Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others (CCT12/09) [2009] ZACC 31; 2010 (2) BCLR 99 (CC) (14 October 2009)

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[2009] ZACC 31
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Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others (CCT12/09) [2009] ZACC 31; 2010 (2) BCLR 99 (CC) (14 October 2009)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
12/09
[2009]
ZACC 31
In the
matter between:
ABAHLALI BASEMJONDOLO
MOVEMENT SA First Applicant
SIBUSISO ZIKODE Second
Applicant
and
PREMIER OF THE
PROVINCE OF KWAZULU-NATAL First Respondent
MEMBER OF THE
EXECUTIVE COUNCIL FOR LOCAL
GOVERNMENT, HOUSING
AND TRADITIONAL
AFFAIRS, KWAZULU-NATAL
Second
Respondent
MINISTER OF HUMAN
SETTLEMENTS Third Respondent
MINISTER OF RURAL
DEVELOPMENT
AND LAND REFORM Fourth
Respondent
Heard on : 14 May 2009
Decided on : 14
October 2009
JUDGMENT
YACOOB J:
Introduction
This
application for leave to appeal concerns the validity of the
KwaZulu-Natal Elimination and Prevention of Re-emergence of
Slums
Act (the Act).
1
The application requires us to consider the relationship between
national, provincial and local government in the provision
of
housing. We must also determine whether it is legitimate for
municipalities and owners of property to be compelled to evict
certain categories of unlawful occupier. The applicants wish to
challenge the correctness of a judgment of the KwaZulu-Natal
High
Court, Durban
2
(the High Court) dismissing an application to declare certain
provisions of the Act to be inconsistent with the Constitution.
3
The first
applicant, the Abahlali baseMjondolo Movement of South Africa, is a
voluntary association that represents the interests
of many
thousands of occupiers of informal dwellings. They are poor people
who have no access either to secure tenure or adequate
housing.
The second applicant, Mr Sibusiso Zikode, is the president of the
first applicant. The four respondents are cited
in their official
capacities. The first respondent is the Premier of KwaZulu-Natal.
The second respondent is the Member of
the Executive Council for
Local Government, Housing and Traditional Affairs (the MEC) of the
province of KwaZulu-Natal. The
national Minister of Human
Settlements and the national Minister of Rural Development and Land
Reform
4
are the third and fourth respondents.
The applicants
say, and there is no reason to doubt this, that the members of the
first applicant comprise tens of thousands of
people occupying
about seventeen informal settlements in the surrounds of Durban and
Pietermaritzburg in KwaZulu-Natal. They
became concerned that the
Act would make it significantly easier to evict people living in
informal settlements; it would facilitate
their eviction without
meaningful engagement and in circumstances where they will not be
provided with suitable alternative accommodation
and would be
rendered homeless. They were also afraid that the Act would
undermine national legislation aimed at the protection
of people
with insecure land rights. They accordingly applied to the High
Court attacking the constitutional validity of the
whole Act as
well as some of its provisions.
High Court
The applicants
contended in the first place that the whole of the Act was
inconsistent with the Constitution and invalid on the
basis that
the KwaZulu-Natal legislature had no power to enact it. This was
so because, according to the applicants, the Act
is not about
housing, a matter which does fall within the concurrent legislative
preserve of both the national and provincial
governments; it is in
reality concerned with land tenure, a matter on which provincial
legislatures are incompetent to make law.
The applicants
also contested the validity of sections 9, 11, 12, 13 and 16 of the
Act on the basis that they are inconsistent
with section 26(2) of
the Constitution. Section 16 was in particular said to be
inconsistent with the provisions of the PIE
Act,
5
the national Housing Act
6
as well as the National Housing Code.
7
Section 16 is set out in full in paragraph [44] below.
The High Court
held that the Act, properly construed as a whole, is concerned with
housing in the context of national and provincial
legislation that
deals with this functional area.
8
The Court rejected the claims of inconsistency with section 26(2)
of the Constitution, finding that, far from being inconsistent
with
the Constitution, the Act “constitutes a reasonable legislative
response to deal with the plight of the vulnerable in
our
society”.
9
Finally, the High Court held that the Act is not in conflict with
the PIE Act, the national Housing Act or with chapter 13 of
the
National Housing Code. The High Court reasoned that the Act
authorises evictions subject to the PIE Act, that nothing in
the
Act precludes reasonable engagement before eviction proceedings are
instituted; and that municipalities are bound to comply
with
national and provincial legislation.
10
The High Court
declined to rule on two other issues before it. The one was a
contention by the respondents that it should not
entertain argument
on the constitutional validity of the Act because the challenge was
abstract (on the basis that the Act had
not yet been implemented
and that implementation is a prerequisite to a court adjudicating
upon the challenge). The second issue
on which the High Court
found it unnecessary to rule is whether a report prepared by the
Centre on Housing Rights and Evictions
(COHRE Report), which the
applicants sought to introduce into evidence, was admissible.
In this Court
The applicants
ask that this Court grant them leave to come to this Court directly
from the High Court.
It is
necessary to determine the issues that fall to be decided before
considering the application for leave to appeal itself.
The
applicants expressly abandoned their attack on sections 9, 11, 12
and 13 of the Act. All the other issues that surfaced
in the High
Court have been raised by the applicants in this Court. Apart from
issues concerned with the interests of justice
and the question of
the admissibility of the COHRE Report, the matters that will have
to be considered by this Court if leave
to appeal is granted are
whether:
the
KwaZulu-Natal Provincial Legislature was competent to pass the law
in the light of the division of legislative power between
the
national and provincial spheres of government stipulated in the
Constitution;
section 16 of
the Act is consistent with section 26(2) of the Constitution; and
section 16 of
the Act is consistent with three national legislative instruments
namely, the PIE Act, the national Housing Act
and the National
Housing Code.
This judgment
carries the support of all the members of the Court on its
conclusion that the application for leave to appeal should
be
granted and the finding that the Act is concerned with housing.
Concerning the constitutional validity of section 16 of the
Act,
however, this judgment is a dissent. The majority judgment on that
issue, to the effect that section 16 of the Act is inconsistent
with the Constitution, has been prepared by my colleague Moseneke
DCJ and appears later.
Leave to appeal
This Court
will grant leave to appeal if a constitutional matter is raised and
if that course is in the interests of justice.
Questions of
conflict between provincial legislation and the Constitution and
between provincial and national legislation inevitably
involve the
interpretation and enforcement of the Constitution.
11
There is therefore no doubt that constitutional matters have been
raised.
It is
necessary to enquire into the interests of justice.
An issue
fundamental to the interests of justice in this case is that raised
in the High Court concerning abstract review. If
the challenge to
the validity of the Act is indeed an abstract one, in the sense
that the rights of the applicants are not threatened
12
or that the applicants have no interest in the adjudication of the
dispute, it will in my view not be in the interests of justice
to
grant leave to appeal.
Everyone is
entitled to the full benefit of the rights conferred by section 26
of the Constitution. The PIE Act, the national
Housing Act and the
National Housing Code represent a legislative effort to give effect
to the rights conferred by this constitutional
mandate. The nub of
the complaint on behalf of the applicants is that the Act erodes
significantly the benefits conferred upon
them by the PIE Act as
well as their right of access to reasonable housing as provided for
in the national Housing Act and the
National Housing Code. Many of
the applicants are themselves unlawful occupiers, urgently in need
of permanent housing; they
are therefore entitled to, and in dire
need of, the essential protection that these laws accord. Indeed,
the watering down of
this protection would be potentially
devastating to the applicants. In the circumstances, they allege,
in effect, that their
rights enshrined in section 26 of the
Constitution have been threatened. If the applicants are right
that the protection to
which they are entitled has been eroded by
the Act, then their rights will as a matter of course have been
threatened. Their
fears are by no means fanciful. The applicants
therefore have standing. In the circumstances, they cannot be
unsuited on the
basis that the challenge to the Act is abstract.
It is in the
interests of justice for this Court to consider the appeal for the
following reasons. First, the case raises fundamental
issues about
whether the Act impairs the significant protection that has been
afforded by the PIE Act and national housing legislation
to people
in unlawful occupation of land and people in urgent need of
housing. Secondly, we must accept that the applicants
feel
threatened by the Act and require resolution of their challenge as
quickly as possible. Thirdly, the provincial government
requires
urgent resolution of the dispute concerning the constitutional
validity of the Act because the decision of this Court
would affect
the way in which the provincial government discharges its
constitutional obligations concerning housing.
In the fourth
place, we are told that the national government and all other
provincial governments await the outcome of this application.
This
is because the Act is really experimental pilot legislation which
may be duplicated in other provinces if it is effective.
In the
circumstances, all the parties were agreed that this Court should
consider the case. It is true that in a case of this
kind the
contribution of the Supreme Court of Appeal would have been of
value. However, the circumstances I have alluded to
together with
the importance and urgency of effective housing provision render it
essential for this Court to hear and determine
the matter sooner
rather than later.
The
application for leave to appeal will accordingly be granted.
The COHRE
Report
This report,
in summary, speaks to unlawful evictions and demolition of shacks
by a municipality, homelessness resulting from
unlawful evictions,
the failure of a municipality to implement national housing
programmes and the provision of housing legislation.
It is
impossible on the papers before us to tell whether all this is
true, but if the allegations are true, they are cause for
grave
concern. The Report reflects the fears of vulnerable people that
the municipal authorities might regard the passing of
the Act as
licence to effect unlawful evictions and to pay lip service to the
consequence of homelessness. These fears cannot
be ignored. No
organ of state should under any circumstances tolerate or condone
any unlawful conduct. All unlawful conduct
is inimical to the
Constitution and to the development of a society in which dignity,
equality and freedom thrive.
But as will be
seen from the analysis that follows, these allegations and the
information in the Report, valuable as it is, does
not in fact
assist in the determination of the issues in this case. The Act is
to be interpreted on the basis that it by no
means directly or
indirectly encourages or authorises any unlawful conduct on the
part of any person. The Report contains general
information, which
is not strictly relevant to this interpretive exercise and it is
accordingly not necessary to have regard
to it.
The competency
of the KwaZulu-Natal Provincial Legislature
A provincial
legislature can legislate only on any matter within a functional
area listed in Schedule 4
13
or Schedule 5.
14
As I have already pointed out, the applicants contend that the Act
is, on a proper construction, not concerned with housing,
a
Schedule 4 matter within the concurrent provincial and national
competence. It is instead, they say, concerned with land tenure
and access to land in terms of section 25(5) of the Constitution
15
and is therefore outside the provincial competence. The
respondents contend that the legislation is concerned with housing.
The parties
agree as to the approach to be adopted by a court in determining
the functional area within which particular legislation
falls. It
is necessary for this Court to discover the “substance of the
legislation, which depends not only on its form but
also on its
purpose and effect”
16
or “its essence, or true purpose and effect, that is, what the
[law] is about”.
17
It is also trite that no national or provincial legislative
competence can be entirely water-tight and that it may become

necessary to find the “main substance of legislation” to
ascertain whether there is provincial competence.
18
In developing
their submissions, the applicants contended that sections 5, 7, 8,
9 and 17 of the Act must not be brought into
the equation because
each of them is no more than a repetition of material in other
legislation.
Section 7 of
the Act
19
is indeed materially the same
20
as section 7 of the national Housing Act and section 2B(1) of the
KwaZulu-Natal Housing Act.
21
But that is no reason for ignoring section 7 of the Act. It is
trite that the meaning of legislation is to be assessed in its
context. The duties of the MEC in relation to the elimination of
slums, as envisaged in section 8 of the Act, must be evaluated
and
interpreted in the context of the provincial obligation to
facilitate housing set out in section 7. Section 7 is of
considerable
importance in the construction of the Act as a whole.
The fact that it is repeated is neither here nor there.
A cursory
examination of the relevant legislation
22
shows that—
section 5 of
the Act is not the same as any of the provisions of the National
Building Regulations and Building Standards Act;
23
section 8 of
the Act is not a reproduction of any provision of the national
Housing Act or the KwaZulu-Natal Housing Act;
section 9 of
the Act does not reproduce any part of the national Housing Act or
the KwaZulu-Natal Housing Act; and
section 17 of
the Act is concerned with matters very different from those
envisaged in section 15A(7) of the KwaZulu-Natal Housing
Act.
Arguments to the
contrary must therefore be rejected. Indeed, sections 8, 9 and 17
of the Act deal in detail with aspects of slum
elimination, a matter
not even touched upon in any of the national or provincial housing
legislation. These sections represent
an innovation into the
statutory scheme and must be considered when investigating whether
the Act deals with housing.
It follows
that the contention that sections 5, 8, 9 and 17 of the Act are
similar to other legislative provisions must be rejected.

Accordingly, all the provisions of the legislation must be
considered together to arrive at its true substance.
The applicants
point to certain specific provisions of the Act to demonstrate that
it is not concerned with housing but is in
reality concerned with—
mandatory
institution of eviction proceedings of people; and
prohibition
on the occupation of certain land and buildings; bolstered by
the creation
of offences for non-compliance.
It is true
that three sections of the Act
24
are concerned with eviction, that the Act does prohibit the letting
for gain of any substandard accommodation
25
and that the owner or person in charge of property commits an
offence if he or she does not take reasonable steps to prevent
the
unlawful occupation of the land or building concerned.
26
That is not however the end of the enquiry. It is our duty to
examine the Act as a whole in order to determine its true ambit.
The long title
of the Act makes plain that it has three purposes, all of which are
concerned with slums: the progressive elimination
of slums,
measures for the prevention of the re-emergence of slums and the
upgrading and control of existing slums.
27
In the Act,
the definition of “slum” refers to “overcrowded or squalid
land or buildings occupied by predominantly indigent
or poor
persons”. The word “occupied” in this definition cannot in
its context be said to refer to occupation for business
or
industrial purposes. This is understandably not what is contended
for. The definition refers to people who live in slum
conditions,
not to people who conduct commercial or industrial activity in
these areas. It refers to people who have their homes
there.
Accordingly, the long title indicates strongly that the Act has to
do with peoples’ homes: housing.
Moreover the
Preamble of the Act refers to the need “to encourage interaction
and support between provincial and local governments
in the
provision of affordable housing”. The Preamble goes on to say
that “it is desirable to introduce measures which seek
to enable
the control and elimination of slums, and the prevention of their
re-emergence, in a manner that promotes and protects
the housing
construction programmes of both provincial and local governments”.
The Act conceives of an inevitable relationship
between the
provision of housing and the elimination of slums. I cannot accept
the applicants’ contention that the Preamble
merely refers to
housing. It does more.
The whole of
the Act seeks to define a strategy for achieving the object of the
elimination of slums and the prevention of their
re-emergence.
Chapter 2 is concerned with the achievement of this object by a
prohibition of unlawful occupation and use of
substandard
accommodation. Chapter 3 defines the role of the MEC of Housing in
this strategy. Chapter 4 sets out the ways in
which municipalities
might contribute to the achievement of the objectives of the Act,
while Chapter 5 imposes certain duties
on owners and
municipalities. I describe the strategy briefly in order to
demonstrate that the Act concerns housing.
The strategy
must be evaluated on the basis that the slums in which people live
are their homes. But these homes are not fit
for human habitation.
The elimination of slums and the prevention of their re-emergence
is a worthy objective provided that
the process prescribed for
their elimination and the prevention of their re-emergence is
lawful, reasonable and part of the achievement
of a housing
objective. If the process prescribed by the Act had been limited
to compulsory eviction and the creation of offences
and penalties
without more, regardless of whether people were unjustifiably
rendered homeless by the process, a contention that
the Act is not
concerned with housing may well have been tenable. It is important
therefore to determine how the Act proposes
to eliminate slums and
prevent their re-emergence.
The role of
municipalities in the slum elimination process
The Chapter
concerned with the role of municipalities begins by defining, in
broad terms, the ways in which a municipality would
achieve the
elimination of slums and the prevention of their re-emergence.
28
The municipality is empowered, in the process of integrated
development planning,
29
and within its available resources, to achieve the elimination of
slums in the following ways—
take
reasonable measures for the progressive realisation of the right
to adequate housing;
30
promote
socially and economically viable communities and safe and healthy
living conditions;
31
encourage and
promote housing and economic development in rural areas;
32
facilitate
co-operation between municipalities to achieve inter-municipality
co-ordination for the creation of a safe and healthy
environment;
33
and
work with
traditional councils where necessary.
34
In addition, the
MEC is empowered to direct one municipality to provide sanitary or
other services to people living in slum conditions,
informal
settlements or a transit area in another municipality as a matter of
priority.
35
All the provisions discussed in this paragraph are concerned with
the improvement of the conditions in which people are housed.
The Act also
confers specific responsibilities on municipalities in the slum
elimination process.
36
Each municipality is required to prepare a detailed slum
elimination programme with “key performance indicators” to
measure
progress in its implementation.
37
A municipality must initially submit a status report to the MEC
containing the slum elimination programme. The report must
also
show the number of slums within its area together with details in
respect of each slum.
38
More importantly, the report must indicate the feasibility of
alternative accommodation being made available for the occupants
of
slums
39
and make recommendations as to whether a particular slum is capable
of upgrading and improvement.
40
A municipality is required to submit detailed annual reports to
the MEC describing the progress that has been made in slum

elimination.
A municipality
is also empowered to require the owner to upgrade and refurbish
land and buildings.
41
The improvement of the conditions in slums and the provision of
suitable alternative accommodation,
42
the establishment of transit areas,
43
and the power to compel a landowner to upgrade or refurbish
substandard accommodation
44
are all concerned pre-eminently with housing. Indeed every
municipality is the engine of slum elimination.
It is true
that the Act also empowers the municipality to evict. But the
responsibilities imposed on municipalities are not limited
to the
three mechanisms contended for by the applicants: compulsory
eviction of people so that they are rendered homeless, preventing
people from occupying empty land or buildings unlawfully, and
criminal sanction. Indeed, these responsibilities transcend the
duty to evict. The role of a municipality has been carefully
crafted. The flexible strategy includes the development of
housing,
the creation of socially and economically viable
communities and safe and healthy living conditions, development in
rural areas,
co-operation between municipalities, co-operation
between municipalities and traditional councils and the provision
by one municipality
of essential services for the benefit of the
occupants of slums in another.
The Act also
envisages the preparation and implementation by the municipality of
a detailed slum elimination programme which includes
the
acquisition of land or buildings for their relocation near
employment opportunities, as well as the upgrading and improvement
of existing slum areas. In addition, transit areas may be
established to temporarily accommodate people who are evicted from
slum areas. This Chapter demonstrates that the Act is principally
about the improvement of the conditions of life of those

unfortunate people who are housed in slums in the province of
KwaZulu-Natal.
The role of the
MEC
I need say no
more about the role of the MEC
45
than that the MEC has the power and duty to evaluate and monitor
the implementation of the municipalities’ slum elimination
programmes. The province also funds slum elimination through
upgrading and relocation.
46
The role of
owners of property
The Act also
places certain duties on owners of properties in the slum
elimination process. It prohibits the letting of substandard
accommodation for financial benefit
47
and empowers the municipality to require the owner to eject
unlawful occupants of substandard accommodation.
48
In addition the Act places obligations on owners to prevent the
unlawful occupation of land or buildings on pain of criminal
sanction.
49
It also obliges owners and municipalities to evict unlawful
occupiers in certain circumstances.
50
Taken in their context, these provisions are part of the strategy
to eliminate slums and are concerned with housing.
Conclusion on
functional area
To conclude,
the Act designs and puts into place a complex, co-ordinated and
coherent scheme for the elimination of slums and
the prevention of
their re-emergence. The scheme aims at the improvement of the
housing conditions of people living in slums
and involves
municipalities, the provincial government as well as the provincial
legislature. The subject matter of the Act
is housing.
Section 16
This section
makes it obligatory for proceedings to be instituted for unlawful
occupiers to be evicted. The challenge to the
provision in the
written argument differed somewhat from the submissions that were
orally advanced before us at the hearing.
I deal first with the
written argument.
In their
written argument, the applicants contest the validity of section 16
on the basis that it is inconsistent with section
26(2) of our
Constitution, the PIE Act, the national Housing Act as well as the
National Housing Code on various overlapping
grounds. It will be
more convenient to discuss each ground in turn and indicate the
inconsistency contended for. The contentions
are that:
owners and
municipalities would be forced to institute eviction proceedings
even if, in their evaluation, the PIE Act has not
been complied
with;
the section
takes away the discretion conferred on the owner or municipality;
it permits
eviction other than as a matter of last resort; and
the section
permits eviction proceedings to be instituted without allowing for
reasonable engagement.
Before dealing with
each of these contentions, it is necessary to say something about
section 16.
The scope of
section 16
I have already
pointed out that the applicants fear that the Act authorises the
MEC or the municipality to act in a manner which
is inconsistent
with the Constitution as well as national and provincial
legislation. However, their approach leaves out of
account a
fundamental tenet of constitutional interpretation, which is that
all legislation must be interpreted subject to and
in accordance
with the Constitution. Nothing in the Act precludes an
interpretation that accords wholly with the constitutional
and
statutory duties of the MEC, or the municipality. The Act must
therefore be interpreted consistently with these duties.
The Act
itself signifies that it is to be interpreted subject to the
Constitution
51
and other statutes
52
that embody constitutional safeguards.
Section 16
provides:
“
(1) An owner or person in
charge of land or a building, which at the commencement of this Act
is already occupied by unlawful occupiers
must, within the period
determined by the responsible Member of the Executive Council by
notice in the
Gazette
,
in a manner provided for in section 4 or 5 of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, institute
proceedings for the eviction of the unlawful occupiers concerned.
(2) In the event that the owner
or person in charge of land or a building fails to comply with the
notice issued by the responsible
Member of the Executive Council in
terms of subsection (1), a municipality within whose area of
jurisdiction the land or building
falls, must invoke the provisions
of section 6 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act.”
We must first
delineate the meaning of the concept of slums as envisaged by the
Act. The Act makes a distinction between informal
settlements on
the one hand and slums on the other. This important distinction
shows that the Act has nothing to do with the
elimination of
informal settlements. It is concerned only with slums. An
informal settlement is defined as—
“
an area of unplanned and
unapproved informal settlement of predominantly indigent or poor
persons with poor or non-existent infrastructure
or sanitation”.
53
A slum is defined
as—
“
overcrowded or squalid land
or buildings occupied by predominantly indigent or poor persons,
without security of tenure and with
poor or non-existent
infrastructure or sanitation”.
54
Common to
“informal settlements” and “slums” as defined in the Act is
that they both comprise predominantly indigent or
poor people who
exist under the burden of poor or non-existent infrastructure or
sanitation. There are however three significant
differences
between the definition of a “slum” and that of an “informal
settlement”. Firstly, the people in a slum live
in overcrowded
or squalid conditions. By definition the conditions under which
people in slums live are worse than those who
live in informal
settlements. The absence of services must be so severe as to
render the areas occupied as squalid or overcrowded.
Squalid is
defined in the Concise Oxford English Dictionary as “extremely
dirty and unpleasant”. The long title accordingly
evinces a
purpose to eliminate and prevent the re-emergence of situations in
which people are housed and live in dire circumstances,
in
conditions so extremely unpleasant or dirty that they are not fit
for human habitation.
The second
difference between slums and informal settlements as defined
reflects another respect in which desperate people who
live in dire
circumstances are burdened. They have no security of tenure. The
third and most fundamental difference, in my
view, between a slum
and an informal settlement as conceived in the Act is that a slum
consists of occupants of land or buildings
while an informal
settlement, as the name suggests, is a settlement of people. We
must therefore accept that the Act is not
concerned with the
elimination of settlements of people who are poor and indigent and
who live without appropriate structure
or sanitation. The Act has
the decided purpose of eliminating and preventing the re-emergence
of phenomena represented by land
and buildings in which poor or
indigent people live in the direst of circumstances unfit for human
habitation and without land
security.
Those involved
in the progressive elimination of slums must not be too ready to
jump to the conclusion that an area in which people
live is a slum.
The difference between informal settlements and slums depends to
an extent on degree. Most people in informal
settlements live
without security of tenure and many informal settlements are to a
degree overcrowded and not consistent with
the most hygienic of
living conditions. Informal settlements too are most often also
occupied by poor people. It must be emphasised
that the word slum
must be given a narrow meaning. Before land or a building may be
regarded as a slum, the area must be so
overcrowded or so extremely
dirty as to be unfit for human habitation bearing in mind the
extent of poverty in our society.
The New Shorter Oxford English
Dictionary defines a slum as “an overcrowded district of a town
or city having squalid housing
conditions and inhabited by very
poor people”.
The section
provides one more way in which slums may be eliminated and must be
interpreted in the context of other obligations
placed on
municipalities to eliminate slums by providing alternative housing
and the upgrading of existing slums. It places
an obligation to
evict on the owner or person in charge of property as well as
municipality in certain circumstances. I will
refer to the owner
or person in charge simply as the owner. We must remember that
section 16 becomes operational in practice
not on the date of
coming into operation of the Act but some time after that date.
The obligation to evict
55
arises only after notice by the MEC in the provincial Gazette; it
cannot be given before the Act comes into force. The Act came
into
force more than two years ago on 2 August 2007. The MEC has not
yet given notice that is required to operationalise the
section.
Section 16 is
of limited application. The duty to commence eviction proceedings
arises only in respect of land or any building
that was already
occupied by unlawful occupiers at the date of commencement of the
Act. The Act does not apply to land or buildings
occupied after
the commencement of the Act, presumably on the basis that the
regime created in section 15 would adequately cater
for the
prevention of the re-emergence of slums.
56
It follows that the unlawful occupiers concerned would all by now
have been in occupation, albeit unlawfully, for a period of
more
than two years. It is significant that no notice has yet been
issued by the MEC to oblige the owner or the municipality
to evict
these occupiers.
This is
consistent with the tenor of the Act. The Act does not evince a
purpose that eviction of unlawful occupiers should become
obligatory immediately upon its commencement. If this had been the
purpose of the Act, it would not have been left to the MEC
to
determine the date on which and the circumstances in which notice
by the MEC may be given. The Act would itself have obliged
the
owners and municipalities to evict as from the date of its
commencement. It was left to the MEC to decide this because the
objectives and mechanisms of the Act contemplate that the slum
elimination processes that do not involve obligatory eviction
would
begin as soon as possible after the Act commenced. Municipalities
would begin to collate information for submission to
the MEC in the
status report and for the preparation of its slum elimination
programme. The programme would thereafter be implemented
by a
process of upgrading, where possible, the provision of alternative
housing as well as the provision of alternative accommodation
in
transit areas. In my view, the Act contemplates that the MEC would
give notice at some time during the implementation of
the slum
elimination programme; at a time when the MEC considered it
necessary to do so in order to eliminate slums. I come
back to
this later. I must emphasise at this stage though that any notice
issued by the MEC before the implementation of a municipality’s
slum elimination programme would in all probability be ultra vires.
It is also
necessary to observe that section 16 applies to unlawful occupiers
alone. This follows from the circumstance that
owners and
municipalities are required to evict in terms of the provisions of
the PIE Act, and eviction under the PIE Act is
competent only in
respect of unlawful occupiers. The owner is decidedly not obliged
to bring eviction proceedings against lawful
occupiers: people who
occupy with the consent of the owner.
This means
that the owners of land or buildings are required to make a
decision whether they consent to the occupation of their
property
or not. If they consent to occupation, they are not obliged to
evict. It is only if they do not consent to occupation,
in other
words, only if the occupation is unlawful, that they become obliged
to evict. If owners consent to occupation, they
must face the
consequences of having consented; they must comply with their
obligations arising from their ownership of the property.
In the
context of the Act, a consenting owner who exacts rental can be
obliged by a municipality to refurbish substandard accommodation.
57
An owner in this position cannot blow hot and cold. He cannot
refuse to upgrade property on the basis that he has not consented
to occupation and, in the same breath, allow the unlawful occupier
to continue to live on the property in inhumane conditions.
The
owner’s contribution to the elimination of slum conditions on her
property means that she must either improve the conditions
in which
people live or evict the occupier.
The fact that
owners and municipalities must proceed in terms of the PIE Act has
another important consequence. Courts can issue
orders of
evictions only if the requirements set by the PIE Act are complied
with. It is not necessary to venture into a detailed
account of
the PIE Act. I need do no more than set out the substantive
circumstances that must exist before eviction orders
can be made.
Unlawful occupiers may be evicted by an owner only if it is just
and equitable to do so.
58
If the occupier has been in occupation for more than six months,
the court is obliged to consider, in the process of the justice
and
equity enquiry, “. . . whether land has been made available or
can reasonably be made available by a municipality or other
organ
of state or another land owner for the relocation of the unlawful
occupier”.
59
The point to be made is that courts may not grant eviction orders
unless it is just and equitable to do so, and there is nothing
in
the Act that even remotely suggests that eviction orders may be
granted by a court when it is not just and equitable to do
so.
An organ of
state on the other hand cannot secure an eviction order against an
unlawful occupier merely on the basis that it is
just and equitable
to do so. It must in addition establish to the satisfaction of a
court that it is in the public interest
to grant an order of
eviction
60
at the instance of the municipality. And the municipality, too,
cannot evict an occupier who is there with the consent of the
owner. All it can do is to require the owner to upgrade the
property so that it is rendered fit for human habitation.
61
If the owner of property consents to the occupation and upgrades
the property in accordance with the reasonable requirements
of the
municipality, the municipality can do nothing. It must be
emphasised in this context that, far from authorising
municipalities
to evict outside the terms of the PIE Act, section
16 of the Act itself obliges municipalities to proceed in terms of
the PIE
legislation.
The last
observation that must be made is that section 16 will be
inconsistent with the Constitution if any of the grounds advanced
by the applicants withstand scrutiny. If owners or municipalities
were obliged to institute eviction proceedings even if the
requirements of the PIE Act are not complied with and without
reasonable engagement, the provision would be invalid.
In what
circumstances can eviction proceedings be brought?
It was
contended that the section 16 MEC notice would oblige owners and
municipalities to institute eviction proceedings even
if, in their
evaluation, the PIE Act cannot be complied with. In other words,
owners are obliged to institute eviction proceedings
even if they
are convinced that they cannot establish that it is just and
equitable for an eviction order to be granted. And
municipalities
would be compelled to bring eviction proceedings in a court even if
they have no evidence to establish that it
is just and equitable
and that it is in the public interest to grant the eviction order.
Section 16, so it is submitted, is
inconsistent with section 26(2)
of the Constitution and the PIE Act because it does not say in so
many words that the owner or
municipality are required to institute
eviction proceedings only if they have the evidence to establish
the requirements of the
PIE Act. The concerns of the applicants
are in all the circumstances understandable.
In my view,
though the Act may be reasonably capable of the interpretation
contended for by the applicants, that construction
is not
appropriate. Section 16 of the Act requires both owners and
municipalities to proceed in terms of the PIE Act. It is,
in my
view, a necessary implication of this requirement that they should
approach a court for eviction of any unlawful occupier
only if they
are able to establish the requirements for eviction in terms of the
PIE Act. If the municipality and the owner
were obliged by the Act
in express terms to proceed with eviction of unlawful occupiers
even where the requirements of the PIE
Act could not be
established, the provision would be irrational, in conflict with
the Constitution and the PIE Act and invalid.
But the Act does not
say this in so many words. On the contrary, it requires the owner
or municipality to proceed in terms
of the PIE Act. A construction
of the section that obliges owners and occupiers to approach a
court for eviction in terms of
the PIE Act, even if it is
impossible for the requirements of the PIE Act to be established,
cannot hold water.
In addition
section 10 of the Act allows a municipality to institute ejectment
proceedings:
“
subject to section 6 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act, the Constitution, and any other
national legislation protecting
the housing or occupational rights of persons . . . .”
It is
moreover, trite that the legislature cannot be taken to have
intended absurd consequences. As was said by Ngcobo J in
CUSA
62
“[a] legislative
intention cannot be construed to bring about an absurdity.”
63
It would be an absurd result if legislation that expressly
requires a party to proceed in terms of the PIE Act is interpreted
to mean that the legislature intended the parties concerned to
proceed with eviction proceedings even if the PIE Act cannot be
complied with. Having specifically obliged the municipality or
owner to proceed in terms of the PIE Act, the provincial
legislature
could not have intended these parties to proceed with
eviction proceedings irrespective of whether the PIE Act had been
complied
with.
The majority
judgment errs in two respects. First, it does not give full weight
to (in fact it virtually ignores) the words “in
a manner provided
for in section 4 or 5 of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act” contained
in section 16(1)
as well as the obligation on the municipality to “invoke the
provisions of section 6 of the Prevention of
Illegal Eviction from
and Unlawful Occupation of Land Act” prescribed by section 16(2)
of the Act. This Court has made it
plain that “if the language
used by the lawgiver is ignored in favour of a general resort to
‘values’ the result is not
interpretation but divination.”
64
It does not matter whether the words of a law are simply ignored
or whether they are ignored in favour of a general resort to
values. Words should not be ignored.
The second
reason is that the majority judgment resorts to an interpretation
that gives rise to absurd results. Ordinarily, courts
are
required, if possible, to avoid absurdity if the ordinary words
give rise to it. Contrary to this approach, the majority
judgment
indeed creates an absurd result by ignoring words.
And it is not
so that a requirement that the municipality must proceed only if it
has evidence to comply with the PIE Act means
that the municipality
is given a discretion. The municipality’s obligation to
institute eviction proceedings is simply qualified
by the
obligation to proceed in terms of the PIE Act. The obligation
comes into play only if there is evidence that the PIE
Act has been
complied with. There is in that event no discretion.
The discretion
of the owner or municipality?
There is no
doubt that the Act, upon the expiry of the period stipulated in the
section 16 notice, obliges owners and municipalities
to evict
unlawful occupiers who are liable to eviction in terms of the PIE
Act. On the other hand the PIE Act does not oblige
owners or
municipalities to institute eviction proceedings. It simply
empowers them to do so and, according to the applicants’
submission, leaves it to them to decide whether to evict. The Act
takes away this choice once the period stipulated in the section
16
notice expires. The applicants contend that section 16, by taking
away this choice, is in conflict with the PIE Act. I do
not agree.
Owners of
property have always had the right to decide whether they should
evict unlawful occupiers. That right was not conferred
by the PIE
Act but existed before the PIE Act became part of our
constitutional legislative order. The purpose of the PIE Act
was
not to confer the right to decide whether to evict but to limit
that right by providing that evictions would not follow as
a matter
of course merely because the occupation was unlawful. The PIE Act
did not confer a right of eviction on organs of state
and owners.
All it did was to limit the right of owners and municipalities to
evict at the time when they had the right to do
so.
There can be a
conflict, in my view, only if the PIE Act, on a proper
construction, either expressly or by necessary implication
demands
that no provincial legislation can compel an owner or municipality
to evict regardless of the circumstances. The PIE
Act does not
provide this expressly nor can I find any basis to conclude that
there is a necessary implication to this effect.
The position may
have been different if the PIE Act had provided that no owner or
municipality may be obliged by any law to
evict any unlawful
occupier, or even if the section provided expressly that owners or
municipalities should not be obliged to
institute ejectment
proceedings. In other words, for there to be a conflict between
the Act and the PIE Act, the PIE Act ought
in some way to have
conferred on the owner of property or the municipality the
inalienable right to decide on eviction regardless
of the
circumstances and even if the owner does not consent to the
occupation. The PIE Act does not achieve this. Nor does
the law
or the Constitution confer on municipalities the right to allow
continued unlawful occupation of property even if their
eviction is
in the public interest and is just and equitable.
A last resort
The applicants
rely on the fact that the national Housing Act and the National
Housing Code stipulate that unlawful occupiers
must be evicted from
their homes only as a matter of last resort. They submit that
section 16 obliges evictions even if other
options are available
and even if evictions are not necessary as a last resort. The
National Housing Code makes it plain that
occupiers must not be
evicted from their homes if it is possible to upgrade the areas in
which they live as well as their homes.
It is in this sense that
people in occupation of their homes are to be evicted only as a
matter of last resort. I have already
pointed out that the Act
provides for upgrading
65
and for the MEC to monitor this process, to approve upgrading
projects and their financing.
66
And section 10
of the Act empowers the municipality to institute eviction
proceedings subject to all national legislation that
affords
protection to unlawful occupiers. It follows that eviction can be
ordered by a court only if the granting of that order
is consistent
with the national Housing Act and the National Housing Code. Any
applicant for eviction must make that allegation
and establish it.
If they cannot establish the allegation, they cannot be obliged to
apply for eviction. This means that the
applicants for eviction
must establish that the eviction sought is consistent with the
national Housing Act and the National
Housing Code.
Is reasonable
engagement precluded?
The applicants
contend that section 16 is in conflict with section 26(2) of the
Constitution and the PIE Act because it obliges
eviction without
reasonable engagement. Now neither section 26(2) of the
Constitution nor the PIE Act expressly requires reasonable
engagement. The requirement has been made applicable by judgments
of this Court. It is this Court which has held that reasonable
engagement is not only required by section 26(2) of the
Constitution
67
but is also mandated in all evictions under the PIE Act;
68
evictions sought in the context of housing development. As I have
already pointed out, owners and municipalities can evict only
in
terms of the PIE Act. This means that all applicants for eviction
must comply with the requirements expressly stipulated
in the PIE
Act and the Constitution as well as with all other requirements
that have been judicially stipulated. In the circumstances,
all
applicants for eviction must engage reasonably before instituting
eviction proceedings. If it appears as a result of the
process of
engagement, for example, that the property concerned can be
upgraded without the eviction of the unlawful occupiers,
the
municipality cannot institute eviction proceedings. This is
because it would not be acting reasonably in the engagement
process. I therefore disagree with the submission that reasonable
engagement is excluded by the Act.
The notice by
the MEC
In oral
argument before us, counsel for the applicants, against the
background of the submissions made in the written argument,
contended that the provision enabling the MEC to issue a notice
compelling owners and municipalities to institute eviction

proceedings is irrational and therefore inconsistent with the
Constitution. The submission was that all the MEC is empowered to
do by section 16 is to stipulate, in the notice, a date from which
all municipalities and all owners are obliged to evict all
unlawful
occupiers. This, regardless of whether the properties can be
upgraded and appropriate relocation is possible. A literal
construction of section 16 could indeed lead to this conclusion.
In this sense, the interpretation postulated is one that may
be
said to be reasonable. However, it will result in
unconstitutionality because a notice of this kind will in my view
be
irrational. It conjures up the spectre of the notice of the MEC
compelling all owners and municipalities in all areas of the

province of KwaZulu-Natal to evict all unlawful occupiers
regardless of the circumstances.
If however,
the provisions are capable of a reasonable interpretation which
renders the provision constitutionally compliant,
we must resort to
that construction.
69
Against this background, I proceed to construe the section to
determine whether:
the section
16 notice can refer to all unlawful occupiers in the province of
KwaZulu-Natal regardless of the circumstances of
their unlawful
occupation; and
the MEC’s
notice can be generally applicable to all property in the province
of KwaZulu-Natal.
Section 16
does not limit the compulsory eviction to unlawful occupiers of
land or buildings that perpetuate slum conditions.
This creates
the possibility, at least in theory, that the MEC’s notice would
have an impact on every unlawful occupier.
In my view, the MEC
cannot competently issue a notice that applies to all unlawful
occupiers, regardless of whether they live
in slum conditions or
whether their eviction is necessary to eliminate and/or to prevent
the re-emergence of slums. This is
because, at the very least, the
MEC has the power to issue a notice in terms of the Act if, and
only if, the notice is consistent
with and is aimed at achieving
the purpose and objective of the Act. In other words, the notice
will be competent if it is a
step in slum elimination, slum control
or the prevention of their re-emergence. A notice that is not
carefully tailored to achieve
these results would not be authorised
by the statute. A notice that specifies the vacation of property
that is not necessary
for slum elimination will probably be
invalid. The notice would therefore ordinarily apply to land or a
building that is a slum
or which must be vacated for the
elimination of slums or the prevention of their re-emergence.
The next
question is whether the notice can simultaneously apply to all
slums in the province of KwaZulu-Natal or whether the
Act envisages
that the notice would apply to land or a building which is a slum
as defined in the Act and which is individually
particularised in
the notice. In my view, for the reasons that follow, the Act
contemplates that the notice can be issued only
in respect of
specified property that constitutes a slum. In the first place,
section 16 does not refer to owners, municipalities
and land or
buildings in what may be called a collective sense. In terms of
section 16(1) an owner or person (not owners or
persons) in charge
of land or a building (not buildings) is obliged to institute
eviction proceedings. In similar vein, section
16(2) provides that
a municipality (not municipalities) within whose area of
jurisdiction the land or building (not buildings)
falls must
institute eviction proceedings, if the owner or person in charge
(not owners or persons in charge) fails to comply
with the notice.
This suggests a process by which the MEC must identify each
property and each owner separately.
The second
reason for this construction is contextual. The MEC will issue the
section 16 notice in the slum elimination process
which that office
closely monitors. The office of the MEC will, in the process of
performing this monitoring function, in relation
to each slum
within the area of jurisdiction of each municipality receive
details of its location, the identity of its owner,
the description
of the property as well as the estimated number of people in
occupation of that slum.
70
The annual progress reports must contain information at the same
level. The MEC will therefore have details of the progress
of
achieving the objects of the Act in relation to each slum. The
notice of the MEC can only refer to those slums in relation
to
which he concludes, in the process of the performance of the
monitoring function, that eviction is necessary to achieve the
objects of the Act.
The notice
must be seen as part of the process of the upgrading and relocation
of people that municipalities must engage in so
as to eliminate
slums. If municipalities co-operate and issue ejectment
proceedings in every case in which eviction is necessary,
in order
to implement the objectives of the Act, it will not be necessary
for the MEC to give the section 16 notice in the slum
elimination
process. The MEC will need to give that notice only if the
eviction is necessary in the process of slum elimination.
It is an
accepted principle that an apparently wide discretion conferred on
any authority by legislation must be narrowed down
in the light of
the purpose of the legislation. As Ngcobo J said:
71
“
The answer to the attack on
s 22C(1)
(a)
is that counsel for the applicants is giving too wide an
interpretation on the subsection. The power of the Director-General

to prescribe conditions under subsection is limited by the context
in which these powers are to be exercised. Thus the power to
prescribe conditions must be exercised in the light of, amongst
other considerations, the government purpose of increasing access
to
medicines that are safe for consumption, the purpose for which the
discretionary powers are given and the obligations of medical
practitioners who have been issued with dispensing licences. All
this provides sufficient constraint on the exercise of the
discretionary
powers conferred by the subsection.
Thus, in determining what
conditions to prescribe, the Director-General will be guided by the
provisions of the Medicines Act read
in the light of its objectives
and policies. In particular, the Director-General will be guided by
the government purpose behind
the licensing scheme, namely the need
to increase the access to medicines that are safe for consumption.
In addition, the Director-General
will be guided by the relevant
provisions of the regulations, such as those that set out the
obligations of the persons who have
been issued with licences.”
72
Apparently
wide powers given to the MEC by the Slums Act to issue the section
16 notice must likewise be constrained by the purpose
of the
legislation, the way in which it seeks to achieve that purpose as
well as the overall context in which that purpose is
to be
achieved. A notice issued by the MEC that requires the wholesale
eviction of all unlawful occupiers inconsistently with
the purpose
of the Act would undoubtedly be invalid. One cannot construe the
constitutionality of a provision on the basis that
the MEC will, in
issuing the section 16 notice, do so in a manner that is
inconsistent with the Act and the Constitution.
This brings me
to the question of why the section was necessary in the context of
existing legislation. It has been suggested
that the fact that the
provision is wholly unnecessary in the context of the existing
legislative framework renders the incorporation
of the section into
the legislation suspect. The argument is that municipalities and
owners can evict if they so wish. How
can it ever become necessary
for them to be compelled to institute eviction proceedings? Common
sense tells us that there may
be times when municipalities would,
for one reason or another, fail or refuse to evict certain unlawful
occupiers even if their
eviction would be necessary in the
reasonable implementation of the slum elimination programme, be
just and equitable and in
the public interest. If this were to
happen, the inaction of the municipality could jeopardise a slum
elimination programme
and result in considerable suffering and
pain. Section 16 is on the statute books precisely in order to
prevent municipalities
from holding the process of slum elimination
to ransom for one or other reason. The section can be said to be
unnecessary only
if one concludes that municipalities would always
make appropriate decisions in the slum elimination process, even if
those decisions
are hard ones that necessitate the eviction of poor
people. I am not so sanguine.
It is the
owner or the municipality, in the final analysis, that must make
the decision whether to evict unlawful occupiers pursuant
to the
MEC’s section 16 notice. Both are required to engage reasonably
before evicting and, as I have pointed out earlier,
the engagement
could have a material impact on the question whether the eviction
is just and equitable and on the issue of whether
the eviction is
in the public interest. It is the municipality or the owner who
must be satisfied about the existence of these
requirements. It is
therefore not necessary for the MEC to be satisfied that an
eviction by some other entity would be just
and equitable and in
the public interest. That is the determination to be made where
necessary by the municipality or owner
concerned. It must be borne
in mind that the notice would compel eviction proceedings only on
the assumption that the municipality
is of the view that the
requirements of the PIE Act have been met and that a court will
grant an eviction order only if this
is so.
I summarise
the scope, consequences and requirements of section 16 as follows—
the notice is
issued in the process of slum elimination;
it can only
be issued in respect of property that perpetuates slum conditions
and is a slum;
the MEC must
identify the property or properties to which the notice relates;
it must be
necessary to evict the unlawful occupiers from the property or
properties concerned to achieve the objects of the
Act;
the owner is
obliged to evict only if she has not consented to the occupation
and only if, on the evidence available, the eviction
is just and
equitable;
a
municipality is obliged to evict consequent upon the notice only
if it can establish that it is just and equitable and that
it is
in the public interest that the unlawful occupiers concerned be
evicted.
The majority
judgment takes the opportunity (which might be said to be provided
by the summary above) to make the point that the
interpretation
contended for in this judgment is not a reasonable one because six
matters are added to the legislation. Indeed,
the point is made
that the summary demonstrates that this judgment takes over the
legislative function. This approach is, in
my view, simplistically
quantitative. I make two observations to demonstrate this.
The first
four items in the summary contained in the previous paragraph
arise from our obligation to take into account the purpose
of the
legislation as well as the context in the process of limiting the
apparently wide discretion of the MEC to issue the
section 16
notice.
The last two
items in the summary are a direct result of our obligation to take
into account and give full effect to the fact
that the
municipality and the owner are expressly required to proceed in
terms of the PIE Act.
I would
therefore hold that section 16 is consistent with the Constitution,
the PIE Act, the national Housing Act as well as the
National
Housing Code.
It follows
that my difficulties with the majority judgment relate crucially to
three aspects. The majority judgment:
does not give
due or any weight to the fact that section 16 of the Act obliges
the municipality and the owner to proceed in
terms of the PIE Act;
interprets
section 16 so as to give rise to absurd consequences; and
determines
the ambit of the discretion of the MEC to issue the notice without
regard to the purpose of the Act.
Costs
In my view,
the lack of specificity and clarity in the Act gave rise to serious
fears and concerns on the part of the applicants
who were justified
in starting these proceedings. This judgment has resolved
ambiguities and averted consequences that might
have followed from
an over-literal interpretation of the Act. The adjudication of
this case was in the interests not only of
the KwaZulu-Natal
provincial government but in the public interest. The applicants
have assisted in this process and should
be burdened neither with
their own costs nor with the costs of the respondents either in
this Court or in the High Court. The
respondents should be ordered
to pay the applicants’ costs both in the High Court and in this
Court.
Other
provincial legislation
This judgment
has left no doubt that the Act is not a model of clarity. To the
extent that other provinces await the guidance
of this Court before
they decide on the nature of similar legislation, it is fair to say
that this judgment signifies that the
Act, though constitutionally
compliant, is not exemplary legislation. Provinces will no doubt
take this judgment into account
if they choose to prepare similar
legislation.
I would
therefore have granted the application for leave to appeal,
dismissed the appeal but would nevertheless have ordered the
respondents to pay the costs of the applicants including those of
two counsel.
MOSENEKE DCJ
Introduction
The
first applicant is Abahlali baseMjondolo Movement of South Africa,
a voluntary association which acts in the interests of
several
thousands of people who live in informal dwellings. They are
represented by its president, Mr Sibusiso Zikode, the second
applicant.
In the isiZulu language, Abahlali
baseMjondolo literally means “occupiers of informal homes”.
These occupiers are sometimes
referred to as “shack dwellers”.
The
papers show that the residents of the informal settlements
affiliated to the applicants occupy no less than 15 informal

settlements located in Durban, Tongaat and Pietermaritzburg within
the province of KwaZulu-Natal. The settlements have been there
for
several years now. The residents describe their homes as “shacks”
which are said to be made of mud-brick, wood, corrugated
iron or
plastic. The residents are poor. Many of them benefit from low
paid domestic work and gardening “piece” jobs in
neighbouring
affluent suburbs. The residents live in fear of eviction.
Virtually all of them are either unaware of who owns
the land they
live on or know that they have no formal permission from the owner
or person in charge of the land they live on.
They readily admit
that they are unlawful occupiers within the meaning of section 1 of
the PIE Act.
For
that reason, they are in desperate need of adequate housing and
have no security of tenure. They fear that certain provisions
of
the KwaZulu-Natal Elimination and Prevention of Re-emergence of
Slums Act 6 of 2007 (the Slums Act) will render them significantly
more vulnerable to eviction than would otherwise be the case. They
see the provincial legislation as capable of undermining
the
cluster of national laws that have been passed with the express
purpose of shielding homeless people with insecure land tenure.
They
approached the High Court for an order invalidating the Slums Act
on the grounds that the provincial legislature had no power
to
enact it because, they argued, its subject-matter is land tenure,
73
which does not fall within the competence of the province and the
national legislature. They also sought to persuade the High
Court
that sections 9, 11, 12, 13 and 16 of the Slums Act are
constitutionally bad. The High Court dismissed their claim.
Before
this Court, they seek leave to appeal the decision of the High
Court. However, what is different is that the applicants
have
abandoned their constitutional attack against sections 9, 11, 12
and 13. There are thus two crisp questions to be resolved.
The
first is whether the provincial legislature had the requisite
competence to legislate on the subject matter of the Slums
Act.
The second is whether section 16 of the Slums Act withstands
constitutional scrutiny.
I
have had the benefit of reading the well-worked and comprehensive
judgment of my esteemed colleague Yacoob J. I, however, arrive
at
a different outcome. In my view, section 16 of the Slums Act is
inconsistent with section 26(2) of the Constitution and for
that
reason is invalid.
I
would accordingly grant leave to appeal, uphold the appeal and
order that the respondents pay the applicants’ costs in the
High
Court and in this Court, including costs of two counsel.
Before
I furnish reasons for the conclusions I reach, I briefly identify
areas of agreement between us. Firstly, I agree that
this matter
raises constitutional issues and that leave to appeal should be
granted, as it is in the interests of justice to
do so.
74
Secondly,
I agree that we should not admit into evidence the report submitted
by the Centre on Housing Rights and Evictions (COHRE
Report) but on
grounds somewhat different from those advanced by my colleague,
Yacoob J.
75
The COHRE Report documents incidences of evictions and demolitions
of shacks by municipalities, which resulted in homelessness.
It
gives an account of the omission by certain local authorities in
KwaZulu-Natal to implement national housing programmes as
required
by housing legislation. In many ways, the COHRE Report highlights
the anxieties of vulnerable people that they may
become victims of
arbitrary evictions by local authorities. Their fear stems from
their precarious land tenure and lack of adequate
housing. I think
that the more compelling reason why the Report should not be
admitted is that the narrow exercise confronting
us is mainly
interpretive. We are called upon to determine whether the
provisions of section 16 of the Slums Act accords with
the
Constitution and national housing legislation. To that end, the
COHRE Report is not relevant in this case.
It
is so that in an appropriate case, background material of the kind
found in the COHRE Report may provide valuable context within
which
the interpretive exercise may occur. The lived experiences of
claimants that speak to the impact of the impugned legislation
may
be relevant to its proper interpretation. This Court has on
numerous occasions recognised the value of contextual analysis
as
an aid to a proper understanding of legal provisions.
76
In this case, the task can be well accomplished without relying on
the perceived threat of widespread evictions.
77
In any event, the live impact of the impugned provisions is not
known because this challenge was mounted even before the Member
of
the Executive Council (MEC) had taken any measures in terms of
section 16 of the Slums Act.
Thirdly,
I agree with Yacoob J that the subject matter of the Slums Act
relates primarily to housing.
78
Schedule 4 of the Constitution provides for functional areas of
concurrent national and provincial legislative competence.
It
lists housing as a concurrent competence. That means that a
provincial legislature enjoys the power to make laws on housing
concurrently with national legislation. I agree that the Slums Act
falls well within the province’s legislative competence.
This
disposes of one of the two remaining attacks which the applicants
mounted against the constitutional validity of the Slums
Act.
This
conclusion may be readily reached by ascertaining the core purpose
of the Slums Act. This is done best by reading the Slums
Act as a
whole. Its Preamble echoes the constitutional right of access to
affordable housing for all citizens. It acknowledges
that national
housing legislation encourages provincial governments to enact
legislation which will facilitate the achievement
of adequate and
affordable housing. It records that the legislation introduces
measures to eliminate slums and to prevent their
re-emergence in
order to protect the housing and construction programmes of
provincial and local governments.
79
In
the objects of the Slums Act, the purpose to eliminate slums and to
prevent their re-emergence is restated.
80
But the objects also make clear a commitment to improving the
living conditions of communities. The MEC bears the duty to

promote and facilitate the provision of adequate housing.
81
He or she is responsible for approving any project recommended by
a municipality to upgrade or improve a slum or informal settlement
and for providing funds for the financing of such projects. The
MEC is enjoined to do everything necessary to achieve these
housing
objectives.
On
the other hand, Chapter 4 is replete with provisions that are
directed at the role of municipalities in the progressive
realisation
of the right to adequate housing.
82
Municipalities may decide to make available alternative land or
buildings for the relocation of people living in slums.
83
In certain instances, the municipality may acquire land or
buildings for the purpose of setting up a transit area for
temporary
accommodation of persons who are evicted from a slum
pending their permanent accommodation.
84
There
is another self-evident reason, which is not purely textual and
which tells us why the primary preoccupation of the Slums
Act is
housing. The Slums Act provides for measures related to slums and
informal settlements. Both of these are places where
people live
and have their homes, and their homes are houses. Their homes may
not amount to adequate housing, but they are homes
for as long as
the residents have no other or adequate housing.
Section
16 of the Slums Act
The
applicants contend that section 16 makes it compulsory for
municipalities to institute proceedings for eviction of unlawful
occupiers where the owner or person in charge of the land fails to
do so within the time period prescribed by the MEC. They
argue
that the provision violates section 26(2) of the Constitution in
three respects: (a) it precludes meaningful engagement
between
municipalities and unlawful occupiers;
85
(b) it violates the principle that evictions should be a measure of
last resort; and (c) it undermines the precarious tenure
of
unlawful occupiers, by mandating the institution of eviction
proceedings and obliterating the established procedures under
the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act
86
(the PIE Act) and the protection it affords to unlawful occupiers.
Section
16 provides:
“
(1) An owner or person in
charge of land or a building, which at the commencement of this Act
is already occupied by unlawful occupiers
must, within the period
determined by the responsible Member of the Executive Council by
notice in the
Gazette
, in a manner provided for in section 4
or 5 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, institute
proceedings for the eviction of
the unlawful occupiers concerned.
(2) In the event that the owner
or person in charge of land or a building fails to comply with the
notice issued by the responsible
Member of the Executive Council in
terms of subsection (1), a municipality within whose area of
jurisdiction the land or building
falls, must invoke the provisions
of section 6 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act.”
At
the outset of his analysis of section 16 of the Slums Act, Yacoob J
found it necessary to draw a definitional difference between
“informal settlements” and “slums” in the Slums Act.
87
This he does presumably in order to limit the application of the
provisions of section 16 to slums and to the exclusion of informal
settlements. This, in my view, may be a distinction without a
difference. The absence of “infrastructure or sanitation”
88
in an informal settlement often means that it is squalid and
overcrowded. An informal settlement is not permanent and, until
the government upgrades it, the residents live under constant
threat of eviction. Invariably, its residents have little or no
security of tenure. Their position cannot be differentiated from
that of residents of a slum. It is, therefore, doubtful whether
it
would be appropriate to give “slum” a narrow meaning which in
effect places informal settlements beyond the scope of the
Slums
Act. The Slums Act carries several provisions which expressly
regulate informal settlements alongside slums.
89
The legislature thus sought to draw a distinction between them.
But this does not mean that section 16 of the Slums Act does
not
apply to informal settlements.
I
am also wary of drawing lines between people who are forced to live
in slums and those who have no option but to live in informal
settlements. As we gather from the two definitions in the Slums
Act, in both instances they are people who live on the margins
of
our society in squalid conditions. They are similarly situated:
both are poor, without adequate infrastructure or secure
tenure,
and therefore equally vulnerable. Nothing suggests that the
differentiation between slums and informal settlements is
necessary
for the pursuit of the prime objects of the legislation to
eliminate slums: to prevent their emergence and to improve
the
living conditions of the communities by providing alternative
accommodation or adequate housing.
90
There
is another important reason why the distinction between informal
settlements and slums is untenable for purposes of understanding
the meaning of section 16 of the Slums Act. On its face, section
16 simply requires eviction proceedings to be initiated against
unlawful occupiers. It does not make any reference whatsoever to
any distinction between unlawful occupiers to be found in a
slum or
in an informal settlement. And therefore any limitation of its
scope of application to slums is one which must be justifiable
in
the context of the purpose of the Act.
Happily,
we need not decide this definitional wrangle because it is not
necessary for purposes of ascertaining whether the provisions
of
section 16 of the Slums Act are consistent with the Constitution.
Even if the provisions of section 16 were to apply only
to unlawful
occupiers within slums, the provision would not pass constitutional
muster. Therefore, it seems to matter not for
the purpose of
understanding section 16 whether it deals only with slums or with
slums as well as informal settlements.
It
is so that the scope of section 16 is limited. It applies to
unlawful occupiers who were in occupation of land or a building
before the Slums Act commenced. What is beyond doubt is that when
the MEC in a notice requires so, the provision makes it obligatory
for an owner or person in charge of land or a building to approach
a court in order to evict unlawful occupiers. If the owner
fails
to do so, the obligation falls upon the municipality. The owner or
municipality must do so in terms of the relevant provisions
of the
PIE Act. This means that courts may grant an eviction order only
when it is just and equitable to do so after weighing
carefully all
relevant factors applicable to an eviction sought by a private
owner
91
or by a municipality or an organ of state.
92
Discretion
of owners and municipalities
However,
crucially, section 16 is silent on whether the owners or
municipalities are free not to institute eviction proceedings
if,
in their evaluation, the eviction will not be justified under the
PIE Act. The applicant contends that the section obliges
owners
and municipalities to ask a court to eject unlawful occupiers even
if they are certain that it may not be just and equitable
or in the
public interest to do so. Yacoob J accepts that the provision is
reasonably capable of the construction contended
for by the
applicants. But holds that the more appropriate interpretation is
that municipalities and owners are not obliged
to follow the notice
of the MEC if, in their view, the requirements of the PIE Act
cannot be proven.
93
Does
section 16 mean that it is in the exclusive discretion of an owner
or municipality to decide whether to start eviction proceedings
in
the light of the evidentiary material it may have to satisfy the
requirements of the PIE Act? I respectfully think not.
The
applicants are correct that section 16 is not reasonably capable of
a meaning that permits owners and municipalities to heed
the MEC’s
notice only if they know that they can satisfy a court that the
eviction is fair or in the public interest. This
interpretation
makes the owner or municipality the only judge of whether PIE is
likely to be satisfied. It pulls the coercive
teeth of section 16.
It renders the provision nugatory.
That
in my view is not a plausible interpretation of section 16. An
appropriate construction is one that recognises the coercive
import
of section 16. This means that owners and municipalities must
evict when told to do so by the MEC in a notice. On that
interpretation, section 16 is at odds with section 26(2) of the
Constitution because it requires an owner or municipality to
proceed with eviction of unlawful occupiers even if the PIE Act
cannot be complied with.
Related
to the coercive nature of section 16 is the fact that the PIE Act
does not compel any owner or municipality to evict unlawful
occupiers. Section 16 does. I am unable to support the reasoning
that says that whilst the PIE Act does not compel eviction
proceedings it does not prohibit legislation providing for the kind
of compulsion required by section 16. In my view, to the
extent
that section 16 eliminates discretion on the part of the owner or
municipality, it erodes and considerably undermines
the protections
against the arbitrary institution of eviction proceedings. It
renders those who are unlawful occupiers and who
are invariably
found in slums and informal settlements liable to face eviction
proceedings which, but for the provisions of section
16, would not
have occurred.
Last
resort and reasonable engagement
Are
obligatory evictions under section 16 required to be made as a last
resort and do they permit reasonable engagement? This
question is
prompted by the applicants who contend that compulsory evictions
made in compliance with section 16 are not a step
of last resort.
This contention is premised on the provisions of the national
Housing Act
94
and of the National Housing Code
95
which stipulate that unlawful occupiers must be ejected from their
homes only as a last resort. Section 16 is silent on this
matter.
On its face, it is clearly in conflict with the national Housing
Act and the National Housing Code because the requirement
for
instituting eviction proceedings against unlawful occupiers is no
more than that the MEC must so direct. The fact that section
16 of
the Slums Act may be in conflict with national legislation does not
in itself mean that it is invalid, since provinces
are entitled to
regulate differently in areas of concurrent competence, subject to
section 146 of the Constitution.
96
However, provincial legislation must always conform with the
Constitution.
Yacoob
J resolves this matter through interpretation. He takes the view
that the obligatory evictions under section 16 must be
read subject
to the national Housing Act and the National Housing Code.
97
This would again mean that the owner or municipality may only
evict as a matter of last resort and after having taken all

possible steps to upgrade areas in which homeless people live. On
this interpretation it also means that eviction can take place
only
after a reasonable engagement as required by section 26(2) of the
Constitution has occurred. This of course means that
no evictions
should occur until the results of the proper engagement process are
known. Proper engagement would include taking
into proper
consideration the wishes of the people who are to be evicted;
whether the areas where they live may be upgraded
in situ
;
and whether there will be alternative accommodation. The
engagement would also include the manner of eviction and the
timeframes
for the eviction.
98
In
my view, that interpretation is not reasonably plausible. It has
the effect of re-writing section 16 in a manner that is not
apparent on its face and that is in conflict with the coercive
design of section 16 to eliminate slums and informal settlements.

Put otherwise, if in fact institution of eviction proceedings under
section 16 may be resorted to only as a measure of last
resort and
only after reasonable engagement, then its obligatory provisions
serve no useful purpose in advancing the object of
the Slums Act.
The proper view is that section 16 cannot be reconciled with the
national Housing Act and the National Housing
Code, both of which
have been passed to give effect to section 26(2) of the
Constitution. However, as already pointed out, this
on its own
does not mean that section 16 is invalid.
The
MEC’s notice
Does
a plain reading of section 16 authorise the MEC to specify in a
notice a date by which all owners and municipalities are
obliged to
evict all unlawful occupiers without regard to distinguishing
circumstances? This question was posed by the applicants
as part
of the contention that the notice mechanism through which the
compulsory institution of proceedings is achieved is irrational
because the power of the MEC is overbroad and not appropriately
calibrated in relation to the purpose sought to be advanced by
the
provision. That power may be exercised in relation to all unlawful
occupiers, including those who do not live in slum conditions.
In
other words, the power is not rationally related to the purpose of
eradicating slums and informal settlements.
99
Yacoob
J suggests again that this potential irrationality of section 16
may be cured by reading down its provisions to mean that
the notice
would be valid only if it is consistent with, and is aimed at,
achieving the purpose and objective of the Slums Act.
100
This means that the notice must be appropriately tailored to apply
to slums only or to prevent their re-emergence. He further
holds
that section 16 must be read to be limited to a land or building
that is a slum and that is individually particularised
in the MEC’s
notice.
101
Again,
in my view, the notice mechanism set up by section 16 is clearly
irrational and overbroad and for that reason, seriously
invasive of
the protections against arbitrary evictions to be found in section
26(2) of the Constitution, read together with
the PIE Act and the
national housing legislation.
It
is now appropriate to remind oneself that our Constitution requires
courts, when interpreting any legislation, to promote the
spirit,
purport, and object of the Bill of Rights.
102
It is so that “where a statutory provision is reasonably capable
of a construction that would bring it in line with the Constitution
it is that construction which must be preferred provided that it is
not strained”.
103
Courts must give legislation a purposive and contextual
interpretation in order to achieve this end.
Yet,
whilst it is important to prefer an interpretation that avoids any
constitutional inconsistency, we must be careful not to
choose an
interpretation which cannot be readily inferred from the text of
the provision. In
National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs
,
104
Ackermann J warns that “a construction is not a reasonable one,
however, when it can be reached only by distorting the meaning
of
the expression being considered.”
105
In
my view, section 16 may be rendered consistent with section 26(2)
of the Constitution and the applicable national legislation
only by
distorting its meaning or by reading into it numerous
qualifications which cannot be readily inferred from the text under
consideration. Whilst the goal of the Slums Act may be a salutary
one aimed at eliminating and preventing slums and at providing
adequate and affordable housing, I cannot find that section 16 is
capable of an interpretation that promotes these objects.
There
is indeed a dignified framework that has been developed for the
eviction of unlawful occupiers and I cannot find that section
16 is
capable of an interpretation that does not violate this framework.
Section 26(2) of the Constitution, the national Housing
Act and the
PIE Act all contain protections for unlawful occupiers. They
ensure that their housing rights are not violated without
proper
notice and consideration of other alternatives. The compulsory
nature of section 16 disturbs this carefully established
legal
framework by introducing the coercive institution of eviction
proceedings in disregard of these protections.
Rule
of law and section 16
Yacoob
J suggests that we could overcome the facial invalidity of section
16 by reading in at least six qualifications which he
specifies in
the judgment.
106
I think not. An intrusive interpretation of this magnitude
offends requirements of the rule of law and of the separation of
powers.
The
rule of law is a founding value of our constitutional democracy.
107
Its content has been expanded in a long line of cases. It
requires that the law must, on its face, be clear and
ascertainable.
108
To read in one qualification to achieve constitutional conformity
is very different from reading in six. Indeed, reading in
so many
qualifications inevitably strains the text.
109
This is all the more so when the legislation in issue affects
vulnerable people in relation to so vital an aspect of their lives
as their security of tenure. It will be impossible for people in
the position of the applicants, even if advised by their lawyers,
to be clear on how this provision will operate. The same will
indeed apply to others affected by the law, such as owners, and
to
the bureaucrats charged with applying it.
There
can be no doubt that the over-expansive interpretation of section
16 is not only strained but also offends the rule of law
requirement that the law must be clear and ascertainable. In any
event, separation of power considerations require that courts
should not embark on an interpretative exercise which would in
effect re-write the text under consideration.
110
Such an exercise amounts to usurping the legislative function
through interpretation.
The
papers inform us that the Slums Act is seen as pilot legislation
which may be duplicated in other provinces if it is effective.
We
were told that other provinces are awaiting guidance from this
Court before deciding on similar legislation. This underscores
the
need for clarity.
We
find section 16 to be unconstitutional in offending against section
26(2) of the Constitution and the rule of law. To the
extent that
justification is in issue at all, the province sought to tender
none, relying solely on interpretation. We can find
none.
In
the light of the above, I conclude that section 16 of the Slums Act
is inconsistent with the Constitution and invalid. This
means that
the order of the High Court should be set aside, the appeal
succeeds and the respondents are ordered to pay costs.
The
order
The
following order is made:
The application for leave to appeal is granted.
The appeal is upheld to the extent set out herebelow.
The order of the High Court is set aside.
It is declared that section 16 of the KwaZulu-Natal Elimination
and Prevention of Re-emergence of Slums Act 6 of 2007 is
inconsistent with the Constitution and invalid.
The first and second respondents are ordered to pay the costs of
the first and second applicants in the High Court and in
this
Court, which costs shall include costs consequent upon the use of
two counsel.
Langa CJ, Cameron
J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya
J and Van der Westhuizen J concur in the
judgment of Moseneke DCJ.
For the Applicant:
For the Second and
Third Respondents:
For the Fourth
Respondent:
Advocate W Trengove
SC, Advocate H Barnes and Advocate K McLean
instructed by the Wits
Law Clinic.
Advocate JJ Gauntlett
SC, Advocate AA Gabriel instructed by Shepstone and Wylie.
Advocate R Seegobin SC
instructed by the State Attorney, Durban.
1
6 of 2007.
2
Previously known as the Durban and Coast Local
Division of the High Court but renamed by the
Renaming of High
Courts Act 30 of 2008
.
3
The judgment, delivered by Tshabalala JP on 27
January 2009, is reported as
Abahlali
baseMjondolo Movement SA and Another v Premier, KwaZulu-Natal, and
Others
2009 (3) SA 245
(D);
2009 (4)
BCLR 422
(D&CLD).
4
In May 2009,
the name of the national portfolio
responsible for Housing was changed to Human Settlements and that of
Land Affairs to Rural Development
and Land Reform.
5
Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998.
6
107 of 1997.
7
Promulgated in terms of section 4 of the national
Housing Act.
8
Above n 3 at para 32.
9
Id at para 36.
10
Id at paras 37-8.
11
Section 167(7) of the Constitution.
12
Section 38 of the Constitution, to the extent
relevant, provides:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. . . .”
13
Section 104(b)(i).
14
Section 104(b)(ii).
15
Section 25(5) provides:
“
The
state must take reasonable legislative and other measures, within
its available resources, to foster conditions which enable
citizens
to gain access to land on an equitable basis.”
16
Ex Parte Speaker of the KwaZulu-Natal Provincial Legislature:
In Re KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of
1995; Ex Parte Speaker of the KwaZulu-Natal Provincial Legislature:
In Re Payment of Salaries, Allowances and Other Privileges to the
Ingonyama Bill of 1995
[1996] ZACC 15
;
1996 (4) SA 653
(CC);
1996 (7) BCLR 903
(CC) at para 19.
17
Western Cape Provincial Government and Others: In Re DVB
Behuising (Pty) Ltd v North West Provincial Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at para
36. See also
Ex Parte President of the Republic of South Africa:
In Re Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000
(1) SA 732
(CC);
2000 (1) BCLR 1
(CC) at paras 63-4 and 68.
18
Liquor Bill
above n 17 at
para 62.
19
The section provides:
“
Subject
to the provisions of the Housing Act, 1997 (Act No. 107 of 1997),
the responsible Member of the Executive Council must promote
and
facilitate the provision of adequate housing throughout the Province
within the framework of the national policy on housing
development.”
20
It is however not a reproduction as contended for
by the applicants.
21
12 of 1998.
22
I consider it unnecessary to set out the
provisions of the legislation for purposes of this judgment.
23
103 of 1997.
24
Sections 6, 10 and 16.
25
Section 5.
26
Section 15(3).
27
Some may consider the repeated use of the word “slum” in the Act
unfortunate. I do not however think it has a pejorative meaning.
28
Section 9.
29
Section 9(1).
30
Section 9(1)(a).
31
Section 9(1)(b).
32
Section 9(1)(c).
33
Section 9(1)(d).
34
Section 9(1)(e).
35
Sections 9(2) and 9(3).
36
Section 11.
37
Section 11(1).
38
Sections 11(1)(a) and (b).
39
Section 11(1)(c).
40
Section 11(1)(d).
41
Section 14.
42
Dealt with in more detail in section 12 of the
Act.
43
Section 13.
44
Section 14.
45
See Chapter
3.
46
Section 8.
47
Section 5.
48
Section 6.
49
Section 15.
50
Section 16.
51
Sections 9(1), 10 and 19.
52
Sections 2(2), 4(2), 6(2), 10 and 16.
53
Section 1 of the Act.
54
Id.
55
Section 10.
56
Section 15 provides:
“
(1) An owner or person in charge of vacant land or
building must, within twelve months of the commencement of this Act,
take reasonable
steps to prevent the unlawful occupation of such
vacant land or building.
(2) In the event that the owner or person in charge of
vacant land or building fails to comply with subsection (1), a
municipality
within whose area of jurisdiction the vacant land or
building falls must give written notice to the owner or person in
charge thereof
to, within 30 days of receipt of such notice—
(
a
) comply
with the provisions of subsection (1); or
(
b
) give
reasons for failure to comply.
(3) The failure by the owner or person in charge of
vacant land or building to comply with the notice issued in terms of
subsection
(2) constitutes an offence.”
57
Section 5 of the Act.
58
Sections 4(6) and 4(7) of the PIE Act.
59
Id at
section 4(7).
60
Id at section 6(1).
61
Section 14.
62
CUSA v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC).
63
Id at para 95.
64
S v Zuma
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 18.
65
See [34] above.
66
See [37] above.
67
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC
7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC);
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 15-7;
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 paras 84
and 87.
68
Port Elizabeth Municipality
above n 67 at paras 39-45. See
also the judgment of Yacoob J concerning the requirement of
reasonable engagement on which there
was no demur in the case of
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
and Others
[2009] ZACC
16
; Case No CCT 22/08, 10 June
2009, as yet unreported,
at paras 115-7.
69
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras 22
and 26. See also
Bertie van Zyl (Pty) Ltd and Another v Minister
for Safety and Security and Others
[2009] ZACC 11
; Case No CCT
77/08, 7 May 2009, as yet unreported, at para 20;
Du Toit v
Minister of Transport
[2005] ZACC 9
;
2006 (1) SA 297
(CC);
2005
(11) BCLR 1053
(CC) at para 29;
Daniels v Campbell NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC) at para
20;
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC) at para 72;
Islamic Unity Convention v
Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para 40; and
S v
Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) at para 37.
70
Section 11(1)(a) and (b).
71
Affordable Medicines Trust and Others v
Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC).
72
Id at paras 38-9.
73
A similar argument found favour in this court in
Western
Cape Provincial Government and Others: In Re DVB Behuising (Pty) Ltd
v North West Provincial Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at paras
3 and 107-8.
74
See [11]-[17] above.
75
See [18]-[19] above.
76
On contextual analysis, see
Department of Land Affairs and Others
v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
(6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at paras 24 and 71-81;
Van
der Merwe v Road Accident Fund and Another (Women’s Legal Centre
Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at para 66. On constitutional or legislative
interpretation, see
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 101-3.
77
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
and Others
[2009] ZACC
16
; Case No CCT 22/08, 10 June
2009, as yet unreported,
at paras 115-7;
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);
Port Elizabeth Municipality v
Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12)
BCLR 1268
(CC).
78
See [40] above.
79
The Preamble of the Slums Act states as follows:
“
WHEREAS
the provision of affordable housing for all citizens in South
Africa, and especially those sectors of the community who,
prior to
the advent of democracy in South Africa, were disadvantaged
politically and economically, is a cornerstone in the building
of a
stable and healthy national community;
AND
WHEREAS everyone has a constitutional right to have access to
affordable housing;
AND
WHEREAS section 7 of the Housing Act, 1997 (Act No. 107 of 1997),
encourages provincial governments to, amongst other things,
enact
legislation which will facilitate the achievement of the objective
of providing adequate and affordable housing;
AND
WHEREAS the KwaZulu-Natal Housing Act, 1998 (Act No. 12 of 1998),
was duly enacted by the KwaZulu-Natal provincial government
to
afford everyone in the Province access to affordable housing;
AND
WHEREAS one of the objectives of both the Housing Act, 1997 (Act No.
107 of 1997), and the KwaZulu-Natal Housing Act, 1998 (Act
No. 12 of
1998), is to encourage interaction and support between provincial
and local governments in the provision of affordable
housing;
AND
WHEREAS it is desirable to introduce measures which seek to enable
the control and elimination of slums, and the prevention
of their
re-emergence, in a manner that promotes and protects the housing
construction programmes of both provincial and local
governments
BE
IT THEREFORE ENACTED . . .”
80
Section 3 of the Slums Act provides:
“
The
objects of this Act are—
(a) to
eliminate slums;
(b) to
prevent the re-emergence of slums;
(c) to promote co-operation between the department and
municipalities in the elimination of slums;
(d) to promote co-operation between the department and
municipalities in the prevention of the re-emergence of slums;
(e) to monitor the performance of the department and
municipalities in the elimination and prevention of the re-emergence
of slums;
and
(f) to
improve the living conditions of the communities, in the Province.”
81
Section 7 of the Slums Act provides:
“
Subject
to the provisions of the Housing Act, 1997 (Act No. 107 of 1997),
the responsible Member of the Executive Council must promote
and
facilitate the provision of adequate housing throughout the Province
within the framework of the national policy on housing
development.”
82
Section 9(1) of the Slums Act.
83
Section 12 of the Slums Act.
84
Section 13 of the Slums Act.
85
As to the requirement of meaningful engagement,
see
Residents of Joe Slovo Community
above n 5 at paras 167, 237 and 239-44;
Occupiers
of 51 Olivia Road
above n 5 at paras 16-8.
The duty on the state to engage in consultation with affected
persons in the context of housing, and
particularly where threatened
with eviction, was established in
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 87
and reaffirmed in
Port Elizabeth
Municipality
above n 5 at paras 39 and 42
(which discusses the vital role of mediation between parties seeking
eviction and those sought to be
evicted).
86
19 of 1998.
87
See [45]-[48] above.
88
Section 1 of the Slums Act.
89
Sections 8(1)(e)(i) and (ii); 9(2); 22(1)(a), (c) and (e).
90
Section 3 of the Slums Act.
91
Section 4(6) and (7) of the PIE Act provides as follows:
“
(6) If
an unlawful occupier has occupied the land in question for less than
six months at the time when the proceedings are initiated,
a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering all the
relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed by women.
(7) If
an unlawful occupier has occupied the land in question for more than
six months at the time when the proceedings are initiated,
a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering all the
relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the
relocation of the
unlawful occupier, and including the rights and needs of the
elderly, children, disabled persons and households
headed by women.”
Section
5 of the PIE Act provides as follows:
“
(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.
.
. .”
92
Section 6 of the PIE Act provides as follows:
“
(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.
. . .”
93
See [58] above.
94
107 of 1997.
Section 2(1)(b)
of the
Housing Act provides
:
“
National,
provincial and local spheres of government must—
.
. .
(
b
)
consult meaningfully with individuals and communities affected by
housing development”.
95
Chapter 13 of the National Housing Code provides that municipalities
“must demonstrate that effective interactive community

participation has taken place in the planning, implementation and
evaluation of the project” at 9. It also provides that “[w]here
possible, relocations should be undertaken in a voluntary and
negotiated manner. Mechanisms to ensure that the land is not
re-occupied
must be identified during this process. Legal processes
should only be initiated as a last resort and all eviction-based
relocations
must be undertaken under authority of a court order”
at 20.
96
Section 146 of the Constitution provides:
“
(1) This section applies to a
conflict between national legislation and provincial legislation
falling within a functional area
listed in Schedule 4.
(2) National legislation that
applies uniformly with regard to the country as a whole prevails
over provincial legislation if any
of the following conditions is
met:
(a)
The
national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the respective provinces
individually.
(b)
The
national legislation deals with a matter that, to be dealt with
effectively, requires uniformity across the nation, and the
national
legislation provides that uniformity by establishing—
(i)
norms
and standards;
(ii) frameworks;
or
(iii) national
policies.
(c)
The
national legislation is necessary for—
(i)
the
maintenance of national security;
(ii) the
maintenance of economic unity;
(iii) the
protection of the common market in respect of the mobility of goods,
services, capital and labour;
(iv) the
promotion of economic activities across provincial boundaries;
(v) the
promotion of equal opportunity or equal access to government
services; or
(vi) the
protection of the environment.
(3)
National
legislation prevails over provincial legislation if the national
legislation is aimed at preventing unreasonable action
by a province
that—
(a)
is
prejudicial to the economic, health or security interests of another
province or the country as a whole; or
(b)
impedes
the implementation of national economic policy.
(4) When there is a dispute
concerning whether national legislation is necessary for a purpose
set out in subsection (2)
(c)
and that dispute
comes before a court for resolution, the court must have due regard
to the approval or the rejection of the legislation
by the National
Council of Provinces.
(5) Provincial legislation prevails
over national legislation if subsection (2) or (3) does not apply.
(6) A law made in terms of an Act of
Parliament or a provincial Act can prevail only if that law has been
approved by the National
Council of Provinces.
. . . ”
In
Mashavha v
President of the Republic of South Africa and Others
[2004] ZACC 6
;
2005 (2) SA 476
(CC);
2004 (12) BCLR 1243
(CC) at
paras 37 and 50, this Court considered the application of section
126 of the interim Constitution, which dealt with concurrent
competence of provincial and national legislatures, now governed by
section 146 of the Constitution.
97
See [43] above.
98
Above n 13.
99
In
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC
1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 85;
Chaskalson P held that “[i]t
is a
requirement of the rule of law that the exercise of public power by
the executive and other functionaries should not be arbitrary.

Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and
inconsistent with this requirement.” See further
Affordable Medicines Trust and Others v
Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
at para 75.
100
See [72] above.
101
Id.
102
Section 39(2) of the Constitution provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
103
Yacoob J, writing for the minority in
Centre
for Child Law v Minister for Justice and Constitutional Development
and Others
[2009] ZACC 18
, Case No CCT
98/08, 15 July 2009, as yet unreported, at para 108. See also
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004]
ZACC 15
;
2004
(4) SA 490
(CC);
2004
(7) BCLR 687
(CC) at
para 72;
National Director of Public
Prosecutions and Another v Mohamed NO and Others
[2003]
ZACC
4;
2003
(4) SA 1
(CC);
2003
(5) BCLR 476
(CC) at
para 35
[2001] ZASCA 51
; ;
2001
(8) BCLR 779
(SCA) at
para 20;
S v Dzukuda and Others; S v Tshilo
[2000]
ZACC 16
;
2000
(4) SA 1078
(CC);
2000
(11) BCLR 1252
(CC) at
para 37;
Investigating Directorate: Serious
Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others: In Re Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000]
ZACC 12
;
2001
(1) SA 545
(CC);
2000
(10) BCLR 1079
(CC) at
paras 21-6;
National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others
[1999]
ZACC 17
;
2000
(2) SA 1
(CC)
[1999] ZACC 17
; ;
2000
(1) BCLR 39
(CC) at
paras 23-4;
De Lange v Smuts NO and Others
[1998]
ZACC 6
;
1998
(3) SA 785
(CC);
1998
(7) BCLR 779
(CC) at
para 85; and
Bernstein and Others v Bester
and Others NNO
[1996] ZACC 2;
1996
(2) SA 751
(CC)
[1996] ZACC 2
; ;
1996
(4) BCLR 449
(CC) at
para 59.
104
Above n 31.
105
Id at para 23.
106
See [80] above where Yacoob J finds:
“
I
summarise the scope, consequences and requirements of section 16 as
follows—
the
notice is issued in the process of slum elimination;
it
can only be issued in respect of property that perpetuates slum
conditions and is a slum;
the
MEC must identify the property or properties to which the notice
relates;
it
must be necessary to evict the unlawful occupiers from the
property or properties concerned to achieve the objects of the
Act;
the
owner is obliged to evict only if she has not consented to the
occupation and only if, on the evidence available, the eviction
is
just and equitable; and
a
municipality is obliged to evict consequent upon the notice only
if it can establish that it is just and equitable and that
it is
in the public interest that the unlawful occupiers concerned be
evicted.”
107
Section 1(c) of the Constitution.
108
Bertie Van Zyl (Pty) Ltd
and Another v Minister for Safety and Security and Others
[2009] ZACC 11
, Case No CCT 77/08, 7 May 2009, as yet unreported, at
paras 22 and 100. See further
South
African Liquor Traders’ Association and Others v Chairperson,
Gauteng Liquor Board, and Others
[2006]
ZACC 7
;
2009 (1) SA 565
(CC);
2006
(8) BCLR 901
(CC) at paras 27-8;
Affordable
Medicines
above
n 27
at
para 108;
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 47.
109
National Director of Public Prosecutions and Another v Mohamed NO
and Others
above n 31 at para 35.
110
In
Doctors for Life International v Speaker of the National
Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006
(12) BCLR 1399
(CC) at para 37, Ngcobo J, writing for the majority,
held that:
“
[t]he constitutional principle of separation of
powers requires that other branches of government refrain from
interfering in parliamentary
proceedings. This principle is not
simply an abstract notion; it is reflected in the very structure of
our government. The structure
of the provisions entrusting and
separating powers between the legislative, executive and judicial
branches reflects the concept
of separation of powers. The
principle ‘has important consequences for the way in which and the
institutions by which power
can be exercised.’ Courts must be
conscious of the vital limits on judicial authority and the
Constitution’s design to leave
certain matters to other branches
of government. They too must observe the constitutional limits of
their authority. This means
that the Judiciary should not interfere
in the processes of other branches of government unless to do so is
mandated by the Constitution.”
(Footnote omitted.)
See further
Glenister
v President of the Republic of South Africa and Others
[2008]
ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC)
at para
35.