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[2011] ZACC 8
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Residents of Joe Slovo Community, Western Cape v Thebelisha Homes and Others (CCT 22/08) [2011] ZACC 8; 2011 (7) BCLR 723 (CC) (31 March 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 22/08
[2011]
ZACC 8
In the matter between:
RESIDENTS OF JOE SLOVO COMMUNITY,
WESTERN CAPE
…................................................................................................
Applicants
and
THUBELISHA HOMES
…............................................................................
First
Respondent
MINISTER FOR HUMAN SETTLEMENTS
….......................................
Second
Respondent
MEC FOR HUMAN SETTLEMENTS,
WESTERN CAPE
…....................................................................................
Third
Respondent
together with
CENTRE ON HOUSING RIGHTS
AND EVICTIONS
…................................................................................
First
Amicus Curiae
COMMUNITY LAW CENTRE, UNIVERSITY
OF THE WESTERN CAPE
….............................................................
Second
Amicus Curiae
Decided on : 31 March 2011
JUDGMENT
THE COURT:
This
judgment is about whether an ejectment order, coupled with a
detailed supervisory order (supervised eviction order) concerning
the execution of that order, previously made by this Court, can or
should be rescinded or discharged in the light of changed
circumstances. The order related to about 20 000 people
1
who were residents of an informal settlement that had acquired the
name “Joe Slovo informal settlement”. It was made
pursuant to the provisions of section 6 of the Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act
2
(PIE Act). We mention at the outset that the operation of the order
was suspended more than a year ago.
The
supervised eviction order was granted 21 months ago.
3
The relevant part of the order is fully set out:
. . . .
. . . .
. . . .
The applicants are ordered
to vacate the Joe Slovo Informal Settlement (Joe Slovo) in
accordance with the timetable set
out in annexure “A”
hereto, subject to any revisions to that timetable agreed to in
terms of paragraphs 5 –
7 of this order. The order to
vacate is conditional upon and subject to the applicants being
relocated to temporary residential
units situated at Delft or
another appropriate location on the conditions set out in
paragraphs 8 – 10 below.
The applicants and the
respondents are ordered, through their respective
representatives, to engage meaningfully with each
other with a
view to reaching agreement on the following issues:
5.1 a date upon which the
relocation will commence different to that contemplated in annexure
“A”;
5.2 a timetable for the
relocation process different to that contemplated in annexure “A”;
and
5.3 any other relevant matter
upon which they agree to engage.
The process of engagement
described in the previous paragraph of this order must be
completed by 30 June 2009.
If the process of engagement
results in agreement between the parties, the agreement must be
placed before this Court,
by 7 July 2009 for this Court to
consider whether it is appropriate to issue an order giving effect to
the agreement.
The respondents are ordered
to provide alternative accommodation in the form of temporary
residential units to those applicants
who vacate Joe Slovo.
A temporary residential unit
must be made available to each household moved, and each
temporary residential accommodation
unit:
9.1 that already exists, must in
all respects comply with the specifications in paragraph 10 of this
order; and
9.2 that is newly constructed,
must be of an equivalent or superior quality.
The temporary residential
accommodation unit must:
10.1 be at least 24m
2
in extent;
10.2 be serviced with tarred
roads;
10.3 be individually numbered
for purposes of identification;
10.4 have walls constructed with
a substance called Nutec;
10.5 have a galvanised iron
roof;
10.6 be supplied with
electricity through a pre-paid electricity meter;
10.7 be situated within
reasonable proximity of a communal ablution facility;
10.8 make reasonable provision
(which may be communal) for toilet facilities with water-borne
sewerage; and
10.9 make reasonable provision
(which may be communal) for fresh water.
The respondents are further
directed to engage with the affected residents in respect of each
relocation that is to take
place, the engagement to take place at
least one week prior to the date specified for the relocation in
annexure “A”
or as otherwise specified in an order of
this Court. The engagement must include (but not be limited to)
the following
issues:
11.1 Ascertainment of the names,
details and relevant personal circumstances of those who are to be
affected by each relocation;
11.2 The exact time, manner and
conditions under which the relocation of each affected household will
be conducted;
11.3 The precise temporary
residential accommodation units to be allocated to those persons to
be relocated;
11.4 The need for transport to
be provided to those to be relocated;
11.5 The need for transport of
the possessions of those to be relocated;
11.6 The provision of transport
facilities to the affected residents from the temporary residential
accommodation units to amenities,
including schools, health
facilities and places of work;
11.7 The prospect in due course
of the allocation of permanent housing to those relocated to
temporary residential accommodation
units, including information
regarding their current position on the housing waiting list, and the
provision of assistance to those
relocated with the completion of
application forms for housing subsidies.
The first respondent is
directed, in accordance with its tender to do so, to render
assistance to the parties affected to
move their possessions
insofar as it is reasonably practicable.
The applicants are
interdicted, once they have been relocated from Joe Slovo, from
returning to Joe Slovo for the purpose
of erecting or taking up
residence in informal dwellings.
The applicants are entitled
to remove their informal structures when they leave Joe Slovo.
After the informal dwellings
at Joe Slovo have been vacated in accordance with this order, the
respondents are authorised
to demolish the housing that remains
in the areas vacated.
The parties are directed:
16.1 to lodge affidavits with
the Registrar of this Court not later than 1 December 2009 setting
out a report on:
16.1.1 the implementation of
this order;
16.1.2 the allocation of
permanent
housing opportunities to those
affected by this order.
16.2 to serve copies of the
affidavits on the legal representatives of all the parties.
The respondents are directed
to allocate 70% of the
Breaking New Ground
houses (that is
low-cost government housing available at low rentals) to be built
at the site of Joe Slovo to:
17.1 the current residents of
Joe Slovo; and
17.2 those former residents of
Joe Slovo who left Joe Slovo after the N2 Gateway Housing Project was
launched after being requested
to do so by the respondents or the
City; and who apply for and qualify for this housing.
It is recorded that the
respondents have indicated that the total number of
Breaking
New Ground
houses to be built at the site of Joe Slovo will
not number fewer than 1 500. The respondents are ordered to
inform the
other parties and the Court within 14 days of this
order if this number has changed or is likely to change whereupon
the
Court may issue further directions in this regard.
The second respondent and
third respondent are directed to ensure - in accordance with
their undertakings to do so - that
any successor to the first
respondent agrees to the terms of this order, and agrees to be
bound by the obligations of the
first respondent under this
order.
If a successor to the first
respondent is appointed and becomes bound by the terms of this
order, the first respondent will
be relieved of its obligations
to the extent that they are taken over by its successor, with
effect from the date upon
which the successor becomes bound.
Should this order not be
complied with by any party, or should the order give rise to
unforeseen difficulties, any party
may approach the Court on
notice to the other parties for an amendment, supplementation or
variation of this order.
The first, second and third
respondents are ordered, jointly and severally, to pay 50% of the
costs of the applicants in
this Court, and the High Court, such
costs to include the costs of both teams of legal representatives
employed by the
applicants and the costs of two counsel where two
counsel were employed.
4
It is
well to repeat that the applicants are representatives of the Joe
Slovo community. The first respondent was the developer
of the
settlement; the second respondent is the Minister for Human
Settlements (Minister); and the third respondent is the MEC
for
Human Settlements, Western Cape (MEC).
5
We will refer to all the three respondents collectively as the
government.
Salient
features of the supervised eviction order are identified.
The
order to vacate was qualified
6
to the extent that the applicants could be evicted from the Joe
Slovo settlement only if government complied with a timetable
7
annexed to the order. That timetable provided for a detailed
process for the systematic transfer of all the people occupying
the
settlement to certain temporary accommodation. The process was to
begin about two months after the date of the supervised
eviction
order
8
and end about 10 months
9
later.
The
timetable could be amended but only if a process of engagement
resulted in agreement between the parties concerning the
timing and
process described in paragraph (a) above and only if that agreement
was considered appropriate by this Court. The
agreement, if
concluded, had to be placed before the Court for approval less than
a month after the date of the supervised
eviction order.
10
It follows that if the movement of people did not begin according
to the timetable on 17 August 2009 the government would not
have
been able to evict at all unless there was agreement between the
parties or the order was amended or varied.
11
The
supervised eviction order was subject to numerous conditions. One
of these was that the applicants were to be relocated
to certain
temporary residential units
12
(TRUs) which had to comply with detailed minimum requirements.
13
The
government was obliged, at least one week before the relocation of
a particular family took place, to engage with that family
on
certain details of the relocation
14
including transport needs for the relocation,
15
and the prospect of the allocation of permanent housing to the
family.
16
The
government was empowered to demolish the housing left behind in the
wake of the departure of residents.
17
The
parties were required to report on the implementation of the
ejectment order before 1 December 2009.
18
70%
of the low cost government housing to be built on the site was to
be allocated to Joe Slovo residents and to certain former
Joe Slovo
residents.
19
Most
importantly, the supervisory part of the order was limited to the
process of eviction, if the eviction took place, and
had nothing to
do with the way in which the area was to be developed.
Background
The
parties were unable to reach agreement by the 7 July 2009 deadline
prescribed by the order and a request for an extension
of time
20
was granted.
21
A report was also filed
22
explaining that some progress had been made and that an extension of
time until 31 July 2009 was required to enable the parties
to reach
agreement on the process and timing of eviction. This Court extended
the period within which agreement had to be reached
to 3 August
2009. This extension was fruitless. The second report, filed one day
later than the expiry of the extension,
23
was again to the effect that no agreement concerning the
implementation of the supervised eviction order had been reached
between
the parties.
Of
concern however was the information in the report that the MEC had
requested that implementation of the eviction order of this
Court be
postponed. This was apparently because of “grave concerns”
regarding, amongst other things, the costs and
timing of the
construction of TRUs which were essential to the execution of the
order. In other words, there were apparently
second thoughts about
whether the relocation order of this Court was appropriate and
effective, and whether it could be complied
with in a cost effective
way.
Concerns
were also raised about the social, financial and legal impact on the
Joe Slovo residents of a relocation of massive proportions
compared
to an
in situ
upgrading of the site. Doubts were being
expressed about whether it was appropriate to relocate the people at
all and, by necessary
implication, whether it had been appropriate
to secure the order of this Court in the first place. The report
contained not one
word about negotiations aimed at agreement
concerning a new relocation timetable.
Instead
the report informed us that the MEC intended to commission an expert
study in an effort to determine how these concerns
could be
addressed. An extension of time was again requested, this time until
30 September 2009. The provisional timetable provided
by the Court
would by then have been ineffective because the date on which the
relocation was to commence would have long passed.
Importantly, the
extension of time was not requested for the purpose of reaching
agreement on a new relocation timetable, but
on the basis that the
expert study would be available by that date. Presumably, the expert
study would help determine whether
the large scale relocation
ordered by this Court was necessary or appropriate.
This
Court nevertheless granted an extension
24
until 30 September 2009 but the Minister and the MEC were expressly
ordered to report to the Court “concerning the process
of
engagement contemplated in paragraphs 5, 6 and 7” of the
supervised eviction order. The order granting the extension
also
provided in the light of that part of the order requiring a progress
report on the process of engagement, that the order
to vacate was
suspended until further notice.
The
report filed on 30 September 2009 did not comply with the order of
this Court. It said nothing about any process of engagement
relating
to the relocation of the residents of the Joe Slovo settlement nor
did it explain this patent non-compliance. It merely
pointed out
that no new expert would be commissioned but existing information
would be used to determine, amongst other things,
the number of
families to be accommodated upon relocation. It requested an
extension of time until 30 October 2009.
A
further document was filed on 30 October 2009 which, once again, did
not address the question of progress in engagement concerning
the
relocation, apparently because there had been none. On the contrary
the document said that an increased densification and
an
in situ
upgrading model had been placed on the negotiating table and
that the proposal had been positively received by the applicants and
their legal representatives. The Minister had approved an agreement
that had apparently been reached between the residents and
the
developer and the MEC to the effect that
in situ
upgrading
would now take place. We were also informed that intensive workshops
and consultative processes would be undertaken
with the members of
the broad Joe Slovo community.
On 17
November 2009 this Court once more ordered the Minister and the MEC
to report on the process of engagement on the relocation
by 1
February 2010. The document filed on 1 February 2010 in response to
this order again failed to comply with it. The document
reflected
that an on-site meeting had taken place between the Joe Slovo
community and provincial government officials. It also
said that the
community had been advised that the 70/30 split would no longer
apply and that all houses to be built at Joe Slovo
would be for
their benefit and for the benefit of former Joe Slovo residents. A
joint technical steering committee had been established
and was
ironing out certain technical aspects of the development proposal.
It is
not necessary to detail the further correspondence and further
documents concerning discussions about the nature of the
development, as distinct from engagement on the implementation of
this Court’s supervisory eviction order, that were lodged
during the succeeding three and a half months. On 24 May 2010 this
Court issued directions requiring the respondents to lodge
affidavits by 25 June 2010:
“
a.
indicating whether they intend to provide reasonable housing in the
Joe Slovo settlement area by engaging in what has been referred
to as
an in-situ development, in other words, whether the area will be
developed without disturbing the occupation of the people
who
presently occupy the Joe Slovo settlement area. If so,
providing reasons for the
necessity of the ejectment order granted on 10 June 2009; and
showing cause why the ejectment
order made on 10 June 2009 should not be discharged.”
The
MEC filed an affidavit confirming the intention of the provincial
government to undertake an
in situ
upgrade but saying that a
final decision could not be taken as financial and technical
assessments and further consultations with
the community were still
necessary. The provincial government did not want the ejectment
order to be discharged.
Ultimately
this Court issued further directions
25
requiring the Minister and the MEC to show cause on affidavit
26
“why the eviction order made on 10 June 2009 should not be
discharged.” The applicants were given the opportunity
to file
an answering affidavit.
27
Affidavits were filed. The Minister expressed concern that absent a
court order, there might be a collapse in the process of
meaningful
engagement and that there remained a degree of uncertainty with the
result that it may be necessary to evict some
of the residents. The
Court was requested to keep the eviction order in place. The
applicants emphasised that it was now common
cause that high density
in situ
upgrading was highly achievable. They averred that
the factual grounds upon which this Court’s judgment was based
no longer
existed, and that the order should be discharged as it
would be arbitrary and impermissible to evict any residents upon
facts
as they stood 18 months earlier.
This
Court then
28
issued directions requiring the parties to lodge submissions on
whether the ejectment order should be discharged. The submissions
filed in response to these directions in effect repeated those in
the affidavits save that the applicants dealt in some detail
with
the basis upon which it was contended that this Court had the power
to discharge the order.
Hence
this judgment.
The
composition of this Court
We
record that the Court is composed differently today compared to its
composition on 21 August 2008 when the matter was heard.
29
This is because of leave and retirement. Seven of our number who did
not participate in the first decision now participate in
this one.
The
difference in composition does not create a difficulty for, as we
held in
Chonco 3
:
30
“
The
Court’s jurisdiction and powers must be exercised over matters
and causes falling for decision before it, regardless of
changes in
its composition from time to time.”
31
(Footnote
omitted.)
In any
event, like in
Chonco 3
, the issues to be decided in this case
are “separately justiciable” and this Court as presently
constituted must decide
them.
32
Does
this Court have the power to vary or discharge the order?
The
applicants place some reliance on that part of the supervised
eviction order
33
which permits a party to “approach the Court . . . for an
amendment, supplementation or variation of this order”
if it
is not complied with by any party or gives rise to unforeseen
difficulties. This contention raises the question whether,
bearing
in mind that there is no reference to discharge, paragraph 21 of the
order can be interpreted widely to authorise discharge
of the order.
We do not think it is necessary to proceed along that route. However
we must always bear in mind that the order
does not expressly
provide for discharge.
The
starting point in the discussion on whether this Court has the power
to discharge an order of the kind that had been issued
in this case
is the case of
Zondi.
34
This Court was in that case concerned with whether we had the power
to extend the period prescribed in an order requiring a legislature
to correct a defect contained in a law. All orders requiring the
legislature to correct defects in legislation are made pursuant
to
section 172(1)(b) of the Constitution which empowers the Court to
make any order that is just and equitable including:
“
an
order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the
defect.”
In
the course of the investigation into whether this Court has the
power to vary an order previously made on the basis that it
was just
and equitable to make it, this Court said:
“
The
question that arises is whether having considered it just and
equitable to suspend the order of invalidity for a fixed period
this
Court can extend that period. By its very nature an order that is
‘just and equitable’ in the context of the suspension
of
a declaration of invalidity is subject to variation. This is so
because the decision to suspend the declaration of invalidity,
the
determination of the period of suspension as well as the conditions
to be attached to such suspension, are informed by the
facts and
circumstances that are at the disposal of the Court at the time the
order is made. New facts may emerge or circumstances
may change and
render the period of suspension previously fixed to be unjust or
inequitable. In these circumstances, this Court
not only has the
power but also has the obligation under its just and equitable
jurisdiction to vary that period of suspension
and the conditions
attached to the suspension, if necessary, to reflect the justice and
equity required by the facts of the case.”
35
The
essence of the judgment in
Zondi
is that a court that makes a
section 172(1)(b) order that is just and equitable can also vary
that order when justice and equity
require. Although that case is
confined to section 172(1)(b) orders, the case of
Zondi
is
strong support for the proposition that where an order is made on an
assessment of the circumstances that existed at a particular
time, a
court retains the power to vary that order if these circumstances
change.
But
the question that must be answered in this case is whether it is
permissible for this Court to discharge, not vary, an order
and, if
so, the circumstances in which this can be done. There may be some
force in the argument that there is no reason in logic
or policy why
an order that is made because it is just and equitable to make it
should not be susceptible to rescission when
justice and equity
require that course. Indeed, it seems illogical for this Court to
have the power to vary an order issued on
the basis that it was just
and equitable when changing circumstances require, but not to have
the power to discharge an order
when the dictates of justice and
equity require. Common sense tells us, and we must emphasise, that
there is a fundamental difference
between the variation of an order
and its rescission. That difference requires that orders of this
Court ought not to be discharged
lightly. In our view, something
more than a change in circumstances pointing to a different justice
and equity conclusion is
required.
This
Court has approved the principle laid down by the Appellate Division
concerning variation of judgments
36
in the case of
Ntuli
37
in the following terms:
“
The
general principles of the common law applicable to the variation of
orders of Court were summarised by Trollip JA in
Firestone
South
Africa (Pty) Ltd v Genticuro AG
as
follows:
‘
The
general principle, now well established in our law, is that, once a
court has duly pronounced a final judgment or order, it
has itself no
authority to correct, alter, or supplement it. The reason is that it
thereupon becomes
functus
officio
:
its jurisdiction in the case having been fully and finally exercised,
its authority over the subject-matter has ceased.’
(Citation
omitted.)
Certain exceptions to this
general principle have been recognised and are referred to in the
Firestone
judgment.
They are variations in a judgment or order which
are necessary to explain ambiguities, to correct errors of
expression, to deal
with accessory or consequential matters which
were ‘overlooked or inadvertently omitted’, and to
correct orders for
costs made without having heard argument thereon.
Trollip JA was prepared to
assume in the
Firestone
case that the list of exceptions might not be exhaustive
and that a Court might have a discretionary power to vary its orders
in
other appropriate cases. He stressed, however, that the
‘
...
assumed discretionary power is obviously one that should be very
sparingly exercised, for public policy demands that the principle
of
finality in litigation should generally be preserved rather than
eroded . . . ’.”
38
(Footnotes
omitted.)
And further:
“
The
principle of finality in litigation which underlies the common law
rules for the variation of judgments and orders is clearly
relevant
to constitutional matters. There must be an end to litigation and it
would be intolerable and could lead to great uncertainty
if Courts
could be approached to reconsider final orders made in judgments
declaring the provisions of a particular statute to
be invalid.”
39
The
Ntuli
case is no authority for the proposition that orders of
this Court can never be discharged regardless of the circumstances.
Nor,
in our view, is there merit in entering into an enquiry of the
broad question whether this Court retains a general discretion to
vary or discharge any order it makes.
The
supervisory eviction order in issue in this case which involved the
eviction of people from their homes could only be made
if the
provisions of section 26(3) of the Constitution were complied with.
The section, to the extent relevant, reads:
“
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.”
This
Court does in our view have some leeway to discharge an order where
the circumstances that gave rise to the grant of the
eviction order
change before the eviction order originally issued has been executed
and the order is no longer competent. But
that leeway is not wide.
This Court has the discretion to discharge orders evicting people
from their homes where the change
is necessitated by exceptional
circumstances and considerations of justice and equity. We now
consider whether this test has
been met.
Should the order in this case be discharged?
The
supervised eviction order was made in terms of section 6 of the PIE
Act
40
which precludes the eviction of an unlawful occupier unless it is
just and equitable to do so. The government understandably
emphasises that all the judgments of this Court found the applicants
to be unlawful occupiers. On the other hand, the applicants
relied
on the fact that the orders were issued on the basis that they were
just and equitable. The crucial consideration, in
our view, is that
this Court would have been precluded from making any order unless it
was just and equitable. The fact that
all the judgments came to the
conclusion that the eviction or relocation would be just and
equitable is not decisive. Rather
the prerequisite for the making of
the order was the conclusion that it was just and equitable. This
Court would not have made
the ejectment order had it not found that
relocation could not be said to be unnecessary. Indeed had it not
been necessary to
relocate the residents for the purpose of housing
development or any other compelling reason, the application would
probably
have been dismissed. This is the context in which we must
decide whether the rescission of the order is just and equitable.
It is
now common cause that the most likely course for the redevelopment
of the Joe Slovo settlement area is
in situ
development.
According to the new strategy, applicants will be required to
relocate only if new houses have been built and allocated
to them.
The order cannot and will not be complied with in numerous respects.
There
is no intention to relocate people to TRUs.
The
timetable has become irrelevant.
There
has been little or no engagement in relation to the relocation
process nor is there likely to be any engagement in relation
to
relocation in the future.
Absent
the relocation to TRUs and engagement as well as the 70/30 split,
paragraphs 5 to 20 of the order no longer serve any
purpose.
The
only part of the order that would remain if all these aspects fall
away is the bare, unconditional order requiring all the
applicants,
and we must remember that the order granted is concerned with about
20 000 people, to vacate the Joe Slovo area.
It cannot be just and
equitable to leave this order in place, more particularly because
the order has been in suspension for
more than a year.
We
must, in this context, consider the two reasons advanced by the
government for the order to be kept in place. The first is
that
discharge of the order would be premature because the decision to
allocate the necessary money to go ahead with the development
has
not yet been taken. This does not assist the respondents. Whether or
not the decision to fund the new project is taken, it
remains that
the relocation of residents to TRUs in order to facilitate the
development of the property is no longer on the cards.
The pending
funding decision is irrelevant.
The
second reason is advanced on the basis of a distinction between
those people who qualify for subsidised housing and those
who do
not. The intention is that the Joe Slovo residents who do not
qualify for subsidised housing will be relocated to TRUs.
Two
complications are said to arise from this. The first is that a
conflict may develop between those residents who qualify for
housing
and those who do not and the second is that those who do not qualify
for housing may be recalcitrant, would refuse to
move and would hold
a legitimate and necessary housing project to ransom and frustrate
it because ejectment proceedings would
be required before
development can continue.
The
first so-called complication is easily disposed of. The discharge or
continued existence of the order would have no bearing
on the
conflict between those who qualify for housing and those who do not.
The
argument based on the difficulty caused by the recalcitrant person
who does not qualify for housing cannot be upheld either.
The order
does not refer to people who do not qualify for subsidised housing.
The order of this Court provides for the relocation
of residents
either in terms of the timetable or as agreed. The order does not
provide for any dispute resolution process except
that the order of
this Court may be amended if its implementation occasions
difficulty. Even if one assumes that the order of
this Court would
be applicable to recalcitrant residents of this kind, it is highly
unlikely that any agreement would be reached
between the resident
concerned and the government. Complex proceedings before this Court
will be almost inevitable to determine
whether the order of this
Court should be amended, the respects in which it should be amended
and whether, if it is not appropriate
to amend this order, this
Court should resolve the dispute between the recalcitrant resident
and the government or whether some
other court should do so. The
potential delay that might be caused by a recalcitrant resident
because of the necessity of legal
proceedings is accordingly not
resolved by keeping the order in place.
An
additional reason that has relevance to the exceptional circumstance
enquiry must be mentioned. It is evident from its terms
that the
execution of the order would have had to commence relatively shortly
after the order was made. Hence the relocation
process was to
commence about two months after the order was made and any agreement
concerning amendments to the timetable was
to be placed before the
Court less than a month after the date of its order. The supervised
eviction order did not contemplate
the commencement of execution in
excess of a year and a half after the order was made. This is
understandable because the justice
and equity finding was made in
dynamic, shifting circumstances.
We
come to the conclusion that save for one paragraph, to which we
revert below, it is just and equitable to discharge the order
in the
following exceptional circumstances:
There
have been no adequate steps by the government to carry out the
supervised eviction order made by this Court. The order
has for all
intents and purposes been left in abeyance.
There
is no intention to proceed with the supervised eviction order as
granted.
The
order cannot be executed absent agreement between the parties or a
complex amendment to the order.
The
order relates to thousands of people.
The
circumstances that motivated this Court to grant the supervised
eviction order have ceased to exist.
There
is no reason why the threat of eviction, in all the circumstances,
should continue to disturb the applicants.
Paragraph
22 of the order cannot be discharged. It requires the government to
pay 50% of the applicants’ costs in the High
Court and this
Court, including the costs of two counsel. This order was not made
on the basis that it was just and equitable.
It is a final order not
susceptible to alteration because of changed circumstances. And even
if it were, we will have no hesitation
in holding that none of the
circumstances referred to in this judgment justify discharge of this
paragraph of the order.
Order
The
following order is made:
Paragraphs 4 to 21 of the order of this Court made in this case on 10
June 2009 are discharged.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J,
Mthiyane AJ, Nkabinde J, Van der Westhuizen J and
Yacoob J.
For the
Applicants represented by the Advocate P Hathorn instructed by
Penze
Committee: Chennels Albertyn.
For the Applicants represented by the Advocate G Budlender SC and
Advocate
Task Team: L Kubukeli instructed by the Legal Resources
Centre.
For the First Respondent: Advocate SC Kirk-Cohen SC and Advocate
H Rabkin-Naicker instructed by Nongogo Nuku
Inc.
For the Second and Third Respondents: Advocate M Donen SC and
Advocate K Pillay (instructed by the State Attorney on
behalf of Second Respondent and Fairbridges on behalf
of Third Respondent).
For the Amici Curiae: Advocate H Barnes and Advocate N Jele
instructed by the Wits Law Clinic.
1
4
386 households.
2
19
of 1998.
3
On
10 June 2009.
4
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(Centre on Housing Rights and Evictions and Another,
Amici Curiae)
[2009] ZACC 16
;
2010 (3) SA 454
(CC);
2009 (9) BCLR 847
(CC) at para 7.
5
The
titles of both the National and the Provincial Ministers of Housing
have been changed to the Minister for Human Settlements
and the MEC
for Human Settlements, Western Cape respectively.
6
Above
[2] at para 4 of the order.
7
As
I point out later the timetable was provisional.
8
On
17 August 2009.
9
At
the end of the week beginning 21 June 2010.
10
Above
[2] at paras 4, 5, 6 and 7 of the order.
11
Id
at para 21 of the order.
12
Id
at para 4 read with para 8 of the order.
13
Id
at para 10 of the order.
14
Id
at para 11 of the order.
15
Id
at paras 11.4 and 11.5 of the order.
16
Id
at para 11.7 of the order.
17
Id
at para 15 of the order.
18
Id
at para 16 of the order.
19
Id
at para 17 of the order.
20
By
letter of the State Attorney dated 7 July 2009.
21
On
27 July 2009.
22
On
8 July 2009.
23
Lodged
on 4 August 2009.
24
On
24 August 2009.
25
On
9 November 2010.
26
By
22 November 2010.
27
By
29 November 2010.
28
On
6 December 2010.
29
The
matter was heard by Langa CJ, Moseneke DCJ, Madala J, Mokgoro J,
Ngcobo J, O’Regan J, Sachs J, Van der Westhuizen J
and Yacoob
J.
30
Minister
for Justice and Constitutional Development v Chonco and Others
[2010] ZACC 9
;
2010 (7) BCLR 629
(CC).
31
Id
at para 5.
32
Id
at para 6.
33
Paragraph
21 of the order at [2] above.
34
Zondi
v MEC, Traditional and Local Government Affairs, and Others
[2005]
ZACC 18
;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC).
35
Id
at para 39.
36
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977 (4) 298 (AD).
37
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6)
BCLR 677
(CC).
38
Id
at paras 22 and 23.
39
Id
at para 29.
40
Section
6 provides:
“
6 Eviction at instance of
organ of state.—
(1) An organ of state may institute proceedings for the
eviction of an unlawful occupier from land which falls within its
area
of jurisdiction, except where the unlawful occupier is a
mortgagor and the land in question is sold in a sale of execution
pursuant
to a mortgage, and the court may grant such an order if it
is just and equitable to do so, after considering all the relevant
circumstances, and if—
(a) the consent of that organ of state is required for
the erection of a building or structure on that land or for the
occupation
of the land, and the unlawful occupier is occupying a
building or structure on that land without such consent having been
obtained;
or
(b) it is in the public interest to grant such an
order.
(2) For the purposes of this section, ‘public
interest’ includes the interest of the health and safety of
those occupying
the land and the public in general.
(3) In deciding whether it is just and equitable to
grant an order for eviction, the court must have regard to—
(a) the circumstances under which the unlawful occupier
occupied the land and erected the building or structure;
(b) the period the unlawful occupier and his or her
family have resided on the land in question; and
(c) the availability to the unlawful occupier of
suitable alternative accommodation or land.
(4) An organ of state contemplated in subsection (1)
may, before instituting such proceedings, give not less than 14
days’
written notice to the owner or person in charge of the
land to institute proceedings for the eviction of the unlawful
occupier.
(5) If an organ of state gives the owner or person in
charge of land notice in terms of subsection (4) to institute
proceedings
for eviction, and the owner or person in charge fails to
do so within the period stipulated in the notice, the court may, at
the request of the organ of state, order the owner or person in
charge of the land to pay the costs of the proceedings contemplated
in subsection (1).
(6) The procedures set out in section 4 apply, with the
necessary changes, to any proceedings in terms of subsection (1).”