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[2009] ZACC 33
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Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 31/09
[2009]
ZACC 33
In
the matter between:
JOHNSON
MATOTOBA NOKOTYANA AND OTHERS Applicants
and
EKURHULENI
METROPOLITAN MUNICIPALITY First Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
LOCAL
GOVERNMENT AND HOUSING, GAUTENG Second Respondent
NATIONAL
MINISTER FOR HUMAN SETTLEMENTS Third Respondent
DIRECTOR-GENERAL:
NATIONAL DEPARTMENT
OF
HUMAN SETTLEMENTS Fourth Respondent
Heard
on : 15 September 2009
Decided
on : 19 November 2009
JUDGMENT
VAN
DER WESTHUIZEN J:
Introduction
The Constitution explicitly recognises
social and economic rights with regard to housing,
1
as well as healthcare, food, water and social security.
2
On several occasions this Court has been called on to decide
difficult issues in connection with access to health care,
3
housing
4
and water,
5
as well as the provision of electricity.
6
This is understandable. Our history is one of land dispossession,
institutionalised discrimination and systemic deprivation.
The need
for housing and basic services is still enormous and the differences
between the wealthy and the poor are vast.
This case is about sanitation and
lighting. More specifically, it is about the quest of a community
in an informal settlement
to have toilets. They want one
“ventilated improved pit latrine” (somewhat ironically
referred to as “VIP”
latrines) per household, instead of
the one chemical toilet per ten families offered to them by the
authorities, in the place
of their existing pit latrines. The
community also asks for high-mast lighting to enhance safety and
access by emergency vehicles.
They rely on their right of access to
adequate housing, other constitutional rights and certain statutory
provisions.
7
The applicants, Mr Nokotyana and
others, approached the South Gauteng High Court (High Court) on
behalf of residents of the Harry
Gwala Informal Settlement
(Settlement), located in the area of jurisdiction of the first
respondent, the Ekurhuleni Metropolitan
Municipality (Municipality).
They sought an order against the Municipality to provide them with
basic services, pending a decision
on whether the Settlement would
be upgraded to a formal township. After having achieved only
partial success, they seek leave
to appeal to this Court.
8
The facts illustrate that the plight
of the poor is desperate and that their patience is often tested to
the limit by unfortunate
and unjustified delays. The case shows
that the role of courts in the achievement of socio-economic goals
is an important but
limited one and that bureaucratic efficiency and
close co-operation between different spheres of government and
communities are
essential.
It is perhaps ironic, but not
coincidental, that the Settlement carries the name of a well-known
icon of the struggle against
the oppression and inequality of
apartheid, who dedicated his life to the pursuance of social,
political and economic equality
through the socialist principles in
which he believed and taught.
9
Parties
Mr Nokotyana instituted these
proceedings against the Municipality in terms of section 38 of the
Constitution.
10
As a result of directions issued by this Court, the Member of the
Executive Council for Local Government and Housing of the
Province
of Gauteng (MEC), the national Minister for Human Settlements
(Minister) and the Director-General of the national Department
of
Human Settlements (DG), whom the applicants did not cite as parties,
were joined as second, third and fourth respondents respectively
in
the proceedings before this Court. These parties lodged affidavits,
made written submissions and appeared at the hearing.
Factual background
During the 1980s the residents of the
Settlement occupied a piece of empty land on the eastern edge of
Wattville Township. Some
time ago, the South African Iron and Steel
Industrial Corporation (ISCOR), one of the owners of the land,
initiated a process
of relocation and many of the occupiers
voluntarily moved to an area called Chief Albert Luthuli
11
Extension 4. There is a dispute between the applicants and the
respondents about the existence of basic services at Extension
4.
Mr Nokotyana and the other residents however refused to move away
from the Settlement, citing as reasons the absence of schools
and
the distance they would have to travel from the new development to
their places of work.
In August 2006 the Municipality
submitted a proposal, in terms of Chapter 13 of the National Housing
Code,
12
to the MEC to upgrade the status of the Settlement to a formal
township, which would entitle them to services they are not
currently receiving. Some three years later a final decision on the
proposal is still being awaited. The applicants submit that,
pending the decision on whether the Settlement is going to be
upgraded, the Municipality is required in terms of its obligations
under the Constitution, legislation and the National Housing Code to
provide the Settlement with certain basic services with
immediate
effect.
13
The Municipality takes the view that, in terms of the National
Housing Code,
it may not provide basic services that
require extensive capital outlay until the decision on whether to
upgrade has been taken
and that the obligation to provide certain
services in the case of an emergency does not arise here.
From the papers it appears that the
number of households in the Settlement has been increasing
substantially. It is estimated
that at present there are
approximately 1 000 households in the Settlement. There are
110 informal settlements within the
area of jurisdiction of the
Municipality, comprising some 140 000 households. Countrywide, an
estimated 1,8 million households
in informal settlements currently
reside in squalid conditions. This represents probably 7 to 8
million people. Currently 502
informal settlement upgrading
projects are being implemented nationally. Most of the informal
settlements in South Africa are
situated in the bigger urban areas.
In the High Court
The applicants sought an order against
the Municipality, pending the decision to upgrade the Settlement, to
provide the Settlement
with (1) communal water taps, (2) temporary
sanitation facilities, (3) refuse removal and (4) high-mast lighting
in key areas.
The claim was essentially based on sections 26 and 27
of the Constitution and Chapters 12 and 13 of the National Housing
Code.
14
In the High Court, the Municipality
accepted its obligation to provide water taps and refuse removal
services. Based on the Municipality’s
attitude, the Court
ordered it to provide these basic interim services immediately.
The High Court found that Chapter 12
of the National Housing Code did not apply, because the emergency
housing requirements as
defined therein were not present. It
furthermore held that Chapter 13 of the Housing Code was only of
application once a decision
had been taken to upgrade an informal
settlement, which had not yet happened in this case. It therefore
found that a case had
not been made out for the provision of
temporary sanitation facilities and high-mast lighting.
The High Court also found no
suggestion that the Municipality was not carrying out its
obligations to take all reasonable and
necessary steps, within the
framework of national and provincial housing legislation and policy,
to ensure that services are
provided in a manner which is
economically efficient.
The applicants now approach this Court
seeking the provision of temporary basic sanitation services and
high-mast lighting.
Preliminary issues
A few preliminary issues have to be
decided. These are whether this application raises a constitutional
matter, whether it is
in the interests of justice for this Court to
hear the matter without the benefit of a judgment by the Supreme
Court of Appeal,
whether condonation should be granted for the late
filing of the Municipality’s written argument and whether the
considerable
volume of documents filed in this Court, which did not
form part of the record in the High Court, should be admitted.
As to the first, the applicants raise
questions relating to the applicability of several constitutional
and statutory provisions
(especially section 26 of the Constitution,
which provides for the right of access to adequate housing) as well
as what the content
of the rights is. These are constitutional
matters, which are important to communities all over the country and
to all spheres
of government.
It is generally preferable for a
litigant to exhaust all appeal remedies and especially not to
by-pass the Supreme Court of Appeal.
15
However, a decision by the Supreme Court of Appeal would most
likely not finally dispose of this matter, as a further appeal
to
this Court is highly probable. As the residents of the Settlement
have already been subjected to long delays, it is in the
interests
of justice for this Court to hear the matter directly.
The reasons provided by the
Municipality for filing its written argument one day late are
sufficient to justify condonation.
No prejudice was caused and the
application was not opposed. Condonation should be granted.
In this Court, both the applicants and
the Municipality sought to tender new evidence. This Court has
expressed itself strongly
on the filing of new evidence on appeal.
16
There are two problems with the submission of new evidence on
appeal. First, it tends to change the issues that were before
the
court below, or even introduce new issues, thus rendering this Court
a court of first and final instance. Second, the submission
of new
evidence – and especially large volumes – in an appeal
is generally highly undesirable and cumbersome. The
documentation
in this case includes policy instruments
17
and some 307 pages of articles
18
and other documents filed together with the applicants’
written argument. The Municipality also tendered evidence of a
new
policy on the provision of temporary sanitation services which was
adopted on 16 April 2009, after the delivery of the High
Court
judgment.
19
The applicants sought to challenge
this new policy too, on the basis that it is irrational and cannot
be regarded as a reasonable
measure to achieve the right of access
to adequate housing in terms of section 26(1) and (2) of the
Constitution. However, it
is not appropriate on appeal to consider
a case so fundamentally changed. In the circumstances, it is not
necessary to consider
the new evidence lodged by either the
applicants or the Municipality and the rationality and
reasonableness, or lack thereof,
of the policy embodied in the
evidence.
The applicants’ case
It is not easy to describe the
applicants’ case accurately, because of the way it was
presented. While they claimed temporary
sanitation facilities and
high-mast lighting in key areas to enhance community safety and
access by emergency vehicles in the
High Court, they insist before
this Court on one VIP latrine per household with immediate effect,
or alternatively one VIP latrine
per two households. They still
insist on the high-mast lighting. According to them, these
constitute basic sanitation and electricity.
The policy adopted by the Municipality
in April 2009 provides for one chemical toilet per ten families.
20
As stated above, the applicants contend in this Court that this
policy is irrational and unreasonable. The applicants furthermore
submit that some of the stands fall into Wattville Township, where
an electricity grid is available and which could be extended
to
provide the basic minimum core electricity services.
The applicants rely on the right of
access to adequate housing, guaranteed in section 26
21
of the Constitution. They also rely on sections 2,
22
7,
23
10,
24
39
25
and 173
26
of the Constitution and on Chapters 12 and 13 of the National
Housing Code.
They submit that the High Court erred
in finding that the applicants were not entitled to relief in terms
of Chapters 12 and 13
of the National Housing Code. The High Court
furthermore failed to find that the right of access to adequate
housing, read with
the Housing Act,
27
the National Housing Code
28
and the Water Services Act,
29
imposes a mandatory minimum core content as far as free basic
sanitation is concerned. The mandatory minimum obligation to
provide free basic sanitation cannot be defeated by budgetary
constraints, they argue. The High Court also erroneously found
that
the Municipality was carrying out its obligation to take all
reasonable steps to ensure that services are provided in an
economically efficient manner, according to the applicants.
Some of the above contentions and the
statutory provisions on which they are based require a brief
exposition. The main legislative
and policy instruments enacted to
give effect to the state’s constitutional obligation in
relation to housing are the Housing
Act and the National Housing
Code.
Chapter 12 of the National Housing
Code was introduced after the decision of this Court in
Grootboom
30
and provides for housing assistance in emergency circumstances. It
provides for assistance to people who, for reasons beyond
their
control, find themselves in an emergency housing situation such as
their existing shelter being destroyed or damaged; their
prevailing
situation posing an immediate threat to their lives, health and
safety; or eviction, or the threat of imminent eviction.
Assistance
is rendered “only in emergency situations of exceptional
housing need”.
31
Chapter 13 of the National Housing
Code provides for the upgrading of informal settlements. It relates
to the provision of grants
to a municipality to enable it to upgrade
informal settlements in its jurisdiction in a structured way and on
the basis of a
phased development approach.
32
Counsel for the applicants relied specifically on paragraph 13.7.1
of the chapter. This paragraph provides that municipalities
are
responsible for considering whether a matter merits the submission
of an application for assistance under this chapter.
If the matter
merits the submission of an application, the paragraph provides for
a municipality to take certain action.
33
Paragraph 13.7.1 is based on section
9(1)
34
of the Housing Act. Section 9(1) provides that every municipality,
as part of its process of integrated development planning,
must take
all reasonable and necessary steps within the framework of national
and provincial housing legislation and policy to
ensure that the
inhabitants of its area of jurisdiction have access to adequate
housing on a progressive basis; that conditions
not conducive to the
health and safety of the inhabitants of its area of jurisdiction are
prevented or removed; and that services
in respect of water,
sanitation, electricity, roads, storm water drainage and transport
are provided in a manner which is economically
efficient.
Section 3
35
of the Water Services Act provides that everyone has a right of
access to basic water supply and basic sanitation. Every water
services authority is prompted to take reasonable measures to
realise these rights. The section furthermore requires every water
services authority to provide for measures to realise these rights
in its water services development plan.
Regulation 2 of the Regulations
Relating to Compulsory National Standards and Measures to Conserve
Water (promulgated in terms
of the Water Services Act)
36
describes the minimum standard for basic sanitation services as a
toilet which is safe, reliable, environmentally sound, easy
to keep
clean, provides privacy and protection against weather, well
ventilated, keeps smells to the minimum and prevents the
entry and
exit of flies and other disease-carrying pests.
37
In this Court the applicants further
sought to rely on policy instruments and related statutory
provisions which were not part
of their case before the High Court.
As stated above,
38
these cannot be considered by the Court.
The respondents’ case
The Municipality’s position in
the High Court was that it had no obligation to provide temporary
sanitation services and
high-mast lighting in key areas. Resolution
5 of the policy adopted by the Municipality in April 2009, in order
to deal with
the problem of the interim provision of services to all
informal settlements within its area of jurisdiction,
39
provides that—
“
the maximum amount of
R100 million on the Operational Budget for the 2009/2010 financial
year [will be approved] and thereafter
on a yearly basis until the
need cease to exist, for the provision of interim sanitation to
informal settlements in the form
of chemical toilets, provided at
one toilet per ten families, only in areas where health problems are
associated with community
based pit latrines.”
During the hearing the Municipality
emphasised the development of this policy and made an offer of one
chemical toilet per ten
families. Counsel indicated that the
toilets could be installed by the end of October 2009 and said that
the Municipality would
not object to its offer being concretised in
an order of this Court.
The Municipality is unable to offer
immediate relief as to the high-mast lighting. Resolution 2
provides that “where infrastructure
exists, [efforts will be
made] to provide electricity and lighting (high-mast lighting) to
informal settlements.”
40
The Municipality points out problems which actually render it
beyond its control, such as that permission has to be granted
to
connect to the national electricity grid. It is also unlikely that
high-mast lighting will be provided to an area that has
not yet been
upgraded.
The Municipality contends that the
true difference between the parties is the practical implementation
of measures to achieve
the applicants’ constitutional rights,
not their entitlement to these rights. Thus, it is contended, the
real question
for consideration is whether the Municipality has been
unreasonable in declining to provide the services claimed within the
time-frame
and to the extent that they are claimed. The measures
taken cannot be said not to be reasonable, the Municipality
submits.
41
In the provincial and national
spheres, the MEC, Minister and DG undertake to supplement the funds
of the Municipality in the
amount of R1,1 million, to enable it to
provide one chemical toilet per four households in the Settlement
(instead of per ten
households, as provided for in the
Municipality’s new policy). They stress that this relief
should be granted to the Harry
Gwala Informal Settlement only, on
the basis that the inordinate delay to finalise the application for
the upgrading of the Settlement
constitutes an exceptional
circumstance. They emphasise that they are not in a position to
provide the same relief to other
similarly situated informal
settlements. They furthermore offer to assist the Municipality and
to facilitate the process.
Analysis
The first question is whether the
Municipality is obliged under Chapter 12 of the National Housing
Code to provide the services
the applicants seek. The second is
whether it is obliged to do so under Chapter 13. The third question
is whether, if the Municipality
is not obliged under either of these
Chapters, the applicants are entitled to rely directly on section 26
of the Constitution.
The fourth relates to the relevance of the
Municipality’s new policy. The fifth question is whether it
would be appropriate
to address the delay by the Gauteng Province in
deciding whether the Settlement should be upgraded in an order of
this Court.
The High Court found that the
applicants could not rely on Chapter 12 of the National Housing
Code, because a state of emergency
as contemplated did not exist.
42
Counsel for the applicants contends that this was wrong, because
the applicants indeed live in conditions that pose an immediate
threat to their lives, health and safety and are accordingly in need
of emergency assistance, as provided for in Chapter 12.
43
This argument is misconceived. As
argued by the Municipality, Chapter 12 can only find application
where an emergency has been
determined to exist by the MEC. This
did not happen in this case, nor have the applicants applied for a
declaration to that
effect.
The Municipality furthermore points
out that Chapter 12 clearly states that assistance “will be
limited to absolute essentials”,
that the programme does not
allow “queue jumping” or deviation from priorities in
planning and that it does not permit
the provision of street
lighting “except that the provision of high mast lighting
could be considered in special circumstances”.
The High Court cannot be said to have
erred in finding that the applicants’ reliance on Chapter 12
must fail.
Chapter 13 deals with the
in situ
upgrading of informal settlements. After analysing the criteria
contained in Chapter 13, as well as taking section 9(1) of the
Housing Act into account, the High Court concluded that the
applicants would only be entitled to rely on Chapter 13 once the
decision has been taken to upgrade the Settlement. It is clear from
the wording of the chapter that township development must
under no
circumstances be compromised and that the approval of the general
plan of the areas, the approval of the service design
and standards
and the actual proclamation of the township must be pursued.
44
The principle on which Chapter 13 is thus based is that
capital-intensive services will not be provided until a decision has
been made on whether to upgrade a settlement. The Municipality
reinforced this by referring to the provisions of the Municipal
Finance Management Act, which prohibits “fruitless and
wasteful expenditure”.
45
Only once the layout of a township has been established, can the
infrastructure for the installation of engineering services
be
provided. As pointed out by the Municipality, if this is done
earlier, the cost incurred in providing interim services would
be
wasted.
It seems that the Municipality
complied with the provisions of paragraph 13.7.1,
46
as it did submit an application for assistance under this chapter to
the MEC. The Chapter 13 phased development process provides
for
four phases; the provision of services only come into play in the
second phase, after a decision to upgrade the settlement
has already
been taken by the MEC.
As the Municipality complied with its
duties under Chapter 13 and the decision of the MEC is still
awaited, the applicants’
reliance on Chapter 13 must fail.
The High Court’s conclusion on this point cannot be faulted.
The applicants’ earlier
mentioned reliance on provisions of the Water Services Act in the
High Court as well as in this
Court deals with their original claim
for water taps (which was agreed to in the High Court and ordered by
the Court), as well
as with their claim for basic sanitation
services. In so far as the applicants attempt to rely on Regulation
2 to support their
attack on the Municipality’s newly adopted
policy and their claim for one VIP latrine per household (or two
households),
their submissions cannot be considered, because –
as set out in paragraph 20 above – this attack is a new attack
raised on appeal. It would be inappropriate for this Court to
adjudicate it now. To the extent that they rely on Regulation 2
to
bolster the claim made in their notice of motion that the
Municipality must furnish them with temporary sanitation facilities,
pending the decision whether to upgrade the Settlement, the
Municipality’s response is that Chapter 13 precludes capital
intensive service provision until the decision to upgrade has been
taken. This principle seeks to ensure that public funds are
expended effectively. It cannot be said, in the absence of a
challenge to Chapter 13, that the approach of the Municipality
to
the claim for temporary sanitation services is unreasonable. The
applicants’ submissions in this regard cannot be upheld.
47
Next, the applicants’ reliance
on the Constitution must be addressed. Section 26 states that
everyone has the right of
access to adequate housing. It also
states that the state must take reasonable legislative and other
measures, within its available
resources, to achieve the progressive
realisation of this right.
48
This provision is repeated in respect of the right of access to
health care services, sufficient food and water and social security,
provided for in section 27 of the Constitution.
49
As stated earlier, this Court has dealt with the right of access to
adequate housing,
50
to health care services
51
and to water.
52
Its jurisprudence on social and economic rights was recently
summarised in
Mazibuko
53
and a detailed analysis is not required in the circumstances of this
application.
It was argued on behalf of the
applicants that the right of access to adequate housing, recognised
in section 26 of the Constitution,
must be interpreted to include
basic sanitation and electricity. Counsel for the applicants also
urged this Court to find that
its previous decisions on section 26
were wrong in as much as the right of access to adequate housing was
not given content and
to find that the right in fact has a minimum
content. It is not necessary to make a finding on these
submissions. Chapters
12 and 13 were promulgated to give effect to
the rights conferred by section 26 of the Constitution. They do not
purport to
establish minimum standards.
54
Their manifest purpose is to regulate the provision of services
pending a decision on upgrade, as in this case.
The applicants have not sought to
challenge either chapter of the National Housing Code. This Court
has repeatedly held that
where legislation has been enacted to give
effect to a right, a litigant should rely on that legislation or
alternatively challenge
the legislation as inconsistent with the
Constitution.
55
The applicants recognised this by
relying primarily on Chapters 12 and 13. They also tried to rely
directly on the Constitution
though. They cannot be permitted to do
so. It would not be appropriate for this Court in these proceedings
to consider whether
the Municipality’s new policy complies
with the Constitution, for this reason, as well as in view of the
above-mentioned
inadmissibility of the new documentary evidence in
which the policy is embodied.
56
The applicants furthermore relied on
several other constitutional provisions. Their reliance was however
vague and insufficiently
specified. Where the Constitution contains
both a specific right, and a more general right, it is appropriate
first to invoke
the specific right. Section 39 of the Constitution
requires courts when interpreting the Bill of Rights to promote the
values
that underlie an open and democratic society based on human
dignity, equality and freedom. It is incontestable that access to
housing and basic services is important and relates to human
dignity.
57
It remains most appropriate though to rely directly on the right of
access to adequate housing, rather than on the more general
right to
human dignity.
58
The fourth above-mentioned question is
how this Court should treat the Municipality’s new policy to
supply the Settlement
with one chemical toilet per every ten
families and its express intention to do this in the near future.
Counsel for the Municipality
presented this policy as an offer to
the applicants and agreed that it be incorporated into any order
this Court may make. Counsel
for the applicants urged the Court to
find the policy to be unreasonable and irrational.
All that this Court should do with
regard to the Municipality’s new policy is to note it and
record the Municipality’s
intention and undertaking to act
speedily. For the reasons mentioned earlier in this judgment it is
neither necessary nor proper
to pronounce on the reasonableness or
rationality of the policy, or to include the policy in the order of
this Court.
The offer from the MEC, the Minister
and DG to assist the Municipality with the necessary finances to
provide one chemical toilet
per four families requires attention,
for it may alleviate the desperate situation of those living in the
Settlement, even if
only to a limited degree. It was made clear
that this could only be done on the basis that the circumstances of
the applicants
are exceptional and unique. There are no funds
available to extend the same offer to other communities. The
Municipality is
strongly opposed to accepting the offer, or being
obliged to implement it, as it is of the view that it would amount
to discrimination
against the many other similarly situated
communities under its jurisdiction.
It is tempting to order the
Municipality to accept the assistance offered in order to improve
the lives of at least the applicants
before this Court, by
describing their situation as exceptional and unique. Unfortunately
though, it is not so exceptional or
unique. According to the
Municipality, there are 110 other similar informal settlements
within its area of jurisdiction. In
another 16 cases, the
Municipality informs the Court, the Province has also delayed taking
a decision on applications for upgrading.
Elsewhere in the province
and the country there are thousands more in similarly unsatisfactory
circumstances. It would not
be just and equitable
59
to make an order that would benefit only those who approached a
court and caused sufficient embarrassment to provincial and national
authorities to motivate them to make a once-off offer of this kind.
The remaining question that requires
the attention of this Court is the delay of more than three years on
the part of the Gauteng
provincial government in reaching a decision
on the Municipality’s application to upgrade the Settlement to
a township.
The rights of residents under Chapter 13 are dependent
on a decision being taken. The provincial government should take
decisions
for which it is constitutionally responsible, without
delay. A delay of this length is unjustified and unacceptable. It
complies
neither with section 237 of the Constitution,
60
nor with the requirement of reasonableness imposed on the government
by section 26(2) of the Constitution with regard to access
to
adequate housing.
This is conceded by the MEC. In open
court, packed with residents of the Settlement, counsel for the MEC
stood up and offered
an apology on behalf of the provincial
government – firstly to the Court and then, after being
prompted by the bench –
to the residents of the Settlement, in
isiXhosa, a language they understand.
It is necessary though to incorporate
the need for a speedy decision in an order of this Court. The delay
by the Province is
the most immediate reason for the dilemma and
desperate plight of the residents. As long as the status of the
Settlement is
in limbo, little can be done to improve their
situation regarding sanitation, sufficient lighting to enhance
community safety
and access by emergency vehicles, as well as a
range of other services. Counsel for the MEC indicated that a
period of 12 months
would be sufficient to finalise specialist
feasibility studies and that a one month period would thereafter be
required to decide
whether to upgrade. It is just and equitable to
order the MEC to reach a decision within 14 months.
Costs
Counsel for the applicants asked for
costs from the launch of the application in the High Court, which
should include costs for
disbursements incurred. This is sought
regardless of whether the applicants are successful or not. The
applicants contend that
the three year delay by the provincial
government in processing the application for upgrading should be
taken into account in
the determination of costs.
The Municipality contended that this
is not a matter in which a costs order should be made. Counsel for
the MEC submitted that
the Court should bear in mind that the
provincial government was not a party in the proceedings in the High
Court and should
therefore not be penalised with costs of the whole
suit.
The High Court made no order as to
costs in that court. There is no reason to interfere with that
order.
In this Court the applicants should
not be ordered to pay the costs of any of the respondents, even
though they were largely unsuccessful.
61
They raised important constitutional issues, although their case
was not properly conceived in law. The delay in the decision
on the
part of the Province being one of the root causes of the applicants’
plight, the MEC should pay the applicants’
costs in this
Court.
Order
In view of the above, the following
order is made:
1. Condonation for the late filing of the Ekurhuleni Metropolitan
Municipality’s written argument is granted.
2. The application for leave to appeal is granted.
3. The appeal is dismissed.
4. The Member of the Executive Council for Local Government and
Housing, Gauteng, is ordered to take a final decision on the
Ekurhuleni Metropolitan Municipality’s application in terms of
Chapter 13 of the National Housing Code, published in terms
of
section 4
of the
Housing Act 107 of 1997
, to upgrade the status of
the Harry Gwala Informal Settlement, within 14 months of the date of
this order.
5. The Member of the Executive Council for Local Government and
Housing, Gauteng, is ordered to pay the costs of the applicants
in
this Court.
Moseneke DCJ, Cameron J, Mokgoro J,
Ngcobo J, Nkabinde J, O’Regan J, Sachs J and Skweyiya J concur
in the judgment of Van
der Westhuizen J.
Counsel for the Applicants:
Counsel for the First Respondent:
Counsel for the Second Respondent:
Counsel for the Third and Fourth
Respondents:
Advocate URD Mansingh instructed by
Webber Wentzel.
Advocate J Campbell
SC and Advocate MA Kruger instructed by Bham & Dahya.
Advocate MR
Madlanga SC and Advocate N Rajab-Budlender instructed by the State
Attorney.
Advocate GJ Marcus
SC and Advocate N Mji instructed by the State Attorney.
1
Section 26 of the Constitution provides:
“
(1) Everyone has the right to have access to
adequate housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) No one may be evicted from their home, or have
their home demolished, without an order of court made after
considering all
the relevant circumstances. No legislation may
permit arbitrary evictions.”
2
Section 27 of the Constitution provides:
“
(1) Everyone has the right to have access to—
(a) health care
services, including reproductive health care;
(b) sufficient food and
water; and
(c) social security, including, if they are unable to
support themselves and their dependants, appropriate social
assistance.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of each of these rights.
(3) No one may be refused
emergency medical treatment.”
3
See
Minister of Health and Others v Treatment Action Campaign and
Others
(No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002
(10) BCLR 1033
(CC);
Soobramoney v Minister of Health,
KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC);
1997 (12)
BCLR 1696
(CC).
4
See
Jaftha v Schoeman and Other; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC);
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).
5
See
Lindiwe Mazibuko and Others v City of Johannesburg and Others
[2009] ZACC 28
, Case No CCT 39/09, 8 October 2009, as yet
unreported.
6
Electricity was argued to be a component of the right to access to
adequate housing in
Leon Joseph and Others v City of Johannesburg
and Others
[2009] ZACC 30
, Case No CCT 43/09, 9 October 2009, as
yet unreported, but this issue was not decided.
7
See [21]-[31] below for an exposition of the applicants’ case.
8
See the judgment of the South Gauteng High Court, Johannesburg, Case
No 08/17815, delivered on 24 March 2009, as yet unreported.
See [10]-[14] below on the proceedings in the High Court.
9
Mr Harry Mphephethwa Themba Gwala was imprisoned on Robben Island
from 1964 to 1972 for activities related to the struggle against
apartheid and died on 20 June 1995 after suffering a heart attack.
His ideas and teachings deeply influenced many others who
took up
the struggle for social justice.
10
Section 38 of the Constitution 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. The persons
who may
approach a court are—
(a) anyone acting in
their own interest;
(b) anyone acting on
behalf of another person who cannot act in their own name;
(c) anyone acting as a
member of, or in the interest of, a group or class of persons;
(d) anyone acting in the
public interest; and
(e) an association
acting in the interest of its members.”
11
Chief Albert John Luthuli was elected president-general of the
African National Congress in 1952 and remained in this position
until his death in July 1967. Chief Luthuli was awarded the 1960
Nobel Peace Prize for his part in the anti-apartheid struggle
–
the first African to receive this honour. He was incarcerated in
the prison complex at the Johannesburg Fort, located
on the present
site of the Constitutional Court.
12
Published in terms of
section 4
of the
Housing Act 107 of 1997
. A
revised National Housing Code was approved by the Minister on 13
February 2009, but has not yet been published.
13
The relevant provisions of the Constitution, legislation and the
National Housing Code are set out in more detail at [25]-[31]
below.
14
The relief sought by the applicants in the High Court
was formulated as follows in the prayers of their notice of motion:
“
1. Pending the decision on whether the Harry
Gwala Informal Settlement shall be upgraded
in
situ
the respondent is ordered to comply
with its constitutional and statutory obligations in terms of
sections 26 and 27 of the Constitution
of the Republic of South
Africa, 1996 and Chapters 12 and 13 of the Housing Code read with
Section 9(1)
of the
Housing Act, 1997
, that it provide to the Harry
Gwala Informal settlement, the following basic interim services,
immediately:
Communal
Water Taps: for the provision of water in accordance with the
basic standards required by
Regulation 3(b)
of the Regulations
Relating to Compulsory National Standards and Measures to Conserve
Water promulgated in Government Notice
No. R.509 dated June 2001
in terms of the
Water Services Act, 108 of 1997
;
Temporary
Sanitation Facilities;
Refuse
Removal Facilitation; and
High
Mast Lighting in key areas to enhance community safety and access
by emergency vehicles.”
15
See for example
Dudley v City of Cape Town and Another
[2004]
ZACC 4
;
2005 (5) SA 429
(CC);
2004 (8) BCLR 805
(CC) at para 12;
Mkangeli and Others v Joubert and Others
[2001] ZACC 15
;
2001
(2) SA 1191
(CC);
2001 (4) BCLR 316
(CC) at para 7.
16
See for example
President of the Republic of South Africa and
Others v Quagliani, and Two Similar Cases
[2009] ZACC 1
;
2009
(2) SA 466
(CC) at para 73 and
Rail Commuters Action Group and
Others v Transnet Ltd t/a Metrorail
and Others
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at paras 39
and 47.
17
The policy instruments include: Department of Water Affairs and
Forestry: National Sanitation Task Team “Free Basic Sanitation
Implementation Strategy” (October 2008); Department of Water
Affairs and Forestry: National Sanitation Programme Unit “National
Sanitation Strategy” (August 2005); Department of Water
Affairs and Forestry: National Sanitation Task Team “Sanitation
for a Healthy Nation: Sanitation Technology Options” (February
2002).
18
The articles include Van Vuuren “African Ministers Unite in
Fight Against Backlogs” (2008)
The Water Wheel
16, Van
Vuuren “Sanitation Research Laying the Foundation for
Sustainable Service Delivery” (2008)
Sanitation Supplement
to The Water Wheel
8 and Setswe and Zungu “Can SA Lay a
Claim to a ‘Sanitary Revolution’?” (2008)
The
Water Wheel
34.
19
Resolution of the Ekurhuleni Metropolitan Municipality’
s 4
th
Housing Portfolio Committee Meeting, 16 April 2009. See [22] and
[32-4] below.
20
Id.
21
Above n 1. Their notice of motion in the High Court (above n 14)
also mentioned
section 27
(above n 2), but their submissions focused
on
section 26.
22
Section 2
provides:
“
This Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed
by it must be fulfilled.”
23
Section 7 provides:
“
(1) This Bill of Rights is a cornerstone of
democracy in South Africa. It enshrines the rights of all people in
our country and
affirms the democratic values of human dignity,
equality and freedom.
(2) The state must respect, protect, promote and fulfil
the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the
limitations contained or referred to in section 36, or elsewhere in
the
Bill.”
24
Section 10 provides:
“
Everyone has inherent dignity and the right to
have their dignity respected and protected.”
25
Section 39 provides:
“
(1) When interpreting the Bill of Rights, a
court, tribunal or forum—
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) 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.
(3) The Bill of Rights does not deny the existence of
any other rights or freedoms that are recognised or conferred by
common
law, customary law or legislation, to the extent that they
are consistent with the Bill.”
26
Section 173 provides:
“
The Constitutional Court, Supreme Court of
Appeal and High Courts have the inherent power to protect and
regulate their own process,
and to develop the common law, taking
into account the interests of justice.”
27
Above n 12.
28
Id.
29
108 of 1997.
30
Above n 4.
31
Preface to Chapter 12 of the National Housing Code.
32
Preface to Chapter 13 of the National Housing Code.
33
To this effect paragraph 13.7.1 provides that the Municipality
should:
“
Initiate, plan and formulate applications for
projects relating to the
in situ
upgrading of informal
settlements which in the case of municipalities, which are not
accredited, must be in collaboration with
and, under supervision of
the provincial housing department;
Request assistance from the provincial housing
department on any of the matters concerned if the municipality lacks
the capacity,
resources or expertise;
Submit the application to the relevant provincial
housing department;
Implement approved projects in accordance with
agreements entered into with provincial housing departments in terms
of Section
12.6.6.2 of this Chapter.
Assume ownership of the engineering services installed.
Manage, operate and maintain settlement areas developed
under this Programme.
Ensure as far as possible the availability of bulk and
connector engineering services.
Provide basic municipal engineering services such as
water, sanitation, refuse removal services and other municipal
services.
Provide materials, assistance, and support where
necessary to enable the in situ upgrading project to proceed.
Where necessary, a district municipality must provide
inputs and assistance to a local municipality, and
visa versa
.
Where appropriate, assisting with the transport of
affected persons and their belongings to resettlement sites.”
(Emphasis
added.)
34
Section 9(1)
of the
Housing Act provides
, in relevant part:
“
(1) Every municipality must, as part of the
municipality’s process of integrated development planning,
take all reasonable
and necessary steps within the framework of
national and provincial housing legislation and policy to—
(a) ensure that—
(i) the inhabitants of its area of jurisdiction have
access to adequate housing on a progressive basis;
(ii) conditions not conducive to the health and safety
of the inhabitants of its area of jurisdiction are prevented or
removed;
(iii) services in respect of water, sanitation,
electricity, roads, storm water drainage and transport are provided
in a manner
which is economically efficient”.
35
Section 3 of the Water Services Act provides:
“
(1) Everyone has a right of access to basic
water supply and basic sanitation.
(2) Every water services institution must take
reasonable measures to realise these rights.
(3) Every water services authority must, in its water
services development plan, provide for measures to realise these
rights.
(4) The rights mentioned in this section are subject to
the limitations contained in this Act.”
36
Government Gazette 22355 GN R509, 8 June 2001.
37
Regulation 2 provides that the minimum standard for basic sanitation
services is—
“
(a) the provision of appropriate health and
hygiene education; and
(b) a toilet which is safe, reliable, environmentally
sound, easy to keep clean, provides privacy and protection against
the weather,
well ventilated, keeps smells to a minimum and prevents
the entry and exit of flies and other disease-carrying pests.”
38
See [20] above.
39
Above n 19.
40
Id.
41
In
Mazibuko
above n 5 at para 71, it was held that “[a]
reasonableness challenge requires government to explain the choices
it has
made. To do so, it must provide the information it has
considered and the process it has followed to determine its policy.”
42
Set out in [12] above.
43
Chapter 12.3.1 defines emergency housing
circumstances as follows:
“
This Programme will apply to emergency
situations of exceptional housing need, such situations being
referred to as ‘Emergencies’,
as defined below:
An Emergency exists when the MEC, on
application by a municipality and/or the provincial housing
department, deems that persons
affected,
a. Owing to situations beyond their control:
have
become homeless as a result of a declared state of disaster, where
assistance is required, including cases where initial
remedial
measures have been taken in terms of the Disaster Management Act,
2002 (Act No 57 of 2002) by government, to alleviate
the immediate
crisis situation;
have become homeless as a result of a situation which
is not declared as a disaster, but destitution is caused by
extraordinary
occurrences such as floods, strong winds, severe
rainstorms and/or hail, snow, devastating fires, earthquakes and/or
sinkholes
or large disastrous industrial incidents;
live in dangerous conditions such as on land being
prone to dangerous flooding, or land which is dolomitic, undermined
at shallow
depth, or prone to sinkholes and who require emergency
assistance;
live in the way of engineering services or proposed
services such as those for water, sewerage, power, roads or
railways, or
in reserves established for any such purposes and who
require emergency assistance;
are
evicted or threatened with imminent eviction from land or from
unsafe buildings, or situations where pro-active steps ought
to be
taken to forestall such consequences;
whose
homes are demolished or threatened with imm
inent
demolition, or situations where proactive steps ought to be taken
to forestall such consequences; or
are
displaced or threatened with imminent displacement as a result of a
state of civil conflict or unrest, or situations where
pro-active
steps ought to be taken to forestall such consequences;
live in conditions that pose immediate threats to
life, health and safety and require emergency assistance.
b. Are in a situation of exceptional housing need,
which constitutes an Emergency that can reasonably be addressed only
by resettlement
or other appropriate assistance, in terms of this
Programme.”
44
See for example Chapter 13.11.7(e) which deals with the
establishment of townships.
45
The
Local Government: Municipal Finance Management Act 56 of 2003
defines “
fruitless and wasteful
expenditure”
as “expenditure that
was made in vain and would have been avoided had reasonable care
been exercised”.
46
Para 13.7.1 of the National Housing Code is quoted in full in n 33
above. See also above n 34 where
section 9(1)
of the
Housing Act is
quoted in relevant part.
47
See the applicants’ notice of motion (above n 14), as well as
para 34 of the judgment of the High Court (above n 8). See
also
[20] and n 37 above.
48
Section 26
is quoted in n 1 above.
49
Section 27
is quoted in n 2 above.
50
See
Jaftha
and
Grootboom
above n 4.
51
See
TAC
and
Soobramoney
above n 3.
52
See
Mazibuko
above n 5.
53
Id at paras 46-76.
54
For a discussion on minimum standards see
Mazibuko
above n 5
at paras 56-61.
55
This principle was emphasised in
Mazibuko
above n 5 at para
73, where reference was made to earlier cases:
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
paras 22-6;
MEC for Education, Kwa-Zulu Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) at
para 40 and
South African National Defence Union v Minister of
Defence and Others
[2007] ZACC 10
;
2007 (5) SA 400
(CC);
2007
(8) BCLR 863
(CC) at para 52.
56
See [20] above.
57
See for example
Grootboom
above n 4 at para 23 and
Soobramoney
above n 3 at paras 8-10.
58
See for example
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
;
2000 (8) BCLR 837
at para 35.
59
Section 172(1)(b) of the Constitution provides in relevant part:
“
When deciding a constitutional matter within its
power, a court . . . may make any order that is just and equitable”.
60
Section 237 of the Constitution provides:
“
All constitutional obligations must be performed
diligently and without delay.”
61
As to costs see
Bothma v Els
and Others
[2009] ZACC
27
, Case No CCT 21/09, 8 October 2009, as yet unreported, at paras
89-99. See also
Biowatch Trust v Registrar, Genetic Resources
and Others
[2009] ZACC 14
, Case No CCT 80/08, 3 June 2009, as
yet unreported at para 23.