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[2011] ZACC 34
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Pheko and Others v Ekurhuleni Metropolitan Municipality (CCT 19/11) [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC) (6 December 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 19/11
[2011] ZACC 34
In the matter between:
NTHABISENG PHEKO
…..........................................................................
First
Applicant
OCCUPIERS OF BAPSFONTEIN
INFORMAL SETTLEMENT
…...............................................
Second
to 777
th
Applicants
and
EKURHULENI METROPOLITAN MUNICIPALITY
…................................
Respondent
and
SOCIO-ECONOMIC RIGHTS INSTITUTE OF
SOUTH AFRICA
….....................................................................................
Amicus
Curiae
Heard on : 15 September 2011
Decided on : 6 December 2011
JUDGMENT
NKABINDE J:
Introduction
The state recognises the distress occasioned by natural disasters
that pose a threat to life, health and safety or result in
forced
removals from disaster-stricken areas. To address these emergency
situations, it has enacted the Disaster Management Act
1
(DMA) and introduced remedial measures through certain programmes to
provide temporary assistance.
2
The
applicants seek leave to appeal directly to this Court. They
challenge the correctness of the decision of the North Gauteng
High
Court, Pretoria
3
(High Court) dismissing their application for certain relief and
holding that the forcible relocation and demolition of their
homes,
consequent upon a decision to declare an informal settlement a
“disaster area”, was lawful.
Neither
the decision to declare the informal settlement a “disaster
area” nor the constitutionality of the provisions
of the DMA
is in question. Primarily, this application for leave to appeal
turns on the lawfulness of the removal of the applicants
and the
demolition of their homes. More pointedly, it requires us to
determine whether the circumstances of this case warranted
forcible
removal and demolition without an order of court.
The
applicants, the former residents of the Bapsfontein Informal
Settlement (Bapsfontein), are currently with no secure tenure
and
only temporary housing. The respondent is the Ekurhuleni
Metropolitan Municipality (Municipality) in whose municipal area
Bapsfontein is situated. The Municipality authorised the relocation
of the residents of Bapsfontein including the applicants
and the
demolition of their homes. The Socio-Economic Rights Institute of
South Africa
4
(SERI), whose written submissions have been most helpful and for
which we are grateful, was admitted as an amicus curiae.
Factual
background
Bapsfontein
covers 25 hectares of privately owned land. In January 2004 the
Municipality received information regarding the
development
of
sinkholes in the area. The Municipality then commissioned
civil engineers
5
to conduct an investigation. Their report (J & W’s first
report) was sent to the Municipality in June 2005. This report
identified the development of sinkholes in the vicinity of
Bapsfontein. It recommended that a further study of the area be
conducted.
Further
investigation by the same consultants was commissioned and their
report (J & W’s second report), dated September
2005, was
submitted to the Municipality in November 2005. This report
confirmed the prior findings following the investigation
in 2004. It
identified unstable dolomite formation as the cause of sinkholes “to
a surfaced road near Bapsfontein”.
The Municipality was
advised that the depression with its perimeter sinkholes is about
100m from the primary school in Bapsfontein.
In particular,
observations of occurrence of various sporadic sinkholes,
depressions and cracks within the settlement were made.
It found
that the area around Bapsfontein is unstable and recommended that
the area “should be avoided for mass housing”.
Following
J & W’s second report, the Municipality relocated
approximately 150 families from Bapsfontein during 2005.
However,
new occupiers subsequently erected shelters in the area. In 2009,
consulting geologists, VGI Consult Projects (Pty)
Ltd, were
commissioned to conduct a further study on the area. Their report
(VGI report), delivered to the Municipality on 8
December 2009,
makes findings similar to those made earlier. It recommended that
the residents “be evacuated and relocated
to an area at least
3 km to the north-east of [Bapsfontein]”.
6
In
July 2010 the Municipality’s Roads and Transport Portfolio
Committee recommended that the Bapsfontein Community be relocated.
This recommendation was adopted by the Mayoral committee on 18
August 2010. On 10 December 2010, the Municipality issued a notice
7
declaring Bapsfontein “a local state of disaster” due to
the dolomite instability of the area in terms of section
55(1) of
the DMA.
8
It
emerged from a letter dated 13 January 2011 addressed to the
Municipality on behalf of the applicants that the latter were
“faced
with a forced eviction” on that date. The letter reveals also
that three meetings were convened by the officials
of the
Municipality on 14, 16 and 23 December 2010 at which the applicants
were informed about the impending relocation scheduled
to take place
on 27 December 2010. The letter advised the Municipality that the
relocation “amounts to an eviction”
and that “[e]viction
without a court order is unlawful.” The Municipality was asked
to produce an eviction order
or to promise that it would not
continue with the eviction. The applicants threatened to apply to
court on an urgent basis for
an interdict if their demands were not
met by noon on the same day.
9
On 17
January 2011 the Municipality advised that: (a) the relocation of
the applicants to N12 Highway Park
10
was temporary; (b) it had consulted meaningfully with the
applicants; (c) the Municipality drafted letters of consent and
provided
each resident with the letter to consent to temporary
relocation; (d) buses had been provided for school children; and (e)
basic
services were already in place where the applicants were to be
relocated. The Municipality denied that the applicants had been
forcibly relocated and maintained that no eviction order was
required.
On 17
February 2011 a directive in terms of section 55(2)(d) of the DMA
was issued. It advised the applicants that Bapsfontein
had been
declared a local state of disaster due to dolomite instability, and
that all residents in the area be evacuated to temporary
shelter for
the preservation of life. The directive also anticipated resistance
to the relocation by warning that “[p]ersons
refusing to be
relocated temporarily will be relocated by the authority of this
directive in terms of section 55 of the [DMA].”
11
Because of the resistance to the relocation, the Municipality
enlisted the services of the “Red-Ants”
12
to demolish the homes of the applicants on 5 March 2011. On the same
day the applicants applied to the High Court for urgent
interdictory
relief.
In the
High Court
The
applicants sought urgent relief restraining the Municipality from
demolishing their homes, thus rendering them homeless, and
from
unlawfully evicting and intimidating them to vacate Bapsfontein.
They asked the Court to order the Municipality to provide
them with
alternative accommodation and to pay the costs of the application.
13
The
applicants contended that they were being unlawfully and forcibly
evicted from their homes and that their homes were being
demolished.
The forcible eviction and demolition of their homes without an order
of court, they argued, not only violated their
constitutional rights
in relation to housing
14
but also their right to have their dignity respected and protected.
15
The applicants also contended that the conduct of the Municipality
was not in line with PIE. Also, they argued that they were
intimidated by the “Red-Ants”, hence their urgent
interdictory application.
The
Municipality disputed these contentions arguing that it “evacuated”
the residents pursuant to the area being declared
a local state of
disaster and thus posing a threat to human life. The relocation, the
Municipality argued, was authorised in
terms of section 55 of the
DMA for the preservation of life.
The
High Court, per Makgoba J, dismissed the application with costs. It
held that the application lacked urgency and that PIE
was not
applicable. In justifying the lawfulness of the forced removal the
Court likened the situation in Bapsfontein to a situation
of a
person burning in a fire and refusing to be rescued. The Court held
that it had “a duty to protect their life”
and could not
“let them stay in a danger zone where they can be swallowed by
the earth as it is.”
16
Having been refused leave to appeal, the applicants applied for
leave to appeal directly to this Court.
In this
Court
The
applicants ask that we: (a) grant them leave to appeal directly to
this Court; (b) condone the late filing of the High Court
judgment
and their written submissions; (c) disregard the evidentiary
material annexed to the opposing papers and make a special
adverse
cost order against the Municipality; and (d) order that the costs of
this application be costs in the appeal. Additionally,
they seek the
following order:
“
5.
Setting aside the order of the High Court granted on 11 March 2011
under case number 5394/2011 and replacing it with the following
order:
5.1 That the Respondent be
interdicted from evicting the Applicants and their dependants from
the Bapsfontein Informal Settlement;
5.2 That the Respondent be
interdicted from demolishing the Applicants’ shelters and from
destroying the Applicants’
property;
5.3 Declaring that the eviction
of those Applicants and their dependants who were in fact evicted
from the Bapsfontein Informal
Settlement was unlawful;
5.4 Ordering the Respondent to
restore the evicted Applicants’ possession of the land that
constituted the Bapsfontein Informal
Settlement and to restore all
the demolished structures to the condition they were in prior to
demolition;
5.5 Alternatively, ordering the
Respondent to relocate the Applicants and their dependants to an area
in the near vicinity of the
Bapsfontein Informal Settlement area and
to make alternative accommodation available in the Bapsfontein area;
5.6 Further alternatively,
ordering the Respondent to implement a lawful relocation process
after having engaged the Applicants
meaningfully and after having
obtained the informed consent of all the Applicants;
6. That [the] Respondent pay the
costs of the application.”
In
its directions, this Court called for submissions from the parties
to address the circumstances in which a person could be
evicted from
his or her home without an order of court, having been made after
considering all the circumstances, as required
by section 26(3) of
the Constitution. The Court also directed the parties to state
whether the required circumstances exist in
this case.
17
The
main thrust of the applicants’ complaint is that in invoking
the DMA, the High Court inappropriately authorised the
unlawful
eviction and demolition of their homes, thereby violating their
rights under sections 26 and 10 of the Constitution
in circumstances
not warranting evacuation. SERI argues that the DMA was not properly
engaged and that the situation ought to
have been dealt with in
terms of PIE. It also contributed a different perspective regarding
the alleged unlawfulness of the removal.
18
The
Municipality argues that leave to appeal directly to this Court
should be refused because the Supreme Court of Appeal should
have
been petitioned for leave to appeal due to the new facts raised in
the replying affidavit in the High Court. It argues further
that
although constitutional issues are broached, the issues are not
important because this Court has already pronounced on them.
The
Municipality contends that the relief sought in paras 5.1 to 5.3 in
[16] above has largely become moot as the applicants
and their
dependants have already been “evacuated” from
Bapsfontein. It is argued that the restorative relief sought
in para
5.4 and the alternative prayers in paras 5.5 and 5.6 in [16] above,
are not competent.
On
the merits, the Municipality remains steadfast that it acted
lawfully in “evacuating” the applicants from Bapsfontein
under section 55 of the DMA. It contends that evacuation as a result
of a “disaster” or “situation of emergency”
is not an eviction within the contemplation of section 26(3) but a
legitimate response to a crisis to save life or property.
The
“imminent” disaster, it is argued, occurring
“surprisingly” or “unexpectedly”, could
not
practically be dealt with by way of a court order.
The Municipality relies on
City of Johannesburg v Rand Properties
(Pty) Ltd and Others
(
Rand Properties
)
19
to justify the eviction of the occupiers without having complied
with the relevant factors contemplated in section 26(3) of the
Constitution. It sought to demonstrate that the removal is an
administrative act requiring no order of court. The Municipality
argues that section 26(3) has two parts: the first dealing with
evictions that are subject to control by means of a court order
and
the second part dealing with legislation which permits an eviction
but requires an eviction not to be arbitrary. It is argued
that in
interpreting section 26(3), one part cannot be subordinated to the
other and that the section therefore permits legislation
to
authorise an eviction without a court order.
It is
contended that the relocation was a temporary arrangement until
further relocation “to either state subsidised houses
. . . or
to some other land”. The demolition, it is contended, enabled
the Municipality to carry out the directive and
prevent the
applicants from returning to Bapsfontein. Additionally, the
Municipality argues that PIE does not apply because none
of the
applicants contend that their occupation of Bapsfontein was
unlawful.
Issues
There are two preliminary issues. These are whether condonation
should be granted and whether we should disregard the evidential
material forming part of the annexed expert reports as being
irregular. Additionally, two issues concerning whether leave to
appeal should be granted relate to mootness and whether the other
courts should have been bypassed.
The
key issue concerns whether the removal that occurred in this case
was an evacuation under section 55 of the DMA as contended
for by
the Municipality. Related to this are questions of the proper
interpretation of the DMA and appropriate relief.
Condonation
applications
The
application for leave to appeal was lodged in this Court on 15 March
2011, however, the judgment of the High Court, handed
down on Friday
11 March 2011, was only lodged in this Court on Wednesday 20 July
2011 after a request was made by the Registrar
of this Court to
secure a copy. Accompanying the judgment was an application for
condonation for its late filing.
20
The applicants explained the steps they took to obtain the
transcribed judgment. It is evident that the blame for the delayed
filing of the judgment cannot be placed at their door.
The
applicants applied for condonation for the late filing of their
written submissions. These submissions were late by only one
day.
According to the applicants, this was occasioned by immense pressure
faced by their counsel due to deadlines set in another
matter in
this Court on the same day. The one-day delay is negligible. In any
event, the Municipality has not been prejudiced
by the lateness and
does not oppose the applications. Condonation sought should
therefore be granted.
Regarding
the alleged irregular step, it may well be that the Municipality
could have selected and annexed only parts of the reports
that were
indeed relevant rather than annexing the entire reports. However,
this does not warrant a disregard of the expert evidence
contained
in the reports filed.
Should
leave to appeal be granted?
It is
well established that leave to appeal will be granted if a
constitutional issue is raised and if it is in the interest of
justice.
21
We would be hard-pressed not to find that this matter raises
constitutional issues. The Constitution provides protection against
arbitrary evictions which, by their own nature, implicate the right
to have access to adequate housing in section 26.
22
The applicants’ right under section 10, the right to have
their dignity respected and protected, is also implicated. Moreover,
we are required to interpret the DMA in light of the Constitution.
The Municipality does not contest that the matter raises
constitutional issues. However, it contends that it is not in the
interests of justice to grant leave directly to this Court because
the applicants should first seek relief in the full court of the
High Court or the Supreme Court of Appeal before approaching
this
Court. Alternatively, it is argued that the relief sought has become
moot.
Generally,
it is preferable for litigants seeking to appeal a decision of the
High Court to approach the Supreme Court of Appeal
before coming to
this Court. However, the fact that the applicants wish to appeal
directly to this Court is in itself not decisive.
This factor is
simply one of the considerations relevant to the enquiry in deciding
whether it is in the interests of justice
for leave to appeal to be
granted.
23
The applicants were forcibly relocated from Bapsfontein to a transit
area and their dwellings were demolished without an order
of court.
A final determination of the issues will avoid the legal uncertainty
created by the decision of the High Court.
There
can be no doubt that petitioning the Supreme Court of Appeal for
leave to appeal would have taken longer and rendered the
litigation
more costly before the matter reaches finality, while the rule of
law remains imperilled. The matter raises issues
of public
importance regarding forcible removal of a community from an
informal settlement. Additionally, there are reasonable
prospects of
success.
Important to the interests of justice is the question of mootness.
However, it too is but one of the factors that must be taken
into
consideration in the overall balancing process.
24
In
Independent Electoral Commission v Langeberg Municipality
,
25
this Court, per Yacoob J and Madlanga AJ, held that:
“
[T]he
Court has discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion
must
be exercised according to what the interests of justice require. A
prerequisite for the exercise of the discretion is that
any order
which the Court may make will have some practical effect either on
the parties or on others. Other factors that may be
relevant will
include the nature and extent of the practical effect that any
possible order might have, the importance of the issue,
its
complexity and the fullness or otherwise of the argument advanced.”
26
Indeed, if the applicants’ rights were not infringed and are no
longer threatened,
27
or the applicants have no interest in the adjudication of the
dispute,
28
it will not be in the interests of justice to grant leave to appeal
directly to this Court.
It is
beyond question that the interdictory relief sought will be of no
consequence as the applicants have already been removed
from
Bapsfontein.
29
Although the removal has taken place, this case still presents a
live controversy regarding the lawfulness of the eviction.
Generally, unlawful conduct is inimical to the rule of law
30
and to the development of a society based on dignity, equality and
freedom.
31
Needless to say, the applicants have an interest in the adjudication
of the constitutional issue at stake. The matter cannot
therefore be
said to be moot. It is also live because if we find that the removal
of the applicants was unlawful, it would be
necessary to consider
their claim for restitutionary relief.
For
these reasons, it is in the interests of justice that leave to
appeal directly to this Court should be granted. Next for
determination is whether the DMA authorises eviction and demolition
of homes without an order of court.
Does
the DMA authorise eviction and demolition without a court order?
The
determination of this issue requires us to interpret section
55(2)(d) of the DMA consistently with section 26(3) of the
Constitution. However, it is necessary to deal first with the
Municipality’s understanding of section 26 of the
Constitution.
This section 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.”
Section
26(3) is couched in prohibitory terms. Notionally, the right
entrenched in it can only be limited in terms of the limitation
clause.
32
The
Municipality’s understanding of section 26(3) as set out
above
33
is incorrect. The Municipality’s proposition simply turns
section 26(3) on its head. Section 26(3) must be read as a whole.
It
does not permit legislation authorising eviction without a court
order.
Section
55(2)(d) of the DMA provides that evacuation is limited to cases
where temporary action is necessary for the preservation
of life. It
provides:
“
If a
local state of disaster has been declared in terms of subsection (1),
the municipal council concerned may, subject to subsection
(3), make
by-laws or issue directions, or authorise the issue of directions,
concerning—
. . .
(d) the
evacuation to
temporary shelters
of all or part of the population from the
disaster-stricken or threatened area if such action is necessary
for
the preservation of life
”. (Emphasis added.)
This
section must be interpreted narrowly. A wide construction may
adversely affect rights in section 26. The language used in
section
55(2)(d) is critical. The text must be interpreted in the context of
the DMA as a whole, taking into consideration whether
its preamble
34
and other relevant provisions
35
support the envisaged construction.
36
Properly
construed and read in conjunction with other provisions, including
sections 55(1)
37
and 2(1)
38
of the DMA, section 55(2)(d) does not authorise eviction or
demolition without an order of court. On its wording, the DMA deals
with “evacuation”. The word “evacuate” is
generally used to describe what is done in a situation where
people’s lives are at risk as a result of impending
“disaster”.
39
“Evacuate” means to “remove from a place of danger
to a safer place.”
40
The people concerned therefore require immediate removal to a safe
temporary shelter, away from the disaster area, in order to
preserve
their lives.
Section
55(2)(d) authorises the evacuation to temporary shelters for the
preservation of life. This means that the DMA ordinarily
applies
only to temporary removal from a disaster stricken area to a
temporary shelter. It implies that those evacuated may return
to
their homes, if possible. This is not the case here. Evacuation is
not the equivalent of eviction, much less of a demolition.
On the
Municipality’s own admission, no purpose would have been
served by removing the applicants without demolishing their
homes
because they would otherwise have returned to Bapsfontein.
Evidently, this is not what section 55(2)(d) sanctions.
An
evacuation does not entail the demolition of peoples’ homes or
an indefinite removal. The DMA does not seek to achieve
this. If the
purpose of the DMA were to authorise demolition and eviction without
an order of court, it would have said so. It
does not. The forcible
removal of the applicants amounts to an eviction, an indefinite
removal from Bapsfontein. The deprivation
is, in the circumstances,
inimical to the right in section 26(3).
It is
true that the VGI report recommended that the residents of
Bapsfontein be evacuated and relocated. The Municipality suggested
that an unexpected or surprising disaster was imminent or simmering
thus suggesting exigency. However, the facts do not suggest
that
there was any need for urgent evacuation at all. Conversely, the
history of this matter shows that the Municipality never
regarded
the relocation of the applicants to be urgent to warrant drastic
measures of unauthorised removal and demolition of
shelters. This is
fortified by the fact that Bapsfontein was identified as a hazardous
area as early as 1986; its first sinkhole
was identified in 2004;
the first commissioned report was delivered in June 2005 and the
second report in September 2005; no
action was taken in response to
these reports for four years after they were delivered, until 2009,
when another report was commissioned
and delivered; and only in 2010
did the Municipality finally start taking action to relocate the
residents from Bapsfontein.
The
Municipality’s powers following upon the declaration of a
local state of disaster must be exercised only to the extent
that it
is strictly necessary for the purposes set out in section 55(3).
41
This means that the powers concerned may not be used for purposes
other than evacuation.
The
High Court failed to consider the relevant circumstances. These
include whether: (a) the disaster was sudden to warrant the
hasty
relocation; (b) Bapsfontein could be rehabilitated; (c) the
Municipality had established disaster management and relocation
plans and strategies as well as their implementation; (d) there was
loss of life or an imminent threat to life; (e) alternative
land has
been made available or could reasonably be made available; and (f)
the applicants are long term occupiers in Bapsfontein.
The Court
instead approached the matter on the assumption that the DMA was
applicable and urgent removal was necessary. In the
absence of
evidence, the Court compared the situation of the applicants with
that of people faced with sudden emergency but failed
to assess
whether the circumstances warranted evacuation under the DMA.
It is
noteworthy that there has been no loss of life as a result of the
formation of sinkholes since 2004 when J & W’s
first
report was completed, despite people having lived at Bapsfontein for
decades. J & W’s second report illustrates
that no loss of
life had been reported as a result of sinkholes since the early
1970s. There can be no doubt that the rushed
destruction of the
applicants’ homes by the “Red-Ants” at the
instance of the Municipality not only infringed
their right under
section 26(3) but also their right under section 10.
42
I
conclude therefore that in engaging the DMA to evict the applicants
and demolish their homes without an order of court, the
Municipality
acted outside the authority conferred by the DMA and contrary to
section 26(3) of the Constitution.
In
the view I take of the matter, it is not necessary to decide the
further questions raised including whether the forced removal
was
consensual and whether PIE applies.
It
follows that the order of the High Court should be set aside and
replaced with an appropriate remedy, a matter I now turn to.
Appropriate
remedy
In
terms of section 172(1)(b) of the Constitution, a court “deciding
a constitutional matter within its power . . . may
make any order
that is just and equitable”. In
Fose v Minister of Safety
and Security
43
this Court held that—
“
[a]ppropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an
interdict, a
mandamus
or
such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced. If it
is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these all-important
rights.”
44
(Footnote
omitted.)
The
removal of the applicants was unlawful. The Municipality has an
obligation
45
to provide them with suitable temporary accommodation.
The
Municipality acknowledges that there is land in the vicinity of
Bapsfontein. Despite the recommendation by the VGI report
that the
applicants be relocated to that land which was also identified by
the applicants, the Municipality maintains that the
land belongs to
another state department which does not intend to relinquish. This
does not absolve the Municipality from its
obligations including its
duty to identify and designate land for housing development for the
applicants. The applicants are
entitled to effective relief. It is,
however, uncertain how long it will take for the Municipality to
identify land for purposes
of affording the applicants access to
adequate housing. Supervisory relief is thus necessary in this case
to enable the Municipality
to report to this Court about, amongst
other things, whether land has been identified and designated to
develop housing for the
applicants.
The
relief proposed by the applicants and partly consented to by the
Municipality during oral argument is, in the circumstances
and
subject to necessary modification, just and equitable.
Costs
The
applicants have asked for costs on the scale as between attorney and
client. They have achieved substantial success. However,
no case has
been made out for the punitive costs sought. There are no reasons
why the Municipality should not pay the applicants’
costs,
including the costs occasioned by the employment of two counsel.
Accordingly, costs on a party and party scale will be
just and
equitable.
Order
In
the event, the following order is made:
Condonation
is granted.
Leave
to appeal directly to this Court is granted.
The
appeal is upheld.
The
order of the North Gauteng High Court, Pretoria under Case No
5394/11 is set aside.
It is
declared that the removal of the applicants from their homes, the
demolition of the homes, and their relocation by the Ekurhuleni
Metropolitan Municipality were unlawful.
The
Municipality must identify land in the immediate vicinity of
Bapsfontein for the relocation of the applicants and engage
meaningfully with them on the identification of the land.
The
Municipality must ensure that the amenities provided to the
applicants and people resettled in terms of this order are no
less
than the amenities and basic services provided to them as a result
of the relocation of March 2011.
The
Municipality must file a report in this Court confirmed on affidavit
by no later than 1 December 2012 regarding steps taken
in compliance
with paragraph 6 of this order to provide access to adequate housing
for the applicants.
9. The applicants may, within 15 days of the filing of the
Municipality’s report, lodge affidavits in response to the
report.
10. The Municipality is ordered to pay the applicants’ costs in
this Court and in the High Court including, where applicable,
costs
of two counsel.
Mogoeng
CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Skweyiya J, Van
der Westhuizen and Yacoob J concur in the judgment of
Nkabinde J.
For the
Applicants: Advocate R Jansen, Advocate M Dewrance and Advocate I
Oschman instructed by Gilfillan du Plessis Attorneys.
For the
Respondent: Advocate V Maleka SC Advocate Khaya Mnyandu and Advocate
N Mji instructed by Bongani Khoza Attorneys.
For the
Amicus Curiae: Advocate S Wilson and Advocate I de Vos instructed by
the Socio-Economic Rights Institute of South Africa.
1
57
of 2002.
2
See
the Housing Act 107 of 1997 (Housing Act) read with The National
Housing Code, Part 3: Emergency Housing Programme, Part A:
Housing
Assistance in Emergency Circumstances (Housing Policy).
3
Nthabiseng
Pheko and 777 Others v Ekurhuleni Metropolitan Municipality
,
Case No 5394/11, North Gauteng High Court, Pretoria, 9 June 2011, as
yet unreported (judgment of the High Court).
4
SERI
is a law clinic registered with the Law Society of the Northern
Provinces and is an “approved Law Centre” by
the
Johannesburg Bar Council. SERI deals with cases concerning the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1998 (PIE), the upgrading of informal settlements and
provision of basic services.
5
Jones
& Wagener (J & W) were appointed as specialist consultants
to investigate. A report was then compiled by Jasper
Müller
Associates.
6
According
to the VGI report, the underlying geology of suitable land 3 km to
the north-east of Bapsfontein, represents no risk
for the formation
of sinkholes. It is reported that the land is known to have thick
deposits of shale and quartzite of the Timebal
Hill Formation of the
Pretoria Group of the Transvaal Supergroup.
7
The
notice read in relevant part:
“
Notice is hereby served in terms of the Disaster
Management Act that the Bapsfontein Informal Settlement of 25
hectares, bordered
by the R25 Provincial Road to the East and
approximately 300 metres to the North of the R25 Provincial Road
within the Ekurhuleni
Metropolitan Municipal Area has been declared
a Local Disaster Area in terms of section 55 of the Disaster
Management Act due
to dolomite instability.
Further be advised that persons residing in the above
mentioned area will be moved to a suitable alternative area as the
current
area in Bapsfontein they occupy is highly unstable and not
safe for human settlement.”
This
notice was published in part in the
Provincial Gazette
Extraordinary
No 220 Local Authority Notice 1643, 10 December
2010.
8
Section
55(1) provides:
“
(1) In the event of a local
disaster the council of a municipality having primary responsibility
for the co-ordination and management
of the disaster may, by notice
in the provincial gazette, declare a local state of disaster if—
existing legislation and contingency arrangements do
not adequately provide for that municipality to deal effectively
with the
disaster; or
other
special circumstances warrant the declaration of a local state of
disaster”.
9
The
letter by Gilfillan Du Plessis Incorporated reads:
“
1. We refer to the above matter and confirm that
we act for and on instruction of residents of Bapsfontein informal
settlement.
2. Our clients inform us that on the
14
th
of
December 2010, one councilor Mfukeni called for a community meeting
at which he told them about their pending relocation.
3. On the 16
th
of December 2010, one Vivian Chauke also called
for a meeting at which she told them that they were to be relocated
on the 27
th
of
December 2010. The same Vivian Chauke addressed them again on the 23
December 2010 and indicated that they will be moved to
Bapsfontein
and that such relocation was non-negotiable.
4. Our clients indicated to Vivian Chauke that they
would consider relocation to Bapsfontein.
5. To their surprise they were recently informed that
they were to be relocated to Cloverdene.
6. Cloverdene is too far from where our clients work,
attend school, and access basic services. Our clients therefore
object to
being relocated to Cloverdene.
7. As you will be aware, on the 27
th
of December 2010, our clients staged a protest to
register their displeasure with the intended relocation.
8 Relocating our clients without genuine and meaningful
consultation with them amounts to an eviction. Eviction without a
court
order is unlawful.
9. It is our clients’ instruction that they do
not object to being relocated as such but insist that such
relocation be
preceded by genuine and meaningful consultation
between the municipality and the residents.
10. This morning we were informed by our clients that
they are faced with a forced eviction. We demand that you
immediately either
fax us a copy of the eviction order or give us an
undertaking that you will not continue with the eviction.
11. If our demand has not been met by 12h00, 13 January
2011 we will apply to the High Court on a very urgent basis for an
interdict.”
(Emphasis removed.)
10
The
area, according to the Municipality, is “bounded by Putfontein
Road on the western boundary, the N12 highway on the
southern
boundary, Chief A Luthuli Park extension 2 and 3 on the northern
boundary and Benoni Road on the eastern boundary.”
11
The
directive issued by the office of the City Manager reads in relevant
part:
“
This serves to advise you that in terms of
section 55(2) of the Disaster Management Act, Act 57 of 2002, and
the City Manager
of Ekurhuleni Metropolitan Municipality is hereby
issuing the following directive in terms of the above section:
That the Bapsfontein Informal Settlement . . . has been
declared a local state of disaster in terms of section 55 of the
Disaster
Management Act due to dolomite instability.
According to section 55(2)(d), Council is issuing a
directive that all persons residing/squatting/renting or leasing in
the abovementioned
area be evacuated to temporary shelter due to the
declared disaster and for the preservation of life.
Persons refusing to be relocated temporarily will be
relocated by the authority of this directive in terms of
section 55
of the
Disaster Management Act 57 of 2002
.”
12
The
“Red-Ants” is a colloquial term for a private security
company contracted by the South African government to help
with
evictions and forced removals. They wear red uniforms, hence their
name “Red-Ants”.
13
The
relief sought read:
“
1. That the Respondent be restrained and
interdicted from demolishing and/or further demolishing
accommodation and shelters of
the Applicants;
2. That the Respondent be restrained and interdicted
from intimidating the Applicants to vacate the property;
3. That the Respondent be restrained and interdicted
from unlawfully evicting the Applicants and/or those Applicants;
4. That the Respondent be ordered to provide
alternative accommodation to Applicants and/or those Applicants
whose accommodation
and shelters had been demolished;
5. That the Respondent be ordered to pay the costs of
this application;
6. That further and/or alternative relief.”
14
Section
26 of the Constitution is set out in [34] below.
15
Section
10 of the Constitution provides:
“Everyone has inherent
dignity and the right to have their dignity respected and
protected.”
16
Above
n 3 at 5 lines 19-21.
17
Paragraph
5 of the directions, dated 2 August 2011, further asked the parties:
“W
hat is the relationship between the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
and the
Disaster Management Act 57 of 2002
?”
18
SERI
contends that the removal of the applicants without an order of
court or their informed consent was unlawful. Even if the
applicants
had consented, SERI argues, it is doubtful that a constitutional
right is capable of being waived. It argues further
that the
Municipality failed to discharge the onus regarding such waiver.
Relying on
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998]
ZACC 17
;
1998 (12) BCLR 1458
(CC);
1999 (1) SA 374
(CC) at para 56,
SERI argues also that the principles in respect of the rule of law
protected in section 1(c) of the Constitution
are central to
exploring the questions raised.
19
2007
(6) SA 417
(SCA). In this case the appellant relied on section
12(4)(b) of the National Building Regulations and Building Standards
Act
103 of 1977 (NBRA). It sought the eviction of the respondents,
who resisted evictions on the ground, among other things, that the
appellant had failed to follow the procedures prescribed by PIE and
that the eviction would not be just and equitable. The Supreme
Court
of Appeal held that the occupiers were in an emergency situation and
that fire and health hazards existed in the occupied
buildings. It
held further that the provisions under PIE did not apply in the
context of that case (i.e. to the evacuation under
the provisions of
the NBRA).
20
Rule
19(3)(a) of the Rules of this Court requires that an application for
leave to appeal to this Court shall contain “the
decision
against which the appeal is brought and the grounds upon which such
decision is disputed”.
21
Section
167(3)(b) of the Constitution provides that the Court “may
decide only constitutional matters, and issues connected
with
decisions on constitutional matters”. Regarding the
requirement of the interests of justice see
Fraser v Naude
and Others
[1998] ZACC 13
;
1998 (11) BCLR 1357
(CC);
1999 (1)
SA 1
(CC) at para 7 and
Minister of Public Works and Others v
Kyalami Ridge Environmental Association and Others
[2001]
ZACC 19
;
2001 (7) BCLR 652
(CC);
2001 (3) SA 1151
(CC) at
para
28.
22
Section
26 is set out in full at [34] below. See also
Machele and Others
v Mailula and Others
[2009] ZACC 7
;
2009 (8) BCLR 767
(CC);
2010
(2) SA 257
(CC) at para 26.
23
The
interests of justice must be determined in the light of the facts of
each case. These include the prospects of success, albeit
not
determinative, and the importance of the issues raised as well as
the public interest.
24
See
Van Wyk v Unitas Hospital and Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (4) BCLR 442
(CC);
2008 (2) SA 472
(CC) at para 30.
25
[2001]
ZACC 23
;
2001 (9) BCLR 883
(CC);
2001 (3) SA 925
(CC).
26
Id
at para 11. See also
National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC);
2000 (2)
SA 1
(CC) at n 18 where this Court stated that “[a]
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is
to avoid giving advisory opinions on abstract propositions of law.”
27
Section
38 of the Constitution provides in relevant part:
“
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.”
28
See
Abahlali Basemjondolo
Movement SA and Another v Premier of the Province of KwaZulu-Natal
and Others
[2009] ZACC
31
;
2010 (2) BCLR 99
(CC) (
Abahlali
Basemjondolo
) at para
13.
29
This
Court in
JT Publishing (Pty) Ltd and
Another v Minister of Safety and Security and Others
[1996]
ZACC 23
;
1996 (12) BCLR 1599
;
1997 (3) SA 514
(CC) at para 15
remarked:
“
A corollary is the judicial policy governing the
discretion thus vested in the Courts, a well-established and
uniformly observed
policy which directs them not to exercise it in
favour of deciding points that are merely abstract, academic or
hypothetical
ones.” (Footnote omitted.)
30
Section
1(c) of the Constitution provides: “
The
Republic of South Africa is one sovereign, democratic state founded
on the following values . . . [s]upremacy of the Constitution
and
the rule of law.”
31
See
Abahlali Basemjondolo
above
n 28 at para 18.
32
Section
36 of the Constitution provides:
“
(1) The rights in the Bill of Rights may be
limited only in terms of law of general application to the extent
that the limitation
is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including—
the
nature of the right;
the
importance of the purpose of the limitation;
the
nature and extent of the limitation;
the
relation between the limitation and its purpose; and
less
restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
33
See
[21] above.
34
The
preamble of the DMA reads:
“
To provide for—
an integrated and co-ordinated disaster management
policy that focuses on preventing or reducing the risk of
disasters, mitigating
the severity of disasters, emergency
preparedness, rapid and effective response to disasters and
post-disaster recovery;
the
establishment of national, provincial and municipal disaster
management centres;
disaster
management volunteers; and
matters
incidental thereto.”
35
See
for example section 1 of the DMA in respect of the meaning of
“disaster” set out in n 39 below, section 2(1) set
out
in n 38 below and section 55(1) set out in n 8 above.
36
See
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC);
2004 (4) SA
490
(CC) at paras 89 - 91.
37
Above
n 8.
38
Section
2(1) of the DMA provides:
“
This Act does not apply to an
occurrence falling within the definition of “disaster”
in section 1—
if, and from the date on which, a state of emergency
is declared to deal with that occurrence in terms of the State of
Emergency
Act, 1997 (Act No. 64 of 1997); or
to the extent that the occurrence can be dealt with
effectively in terms of other national legislation—
aimed at reducing the risk, and addressing the
consequences, of occurrences of that nature; and
identified by the Minister by notice in the
Gazette
.”
39
“
Disaster”
is defined in section 1 of the DMA to mean “a progressive or
sudden, widespread or localised, natural or
human-caused occurrence
which—
(a) causes or threatens to cause—
death, injury or disease;
damage to property, infrastructure or the environment;
or
disruption of the life of a community; and
is of a magnitude that exceeds the ability of those
affected by the disaster to cope with its effects using only their
own resources”.
40
See
Concise Oxford English Dictionary
, 11
th
edition
(Oxford University Press, Oxford, 2009) 493.
41
Section
55(3) of the DMA provides:
“
The powers referred to in
subsection (2) may be exercised only to the extent that this is
necessary for the purpose of—
assisting and protecting the public;
providing
relief to the public;
protecting
property;
preventing
or combating disruption; or
dealing
with the destructive and other effects of the disaster.”
42
Section
10 is set out above n 15.
In this regard see
Tswelopele Non-Profit Organisation and
Others v City of Tshwane Metropolitan Municipality and Others
2007 (6) SA 511
(SCA) at paras 15-6.
43
[1997]
ZACC 6
;
1997 (7) BCLR 851
(CC);
1997 (3) SA 786
(CC).
44
Id
at para 19.
45
Section
8(1) of the Constitution provides: “The Bill of Rights applies
to all law, and binds the legislature, the executive,
the judiciary
and all organs of state.”
In
terms of section 152(1) read with section 153(a) of the
Constitution, a municipality must provide services in a sustainable
manner to the communities within its area of jurisdiction including
the applicants. Section 153(a) enjoins a municipality to
structure
and manage its administration, budgeting and planning processes to
give priority to the basic needs of the community,
and to promote
the social and economic development of the community.
In addition, the
Housing Act and
the Housing Policy are
legislative and policy instruments enacted to give effect to the
housing obligations of the various organs
of state, including
municipalities. In particular,
section 9(1)
of the
Housing Act
provides
, in relevant part, that a municipality—“must .
. . take all reasonable and necessary steps within its 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;
. . . .
set housing delivery goals in respect of its area of
jurisdiction;
identify and designate land for housing development”.
See also in this regard
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another
(CCT 37/11)
[2011] ZACC 33
(1 December 2011) at para
24.