful
occupiers are to be
evicted. The idea is that an unlawful occupier, despite the
absence of the tacit consent of the owner,
is a human being and
must be treated as a human being. A person in occupation of
property without the tacit or express consent
of the owner must be
treated fairly.
One is therefore not surprised when the Preamble
expressly states that “it is desirable that the law should
regulate the eviction
of unlawful occupiers from land in a fair
manner”. But that part of the Preamble goes further and makes it
clear that fairness
to the unlawful occupier is not the only
ingredient. The PIE Act at the same time recognises the right of
land owners to apply
to a court for an eviction order “in
appropriate circumstances”. Indeed, in my view, the most
important of the circumstances
which must exist before any eviction
order is granted is that the eviction and its timing must be just
and equitable.
There is nothing new about the definition of “unlawful
occupier”. It is the traditional definition. Anyone who
occupies
without the consent of the owner or without any other
right to occupy is, and has always been, an unlawful occupier.
Anyone
with a right to occupy is and has always been a lawful
occupier. There is also nothing new or earthshaking about the
inclusion
of the phrase “tacit consent”. In terms of the law
of the country as it was before the PIE Act came into effect, and
as
it is now, anyone who occupied with the tacit consent of the
owner occupied lawfully. I can think of no more appropriate
definition
of the term “unlawful occupier” than that which is
contained in the Act. And that definition is consistent with the
Act
as a whole.
Any contention that the PIE Act was aimed at ensuring
that the meaning to be given to tacit consent was broader than had
traditionally
been the case ignores the balance required by the PIE
Act itself. The PIE Act provides in sections 4 and 6 for
procedural
and substantive protection for unlawful occupiers. That
protection is extensive and fair. As I have already pointed out,

no one may be evicted unless it is just and equitable to do so. To
opt for a broad definition of “tacit consent” and, at
the same
time, to hold the owner seeking eviction to strict standards of
justice and equity would be to fly in the face of
the avowed
purpose of the PIE Act and the balance between the rights of the
owner and the unlawful occupier that the legislation
intends to
achieve.
It is true that the term “unlawful occupier” has a
deeply painful and pejorative connotation. It is anathema to me
that
in the days of apartheid black unlawful occupiers of public
property were in particular regarded not as human beings but as

objects devoid of any humanity. There was no justice and equity
requirement for their eviction. They could have been, and were

often, evicted without regard to any humane consideration. It did
not matter what the personal circumstances of the people
concerned
were. The PIE Act has changed that completely. Those who are
unlawful occupiers are now to be treated as human
beings. It is
not appropriate therefore, in the interpretation of the term “tacit
consent” in the PIE Act, to proceed
on the basis that the
negative and shameful connotations referred to earlier have been
perpetuated. The PIE Act has virtually
completely destroyed these
archaic notions.
The idea that consent must be given a broader meaning
in the circumstances of this case and the associated approach that
the
applicants must be found to be lawful occupiers because they
occupy public land also has no basis in the Constitution, in the

PIE Act or in any other law. Indeed, the PIE Act is expressly made
applicable to the state in the sense that an owner is defined
as
including “an organ of state”.
30
And an organ of state is often a public institution. Yet, the PIE
Act does not differentiate between a public body that is
the owner
of the land and a private entity or person whose consent is
required. Consent is defined in exactly the same way
for both.
There is accordingly no justification for a broad
definition of the phrase “tacit consent”. Nor has anyone
suggested the
scope of this so-called broad definition or the
precise meaning to be attached to the word “tacit” in the
circumstances.
Was there tacit consent in this case?
It is now necessary to determine whether there was
tacit consent in this case.
There is no evidence of any express consent on the
part of the municipality. That express consent would have been
proved only
if there had been evidence to the effect that an
authority that had the power to grant consent had in fact done so.
Evidence
of this kind is simply absent. Indeed, as I show later,
there is considerable doubt whether evidence of this kind exists.

If the position is that no authority within the City duly
authorised to do so consented to the occupation of the applicants,

there is no actual consent. In these circumstances it is
impossible to understand the contradictory averments under oath by

all the applicants to the effect that they are in occupation as a
result of the express or implied consent of the City. It
is
startling, if they have the consent of the City, that the
applicants had no idea whether that consent is express or implied.

But more importantly, they must know that they do not have the
express consent of the City and that they rely on tacit consent.

It is impossible for the applicants to prove by direct evidence
that there has been a resolution by an authorised entity of
the
City consenting to their occupation. They cannot prove consent by
direct evidence, that is evidence of a resolution by
an authorised
entity, but what they have tried to do in this case is to prove
actual consent, that is an appropriate resolution
by the City by
inference.
The question to be asked therefore is whether the most
plausible inference from all the evidence is that the City had in
fact
consented following its internal procedures, or whether the
most plausible inference is that it had not. It is emphasised that

regard must be had to all the evidence for the purpose of drawing
the appropriate inference. In addition, equal weight must
be given
to all the relevant evidence. The applicants would have it that
the mayor’s evidence is vague and that it is in
addition
exceptionable because Ms Mfeketo had been the mayor only for a
limited period. It is further pointed out that there
is no effort
to put up any resolution of the City. I reject this attack on the
evidence of the mayor particularly in the light
of the fact that
the correctness of the evidence was not challenged. It is true
that the mayor’s evidence was put up only
in reply to the
allegations of tacit consent and the evidence proffered in support
of it. Nevertheless, the importance of
this evidence for the
applicants’ case must have been apparent and one would have
expected that any material available to
gainsay this evidence would
have been tendered. In the circumstances, the unchallenged
evidence of Ms Mfeketo must be accepted
at face value. What the
facts mean must be determined on that basis. It would be improper
to ignore the evidence of the mayor.
A second important aspect that must be borne in mind
is that the City had at all times constitutional duties towards the
applicants
and all other vulnerable people who occupied its land.
The Constitution requires the state, and therefore the City, to
respect,
protect, promote and fulfil all fundamental rights.
31
Arguably one of the most significant rights, particularly in the
context of the present case, is the right to have the inherent

dignity of everyone respected and protected.
32
More specifically the objects of local government in the
Constitution are, amongst other things, “to ensure the provision

of services to communities in a sustainable manner”
33
and “to promote a safe and healthy environment”.
34
A municipality is obliged to try to achieve these objectives.
The Municipal Systems Act
35
echoes this and obliges a municipality to provide all members of
communities with “the minimum level of basic municipal
services.”
36
Moreover this Court’s jurisprudence obliges the state, including
municipalities, to treat vulnerable people with care and
concern
and to treat human beings as human beings.
37
Ms Mfeketo says that this accorded with the policy of
the political party in power at the time in that municipality, and
the
duties that municipalities had towards the people, that these
basic services were provided. The houses were given numbers in
the
process of conducting a census for future housing planning
purposes. This is both coherent and convincing. The mayor
at the
relevant time is emphatic that there was no intention on the part
of the municipality during her period of tenure of
over six years
to concede any right of occupation. That means that no resolution
was passed by an authorised entity of the
City to grant any right
of occupation to the applicants. Although this is not said in so
many words, it follows inevitably
from the proposition that there
was no intention to concede a right of occupation. The idea,
suggested on behalf of the applicants,
that there may have been
some resolution or an intention on the part of the Council to
concede rights of occupation during
the time when Ms Mfeketo was
not the mayor is still-born and without merit. The evidence speaks
beyond dispute to the efforts
made during the period 2006 - 2008,
after the Gateway project had been announced, to get people to
leave the area to facilitate
the Gateway development. A resolution
taken during this time, conceding a right of occupation, would have
yielded an entirely
different approach. If any resolution had been
taken before 1998, it is inconceivable that Ms Mfeketo would have
been unaware
of it, would not have referred to it, and would have
persisted with her contention that the City evinced no intention to
concede
a right of occupation.
The intention not to concede a right of occupation is
therefore wholly consistent with the provision of services, the
numbering
of households as well as the laudable care and concern
that has been demonstrated by the City in this case. It is also
consistent
with the City having allowed the occupants to live in
the area over long periods. The City thought it inopportune and
wrong
to evict people until and unless it was done in a humane way
and until appropriate housing provision had been planned and made.

The fact that “red cards” were issued to the applicants was
perfectly consistent with the absence of tacit consent. These
cards
were issued simply to show that the applicants had applied to the
City for housing.
All the City was doing here was carrying out its
constitutional mandate and moral duty with responsibility and care.
If this
conduct were to result in an inference that an enforceable
right of occupation has been conceded, it would mean that the
performance
of a constitutional duty by the City would inexorably
lead to the concession of a right of occupation. It follows that
the
City would have no choice, in circumstances with which we are
here concerned, but to concede a right of occupation. This is
because it has no choice but to perform its constitutional duty.
This cannot be. The element of compulsion removes the occupation

of the applicants from the category of occupation by voluntary
agreement. There is no merit in the contention that the City
ought
to have expressly told the people concerned that no rights of
occupation had been conceded. No duty of this kind existed
in the
circumstances. In any event the occupiers ought to have been under
no illusion. They ought to have known, in all the
circumstances,
that no right to occupation had been conceded.
There is much evidence of interaction between the
authorised representatives of the applicants and the
representatives of the
City about the physical conditions of their
accommodation and about the voluntary relocation of the applicants
to Delft. But
there is no evidence of any interaction at all
concerning a voluntary agreement to occupy. Indeed, some of the
evidence goes
the other way. I refer here to those applicants who
say under oath that they purchased their right of occupation from
some
other party under Mr Penze’s facilitative influence and to
those applicants who expressly say that they got permission to stay

at Joe Slovo settlement from a residents’ committee of sorts. No
one got the permission of the City.
Another factor to be taken into account is the
approach of the applicants on affidavit to the issue of the
ownership of the
Joe Slovo settlement by the City of Cape Town. If
they had had the consent of the owner to occupy in the sense of the
voluntary
agreement to occupy and in the sense of a relationship
with the owner of the property, one would have expected unequivocal

acknowledgement of the fact that the City of Cape Town is the owner
of the property. Yet the applicants blew hot and cold on
this
aspect. Mr Sopaqa, the main deponent authorised on behalf of all
the applicants, says in the one breath that the applicants
have no
knowledge whether the City of Cape Town is the owner of the
property that constitutes the Joe Slovo settlement and
puts the
respondents to the proof thereof. Later in the same affidavit, Mr
Sopaqa admits the allegation that the City of Cape
Town is the
owner of the property. This equivocation is inconsistent with any
genuine tacit consent.
I may mention one more factor that might be thrown
into the balance here. It is apparent that no rent or water
charges are
being paid to the municipality by any of the occupiers
in respect of their occupation. While it is understandable that
the
applicants would do everything possible to stay rent-free on
municipal property, the circumstance points away from any
concession
of a right to occupation. The right to occupy, if it
existed, would have been one free of charge. It is highly
improbable
that a concession of this kind would have been made.
Finally, in this connection, I must address the
argument premised on the decision in the case of
Rademeyer
.
38
I have already referred to the way in which the High Court
approached and disposed of this argument.
39
I remind myself, that in
Rademeyer
, a High Court held that
a municipality had tacitly consented to the occupation of a large
number of vulnerable people on its
land merely on the basis that
essential services had been provided to the people concerned for an
extended period. The submission
is that, by parity of reasoning,
the City must be taken to have conceded the right of occupation to
the applicants in this
case. The argument is untenable, tries
without justification to equate two incomparable situations and
ignores fundamental
distinctions between the two cases. In
Rademeyer
, residents of surrounding areas wanted the
municipality, which was content with vulnerable people continuing
to reside on its
property, to take steps to evict them on the basis
that they were a nuisance. The municipality did not contend in
that case
that it had not conceded a right of occupation and the
High Court concerned was arguably right in concluding that the
municipality
had tacitly consented. But any suggestion that that
conclusion has any relevance for the determination of the dispute
in relation
to consent in this case does not begin to bear scrutiny
and is rejected. As I have already pointed out, the evidence of
the
mayor of the City disputes that the City had consented to the
occupation by the applicants and provides a cogent explanation
consistent with the absence of consent for why the applicants were
treated humanely. Whether there is consent is a factual
question
and the approach that each case must be determined on its own facts
has not fallen into disuse.
The broad basis of consent and termination
Even if it is so that consent ought to be more broadly
defined than is considered appropriate in my judgment, it is my
view
that consent of that kind was terminated by necessary
implication. It will be inconsistent to allow for a broad
definition
of consent and for a narrow definition of the method of
termination. The idea that each of these families had to be given

formal notice of termination is unacceptable. The residents knew
through their representatives as early as 2004 that upgrading
was
to take place. They knew that they would have to move to
facilitate that upgrading. Indeed they were at one stage happy
to
move. The fact that they refused to move means that they had
notice. There was no need to submit memoranda to any authority

unless they had notice that they had to be relocated. Nor was
there any need for protest if the applicants had been given
no
notice. Indeed, the applicants knew and the applicants objected.
No one was taken by surprise; there was no allegation
to this
effect and nor could there have been any.
Conclusion on consent
I conclude therefore that the occupants enjoyed no
right of occupation. It was therefore not necessary for the City
to terminate
that right. The essentially technical defence by the
applicants that they had a right of occupation which had not been
terminated
fails. That does not mean that they can be evicted or
relocated without more. The requirements of the PIE Act must be
complied
with. I must say immediately that the most important of
the requirements of the PIE Act for present purposes is the
requirement
that their eviction must be just and equitable. I come
to that later. First, however, certain essentially technical
objections
based on the PIE Act and taken by the applicants must be
carefully considered.
Objections based on PIE requirements
Quite apart from the contention that it was not just
and equitable for the residents to be evicted, a matter which I
discuss
under the next heading, the applicants took two other
points. First, they emphasised that proceedings against them had
been
instituted against them in terms of section 5 of the PIE Act,
the requirements of section 5 had not been complied with and that,

in any event, section 5 does not authorise any court to grant a
final order of eviction as the High Court did in this case.
The
second objection, based on the proposition that section 6 of the
PIE Act was rightly applied by the High Court, concerned
the
correct interpretation of section 6(1). I deal with each in turn.
Was the High Court right in granting an order for
eviction in terms of section 6 of the PIE Act?
It is true that the proceedings were instituted as a
matter of urgency in terms of section 5 of the PIE Act, and that
the order
eventually made by the High Court was competent only in
terms of sections 4 or 6 and not in terms of a section 5
application.
Sections 5 and 6 are set out below for convenience.
Section 5 provides:
“
Urgent proceedings for eviction
(1) Notwithstanding the provisions of section 4,
the owner or person in charge of land may institute urgent
proceedings
for the eviction of an unlawful occupier of that
land pending the outcome of proceedings for a final order, and
the court
may grant such an order if it is satisfied that—
(a)
there
is a real and imminent danger of substantial injury or damage
to any person or property if the unlawful occupier
is not
forthwith evicted from the land;
(b)
the
likely hardship to the owner or any other affected person if
an order for eviction is not granted, exceeds the
likely
hardship to the unlawful occupier against whom the order is
sought, if an order for eviction is granted; and
(c)
there
is no other effective remedy available.
(2)
Before
the hearing of the proceedings contemplated in subsection (1),
the court must give written and
effective notice of the intention of the owner or person in
charge to obtain an order
for eviction of the unlawful occupier
to the unlawful occupier and the municipality in whose area of
jurisdiction the
land is situated.
(3)
The
notice of proceedings contemplated in subsection (2) must—
(a)
state
that proceedings will be instituted in terms of subsection (1)
for an order for the eviction of the unlawful
occupier;
(b)
indicate
on what date and at what time the court will hear the
proceedings;
(c)
set
out the grounds for the proposed eviction; and
(d
)
state
that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary,
has the right
to apply for legal aid.”
Section 6 provides:
“
Evictio
n
at instance of organ of state
(1)
An
organ of state may institute proceedings for the eviction of an
unlawful occupier from land which falls within its
area of
jurisdiction, except where the unlawful occupier is a mortgagor
and the land in question is sold in a sale of
execution pursuant
to a mortgage, and the court may grant such an order if it is
just and equitable to do so, after considering
all the relevant
circumstances, and if—
(a)
the
consent of that organ of state is required for the erection of
a building or structure on that land or for the
occupation of
the land, and the unlawful occupier is occupying a building or
structure on that land without such
consent having been
obtained; or
(b)
it
is in the public interest to grant such an order.
(2)
For
the purposes of this section, ‘public interest’ includes the
interest of the health and safety of those occupying
the land
and the public in general.
(3)
In
deciding whether it is just and equitable to grant an order for
eviction, the court must have regard to—
(a
)
the
circumstances under which the unlawful occupier occupied the
land and erected the building or structure;
(b)
t
he
period the unlawful occupier and his or her family have
resided on the land in question; and
(c)
the
availability to the unlawful occupier of suitable alternative
accommodation or land.
(4)
An
organ of state contemplated in subsection (1) may, before
instituting such proceedings, give not less than 14 days’

written notice to the owner or person in charge of the land to
institute proceedings for the eviction of the unlawful
occupier.
(5)
If
an organ of state gives the owner or person in charge of land
notice in terms of subsection (4) to institute proceedings
for
eviction, and the owner or person in charge fails to do so
within the period stipulated in the notice, the court
may, at
the request of the organ of state, order the owner or person in
charge of the land to pay the costs of the proceedings

contemplated in subsection (1).
(6)
The
procedures set out in section 4 apply, with the necessary
changes, to any proceedings in terms of subsection (1).”
It is apparent that section 5(1) sets out certain very
stringent requirements to obtain an urgent eviction pending the
determination
of proceedings for a final order of eviction of the
applicants. In proceedings in terms of section 5 therefore, any
issue
in relation to whether an order for eviction should be
granted and, in particular, whether it is just and equitable to
grant
the eviction order would be entirely irrelevant. The PIE Act
contemplates that urgent proceedings in terms of section 5 will
be
separate, independent and distinct from the substantial eviction
proceedings contemplated in section 6. The High Court
found that
“the applicants had clearly complied with the procedure laid down
in section 5 of PIE” on the basis of certain
notices that had
been issued by that Court.
40
One would ordinarily have expected an urgent eviction order to
have been obtained upon proof of the stringent requirements
of
section 5 of the PIE Act, including the existence of a real and
imminent danger of substantial injury or damage to any person
or
property.
41
In the event, although an urgent order in terms of section 5 was
applied for, no order was in fact obtained.
What happened was this. Although the application was
initially a section 5 application, the order asked for was not a
section
5 order but one for a final eviction and relocation,
competent only in terms of section 6 of the PIE Act. The notice to
residents
had in the meantime made it plain that a final eviction
order would be asked for. It will be seen that section 6 issues,
that
have nothing to do with an interim eviction order and which
are relevant to a grant of a final order of eviction, were dealt
with in the papers. These issues include whether the eviction
should be ordered in all the circumstances and whether it is
just
and equitable to evict. Argument was heard on whether a final
eviction order should be granted and that order was in
fact
granted.
The High Court would have put form above substance if
it heard the case on the ultimate date of hearing as a section 5
case.
By the time the matter was heard about three months after
the application had been filed, much water had passed. Notices of

intention to oppose had been filed and the parties had dealt in
detail with the section 6 issues in the papers. The urgent
section
5 application had been overtaken by events. In the circumstances
the High Court was right to deal with the case as
one which started
as a section 5 case and which, by the time it was argued, had
matured into a fully-fledged section 6 application.
In my view,
there could indeed have been no opposition of substance had the
respondents applied for an amendment in the High
Court shortly
before the date of hearing; an amendment to regularise the matter
and to make explicit what was already implicit
that an eviction
was, at the date of hearing, being sought in terms of section 6.
In the circumstances the question whether
the stringent
requirements of section 5 had been met was not material before the
High Court as at the date on which the matter
was finally heard.
Indeed the section 5 issues were never material because no order in
terms of section 5 had ever been sought.
It is therefore
unnecessary for me to decide in this case whether the stringent
section 5 requirements had been complied with.
The High Court was undoubtedly right in ultimately
deciding the case, and making an order, in terms of section 6 of
the PIE
Act.
The section 6 interpretation issue
It is now appropriate to consider the contention
advanced by the applicants concerning the proper construction of
section 6(1)(a)
and (b). We must recall that section 6 is
concerned with evictions at the instance of an organ of state.
Leaving aside material
not germane to the point taken by the
applicants, section 6 orders are competent if—
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”;
42
or
“
it is in the public interest to grant such an
order.”
43
For completeness I point out that the
Act defines public interest so as to include “the interest of the
health and safety of
those occupying the land and the public in
general.”
44
The applicants contend that the
“or” in between subsections (a) and (b) is what has come to be
referred to in legal parlance
as a “conjunctive or”. Put in
simple terms, the use of this phrase connotes that in the context
of section 6(1)(a) and
(b), the “or” should be read as “and”.
The necessary consequence of the proposed reading of the word is
that it will
be necessary for the requirements in both (a) and (b)
to be complied with as pre-requisites to an ejectment order being
competently
granted and, conversely, that proof of either (a) or
(b) on its own, and without the accompaniment of the other, can
never
result in a competent ejectment. The point has the potential
to signal victory for the applicants in the dismissal of the order

sought because section 6(1)(a) has not been and cannot be complied
with. The reason for this is that on a proper construction
of
section 6(1)(a), the consent of an organ of state that seeks
ejectment must be necessary and not have been obtained. The

consent of the parties seeking ejectment is not required, but the
consent of the City is. The City is not an applicant.
The applicants seek to satisfy us therefore that,
absent the section 6(1)(a) allegation, the respondents cannot
succeed. In
other words, that it is essential for the respondents
to establish that the consent required for the erection of the
structure
or building must be given by one of the respondents.
What has to be decided therefore is whether the respondents must
establish
the requirements of section 6(1)(a) as a pre-requisite to
their entitlement to relief pursuant to section 6. The “or” is

equal to “and” contention is designed to achieve this result,
for if the “or” is read as “or”, section 6(1)(a)
would not
be an essential requirement.
Support for the proposition that the “or” means
“and” is sought in the following passage in
Baartman
:
45
“
Although ss 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.”
The passage does not establish either that the “or”
in between sections 6(1)(a) and 6(1)(b) is conjunctive or that
section
6(1)(a) reflects an essential pre-requisite to a successful
section 6 ejectment or relocation order. It says the following:
Sections 6(1)(a) and 6(1)(b) are separated by the
disjunctive “or”.
This might arguably indicate that a court may grant
an eviction order without having regard to the public interest in
circumstances
where the person sought to be evicted occupies the
building or structure erected without the consent of the organ of
state
concerned.
It was imperative in that case, as would probably be
so in most eviction cases, that the question whether it is in the
public
interest to grant an eviction order also be considered.
The interests of the public inevitably impact upon
the justness or equitability of the order.
I agree with this passage. It means that, on a
contextual interpretation of section 6, and despite the use of the
disjunctive
“or”, the public interest element will have to be
established in most section 6 eviction cases as an element of the
justice
and equity evaluation. The case of
Baartman
is
authority for the proposition that the fulfilment of the section
6(1)(a) requirement will not be enough on its own in most
cases
because, for the eviction to be just and equitable, it would
ordinarily also have to be in the public interest. It is
difficult
to imagine how an eviction that is not in the public interest can
ever be just and equitable in the ordinary course.
It is important
to emphasise the difference between the public interest being
necessary as part of the justice and equity
evaluation, in most
cases, on the one hand, and it being necessary in all cases as an
indispensable allegation required by
section 6(1)(a) on the other
hand. The Supreme Court of Appeal did not rule that, however just
and equitable the eviction
order may be and even if the public
interest requirement is fully satisfied, an organ of state can
never obtain an order for
ejectment unless the consent of that
organ of state for the erection of a building or structure occupied
by the person sought
to be ejected is required and has not been
obtained. There is no warrant for this construction. The
existence of a structure
constructed contrary to the requirements
of the very organ of state seeking the ejectment is not a
pre-requisite for a section
6 ejectment order to be made.
That does not mean that the issue whether the
structure that is occupied has been made consistently with the
requirements of
the municipality within whose area it is situated
is irrelevant. It would be highly germane to the justice and
equity enquiry
in a case where the organ of state seeks the
eviction of an occupier from premises that have been constructed in
full compliance
with the building regulations of the municipality.
But it is not a pre-requisite.
The word “or” at the end of section 6(1)(a) does
mean “or”. It does not mean “and”. However this finding
is subject
to the qualification that an eviction cannot ordinarily
be just and equitable unless the public interest requires it. It
will
accordingly be appropriate that public interest be
established. The point fails.
I have found, consistently with the judgment in
Baartman
, that it is essential in most cases for the
ejectment or relocation of the applicants to be in the public
interest. The question
whether this is so in the present case will
be considered in the discussion of the justice and equity
requirement, which I
go to immediately.
The justice and equity requirement
It is as well to repeat the provisions of section 6(3)
at this stage:
“
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.”
Essential elements of the
approach to the determination of whether an order for eviction or
relocation would be just and equitable
appear from the following
excerpt of the judgment in the
Port Elizabeth Municipality
46
case:
“
There is nothing in s 6 to suggest that the
three specifically identified circumstances are intended to be the
only ones to
which the court may refer in deciding what is just and
equitable. They are peremptory but not exhaustive. It is clear
both
from the open-ended way in which they are framed and from the
width of decision-making involved in the concept of what is just

and equitable, that the court has a very wide mandate and must give
due consideration to all circumstances that might be relevant.

Thus the particular vulnerability of occupiers referred to in s 4
(the elderly, children, disabled persons and households
headed by
women) could constitute a relevant circumstance under s 6.
Similarly, justice and equity would take account of the
extent to
which serious negotiations had taken place with equality of voice
for all concerned. What is just and equitable
could be affected by
the reasonableness of offers made in connection with suitable
alternative accommodation or land, the time
scales proposed
relative to the degree of disruption involved, and the willingness
of the occupiers to respond to reasonable
alternatives put before
them.
The combination of circumstances may be extremely
intricate, requiring a nuanced appreciation of the specific
situation in each
case. Thus, though there might be a sad
uniformity in the conditions of homelessness and desperation which
lead to unlawful
occupations, on the one hand, and the frustration
of landowners at being blocked by intruders from enjoyment of their
property,
on the other, the actual details of the relationships
involved are capable of infinite variation. It is not easy to
classify
the
multitude of places and
relationships involved. This is precisely why, even though
unlawfulness is established, the eviction
process is not automatic
and why the courts are called upon to exercise a broad judicial
discretion on a case by case basis.
Each case, accordingly, has to
be decided not on generalities but in the light of its own
particular circumstances. Every
situation has its own history, its
own dynamics, its own intractable elements that have to be lived
with (at least, for the
time being), and its own creative
possibilities that have to be explored as far as reasonably
possible. The proper application
of PIE will therefore depend on
the facts of each case, and each case may present different facts
that call for the adoption
of different approaches.” (Footnote
omitted.)
Although the prescriptions in section 6(3) of the
matters to be taken into account are not exhaustive, it is perhaps
appropriate
to start there.
First, section 6(3)(a). The applicants occupied the
land and built their rudimentary structures in circumstances of
dire
need. They had nowhere to go. They had come to the urban
centre in search of work. Their circumstances require empathy,

care and concern.
Section 6(3)(b) is next. Various families have
occupied the Joe Slovo settlement for differing periods of up to
15 years.
The section 6(3)(c) requirement is vital to the
justice and equity evaluation. The position in relation to the
availability
of alternative accommodation here may be summarised
as follows. Those applicants who require this will be moved to
temporary
relocation units (TRUs). All the families to be
relocated will be provided with alternative accommodation at the
expense
of the state. This alternative accommodation is situated
at Delft, about 15 kms away. Each family will occupy a TRU which
is at least 24m², which will probably be provided with
electricity, and the walls and roofs of which will be constructed

of synthetic protective material. This material is
fire-resistant. This will mean that the frequent deaths and
destruction
caused by fire in the Joe Slovo settlement will be
averted. Each TRU will have access to ablution facilities that
will be
provided with water-borne sewerage and from which fresh
water will be available. It is probable that much of this
temporary
accommodation will be at least in physical terms better
than that at Joe Slovo. It is certainly more hygienic and less
dangerous.
It is now necessary to move out of the section 6(3)
terrain. The availability of temporary accommodation is not the
full story.
The plan is that each of the families that is now
moved will be provided, if they qualify in terms of the state
criteria,
with permanent accommodation in the N2 Gateway
development. There will be enough accommodation in the new
development to accommodate
everyone. Indeed, the new development,
if it goes according to plan, is expected to accommodate 20 000
families. This is
the one respect in which this case differs from
other cases that have come before this Court in which eviction was
required.
Here the respondents in effect offer relocation. The
people ejected will not be out in the cold.
It is true, as is emphasised by the amici, that this
relocation would entail immense hardship. I have considerable
sympathy
with the applicants, but there are circumstances in which
this Court and all involved have no choice but to face the fact
that
hardship can only be mitigated but can never be avoided
altogether. The human price to be paid for this relocation and
reconstruction
is immeasurable. Nonetheless it is not possible to
say that the conclusion of the City of Cape Town, to the effect
that infrastructural
development is essential in the area and that
the relocation of people is necessary, is unreasonable. There are
circumstances
in which there is no choice but to undergo traumatic
experiences so that we can be better off later. Significantly,
they are
ameliorated by the state undertaking to provide transport
and to ensure that schooling is available to children and that
people
moved to Delft can get to work.
The next factor relevant to justice and equity is that
the purpose of the relocation is to facilitate appropriate housing
development
in compliance with the obligations of the state. We
must take into account the fact that thousands of people will
benefit
from the development, as well as the circumstance that the
conditions at Joe Slovo are far from ideal. Indeed the applicants

live in difficult physical circumstances despite the fact that the
City has made considerable efforts to improve their position.
We
cannot lose sight of the fact that the area represents a health
hazard and that fires have regularly claimed lives in the
Joe Slovo
settlement. The sooner the relocation occurs the sooner the
development can begin; and the sooner some residents
will be
returned to housing in the area. The relocation is undoubtedly in
the public interest.
The applicants make a point that is highly relevant to
the justice and equity enquiry. They say that there have been
broken
promises and that it is not possible to trust what the
respondents say in the future. They also complain of not being
fully
consulted in the process. It is admitted though that there
has been some consultation. The promises were not deliberately

broken but were the results of changing circumstances. I do not
think that these factors are sufficient not to grant an order

facilitating relocation.
There was extensive argument concerning the legitimate
expectation that 70% of houses built in the Joe Slovo settlement
would
be allocated to Joe Slovo residents who qualify. The
applicants point out correctly that this was not done in the first
two
phases of the three-phase development. But the respondents say
that this failure was due to circumstances beyond their control.

It is not necessary to go into the complex argument concerning
substantive and procedural legitimate expectation so competently

advanced before us. The issue can be appropriately accommodated in
the justice and equity analysis. To my mind, the highest
at which
the legitimate expectation argument can be put is that there was a
promise that, as far as was possible, 70% of the
accommodation
would be made available to Joe Slovo residents who qualify. The
state says that it has not been possible to
accommodate Joe Slovo
residents in phases 1 and 2. The state is now prepared to consent
to an order in terms of which 70%
of the houses yet to be
constructed at Joe Slovo will be allocated to Joe Slovo residents.
The legitimate expectation of the
applicants will be sufficiently
satisfied to render the relocation just and equitable.
Finally, it must be borne in mind that the state owns
the land and that it is the state that pays for the construction of
housing.
The state must be afforded some leeway in the design and
structure of housing provided that it acts reasonably.
The amici curiae have made extensive and helpful
submissions. The most useful way of evaluating their submissions
is to evaluate
them within the context of the justice and equity
investigation. They do not attempt to fit their submissions into
the framework
of the PIE Act. However, if I understand the
submissions correctly, they say that the order of the High Court
should not be
upheld because it is neither just nor equitable to
grant the order of eviction. They base this conclusion principally
on three
supporting arguments. First, they emphasise that the
provision of housing is not about bricks and mortar alone but about
the
consideration and integration of the human factor. This the
state did not do, having been guilty of the exclusive bricks and

mortar approach. Second, they criticise the state roundly for not
engaging sufficiently with the applicants. Third, they
take the
view that a development on site without the relocation of the
applicants is perhaps a feasible option.
It is certainly true that the state could and should
have been more alive to the human factor and that more intensive
consultation
could have prevented the impasse that had resulted.
Having given these issues careful consideration, I do not think
that these
factors in themselves are sufficient to tilt the scale
against eviction and relocation. I must bear in mind that the
applicants
themselves do not contend with any force that the
decision not to develop the land while the applicants remain in
occupation
is so unreasonable that it ought to be set aside. It
must be borne in mind here that the project has already begun and
more
than 1 000 people have moved from the Joe Slovo settlement to
facilitate the development. The applicants’ complaints are

principally about broken promises and their legitimate
expectations. The difference of opinion about whether it is
necessary
for the applicants to be relocated to facilitate the
proposed housing development is, in my view, not of sufficient
moment
to render the eviction and relocation inconsistent with
justice and equity. The engagement submissions have been taken
into
account in the order in which the respondents are directed to
engage meaningfully with the applicants during the relocation

process.
I have come to the conclusion that, provided that the
order for the eviction and relocation of the applicants makes
appropriate
provision for the safe, dignified and humane relocation
of all the people involved, the eviction and relocation of the
applicants
will be in accordance with justice and equity. I would
propose an order that would, as far as possible, achieve this.
Is the eviction of the applicants, in all the
circumstances, reasonable?
The applicants are being evicted and relocated in
order to facilitate housing development. In the circumstances
their eviction
constitutes a measure to ensure the progressive
realisation of the right to housing within the meaning of section
26(2) of
the Constitution.
47
It must be remembered in relation to the requirement of
reasonableness that:
“
The measures must establish a coherent public
housing program directed towards the progressive realisation of the
right of access
to adequate housing within the State's available
means. The program must be capable of facilitating the realisation
of the
right. The precise contours and content of the measures to
be adopted are primarily a matter for the Legislature and the
Executive.
They must, however, ensure that the measures they adopt
are reasonable. In any challenge based on s 26 in which it is
argued
that the State has failed to meet the positive obligations
imposed upon it by s 26(2), the question will be whether the
legislative
and other measures taken by the State are reasonable.
A court considering reasonableness will not enquire whether other
more
desirable or favourable measures could have been adopted, or
whether public money could have been better spent. The question

would be whether the measures that have been adopted are
reasonable. It is necessary to recognise that a wide range of

possible measures could be adopted by the State to meet its
obligations. Many of these would meet the requirement of
reasonableness.
Once it is shown that the measures do so, this
requirement is met.”
48
Eviction is a reasonable measure to facilitate the
housing development programme. In addition, all the factors
discussed in
relation to the question whether it is just and
equitable to grant the eviction order also justify a conclusion
that the eviction
is, in the circumstances, reasonable.
In all the circumstances, the respondents have acted
reasonably in compliance with the state’s housing obligations and
there
has been reasonable engagement almost all the way.
49
It would have been ideal for the state to have engaged
individually and carefully with each of the thousands of the
families
involved. But reasonableness involves realism and
practicality. There has been reasonable engagement. The
representatives
of the City have reasonably engaged with the
community through its representatives during the period 2004 to the
time when
proceedings were instituted.
I conclude therefore that the eviction is reasonable
and that the respondents and the City have acted reasonably.
The order
As far as the content of the order is concerned,
members of the Court expressed concern during argument that if an
eviction
order were to be made it should provide sufficient
protection for the dignity of those to be moved. The order must
ensure
that the evictions or relocations are consistent with
justice and equity. In the circumstances, the parties were asked
to
try to agree to an order that might be granted. The state has
produced a draft order with an accompanying motivation. Both
documents have been sent to the applicants’ attorneys.
The response by the applicants is not particularly
helpful. They insist that no eviction order should be granted
because there
had been no engagement and because the applicants
were not liable to eviction. In effect they ask for further
engagement.
It is necessary to explain some parts of the order
that will be made. Paragraphs 19 and 20 of the order have become
necessary
because in the material submitted to this Court, together
with the draft amended order after argument had been completed, it
was pointed out that the first respondent may be replaced as
developer. It was therefore suggested that these paragraphs of
the
order were necessary.
Paragraphs 5 to 7, 11 and 22 of the order are
considered appropriate for two reasons. First, much time has
passed from September
last year when the respondents made proposals
in relation to exactly when certain identified households would be
moved to Delft.
In the circumstances it was inappropriate for our
order to be a final one. Secondly, it is in my view appropriate
for the
parties to engage meaningfully about the nuts and bolts of
the relocation process.
Costs
The applicants have raised important matters of
concern. They have also succeeded in some measure in effecting
significant
changes to the High Court order. The state has however
been substantially successful. In the circumstances, the fairest
way
to manage the issue of costs is to order the respondent to pay
half of the applicants’ costs both in this Court, and in the
High
Court.
In the circumstances, I agree with the order made in
the judgment of the Court.
Langa CJ and Van der Westhuizen J concur in the
judgment of Yacoob J.
MOSENEKE DCJ:
Introduction
This case is about landless people who live in an
informal settlement known as Joe Slovo. On all accounts their
housing is
meagre, crowded, vulnerable and deplorable. The
settlement is located on publicly owned land alongside the N2
highway near
Cape Town. Over 15 years the settlement has grown to
be a community of over 4 000 households estimated to consist of
approximately
20 000 residents. In issue in this case is whether
the residents occupy the land lawfully and if not, whether it
would be
just and equitable for the government to evict them
forcibly from their modest homes for the purpose of erecting
permanent
houses on the land they occupy. The dispute between the
residents and the government requires us to determine whether the

coercive eviction and relocation of the residents is permissible
under our Constitution and legislation that prevents arbitrary

eviction from, and the unlawful occupation of, land.
The City of Cape Town (the City) owns the land on
which Joe Slovo is situated. Even so, the eviction and relocation
of this
community was not sought by the owner of the land but by
Thubelisha Homes Ltd (Thubelisha). This is a public company
established
by the government to undertake several of its housing
functions as a national public entity and agency.
1
Thubelisha is responsible for implementing the N2 Gateway Project
– a major housing project initiated by government to
build
permanent homes in Joe Slovo and other adjacent areas in order to
end the informal settlement. It must be added that
the national
Minister for Housing (the Minister) and the Member of the
Executive Council for Housing and Local Government
in the Western
Cape (the MEC) supported the eviction sought as second and third
applicants respectively. I shall refer to
them and Thubelisha
collectively as the government respondents.
In order to secure the eviction and relocation of the
residents of Joe Slovo, Thubelisha brought an urgent application
in
the Western Cape High Court, Cape Town. For that relief, it
initially relied on the provisions of section 5 of the Prevention

of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (PIE).
2
Later in the proceedings, it resorted to the provisions of
section 6 of PIE.
3
Together with the Minister and the MEC, Thubelisha advanced the
argument that the residents are unlawful occupiers and that
it is
just and equitable that they be ejected from their homes in order
that the government respondents may build subsidised
permanent
housing on the site of the Joe Slovo settlement.
In the case it made before the High Court, Thubelisha
and other government respondents undertook to relocate temporarily
the
residents who were to be evicted from Joe Slovo to a
residential area known as Delft some 15 kms away. However, they
did
not undertake to allocate any of the permanent houses to be
built on the site of Joe Slovo to the residents who were to be

evicted.
The residents strenuously resisted the eviction
proceedings on several grounds. They are represented primarily by
two committees,
the one chaired by Mr S Penze, and the other,
referred to as the Task Team, chaired by Mr S Mapasa. The
residents challenged
the standing and right of Thubelisha to seek
their eviction. They denied that their occupation was unlawful
and asserted
that throughout the lifespan of the settlement, the
City was aware of and actively supported their occupation and in
effect
consented to it. They made the argument that the City has
never terminated its consent and that, in any event, even if it

had, it was neither just nor equitable for the residents to be
evicted from their homes and relocated to some distant temporary

abode. In addition, the residents claimed that they had a
legitimate expectation that no less than 70 percent of the

permanent housing to be provided at Joe Slovo would be made
available to them and that the High Court should make a
declaratory
order to that effect.
The High Court granted the order for the eviction of
the residents from Joe Slovo and their relocation to Delft. It,
however,
refused to make the declaratory order that the residents
of Joe Slovo were entitled to any percentage of the permanent
houses
to be built and subsidised by the government at Joe Slovo.
It merely ordered that the government respondents must report back

on affidavit on the allocation of permanent housing opportunities
to those affected by the order of eviction. In other words,
the
court order does not link the eviction and relocation of the
residents to their ultimate access to adequate housing to
be
provided by the government on the land from which they were
evicted. This says that whilst the High Court found it just
and
equitable to order the residents to vacate their homes in order to
make way for the erection of better homes, it declined
to give the
evicted residents the comfort that they will be the primary, if
not exclusive, beneficiaries of the new housing
scheme.
For the sake of completeness, I draw attention to the
counter-application that was made by the residents in the High
Court.
In it they sought an order to review and set aside the
land availability agreements from which Thubelisha derived its
right
granted by the government respondents to occupy and develop
Joe Slovo. It is unclear how in its judgment the High Court dealt

with the counter-application. The significance of the possible
invalidity of the land availability agreements was that Thubelisha

would have had no standing to bring the eviction proceedings and
no authority, as the owner of the land would have had, to
end the
permission the residents had to live on the land. In this Court
the residents do not persist in the claims they
made in the
counter-application. They concede that at the very least the MEC,
as a government functionary, has standing
to bring eviction
proceedings against them under PIE. They further stress that
neither Thubelisha nor any of the government
respondents claimed
that they had revoked the permission the residents say they have
to occupy the land. The respondents’
case is instead that, no
such consent was ever given and that therefore, there can be no
consent to be revoked. Nothing
more need be said about the
counter-application.
Being aggrieved by the decision of the High Court,
the residents of Joe Slovo approached this Court for leave to
appeal against
the eviction order of the High Court.
I have had the distinct benefit of reading the
separate judgments of my esteemed colleagues Ngcobo J, O’Regan
J, Sachs J
and Yacoob J. I am in substantial agreement with the
reasoning to be found in the elegantly crafted judgments of Ngcobo

J and Sachs J, in which I concur. I support, not without
considerable hesitation, the order that Yacoob J proposes. I do

so for different reasons which I set out later. First, I look at
the form of the order proposed.
The form of the order
Yacoob J grants the application for leave to appeal,
upholds the appeal in part, and upholds, also in part, the order
of the
High Court that the residents must vacate Joe Slovo
informal settlement on specified target dates and that the
government
respondents must provide alternative accommodation in
the form of temporary residential units to the applicants who so
vacate.
Yacoob J however goes further than the High Court by also
directing, amongst other ancillary orders, that the government

respondents must allocate 70 percent of the government-subsidised
houses to be built at the site of the Joe Slovo informal
settlement area to the current and former residents of Joe Slovo
who applied and qualify for housing.
In a strongly reasoned judgment, Yacoob J arrives at
this order by holding that the applicants were unlawful occupiers
and
that because they occupied the land in question without the
express or tacit consent of the owner, there was no obligation on

the part of Thubelisha and the other government respondents to
give notice to residents that the consent to occupy had been

terminated. He consequently holds that section 6 of PIE is
applicable and further, that all factors considered, it is just

and equitable to evict the occupiers of Joe Slovo under that
legislation.
In my view, the form the present order takes – that
the appeal must succeed in part – is the correct one. This is
so
because not only does Yacoob J set aside and replace the order
of the High Court but because he also makes an additional and

substantive order that the government respondents must allocate 70
percent of the government subsidised houses to be built
on the
site of Joe Slovo to the current and former residents who applied
for and qualified for housing. In terms of the
order, the
Minister and the MEC must ensure that the successor to Thubelisha
is bound by the terms of the additional order.
The additional order securing 70 percent of the new
housing for the residents who stand to be evicted and relocated
amounts
to substantial success on appeal in favour of the
applicants. Even before the litigation, the applicants demanded
the assurance
that they will be the primary beneficiaries of the
new housing to be erected in phases 2 and 3 of the N2 Gateway
Project.
This is the declaratory order the applicants expressly
sought before the High Court. The government respondents resisted

the granting of the order strenuously. The High Court expressly
declined to make an order to this effect and yet found that
the
eviction of the residents is just and equitable under PIE. This
is the order we make, albeit with the consent of the
government
respondents.
I must emphasise that, on the facts of this case, I
would have had great difficulty in holding that it is just and
equitable
to forcibly evict the residents of Joe Slovo and to
relocate them far from their homes and modest comfort zones in
order
to give way to the construction of new subsidised homes in
circumstances where the evicted residents would have had no
reasonable
prospects of satisfying their own dire need to access
adequate housing. That eviction and relocation order would have
made
the residents of Joe Slovo sacrificial lambs to the grandiose
national scheme to end informal settlements when the residents

themselves stood to benefit nothing by way of permanent and
adequate housing for themselves.
In this Court, the government respondents properly
conceded that the eviction and relocation order should be
buttressed by
the guarantee that the applicants will be the
primary beneficiaries of the N2 Gateway Project. Seen in this
way, the court
order we make becomes an integral part of a process
to ensure access to adequate housing by the necessitous residents
of
Joe Slovo. For these reasons, the applicants have had
substantial success on appeal and the order we make does reflect
that
outcome. It will be noticed that the order goes further by
requiring that the residents and the government respondents must,

through their respective representatives, engage meaningfully with
each other with a view to reaching an agreement on the
date and on
the manner in which the relocation must be accomplished. The
agreement resulting from the engagement or the
failure to reach an
agreement is itself a matter which is subject to the supervision
of the Court.
In what is to follow I focus on two issues only. The
first is whether the applicants were unlawful occupiers and if
not,
whether their occupation was unlawfully terminated. The
second question is whether the eviction of the applicants was just
and equitable under the provisions of PIE.
Consent and unlawful occupation
I consider it necessary to express myself on a
constitutional matter that has caused me considerable agony. And
that is whether
landless people who have no access to adequate
housing and who as a result erect homes and live on vacant public
land with
the knowledge and prolonged support of its owner, a
government body, should be regarded as no more than unlawful
occupiers
who fall to be evicted under PIE without a right to any
or adequate prior notice.
Our Constitution bears a transformative purpose in
the terrain of socio-economic rights. It evinces a deep concern
for the
material inequality closely associated with past exclusion
and poverty that is manifested by lack of proper housing. That

explains why section 26(1) of the Constitution provides in express
terms that everyone has the right to have access to adequate

housing. The state is required to take reasonable measures within
its available resources to provide everyone with access
to
adequate housing. Section 26(3) in particular, creates an
important shield to anyone who may be subject to eviction from

their home or to have their home demolished. The Constitution
makes judicial intervention mandatory by requiring that eviction

from or demolition of a home must occur through a court order made
after considering all relevant circumstances. PIE in
particular,
was enacted in order to give effect to the guarantees against
arbitrary eviction which are found in section 26(3).
Section 1 of PIE, in relevant part, defines an
“unlawful occupier” as:
“
[a] person who occupies land without the
express or tacit consent of the owner or person in charge, or
without any other right
in law to occupy such land . . .”.
“Consent” in turn is defined as:
“
[t]he express or tacit consent, whether in
writing or otherwise, of the owner or person in charge to the
occupation by the
occupier of the land in question”.
It is plain that an unlawful
occupier would be one who occupies land without consent of the
owner or without any other right
in law to occupy. The consent
required is of the owner or the person in charge. It may be
express or tacit and it may be
in writing or otherwise. This
definition is cast in wide terms. It envisages explicit consent
but it also contemplates
consent that may be tacit or, put
otherwise, that may be unsaid but capable of being reasonably
inferred from the conduct
of the owner in relation to the
occupier. The permission envisaged may be in writing but need not
be so. The permission
may be given other than in writing. In
other words, the absence of a written resolution or of a written
instrument evidencing
consent or permission to occupy is not
conclusive that there is no consent.
At a textual level, the definitions of “unlawful
occupier” and of “consent” are cast in wide language with an
explicitly
broad tenor. However, their purpose must be understood
in the context of the purpose of the legislation in which the
definitions
appear. In this case the operative legislation is
PIE. It is a statute which was passed to give effect to the
constitutional
commitment that no one may be evicted from their
home or have their home demolished without an appropriate
intervention by
a court of law and no legislation may permit
arbitrary evictions.
4
As we well know, this protection against arbitrary eviction is
entrenched in our Bill of Rights and lives side by side with
a
salutary, if not complementary, right to have access to adequate
housing. To that end, our Constitution enjoins the state
to take
reasonable and other legislative measures within its available
resources to achieve the progressive realisation of
the right of
access to adequate housing.
5
We are obliged to attribute to the word “consent” a meaning
which provides the widest possible protection to an evictee

against arbitrary or unfair eviction. This is so for a number of
good reasons.
Firstly, the interpretive injunction in section 39(2)
of the Constitution directs us to interpret the words “consent”

and “unlawful occupier” when found in legislation, in a manner
that is consistent not only with the broader purpose of PIE,
but
also with the spirit, purport and objects of the Bill of Rights.
We are accordingly required to understand the provisions

concerned, to the extent that it is feasible, in a way that is
protective of people who are homeless or otherwise vulnerable
to
arbitrary evictions. I am accordingly unable to support an
understanding of the notion of consent that seeks to make
a
distinction between ostensible and actual consent; that equates
consent that is required in the statute to a requirement
of
“voluntary agreement”; and that seeks to rely on concepts of
estoppel and ostensible consent in the law of contract
in order to
narrow down the proper reach and protection afforded by the word
“consent” in the sphere of public law.
Section 39(2) of the
Constitution requires a court to craft a just outcome that is in
harmony with the guarantees of the
Constitution rather than a
mechanistic application of legal rules of private law in a terrain
which is clearly intended to
give fulsome protection derived from
the Bill of Rights.
Another important consideration for adopting a
generous understanding of “consent” is embedded in our dark
history of
spatial apartheid and forced removals from land. Both
policies led to endemic land displacement and homelessness of the

majority of our citizens.
6
In enacting PIE, the legislature recognised that there are and
there will be ample instances in which homeless or landless
people
will be forced to occupy land without formal or written proof of
the right to be on the land or initial consent of
the owner. For
obvious historical reasons occupation of land often occurs without
formal or explicit acknowledgment of the
owner of the land. South
Africa’s most vulnerable, the unemployed, women and children, by
and large had no formal title
to own and occupy land. It is this
vulnerable class of citizens who have located themselves in open
spaces, sometimes owned
by the state and other times owned by
private individuals. Consequently, their right to occupy will
ordinarily not be evidenced
by express agreements or formal
resolutions of public entities but by the tacit acquiescence of
the owner.
In my view, where the occupiers reside on land owned
by the state or one of its organs, different and more stringent
considerations
may well apply given the obligations under section
26(2) of the Constitution. The state, alive to its onerous
constitutional
obligations to facilitate access to housing and to
prevent and protect people from arbitrary eviction, cannot lightly
escape
these obligations by simply resorting to treating occupiers
who have nowhere else to go as mere unlawful occupiers liable to

eviction. Also, the longer the occupation upon state land, the
greater the state’s obligation to afford occupiers due
and
lawful processes consistent with constitutional protections on
eviction and access to housing. This Court in
Port Elizabeth
Municipality
, whilst finding that there is “no unqualified
constitutional duty” on state authorities to provide alternative
housing
to victims of evictions,
7
stated the following:
“
a court should be reluctant to grant an
eviction against relatively settled occupiers unless it is
satisfied that a reasonable
alternative is available, even if only
as an interim measure pending ultimate access to housing in the
formal housing program.”
8
This approach was affirmed in the
Modderklip
case.
9
The facts of that case concerned a settled community that had
established itself on a privately owned farm over a period of
many
years.
10
Of relevance to the appropriate relief, Langa CJ took into account
the behaviour of the state (which had been consistently
negative)
regarding its obligation towards the residents, the residents’
investment in and commitment to the community, and
the requirements
of PIE and the Constitution.
11
He ordered therefore,
inter alia
, that not only should the
state expropriate the land, but that the residents would be
permitted to remain on the land until
suitable alternative
accommodation had been located by the state.
12
Did the residents occupy with the consent of the
City?
Yacoob J concludes that the residents of Joe Slovo
had no right of occupation because they occupied without the
consent of
the City and in turn it was not necessary for the City
to terminate the right. Regrettably, I am unable to agree with
this
conclusion. I think that the surrounding facts seen as a
whole allow a reasonable inference that the City, as owner of the
land, gave the applicants its consent to occupy Joe Slovo
settlement.
The residents have been on the land for a very long
period. It is not contested that some of them have been there for
as
long as 15 years. There is no evidence that in that time span,
the City has ever tried to remove the occupiers from the land
or
to convey that their presence on the land was without its consent.
On the contrary, the City acted responsibly towards
the
de
facto
mushrooming of informal settlements around Cape Town
arising from the housing shortage. The applicants correctly point
out
that the housing crisis was a direct result of apartheid
housing policies, not the least of them being the “coloured
labour
preference policy”, which was imposed in the Western
Cape, and the influx control pass laws. These policies resulted
in
a deliberate stance that no housing would be provided for
Africans in Cape Town in order to stem or minimise African
presence
and family life in Cape Town. The City must have
realised the futility and inhumanity of evicting people of Joe
Slovo from
the land which they occupied under circumstances where
there were no other houses available for them. From the conduct
which
I will describe in a moment, the City accepted the presence
of the occupiers on its land even if it was on a temporary basis

and for that reason actively provided them with basic services.
The City took several steps, both positive and
negative, that point to acknowledgment and acceptance of the
occupation of
the residents. The following positive steps emerged
from the evidence. It made provision for substantial services of
a
permanent nature and these included laying out streets,
allocating house numbers, connecting residents to the electricity

grid and providing basic municipal services in an ongoing long
term fashion. The City issued “red cards” to residents
evidencing their personal particulars and stand numbers in order
to identify them as such. The residents viewed this as permission

to be on the land. The City requested residents not to locate
themselves under power lines. Those who did not heed this
warning
and nevertheless lived under power lines were denied services
which were given to people living elsewhere in Joe
Slovo. It is
clear from the record that at the beginning of the development of
phase 1 in Joe Slovo, the City advised and
assisted residents of
that part of the settlement to take up occupation of the vacant
parts in phases 2 and 3.
Some of the things the City omitted to do led to the
reasonable inference that it acknowledged and accepted occupation
of
the residents. These include the fact that at no stage over a
period of 15 years did the City ever tell the residents they are

not permitted to reside at Joe Slovo or that they should vacate
the land. If anything, from 1993 the number of residents

increased by leaps and bounds. It appears clearly that the
authorities accepted that it was practically impossible to remove

the occupiers, that they would continue to remain on the site and
therefore that services should be provided to them at the
place
where they were. None of this evidence has been disputed by any
of the City officials.
The High Court reasoned that the City did not consent
to the occupation because the previous mayor, Ms Mfeketo, disputed
the
claim that the “red cards” permitted the occupiers to
remain in undisturbed possession and that she stated that the
services
that the City had provided had been for humanitarian
reasons and should not be construed as consent by the City. The
Court
accepted the mayor’s evidence that the City always
intended that informal settlements in general would be upgraded,
moved,
or redeveloped with the passage of time.
I am unable to support the reasoning of the High
Court. In my view it misunderstood the submissions made on behalf
of the
residents. Its very finding that informal settlements
would be upgraded, moved, or redeveloped on a progressive basis,
implies
that they would remain where they were until those steps
were taken in due course. In other words, the occupiers were
implicitly
allowed on a temporary basis to continue to occupy the
land until housing would be provided on a progressive basis. To
hold
otherwise, as the High Court did, in effect, means that
although our constitutional scheme accepts that the right to have

access to adequate housing will be achieved progressively and
within available resources, those who live on state land waiting

to be provided housing do so as perpetual outlaws and are thus
open to eviction as unlawful occupiers. In my view, the correct

position to take is that ordinarily temporary occupation of this
kind occurs with the consent of the state entity that owns
the
land subject to its right to give proper and lawful notice
intended to terminate the right to occupy.
I do not understand the case of the residents to be
that the provision of services in itself amounts to consent. The
duty
to provide basic services even to informal settlements stems
from the Constitution and from legislation.
13
Indeed, Yacoob J states at paragraph 75 of his judgment:
“
The Constitution requires the state, and
therefore the City, to respect, protect, promote and fulfil all
fundamental rights.
Arguably one of the most significant rights,
particularly in the context of the present case, is the right to
have the inherent
dignity of everyone respected and protected.
More specifically the objects of local government in the
Constitution are,
amongst other things, ‘to ensure the provision
of services to communities in a sustainable manner’ and ‘to
promote
a safe and healthy environment’. A municipality is
obliged to try to achieve these objectives.” (Footnotes
omitted.)
However, it is fair to state that
the provision of basic services is legitimate evidence of the
City’s state of mind that
the residents are a reality and will
have to be accepted and provided for in a humane manner for a
considerable period of
time until access to adequate housing is
realised. The provisions of basic services must, taken together
with several other
factors I have referred to earlier, lead to the
irresistible inference that the City had tacitly given its
permission for
the occupation.
This conclusion is underscored by facts I have
alluded to before. The owner took no steps to have the occupiers
removed until
the present eviction proceedings; it has never
advised the occupiers that their presence is unlawful and
forbidden; the occupiers
have remained on the land for as long as
15 years and have grown considerably in number to approximately 18
000 – 20 000
people living in 4 500 informal dwellings; the
owner provided an ever-increasing range of services which were not
only emergency
services, but also included the installation of
electricity, building roads, arranging refuse collection,
providing private
toilets and other long term amenities. In
conclusion, the totality of the evidence, in my view, leads to the
irresistible
inference that the owner of the land has consented to
the occupiers continued presence in Joe Slovo.
Has the City revoked its consent?
All of this does not however mean that the owner’s
consent is irrevocable. The residents have never asserted any
right
to occupy other than the consent of the owner. They accept
that there was no contractual obligation which binds the City to

allow the occupiers to reside in Joe Slovo in perpetuity. In
argument, the residents sought to persuade us that the legal

nature of their right of occupation is an equivalent of the common
law
precarium
which is possession or occupation which may
be terminated at any time.
14
It is, however, unnecessary, for the purposes of this case to
characterise this right of occupation any wider than being
a right
to occupy with the express or tacit consent of the owner of the
land in question and which may be terminated by the
state organ
concerned subject to its constitutional obligations in relation to
providing access to adequate housing.
It seems to me that once a finding is made that the
residents of Joe Slovo occupy with the consent of the owner and
that they
are not unlawful occupiers, their residence may be
terminated at any time by the owner on good cause shown and on
reasonable
notice of termination. I need not, for present
purposes, define what would constitute good cause. However, once
an owner
has properly notified the occupier of the intention to
terminate consent, the occupier would be hard pressed to contend
that
the occupation continues to be lawful. It must be added that
if the owner is a public authority and the consequence of
termination
is that the occupiers will be rendered homeless or
compelled to leave under intolerable conditions, the termination
may not
be on good cause. Our courts have often held that an
action by a public authority which results in a denial of a
constitutional
right is not good cause.
15
I have reached the conclusion that the applicants
occupy Joe Slovo with the consent of the City of Cape Town and
consequently
that they are lawful occupiers. The City and other
government respondents do not contend that they have given any
notice
terminating the consent to occupy. In fact, their case is
that because no such consent was given, no notice was necessary.

Ordinarily, it would have followed that the respondents were not
entitled to an eviction order under PIE in as much as the

residents of Joe Slovo were not unlawful occupiers. That however,
cannot be the end of the matter on the facts of this case.
It is common cause that no formal notice of the
termination of the consent to occupy was given to the residents of
Joe Slovo.
I nonetheless agree with Sachs J that by the time the
eviction proceedings were initiated in this matter the residents
had
participated in extensive negotiations around the N2 Gateway
Project. In fact, phase 1 of the Project had been completed and

the applicants were well aware that in time they would be required
to relinquish their homes in order to make way for the

construction of new homes on phases 2 and 3. In as much as the
consent which was given to them was implicit, on the facts
of this
case, the termination of the consent was also implicit. All facts
are consistent with the inference that the applicants
knew that
the owner of the land required them to cease occupying it and that
they could voluntarily relocate to Delft as
a temporary
residential area. It must follow, in my view, that it was open to
the government respondents to resort to the
provisions of section
6 of PIE in order to procure an order to evict and to relocate the
applicants.
The requirements of justice and equity and of
public interest
It seems to me that if the applicants were to fail in
their contention that they were not unlawful occupiers, it would
then
be necessary to determine whether their eviction is just and
equitable as required by section 6 of PIE. That section requires

that before an eviction order is granted, two crucial findings
must be made by the court. A court must first find that it
is
just and equitable to grant an eviction order after considering
all the relevant circumstances and second, whether it
is in the
public interest to do so. In turn, section 6(3) of PIE prescribes
that, in deciding whether it is just and equitable
to grant an
order for eviction, regard must be had to three crucial factors.
These are: the circumstances under which the
unlawful occupier
occupied the land; the period of occupation; and the availability
of suitable alternative accommodation
or land. In
Port
Elizabeth Municipality
16
this Court emphasised that the thread that runs right through the
legislative scheme of PIE, or, if you will, the governing
concept
underpinning the statute, is the requirement of justice and
equity.
Although the considerations set out in section 6(3)
of PIE are peremptory, in the sense that a court must consider
these circumstances
in deciding whether to grant an eviction
order, the High Court judgment did not explicitly deal with these
requirements.
In submissions made on behalf of the applicants
represented by Mr Penze’s committee and adopted by the
applicants represented
by the Task Team, the point was made that
the High Court failed to take into account a number of relevant
circumstances which
properly arise in the consideration of whether
to grant an eviction order in this case. They contended,
correctly so in
my view, that the High Court has failed to take
into consideration the historical and policy context relevant to
the occupation;
the period and circumstances under which the land
was occupied; the response of the City and other government
respondents
to the occupation; the hardship to be suffered as a
consequence of the eviction order; the alternative of an upgrade
of the
informal settlement without evicting its residents; and
lastly, the availability of alternative accommodation.
In relation to the historical and policy context, it
is necessary to give due regard to all the historical
circumstances that
have conspired to lead to the acute housing
shortage that exists in the Western Cape and which led to large
affluent urban
areas co-existing with over-crowded pockets of
impoverished and insecure informal neighbourhoods. As I said
earlier, these
are consequences of a rigidly enforced racial
distribution of land in the past. In this regard, this Court
observed in
Port Elizabeth Municipality
17
that section 25(4) to 25(9) of the Constitution, read together
with PIE, explicitly give recognition to the historical quest
for
housing on the part of those who suffered under past racist
policies.
Implicit in this legislative recognition is the
precarious position of people living in informal settlements and
the need
for their legislative protection.
18
I turn briefly to the period and circumstances under
which the land was occupied. Of prime importance is that the land
is
public land and is owned by the City. The early residents of
Joe Slovo found it unused and cleared it for occupation. The
owner of the land has allowed the community to live in undisturbed
occupation for nearly 15 years. The City has never attempted
to
evict the residents and as we already know, it did not join the
respondents in seeking to evict the community of Joe Slovo.

Equally important, is that the size of the settlement and the
number of its occupants that have steadily increased over
the
years to tens of thousands of residents literally under the
owner’s nose. Moreover, this Court has observed before,
that an
eviction order will not be readily sustained if it arises from
proceedings that were instituted after a long period
of occupation
without objection.
19
Considerations of fairness require special concern where settled
communities face the threat of being uprooted to other

neighbourhoods distant from employment, schooling and other social
amenities.
20
Once basic services are installed, the general pattern is that
conditions gradually improve until the settlement becomes
a
settled part of the town or city. The High Court, in my view,
failed to give due weight to these circumstances of occupation
of
the land in issue.
In
Occupiers of Olivia Road
, this Court made
the point that a municipality that launches eviction proceedings
must include a complete and accurate account
of engagement that is
conducted, including the reasonable efforts made by it within that
process.
21
The Court held that secrecy is counter productive to the process
of engagement and at odds with the constitutional value
of
openness.
22
It is therefore a relevant circumstance in terms of section 6 of
PIE, whether the state institution seeking an eviction
order made
an attempt at mediation. Equally relevant is whether the
government respondents made an effort to engage the
community
rather than imposing its decisions taken at a political level.
In the present case the government respondents openly
admit that they have not given so much as a formal notice before
the
urgent eviction application was launched against the residents
of Joe Slovo. It follows that they did not give the residents
of
Joe Slovo the courtesy and the respect of meaningful engagement
which is a pre-requisite of an eviction order under section
6 of
PIE. This failure to engage the residents is compounded by a
history of what appears to be the government respondents’

“broken promises” to the residents.
There remain two considerations which I think the
High Court should have given more weight. These are: the
hardships which
would result from the eviction and relocation
order; and whether the residents of Joe Slovo who are to be
evicted and relocated
to Delft will ultimately become the primary
beneficiaries of the N2 Gateway Project for which they have to
give way and endure
considerable human cost associated with
relocation.
First, our history sketches a bleak picture of
several decades of forced removals. In fact, between 1963 and the
late 1980s,
a period where forcible evictions reached their most
frequent, South Africa saw approximately 3,5 million people
forcibly
removed. On these statistics, Professor Bundy comments:
“
There is a sense in which these appalling
figures have been cited so often that we are used to them: that we
cease to realize
their import, their horror – what they mean in
terms of degradation, misery, and psychological and physical
suffering.”
23
Bundy makes the point that “trauma, frustration,
grief, dull dragging apathy and [the] surrender of the will to
live”
24
are indeed some of the effects of forcible evictions on the human
condition. And, the consequences span over multiple areas
of
social life: frequently it is the case that families are left
homeless, their social support structures severed and their

welfare services, jobs and educational institutions, rendered
inaccessible.
In the wake of our new constitutional dispensation,
Parliament has enacted a cluster of legislation designed to
protect and
secure the tenure of those who reside on land
unlawfully. Even so, evictions may still take place legally, but
their consequences
can be just as devastating as they have been in
the past for many poor South Africans. In turn, our courts have
correctly
held that the government’s obligations in terms of
section 26(2) mean that eviction sought by the state should not
occur
without the provision of alternative housing.
The second and compelling consideration in evaluating
whether the eviction is justified in this case is whether the
deleterious
effect of relocation on the applicants would be
properly mitigated by the reasonable prospect of access to
adequate housing
after the temporary stay in Delft. The High
Court declined to make an order that secured the applicants future
prospect
of acquiring upgraded housing and yet it authorised their
eviction and relocation. I have intimated earlier that I am
unable
to support that eviction and relocation order as just and
equitable.
Any government decision taken and consequent order
made regarding the forced eviction of a group of people cannot
ignore the
enormous impact that a potential forced removal will
have on the individual, family, and community at large. No matter
how
commendable the government’s intentions are regarding the
intended use of the land from which the community has been removed

without the solid promise of alternative housing, evictions may
turn out to be a method of brutal state-control and a far
cry from
the progressive realisation of the socio-economic rights our
Constitution guarantees. Courts must remain vigilant
to ensure
that when the government seeks to evict a community in pursuit of
commendable housing plans, the plans must include
the guarantee
that those who are evicted and relocated have a reasonable
opportunity of accessing adequate housing within
a reasonable time
in relation to the housing projects concerned.
In this Court, the government respondents properly
conceded that the applicants are entitled to a solid undertaking
that they
will be the primary beneficiaries of the upgraded houses
to be erected at the site of Joe Slovo. They made an undertaking

that at least 70 percent of the upgraded houses will be allocated
to the applicants. The court order we make incorporates
the
undertaking. In this form the court order goes a long way in
assuaging the immediate melancholy associated with relocation
by
offering a rock hard promise of adequate housing and restored
human dignity.
Lastly, I have not lost sight of the contention that
the upgrade of Joe Slovo can advantageously be carried out as an
in situ
upgrade, without having to uproot this established
community. I agree with Sachs J that it cannot be said that the
choice
to relocate the applicants in order to undertake the
construction work in time to secure the occupants better and
stable
housing is so unreasonable as to justify this Court’s
substituting its judgment for that of the government respondents.

The respondents’ preferred approach to relocate the applicants
before the construction of the remaining phases may not be
the
best practice, but it cannot be said to be unreasonable.
On balance I find that it is just and equitable to
make the order of eviction and relocation coupled with a further
order
guaranteeing that the applicants shall be allocated the
specified proportion of the new houses to be built on the site of

Joe Slovo within a process of meaningful engagement with the
people who are the subject of the eviction and relocation order.

I would accordingly uphold the appeal in part and support the
order proposed by the Court.
Sachs J concurs in the judgment of Moseneke DCJ.
NGCOBO J:
Introduction
There are two related questions presented in this
application for leave to appeal. The first is whether, at the time
of the
institution of these proceedings in the High Court, the
applicants were unlawful residents of government land within the
meaning
of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act (PIE).
1
If the applicants were indeed unlawful residents at the time, the
second question which arises is whether it is just and equitable
to
evict the applicants and relocate them to Delft. All members of
the Court agree that it is just and equitable to evict
the
applicants and relocate them to Delft. There is a difference of
opinion on whether the applicants were, for the entire
period of
their occupation of the land, unlawful residents.
Yacoob J holds that the applicants did not at any
stage enjoy a right of occupation in respect of the land in
question and were,
therefore, unlawful residents. Moseneke DCJ
2
and Sachs J
3
hold that prior to the commencement of eviction proceedings the
applicants occupied the land with the tacit consent of the
City of
Cape Town, the owner of the land. This consent, they hold, was
implicitly terminated when the applicants were required
to move in
order to give way to the implementation of the N2 Gateway Project.
They conclude that by the time the proceedings
commenced in the
High Court, the applicants no longer had any consent to reside on
the land.
In this case, we are only
required to decide whether, at the time of the institution of the
present proceedings, the applicants
were occupying the land without
the consent of the City of Cape Town and were thus unlawful
residents within the meaning of
PIE. In my view, prior to the
institution of the present proceedings, the applicants were aware
that Joe Slovo was going to
be upgraded and decent houses were to
be built in accordance with the N2 Gateway Project, a policy that
was adopted to upgrade
all informal settlements. The residents of
Joe Slovo, including many of the applicants, embraced this Project.
And they knew
that they would have to relocate to temporary
relocation units (TRUs) in order to allow the project to be
implemented. Indeed,
when they were requested to relocate, a
considerable number of the residents relocated voluntarily to
Delft. At the time of
the institution of these proceedings, the
applicants, who did not relocate, therefore knew that they had no
consent to remain
on the land. The applicants were, therefore, at
the time of instituting these proceedings, unlawful residents of
Joe Slovo
within the meaning of PIE. All my colleagues at least
agree that this was the position.
However, the views expressed by
Yacoob J on the one hand, and, on the other hand, those expressed
by Moseneke DCJ and Sachs
J, raise the fundamental question
concerning the status of the occupation of the land by the
applicants. In particular, they
raise the question whether, by not
evicting the applicants for over 15 years, and providing them with
services, the government
consented to the occupation of the land by
the applicants. In view of the importance of this question, in
particular, whether
the mere fulfilment of a constitutional
obligation in relation to landless people gives rise to consent to
occupy the land,
I consider it necessary to express my views on
this issue.
I agree with Yacoob J that the
mere fulfilment of a constitutional obligation in relation to the
residents did not in itself
give rise to consent. Yet I agree with
Moseneke DCJ and Sachs J that on the facts and circumstances of
this case the residents
cannot be regarded as “unlawful
occupiers”. In my view this case must be approached on the
footing that the residents
were allowed to remain on the land until
suitable alternative accommodation to alleviate their plight could
be found. While
the residents remained on the land under these
circumstances, they cannot be said to be unlawful residents. Their
occupation
became one without consent after they were requested to
move to Delft so that Joe Slovo could be upgraded. The ultimate
question
for determination in this case is whether it is in the
public interest, and thus just and equitable, to evict the
residents
in order to implement a programme aimed at providing them
with adequate and secure housing.
I write separately, therefore, to
explain my approach to the issues raised in this case.
Before doing so however it is necessary to have regard
to the facts. The background facts are set out in the judgments of
my
colleagues. I will only refer to those that are necessary for
the purposes of this judgment.
Background
The applicants are the residents of an informal
settlement known as Joe Slovo which is situated alongside the N2
highway in
Cape Town. When litigation commenced, it was estimated
that there were 4 500 informal dwellings in the settlement and that

there were approximately 18 000 to 20 000 people living in these
informal dwellings. According to the government, the figure
of 4
500 households has since dropped to between 3 200 and 3 500
households. The settlement has been in existence for about
15
years.
The conditions under which the residents have been
living in this area are no different from any informal settlement;
they are
deplorable. The area is overcrowded. The dwellings are
small and cramped. They are built mostly of combustible material.
All these structures are built in substantial non-compliance with
building laws and regulations. They pose a significant fire
risk.
Indeed at least in 2000, 2005 and 2006 the area was devastated by
fires which left thousands of residents homeless.
The informal
settlements are the manifestation of the housing crisis in Cape
Town that we described in
Grootboom
.
4
I will return to this crisis later in this judgment.
Initially the dwellings in the settlement had no
running water, no toilets, no roads and no electricity. However,
over time
the municipality provided the residents with basic
services. These services included the supply of water, container
toilets
and rudimentary cleaning services. As of 2002, the
municipality performed an extensive upgrade at the settlement, and
provided
a range of utilities and services including water, private
toilets, refuse removal, roads, drainage and electricity. The
provision
of all these services ameliorated, but did not eliminate,
the conditions that still prevail in the settlement.
It is the people living under these conditions that
the government wishes to relocate under its policy to eradicate
informal
settlements and provide with adequate housing.
The government wishes to develop Joe Slovo in order to
provide the residents and people from other informal settlements
with
adequate housing in it as part of its policy to upgrade
informal settlements. The government has now, however, guaranteed

the residents 70% of the houses that will be built on the upgraded
area.
The other 30% will be occupied by people who are
living in the backyards of houses in Kwa-Langa, an adjacent
residential area.
However, for the building operations to commence, the
government says it requires the residents to relocate to TRUs
specially
built for that purpose in Delft which is 15 kms from Joe
Slovo. After development, some residents will be allocated
permanent
houses in Joe Slovo. The government alleges that the
density of the population in Joe Slovo makes it impossible to
resettle
all residents in the area once it has been developed.
Those who cannot be accommodated in Joe Slovo after it has been
developed
will be allocated permanent houses in Delft. All this is
in accordance with the policy for the upgrading of informal
settlement
areas nationwide.
Attempts by the government to get the residents to
relocate voluntarily to the TRUs pending the development of Joe
Slovo have
not been completely successful. However, as Mr Sopaqa
tells us, a considerable number of residents have voluntarily
relocated
to the TRUs in Delft. The applicants, who are the
remaining residents, are resisting the relocation. Faced with this
resistance,
the government approached the Western Cape High Court
and obtained an order for the structured relocation of the
residents
under the provisions of PIE.
5
The present application for leave to appeal against the decision
of the High Court is the sequel.
The issues raised in this application for leave to
appeal must be understood in the context of the housing crisis
facing our
country, the mushrooming of informal settlements and
their hazardous conditions and the government’s response to these
challenges,
in particular, to informal settlements. It is to these
issues that I now turn.
The housing crisis
The cause of the housing shortage in our country lies
fundamentally in our history, in particular, apartheid. Referring
to
this history is necessary in the context of housing because, as
we pointed out in
Grootboom
, the right of access to adequate
housing must be interpreted and understood in its social and
historical context.
6
This history serves to remind us where we have come from as a
nation and where we are going. Indeed it serves to remind us
of
the goal that we have fashioned for ourselves in the Constitution,
namely, to establish a new society founded on human dignity,

equality and fundamental freedoms. It also helps us to understand
the plight of millions of people living in deplorable conditions

and in great poverty. It reminds us that at the heart of our
constitutional democracy lies the commitment to address these

conditions and to transform our society into one in which there
will be human dignity, freedom and equality.
7
This history enables us to understand the difficult challenge
facing government in addressing the housing shortage.
At the centre of apartheid was the control of the
movement of African people into urban areas which were considered
to be the
exclusive preserve of White people.
8
This policy was notoriously called influx control. African people
were tolerated in urban areas as long as they were willing
to serve
the labour needs of these areas which were reserved for Whites.
Africans were by law confined to rural areas where
there was
poverty and lack of employment opportunities. In the Western Cape,
influx control was rigorously enforced and gave
preference to “the
Coloured community” under “the labour preference policy.” In
terms of this policy, “Coloured
people” were preferred
labourers in the Western Cape.
9
Once they were in the urban areas, African people were
confined to townships. Their residence in these townships was
conditional
upon proof of employment or registration as a work
seeker. In effect, African people were recycled through these
townships
based on employment or registration as work seekers.
Townships served as labour reservoirs to accommodate the number of
African
people necessary to meet the labour requirements of the
urban areas. As this Court pointed out in
Western Cape
Provincial Government and Others: In Re DVB Behuising (Pty) Ltd v
North West Provincial Government and Another
:
10
“
The Natives (Urban Areas) . . . Consolidation
Act 25 of 1945 . . . authorised the local authority, ‘(s)ubject
to the approval
of the Minister after reference to the
Administrator’, to ‘define, set apart and lay out one or more
areas of land for
the occupation, residence and other reasonable
requirements of natives . . .’. Only Africans who were
‘necessary to supply
the reasonable labour requirements of the
urban area(s)’ were allowed to remain in [the urban] areas . . .
. Unemployed
or ‘idle’ Africans were liable to be sent to
their ‘home(s)’ or to
‘be
sent to and detained for a period not exceeding two years in a farm
colony, work colony, refuge, rescue home or similar
institution . .
. and perform thereat such labour as may be prescribed under [the
Prisons and Reformatories Act 13 of 1911]
or the regulations made
thereunder for the persons detained therein . . .’.”
11
(Footnotes omitted.)
It was an anathema
to
make provision for the accommodation of more African people than
the number essential to provide labour in the urban areas.
The influx control policy was but an aspect of
residential segregation which was the cornerstone of apartheid.
Residential
segregation was enforced through legislative measures
and policies that confined Africans to 13% of South Africa’s
land.
In the pursuit of this policy, the government embarked on a
relentless policy of forced removals which resulted in the
uprooting
of millions of Africans from designated white areas into
homelands. Confining African people, who constituted the majority

of the population, to 13% of the land left millions of African
people landless. The areas to which they were confined were
largely barren and there were little or no employment opportunities
in these areas.
But forced by hunger and lack of employment
opportunities in the rural areas, African people were compelled to
move to the cities,
at times at great risk to their lives and those
of their families. Confronted by the lack of accommodation in the
townships,
they were compelled to live in informal settlements,
either in vacant land or in the backyards of formal houses in a
township.
Despite constant harassment by the police, informal
settlements mushroomed all over the country. These are the
circumstances
under which the residents moved into Joe Slovo. As
Mr Sopaqa explains, residents were regularly subjected to
demolitions of
their informal dwellings and they were driven off
the land by police, only to return days later and re-erect their
dwellings.
Therefore what apartheid bequeathed to the new
democratic government was poverty, landlessness, inadequate housing
with resultant
overcrowding and the mushrooming of informal
settlements. These are the conditions that prevailed on the eve of
our constitutional
democracy. Our Constitution was adopted,
amongst other things, to address these conditions. The inclusion
of justiciable
socio-economic rights in the Constitution is a
manifestation of the commitment to addressing these conditions. On
the very
first occasion when this Court was called upon to
adjudicate on social and economic rights, it acknowledged these
disparities
and said:
“
We live in a society in which there are great
disparities of wealth. Millions of people are living in deplorable
conditions
and in great poverty. There is a high level of
unemployment, inadequate social security, and many do not have
access to clean
water or to adequate health services. These
conditions already existed when the Constitution was adopted and a
commitment
to address them, and to transform our society into one
in which there will be human dignity, freedom and equality, lies at

the heart of our new constitutional order. For as long as these
conditions continue to exist that aspiration will have a hollow

ring.”
12
Most, if not all people in informal settlements live
at the edge of survival. Space in these areas is at a premium.
There
is no infrastructure. Dwellings are not built according to
municipal or building laws. Plots are arbitrarily drawn. The

areas are invariably densely populated. There is no space left for
community services. The layout makes installation of basic

services either expensive or impossible. The dwellings are poorly
built. The dwellings are largely unhygienic. They present
fire
risks. Indeed, fires are a common occurrence in these areas, with
devastating effects on the residents. Residents of
Joe Slovo have
had at least three fires which left most residents homeless. As
the dwellings in informal settlements are very
close to each other,
and some are attached to each other, when one dwelling catches
fire, the rest of the settlement faces
the risk of catching fire.
Given the narrow access ways, many people find it difficult to
escape the fires. Death in such
fires occurs far too often.
Firefighters find it difficult, if not impossible to access the
area. The result is that the
entire settlement faces the risk of
being razed to the ground.
The Housing Act
As is apparent from the above, one of the key
challenges that faced the government at the inception of our
democracy was the
provision of adequate housing to a previously
excluded majority of citizens. Its approach to solving these
challenges commenced,
among other things, with the enactment of the
Housing Act 107 of 1997 (the
Housing Act). The
Housing Act was
enacted to give effect to the right of access to adequate housing
guaranteed in section 26 of the Constitution. Its declared
purpose
is to facilitate “a sustainable housing development process.”
The primary objective of the
Housing Act is
to undertake housing
development to ensure integrated “habitable, stable and
sustainable public and private residential environments”
that is
conducive to viable households, where communities “have access to
economic opportunities, and to health, educational
and social
amenities.”
In addition, the
Housing Act sets
out general
principles that are applicable to housing development. These
include giving priority to the needs of the poor,
13
and the promotion of “the establishment, development and
maintenance of socially and economically viable communities and
of
safe and healthy living conditions to ensure the elimination and
prevention of slums and slum conditions.”
14
These general principles are binding on all spheres of
government.
15
It is plain from the general principles that one of the objectives
of the
Housing Act is
therefore to eradicate informal settlements.
Finally, the
Housing Act makes
provision for the adoption of the
National Housing Code which contains national housing policy.
16
The Housing Code
Pursuant to the
Housing Act, the
government has
adopted the National Housing Code (the Code). Broadly speaking,
its primary objective is to ensure access to
affordable and
adequate housing for the poor and vulnerable. The Code recognises
that delivery of housing through the Housing
Subsidy Scheme “did
not make inroads into existing backlogs” and that informal
settlements will continue to grow.
17
Noting that the Housing Subsidy Scheme was not specifically
designed for informal settlement upgrading, the Code introduces
a
new policy which targets informal settlements, namely, the
National
Housing Programme: In Situ Upgrading of
Informal
Settlements
. The main objective of this programme is to
facilitate the structured upgrading of informal settlements with
minimal relocation.
Chapter 13 of the Code is devoted to the
upgrading of informal settlements.
The adoption of the Housing Code, however, did not
halt the growth of informal settlements, which itself was fuelled
by the
continuing housing shortage. Indeed the scale of the
housing need and demand for adequate housing has increased. In
2001
it was indicated that 21% of Cape Town households were without
formal shelter. This was exacerbated by the increase in the urban

population resulting from urbanisation and natural growth. The
number of households living in informal settlements and backyards

increased from 1.45 million in 1996 to 1.84 million in 2001, an
increase of some 26%. In January 2005, the number of households
in
Cape Town that did not have access to formal housing was estimated
at 260 000, 110 000 lived in informal settlements and
50 000 lived
in backyards.
The Breaking New Ground policy
Against this background, in September 2004, Cabinet
approved and adopted the Comprehensive Plan for the Development of
Sustainable
Human Settlements. This policy sets out a
comprehensive plan for the development of sustainable human
settlements in the country.
It is appropriately known as the
“
Breaking New Ground policy
” (
BNG
). The
objective of this plan is to give effect to the right of access to
adequate housing in a manner that promotes sustainable
development.
One of the aims of the plan is to integrate residents of informal
settlements into the formal housing sector:
its objective is to
halt the growth of informal settlements and where appropriate
upgrade informal settlements by the construction
of adequate
housing. The vision of this plan is that all the people in this
country living in desperate housing circumstances
will be
accommodated within the phases of the housing projects to be
implemented under this policy.
As its name suggests, the plan seeks to break new
ground in respect of informal settlements. It was introduced as
part of the
initiative to “move beyond the provision of basic
shelter towards achieving the broader vision of sustainable human
settlements
and more efficient cities, towns and regions.” The
BNG
involves a fundamental shift in the official response to
informal settlements. It adopts a new approach to informal
settlements
which is described in paragraph 4.1 of the plan as
follows:
“
There is a need to respond positively and
proactively to processes of informal housing development which are
taking place across
the country. A more responsive state-assisted
housing policy, coupled to delivery at scale is expected to
decrease the formation
of informal settlements over time. There is
however a need to acknowledge the existence of informal settlements
and recognise
that the existing housing programme will not secure
the upgrading of informal settlements. There is also a need to
shift the
official policy response to informal settlements from one
of conflict or neglect, to one of integration and co-operation,
leading
to the stabilisation and integration of these areas into
the broader urban fabric.”
The implementation of the plan requires the
eradication of informal settlements. The government, however,
recognises that the
eradication of informal settlements cannot be
achieved overnight. The plan therefore seeks to achieve
progressive eradication
of informal settlements through a plan
which is described in paragraph 3.1 of the plan as follows:
“
Informal settlements must urgently be
integrated into the broader urban fabric to overcome spatial,
social and economic exclusion.
The Department will accordingly
introduce a new informal settlement upgrading instrument to support
the focused eradication
of informal settlements. The new human
settlements plan adopts a phased in-situ upgrading approach to
informal settlements,
in line with international best practice.
Thus, the plan supports the eradication of informal settlements
through in-situ upgrading in desired locations, coupled to the

relocation of households where development is not possible or
desirable.
The upgrading process is not prescriptive, but
rather supports a range of tenure options and housing typologies.
Where informal
settlements are upgraded on well-located land,
mechanisms will be introduced to optimise the locational value and
preference
will generally be given to social housing
(medium-density) solutions. Upgrading projects will be implemented
by municipalities
and will commence with nine pilot projects, one
in each province building up to full programme implementation
status by 2007/8.”
(Emphasis added.) (Footnote omitted.)
The N2 Housing Gateway Project
The N2 Housing Gateway Project (the project) is a
product of the
BNG
. It is the first of the nine pilot
projects for the implementation of the
BNG
. The project is
a joint initiative of all three spheres of government, namely, the
National Department of Housing, the Western
Cape Provincial
Department of Housing and Local Government, and the City of Cape
Town. It envisages the provision of between
25 000 and 30 000
housing opportunities. It contemplates the upgrading of all
informal settlements along the N2 highway of
which Joe Slovo was
the starting point. The number of households involved are said to
be in excess of 15 000, of which approximately
4 500 are in Joe
Slovo. In addition, it also targets over 6 000 households that are
in the backyards of formal houses and
supports the District Six
Area Programme with a view to building some 500 housing
opportunities there. The goal of the project
is to deliver
adequate housing to each household.
18
To sum up therefore, the government’s response to
the housing crisis, and, in particular, the informal settlements
with all
their hazardous conditions has been, among other things,
to enact the
Housing Act, adopt
the Housing Code, develop a
comprehensive plan for integrated sustainable human settlement and
to implement these legislative
and policy measures through, among
other things, a pilot project, namely, the N2 Housing Gateway
Project. At the core of these
measures is the eradication of
informal settlements by upgrading informal settlements through
in-situ upgrading where possible
and the relocation of households
where in-situ development is not possible or desirable.
It is within this context that the question whether
the residents should be relocated to Delft must be considered. But
before
doing so it is necessary to address the residents’
argument based on consent. The residents contended that they are
occupying
the land with the consent of the City and that this
consent can only be terminated upon a reasonable notice and on good
cause.
None of these conditions has been satisfied by the City,
they argued. In support of this contention, the residents relied

upon the fact that they have been occupying the land in question
for over 15 years, that during this period they have never been

evicted and that instead, the City has provided them with services.
To counter these arguments, the former mayor of the City
of Cape
Town maintained that the City allowed the residents to remain on
the land and provided them with services out of humanitarian

considerations. This was an attempt to refute consent.
The effect of the failure to evict residents and
providing them with services
The effect of the failure by the City to evict the
residents and its willingness to provide them with services must be
understood
in the context of the obligations imposed on the
government in relation to access to adequate housing. In
Grootboom
, we held that the right of access to adequate
housing, for some, requires the government to provide “access to
services such
as water, sewage, electricity and roads.”
19
This obligation is not limited to lawful residents. It is imposed
in respect of all who are living in deplorable circumstances.
The
government has an obligation to act positively to ameliorate the
conditions of those who have no access to basic services.
As we
pointed out in
Port Elizabeth Municipality
, while awaiting
access to new housing development programmes, homeless people must
be treated with dignity.
20
When the City provided services to the residents it was doing no
more than fulfilling its statutory and constitutional obligations.
21
The residents accept that, given the housing crisis in
Cape Town, their eviction without the provision of alternative
accommodation
“would [have] achieve[d] nothing but to cause human
misery and social dislocation and conflict.” The City was
mindful
of the fact that it could not evict people and render them
homeless. Had it evicted them in those circumstances, its conduct

may well have been inconsistent with the Constitution. In
Grootboom
we held that “every step at every level of
government must be consistent with the constitutional obligation to
take reasonable
measures to provide adequate housing.”
22
And in
Occupiers of 51 Olivia Road
we held that “every
step taken in relation to a potentially homeless person must also
be reasonable if it is to comply with
s 26(2).”
23
Given the constitutional duty of the government to
provide access to adequate housing, including basic services, I am
unable
to accept that the mere performance of these constitutional
obligations without more, constitutes consent to occupy the land.

Construing mere performance of a constitutional obligation as
conferring consent places the government in an invidious position.

If it performs its constitutional obligations, its conduct may well
be regarded as indicating consent to occupy the land and
would
justify a refusal to vacate the land, a stance taken by the
residents in this case. If it fails to perform its constitutional

obligations in relation to people living in deplorable conditions,
then its conduct may well be held to be inconsistent with
the
Constitution. This may have a chilling effect on the extent to
which the government may be willing to perform its obligations
in
relation to people living in deplorable conditions.
Apart from this, the Constitution, by imposing these
obligations, does not purport to confer consent by constitutional
fiat.
In
Port Elizabeth Municipality
, we held that “the
Constitution is strongly supportive of orderly land reform, but
does not purport to effect transfer of
title by constitutional
fiat. Nor does it sanction arbitrary seizure of land, whether by
the State or by landless people.”
24
(Footnotes omitted.)
Nor can it be said the residents
were in unlawful occupation of the land during the period when the
government tolerated their
presence on the land pursuant to its
constitutional obligations.
The question whether the
residents are unlawful residents must be determined in the light of
the constitutional obligation that
government has towards landless
people and people who live in deplorable conditions. It is by now
axiomatic that government
may not evict landless people from its
land and render them homeless. Its conduct, as pointed out
earlier, must be consistent
with its constitutional obligation to
take reasonable steps to facilitate access to adequate housing. It
owes a duty to landless
people to provide them with access to
adequate housing. It is this duty which prevents government from
evicting landless people
from its land and rendering them homeless.
As long as this duty operates, the landless may not be evicted
until alternative
accommodation is found.
In
Port Elizabeth
Municipality
, we held that “[t]he rights involved in s 26(3)
are defensive rather than affirmative.”
25
The constitutional duty therefore provides landless people with a
shield against eviction. The government is compelled by
this
constitutional obligation not to evict residents and render them
homeless. In these circumstances, it is difficult to
understand
how the residents can be said to be in unlawful occupation of
government land from which they may not be evicted.
Different
considerations may well apply to private land.
All that the government wishes to
achieve in these proceedings is to move the residents to the TRUs
and, once Joe Slovo is upgraded,
provide residents with permanent
housing in Joe Slovo. In effect therefore this is a temporary
relocation of residents so
that Joe Slovo can be upgraded and
thereafter some of the residents will be allowed to return there
while others who cannot
be accommodated in the area will be
allocated houses elsewhere. Where, as here, there is a dispute
between the residents and
the government on whether the residents
should be moved in order to implement the policy to provide
residents with adequate
housing and secure tenure, the requirement
of “unlawful occupier” in PIE does not address the real
problem. This is so
because the government has constitutional
duties towards the residents who are landless; it may not simply
evict them and render
them homeless. The government is therefore
compelled by its constitutional duty to allow the residents to
reside on its land
until it can find alternative accommodation to
address their plight.
It seems to me that when people in the position of the
residents of Joe Slovo are sought to be relocated in order to pave
the
way for the implementation of a government programme aimed at
providing residents with adequate housing, the proper question to

ask is not whether the residents are unlawful occupiers, but
whether it is in the public interest and thus just and equitable
to
relocate them for that purpose. This is more so because the very
purpose of the relocation is to upgrade the area they
occupy and
thereafter resettle them in the same area after it has been
upgraded. This would be consistent with section 6(1)(b)
of PIE.
But this approach to the problem is immediately undermined by
section 6(1) which requires “unlawful occupier”
as a
precondition to trigger the provisions of section 6(1)(b).
It seems to me that on the facts and the circumstances
of this case, it is not necessary to first “brand” residents as
“unlawful
occupiers” before they may be relocated. This is
inimical to the foundational values of human dignity as evidenced
by the
provisions of sections 26 and 25 of the Constitution. It
would be more consonant with human dignity of landless people to

pose the questions whether it is in the public interest and thus
just and equitable to evict the residents for the purposes of

implementing the government plan aimed at providing the residents
with adequate housing. To this extent I have grave doubts
whether
the provisions of section 6(1) of PIE are the appropriate vehicle
for dealing with the situation of the residents in
this particular
case.
That said, the government has resorted to the
provisions of PIE because it is the statute that deals with
evictions. It is
therefore understandable why the government would
contend that the residents are “unlawful occupiers”. PIE
requires it
to do so. It is equally understandable why the
residents would resist the notion that they are “unlawful
occupiers” of
the land which they have occupied for about 15
years without being evicted. Effect must, however, be given to the
statute
that the government has resorted to in order to secure the
eviction and the relocation of the residents.
The proper approach to this case
Given the constitutional and statutory obligations of
the government towards people who are in the position of the
residents,
this case must be approached on the footing that the
constitutional duty that the government owes towards landless
people required
the government to allow the residents to remain on
the land until the government could develop and implement a policy
that
addresses their plight as well as the plight of all people
living in desperate circumstances in informal settlements.
The
BNG
and the N2 Gateway
Project are measures that were adopted by the government in order
to address the plight of people, like the
residents who live in
deplorable conditions in informal settlement areas. The
reasonableness of these measures has not been
impugned. Indeed, Mr
Sopaqa states that “the community and its leaders
enthusiastically co-operated with the N2 Gateway
Project in its
early stages.” The implementation of the
BNG
would
require the residents to relocate in order to give room for the
development of the area. The residents were aware of
the fact that
they would be required to relocate once the implementation of the
project got underway.
Well before August 2006 the residents were requested
to move in order to allow for the further implementation of the
project.
In this regard Mr Sopaqa states that “in about August
2006” Thubelisha “became more aggressive in their attempts to

persuade all Joe Slovo residents to move to Delft.” Indeed, a
considerable number of residents relocated to Delft voluntarily
as
a result. The applicants apparently opposed the relocation to
Delft because they “had heard many reports from Joe Slovo

residents who had voluntarily relocated, about the poor conditions
at Delft, ranging from lack of access to transport, to poor

employment prospects and high crime levels.” The residents have
therefore known for some time prior to the eviction proceedings

that they had to relocate to Delft. While the concerns of the
applicants’ relocation to Delft may be understandable, the
fact
of the matter is that they must relocate to give way to the
development aimed at benefiting them and thousands of others
in
their situation. They have known for some time that they had to
vacate the land and they were told to vacate some time
ago.
I am therefore satisfied that when the present
proceedings were instituted, the residents knew that they were
required to relocate
to Delft to give way to the implementation of
the N2 Gateway Project. They were, in these circumstances,
“unlawful occupiers”
within the meaning of PIE.
The question to be answered then is whether on the
facts and circumstances of this case it is just and equitable for
the residents
to be relocated to Delft. A relevant factor in
deciding whether it is just and equitable to relocate the residents
is the
purpose of the relocation. And the purpose of the
relocation must be viewed in the light of the right of access to
adequate
housing, and, in particular, the constitutional duty of
the government to facilitate the progressive realisation of the
right
of access to adequate housing imposed by section 26(2) of the
Constitution.
The right of access to adequate housing
The right of access to adequate housing is guaranteed
in section 26 of the Constitution which provides:
“
(1) Everyone has the right to have access to
adequate housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) No one may be evicted from their home, or have
their home demolished, without an order of court made after
considering
all the relevant circumstances. No legislation may
permit arbitrary evictions.”
In
Grootboom
we held that
section 26 requires the government to “establish a coherent
public housing program directed towards the progressive
realisation
of the right of access to adequate housing within the State’s
available means.”
26
Legislative measures adopted by the government must be supported
by policies and programmes. And policies adopted must be

reasonable “both in their conception and implementation.”
27
Reasonable measures are those that take into account “the degree
and extent of the denial of the right they endeavour to
realise”
and they should not ignore people “whose needs are the most
urgent and whose ability to enjoy all the rights therefore
is most
in peril”.
28
The measures and policies adopted must “facilitate
access to temporary relief for people who have no access to land,
no roof
over their heads, for people who are living in intolerable
conditions and for people who are in crisis because of natural
disasters
such as floods and fires, or because their houses are
under threat of demolition.”
29
And in
Treatment Action Campaign
we held that the
government “is obliged to take reasonable measures progressively
to eliminate or reduce the large areas
of severe deprivation that
afflict our society.”
30
As pointed out above, the government has initiated the
BNG
policy whose primary objective is to eradicate informal
settlements over time, through in-situ upgrading of informal
settlements
and the relocation of households where development is
not possible or desirable. This plan involves the construction of
decent
housing in upgraded settlements and other locations. The
policy is intended to give effect to the right of access to
adequate
housing. It targets people “living in extreme
conditions of poverty, homelessness or intolerable housing.”
31
As pointed out above, the residents have not challenged the
reasonableness of this policy. They could hardly have done so,

having regard to the desperate conditions of people living in
informal settlements.
In my view, the
Housing Act, the
Housing Code, the
BNG
policy and the N2 Gateway Project, constitute “reasonable
legislative and other measures within [the government’s]
available
resources, to achieve the progressive realisation of [the
right of access to adequate housing]” as contemplated in section
26(2) of the Constitution. The government requires the remaining
residents to relocate to the TRUs so that it can implement
these
measures. And the government should not be obstructed in the
fulfilment of its constitutional obligations imposed by
section 26
of the Constitution. I agree with Yacoob J that, in these
circumstances, the eviction and relocation of the residents
is a
reasonable measure to facilitate the housing development
programme.
32
Neither the Constitution nor PIE precludes the relocation sought
by the government.
The Constitution and evictions
The Constitution, in particular section 26(3),
recognises that at times it may be necessary for the government to
relocate landless
people and people who are living in deplorable
conditions in order to provide them with access to adequate
housing. This may
be necessary either because the land they occupy
must be upgraded or developed in order to provide decent houses for
them in
that area, as the present case illustrates, or because they
are occupying the land without the permission of the land owner and

the land owner requires the land. However, these relocations must
take place in accordance with the Constitution and the law,
in
particular section 26(3) and the provisions of PIE.
The Constitution requires that all evictions must be
carried out in accordance with the values that underlie our
constitutional
democracy. These include human dignity, equality
and fundamental human rights and freedoms. Section 26(3) prohibits
the eviction
of anyone from his or her home or the demolition of a
home “without an order of court made after considering all the
relevant
circumstances.” In addition, it prevents arbitrary
evictions. And no statute “may permit arbitrary evictions.”
33
Section 26(3) underscores the importance of a house, no matter how
humble. As we have pointed out in
Port Elizabeth Municipality
,
“[s]ection 26(3) evinces special constitutional regard for a
person’s place of abode. It acknowledges that a home is
more
than just a shelter from the elements. It is a zone of personal
intimacy and family security.”
34
International human rights law recognises that
development may require evictions. Thus General Comment No. 7 on
forced evictions
recognises that “[e]victions may be carried out
in connection with . . . development and infrastructure projects .
. . land
acquisition measures associated with urban renewal,
housing renovation, [and] city beautification programmes . . . ”.
35
However, evictions should not result in people being rendered
homeless. And where the people affected by the eviction are
unable
to provide for themselves, “the [government] must take all
appropriate measures, to the maximum of its available resources,
to
ensure that adequate alternative housing, resettlement or access to
productive land, as the case may be, is available.”
36
Eviction under PIE
PIE was enacted to give effect to section 26(3) of the
Constitution. It was enacted with the manifest objective of
overcoming
the abuses of eviction “and ensuring that evictions,
in future, took place in a manner consistent with the values of the

new constitutional dispensation.”
37
It recognises that, having regard to our history of land
dispossession of the majority of people, it was inevitable that
there would be millions of people who would be without land. PIE
also recognises that people may, out of desperation from their

circumstances, move onto any vacant land without necessarily
obtaining the permission of the land owner, not out of disregard

for the owner’s right but because the owner is perhaps not known
to them. As we pointed out in
Port Elizabeth Municipality
,
PIE replaced “the overall objective of facilitating the
displacement and relocation of poor and landless black people for

ideological purposes . . . by [the] acknowledgment of the
necessitous quest for homes of victims of past racist policies.”
38
The purpose of the relocation in this case
The government seeks the relocation of the residents
in order to implement the
BNG
and the N2 Gateway Project.
The primary objective in implementing these measures is to upgrade
informal settlements, including
Joe Slovo. This will provide
informal settlement dwellers with access to permanent, habitable,
stable and sustainable residential
structures with secure tenure.
And in addition, this will provide residents of informal
settlements with safe and healthy
living conditions. Moreover, the
implementation of these measures will benefit thousands of informal
settlement dwellers who
are living in deplorable conditions. A
considerable number of residents of Joe Slovo voluntarily moved to
Delft some three
years ago in order to allow the implementation of
the project. The reasonableness of the
BNG
and the N2
Gateway Project cannot be gainsaid. As I have held above, the
implementation of
BNG
and the Project and the eviction and
relocation of the residents, constitute reasonable measures
contemplated in section 26(2)
of the Constitution.
Having regard to the purpose of the relocation, I
consider it therefore to be in the public interest that the
residents be relocated
to allow the implementation of the project
aimed at benefitting them consistently with the obligation of the
government to
facilitate progressive realisation of the right of
access to adequate housing. What remains to be considered is
whether, having
regard to all the circumstances, it is just and
equitable to relocate the residents. The question must be answered
in the
light of the duty of the government when relocating people
under its policies and the concerns raised by the residents.
The duty of the government when relocating people
under its policy
General Comment No. 7 of the Committee on Economic,
Social and Cultural Rights requires certain procedural protections
to be
complied with before any eviction can take place. These
include an opportunity for genuine consultation with the people
affected;
adequate and reasonable notice prior to the date of the
eviction; people affected must be provided with information
concerning
the purpose of the eviction; where groups of people are
involved, government officials or their representatives should be
present
during an eviction; people carrying out the evictions must
be properly identified; and evictions should not take place during

bad weather or at night unless the affected people consent.
General Comment No. 7 provides a useful guide to
determining the obligations of government when it seeks to relocate
people
for the purposes of providing them with adequate housing.
The requirement of genuine consultation with the people affected by

relocation under General Comment No. 7 is consistent with the
requirement of engagement that we have insisted upon before people

are evicted. It is also consistent with our jurisprudence on PIE.
In my view General Comment No. 7 must, as a general matter,
be
followed in relocations such as the ones involved in this case.
In my view, the key requirement in the implementation
of a programme is engagement. There must be meaningful engagement
between
the government and the residents. The requirement of
engagement flows from the need to treat residents with respect and
care
for their dignity. Where, as here, the government is seeking
the relocation of a number of households, there is a duty to engage

meaningfully with residents both individually and collectively.
Individual engagement shows respect and care for the dignity
of the
individuals. It enables the government to understand the needs and
concerns of individual households so that, where
possible, it can
take steps to meet their concerns.
Meaningful engagement
In
Occupiers of 51 Olivia Road
we considered
the requirement of meaningful engagement in the context of
evictions by the City of Johannesburg based on safety
and health
considerations. The evictions in issue would have resulted in the
residents being rendered homeless. We held that:
“
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.”
39
And we pointed out tha
t:
“
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. 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. 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.”
40
While pointing out that “[t]here is no closed list
of the objectives of engagement”,
41
we held that some of the objectives of engagement in the context of
a city wishing to evict people who might be rendered homeless

consequent upon 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.”
42
These considerations apply equally where the
government, as here, seeks to relocate people living in deplorable
conditions pursuant
to a programme aimed at providing such people
with decent housing. It must consider the needs of each household
so as to assess
the nature and the extent of the disruption that
relocation would cause and how this disruption might be
ameliorated. People
must know in advance the area to which they
are to be relocated, and the date of such relocation; this is
necessary to enable
people to organise and plan their lives
accordingly.
In the context of the implementation of a programme to
upgrade informal settlements, the primary objective of engagement
must
be to provide the residents with the details of the programme,
its purpose and its implementation. In particular:
the purpose of the programme;
the purpose of relocation;
arrangements for TRUs where in-situ development is
not possible;
how and when relocations will take place;
the amount of notice to be given before relocation
actually takes place;
consequences of relocation, including the extent to
which the lives of the residents will be disrupted;
whether the government will help to alleviate any
dire consequences;
the criteria for determining who of the residents
will be resettled in the area that has been developed; and
where those residents who cannot be accommodated in
the developed area will be provided with permanent housing.
In this case, the government was apparently mindful of
its obligation to engage with the community. This appears from the
memorandum
of understanding which was concluded by the City, the
MEC for Housing and Local Government and the Minister for Housing
which
acknowledges the need for a “communication and engagement
strategy agreed and implemented by all three spheres of government

to ensure optimal community awareness and support for the project.”
In addition, the draft order proposed by the government
includes
an element of engagement with individual households on how and when
relocation would take place; the provision of
transport facilities
to the affected residents from the TRUs to public amenities,
including school, health facilities and places
of work; and the
prospect, in due course, of allocation of permanent housing. That
the various spheres of government acknowledge
this obligation is
laudable. Indeed these are some of the objectives that meaningful
engagement should seek to achieve in
this case.
What must be stressed, however, is that the process of
engagement does not require the parties to agree on every issue.
What
is required is good faith and reasonableness on both sides and
the willingness to listen and understand the concerns of the other

side. The goal of meaningful engagement is to find a mutually
acceptable solution to the difficult issues confronting the

government and the residents in the quest to provide adequate
housing. This can only be achieved if all sides approach the

process in good faith and with a willingness to listen and, where
possible, to accommodate one another. Mutual understanding
and
accommodation of each others’ concerns, as opposed to reaching
agreement, should be the primary focus of meaningful engagement.

Ultimately, the decision lies with the government. The decision
must, however, be informed by the concerns raised by the
residents
during the process of engagement.
Engagement in this case
It is difficult to establish from the papers the
nature and the extent of the engagement that occurred in this case.
What is
clear is that after the launch of the project, officials
from all spheres of government, including the MEC, Mayor, and a
councillor
addressed the residents at various times about the
Project. It is also apparent that Thubelisha, the implementing
agent, played
a key role in the process. At one point, it
requested that the residents move to Delft. I think it can fairly
be accepted
that the Project was explained to the residents.
Indeed as Mr Sopaqa tells us, the project was met with broad
approval from
the residents, and a considerable number of residents
have already voluntarily left for the TRUs.
The former Mayor of Cape Town, Ms Mfeketo, has given
details of the various meetings that she held with the residents
and what
was discussed at those meetings. She stated that the
community was informed of the plans to develop Joe Slovo to provide
access
to adequate housing. The community was also informed that,
as Joe Slovo was densely populated, it would be impossible for all

residents to be allocated houses in Joe Slovo after development.
In addition, the community was informed that it would be
necessary
for them to move to temporary accommodation, pending the allocation
of permanent houses to them. The record therefore
shows that there
was engagement with the residents on the project.
As pointed out above, various City, provincial and
national government officials and Thubelisha spoke to the residents
on different
occasions. This approach to the problem was bound to
generate misunderstanding or confusion. Different messages and
perhaps
conflicting information is more likely to be conveyed in
these circumstances. This is particularly so where statements are
left unexplained. And the possibility of a misunderstanding looms
large in these circumstances. Structured and co-ordinated

meaningful engagement between, on the one hand, representatives of
the City, the provincial and national governments, and the

implementing agent, and, on the other hand, the residents, may have
helped to prevent any misunderstanding or confusion about
the
details of the project. Indeed it would have reduced the
possibility of different messages being conveyed to the residents.

This would probably have prevented the mistrust that now prevails
in the minds of the residents. And that mistrust has prevented
any
meaningful engagement on relocation from taking place without the
intervention of this Court. However, this does not mean
that
engagement on the details of relocation should not take place. It
must.
The concerns of the residents
One of the concerns of the residents appears to be
that they will not all be accommodated in Joe Slovo once the
project is complete.
The government has undertaken to allocate 70%
of the new houses to be constructed in Joe Slovo to the residents.
The other
30% will be allocated to residents from other informal
settlements, in particular, to those who live in the backyards of
formal
houses in Kwa-Langa. However, as the Joe Slovo area is
densely populated and overcrowded, the government says that it will

not be possible to allocate all current residents of Joe Slovo new
houses in the same area. Those who cannot be accommodated
back
into the developed Joe Slovo area will be allocated permanent
houses in Delft.
In my view, the government cannot be faulted in
requiring the occupants of Joe Slovo to share houses in the area
with backyard
dwellers. It is for the government to decide how to
allocate houses in the new area. If the government, in its wisdom,
decides
to allocate some of the houses in the newly developed Joe
Slovo to backyard dwellers from Kwa-Langa, which is close to Joe

Slovo, this cannot be faulted unless it is unreasonable. There is
no suggestion that it is unreasonable to do so. On the contrary,

it is intended to make sure that some of the backyard dwellers of
Kwa-Langa are accommodated as near as possible to Kwa-Langa
so that
relocation does not seriously disrupt their lives.
What must be emphasised is that the government has a
wider range of needs to meet. As we held in
Grootboom
,
“housing must be made more accessible not only to a larger number
of people but to a wider range of people”.
43
There are those who can afford to buy houses and there are those
who cannot. Income determines what form of housing people
can
afford. In developing a policy to provide access to adequate
housing, the government must endeavour to address all these
needs.
And the primary obligation to achieve the progressive realisation
of the right of access to adequate housing rests
on government. It
must determine how and when this should be done. This, however, is
subject to the requirement of the progressive
realisation of the
right – it must progressively facilitate accessibility. How and
when the obligation must be fulfilled
depends on the availability
of resources, in particular, the availability of land.
Nor can the government be faulted in making provision
for houses for different income groups. Residents of Joe Slovo who
can
afford payment of the rent of R600 per single unit or R1 050
for two-room flats are entitled to have their needs taken into

consideration in making provision for housing. The residents’
complaint is that these rentals “are completely unaffordable
to
most Joe Slovo residents.” As I understand this complaint, the
residents are not suggesting that none of the residents
can afford
the rent required to occupy the flats in question. Their
complaint is that a majority of them cannot afford this
rent. As
we held in
Grootboom
, housing must be made more accessible
to a wider range of people.
44
In considering reasonableness, the enquiry is not
“whether other more desirable or favourable measures could have
been adopted,
or whether public money could have been better
spent.”
45
Rather, the enquiry should be confined to the question whether the
measures that have been adopted are reasonable, bearing
in mind
“that a wide range of possible measures could be adopted by the
State to meet its obligations.”
46
Thus in determining whether the government has complied with its
obligation to provide access to adequate housing, courts
must
acknowledge that the government must determine and set priorities
but must ensure that, in setting those priorities, it
has regard to
its constitutional obligations. In short, the obligation of
government must not be construed in a manner that
ties its hands
and makes it impossible to comply with its constitutional
obligations.
The residents have also challenged the need to
relocate to the TRUs. As pointed out above, the government says
that in-situ
development is not feasible. The residents, relying
on their expert, contend otherwise. It is not for the courts to
tell
the government how to upgrade the area. This is a matter for
the government to decide. The fact that there may be other ways
of
upgrading the area without relocating the residents does not show
that the decision of the government to relocate the residents
is
unreasonable. It is not for the courts to tell the government how
best to comply with its obligations. If, in the best
judgement of
the government it is necessary to relocate people, a court should
be slow to interfere with that decision, as
long as it is
reasonable in terms of section 26(2) of the Constitution and just
and equitable under PIE.
Some of the reasons advanced by the residents for
refusing to relocate to the TRUs in Delft are a lack of schools and
other
amenities and a lack of employment. What must be stressed
here is that relocation is necessary to develop Joe Slovo so that
decent housing can be built there. This will benefit the
residents. Moreover, the Constitution does not guarantee a person

a right to housing at government expense at the locality of his or
her choice. Locality is determined by a number of factors

including the availability of land. However, in deciding on the
locality, the government must have regard to the relationship

between the location of residents and their places of employment.
47
As indicated above, Delft is some 15 kms away from Joe
Slovo. However, the government has offered free transport to take
children
to schools in Kwa-Langa. In addition, it has committed
itself to building more schools and clinics in Delft and pensioners

have a choice of getting their pension either in Delft or in
Kwa-Langa. In short, the government has taken some steps in order

to ameliorate the hardships that may be caused by relocation.
In the past we have stressed that the government faces
an extremely difficult task in addressing the injustices of the
past.
This is compounded by the limited availability of resources,
including the availability of land where decent houses can be

built. These factors will invariably compel the government to
provide access to adequate housing in areas available to it.
And
these areas will invariably not be located close to the areas from
which people are being relocated. This is a consequence
of our
history. All that the government can and should do is, as far as
is possible, have regard to the proximity of schools
and employment
opportunities when it seeks to relocate people for the purposes of
providing them with decent houses.
In some instances this may be possible, in others it
may not. Where this is not possible, all that the government can
do is
ameliorate the disruptive effect of relocation by providing
access to schools and other public amenities as the government has

done in this particular case. In this case, the government,
consistently with its obligation to promote access to adequate

housing, has committed itself to alleviating the consequences of
relocation. What must be stressed here is that it is the
primary
responsibility of the government to provide adequate housing. This
responsibility carries with it the authority to
determine how and
where to provide adequate housing. However, in doing so, the
government must act reasonably.
The Housing Code acknowledges
these challenges and outlines the guiding principle in upgrading
informal settlements as follows:
“
Residents living in informal settlements are
often dependent on fragile networks to ensure their livelihoods and
survival.
A guiding principle in the upgrading of these
communities is the minimisation of disruption and the preservation
of community
cohesion. The Programme accordingly discourages the
displacement of households, as this not only creates a relocation
burden,
but is often a source of conflict, further dividing and
fragmenting already vulnerable communities.
In certain limited circumstances, it may however
be necessary to permanently relocate households living in hazardous
circumstances
or in the way of essential engineering or municipal
infrastructure. In all such cases and where feasible and
practicable,
the relocation must take place at a location as close
as possible to the existing settlement and within the context of a
community
approved relocation strategy that must be submitted with
the final business plan for approval by the MEC.”
What is also significant in this
case is that a number of residents from Joe Slovo have already
relocated to Delft. There are
thousands of other residents from
informal settlements who are awaiting to be provided with access to
housing in the N2 Gateway
Project. The applicants have all along
known that they will have to relocate. Others have done so. The
applicants’ continued
refusal to relocate to the TRUs in Delft is
frustrating the project aimed at fulfilling the government’s
constitutional obligation.
This is to the prejudice not only of
the residents themselves but to thousands of other people who have
already relocated
and who are awaiting to be provided with decent
houses in the developed areas. The residents have not challenged
the reasonableness
of the project. The policy that has been
developed by the government to address the plight of people living
in informal settlements
is reasonable both in its conception and
its implementation.
To sum up, it is true the residents have been in
occupation of the land for over 15 years. They moved onto the land
because
they had no accommodation. Their presence on the land was
tolerated because there was no alternative accommodation for them.

The government then took a decision to upgrade all informal
settlements in order to provide the residents of these settlements

with decent housing and with secure tenure. This would also
improve their living conditions and in particular, provide them

with healthy and safe living conditions. The government has
arranged temporary accommodation for them at Delft from where
some
will return to Joe Slovo after it has been developed. Those who
cannot be accommodated in Joe Slovo will be provided
with permanent
houses in Delft. In doing this, the government is fulfilling its
constitutional obligation to facilitate the
right of access to
adequate housing. It should not be obstructed in carrying out its
duties. In all these circumstances,
I consider that it is just and
equitable to relocate the residents. It now remains to consider
how relocations should be structured
for it to be in accordance
with justice and equity.
The manner in which relocation should take place
Relocation should be conducted in a manner that is
fair to the residents and that has regard to the Constitution. To
achieve
this, relocation must be individualised. Here meaningful
engagement is crucial. This in turn requires all parties to put

aside their occasional differences and focus on common ground. The
common goal is to give the government the space to fulfil
its
constitutional obligation to provide access to adequate housing for
people living in desperate circumstances and to eradicate
informal
settlements. And in the process of doing so, the government must
treat residents with dignity and respect. It must
pay attention to
concerns the residents might have and, where possible, accommodate
these concerns in a manner that is compatible
with its obligations
under the Constitution. The order that the Court makes meets these
requirements.
For these reasons, I concur in the order of the Court.
Moseneke DCJ and Sachs J concur in the judgment of
Ngcobo J.
O’REGAN J:
I have had the benefit of reading
the judgments prepared in this matter by Yacoob J, Moseneke DCJ,
Ngcobo J and Sachs J. I
do not propose to repeat the facts of the
case which are set out in full in the judgment of Yacoob J. Like
all my colleagues,
I concur in the order proposed in the judgment
of the Court.
This is a difficult case. Like earlier cases we have
heard, it is a real-life example of the challenges faced by our new
government
in seeking to undo the legacy of our apartheid and
colonial history. In this case, that legacy is sharply reflected
in the
desperate shortage of adequate housing for African people in
one of our major urban centres, Cape Town. As several of my
colleagues
have described, that shortage arose in part because of
the apartheid government’s “Coloured labour preference policy”

in terms of which African people were not afforded rights to reside
in the Western Cape; and housing was not built for them.
In considering this and similar cases, courts need on
the one hand to be aware of the enormity of the task that
government must
perform in seeking to “[i]mprove the quality of
life of all citizens”
1
and be astute not to impair government’s ability to perform this
task. On the other hand, courts must not permit government
to
treat citizens in a manner that is not consistent with human
dignity while pursuing laudable programmes. As we said in
Premier,
Mpumalanga,
there are, in cases such as this, two
constitutional imperatives:
“
The first is the need to eradicate patterns of
racial discrimination and to address the consequences of past
discrimination
which persist in our society, and the second is the
obligation of procedural fairness imposed upon the government.
Both principles
are based on fairness, the first on fairness of
goals, or substantive and remedial fairness, and the second on
fairness in
action, or procedural fairness. A characteristic of
our transition has been the common understanding that both need to
be
honoured.”
2
The difficulty lies in seeking an appropriate balance
between these two constitutional imperatives. The Western Cape
High Court
in Cape Town granted the respondents an order to evict
the applicants, and they now approach this Court to have the
eviction
order overturned. It is common cause that the respondents
seek to evict the occupiers of Joe Slovo informal settlement, the
applicants in this case, in order to use the land for its N2
Gateway Housing Project in terms of which low-cost housing will
be
built on the land where the settlement is situated. The N2 Gateway
Project is one developed in terms of national government’s

housing policy which seeks to meet government’s constitutional
obligation to take reasonable and other measures to provide

adequate housing.
3
Ngcobo J has described in careful detail the government’s
housing policy and in particular the
Breaking New Ground
policy,
of which the N2 Gateway Project is an early example, in paragraphs
203 to 208 of his judgment. It is not necessary
to repeat that
description here. I agree with him that there can be no doubt that
the goal sought to be achieved by the N2
Gateway Housing Project is
constitutionally desirable in that it seeks to provide adequate
housing to those who have none.
The applicants’ first argument is that they are not
“unlawful occupiers” within the meaning of the Prevention of
Illegal
Eviction from and Unlawful Occupation of Land Act 19 of
1998 (PIE). If they are correct in this submission, they argue
that
the eviction order should not have been granted and should be
set aside. They submit, in the alternative, that if they are

“unlawful occupiers” within the meaning of PIE, it is not just
and equitable that they should be evicted.
The applicants also argue that residents of the Joe
Slovo informal settlement have a legitimate expectation that they
will be
allocated 70% of the housing to be built on the site of Joe
Slovo. In phase 1, this expectation was not honoured by the
respondents,
and indeed the failure to do so, in large part, caused
the breakdown between the parties in this case. The applicants
rely
on statements made to the community as the basis for the
expectation that 70% of the housing to be built in the housing
development
would be allocated to occupiers of Joe Slovo.
The judgment of the Court makes plain that in order
for government to obtain an eviction order in circumstances such as
these
where the eviction is sought to enable housing to be built in
pursuance of government’s section 26(2) constitutional
obligations,
government needs to show both that the eviction is one
within the contemplation of PIE, and that in seeking the eviction
in
the manner that it does, the government is acting reasonably
within the meaning of section 26(2) of the Constitution.
4
These twin requirements ensure that the constitutional imperative
of procedural fairness is honoured, even where the conduct
of
government is in pursuance of its substantive constitutional
obligation to take reasonable steps to provide access to adequate

housing. We need to answer the question, therefore, whether
government has met both these requirements.
In this judgment, thus, I first address the question
of whether the applicants are “unlawful occupiers” within the
meaning
of PIE; I then consider whether the respondents have shown
that they have acted reasonably in seeking to evict the applicants;

I then consider the legitimate expectation argument; and finally I
consider whether it is just and equitable to issue an order
of
eviction, and the appropriate terms of that order.
Are the applicants “unlawful occupiers” within
the meaning of PIE?
PIE provides that an “unlawful occupier” is a
person who occupies land without the express or tacit consent of
the owner.
5
The land on which Joe Slovo is situated is owned by the City of
Cape Town (the City). The City is not a party to this case
and
thus is not actively seeking the eviction of the applicants. The
eviction order was sought by the three respondents in
this Court
(the national Minister for Housing, the provincial Minister for
Housing and Thubelisha Homes, a private corporation
contracted by
national and provincial government to build the houses).
Nevertheless the former Mayor of Cape Town, Ms Nomaindia
Mfeketo,
lodged a replying affidavit on behalf of the respondents.
Before reaching the question of whether the occupiers
are indeed “unlawful occupiers”, it is necessary briefly to
deal with
a preliminary issue, namely that the respondents
originally in their notice of motion sought an order in terms of
section 5
of PIE. That section provides for urgent interim orders
of eviction.
6
By the time the matter was considered by the High Court after the
exchange of lengthy affidavits, the High Court approached
the
matter on the basis that a permanent order of eviction was being
sought in terms of section 6 of PIE. In this Court the
applicants
agreed that the matter should be dealt with as a section 6 case. I
agree with Yacoob J, for the reasons he gives
at paragraphs 87 to
93 of his judgment, that this application for leave to appeal is
concerned with whether an eviction order
was properly granted in
terms of section 6. Nothing further need be said about section 5.
Section 6 of PIE provides that:
“
(1) An organ of state may
institute proceedings for the eviction of an unlawful occupier
from land which falls within its
area of jurisdiction, except
where
the unlawful occupier is a
mortgagor and the land in question is sold in a sale of execution
pursuant to a mortgage, and
the court may grant such an order if
it is just and equitable to do so, after considering all the
relevant circumstances,
and if—
(a)
the
consent of that organ of state is required for the erection of
a building or structure on that land or for the occupation
of
the land, and the unlawful occupier is occupying a building or
structure on that land without such consent having
been
obtained; or
(b)
it
is in the public interest to grant such an order.
(2) For the purposes of this section, ‘public
interest’ includes the interest of the health and safety of
those occupying
the land and the public in general.
(3) In deciding whether it is
just and equitable to grant an order for eviction, the court must
have regard to—
(a)
the
circumstances under which the unlawful occupier occupied the
land and erected the building or structure;
(b)
the
period the unlawful occupier and his or her family have resided
on the land in question; and
(c)
the
availability to the unlawful occupier of suitable alternative
accommodation or land.
(4) An organ of state contemplated in subsection (1)
may, before instituting such proceedings, give not less than 14
days’
written notice to the owner or person in charge of the
land to institute proceedings for the eviction of the unlawful
occupier.
(5) If an organ of state gives the owner or person
in charge of land notice in terms of subsection (4) to institute
proceedings
for eviction, and the owner or person in charge fails
to do so within the period stipulated in the notice, the court
may,
at the request of the organ of state, order the owner or
person in charge of the land to pay the costs of the proceedings

contemplated in subsection (1).
(6) The procedures set out in section 4 apply, with
the necessary changes, to any proceedings in terms of subsection
(1).”
On an ordinary reading of section
6, an organ of state may only evict “unlawful occupiers”.
There is no authority in PIE
to evict occupiers who are lawful. An
eviction order can only be granted if the occupiers are indeed
“unlawful occupiers”
within the meaning of PIE. The question
is thus whether the occupiers had the consent of the City to reside
at Joe Slovo at
the time that the eviction proceedings were
instituted. I agree with Yacoob J that this is a factual question
to be answered
on a consideration of all the facts.
The applicants urge in argument that it must be
inferred that they did have the City’s consent to occupy Joe
Slovo. They
base their inference on the following facts. The
occupiers have been resident on the land for many years, some as
long as
15 years. During this time, the City has never explicitly
told them that their occupation was unlawful. Moreover, since
1994,
the City has not sought to evict them and has provided them
with some services, including the supply of electricity and the

issuing of “red cards” which constituted an acknowledgement of
receipt of an application for housing. The applicants argue

further that the affidavit of Ms Mfeketo is not dispositive of the
matter because she does not state in terms that the City
did not
consent to the occupation.
The applicants also rely on the decision of
Rademeyer
and Others v Western Districts Council and Others
7
to assert that by providing the occupiers with basic services,
the City must be understood to have tacitly consented to their
occupation of the land. I would like to deal briefly with this
argument. I am not persuaded that the provision of services
by a
municipality to indigent people living in informal settlements on
land owned by the municipality should, without more,
be understood
to constitute tacit consent for the purposes of PIE or the
Extension of Security of Tenure Act 62 of 1997
– the Act in
question in
Rademeyer.
Local government has both statutory and constitutional
obligations to provide basic services to those who live within
their
municipalities. It does not follow that a municipality’s
performance of its constitutional obligations gives rise to a
factual
inference of tacit consent. It seems to me that local
government must do more to give rise to such an inference. We
should
avoid creating a factual inference of tacit consent when
basic services are provided, so as not to discourage local
governments
from meeting their constitutional and statutory
obligations to provide such services. Each case will need to be
determined
on its own facts but the provision of basic services to
those living in informal communities cannot, without more, be held

to give rise to an inference of tacit consent. The correct factual
inference from the provision of such services is that they
are
quite correctly being provided in fulfilment of constitutional and
statutory obligations. The provision of services on
its own will
thus not ordinarily rise to an inference of tacit consent.
Turning back to the question of tacit consent in this
case, there can be no doubt that the City by its conduct did at
least
from 1994 know of and tolerate the occupation of land by the
occupiers. Not only did it tolerate the occupation, but quite

properly in fulfilment of its constitutional obligations, it sought
to provide them with basic services. It went beyond this,
however.
After a devastating fire in November 2000 in which 950 informal
dwellings were burnt, the City took significant steps
during 2002
to upgrade the settlement through the establishment of a database
of residents, the creation of residential blocks
bounded by
walkways (which also acted as firebreaks), the improvement of
water, sanitation, health and cleansing services and
the provision
of electricity to dwellings. A key part of the upgrade was to
prevent occupants from erecting homes underneath
the high tension
electricity lines which had caused the fire. Prior to the upgrade,
there were only 15 water standpipes in
the settlement and only
rudimentary cleaning services. The upgrading of the settlement was
thus welcomed by the inhabitants.
In my view, the process of
upgrading that took place in 2002 went way beyond the provision of
basic services and made clear
that the City was consenting tacitly
to the occupation of Joe Slovo.
What is clear, however, is that once the N2 Gateway
Housing Project was launched in February 2005, the City intended
that the
occupiers would move from the land they occupied to enable
permanent housing to be erected there. On the applicants’ own

version, the Mayor informed the occupiers of the N2 Gateway Project
at various meetings held with the occupiers, one of which
took
place after the January 2005 fire. Thereafter, between 2005 and
the date on which the eviction application was launched,
the City,
particularly the Mayor and one of the councillors, Councillor
Gophe, held several meetings with the occupiers and
took steps to
encourage the occupiers to move to make way for the new housing
project.
Like Sachs J and Moseneke DCJ, I am willing to accept
that on these facts it can be inferred that the City had consented
tacitly
to the occupation of the land. That consent, however, was
neither permanent nor indefinite. At least from the time that the

N2 Gateway Housing Project was announced, the consent was clearly
limited: the City consented to the occupation until it would
be
necessary for the occupiers to move to make way for the new housing
project. As mentioned above, the qualified nature of
the consent
that arose once the N2 Gateway Housing Project was announced was
communicated to the occupiers on several occasions.
The next question that arises is whether in these
circumstances it was necessary, as the applicants argue, for the
City to give
reasonable notice to the occupiers of the termination
of consent. The applicants base this argument on the common-law
rules
relating to
precarium
8
and rely in particular on
Lechoana v Cloete and Others
9
for the proposition that a precarious tenancy may only be
terminated on good cause and with reasonable notice.
10
The common-law rules governing
precarium
are not
uncontested. Van den Heever JA in
Theron NO v Joynt
11
expressed doubts about the correctness of
Lechoana
to
the extent that it suggested that a precarious tenancy can only be
terminated with good cause.
12
Although the applicants rely on the requirement of
good cause, they accept in their argument that this requirement may
easily
be met. In my view, to the extent that the applicant is
correct to state that good cause needs to be shown in this case, a

matter I expressly leave open, there can be little doubt that the
purpose for which the respondents wish the occupiers to move,
which
is to make the land available for the building of low-cost housing,
would constitute good cause if such is necessary
in order to
terminate a
precarium
.
Whatever the case may be with good cause, it seems
clear, however, that it is widely accepted that a precarious
tenancy is subject
to termination on reasonable notice.
13
The applicants rely, amongst other cases, on
Adamson v Boshoff
and Others
14
in which the respondents had permitted the applicant, the owner of
a neighbouring restaurant, to make use of their toilet facilities

without charge. After a dispute arose between the parties on
another score, the respondents without any notice to the applicant,

locked the gate between the two properties and refused to permit
the applicant or his customers to use the toilet facilities.
The
question that arose is whether the respondents should have given
notice to the applicant before terminating the arrangement.
Van
Winsen JP stated that—
“
in the light of the South African case law it
can be said that the grantor withdrawing the concession to the
holder of the
precarium
must give him reasonable notice of
his decision to do so. What length of notice is reasonable must be
determined in relation
to the nature of the concession and the
circumstances of the case.”
15
In that case, it should be noted,
the parties had not stipulated any time period within which the
arrangement would continue
to operate, so the applicant had no
warning that the respondents would terminate the arrangement. The
Court held that the
respondents should have given the applicant
reasonable notice before termination.
The applicants argue on the basis of
Adamson
that the City was required to give reasonable notice to the
occupiers in this case. They assert that because the City had

permitted them to reside at Joe Slovo for a long period of time,
their permission to reside there could not be withdrawn save
after
reasonable notice had been given to them. It is clear from the
case law that the question whether reasonable notice
is required is
a matter to be determined by a consideration of all the facts of a
particular case.
In my view, the applicants’
argument that reasonable notice was required and not given here
cannot be sustained for two reasons.
First, as a matter of fact,
it is clear that whatever may have been the case before, from the
moment that the N2 Gateway Project
was publicly announced, the City
intended the occupiers of Joe Slovo to move to enable the new
housing to be built and it held
meetings with the occupiers to
inform them of this. The occupiers thus knew that their tenure was
impermanent and that once
the housing project got under way they
would have to relocate. Indeed the applicants state that thousands
of households have
already moved from Joe Slovo to Delft in
compliance with the request of the City. On these facts, then, it
is clear that the
occupiers were informed that their occupation
would end once the land was needed for the N2 Gateway Project.
Whether this
information is construed as reasonable notice of
termination of their entitlement to occupy, or whether it is seen
as the imposition
of a condition that their right to occupy will
end once the land is needed for the N2 Gateway Project, does not
matter. It
cannot be said on these facts that the City needed, in
addition, to issue some further formal notice to the occupiers of
the
termination of their occupation.
Secondly, the requirement of reasonable notice is
based on the common-law principle that an owner may evict any
person from
his or her land by simply establishing his or her
ownership. This common-law principle might lead to great injustice
were
a landowner who had consented to the precarious occupation of
his or her land by another party to be permitted to withdraw it
at
will (as had been the situation in the Roman law) with the effect
that the occupiers may be evicted immediately upon application
by
the owner. The Roman Dutch commentators thus inserted an equitable
requirement of reasonable notice in appropriate circumstances.
16
The need for an equitable principle of this sort,
however, has less purchase against the background of the equitable
framework
established by PIE and the Constitution. PIE
fundamentally reorders the ordinary common-law rules relating to
eviction.
17
In particular, it ensures that no eviction can take place in terms
of section 6 unless it is “just and equitable” for
that
eviction to take place. The constitutional imperative of
procedural fairness, therefore, is protected in PIE by making
clear
that eviction will only occur in circumstances where it is just and
equitable to make an eviction order. The interests
of occupiers
are therefore protected by this requirement. The equitable
considerations, therefore, which impelled an additional
equitable
requirement of reasonable notice in relation to some precarious
possession, have far less force given the equitable
protections
contained in PIE.
Finally in this regard, I should add that I accept
that a relevant consideration in determining whether reasonable
notice is
required under the rules of
precarium
is the fact
that the landowner is an organ of state that bears obligations to
take reasonable steps to provide access to adequate
housing. The
relationship between the landowner and the occupants, therefore, is
different to the relationship between a private
landowner and
occupiers of his or her land. The conduct of an organ of state is
constrained by a range of procedural and substantive
obligations
arising from public law that do not ordinarily constrain the
conduct of a private landowner. However, there should
ordinarily
be synchrony between the obligations of reasonable notice that may
arise at private law and the public law obligations
of procedural
fairness. Both will be based on similar equitable considerations.
I do not agree with Sachs J,
18
therefore, when he states that the common-law rules relating to
ownership are not at the “core” of the arguments in this
case.
In my view, they are important and need to be considered.
I conclude that although the occupiers had the consent
of the City to occupy the Joe Slovo informal settlement, that
consent
was not indefinite. From 2005 onwards, it was quite clear
to the occupiers that they would have to move to make way for the
Gateway N2 Housing Project. This limitation on their lawful tenure
meant that it was not necessary for the City to give formal
notice
to the occupiers. Once the project got underway, the consent of
the City was terminated, the occupiers knew that this
was so
because of the consultation that had taken place, and the occupiers
therefore constituted “unlawful occupiers” within
the meaning
of PIE.
It is unfortunate, perhaps, that PIE speaks of
“unlawful occupiers”, particularly given our painful history in
which black
South Africans were, as a result of the policies of
colonialism and apartheid, rendered unwelcome and homeless in their
own
land. To speak of people residing on state land, who have no
other homes and nowhere else to go, as “unlawful occupiers”

jars with the aspirations of our new constitutional framework. But
the fact that the drafters may have used an unfortunate
label to
describe those who are at risk of eviction should not blind us to
the real protections that PIE affords to those very
people. PIE
strikes a balance between landowners, government agencies and
homeless people and ensures that the interests of
homeless people
are seriously considered by any court asked to make an eviction
order.
Did the respondents act reasonably in seeking the
eviction of the occupiers?
The applicants did not specifically address this
question. Like the other members of this Court, however, I have no
doubt that
unless it is found that the respondents acted reasonably
in seeking the eviction, they are not entitled to an eviction
order.
In this regard, the obligations on organs of state seeking
an eviction order are more onerous than the obligations borne by
private landowners.
Before turning to the question of reasonableness
itself, it is important to observe here that the occupiers who are
before this
Court are not the only communities who have a deep
interest in the N2 Gateway Project. The applicants themselves
admit that
more than 3 000 households have already moved to Delft
from Joe Slovo at the request of the City, on the understanding
that
they will be potential beneficiaries of the development.
19
There are hundreds of backyard dwellers in Langa too who have also
been identified as potential beneficiaries of the development.
At
the media launch of the N2 Gateway Project, the respondents
estimated that 15 504 households currently living in informal

settlements and 6 141 backyard households would be housed as a
result of the development. In assessing reasonableness, we
must
take care not to overlook the interests of those people who are not
before the Court, but nevertheless who have rights
to reasonable
conduct by the respondents.
There are two important aspects to reasonableness: the
first is whether the N2 Gateway Housing Project is reasonable
within
the meaning of section 26; and the second is whether the
processes to implement the plan have been reasonable. In its
second
aspect, the requirement of reasonableness overlaps with the
requirement stipulated in PIE that an eviction may not be ordered

unless it is “just and equitable to do so”.
Little more needs to be said on the plan. The test
of reasonableness does not require us to be satisfied that it is
perfect,
or that there is no better plan. The applicants are
dismayed by the fact that the plan does not provide for
in situ
upgrading, but although
in situ
upgrading may often be
desirable, it cannot be said that in not providing for it the plan
is unreasonable. What is clear on
the record is that the density
levels of the settlement at present are not compatible with
adequate housing. In this regard,
there is also a suggestion on the
record that the plan may not be able to house as many people as it
has promised. Again,
even if this is so, it does not seem to
follow that the plan is necessarily unreasonable. I agree with
Sachs J that the details
of the plan should, by and large, be left
to government.
20
Courts should be slow to interfere in the legitimate policy
choices made by government in determining the plan.
The second aspect that arises is whether the processes
to implement the plan have been reasonable. A preliminary issue,
raised
by the applicants on the papers, is the question whether the
City should have followed the procedures set out in section 4 of

the Promotion of Administrative Justice Act 3 of 2000 (PAJA) when
it terminated its consent to the occupiers. Given that the
City is
not a party to these proceedings, the applicants accept that it
cannot be validly and fairly raised and nothing more
need be said
on this issue, save perhaps to observe that the obligations of fair
process imposed upon organs of state must
be approached with a
clear eye on the purpose for which we insist on process. That
purpose is to give affected parties an
opportunity to be heard on a
decision before it is finally made. Fair process improves the
quality of decisions and establishes
their legitimacy. However, it
should not result in unnecessary and prolix requirements that may
strangle government action.
21
The key question then is whether there has been
meaningful engagement
22
between the respondents and the applicants in relation to the
implementation of the plan. Here, the argument of the amici
was of
particular value, it seemed to me, in recognising that the
obligation to engage meaningfully imposed by section 26(2)
of the
Constitution should be understood together with the obligation to
act fairly imposed by section 33 of the Constitution,
as spelt out
in PAJA.
The particular difficulties in a case like this arise
from the fact that the initiation of the N2 Gateway Project
involves a
range of decisions at different levels of government:
the adoption of the N2 Gateway plan by provincial and possibly
national
government; the decision by the City to support the plan
and accordingly to require the occupiers to move so that the plan

can be implemented; the decision relating to alternative
accommodation to be furnished to the occupiers pending providing
them
with permanent accommodation back at Joe Slovo or elsewhere;
and the minutely detailed arrangements for the relocation.
If, as the amici appeared to suggest, each of these
decisions constitutes “administrative action” such that a fair
hearing
needed to be given to the occupiers each time, the result
would be unduly burdensome. What fairness required, at the very

least, was for the respondents to ensure that the occupiers were
aware of the N2 Gateway Project and were given some opportunity
to
comment on it; and then to the extent that the plan required them
to move, the occupiers needed to be given a reasonable
opportunity
to engage with the appropriate organ of state to ensure that the
relocation process was reasonable and fair.
The amici argued that the respondents should have held
a public inquiry as contemplated by section 4 of PAJA so as to
afford
the occupiers and other interested people an opportunity to
be heard on the broad parameters of the plan. I am not persuaded

that the amici are correct that the respondents could be compelled
to do so. The definition of “administrative action”
in PAJA
expressly excludes a decision taken, or a failure to take a
decision, in terms of section 4.
23
Moreover, I am not persuaded that the failure to hold a public
inquiry could be said to be unreasonable within the meaning
of
section 26(2). Be that as it may, this difficult issue was not one
raised on the papers and we need not decide it here.
The respondents admit candidly in their argument that
there was not a coherent or adequate process of consultation with
the
occupiers and others affected by the development of the N2
Gateway Project. The absence of such a strategy is to be deplored.

What is clear on the record, though, is that there was engagement
between the affected communities and the respondents. On
the
applicants’ own version there were several public meetings held
at the Sports Complex in Joe Slovo (and also at least
one at the
Resource Centre or IEC Hall in Joe Slovo) to discuss the N2 Gateway
Project. There were also meetings between Thubelisha
and the
committees representing the community. The applicants argue that
they had a legitimate expectation arising from this
engagement that
70% of the houses built would be allocated to members of the Joe
Slovo community. This averment itself, as
the respondents rightly
point out, indicates that there was engagement between the
applicants and the respondents. Nevertheless
it cannot be denied
that much of the heat that has been generated in this case has been
generated because the respondents did
not engage fully and
meaningfully with the applicants and the other communities who have
an interest in the housing project.
The question we have to ask in this case is whether
the failure to have a coherent and meaningful strategy of
engagement renders
the implementation of the plan unreasonable to
the extent that the respondents have failed to establish a right to
evict the
occupiers. On balance I think not. First, we cannot
ignore that this is one of the first attempts at a housing
development
in terms of the new housing policy. Given the huge
numbers of people living in inadequate or makeshift housing in Cape
Town
(and indeed many of our municipalities), and given the fact
that this is a pilot project, it is not surprising that it has not

been implemented without controversy. Secondly, it is clear that
the respondents have engaged in some consultation with the

applicants, although they admit that it has not been coherent or
comprehensive and that at times it has been misleading (for

example, in relation to the allocation of housing in phase 1).
Thirdly, a consideration that to my mind weighs
heavily in the balance is that it is not only the occupiers who are
affected
by the plan. Thousands of other households have already
co-operated with the respondents in the hope that their
co-operation
will hasten the building of the housing project and
result in their receiving permanent housing. Refusing an order of
eviction
in this case might give some temporary relief to the
applicants, but it would be against the interests of those waiting
anxiously
in Delft and in backyards in Langa for the houses to be
built. Finally, the order of eviction that is made can seek to
remedy,
at least to some extent, the failure of government to
engage meaningfully in consultation with the applicants up to this
stage.
I conclude, then, that despite the criticisms that can
legitimately be directed at the respondents in this regard, I am
not
persuaded that the conduct of the respondents in seeking to
implement the N2 Gateway Project has been unreasonable in all the

circumstances, such that the respondents are not entitled to seek
an eviction order in this case.
Legitimate expectation
The applicants argue that the eviction may not take
place because to do so would be to permit the respondents to evict
the occupiers
in breach of a legitimate expectation of the
occupiers that 70% of the housing to be built on the site of Joe
Slovo would be
allocated to current and former occupiers of Joe
Slovo. It is not clear on what legal basis the applicants assert
this, and
even if they were to establish a legitimate expectation,
on what basis this would constitute a defence to an eviction
action.
In our law, where an applicant can show that
government has acted in a manner inconsistent with the existence of
a legitimate
expectation (whether the expectation is an expectation
of a fair process or a substantive benefit) without giving the
applicant
an opportunity to be heard, the applicant may launch
review proceedings to set aside the government conduct.
24
Our courts have expressly refrained from determining the question
whether a legitimate expectation might give rise to a substantive

benefit,
25
although the English courts have developed a doctrine of
substantive legitimate expectation.
26
It is clear from the record that on several occasions
after the launch of the N2 Gateway Project, members of government
(including
the Mayor) suggested to members of the Joe Slovo
community that the housing to be built in the N2 Gateway Project
would be
built on the basis that 70% would be allocated to
residents of the community and 30% to residents of backyard
dwellings. It
is also clear that when the first phase of the N2
Gateway Project was built, this did not happen. Indeed very few
residents
of Joe Slovo took up occupation in phase 1 because, by
and large, the rentals charged were beyond their means.
Phase 2 is currently being planned. On the record
before us, a deponent on behalf of the respondents has indicated
that only
35 houses will be built in phase 2 and that they will all
be “credit-linked” housing (that is housing, generally, where

the rentals would be beyond the means of the community). This
number has been reduced. Furthermore, all the housing to be built

during phase 3 of the project is to be
BNG
housing according
to the deponent for the government. In their explanatory
memorandum lodged with the Court on 3 September
2008 after the
hearing in this matter, the respondents informed the Court that no
fewer than 1 500
Breaking New Ground
permanent houses would
be built at Joe Slovo.
As mentioned above, I am not persuaded that even were
the Court to conclude that the applicants had established a
legitimate
expectation in this case, such an expectation would give
rise to a defence against an eviction order. However, it is not
necessary
finally to decide that question, because as will appear
below, government has agreed to an order in terms of which it
undertakes
that 70% of the remaining
BNG
housing to be built
on the Joe Slovo site will be allocated to current and former
residents of the Joe Slovo informal settlement.
Given that the respondents have in their latest
memorandum indicated that no fewer than 1 500 low-cost houses will
be built
at Joe Slovo, and given the misunderstandings that have
arisen between the parties before, it is in the interests of
transparency
and fairness that the order made by the Court should
require the respondents to inform the applicants within 14 days of
this
order if the number of houses to be built at Joe Slovo will be
fewer than 1 500.
In the circumstances, it is not necessary to consider
and determine further the arguments relating to legitimate
expectation
made by the applicants.
Is it just and equitable to make an eviction order?
Section 6(3) of PIE stipulates:
“
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.”
I have concluded
above, after a careful examination of the relevant factors, that it
was reasonable for the respondents to seek
the eviction of the
applicants. That, however, is not the end of the matter. The
question remains whether it is just and
equitable to issue an
eviction order. The remaining questions that arise depend on the
terms of the eviction order to be made.
An eviction order that
does not make provision for alternative accommodation but simply
orders an eviction will be far less
likely to be just and equitable
than one which does make careful provision for alternative
accommodation.
The terms of the High Court eviction order are set out
in paragraph 13 of the judgment of Yacoob J and need not be
repeated
here. That order is relatively straightforward. It
simply identifies each block and house in the Joe Slovo informal
settlement
and establishes a date upon which the occupants of the
identified block and house should move out of Joe Slovo to
temporary
accommodation to be furnished in Delft. It does not
describe the minimum conditions of the temporary accommodation, nor
does
it expressly state that no occupier may be required to move
unless alternative accommodation is, in fact, available at Delft.

Moreover, the High Court’s order does not stipulate that there
should be any engagement between the occupiers and the respondents

relating either to the arrangements for the move or any other
matter.
In my view, the applicants are correct in stating that
it was not just and equitable for the order to be made in those
terms.
As they have been successful in this regard, the
application for leave to appeal by the applicants must be granted
and the
appeal will succeed in part.
The order made by this Court which appears in the
judgment of this Court seeks to remedy the deficiencies in the
order made
by the Western Cape High Court. As is described in
paragraphs 119 to 122 of the judgment of Yacoob J, the order is in
large
part based on the order submitted by the respondents after
the hearing. The applicants did not consent to the order, as they

persisted with their argument that the eviction order could not
stand because they are not “unlawful occupiers”, but they
did
furnish some commentary on it which the Court has taken into
consideration.
The occupiers are ordered to move to Delft over a
period of time, as set out in a timetable annexed to the order. In
terms
of that timetable, the first move will take place on 17
August 2009 and the last in June 2010. However, the order requires

the parties to engage meaningfully before 30 June 2009 in relation
to the date upon which the relocation will commence, the
identification of the families to be relocated, the dates upon
which they will be relocated, as well as on any other matter
the
parties may agree to discuss. If alternative arrangements are
agreed between the parties, they may approach the Court
on dates
stipulated in the order for their agreement to be made an order of
Court.
The order makes clear that no occupier may be required
to move unless temporary accommodation is made available for him or
her
by the respondents. To the extent, therefore, that a situation
arises during the course of the eviction process to the effect
that
there are no longer sufficient temporary residential units
available to house the occupiers who are scheduled to be moved
(an
issue that was disputed on the papers), the eviction process must
be halted until sufficient alternative accommodation
is available.
The order stipulates the quality of accommodation that
is to be made available. Although the current plan is that the
accommodation
will be provided at Delft, it need not be provided
there as long as the occupiers agree to the alternative location.
In any
event, the standard of the alternative accommodation must
comply with the terms of this Court’s order. In particular, the
accommodation must be equipped with basic services, including
tarred roads, electricity (by prepaid meter), fresh water and

reasonable provision for toilet facilities.
The applicants complain that the temporary housing to
be provided at Delft is not suitable alternative accommodation
within
the meaning of section 26(3) of the Constitution. Again
there was a dispute on the papers as to whether the Delft units
were
constructed of asbestos. The order made makes plain that the
units must be constructed of Nutec, the fire-resistant substance

the respondents have used at Delft, and may not be constructed of
asbestos. This dispute thus need not detain us further.
I have no doubt that the occupants would prefer to
stay at Joe Slovo because it is convenient and constitutes a
community where
they feel at home. This view is worthy of respect
but it is indisputable that the situation at Joe Slovo is
undesirable and
unacceptable and cannot be a long-term solution.
The alternative accommodation which must be provided to those who
must move
from Joe Slovo must meet basic standards, as stipulated
in the order. Moreover, the respondents are asked to engage
meaningfully
with the applicants concerning issues relating to
transport between Delft, and the occupiers’ places of work and
education,
as well as clinics. The solution may be far from ideal,
but in the circumstances I have not been persuaded that it is not

just or equitable.
The first respondent is ordered to assist occupiers to
move their possessions to the alternative accommodation “insofar
as
it is reasonably practicable”. Further, the respondents are
directed to engage meaningfully with the applicants prior to each

relocation to ascertain the names, details and circumstances of
those affected by the relocation; the time and manner in which
the
relocation will take place; the precise units to which each
relocated household is to be moved; the need for transport
for the
people and possessions to be moved; the provision of transport from
the temporary accommodation to schools, clinics
and place of work;
and the allocation of permanent housing in due course.
The respondents also tendered that an order be made
directing them to allocate 70% of the government subsidised homes
to be
built at the site of the Joe Slovo informal settlement to
current and former residents of the Joe Slovo settlement who apply
for and qualify for that housing. I have dealt with this issue
above. The order is duly made on the basis of the respondents’

tender. I should add however that the tender in this regard is
important, as in some measure, it meets the applicants’ complaint

that the respondents had reneged on a promise that 70% of the
housing opportunities created at Joe Slovo would be made available

to those who had occupied the Joe Slovo informal settlement. It is
true that it is not possible now to undo the unfairness
which
flowed from the respondents’ failure to honour this undertaking,
to the extent that it was made, in respect of phase
1 of the
development.
I should add that, as appears from
what I have said above, the respondents averred that all of the
housing to be built under
phases 2 and 3 of the project, bar 35
houses, would be
BNG
housing and that at least 1 500 such houses would be constructed at
Joe Slovo. The Court has made an order recording this,
and
requiring the respondents to disclose to the applicants within 14
days of this Court’s order if fewer than 1 500
BNG
houses are to be built at Joe Slovo.
Finally the order allows for the substitution of the
first respondent by another on the basis that the new development
company
undertakes the obligations imposed upon the first
respondent by the Court’s order.
It is my view that the order made by the Court is just
and equitable within the meaning of section 6(1) of PIE. For the
reasons
given in this judgment I concur in that order.
SACHS J:
Introduction
Some years back, the government embarked on an
ambitious programme to upgrade the conditions of 18 000 to 20 000
people living
in informal habitations in an area known as Joe
Slovo.
1
The settlement abutted on the N2 highway as it approached Cape
Town, and the programme, designated the N2 Gateway Project
(the
Project), was undertaken to serve as a pilot scheme for the
progressive ending of all informal settlements in the country.
In
the beginning, the members of the community embraced the project
with enthusiasm. Yet before it could get into full swing,

relations between the residents and the government broke down.
Dissatisfied with the manner in which they felt the upgrading
of
the area was being conducted, the residents marched to Parliament
to hand over a petition, and some of them later blockaded
the
highway with burning tyres. As they saw it, their dream had turned
into a nightmare. From the government’s point of
view, on the
other hand, a project filled with high hopes and involving
considerable investment was facing collapse. The government

approached the Western Cape High Court, Cape Town,
2
seeking an order to compel the residents to leave the area so that
permanent houses could be built in Joe Slovo to enable
insubstantial and fire-prone shelters to be replaced with adequate
housing.
There were three applicants. The first was
Thubelisha
Homes, a company established by the government to undertake various
of its housing functions, and which had been
required to see the
Project through.
3
The second was the national Minister for Housing
4
and the third was the MEC for Local Government and Housing, Western
Cape.
5
The respondents were referred to as Various Occupants.
6
The
Community Law Centre and the Centre
on Housing Rights and Evictions were jointly admitted as amici
curiae.
7
The High Court upheld the application, noting that
temporary alternative accommodation was being provided for the
residents
about 15 kms away in an area called Delft. The residents
have now applied directly to this Court for leave to appeal against

this decision. As the judgment of the Court indicates, all the
members of the Court who heard the matter are agreed on the
outcome
and the order to be made. There are differences, however, in
relation to certain aspects of the reasoning. In particular
there
is disagreement on the question of whether the occupation of the
land was ever lawful.
Thus, after elegantly
setting out the facts of the case in a manner that managed to be
both comprehensive and synoptic, Yacoob
J comes to the conclusion
that the residents had never at any stage been in lawful
occupation.
Moseneke DCJ, Ngcobo J,
O’Regan J and I come to a different conclusion. In our view the
community lawfully occupied the land
with the knowledge,
acquiescence and support of the Council, but on the understanding
that their occupation would be of a temporary
nature pending the
provision by the state of adequate housing. The differences do not
affect the outcome because we all accept
that the occupation was
unlawful when eviction proceedings commenced. Nevertheless,
important jurisprudential issues are raised
that affect the status,
and in my view, the dignity, of a vast number of people
throughout
the country living in informal settlements.
8
My reasons follow.
9
Preliminary observations
I start with two preliminary and inter-linked
observations. The first concerns the general manner in which I
believe courts
are called upon to approach a case like this. The
second deals with how this particular matter should be located
within the
trajectory of this Court’s evolving jurisprudence on
the constitutional right of access to adequate housing.
This is not a matter in which formal legal logic alone
can solve the conundrum of how to do justice to the one side
without
imposing a measure of injustice on the other. Thus, in the
present matter, if the application for leave to appeal is upheld
and the appeal succeeds, the Project goes back to square one, time
is lost, costs escalate and people who have already moved
to
temporary accommodation are left in limbo. If, on the other hand,
the eviction order of the High Court is upheld, then
desperately
poor families, whose lives have been spent in systematised
insecurity on the fringes of organised society, would
feel that
they are being further marginalised. Once more they must pick up
their belongings and move, this time to a distant
place without
firm guarantees of being able to return.
It is necessary, then, not to seek an unattainable
solution that is “correct”, but to aim for an outcome that, in
keeping
with the objectives and spirit of the Constitution and
relevant statutory provisions, seeks to reconcile the competing
considerations
and to minimise as far as is reasonably possible any
resultant injustice or disadvantage to either party.
10
The fact is that in a constitutionally-based,
pluralistic society such as ours, the court’s function will often
move from
simply determining the frontiers between “right” and
“wrong”, to holding the ring between “right” and “right”.

In many circumstances, instead of seeking to find a totally
“right” or “correct” solution, the judiciary will be
obliged to accept the intellectually more modest role of managing
tensions between competing legitimate claims, in as balanced,
fair
and principled a manner as possible.
Moreover, in seeking to reconcile the competing
interests the courts must give due weight to the overlap between
the substantive
and the procedural dimensions of the matter. As
this Court said in
Port Elizabeth Municipality
in eviction
proceedings against the homeless
11
and the landless:
“
The court is thus called upon to go beyond its
normal functions, and to engage in active judicial management
according to equitable
principles of an ongoing, stressful and
law-governed social process. This has major implications for the
manner in which it
must deal with the issues before it, how it
should approach the question of evidence, the procedures it may
adopt, the way
in which it exercises its powers and the orders it
might make.”
12
(Footnote omitted.)
The second preliminary observation is that it is
necessary to locate this case within the jurisprudence developed by
this Court
on the
enforcement of housing rights
and responsibilities under section 26 of
the Constitution. This section states
that:
“
(1) Everyone has the right to have access to
adequate housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) No one maybe 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.”
The
foundations of how this provision should be interpreted and applied
were laid in the landmark decision of
Grootboom
.
13
That matter dealt with the claims of about a thousand people who,
after being evicted and having their shelters destroyed,
found
themselves on a dusty sports field with no shelter whatsoever and
no land on which to erect new shelters. The judgment
focused on
the responsibility of government to take reasonable steps, within
its available resources, progressively to realise
the right of
access to adequate housing. The emphasis on the reasonableness of
the government’s programme, both in its conception
and in its
implementation,
14
has provided the bedrock of this Court’s jurisprudence on the
enforcement of social and economic rights. In my view, it
should
constitute the analytical basis for dealing with the present
matter.
In
Port
Elizabeth Municipality
, a local
authority acting at the behest of private landowners brought
proceedings under the Prevention of Illegal Eviction
from and
Unlawful Occupation of Land Act
15
(PIE) to evict 68 people, including 23 children living in shelters
on the landowners’ property.
16
The problem was to reconcile the legitimate rights of the
landowners not to be arbitrarily deprived of their property,
17
with the equally legitimate rights of everyone to have access to
adequate housing.
18
The Court emphasised the new responsibilities of the judiciary
when managing a
process made particularly
stressful by historically-created and racially-based distortions in
relation to access to land. It
went on to hold that ordinarily an
eviction order would not be just and equitable if an attempt at
mediation between the parties
had not been made. The judgment
accordingly highlighted the overlap between substance and procedure
in achieving as just and
equitable an outcome as possible.
Olivia Road
19
took the interconnectedness of
procedure and substance a step forward. In that case the
municipality was acting in response
to a request by developers to
secure vacant possession of certain properties. The properties
were over-crowded, unhygienic
and unsafe apartment blocks in or
near central Johannesburg, and the owners wished to have the
buildings cleared for development
purposes. Holding that the
provisions of PIE were applicable, this Court introduced the
concept of “meaningful engagement”
between the occupiers and
the City as a major pre-condition for determining whether an
eviction order would be just and equitable.
In
this way the conundrum of how to balance competing claims is partly
resolved by getting the parties themselves to find functional

solutions according to
their respective
needs and interests, with the court establishing the parameters of
what is just and equitable.
The present
matter involves an application by organs of government to secure an
eviction in terms of PIE. This Court’s jurisprudence,
as
referred to above, requires that certain fundamental principles
must govern the manner in which applications for
eviction
orders should be approached. The first is to apply the
over-arching principle that the governmental conduct be reasonable.

The second is to give due weight to the obligation on the parties
to engage as far as possible with each other. Within this
matrix,
the present case adds three distinctive elements. In the first
place, the governmental authorities are not acting
on behalf of
private landowners seeking vacant possession of land they own or
are about to acquire. The authorities are acting
on their own
behalf as owners of the land, and are attempting to secure
governmental and not private interests. Secondly,
the community is
a relatively settled one, numbering between ten and twenty thousand
people who over a period of 15 years have
settled on the land, with
the Cape Town City Council’s knowledge, and, they aver, with its
consent. Thirdly, the eviction
is being sought not with a view to
securing vacant possession to enable the owners to do with the land
what they please,
20
nor to open the way to private entrepreneurial activity.
21
On the contrary, the objective is to secure the improvement of the
housing conditions of most, if not all, of the occupiers

themselves, and not to have them permanently expelled.
With these observations in mind I turn to a question
which dominated much of the argument at the hearing, namely,
whether the
residents of Joe Slovo were “unlawful occupiers” of
the Council’s land and therefore liable to eviction in terms of
PIE.
Lawfulness of the occupation
The foundation of the debate on the lawfulness of
occupation lay in the definition of “unlawful occupier” in PIE.
Section
1 provides that “unlawful occupier” means “a person
who occupies land without the express or tacit consent of the owner

or person in charge, or without any other right in law to occupy
such land.”
22
A large part of this case was accordingly taken up with the
question of whether the Council had given tacit consent to the

residents to live in the area, thereby rendering the occupation
lawful. The Council contended that it had never given consent
to
the residents to live in the area. As far as its furnishing of
electricity and water to the residents was concerned, the
Council
claimed that nothing more was involved than rendering humanitarian
assistance. Yacoob J agrees. I see the matter
differently.
Relying essentially on common law
principles relating to land rights, Yacoob J sets out in some
detail the factual and jurisprudential
basis for his conclusion
that the residents of Joe Slovo were never lawful occupiers. In
his view, the fact that the Council
provided water and electricity
represented no more than the furnishing of humanitarian assistance
in keeping with its civic
responsibilities, and fell far short of
proving consent to occupation.
In my opinion, the question of the lawfulness of the
occupation of council land by homeless families must be located not
in
the framework of the common law rights of landowners, but in the
context of the special cluster of legal relationships between
the
council and the occupants established by the Constitution and the
Housing Act.
23
The
common law might have a role to play as an element of these
relationships, but would not be at their core. The very manner in

which these relationships are established and extinguished will be
different from the manner in which these relationships might
be
created by the common law, for example, through contract,
succession or prescription. They flow instead from an articulation

of public responsibilities in relation to the achievement of
guaranteed social and economic rights.
24
Furthermore, unlike legal relationships between owners and
occupiers established by the common law, the relationships between

a local authority and homeless people on its land will have
multiple dimensions, involve clusters of reciprocal rights and

duties and possess an ongoing, organic and dynamic character that
evolves over time. As this Court said in
Port Elizabeth
Municipality
, quoting
FNB
:
25
“
When considering the purpose and content of the
property clause it is necessary, as
Van der Walt
(1997) puts
it,
‘
. . . to move away from a static, typically
private-law conceptualist view of the Constitution as a guarantee
of the
status quo
to a dynamic, typically public-law view
of the Constitution as an instrument for social change and
transformation under
the auspices [and I would add ‘and
control’] of entrenched constitutional values’.”
The Court went on to observe that the
transformative public law view of the Constitution referred to by
Van der Walt was further
underlined by section 26.
A transformative view of section
26 makes it clear that in the present matter the Council was not
just another landowner entitled
to do what it pleased with the
land, subject only to normal regulatory controls and, in relation
to eviction, to the provisions
of PIE. On the contrary, the
Council was a landowner of a special type, obliged to use the land
for purposes designated by
the Constitution and the
Housing Act.
It
owed a duty to the homeless who could not be treated simply as
strangers waiting at the gate for charitable assistance. They
had
rights to adequate housing, and the state was obliged to take
reasonable measures to enable them to realise these rights.
It
follows that in dealing with the rights of the homeless within its
boundaries, the Council was called upon to act in a
manner that in
constitutional terms would be regarded as reasonable.
The right to adequate housing
The Constitution requires us to view the provisions of
section 26 as constituting a comprehensive set of entitlements and
obligations
which govern the conduct of the Council right from the
very beginning of its relationship with the residents. It is
necessary,
then, to anchor the analysis in an understanding of the
affirmative housing rights granted to the homeless by section 26(1)

and 26(2). Both chronologically and conceptually the defensive
rights concerning eviction contained in section 26(3), and given

statutory form by PIE, enter the picture not as the point of
departure for the analysis, but as its end-point. The consequence

is that the question of the lawfulness of the occupation of the
land must be located within the complex, ongoing, mutable and

two-way relationship established essentially by public law between
the Council and the residents.
There is no reason, of course,
that the Council as owner of the land in question should not have
the same rights as any other
owner.
26
Yet any rights the Council possessed had to be
asserted within the framework of the Constitution and the
restrictions of relevant
legislation.
27
More specifically, the government had to function in a
manner compatible with duties prescribed for it by section 26 of
the
Constitution, and the
Housing Act. Any
inferences to be drawn
from the conduct of the Council should accordingly be based on the
assumption that at all times it was
aware of, and seeking to comply
with, its constitutional and statutory obligations to the
community.
Our Constitution is far from silent on how
municipalities may use their land. It does not assume that we live
in the best of
all possible worlds in which all have equal
opportunities to improve their lot. On the contrary, the
Constitution acknowledges
that we still inhabit a deeply-divided
society that is heavily marked by the systemic inequalities of the
past, and requires
active forms of redress.
28
Thus, the Constitution does not, as some constitutions do,
simply prescribe limits on the way government exercises its
authority.
It imposes duties on government to play a proactive
role in bringing about social transformation and facilitating
enjoyment
of human rights by all.
29
The Constitution deals expressly with the duties of
councils towards the disadvantaged sections of our society. It
states that
the objects of local government include ensuring “the
provision of services to communities in a sustainable manner”
30
and “promot[ing] social and economic development”,
31
and that a municipality must “structure and manage its
administration and budgeting and planning processes to give
priority
to the basic needs of the community, and to promote the
social and economic development of the community”.
32
The Constitution is even more specific in relation to
housing. As set out above, section 26 provides that “[e]veryone
has
the right to have access to adequate housing”; “[t]he state
must take reasonable legislative and other measures, within its

available resources, to achieve the progressive realisation of this
right”; and “[n]o one may be evicted from their home
. . .
without an order of court made after considering all the relevant
circumstances”.
The
Housing Act, enacted
pursuant to
section 26
, takes
the responsibilities of the Council several steps forward. It lays
down in great detail the approach the state must
adopt when dealing
with the claims of the homeless. Thus,
section 2(1)
requires all
spheres of government to “give priority to the needs of the poor
in respect of housing development”.
33
Municipalities are then given the following specific functions:
“
Every municipality must, as part of the
municipality’s process of integrated development planning, take
all reasonable and
necessary steps within the framework of national
and provincial housing legislation and policy to—
(a)
ensure that—
(i) the inhabitants of its area of jurisdiction
have access to adequate housing on a progressive basis;
(ii) conditions not conducive to the health and
safety of
the inhabitants of its area of
jurisdiction are prevented or removed;
(iii) services in respect of water, sanitation,
electricity, roads, stormwater drainage and transport are
provided
in a manner which is economically efficient;
(b)
set housing delivery
goals in respect of its area of jurisdiction;
(c)
identify
and designate land for housing development;
(d)
create and maintain
a public environment conducive to housing development which is
financially and socially viable;
(e)
promote the
resolution of conflicts arising in the housing development
process;
(f)
initiate, plan,
co-ordinate, facilitate, promote and enable appropriate housing
development in its area of jurisdiction”.
34
In my view it is against this constitutional and
statutory background, and not according to the precepts of private
law, that
the lawfulness of the occupation by the Joe Slovo
community of public land must be determined.
As Yacoob J aptly put it in
Olivia Road
, every
homeless person is in need of housing and this means that every
step taken in relation to a homeless person must be
reasonable.
35
This observation followed on what he had said in
Grootboom
about the duties of all levels of government in the light of all
the provisions of 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.”
36
He went on to state that the
Constitution would be worth infinitely less than its paper if the
reasonableness of state action
concerned with housing was determined
without regard to the fundamental constitutional value of human
dignity, adding that:
“
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. This is
the backdrop against which the conduct of the [Council] towards the
[occupiers]
must be seen.”
37
These are the injunctions that,
in the light of the Constitution, this Court has established and
which, I believe, should govern
the processes under investigation
in the present matter. “Every step at every level” does not
start with eviction proceedings.
It begins with the initial
tolerance of settlement on the land, proceeds to the devising of
the Project, follows with the
programme of actual implementation,
and only concludes with the ultimate decision to institute eviction
proceedings. The question
to be asked in relation to each of these
steps is: does the conduct of the Council measure up to the test of
reasonableness
as required by the Constitution?
The first step taken by the Council in relation to its
obligations to promote the right of the homeless to have access to
adequate
housing was to enable homeless families to occupy vacant
land which it owned at the side of the N2 highway. To have refused
the families the right to erect their temporary shelters on that
land would have been manifestly unreasonable. For people in

desperate quest of some place on earth to lay their heads, the
erection of rudimentary structures on land from which they would

not be expelled represented more than just establishing a shelter
from the elements. Their simple habitations on council land
gave
them a zone of personal intimacy and family security, and
established relatively inviolable spaces of privacy and
tranquillity
in a turbulent and hostile world.
38
Moreover, individuals who would otherwise have lived in insecure
isolation became part of a community, with all the social

interaction and organised facilities that living within a settled
neighbourhood provides. They escaped the status of pariahs
who had
been historically converted by colonial domination and racist laws
into eternal wanderers in the land of their birth.
39
Thus, in allowing the families to find a place of rest
and a fixed spot from which to conduct their lives, the Council was
making
a crucial intervention of double significance: it was
responding to the immediate human needs of homeless families, and
it
was establishing a relatively secure staging-point for the later
development of programmes for the ultimate access of these families

to adequate housing. In keeping with these objectives, and unlike
its predecessors who had taken sporadic steps to drive homeless

people off parts of the land now known as Joe Slovo, the new
democratically elected Council did not seek to expel the residents.

As far as I am aware, the record does not indicate any past
attempt to wall off the area or evict the families. On the

contrary, in the period 1994 to 2006 the Council not only offered
no opposition to the establishment of a burgeoning community,
it
laid on access to potable water and installed a dense overhead grid
of electrification cables for the benefit of the residents.
In
doing this, it was not acting as a non-governmental organisation
providing forms of emergency relief or charitable assistance
for
people in desperate need. It was functioning as government itself,
fulfilling its specific constitutional and statutory

responsibilities in the sphere of local government.
Had this case been brought by private landowners it
might have been possible to contend that the evidence fell short of
showing
anything more than conduct of a good Samaritan animated by
a spirit of good-neighbourliness. Yet even in relation to a
private
landowner, I believe that the prolonged character of the
occupation, coupled with the creation of infrastructure to provide

water and electricity, would have indicated to any objective
observer that there was actual consent to the occupation. This
was
simply not a case of illicit, surreptitious or defiant adverse user
against the will of the Council. Nor was the Council
a mere
passive bystander either uninterested or condemned to put up with a
situation over which it had little control. On
the contrary, the
Council accepted the presence of the residents on the land,
negotiated with community leaders over the provision
of services
and made the land available for being upgraded by other organs of
state. The occupation could not be consensual
and non-consensual
at the same time; the consent was there, and the occupation was
lawful.
This was the approach adopted, rightly in my view, in
Rademeyer
.
40
In that matter
the High Court had to decide whether
homeless families residing on municipal land could be classified as
unlawful occupiers
liable to eviction at the behest of more
affluent private neighbours who regarded them as a nuisance. The
Court held that
the families were occupying the municipality’s
property with the knowledge and acquiescence of the Council. It
went on to
state that the conduct of the municipality in permitting
the occupiers to remain on its property and in resolving to provide
them with water and sanitation constituted at the very least tacit
consent to the occupiers to reside on the property.
I believe that the conduct of the Council in this case
constituted at the very least tacit consent for the residents of
Joe
Slovo to stay there. Indeed, I would go further. The only
inference that can reasonably be drawn from all the objective
circumstances
is that the Council actually consented to the
occupation. It follows that from 1994 to 2006 the residents were
lawful occupiers.
In this respect, I fully agree with the eloquent
judgments of Moseneke DCJ and Ngcobo J.
Conditional nature of the occupation
The consent given to homeless people to remain on the
Council’s property was, however, neither unqualified nor
irrevocable.
Built into it and foundational to its existence, was
an acknowledgement of its temporary character. The very purpose of
permitting
the informal settlement to burgeon in that area was to
establish a point of stability which could pave the way for the
next
step in a programme of realisation of the right of access to
adequate housing. The right to enjoy relatively undisturbed
occupancy
of the Joe Slovo area, then, was conditional on the land
not being needed for other legitimate council purposes, such as
future
development of formal housing. It was neither a real right
as understood by common law principles of land law, nor a
contractual
right as created in terms of the common law. Rather it
was an authorisation specific to its context, granted in terms of
public
law considerations enabling the residents to reside lawfully
on the land for an indeterminate but terminable period. In this

respect, the Council was not purporting simultaneously to permit
and disallow occupation. It was permitting occupation, subject

always to built-in conditions which could bring the permission to
an end.
In this context, the fear expressed in argument that
the authorities would be reluctant to provide any form of
assistance to
residents of land if this were to be seen as giving
the residents permanent rights to stay on the land would be
misplaced.
The right to occupy the land will be dependent on the
purpose for which, and the conditions under which, the occupation
has
been permitted. Thus, in the present matter occupation was
permitted subject to the land one day being upgraded, and to
reasonable
measures being used to deal with the adverse
consequences for the residents of the transformative process
involved. Thus,
while I fully accept Yacoob J’s observation that
occupation cannot be both lawful and unlawful at the same time,
41
I see no reason why occupation that is lawful at one moment cannot
at a later stage become unlawful.
The fact that no rent
was paid to the Council is entirely consistent with the special
legal regime that operated between the
Council and the residents.
The Council was fulfilling its responsibilities to enable
desperately poor people to occupy land
which the Council owned,
pending eventual access on a subsidised basis to formal housing.
Then, once the formal housing had
been established, a new legal
relationship based on individualised contracts for those gaining
access could be created. It
was logical that the interim
relationship between the Council and the residents during the
period when formal housing opportunities
were still being created
would have to be governed by these considerations. And the fact
that older residents expected tribute
from newer arrivals had no
bearing on the general consent of the Council, which was for the
homeless families to take up abode
on the land, to enjoy a certain
degree of communal self-management, and to sort out allocations
themselves.
To sum up: the Council first
informally demarcated areas where the
landless and the homeless could erect their shelters while they
awaited formal housing.
It then went a step further – it
provided electricity and water, and a degree of waste collection,
and entered into ongoing
relationships with leaders of the new
communities being established. This could not be characterised
simply as the provision
of humanitarian assistance to those in
need. The term “humanitarian assistance” lends itself more to
the granting of ad
hoc support for occasional victims of war,
persecution, or natural disasters, than to the fulfilment of
constitutional and
statutory obligations to furnish succour and
redress to the long-standing casualties of
history.
What the Council was doing was providing focused civic action to
help people achieve their constitutional right to
enjoy dignified
habitation. At the same time, however, the entitlement of the
homeless to be in continuing occupation of the
land was conditional
on and subject to the exigencies of any reasonable programme for
formal housing to be developed on that
land.
Reasonableness of the upgrading
programme
As I have mentioned, the nature of
the relationship between the Council and the
residents
was on going and dynamic. The next step in the process of
fulfilling the Council’s responsibilities towards the
homeless
was to devise a programme for upgrading the area. The objective
was to transform a sector of informal housing with
minimal
amenities, into a sustainable community graced with adequate formal
housing. The fact is that the shelters erected
by the homeless
suffered from great
material
inadequacies. They were highly susceptible to devastating fires,
and access for fire engines (and ambulances) was
difficult. The
need for radical improvement in housing conditions for all the
residents, and especially for the children whose
developmental
horizons were being severely restricted by the harshness of the
circumstances in which they were growing up,
was self-evident. The
question was how this should be done, and what should happen to the
residents while it was being done.
In September 2004 Cabinet approved
the “Breaking New Ground” National Housing Policy (
BNG
)
with the express intention of eliminating informal settlements
throughout the country. The document
projected a forceful and optimistic vision for the progressive
eradication of informal
settlements:
informal settlements
were urgently to be integrated into the broader urban fabric to
overcome spatial, social and economic exclusion.
The Department
would introduce a new informal settlement upgrading instrument to
support the focused eradication of informal
settlements. The new
human settlements plan would adopt a phased in situ upgrading
approach to informal settlements, in line
with international best
practice. The plan would support the eradication of informal
settlements through in situ upgrading
in desired locations, coupled
with the relocation of households where such development was not
possible or desirable. Upgrading
policies would be implemented by
municipalities and would commence with nine pilot projects, one in
each province, building
up to full implementation status by 2007/8.
The document added that a joint programme by the National Housing
Department,
Western Cape Provincial Government and Cape
Metropolitan Council, had already initiated the N2 upgrading from
the Cape Town
International Airport to Cape Town, as a lead pilot
project. Thereafter a further eight projects were to be
identified.
I have already held that the
initial occupation of the area by the residents occurred with the
permission of the responsible
authorities, and was accordingly
lawful. At the same time, however, the consent given was based on
the understanding that
the accommodation in self-constructed
shelters would be of a temporary nature, and that residence in the
area was to be seen
as constituting a holding operation pending
access to formal housing. Implicit in this was the fact that the
Council would
be entitled to undertake
reasonable measures to progressively realise the promise of access
to adequate formal housing. In
this regard, the Council would be
able to employ a wide range of strategies, subject only to the
requirement that they fell
within the range of options that were
reasonable.
42
A court considering
reasonableness will not enquire whether other more desirable or
favourable measures could have been adopted,
or whether public
money could have been better spent. The question would be whether
the measures that have been adopted are
reasonable. It is
necessary to recognise that a wide range of possible measures could
be adopted by the state to meet its
obligations. Many of these
would meet the requirement of reasonableness. Once it is shown
that the measure adopted falls
within the range of reasonableness,
this requirement is met.
43
On the papers, it cannot be said
that the Project as originally conceived did not fall within this
range. It might well be
that other methods could have been used to
secure the same objectives. In particular
,
BNG
puts
considerable emphasis on in situ upgrading, which minimises the
amount of time people are away from their homes and encourages
them
to stay at or near the sites as they are being improved. This
choice, however, was one which appropriately lay with the

governmental authorities and their agents. The only limitation on
the exercise of the discretion of the responsible authorities
was
that it should fall within the range of reasonable alternatives.
Indeed, at its commencement and in the early months of
its
existence, the
programme was
enthusiastically welcomed by the Joe Slovo residents themselves.
As a result, many of the occupiers voluntarily
relocated to Delft.
The programme was accordingly not suddenly sprung on the occupiers.
Nor were they unaware that the upgrading
programme would require
them to relocate.
Accordingly, I
hold
that the programme constituted a
reasonable measure undertaken with the view to fulfilling the
governmental authorities’
responsibilities to enable the
residents to have access to adequate housing.
Reasonableness of implementation
The formulation of a programme, however, represents
only the first step in meeting the state’s obligations. The
programme
must also be reasonable in its implementation. An
otherwise reasonable programme that is not implemented reasonably
will not
constitute compliance with the state’s obligations.
44
The main disputes that arose between the parties in fact stemmed
from disagreement over the manner in which the Project was
being
implemented.
Many of the facts surrounding the
implementation
of
BNG
and the development of the Project are contested. The following
facts, however, are common cause:
In January 2005 a devastating
fire struck the Joe Slovo area and destroyed the homes of 996
families. The fire victims were
informed that they could not
rebuild their homes, but would be catered for in terms of the
Project.
The public launch of the Project
took place a month later. Joe Slovo was
amongst
the areas alongside the N2 that the Project covered. The state’s
overall objective was to provide a total of approximately
22 000
housing opportunities for beneficiary communities adjacent to the
highway. It was targeted at the poorest people, with
a view to
engineering modes of urban development and informal settlement
upgrading.
In its early stages the Joe Slovo community and its
leaders enthusiastically embraced the Project.
The building of flats began at the Cape Town end of
the settlement in what later came to be known as phase 1 of the
Project.
The area was again struck by a devastating fire in the
early part of 2006, and most of the victims were transported 15 kms
away
to the suburb of Delft, where temporary accommodation was
provided.
In February 2006 Thubelisha Homes,
the company established by the
government
to undertake its various housing functions, became involved in the
Project. I will refer collect
ively to
Thubelisha Homes, the national Minister for Housing and the MEC for
Local Government and Housing, Western Cape as “the
governmental
authorities”.
45
The authorities strongly encouraged the residents of Joe Slovo to
move and a considerable number voluntarily relocated to
temporary
relocation areas in Delft.
It is also agreed by all the parties that by the
second half of 2006 the initial widespread enthusiasm of the
residents for
the Project had given way to disenchantment and a
breakdown of cooperation between the residents and the authorities.
Though
the causes of and responsibility for the rupture are
disputed, it is clear from the record that a strong precipitating
factor
was the announcement that instead of rentals in the flats
being set to range from R150 per month for single units to R300 per

month for double units, they would be R600 per month for single
units and R1 050 per month for double units.
The papers
suggest two reasons for this increase. The one is that the
building costs had been higher than anticipated. The
other is that
BNG
expressly sought to support the functioning of “a single
residential property market to reduce duality within the [housing

sector] by breaking the barriers between the first economy
residential property boom and the second economy slump”.
46
The result was that
eminently reasonable
objectives of the authorities at the macro level, appeared to come
into conflict with what the residents
had taken to be eminently
reasonable and very specific commitments in their favour at the
micro level.
47
The residents had envisaged that
they would enjoy a right to return to upgraded versions of single
dwellings on single plots.
BNG
,
on the other hand, sought to avoid a perpetuation of the division
of the city into areas of what are commonly known as “RDP
houses”
outside of the residential property market, and better-appointed
homes supported by mortgages and located within
the residential
property market. It accordingly emphasised that t
he
upgrading process should not be prescriptive, but rather support a
range of tenure options and housing typologies. Where
informal
settlements were to be upgraded on well-located land,
48
mechanisms were to be introduced to optimise the locational value,
and preference would generally be given to medium-density
social
housing solutions.
This clash of perspectives and expectations appeared
to be the genesis of what turned out to be a major bone of
contention between
the parties, namely, the decision by
the
authorities to promote access to a substantial number of bonded
homes in Joe Slovo for families earning more than R3 500
per month.
The residents claimed that less than 20% of the Joe Slovo
households fell into that category, and that the scheme
would
shatter the expectation of the majority of the residents of being
able to return to homes that would be more modest but
more
affordable.
A further cause for discontent was
a decision by the authorities to allocate 30% of homes in the Joe
Slovo area to “backyard
dwellers” in the nearby Langa township.
There were also strong complaints about
the manner in which decisions were being communicated (or not
communicated) to the residents.
Above all, the residents were
extremely disconcerted by what they saw as the transformation of a
firm undertaking that all,
or nearly all, of the residents who went
into temporary accommodation in Delft, would be able to return to
formal accommodation
in Joe Slovo, into a more diffuse and
open-ended commitment to apply “objective criteria” that would
merely take their
claims into account.
As a result of their
dissatisfaction, in August 2006 the residents marched to Parliament
and handed over a petition containing
a list of their grievances to
a representative of the Minister for Housing. The residents also
established a Task Team to
represent them, but in the end the
attempts to find commonly-acceptable solutions failed. In August
2007 there was a further
march to Parliament, and this time the
protestors handed a memorandum directly to the Minister.
Dissatisfied with what they
regarded as a lack of response, on 10
September 2007 a number of residents blocked the N2 highway and
burnt tyres to prevent
traffic from coming through.
Nine days later the authorities launched proceedings
in the Western Cape High Court, Cape Town, seeking eviction of the
residents
of Joe Slovo. They claimed that the residents were in
unlawful occupation and by refusing to move were impeding the
realisation
of a housing project designed to extend formal housing
to thousands of homeless families, many of them included.
The unfortunate breakdown in what
had once been an enthusiastic partnership, had now culminated in
eviction proceedings. The
result was the collapse of one of the
key elements of
BNG
,
which was to accomplish a shift “towards a reinvigorated contract
with the people and partner organisations for the achievement
of
sustainable human settlements.” There can be no doubt that there
were major failures of communication on the part of
the
authorities. The evidence suggests the frequent employment of a
top-down approach where the purpose of reporting back
to the
community was seen as being to pass on information about decisions
already taken rather than to involve the residents
as partners in
the process of decision-making itself.
49
As this Court has made clear, meaningful engagement between the
authorities
and those who may become
homeless as a result of government activity, is vital to the
reasonableness of the government activity.
50
Yet despite
these inadequacies in the modes of consultation, it cannot be said
that no meaningful engagement at all took place.
If anything,
there was a surplus rather than a deficit of acts of engagement.
There were simply too many rather than too
few protagonists on the
side of the authorities. At different stages the occupants had to
engage with national and then with
provincial and finally with
local entities. To complicate matters even further, Thubelisha,
which had been created at national
level
to function at provincial and local levels, became forcefully
involved as a protagonist. The difficulty of establishing
an
authoritative counterpart was aggravated by what appears to have
been an incompatibility of objectives in relation to whether,
and
the extent to which, bonded housing for the somewhat better-off
should be made available at Joe Slovo. The residents saw
this as
drastically cutting down on the accommodation to be made available
to the great majority of the families, namely those
whose incomes
were below R3 500 per month.
In testing the reasonableness of
the implementation, the failure to maintain dependable and
meaningful lines of communication
would, however, not be the only
factor to be considered. Extensive negotiations had in fact taken
place over a long period
of time. The inadequacies of the
engagement towards the end appear to have been serious, but would
not necessarily have been
fatal to the whole process. What
mattered was the overall adequacy of the scheme as it unfolded.
Evaluation of the details
of the scheme as it worked out in
practice has to take account, amongst other things, of the benefits
that the programme would
bestow; the degree of disruption to the
lives of the residents; the kind of alternative accommodation made
available during
temporary relocation; the opportunities that would
exist for at least a substantial number of the residents ultimately
to achieve
access to adequate housing in the Joe Slovo area; the
kind of accommodation that would await those who would not be able
to
return; the criteria that would be used for deciding who would
be able to return and who not; and finally, the need to make fair

provision for any other homeless people in the vicinity who might
also be desperate for access to adequate housing.
In essence, these are largely
operational matters in relation to which the state should
ordinarily have a large discretion.
Courts would not normally
intervene to decide how well or badly programmes are being
managed.
51
In terms of examining the reasonableness of the implementation,
courts will be particularly cautious about allowing the best
to
become the enemy of the good. In the present matter, if errors
were made by the governmental authorities, they were of
the kind
that could crop up in any project and were committed with a view to
pursuing legitimate civic and national objectives.
In my view, the
means used were not so disproportionately out of kilter with the
goals of the meritorious Project as to require
a court to declare
them to be beyond the pale of reasonableness.
It is also important to bear in
mind that a back-stop existed to prevent any defects there might be
in implementation from leading
to unjust and irreversible
consequences for the r
esidents. This
safety net was provided by section 26(3) of the Constitution, and
PIE. Ultimately, no resident could be compelled
to leave Joe Slovo
except in terms of a court order, which could only be granted after
the court had taken account of all the
circumstances and decided
that it would be just and equitable for an eviction to take place.
In considering
the reasonableness of the implementation scheme, all the different
aspects have
to be considered in
conjunction. Was the overall implementation conducted in a
reasonable manner? In particular, were the
deficiencies in the
process of such a degree as to vitiate the reasonableness of the
whole Project?
There may well have been serious faults in the mode of
engaging with the residents. Indeed unilateral decision-making on
important
questions concerning who would in fact be able to return
to the newly-built homes, appears to have caused a great deal of
uncertainty.
Yet, manifestly meritorious plans were well on track.
Temporary accommodation was being provided in Delft. In one way
or
another, all of those who were entitled to a subsidy would end
up with a home. The delay would not be too great. Relocation
by
its very nature presupposed a measure of inconvenience. The
inconvenience resulting from restarting the whole process from

square one, however, would be far greater. An eviction order made
in terms of PIE could be constructed in such a way as to
iron out
many of the problems. In all the circumstances I cannot hold that
the implementation as a whole was so tainted by
inconsistency and
unfairness as to fail the test of reasonableness.
This brings me to examine the
reasonableness of the last step of the process of providing access
to adequate housing, namely,
the institution of proceedings for
eviction under PIE to enable the upgrading programme to be
completed. Wrapped up in this
process was the question of whether
the manner in which eviction was sought was procedurally fair.
Eviction
proceedings under PIE
The manner and
timing of the termination of the Council’s consent to occupation
of Joe Slovo cannot be separated from the
way in which the overall
relationship between governmental authorities and the residents had
been
initiated and had evolved over time.
Implicit in this relationship from the outset was the
understanding that occupation would
be temporary, pending eventual
access to formal housing. Once the residents had embraced the
Project, they implicitly undertook
the obligation to allow it to
work. This meant that the plan for temporary relocation on a
staggered basis and the phased
clearing of Joe Slovo for formal
housing became dependent on voluntary relocation by the existing
residents, at least on a
temporary basis. This was fully
comprehended by all the residents and, indeed, on this
understanding many left of their own
accord.
As this
judgment has stressed, the lawfulness of the occupation was
conditional on uses to which the Council and its partners
in
government could legitimately put the land. A reasonable upgrading
programme had been established. For all its possible
faults, it
was being implemented in a manner that fell within the parameters
of reasonableness. By its nature, the programme
imposed a duty on
the residents to cooperate. Their situation was not equivalent to
that of families in the days of apartheid
seeking to resist forced
removal from ancestral land. They had been accommodated on Council
property precisely with a view
to overcoming the patterns
of
segregation and marginalisation to which they had been subjected.
The objective was to enable them one day, in a planned
fashion, to
overcome their spatial, economic, social and spiritual isolation
from the mainstream of society. Acquiring a dignified
house of
their own would represent more than getting a secure roof over
their heads and access to water and electricity. It
would mark an
end to their life as permanent itinerants with a sword of eviction
perpetually hanging over their heads. It
would symbolise a degree,
hitherto denied to them, of being accepted as members of organised
civic society. However humble
the home, it would be their own.
The moral quality of their citizenship in terms of public
acknowledgement and self-esteem,
would be notably enhanced.
52
It was now incumbent upon the
residents to cooperate in the achievement of these objectives.
They were not being thrown back
on to the street to fend for
themselves. Alternative arrangements were being made to provide
temporary shelter for each and
every family. The process would
inevitably be inconvenient, but the details would be open to
amelioration through negotiation,
and if that failed, by recourse
to the courts. In these circumstances, a blanket refusal to move
served to frustrate the further
development of the Project, causing
a great deal of inconvenience and expense to a large number of
people, and delaying the
implementation of a programme from which
the majority, if not all, of the residents themselves stood to
benefit.
The refusal of the residents to
cooperate was in conflict with the conditions under which consent
to occupy had been given to
them. As such, their failure to abide
by the unwritten bargain between themselves and the Council served
automatically to
annul the consent originally given by the Council.
They were in fact repudiating the conditions that were
foundational to
their stay. It could be said that it would have
been more courteous and in keeping with the spirit of engagement
for the authorities
to have given them advance notice that they
were planning to invoke the procedures of PIE to ensure that the
upgrading process
for Joe Slovo could proceed.
53
I do not, however, see that it was necessary for formal notice of
termination of consent to have been delivered prior to the

institution of proceedings. The permission to occupy was
given
by conduct rather than formally. Similarly, the breach of the
implicit undertaking made by the residents, was effected
by
conduct.
In this
respect, it is instructive to look at what this Court said in
Kyalami
54
in connection with procedural fairness in relation to
administrative action. The circumstances in that matter were by no
means identical, but the approach adopted by the Court is helpful
in the present matter. The state had a plan to accommodate
victims
of floods in Alexandra on public land adjacent to a prison and the
issue was whether specific notice with an opportunity
to object
should have been given to all
parties who
had an interest. In responding to complaints by residents of an
affluent suburb that neighboured on the prison
that they had not
been given a fair opportunity to object, this Court stated:
“
Where, as in the present case, conflicting
interests have to be reconciled and choices made, proportionality,
which is inherent
in the Bill of Rights, is relevant to determining
what fairness requires. Ultimately, procedural fairness depends in
each
case upon the balancing of various relevant factors including
the nature of the decision, the ‘rights’ affected by it, the

circumstances in which it is made and the consequences resulting
from it.”
55
(Footnote omitted.)
After considering the facts of
the case the judgment went on to conclude:
“
[P]rocedural fairness does not require the
government to do more in the circumstances of this case than it has
undertaken to
do. That was to consult with the Kyalami residents
in an endeavour to meet any legitimate concerns they might have as
to the
manner in which the development will take place. To require
more, would in effect inhibit the government from taking a decision

that had to be taken urgently . . . . It may have been better and
more consistent with salutary principles of good government
if the
government had found an appropriate method to inform the
neighbouring residents of its intentions before contractors
went
onto the site, and if it had engaged them in discussion and the
planning at an early stage of the project. However .
. . the
absence of such consultation and the engagement did not invalidate
the decision.”
56
The emphasis on context and
proportionality, rather than on abstract, mechanical rules, is
relevant to the present matter.
In this case there was a need for
the stalled upgrading process to be resumed. Costs were piling up,
and construction was at
a standstill. People who had voluntarily
moved to Delft in the expectation of a swift return to dignified
homes, were left
stranded. Many other parties stood to be
affected. And of special significance was the fact that no
irreversible damage to
the residents’ interests would have been
caused by the mere issuing of notices in terms of PIE.
PIE itself laid down notice procedures,
57
and provided the residents with full opportunity to be heard on the
one critical issue at stake, namely, whether it would be
just and
equitable to compel them to move. The procedures in PIE would
ensure that the court would traverse all relevant circumstances
and
decide whether the provision of accommodation was just and
equitable. Before coming to its conclusion, the court would
be
required to consider all relevant circumstances, and give a full
hearing to the occupiers. In this way, an administrative
decision
based on the discretion of the officials concerned would be
converted into a judicial decision. The court would not
be acting
as a judicial body reviewing an administrative decision. It would
be hearing the matter
de novo
(from scratch), and making up
its own mind whether the justice and equity requirements of PIE had
been met.
The invocation of PIE procedures
following on the public breakdown of the process, served in itself
as a final statement that
the occupation had been rendered
unlawful. Invoking PIE in these circumstances was not
unreasonable, nor was the notice unfair.
On the contrary, the PIE
procedures guaranteed that the matter would be looked at with
utmost fairness in a judicial setting.
And given that the
residents knew all along that they were required to move somewhere
to enable the upgrading process to continue,
and that the Council
was determined to go ahead, the issuing of a formal notice that
consent no longer existed, would have
been an exercise in pure
formalism. Indeed, it would have been a costly bureaucratic
exercise with no meaningful practical
significance.
58
In other circumstances it might be inappropriate for
the owner of land simply to say: “See you in court, you may have
your
say there”. But PIE is a unique piece of legislation with
procedures that are specifically designed to prevent unjust
removals.
It expressly provides for an opportunity to make full
representations. Moreover, it insists that even if the occupation
is
no longer lawful because consent has manifestly ceased to exist,
no eviction shall be ordered unless in all the circumstances
it
would be just and equitable to issue it.
I now turn to the question of whether the issuing of
an order authorising eviction was just and equitable.
The justness and equity of the
eviction
T
he overall upgrading process must
be seen as one that was manifestly beneficial in its objectives and
that had already gone
a considerable way in its implementation. To
start again from scratch would not have furthered any of the
constitutional interests
at stake. One zone of Joe Slovo had
already been developed. The accommodation was palpably superior to
that available in
the remainder of the
area,
and has been actively enjoyed for some time without the fire and
flood hazards that characterise the rest of the zones.
There are
people at Delft waiting to get back to their promised homes in Joe
Slovo, and others in Langa who have to endure
backyard shelter
because the building of their new homes has been put on hold.
These considerations are highly relevant both
to the reasonableness
of insisting that the programme be allowed to resume, and to the
justness and equity of requiring residents
who are stalling
development to accept temporary relocation.
The applicants’ main challenge
in this application for leave to appeal is directed at the order of
eviction. To reinforce
the challenge, they referred to many
aspects of the High Court order which, they claimed, would lead to
consequences that were
manifestly unjust and inequitable. One
critical feature, they contended, was that there was no guarantee
that once the residents
left Joe Slovo to take up temporary
accommodation 15 kms away, they would in fact be able to return to
the area. They also
stated that no specific arrangements had been
made to ensure sufficient quantity and appropriate quality for the
temporary
accommodation in Delft. They submitted that engagement
between the authorities and the residents had been wholly
inadequate,
and that no provision had been made to ensure that
there would be appropriate individualised treatment for the people
due to
be removed.
As has been mentioned above,
59
one of the functions of the Court in a case like the present, is to
do what it can to manage an inevitably stressful process.
In
keeping with this consideration, after extensive argument at the
hearing, the Court invited the parties to attempt to reach
an
agreed solution. As a starting point, the authorities were
requested to furnish a proposed draft order which would go beyond

the order granted by the High Court, in particular by ensuring
individualisation of the relocation process, thereby respecting
the
dignity of those affected. As a result, the authorities produced a
memorandum setting out detailed undertakings with regard
to what
they would do immediately to meet the Court’s request, coupled
with more general commitments in terms of how they
would proceed as
further information became available. They attached to the
memorandum a draft order agreed to by all three
respondents.
The terms of this draft order have, with small
modifications, been incorporated into the order made by this Court.
They include
the following new provisions:
that the authorities allocate 70%
of the subsidised houses to be built at Joe Slovo to current and
former residents who apply
for and qualify for such housing;
that the authorities engage with the affected
residents in respect of each relocation prior to requesting the
Sheriff to act.
This engagement would include finalising precise
details of the relocation and the transport needs before and after
the relocation,
and would cover transport facilities to schools,
health facilities and places of work. The authorities would also
provide
specific information to inform the residents about where
they stood in relation to the allocation of permanent housing; and
that the authorities provide detailed specifications
concerning the temporary accommodation being made available in
Delft.
Three weeks after the draft order was lodged with the
Court, the residents submitted an affidavit in response. It stated
that
they agreed that Joe Slovo should be upgraded and developed
for poor people, and that a necessary consequence was that it would

not be possible for them to remain where they were in their present
structures. They also accepted that it would not be possible
for
all of the broader Joe Slovo community to be accommodated
permanently at Joe Slovo. However, they did not accept that
a
legally valid case for eviction had been made out; that it was not
possible for people to move to another part of Joe Slovo
while
development was taking place; that Delft was the only suitable
location for temporary or permanent accommodation; or
that it could
be just and equitable for them to be evicted on the basis of vague
promises where important information continued
to remain uncertain.
They accordingly urged the Court not to order eviction, but
instead to require further engagement between
the parties.
The concerns advanced by the residents merit serious
consideration. In essence they boil down to asking the Court to
replace
the eviction order with an order requiring engagement
between the parties with a view to finding mutually agreed
mechanisms
for resolving the impasse. The authorities accepted the
need for engagement, but in a far more limited sense than that
asked
for by the residents. Assuming that eviction would be
ordered, the order proposed by the authorities requires
individualised
engagement for the purposes of ensuring appropriate
attention to individual needs when eviction takes place. The
residents,
on the other hand, state that engagement can only be
meaningful if the parties meet as equals without the eviction order
hanging
over them. Engagement on substantive questions, they say,
could well avoid the necessity for having an eviction order at all.
The authorities responsible for housing must have a
wide discretion in respect of how they should best manage
programmes that
are eminently reasonable in their objectives. At
the same time, they must deal with the people most affected in a
fair manner
that invites their participation and respects their
dignity. The revised order in fact substantially fills in the gaps
left
by the High Court order, and deals in a balanced way with the
intricacies of reconciling the competing considerations at stake.
No doubt, the process could be accomplished in other
and possibly even better ways. But this Court is not called upon
to decide
whether the best means have been found to enable the
upgrading programme to go ahead. The test is whether the
mechanisms used
to accomplish the objectives of the programme are
reasonable overall; whether the procedures used have been fair; and
whether
an eviction order would be just and equitable in relation
to residents who are refusing to take up the temporary alternative
accommodation available.
It is important to note that the order of this Court
requires meaningful engagement in relation to the stage the process
has
now reached. This does not envisage re-opening the basic
modalities of the upgrading and relocation scheme. But it does
bring
the community directly into helping to achieve maximum
fairness in relation to potentially divisive features of the
implementation.
That the Council and the residents
need to engage in a two-way process must be emphasised. In
Port
Elizabeth Municipality
and
Grootboom
this Court underlined the need for municipalities to attend
to their duties with insight and a sense of humanity, adding that
their duties extended beyond the development of housing schemes to
treating those within their jurisdiction with respect.
60
Officials seeking eviction should be encouraged not to rely on
concepts of faceless and anonymous squatters automatically
to be
regarded as obstinate and obnoxious social nuisances. Justice and
equity require that everyone be treated as an individual
bearer of
rights entitled to respect for his or her dignity.
61
At the same time, this Court has
emphasised that those who have been compelled by poverty and
landlessness to live in shelters,
should be discouraged from
regarding themselves as helpless victims, lacking the possibilities
of personal moral agency. The
tenacity and ingenuity they have
shown in making homes out of discarded material, in finding work
and sending their children
to school, serves as a tribute to their
capacity for survival and adaptation. The achievement of a just
and equitable outcome
required an appropriate contribution not only
from the municipal authorities but from the residents themselves.
They had a
duty to show the same resourcefulness in seeking a
solution as they did in managing to survive in the most challenging
circumstances.
62
In the same vein, when underlining the fact
that the
process of engagement would work only if both sides
acted reasonably and in good faith, this Court in
Olivia
Road
stated that people
subject to eviction must—
“
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. They
must be encouraged to be
pro-active and not purely defensive.
Civil society organisations that support the people’s claims
should preferably facilitate
the engagement process in every
possible way.”
63
This case
compels us to deal in a realistic and principled way with what it
means to be a South African living in a new constitutional

democracy. It concerns the responsibilities of government to
secure the ample benefits of citizenship promised for all by
the
Constitution. It expands the concept of citizenship beyond
traditional
notions of electoral rights
and claims for diplomatic protection, to include the full
substantive benefits and entitlements
envisaged by the Constitution
for all the people who live in the country and to whom it belongs.
At the same time it focuses
on the reciprocal duty of citizens to
be active, participatory and responsible and to make their own
individual and collective
contributions towards the realisation of
the benefits and entitlements they claim for themselves, not to
speak of the well-being
of the community as a whole.
When
all is said and done, and the process has run its course, the
authorities and the families will still be connected in ongoing

constitutional relationships. It is to everyone’s advantage that
they be encouraged to get beyond the present impasse and
work
together once more.
Not without some hesitation, I have come to the
conclusion that, given the history of the matter and the negative
consequences
for all concerned from further delays to the housing
programme, considerations of equity and justice require that the
order
for eviction, now suitably amplified to make it a great deal
fairer, should be supported.
Moseneke DCJ and Mokgoro J concur in the judgment of
Sachs J.
For the Applicants represented by the Penze Committee:
Advocate P Hathorn instructed by Chennels Albertyn.
For the Applicants represented by the Task Team:
Advocate G Budlender and Advocate L Kubukeli instructed by the
Legal Resources Centre.
For the First and Third Respondents:
Advocate SC Kirk-Cohen SC, Advocate DB Ntsebeza SC (only on
behalf of the First Respondent), Advocate H Rabkin-Naicker and

Advocate T Mashuku instructed by Nongogo Nuku Inc.
For the Second Respondent:
Advocate M Donen SC and Advocate K Pillay instructed by the
State Attorney.
For the Amici Curiae:
Advocate H Barnes and Advocate N Jele instructed by Wits Law
Clinic.
1
Thubelisha Homes and Others v Various
Occupants and Others
Case No 13189/07,
Western Cape High Court, Cape Town, 10 March 2008, unreported.
The full terms of the order made by the High Court are to be found
below at [13] of the judgment of Yacoob J.
2
Section 26 provides:
“
(1) Everyone has the right to have access to
adequate housing.
(2) The state must take reasonable legislative
and other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) No one may be evicted from their home, or
have their home demolished, without an order of court made after
considering all
the relevant circumstances. No legislation may
permit arbitrary evictions.”

Although Madala J sat in the case, ill health prevented
him from participating in the judgment.
1
Previously referred to as the Cape High Court, the Court’s name
was changed to the Western Cape High Court, Cape Town under
the
Renaming of High Courts Act 30 of 2008
, which commenced on 1 March
2009.
2
Thubelisha Homes and Others v Various
Occupants and Others
Case No 13189/07,
Western Cape High Court, Cape Town, 10 March 2008, unreported.
3
Mr Siphiwe Penze.
4
Mr Sifiso Lambert Mapasa.
5
Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998.
6
Id at
sections 4, 5 and 6, which are concerned
only with the eviction of unlawful occupiers.
7
Above n 2 at para 37.
8
Id at para 38.
9
31 of 1996.
10
62 of 1997.
11
Rademeyer and Others v Western Districts
Council and Others
1998 (3) SA 1011
(SECLD);
[1998] 2 All SA 547
(SE).
12
See above n 2 at para 79.
13
Id.
14
See [21] above.
15
See [35] above.
16
Lord Denning MR in
Hely-Hutchinson
v Brayhead Ltd and Another
[1968] 1 QB
549
(CA) at 583A-G;
[1967] 3 All ER 98
(CA), cited with approval by
Schutz JA in
NBS Bank Ltd v Cape
Produce Co (Pty) Ltd and others
2002
(1) SA 396
(SCA);
[2002] 2 All SA 262
(A) at para 24.
17
Id.
18
This was
known at the time as the Appellate
Division.
19
Tsaperas and Others v Boland Bank Ltd
[1995] ZASCA 150
;
1996 (1) SA 719
(A) at 724G–H
[1995] ZASCA 150
; ;
[1996] 4 All SA 312
(A) at 316B.
20
Landbounavorsingsraad v Klaasen
2005 (3) SA 410
(LCC).
21
Above n 10.
22
Section 1(1)(i) provides:
“
[E]xpress or tacit consent of the owner or person
in charge of the land in question, and in relation to a proposed
termination
of the right of residence or eviction by a holder of
mineral rights, includes the express or tacit consent of such
holder”.
23
Above n 20 at para 20.
24
Id at para 21.
25
Joel Melamed and Hurwitz v Cleveland Estates
(Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A);
[1984] 2 All SA 110
(A).
26
Id at 165B-C.
27
Atkinson v Van Wyk and Another
1999 (1) SA 1080
(LCC).
28
Id at para 9.
29
It is true that the provision also safeguards
against arbitrary evictions but the present topic is not concerned
with this matter.
30
Above n 5 at s
ection 1.
31
Section 7(2) of the Constitution.
32
Section 10 of the Constitution.
33
Section 152(1)(b) of the Constitution.
34
Section 152(1)(d) of the Constitution.
35
Local Government: Municipal Systems Act 32 of 2000
.
36
Id at
section 73(1)(c).
37
Port Elizabeth
Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at
paras 29 and 39; and
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 14
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at paras 44 and 82-3.
38
Above n 11.
39
See [35] above.
40
Above n 2 at para 32.
41
Above n 5 at s
ection 5(1)(a).
42
Id at
section 6(1)(a).
43
Id at
section 6(1)(b).
44
Id at
section 6(2).
45
Baartman and Others v Port Elizabeth
Municipality
2004 (1) SA 560
(SCA) at
para 9.
46
Port Elizabeth Municipality
above
n 37 at paras 30-1.
47
Section 26(2)
provides:
“
The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive realisation
of this right.”
48
Grootboom
above
n 37 at para 41.
49
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street,
Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) at paras 10-21;
Port
Elizabeth Municipality
above n 37 at paras 39 and 43-7; and
Grootboom
above n 37 at paras 82-3.
1
Thubelisha is listed in schedule 3 of the
Public Finance Management
Act 1 of 1999
.
2
Section 5
states:
“
(1) Notwithstanding the provisions of
section 4
,
the owner or person in charge of land may institute urgent
proceedings for the eviction of an unlawful occupier of that
land
pending the outcome of proceedings for a final order, and the
court may grant such an order if it is satisfied that—
(a) there is a real and imminent danger of
substantial injury or damage to any person or property if the
unlawful occupier
is not forthwith evicted from the land;
(b) the likely hardship to the owner or any
other affected person if an order for eviction is not granted,
exceeds the
likely hardship to the unlawful occupier against
whom the order is sought, if an order for eviction is granted;
and
(c) there is no other effective remedy
available.
(2) Before the hearing of the proceedings
contemplated in subsection (1), the court must give written and
effective notice
of the intention of the owner or person in
charge to obtain an order for eviction of the unlawful occupier
to the unlawful
occupier and the municipality in whose area of
jurisdiction the land is situated.
(3) The notice of proceedings contemplated in
subsection (2) must—
(a) state that proceedings will be
instituted in terms of subsection (1) for an order for the
eviction of the unlawful
occupier;
(b) indicate on what date and at what time
the court will hear the proceedings;
(c) set out the grounds for the proposed
eviction;
(d) state that the unlawful occupier is
entitled to appear before the court and defend the case and,
where necessary,
has the right to apply for legal aid.”
3
Section 6
states:
“
(1) An organ of state may
institute proceedings for the eviction of an unlawful occupier
from land which falls within its
area of jurisdiction, except
where the unlawful occupier is a mortgagor and the land in
question is sold in a sale of execution
pursuant to a mortgage,
and the court may grant such an order if it is just and equitable
to do so, after considering all
the relevant circumstances, and
if—
(a)
the
consent of that organ of state is required for the erection of
a building or structure on that land or for the occupation
of
the land, and the unlawful occupier is occupying a building or
structure on that land without such consent having
been
obtained; or
(b)
i
t
is in the public interest to grant such an order.
(2) For the purposes of this
section, 'public interest' includes interest of the health and
safety of those occupying the
land and the public in general.
(3) In deciding whether it is
just and equitable to grant an order for eviction, the court must
have regard to—
(a)
the
circumstances under which the unlawful occupier occupied the
land and erected the building or structure;
(b) the period the unlawful
occupier and his or her family have resided on the land in
question; and
(c) t
he
availability to the unlawful occupier of suitable alternative
accommodation or land.
(4) An organ of state
contemplated in subsection (1) may, before instituting such
proceedings, give not less than 14 days
written notice to the
owner or person in charge of the land to institute proceedings
for the eviction of the unlawful occupier.
(5)
If
an organ of state gives the owner or person in charge of land
notice in terms of subsection (4) to institute proceedings
for
eviction, and the owner or person in charge fails to do so within
the period stipulated in the notice, the court may,
at the
request of the organ of state, order the owner or person in
charge of the land to pay the costs of the proceedings

contemplated in subsection (1).
(6) The procedures set out in
section 4
apply, with the necessary changes, to any proceedings
in terms of subsection (1).”
4
Section 26(3) of the Constitution.
5
Section 26(1) and (2) of the Constitution. See also
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 14
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC)
at para 38.
6
Grootboom
above n 5 at para 6.
7
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC
7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 28.
8
Id.
9
President of the Republic of South Africa and Another v
Modderklip Boerdery (Pty) Ltd
[2005] ZACC 5
;
2005 (5) SA 3
(CC);
2005 (8) BCLR 786
(CC) at para 56.
10
Id at para 54.
11
Id at paras 54-5.
12
Id at para 68.
13
Section 83(1)
, (2) and (3) of the
Local Government: Municipal
Structures Act 117 of 1998
read with sections 156 and 229 of the
Constitution.
14
On the nature of a
precarium
and its difference from a
commodatum
, see
Adamson v Boshoff and Others
1975 (3)
SA 221
(C) at 225.
15
See for example
Port Elizabeth Municipality
above n 7 at
paras 56-9.
16
Above n 7 at para 14.
17
Id n 7 at paras 16-9.
18
For additional legislative protection see for example
section 2(1)
of the
Housing Act 107 of 1997
which requires amongst other things
that all levels of government must—
“
(a) give priority to the needs of the poor in
respect of housing development;
(b) consult meaningfully with individuals in
communities affected by housing development”.
19
Above n 7 at para 27.
20
Id.
21
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street,
Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (2) SA 208
(CC);
2008 (5) BCLR 475
(CC) at para 21.
22
Id.
23
Bundy “Land, Law and Power: Forced Removals in the Historical
Context” Murray and O’Regan (eds)
No Place to Rest: Forced
Removals and the Law in South Africa
(Oxford University Press,
Cape Town 1990) at 8.
24
Id at 10-1.
1
19 of 1998.
2
See [154]-[158] above.
3
See [368]-[369] below.
4
Government of the Republic of South Africa and Others v Grootboom
and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR
1169
(CC) at para 6.
5
In the High Court these proceedings commenced as
section 5
proceedings which deal with urgent evictions. However, by the time
the case was argued, the proceedings had matured into
section 6
proceedings which deal with evictions at the instance of an organ of
state. I agree with Yacoob J that the High Court correctly
dealt
with this case as an application for eviction under
section 6.
See
[91]-[93] above.
6
Above n 4
at para 25.
7
Soobramoney v Minister of Health,
Kwa-Zulu-Natal
[1997] ZACC 17
;
1998
(1) SA 765
(CC);
1997
(12) BCLR 1696
(CC) at para 8.
8
When talking about apartheid South Africa, the
use of racial terms such as “African” to refer to indigenous
natives of South
Africa; “Indian” to refer to South Africans of
Indian descent; “Coloured” to refer to citizens of mixed
descent; and
“White”, is unavoidable. These racial terms which
formed the basis of segregation are relevant when describing our
history.
It is for that purpose, and that purpose only that they
are used here.
9
Above n 4 at para 6.
10
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000
(4) BCLR 347
(CC).
11
Id
at
para 44.
12
Above n 7 at para 8.
13
S
ection 2(1)(a).
14
S
ection 2(1)(e)(iii).
15
Section 2(1).
16
Section 4.
93
">
17
The “scheme provides a subsidy to all households earning up to R3
500 per month so as to assist them to acquire secure tenure,
basic
services and a top structure.” The objectives of the scheme are,
as the Code indicates, “to help households access
housing with
secure tenure, at a cost they can afford, and of a standard that
satisfies the norms and standards determined
by the Minister of
Housing.”
18
In the papers before the High Court it was stated that the final
houses that will be constructed are 40 square metre houses to
be
built on plots of 90 to 100 square metres to ensure the area is not
overdensified. Most of the houses will be semi-detached.
They will
be built with brick and mortar and will have solid concrete
foundations and flooring as well as tiled roofs which
will be
insulated with a fire-resistant polystyrene product. The houses
will have two separate bedrooms, a bathroom (with a
bath and a
toilet), an open plan living area (of which a portion will serve as
a kitchenette) and two doors (front and back)
with windows in each
room. The houses will be fully serviced with waterborne sewerage
and running water and electricity run
through a pre-paid metre. In
addition there will be a tarred road infrastructure to ensure easy
access both to the area and
arterial roads.
The beneficiaries of the project will acquire
ownership of the houses on the following terms: households with an
income below
R1 500 per month will receive a house for free;
households with income of between R1 501 and R3 500 per month will
be required
to make a once-off payment of R2 479. The government
envisages that approximately 80% of the residents will qualify for
one
or the other of the two schemes. Those with an income between
R3 501 and R7 500 will be expected to buy houses in the open market

with the assistance of a subsidy.
When completed, the
project will have constructed 9 500 houses in Delft and 1 885 in
Joe Slovo. Between 200 and 300 of the
houses in Delft have already
been handed over to beneficiaries. The development of Joe Slovo
has been divided into three phases:
the first phase is already
complete. It comprises a block of flats which is intended for
rental to residents. It consists
of 705 units. The second phase
will comprise 680 units and will be a mixture of credit-linked
houses and
BNG
houses. The third phase will comprise solely of
BNG
houses and no less than 500 houses will be built.
However, before this
Court some of these figures have now changed and according to the
record, Qubudile Richard Dyantyi, a deponent
on behalf of the
respondents has indicated that only 35 “credit-linked” houses
will be built in phase 2 and that the original
number has been
reduced substantially. The housing to be built during phase 3 of
the project will comprise only
BNG
housing. In a further affidavit filed at the request of the Court,
the respondents say that 8 135
BNG
permanent
houses will be built in Delft and no less than 1 500
BNG
permanent houses will be built at Joe
Slovo.
19
Above n 4 at para 37.
20
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC
7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC)
at
para 12.
21
As Yacoob J points out above [75], t
he object of
local government is “to ensure the provision of services to
communities in a sustainable manner” (section 152(1)(b)
of the
Constitution) and “to promote a safe and healthy environment”
(section 152(1)(d)). The
Local Government: Municipal Systems Act 32
of 2000
gives effect to these constitutional duties and requires
municipalities to provide communities with the “minimum level of
basic
municipal services” (section 73(1)(c) of the Municipal
Systems Act). And this Court has held that the obligation of the
state
to the poor and the most vulnerable includes treating them as
human beings and providing them with services. See for example
Grootboom
above
n 4 at paras 44 and 82-3;
Port
Elizabeth Municipality
above n 20 at
paras 29 and 39.
22
Above n 4 at para 82.
23
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street,
Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) at para 17.
24
Above n 20 at para 20.
25
Id.
26
Above n 4
at para 41.
27
Id
at para 42.
28
Id at para 44.
29
Id
at para 52.
30
Minister of Health and Others v Treatment
Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC)
at para 36.
31
Above n 4 at para 24.
32
See [118] above.
33
We have held that this provision was a response to the wholesale
evictions of poor and landless African people under the apartheid

legal order. See above n 20 at paras 11-2. The history of
arbitrary evictions is well known.
Under the Prevention of Illegal Squatting Act No 52 of 1991,
evictions were accomplished through the criminal law and not the

civil courts, where the only issue was whether the occupation of
land was unlawful. This statute was also used to achieve
the goals
of the apartheid policy of dispossessing African people of their
land and forcibly removing them to areas reserved
for them.
34
Above n 20 at para 17.
35
General Comment No. 7 (1997) of the Committee on Economic, Social
and Cultural Rights at para 7.
36
Id at para 16.
37
Above n 20 at para 11.
38
Id at para 12.
39
Above n 23 at para 14.
40
Id at para 1
5.
41
Id at para 14.
42
Id.
43
Above n 4 at para 45.
44
Id.
45
Id at para 41.
46
Id.
47
City of Johannesburg v Rand Properties Ltd and
Others
2007 (6) SA 417
(SCA);
2007 (6)
BCLR 643
(SCA) at para 44.
1
See the Preamble to the Constitution.
2
Premier, Mpumalanga, and Another v Executive Committee,
Association of State-aided Schools: Eastern Transvaal
[1998]
ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) at para 1.
3
Section 26 of the Constitution provides:
“
(1) Everyone has the right to have access to
adequate housing.
(2) The state must take reasonable
legislative and other measures, within its available resources,
to achieve the progressive
realisation of this right.
(3) No one may be evicted from their home, or
have their home demolished, without an order of court made after
considering
all the relevant circumstances. No legislation may
permit arbitrary evictions.”
4
Id at section 26(2).
5
“Unlawful occupier” is defined in section 1 of PIE
as follows:
“‘
unlawful occupier’ means a person who
occupies land without the express or tacit consent of the owner or
person in charge,
or without any other right in law to occupy such
land, excluding a person who is an occupier in terms of the
Extension of Security of Tenure Act, 1997
, and excluding a person
whose informal right to land, but for the provisions of this Act,
would be protected by the provisions
of the
Interim Protection of
Informal Land Rights Act, 1996
”.
6
See text of
section 5
at [88] above.
7
1998 (3) SA 1011
(SECLD).
8
Precarium
is “the legal relationship which exists between
parties when one party has the use or occupation of property
belonging to the
other on sufferance, by the leave and licence of
the other. Its essential characteristic is that the permission to
use or occupy
is revocable at the will of the person granting it.”
Malan v Nabygelegen Estates
1946 AD 562
at 573 per
Watermeyer CJ.
9
1925 AD 536
at 545.
10
The applicants rely on the judgment of Kotzé JA who states that:
“
Their occupation under the regulations partakes in
substance of the nature of
precarium.
Subject to reasonable
notice, and such notice was given in the present case, the
appellant must give up his occupation and quit
the land, upon good
cause shown by the respondents, who are the board of trustees of
the Mission Station.” (Id at 552.)
11
1951 (1) SA 498
(A) at 507E-510D, but see the express reservation in
this regard by Hoexter JA with whom Watermeyer CJ concurred. The
question
was again left open in
Johannesburg City Council v
Johannesburg Indian Sports Ground Association
1964 (1) SA 678
(W) at 684.
12
See also Cooper
Landlord and Tenant
2ed (Juta & Co Ltd,
Kenwyn 1994) at 9, where the author criticises several cases,
including
Lechoana
(above n 9),
for concluding that
the relationship between the parties constituted a
precarium
when on his view it could not have. He emphasises that the legal
nature of a
precarium
is, by definition, the occupation of
property terminable by the landowner, and points out that
“termination at will” is the
defining characteristic of a
precarium
.
13
See
Gemeenskapontwikkelingsraad v Williams and Others
1977
(3) SA 955
(WLD) and the cases cited therein. In
Williams,
after a useful consideration of the authorities, King AJ (at
968D-E) concludes that:
“
Whilst all the authorities, therefore, lay down
that the permission may be withdrawn at will, at the same time they
point to
the necessity of reasonable notice where the right is of a
semi-permanent or permanent nature.”
14
1975 (3) SA 221
(C).
15
Id at 229A-B.
16
Voet
Commentary on the Pandects
8.4.18 (see Gane (tr)
The Selective Voet,
Being the Commentary on the Pandects
Vol 2
(Butterworth & Co (Africa) Ltd, Durban 1955) at 504-5); and see
the full discussion in
Williams
above
n 13 at 965E-969A. See also
McIntosh v
Corbishley
1943 TPD 127
at 130.
17
See, for example,
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC).
18
See [343] below.
19
According to the expert report of Mr Gerald Adlard, a former town
planner with the City, lodged by the applicants and not disputed
in
this regard by the respondents, there are approximately 3 432
households formerly from Joe Slovo now occupying temporary
relocation units in Delft. According to his report as well, there
were approximately 4 500 households occupying Joe Slovo at
the time
of his report.
20
See [366] below.
21
See
Premier, Mpumalanga
above n 2 at para 41: “In
determining what constitutes procedural fairness in a given case, a
court should be slow to impose
obligations upon government which
will inhibit its ability to make and implement policy effectively”.
See also
Minister of Public Works and Others v Kyalami Ridge
Environmental Association and Another (Mukhwevho intervening)
[2001]
ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR 652
(CC) at
para 102.
22
See
Occupiers of 51 Olivia Road, Berea Township, and 197 Main
Street, Johannesburg v City of Johannesburg and Others
[2008]
ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) at paras 13-21.
23
See
section 1(a)(ii)
of PAJA for the definition of “administrative
action”. See also the discussion of that exclusion in Hoexter
Administrative Law in South Africa
(Juta & Co Ltd, Cape
Town 2007) at 215-6. See also the reasoning of Chaskalson CJ in
Minister of Health and Another NO v New Clicks (Pty) Ltd and
Others (Treatment Action Campaign as Amici Curiae)
[2005] ZACC
14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para 132 where he
states that the administrator’s decision in relation to
section
4(1)
“is final”. See also the judgment of Ngcobo J in
New
Clicks
at para 468.
24
Administrator, Transvaal, and Others v Traub and Others
[1989] ZASCA 90
;
1989
(4) SA 731
(A) at 758D-F. See also
Premier, Mpumalanga
above
n 2 at paras 33-7;
Bel Porto School Governing Body v Premier,
Western Cape
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR
891
(CC) at para 96.
25
See
Premier, Mpumalanga
above n 2 at para 36;
Bel Porto
School Governing Body
above n 24 at para 96;
Meyer v Iscor
Pension Fund
2003 (2) SA 715
(SCA) at para 29;
South African
Veterinary Council v Szymanski
2003 (4) SA 42
(SCA) at para 15;
cf the minority judgments of Madala J and Mokgoro and Sachs JJ in
Bel Porto School Governing Body
above n 24
.
26
See
R v North and East Devon Health Authority, ex parte Coughlan
(Secretary for Health and another intervening)
[2000] 3 All ER
850
(CA).
1
Named after Joe Slovo, a lawyer and activist in
the anti-apartheid struggle, who was appointed Minister for Housing
after the
first democratic elections in South Africa in 1994.
2
Previously referred to as the Cape High Court, the Court’s name
was changed to the Western Cape High Court, Cape Town under
the
Renaming of High Courts Act 30 of 2008
which came into operation on
1 March 2009.
3
It is the first respondent in this application
for leave to appeal.
4
The second respondent in this application for
leave to appeal.
5
The third respondent in this application for
leave to appeal.
6
In this application for leave to appeal they were
separately represented by two groups, namely the Penze Committee and
the Task
Team.
7
In this application for leave to appeal they were allowed to
continue as amici curiae. The arguments they submitted were most

helpful.
8
The “
Breaking New Ground” National Housing
Policy (
BNG
)
states that—
“
[t]he number of households living in informal
settlements and backyards increased from 1.45 million in 1996 to
1.84 million
in 2001, an increase of 26%, which is far greater than
the 11% increase in population over the same period.”
9
The reader will see that I concur in the
judgments of Moseneke DCJ and Ngcobo J, concur in some of the
reasoning of Yacoob J and
the order that he crafted but differ in
respect of his approach to the lawfulness of the occupation. With
regard to questions
raised by O’Regan J concerning the relation
between private and public law, I feel that whatever differences
there appears
to be in our two judgments is more apparent than real,
depending on starting-point rather than substance. I endorse her
judgment’s
approach to reasonableness; and associate myself fully
with the manner in which she fills certain gaps in my judgment.
10
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2004 (12)
BCLR 1268
(CC);
2005 (1) SA 217
(CC) at paras 33 and 38.
11
The word “homeless” as used in this judgment is not limited to
people who because of fire, flood or eviction have no shelter
at
all. It includes the millions of people living in informal
settlements and other forms of grossly inadequate habitation.

Historically speaking, the term “landless” has had a more
specific meaning relating to those who have been deprived of any

title to occupy land in the country.
12
Above n 10
at
para 36.
13
Government of the Republic of South Africa and Others v Grootboom
and Others
[2000] ZACC 19
;
2000 (11) BCLR 1169
(CC);
2001 (1) SA
46
(CC).
14
Thus, impressive though the
national housing programme was in enabling millions of homeless
people to have access to formal housing,
the programme was
unreasonable to the extent that it made no systematic provision for
accommodating desperate families in crisis
situations with no
shelter at all.
15
19 of 1998.
16
Above n 10 at para 1.
17
Id at para 33.
18
Id at para 19.
19
Occupiers of 51 Olivia Road, Berea Township
and 197 Main Street, Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (5) BCLR 475
(CC);
2008 (3) SA 208
(CC).
20
Above n 10.
21
Above n 19.
22
Above n 15 at s
ection 1(xi).
23
107 of 1997.
24
The position would of course be different in a case where private
owners of property seek eviction of occupiers from their
land. In
this context traditional private law criteria for establishing the
existence of tacit consent could well be operative.
25
Above n 10 at para 16. See also
First National Bank of SA Ltd
t/a Wesbank v Commissioner, South African Revenue Service and
Another; First National Bank of SA
Ltd t/a Wesbank v Minister of
Finance
[2002] ZACC 5
;
2002 (7) BCLR 702
(CC);
2002 (4) SA 768
(CC).
26
Minister of Public Works and Others v
Kyalami
Ridge Environmental Association and Others (Mukhwevho intervening)
[2001] ZACC 19
;
2001 (7) BCLR 652
(CC);
2001 (3) SA 1151
(CC) at para 40.
27
Id.
28
Thus the Preamble to the Constitution affirms the objective of
healing the divisions of the past and establishing a society
based
on social justice, improving the quality of life of all citizens
and building a united South Africa. The founding values
of the
Constitution include human dignity and the achievement of equality
and the advancement of human rights. Taken together,
the use of
the verbs ‘heal’, ‘establish’, ‘improve’ and ‘build’,
followed by employment of the nouns ‘achievement’
and
‘advancement’ connote an unmistakable vision of an imperfect
society that greatly needs to be perfected.
29
The cornerstone of our democracy, the Bill of Rights, which the
state is obliged to respect, protect, promote and fulfil (section

7(2) of the Constitution), includes socio-economic rights (sections
26 to 29 of the Constitution). Similarly, when interpreting
any
legislation and when developing the common law, the courts are
required to promote the spirit, purport and objects of the
Bill of
Rights (section 39(2) of the Constitution).
30
Section 152(1)(b) of the Constitution.
31
Section 152(1)(c) of the Constitution.
32
Section 153(a) of the Constitution.
33
Above n 27 at section 2(1)(a). Section (1)(vi)
of the Act states that “housing development”—
“
means the establishment and maintenance of
habitable, stable and sustainable public and private residential
environments to
ensure viable households and communities in areas
allowing convenient access to economic opportunities, and to
health, educational
and social amenities in which all citizens and
permanent residents of the Republic will on a progressive basis
have access
to—
(a)
permanent residential structures
with secure tenure, ensuring internal and external privacy and
providing adequate protection
against the elements; and
(b)
potable water, adequate sanitary
facilities and domestic energy supply”.
34
Id at section 9(1).
35
Above n 19 at paras 17-8.
36
Above n 13 at para 82.
37
Id at para 83.
38
Above n 19 at para 17. It should be mentioned,
too, that permitting the homeless to occupy demarcated areas of land
under the
Council’s control would foster urban peace by reducing
the risk of desperate families putting up their shelters on
privately-owned
land or in public gardens or on common land.
39
The spiritual dimension of eviction and
homelessness was captured with rare eloquence by Sol Plaatje in his
famous book
Native Life in South
Africa
(PS King & Son, Ltd.
London 1916), recently re-published by Pan Macmillan South Africa,
2007. Referring to the effects
of dispossession and homelessness
created by the Native Land Act, 1913, he writes:
“
Awakening on Friday morning, June 20, 1913, the
South African native found himself, not actually a slave, but a
pariah in the
land of his birth.” (At 21.)
“
Mrs Kgobadi carried a sick baby when the
eviction took place, and she had to transfer her darling from the
cottage to the jolting
ox-wagon in which they left the farm. Two
days out the little one began to sink as the result of privation
and exposure on
the road, and the night before we met them its
little soul was released from its earthly bonds. The death of the
child added
a fresh perplexity to the stricken parents. They had
no right or title to the farmlands through which they trekked: they
must
keep to the public roads – the only places in the country
open to the outcasts if they are possessed of travelling permit.

The deceased child had to be buried, but where, when and how? This
young wandering family decided to dig a grave under cover
of the
darkness of that night, when no-one was looking and in that crude
manner the dead child was interred – and interred
amid fear and
trembling, as well as the throbs of a torturing anguish, in a
stolen grave, lest the proprietor of the spot,
or any of his
servants, should surprise them in the act. Even criminals dropping
straight from the gallows have an undisputed
claim to six feet of
ground on which to rest their criminal remains, but under the cruel
operation of the Natives’ Land Act
little children, whose only
crime is that God did not make them white, are sometimes denied
that right in their ancestral home.”
(At 73-4.)
“
[W]e had returned in thought to the July
funeral of the veld and its horrid characteristics; and a pleasant
reaction set in
when we recalled a verse of Matthew which says:
‘The foxes have holes, and the bird of the air have nests, but
the Son of
Man hath not where to lay His head’. How very
Christlike was that funeral of the veld. It resembled the
Messiah’s in
that it had no carriages, no horses, no ordained
ministers, nor a
trained choir singing the
remains into their final resting place. The veld funeral party,
like the funeral party of the Son
of Man, was in mortal fear of
representatives of the law; it, like that party, had not the light
of the sun, nor the light
of a candle, which charitable friends in
our day would usually provide for the poorest of the poor under
ordinary circumstances.
Still, it was not cold at Golgotha, or
should not be today as it was on the first Good Friday; but even
the Madonna and the
disciples must have had some house in which to
gather to discuss the situation.” (At 126.)
“
[E]victions have always taken place, since
the first human couple was sent out of the Garden of Eden, yet . .
. until the Union
parliament passed the Natives’ Land Act there
never was a law saying to the native population of South Africa,
‘You must
not settle anywhere, under a penalty of £100, unless
you are a servant.’. . . no slavery could be worse than to be
outlawed
in your own homes.” (At 154.)
“
We remember how African women have at times
shed tears under similar injustices; and how when they have been
made to leave their
fields with their hoes on their shoulders,
their tears on evaporation have drawn fire and brimstones from the
skies. But such
blind retribution has a way of punishing the
innocent alike with the guilty, and it is in the interests of both
that we plead
for some outside intervention to assist South Africa
in recovering her lost senses.” (At 365.)
Eight decades after these words
were written, intervention came, not from outside, but in the form
of our Constitution. It declares
in its Preamble that South Africa
belongs to all who live in it. This case is as much about access
to
full moral citizenship as it is about access to adequate housing.
40
Rademeyer and Others v Western Districts
Council and Others
1998 (3) SA 1011
(SECLD);
[1998] 2 All SA 547
(SE).
41
See [52] above.
42
Above n 13 at para 41.
43
Id.
44
Id at para 42.
45
It should be noted that the Metropolitan Council
of Cape Town was not a party to the proceedings either in the High
Court or this
Court. Its role as owner of the land features
strongly in relation to the lawfulness of the occupation by the
residents. The
upgrading programme, however, was not conducted by
it, although the former Mayor and other officials played a role in
communicating
the plans of the government.
46
The document pointed out that:
“
[T]he current housing mandate restricted
subsidies to households earning less than R3 500 per month. This
was premised upon
the assumption that end-user finance would be
accessed for the construction of houses by income groups above R3
500 per month.
This had not in fact occurred and there was a
growing disjuncture between subsidised and non-subsidised
residential accommodation.
This impacted negatively on the
operation of the residential property market. In order to address
this problem, a subsidy
mechanism was to be introduced to
facilitate the availability and accessibility of affordable housing
finance products/instruments
to medium income households (earning
R3 500 to R7 000 per month) by providing a mechanism to overcome
the down-payment barrier.
This mechanism would be linked to
household savings and loans from financial institutions.”
Put more simply, access to more desirable homes
would be financed by mortgage payments.
47
In the first years after democracy was installed in 1994 the
government launched a programme called the Reconstruction and

Development Programme (RDP). One of the major components of this
programme was the provision of completely subsidised housing
for
very low income people living in shelters. The abbreviation RDP
continued to be used after the programme was replaced.
Many of the
informal settlements established after 1994 were named after persons
who had been prominent in the struggle against
apartheid. Joe
Slovo, who had been responsible for developing the RDP programme for
upgraded housing, was one of them.
48
In spatial terms Joe Slovo is well located, half way between the
Cape Town International Airport and the central business district.
49
BNG
contains contradictory statements in this regard. Much of it
emphasises the importance of ensuring that housing “citizenship”

is cemented by means of inclusion “in human settlement development
decision-making.” A particular section, however, headed:

“Mobilizing communities”, puts the emphasis on a comprehensive
mobilisation and communication strategy to clarify the intentions
of
policy and raise awareness on the implications of policy. Civic
participation and community mobilisation are not necessarily

mutually incompatible, but an emphasis on mobilisation risks
treating the communities as recipients of state largesse to be
informed of the benefits they are about to receive, rather then as
active partners engaged with the authorities in developing

programmes and finding solutions to the problems that emerge.
50
Above n 19 at paras 17, 18 and 20.
51
For example,
this Court intervened in
Grootboom
(above n 13) because it felt that
although the state had embarked on a massive housing programme, it
had acted unreasonably in
not putting in place a measure to deal
with homeless families in situations of extreme desperation brought
about by crisis or
emergency. Similarly, in
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (10) BCLR 1033
(CC);
2002 (5) SA 721
(CC),
it stepped in to declare that it was unreasonable to restrict the
supply of anti-retroviral drugs for mothers about to give birth,
to
only two test sites in each province. In both cases it was defects
in the conception of the programme rather than faults
in their
administration that produced the unconstitutionality.
52
As the National Housing Programme dealing with
upgrading of informal settlements forcefully puts it 13.2.1:
“
The Programme aims to enhance the concept of
citizenship, incorporating both rights and obligations, by
recognising and formalising
the tenure rights of residents within
informal settlements wherever feasible. This process seeks to vest
access and usage
of physical land assets in the hands of the urban
poor, reducing their vulnerability and enhancing their economic
citizenship
and capability. Tenure security is also intended to
normalise the relationship between the state and the residents of
informal
settlements.”
See also the reference to the citizenship status of
the person at para 13.3.4.7.
53
And, it should be added, the invocation of the
fast-track emergency procedures of section 5 of PIE manifested
subjective impatience
rather than objective urgency, and was legally
quite inappropriate.
54
Above n 26.
55
Id at para 101.
56
Id at paras 109-10.
57
Above n 15 at section 4.
58
While keeping an open mind on certain aspects of
its treatment of the question of the lawfulness of the initial
occupation, I
would endorse the clearly articulated approach in the
judgment of O’Regan J with regard to the reasonableness of the
steps
taken up to and including the application for eviction. See
[292]-[304] above.
59
See [333]-[334] above.
60
Above n 10 at para 56. See also above n 13 at
para 83.
61
Above n 10 at para 41.
62
Id.
63
Above n 19 at para 20.