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[2012] ZACC 26
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Schubart Park Residents' Association and Others v City of Tshwane Metropolitan Municipality and Another (CCT 23/12) [2012] ZACC 26; 2013 (1) SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 23/12
[2012]
ZACC 26
In
the matter between:
SCHUBART
PARK RESIDENTS’ ASSOCIATION
............................
First
Applicant
ANITA
WATKINS
............................................................................
Second
Applicant
VARIOUS
RESIDENTS OF SCHUBART PARK
APARTMENT
BLOCKS
.........
Third to One Thousand
and Sixty-Seventh Applicants
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
................................................................................
First
Respondent
MINISTER
OF POLICE
.................................................................
Second
Respondent
and
SOCIO-ECONOMIC
RIGHTS INSTITUTE
OF
SOUTH AFRICA
.............................................................................
Amicus
Curiae
Heard
on : 23 August 2012
Decided
on : 9 October 2012
JUDGMENT
FRONEMAN
J (Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Nkabinde
J, Skweyiya J and Van der Westhuizen J concurring):
Introduction
The
broad issue to be determined in this case is what order is justified
when residents approach a court for the re-occupation
of their homes
after they had been removed from them in a situation of urgency.
Schubart
Park is a residential complex close to the city centre of Pretoria
in the City of Tshwane Metropolitan Municipality.
It consists of
four high rise blocks, A, B, C and D. The complex was erected in the
1970s as part of a state-subsidised rental
scheme for the benefit of
civil servants. In July 1999, the first respondent (City) took over
Schubart Park. Initially, the City
continued to rent out units in
the complex to civil servants. But over time, increased urbanisation
and the resultant decay took
their toll. By the time the events that
led to the litigation in this matter occurred, the condition of the
buildings had markedly
deteriorated, the buildings were occupied by
many persons not known to the City and, approximately 10 days before
21 September 2011,
the water and electricity supply to
Schubart Park was stopped. Some 700 families were living at Schubart
Park in blocks A, B
and C at that time. Block D was unoccupied.
On
21 September 2011, a number of residents started a protest about
living conditions at the complex. The protest involved the
burning
of tyres, the lighting of fires and the throwing of stones and
objects from the buildings at vehicles and the police.
Two localised
fires broke out in block C. The police cordoned off the streets
around Schubart Park, removed the residents of
block C from the
building and denied access to all other residents returning to
Schubart Park after work on that day. Residents
in blocks A and B
were not removed that day. The police were assisted by the City
Metropolitan Police and fire brigade officers.
The fires were
extinguished later in the evening and by the next day the police
operation relating to the protest was effectively
over.
During
the evening of 21 September 2011, the legal representatives of the
applicants engaged City officials in an effort to come
to an
agreement on various matters, including temporary accommodation for
the people who were put out on the streets by police
action. These
negotiations came to nought. By late morning the next day, 22
September 2011, it became apparent that the occupants
of block C of
Schubart Park would not be allowed to return to their homes.
At
5pm that evening, the applicants brought an urgent application
before Prinsloo J in the North Gauteng High Court, Pretoria
(High
Court), seeking an order allowing them to return to their homes. The
City and the Minister of Police (Minister) were cited
as
respondents.
The
application for re-occupation of their homes was dismissed that
night, but the High Court ordered the City and the Minister
to
ensure that the temporary accommodation offered in terms of a tender
made by the City was available. In addition, the parties
were
ordered to meet at the earliest opportunity so as to propose a draft
order to meet the further needs of the applicants and
to re-approach
the Court the next day.
The
next day, 23 September 2011, the matter was postponed to
3 October 2011. A second order was made, keeping in place
the temporary arrangements of the previous night’s order, but
it directed the parties to take further steps in an attempt
to reach
agreement on unresolved issues.
During
the following week the residents of blocks A and B who had remained
in the buildings during the police operation on 21
September 2011,
were also removed. By the end of September between 3000–5000
people were either on the streets or in temporary
shelters.
The
parties were unable to reach agreement on a further order. On
3 October 2011 the High Court issued an order that
confirmed some of the arrangements for immediate assistance. In
addition, it provided that any resident of Schubart Park who
had
been affected by the dismissal of the application could accept the
tender made by the City and that, upon acceptance, the
tender would
operate as an order between the City, the Minister and that person.
1
The
applicants seek leave to appeal to this Court after leave to appeal
was refused by both the High Court and the Supreme Court
of Appeal.
They also seek leave to introduce further evidence relating to the
structural condition of the buildings. In the event
of leave to
appeal being granted, they ask for the High Court orders to be set
aside; for declaratory orders that the refusal
to allow them to
return to Schubart Park, and their removal, were unlawful; that they
be allowed to return to their homes; that
the City be ordered to
reconnect the water and electricity services; and for a costs order
against the City on a punitive scale.
The
High Court orders
Although
three separate orders were granted on 22 September, 23 September and
3 October 2011, it will be convenient to deal with
them as
essentially comprising two parts, namely the dismissal of the
application for immediate re-occupation of the homes of
the
residents (dismissal order) and the subsequently finalised order of
3 October 2011 relating to the implementation
of the
City’s tender (tender implementation order).
The
relevant parts of the tender, which were incorporated in the tender
implementation order made on 3 October 2011, read:
“
1.
That the First Respondent will provide and if necessary further
construct for those individual residents, who were forced to
vacate
the Schubart Park block of flats because of the fire at the aforesaid
property and who still require same, temporary habitable
dwellings,
that afford shelter, privacy and amenities at least equivalent to
those that were destroyed . . . .
2.
The First Respondent is to immediately assist the individual members
. . . with removing of all their belongings . . . from the
aforesaid
property.
3.
The requirements of paragraph 2 will be accomplished by means of the
individual members . . . accompanied by members of the Second
Respondent . . . .
4.
The First Respondent will provide storage facilities . . . for the
aforementioned belongings . . . .
5.
The First Respondent is to place security personnel at the storage
facilities.
6.
The First Respondent is to forthwith commence with the refurbishment
and renovation of the flats known as Schubart Park in Central
Pretoria, subject to the recommendation of structural engineers and
subject to the building reasonably being capable of refurbishment
and/or renovation.
7.
The aforesaid refurbishment and renovation of the flats known as
Schubart Park shall be completed by the First Respondent within
a
period not exceeding 18 (eighteen) months, which period may be
extended from time to time by agreement or Order of Court.
In
the event that the technical advice referred to in the
aforementioned paragraph dictates that the buildings known as
Schubart
Park must be demolished and/or cannot be refurbished and/or
renovated then the First Respondent will furnish those qualifying
residents who may choose to accept this tender with alternative
habitable dwellings, that afford shelter, privacy and amenities
of
life.
Subsequent
to the refurbishment and renovation of the Schubart Park block of
flats referred to in paragraph 6, the First Respondent
will relocate
the Applicants to Schubart Park, central Pretoria, subject to the
following:
9.1
The Applicants providing proof of their rights, and based on the
merits and qualification, to occupy the property known as Schubart
Park;
9.2
The Applicants’ right of occupancy in the Republic of South
Africa”.
At
the hearing on the evening of 22 September 2011, the City was
allowed to present oral evidence on the basis of urgency. The
effect
of this evidence was described in the following terms in the High
Court judgment delivered that night:
“
It
turns out . . . that on judging the evidence as a whole, and the
weight thereof, all these experts agree that to allow this
application and to send these people, including elderly people and
children found abandoned in locked rooms by the police, and the
Metro
Police, back into this building in the shocking condition in which it
is, would be playing with their lives and endangering
their very
existence.
I
am asked by these applicants to sanction such a state of affairs and
I am not prepared to do so.”
The
judgment later continues:
“
[T]he
order that I propose making . . . in my opinion, is in line with the
provisions of section 38 of the Constitution, which allows
a court,
where the infringement of fundamental rights is at stake, to grant
appropriate relief.
In
my opinion the appropriate relief in these particular circumstances
cannot be an order allowing these people to go back into
life
threatening circumstances.”
The
dismissal order set in motion the process that culminated in the
tender implementation order.
Leave
to appeal
The
Socio-Economic Rights Institute of South Africa (SERI) was admitted
as a friend of the court to the proceedings without objection
from
the applicants or the City. The Minister chose not to be represented
in this Court.
The
matter concerns a constitutional issue of major importance, namely
the right, under section 26(3) of the Constitution, not
to be
evicted from one’s home without an order of court, made after
considering all the relevant circumstances.
2
Reasonable prospects of success exist. There are no material
countervailing factors that militate against a finding that it is
in
the interests of justice to grant leave. Leave to appeal should thus
be granted.
The
appeal
a.
Contentions of the parties
The
applicants and SERI make common cause in the appeal. They contend
that the dismissal order was not justified in that it amounts
to an
order of eviction of the applicants without any lawful foundation.
They also argue that it contravenes section 26(3)
of the
Constitution and disregards the provisions of the various statutory
instruments that may allow the removal, evacuation
or eviction of
people from their homes.
3
The applicants, in particular, also attack the factual basis relied
upon for the dismissal order and seek leave to introduce
further
evidence to counter the evidence presented by the City about the
state of the buildings. The applicants and SERI further
contend that
the tender implementation order was not relief that could
appropriately have been granted under section 38 of the
Constitution.
Although
the City in its written argument sought to rely on various statutory
bases for the removal of the residents from their
Schubart Park
homes, this line of argument was not pursued in oral argument. The
City confined its oral argument, in justification
of the dismissal
order, to a defence of the factual findings made in the High Court.
It contended that those facts supported
a conclusion that the
defence of impossibility raised by the City in the High Court was
properly proved. It also accepted that
the tender implementation
order was premised on an acceptance that the applicants were
entitled to re-occupation of their homes
in Schubart Park if that
were indeed possible. These concessions were responsibly and
properly made.
The
only defence raised by the City to the dismissal order in its
opposing affidavit is impossibility. The oral evidence of the
witnesses called by the City in the High Court proceedings, although
at times straying beyond the ambit foreshadowed in their
answering
affidavit, remained factual in nature and did not purport to found
lawful authority for the removal beyond reasons
of safety and
temporary impossibility in the circumstances that existed at the
time of the application. And persistence in an
argument that the
immediate removal of residents on grounds of safety and temporary
impossibility could result in the permanent
lawful deprivation of
the occupation of their homes, would have foundered on the authority
of the decisions in this Court in
Pheko
4
and
Olivia Road
.
5
Thus
narrowed down, the crucial issues for determination revolve around
the effect of the orders granted in the High Court.
b.
Issues
The
applicants sought an order in the High Court for restoration on the
ground that they were despoiled of possession of their
homes. This
immediately added the dimension of section 26(3) of the Constitution
to what would otherwise have been a normal spoliation
application.
It is the interplay between the ordinary requirements of spoliation
and the demands of section 26(3) of the Constitution
that is at
issue here.
c.
Spoliation, restoration and reparation
The
remedy of spoliation, or the
mandament van spolie
, is aimed
at restoration of possession. In
Tswelopele
6
the Supreme Court of Appeal explained the remedy’s effect:
“
Under
it, anyone illicitly deprived of property is entitled to be restored
to possession before anything else is debated or decided
(
spoliatus
ante omnia restituendus est
).
Even an unlawful possessor — a fraud, a thief or a robber —
is entitled to the
mandament
’s
protection. The principle is that illicit deprivation must be
remedied before the Courts will decide competing claims to
the object
or property.”
7
A
spoliation order, then, does not determine the lawfulness of
competing claims to the object or property. For this reason there
are, under the common law, only a limited number of defences
available to a spoliation claim, impossibility being one of them.
8
In
Rikhotso
9
it was held that a spoliation order may not be granted if the
property in issue has ceased to exist and that it is a remedy for
the restoration of possession, not for the making of reparation.
This was confirmed as correct by the Supreme Court of Appeal
in
Tswelopele
:
10
“
The
doctrinal analysis in
Rikhotso
is in my view undoubtedly correct. While the
mandament
clearly enjoins breaches of the rule of law and serves as a
disincentive to self-help, its object is the interim restoration of
physical control and enjoyment of specified property — not its
reconstituted equivalent. To insist that the
mandament
be extended to mandatory substitution of the property in dispute
would be to create a different and wider remedy than that received
into South African law, one that would lose its possessory focus in
favour of different objectives (including a peace-keeping
function).”
11
In
Tswelopele
, the Supreme Court of Appeal had to deal with a
situation where about one hundred people were removed from their
homes on a vacant
piece of land in Garsfontein, a suburb of
Pretoria. They approached the High Court for a spoliation order. In
the process of
removal the materials used in the construction of
their dwellings had been destroyed, with the result that these
people could
not be restored to the possession of their homes. The
High Court, following
Rikhotso
, held that because of this
destruction it could not order restoration under the
mandament
van spolie
. On appeal the difficulty confronting the Supreme
Court of Appeal was whether this meant that the people whose homes
had been
destroyed must be left remediless. And, if not, whether the
remedy lay in the development of the common law of spoliation, or in
some other way. In holding that the people should not be left
remediless, the Supreme Court of Appeal chose the latter course.
It
reasoned and concluded:
“
It
is correct . . . that the rule of law is a founding value of the
Constitution. This would suggest that constitutional
development of the common law might make it appropriate to adapt the
mandament
to include reconstituted restoration in cases of destruction. And
counsel is certainly correct in submitting that the absence of
a
remedy mandating substitution of unlawfully destroyed property could
create a perverse incentive for those taking the law into
their own
hands to destroy the disputed property, rather than leaving it
substantially intact.
But
as already indicated, I do not think that formulating an appropriate
constitutional remedy in this case requires us to seize
upon a
common-law analogy and force it to perform a constitutional function.
For there is a further dimension to the case, which
takes the matter
beyond even a developmentally enhanced
mandament
: the relief
we give must vindicate the Constitution. As Kriegler J noted in
Fose
,
‘the harm caused by violating the Constitution is a harm to the
society as a whole, even where the direct implications of
the
violation are highly parochial. The rights violator not only harms a
particular person, but impedes the fuller realisation
of our
constitutional promise’:
‘
Our
object in remedying these kinds of harms should, at least, be to
vindicate the Constitution, and to deter its further infringement.’
Vindication,
Kriegler J noted, ‘recognises that a Constitution has as little
or as much weight as the prevailing political
culture affords it.’
Essentially, the remedy we grant should aim to instil recognition on
the part of the governmental agencies
that participated in the
unlawful operation that the occupiers, too, are bearers of
constitutional rights, and that official conduct
violating those
rights tramples not only on them but on all. The remedy should instil
humility without humiliation, and should
bear the instructional
message that respect for the Constitution protects and enhances the
rights of all. It is a remedy special
to the Constitution, whose
engraftment on the
mandament
would constitute an unnecessary
superfluity.
The
occupiers must therefore get their shelters back.”
12
(Footnotes omitted.)
Fose
13
was decided under section 7(4)(a) of the interim Constitution. The
counterpart under the Constitution is section 38, which in
relevant
part reads:
“
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.”
Although
Tswelopele
upheld the distinction between the common law
requirements for spoliation and that of constitutional relief under
section 38 of
the Constitution, it must be remembered that it
granted the eventual constitutional relief in a matter that was
brought purely
as a spoliation application. Here the applicants
raised the section 26(3) aspect in their founding papers.
I
agree that it is conducive to clarity to retain the “possessory
focus”
14
of the remedy of spoliation and keep it distinct from constitutional
relief under section 38 of the Constitution. This is because
the
order made in relation to factual possession in spoliation
proceedings does not in itself directly determine constitutional
rights, but merely sets the scene for a possible return to the
status quo
, in order for the subsequent determination of
constitutional rights in relation to the property.
15
The
implication of this is that spoliation proceedings, whether they
result in restoration or not, should not serve as the judicial
foundation for permanent dispossession – that is, eviction
16
– in terms of section 26(3) of the Constitution. Neither the
dismissal order of 22 September 2011 nor the later tender
implementation order could serve as justification for the eviction
of the applicants from their homes for the purposes of section
26(3)
of the Constitution. But could the dismissal order, and the later
tender implementation order, legitimately count as “appropriate
relief” under section 38 of the Constitution?
d.
Appropriate relief under section 38
The
applicants contend that the dismissal order was in any event wrongly
refused because the High Court erred in its assessment
of the facts
relating to the dangerous condition of the buildings. That
contention does not, however, raise a constitutional
issue that
requires adjudication in this Court.
17
The application for leave to introduce further evidence on the
condition of the buildings suffers the same defect and must be
dismissed.
SERI
accepted that the matter had to be determined on an acceptance of
the facts found by the High Court. However, it argued that
those
facts do not justify a conclusion that impossibility, a valid
defence to spoliation,
18
had been established. That might be so, but properly read the orders
made in the High Court were not based on a finding that
impossibility had been established. As noted above,
19
the Judge considered that the orders he made, including dismissal of
the order seeking immediate restoration, were justified
by the
provisions of section 38 of the Constitution.
In
Hoffman
20
the determination of appropriate relief under section 38 was
approached in the following manner:
“
The
determination of appropriate relief, therefore, calls for the
balancing of the various interests that might be affected by the
remedy. The balancing process must at least be guided by the
objective, first, to address the wrong occasioned by the infringement
of the constitutional right; second, to deter future violations;
third, to make an order that can be complied with; and fourth,
of
fairness to all those who might be affected by the relief.
Invariably, the nature of the right infringed and the nature of the
infringement will provide guidance as to the appropriate relief in
the particular case. Therefore, in determining appropriate relief,
‘we must carefully analyse the nature of [the] constitutional
infringement, and strike effectively at its source’.”
21
(Footnote omitted.)
The
High Court orders were challenged in this Court on the basis that
they disregarded the infringement of the applicants’
rights
not to be evicted without a court order and, in effect, condoned a
profoundly illegal act. They did not provide the applicants
with any
effective relief. I think that there is merit in the argument that
the relief granted falls short of what is required,
but the
criticism is overstated.
The
initial order granted on 22 September 2011 was made under very
difficult circumstances. It was made late at night after hearing
oral evidence in relation to violent protest action that was finally
brought under control only that same day. The factual assessment
of
immediate danger resulting from the fires to the lives of the
residents, including elderly people and children, made by the
Judge
cannot be second-guessed in this Court. Even if it could, I would
find it difficult to fault the immediate effect of the
order.
The
important question, however, is whether that immediate order
pronounced in a final way upon the lawfulness of the applicants’
removal from their homes. If it did, it was legally incompetent, as
explained earlier.
22
But what emerges from the orders is not as clear-cut as that. The
first order of 22 September 2011 included a provision that
the
parties should meet to prepare a draft order “aimed at meeting
the needs of the applicants as best as possible under
the
circumstances” and to approach the Court again the next day.
The draft presented the next day was premised on the assumption
that
those residents who accepted the City’s tender would be
returned to Schubart Park after refurbishment or renovation.
The
final order of 3 October 2011
23
made that even clearer. It provided for the immediate commencement
of the refurbishment or renovation of Schubart Park, to be
completed
within 18 months, with a provision for an extension of this
period by agreement or by order of Court. Only if
that could not
happen would permanent alternative accommodation come into the
picture.
There
are deficiencies in the order that I will return to presently. For
the moment, however, I point out that the assumption
in the orders –
that the residents are entitled to return to Schubart Park –
is not readily compatible with an interpretation
that the orders
finally disentitle the residents from restoration of occupation to
their homes. Nonetheless, there is ambiguity
and contradiction in
the order.
In
a spoliation application, where the alleged dispossession involves
the removal of people from their homes, great caution must
be
exercised in making an order under section 38 of the Constitution.
Where urgency dictates that immediate restoration will
not be
ordered it must be made clear, preferably by a declaratory order to
that effect, that the refusal to order re-occupation
does not
purport to lay the foundation for a lawful eviction under section
26(3) of the Constitution. The order must be temporary
only, and
subject to revision by the court. Urgent orders of this kind will be
rare: there is legislation providing for the timeous
removal of
people living in unsafe buildings,
24
for temporary evacuation in disaster situations
25
and for eviction in the normal course.
26
It
is a matter of concern that the City, until oral argument before
this Court, attempted to justify the removal of the residents
as
lawful under this legislation when it was clearly not the case. This
attitude lends some credence to the assertion by the
applicants that
the City used the crisis as an excuse to evict the residents without
complying with the law.
As
the order stands, it falls short of the protection provided for in
section 26(3) of the Constitution in the following respects:
It
provides for occupation of the property only for those residents who
accept the tender. Those who do not accept are left without
a
remedy.
Restoration
to Schubart Park is made conditional upon proof of their rights of
occupancy to the property and their right of occupancy
in the
Republic of South Africa.
Although
it provides for court access in relation to extensions of time, it
does not do so in respect of the vitally important
eventuality where
restoration is stated to be impossible.
27
In that case residents only have “alternative habitable
dwellings”
28
as an alternative. The lack of provision for a court order for what
effectively will be an eviction order is in breach of section
26(3).
In
summary, I read the order as accepting: (1) that the removal of the
residents was not a lawful eviction; (2) that the removal
was
instead temporarily necessary in order to save lives; (3) that the
residents were entitled to re-occupation once it was safe
to do so;
and (4) that if it could not be made safe, those who accepted the
tender must be provided with alternative accommodation,
without the
City having to come to court to effect what would then be an
eviction that does not comply with section 26(3) of
the
Constitution. In the particular circumstances of this case I accept
that (1), (2) and (3) were legally permissible, but (4)
was not.
e.
Supervision and engagement
Normally
supervision and engagement orders accompany eviction orders where
they relate to the provision of temporary accommodation
pending
final eviction. But there is no reason why they cannot be made in
other circumstances where it is appropriate and necessary
–
section 38 is wide enough to accommodate that. In the particular
circumstances of this matter the High Court used these
provisions to
ensure that the needs of residents were seen to. Although I consider
some of the provisions inadequate in view
of the conclusion reached
earlier, I think that reason for making provision for engagement and
supervision existed, and still
does. It is now more than a year
after the residents were removed from their homes. Finding out who
they were, where they are,
and what they still need to re-occupy
their homes will require co-operation between them and the City.
Many
provisions in the Constitution require the substantive involvement
and engagement of people in decisions that may affect
their lives.
29
This Court has recognised this in relation to political
decision-making,
30
access to information,
31
just administrative action,
32
freedom of expression,
33
freedom of association
34
and socio-economic rights.
35
Of particular relevance here are the cases dealing with the right to
have access to adequate housing
36
and protection from arbitrary eviction or demolition of their homes
under the Constitution.
37
What
these provisions and cases have enabled us to appreciate is, first,
the interrelation between different rights and interests
38
and second, that the exercise of these often competing rights and
interests can best be resolved by engagement between the parties.
In
PE Municipality
39
the Court expressed this realisation:
“
In
seeking to resolve the above contradictions, the procedural and
substantive aspects of justice and equity cannot always be separated.
The managerial role of the courts may need to find expression in
innovative ways. Thus, one potentially dignified and effective
mode of achieving sustainable reconciliations of the different
interests involved is to encourage and require the parties to engage
with each other in a proactive and honest endeavour to find mutually
acceptable solutions.”
40
The
importance of engagement without preconceptions about the worth and
dignity of those participating in the engagement process
should also
be recognised:
“
Thus,
those seeking eviction should be encouraged not to rely on concepts
of faceless and anonymous squatters automatically to be
expelled
as obnoxious social nuisances. Such a stereotypical approach has no
place in the society envisaged by the Constitution;
justice and
equity require that everyone is to be treated as an individual bearer
of rights entitled to respect for his or her
dignity. At the same
time, those who find themselves compelled by poverty and landlessness
to live in shacks on the land of others,
should be discouraged
from regarding themselves as helpless victims, lacking the
possibilities of personal moral agency.”
41
This
applies in particular to those who bear constitutional
responsibility in providing access to adequate housing under the
Constitution:
“
[M]unicipalities
have a major function to perform with regard to the fulfilment of the
rights of all to have access to adequate
housing. Municipalities,
therefore, have a duty systematically to improve access to housing
for all within their area. They must
do so on the understanding that
there are complex socio-economic problems that lie at the heart of
the unlawful occupation of land
in the urban areas of our country.
They must attend to their duties with insight and a sense of
humanity. Their duties extend beyond
the development of housing
schemes, to treating those within their jurisdiction with respect.”
42
In
Olivia Road
43
these concerns were re-iterated:
“
It
must be understood that the process of engagement will work only if
both sides act reasonably and in good faith. The people who
might be
rendered homeless as a result of an order of eviction must, in their
turn, not content themselves with an intransigent
attitude or nullify
the engagement process by making non-negotiable, unreasonable
demands. People in need of housing are not, and
must not be regarded
as a disempowered mass. They must be encouraged to be pro-active and
not purely defensive. Civil society organisations
that support the
people’s claims should preferably facilitate the engagement
process in every possible way.
Finally
it must be mentioned that secrecy is counter-productive to the
process of engagement. The constitutional value of openness
is
inimical to secrecy. Moreover, as I have already pointed out, it is
the duty of a court to take into account whether, before
an order of
eviction that would lead to homelessness is granted at the instance
of a municipality, there has been meaningful engagement
or, at least,
that the municipality has made reasonable efforts towards meaningful
engagement. In any eviction proceedings at the
instance of a
municipality therefore, the provision of a complete and accurate
account of the process of engagement, including
at least the
reasonable efforts of the municipality within that process, would
ordinarily be essential. The absence of any engagement
or the
unreasonable response of a municipality in the engagement process
would ordinarily be a weighty consideration against the
grant of an
ejectment order.”
44
These
remarks were made in cases relating to eviction orders, but they are
equally, if not more, apposite in a case like the present.
Here the
applicants were as a matter of law entitled to restoration of their
occupation but were nevertheless deprived of that
restoration for a
long period. Not only did their inherent right to dignity
45
entitle them to be treated as equals in the engagement process, but
also their legal entitlement to return to their homes absent
a court
order for their eviction. It is so that the High Court could not
immediately order restoration. But, as a matter of law,
it could and
should have issued a declaratory order indicating the residents’
eventual entitlement to restoration.
The
City’s tender was an inadequate basis for a proper order of
engagement between the parties. It proceeds from a “top-down”
premise, namely that the City will determine when, for how long and
ultimately whether at all, the applicants may return to Schubart
Park. Unfortunately the history of the City’s treatment of the
residents of Schubart Park also shows that they appeared
to regard
them, generally, as “obnoxious social nuisances”,
46
who contributed to crime, lawlessness and other social ills. If
there were individuals at Schubart Park who were guilty of, or
contributed to, these ills, they should have been dealt with in
accordance with the provisions of the law relating to them.
The
engagement part of the order issued in terms of section 38 should
thus provide for meaningful engagement with the applicants
at every
stage of the re-occupation process. It is, however, uncertain how
long that process will be and it is necessary for
supervision by a
court of the progress in that regard.
47
Experience has shown that this should be done by the High Court.
48
There
is no adequate reason for a punitive costs order.
Order
The
following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders made by the North Gauteng High Court, Pretoria, on
22 September 2011, 23 September 2011 and 3 October 2011
under case no. 53128/11 are set aside.
4.
It is declared that the High Court orders did not constitute an order
for the residents’ eviction as required by section
26(3) of the
Constitution and that the residents are entitled to occupation of
their homes as soon as is reasonably possible.
5.
The applicants and the City of Tshwane Metropolitan Municipality
must, through their representatives, engage meaningfully with
each
other in order to give effect to the declaratory order in paragraph 4
above. The engagement must occur with a view to reaching
agreement
on:
5.1.
the identification of the residents who were in occupation of
Schubart Park before the removals that started on 21 September 2011;
5.2.
the date when the identified residents’ occupation of Schubart
Park will be restored;
5.3.
the manner in which the City will assist the identified residents in
the restoration of their occupation of Schubart Park;
5.4.
the manner in which the identified residents will undertake to pay
for services supplied to Schubart Park by the City on restoration
of
occupation;
5.5.
alternative accommodation that must be provided to the identified
residents by the City until restoration of their occupation
of
Schubart Park; and
5.6.
a method of resolving any disagreements in relation to the issues
mentioned in 5.1 to 5.5.
6.
The parties must on affidavit report to the High Court by
30 November 2012 on what plans have been agreed upon to
provide alternative accommodation to the identified residents in
terms of paragraph 5.5 above.
7.
The parties must on affidavit report to the High Court by
31 January 2013 on what agreement has been reached in
respect
of paragraphs 5.1, 5.2, 5.3, 5.4 and 5.6 above.
8.
The Registrar of this Court is directed to furnish this order to the
Registrar of the North Gauteng High Court, Pretoria.
9.
The City of Tshwane Metropolitan Municipality is ordered to pay the
applicants’ costs in this Court and in the North Gauteng
High
Court, Pretoria, including, where applicable, the costs of two
counsel.
For
the Applicants: Advocate R Jansen, Advocate M Dewrance and Advocate
MM Majozi instructed by Lawyers for Human Rights.
For
the First Respondent: Advocate M Mphaga SC and Advocate PL Uys
instructed by Gildenhuys Lessing Malatji.
For
the Amicus Curiae: Advocate S Wilson and Advocate I De Vos
instructed by SERI Law Clinic.
1
That
part of the order is set out in [12] below.
2
Section
26(3) provides:
“
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.”
3
The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE); section 54 of the Disaster Management
Act 57
of 2002 (DMA); section 12 of the National Building Regulations and
Building Standards Act 103 of 1977 (NBRA); Regulation
A15 of the
NBRA, GN R 2378 GG 12780, 12 October 1990; and section 11(2) of the
City of Tshwane Metropolitan Municipality, Fire
Brigade Services
By-Laws, published under LAN 267 in
Gauteng Provincial Gazette
42 of 9 February 2005.
4
Pheko
and Others v Ekurhuleni Metropolitan Municipality
[2011] ZACC
34
;
2012 (2) SA 598
(CC);
2012 (4) BCLR 388
(CC) (
Pheko
) at
paras 38, 40 and 45.
5
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 49.
6
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
2007 (6) SA 511
(SCA) (
Tswelopele
).
7
Id
at para 21.
8
See
Law of South Africa
(1
st
reissue) vol 27 at 190,
para 270 (LAWSA).
9
Rikhotso
v Northcliff Ceramics (Pty) Ltd and Others
1997 (1) SA 526
(WLD)
at 535A-B.
10
Above
n 6.
11
Id
at para 24.
12
Id
at paras 25-8.
13
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC).
14
Tswelopele
above n 6 at para 24.
15
This
is no different to the purpose it served in our pre-constitutional
common law: see LAWSA above n 8 at 182, para 265.
16
Pheko
above n 4.
17
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 15.
18
LAWSA
above n 8 at 191, para 271.
19
[14]
above.
20
Hoffmann
v South African Airways
[2000] ZACC 17
;
2001 (1) SA 1
(CC);
2000
(11) BCLR 1211
(CC).
21
Id
at para 45.
22
[28]-[30]
above.
23
Quoted
in [12] above.
24
NBRA
above n 3.
25
DMA
above n 3.
26
PIE
above n 3.
27
Para
7-8 of the order, quoted in [12] above.
28
Id
at para 8 of the order.
29
For
a critical discussion see Liebenberg “Engaging the paradoxes
of the universal and particular in human rights adjudication:
The
possibilities and pitfalls of ‘meaningful engagement’”
(2012) 12(1)
African Human Rights Law Journal
at 1.
30
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
at para 55 and
Albutt v Centre for the Study of Violence and
Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para 65.
31
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at paras 27-9.
32
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amici Curiae
)
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (8) BCLR 872
(CC) at
para 113.
33
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002
(8) BCLR 771
(CC) at para 21 and
The Citizen 1978 (Pty) Ltd and
Others v McBride (Johnstone and Others,
Amici Curiae
)
[2011] ZACC 11
;
2011 (4) SA 191
(CC);
2011 (8) BCLR 816
(CC) at para
141.
34
South
African Transport and Allied Workers Union and Another v Garvas and
Others
[2012] ZACC 13
at para 66.
35
Government
of the Republic of South Africa and Others v Grootboom
and
Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) (
Grootboom
);
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR
1268
(CC) (
PE Municipality
);
President of the Republic of
South Africa and Another v Modderklip
Boerdery (Pty) Ltd
and Others (Agri SA and Others,
Amici Curiae
)
[2005]
ZACC 5
;
2005 (5) SA 3
(CC);
2005 (8) BCLR 786
(CC);
Olivia Road
above n 5;
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);
Abahlali baseMjondolo Movement
SA and Another v Premier of the Province of KwaZulu-Natal and Others
[2009] ZACC 31
;
2010 (2) BCLR 99
(CC);
Pheko
above n 4;
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) (
Blue Moonlight 1
); and
Occupiers of Saratoga
Avenue v City of Johannesburg
Metropolitan Municipality and Another
[2012] ZACC 9
(
Blue
Moonlight 2
).
36
Section
26(1) and (2).
37
Section
26(3).
38
See,
for example,
Blue Moonlight 1
above n 35 at paras 34-41 and
Grootboom
above n 35 at para 23.
39
Above
n 35.
40
Id
at para 39.
41
Id
at para 41.
42
Id
at para 56.
43
Above
n 5.
44
Id
at paras 20-1.
45
See
also
Grootboom
above n 35 at paras 23, 44 and 83 and
Olivia
Road
above n 5 at para 16.
46
PE
Municipality
above n 35, quoted in [45] and [46] above.
47
Pheko
above n 4 at para 50
.
48
Blue
Moonlight 2
above n 35
.