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[2012] ZACC 9
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Occupiers of Saratoga Avenue v City of Johannesburg Metropolitan Municipality and Another (CCT 12/12) [2012] ZACC 9; 2012 (9) BCLR 951 (CC) (24 May 2012)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 12/12
[2012] ZACC 9
In the matter between:
THE OCCUPIERS OF SARATOGA AVENUE
….........................................
Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALTY
…...............................................................................
First
Respondent
BLUE MOONLIGHT PROPERTIES 39 (PTY) LTD
….................
Second Respondent
Heard on : 30 March 2012
Order granted : 30 March 2012
Reasons for judgment : 24 May 2012
REASONS FOR JUDGMENT
FRONEMAN J (Yacoob ADCJ, Cameron J, Jafta J, Khampepe J, Maya AJ,
Nkabinde J, Skweyiya J, van der Westhuizen J and Zondo AJ
concurring):
On
Friday 30 March 2012 this Court dismissed an urgent application
brought by the applicants (Occupiers) seeking compliance with,
or
variation, of the order this Court granted in
Blue Moonlight I
.
1
We made no order as to costs and indicated that we would provide
reasons in due course.
In
brief the reasons are that:
(a) This Court was the inappropriate forum in which to bring the
application; and
(b) In any
event, no case of non-compliance or variation was made out.
Orders
on appeal
Blue
Moonlight I
was an application for leave to appeal to this Court
against the decision of the Supreme Court of Appeal which, in turn,
had
heard it as an appeal from the South Gauteng High Court,
Johannesburg (High Court). In the Supreme Court of Appeal the
structural
interdict and compensation order granted in the High
Court were set aside, but the eviction order was upheld.
2
In this Court the first respondent (City) sought leave to appeal
against those parts of the Supreme Court of Appeal’s order
that declared its housing policy unconstitutional and ordered it to
provide temporary emergency accommodation to the Occupiers.
This
Court granted leave to appeal, but dismissed the appeal.
3
The order at issue in this application resulted from the Occupiers’
conditional cross-appeal.
In
the cross-appeal the Occupiers asked that any order of eviction be
linked to the provision of suitable alternative accommodation
by the
City, and that the City be ordered to take appropriate steps to
remedy its housing policy. This Court granted leave to
cross-appeal
and upheld the cross-appeal to the extent that the City was ordered
to provide
“
those
Occupiers whose names appear in the document entitled ‘Survey
of Occupiers of 7 Saratoga Avenue, Johannesburg’
filed on 30
April 2008 with temporary accommodation in a location as near as
possible to the area where the property is situated
on or before 1
April 2012, provided that they are still resident at the property and
have not voluntarily vacated it.”
4
The
Occupiers were ordered to vacate by no later than 15 April 2012.
5
The
Occupiers launched an urgent application in this Court on 8 March
2012. The application was heard on 30 March 2012 and dismissed
on
the same day. The application was based on an anticipated
non-compliance by the City with its obligation to provide temporary
accommodation. The non-compliance was said to lie in the City’s
failure to provide temporary accommodation to both the
specific
occupiers mentioned in the order and their close relations occupying
the premises through the Occupiers. The Occupiers
sought compliance
in relation to all, either on the basis of the order as it stood,
or, if the original order did not include
those occupying the
premises through the Occupiers, on the basis that the order should
be varied to include them.
6
In
addition, the Occupiers sought a two-month postponement of the date
of eviction stipulated in the original order, namely 15
April 2012.
Shortly before the hearing of the matter, the Occupiers and the City
entered into a settlement agreement. Its terms
included a postponed
eviction date. The second respondent, the owner of the building
(building owner), was not consulted by either
the Occupiers or the
City in this process.
It is
usual that in a successful appeal, the appellate court may make the
order that the court of first instance should have made.
That order
then becomes the order of the court of first instance.
7
Execution and enforcement of the order should then take place in
that court.
This
Court has jurisdiction to hear matters other than as a court of
appeal.
8
Blue Moonlight I
was, however, not that kind of case. It was
an appeal against the judgment of the Supreme Court of Appeal.
Paragraph (e) of the
order made it clear that it was the usual ‘set
aside and replace’ kind of order made in an appeal.
9
It effectively became an order of the High Court.
The
reason for enforcing orders in the original court is logical and
practical. The order on appeal merely corrects the original
order
and the court of first instance is usually best equipped to deal
with matters relating to the enforcement of that order.
The
Occupiers contended, however, that in the circumstances of this case
they would not have been able to obtain the relief they
sought in
the High Court, namely a just and equitable variation of the order
based on changed circumstances.
Zondi
10
and
Residents of Joe Slovo Community
11
are the two decisions of this Court that may be invoked for this
submission.
When
a court decides a constitutional matter within its power, section
172(1)(b) of the Constitution allows it to make any order
that is
just and equitable. In
Zondi
the question that arose was
whether this Court, having considered it just and equitable to
suspend an order declaring a statute
invalid, could extend the
period of suspension. The Court held that it could.
12
In
Residents of Joe Slovo Community
it was stated that:
“
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.”
13
It is
important to remember, however, the kind of orders sought to be
varied in
Zondi
, and discharged in
Residents of Joe Slovo
Community
. In
Zondi
a statute had been declared
constitutionally invalid and under the just and equitable remedy
provision of section 172(1)(b) this
Court had suspended the order of
invalidity. In
Residents of Joe Slovo Community
the eviction
order made by this Court was “coupled with a detailed
supervisory order . . . concerning the execution of
that order”.
14
These were both cases where this Court made just and equitable
orders that made it clear that the Court itself chose to regulate
and oversee their execution.
That
is not the case here, and will rarely be in appeals heard by this
Court. There is no indication in the
Blue Moonlight I
order
of any continued oversight by this Court. In the absence of a clear
indication of this kind, it must be accepted that the
order this
Court makes on appeal becomes the order of the court of first
instance.
The
application should thus have been brought in the High Court.
Lack of
merits
In
its opposing affidavit the City contested the Occupiers’
allegation that it could not provide the accommodation ordered
in
Blue Moonlight I.
It must be remembered that the application
was launched some 23 days before 1 April 2012, the date by when the
City had to provide
the temporary accommodation. The hearing also
took place two days before that date. During the hearing counsel for
the City also
gave an unequivocal assurance and undertaking that the
accommodation would be provided in time. In view of this, the
anticipated
non-compliance by the City with the order could not
realistically be sustained on the papers before us.
The
Occupiers relied strongly on the argument that the order
incorporated an implicit obligation on the City to engage
meaningfully
with the Occupiers in the process of eviction. Any
eviction process must take place with due regard to the dignity of
the persons
who are being evicted.
15
But whether that obvious requirement entails a more substantive
requirement of “meaningful engagement”, which would
entitle all evictees to contest the quality of temporary
accommodation being provided to them, need not be decided here. This
is because the Occupiers, on the papers before us, will be provided
with accommodation and they will not be rendered homeless
by the
eviction.
Meaningful
engagement as a legal requirement has thus far been ordered by this
Court only in cases where the state was the party
seeking eviction
and was ordered to provide alternative accommodation.
16
In this matter there is an important third party involved, namely
the building owner. It is clear that neither the Occupiers
nor the
City “meaningfully engaged” the building owner in the
process of finding alternative accommodation and about
the date of
eviction.
Even
if meaningful engagement should be the norm in tripartite cases like
the present, about which it is not necessary to make
any finding,
the engagement cannot be meaningful without the participation of one
of the essential parties. This failure is another
reason why the
application cannot succeed on the merits.
The
application was therefore dismissed.
For the Applicants:
Advocate P
Kennedy SC, Advocate H Barnes and Advocate S Wilson
instructed
by The Centre for Applied Legal Studies.
For the First Respondent: Advocate JJ Gauntlett SC and Advocate F
Pelser instructed by Moodie & Robertson Attorneys.
For the Second Respondent:Advocate MSM Brassey SC instructed by
Schindlers Attorneys.
1
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
[2011] ZACC 33; 2012 (2) SA
104 (CC); 2012 (2) BCLR 150 (CC).
2
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
2011 (4) SA 337
(SCA) at
paras 69-71 and 77.
3
The
full order granted, at para 104, reads:
“
(a) The application for leave
to appeal is granted.
(b) The appeal is dismissed.
(c) The application for leave to cross-appeal is
granted.
(d) The cross-appeal is upheld to the extent set out
below.
(e) Paragraphs 5.1 to 5.4 of the order of the Supreme
Court of Appeal are set aside and replaced with the following:
(i) The first respondent in the South Gauteng High
Court, Johannesburg and all persons occupying through them
(collectively, the
Occupiers) are evicted from the immovable
property situate at Saratoga Avenue, Johannesburg, and described as
Portion 1 of Erf
1308, Berea Township, Registration Division IR,
Gauteng (the property).
(ii) The Occupiers are ordered to vacate the property
by no later than 15 April 2012, failing which the eviction order may
be
carried out.
(iii) The housing policy of the second respondent in
the South Gauteng High Court, Johannesburg, the City of Johannesburg
Metropolitan
Municipality, is declared unconstitutional to the
extent that it excludes the Occupiers and other persons evicted by
private
property owners from consideration for temporary
accommodation in emergency situations.
(iv) The City of Johannesburg Metropolitan Municipality
must provide those Occupiers whose names appear in the document
entitled
“Survey of Occupiers of 7 Saratoga Avenue,
Johannesburg” filed on 30 April 2008 with temporary
accommodation in a
location as near as possible to the area where
the property is situated on or before 1 April 2012, provided that
they are still
resident at the property and have not voluntarily
vacated it.
(f) The applicant is ordered to pay the costs of the
first and second respondents, including the costs of two counsel, in
this
Court.”
4
Id
at (e)(iv).
5
Id
at (e)(i) and (ii).
6
The
orders sought in the notice of motion read, in relevant parts:
“
2. Varying the order of this
Court in
City of
Johannesburg v Blue Moonlight Properties
[2011]
ZACC 33
,
handed down on 1 December 2011 (‘the Order’) in the
following respects:
2.1 by extending the date in paragraph 104(e)(ii) of
the Order to 15 June 2012;
2.2 by extending the date in paragraph 104(e)(iv) of
the Order to 1 June 2012; and
2.3 by inserting the words ‘
and all persons
occupying through them
’ after ‘30 April 2008’
in paragraph 104(e)(iv) of the Order.
3. Ordering the first respondent forthwith to engage
meaningfully with the applicants on:
3.1 the nature of the temporary accommodation to be
provided to the applicants in terms of the Order as amended,
including but
not limited to the needs of families who desire to
live together in family accommodation;
3.2 the location of the temporary accommodation to be
provided to the applicants in terms of the Order as amended; and
3.3 the details of the process (including the
timetable) of relocating the applicants from their current
accommodation at Saratoga
Avenue to the temporary accommodation in
terms of the Order as amended.
4. Ordering the first respondent to pay the costs of
this application on the attorney and client scale, including the
costs of
two counsel.”
7
General
Accident Versekeringsmaatskappy Suid-Afrika Bpk v Bailey NO
1988
(4) SA 353
(A) at 358H.
8
Section
167(4), (5) and (6)(a) of the Constitution of the Republic of South
Africa, 1996.
9
Above
n 3.
10
Zondi
v MEC, Traditional and Local Government Affairs, and Others
[2005] ZACC 18
;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC).
11
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(Centre on Housing Rights and Evictions and Another
as Amici Curiae)
[2011] ZACC 8
;
2011 (7) BCLR 723
(CC) (
Residents of Joe Slovo
Community
)
.
12
Zondi
above n 10 at para 39.
13
Residents
of Joe Slovo Community
above n 11 at para 23.
14
Id
at para 1.
15
Occupiers
of 51
Olivia Road, Berea Township and 197 Main Street,
Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) (
Olivia Road
) at
para 16.
16
Olivia
Road
above n 15;
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).