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[2013] ZACC 1
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Motswagae and Others v Rustenburg Local Municipality and Another (CCT 42/12) [2013] ZACC 1; 2013 (3) BCLR 271 (CC); 2013 (2) SA 613 (CC) (7 February 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 42/12
[2013] ZACC 1
In the matter between:
PONTSHO DOREEN MOTSWAGAE
..................................................
First
Applicant
FOURTEEN OTHERS
..................................................
Second
to Fifteenth Applicants
and
RUSTENBURG LOCAL MUNICIPALITY
......................................
First
Respondent
PROMPTIQUE TR 9 CC
................................................................
Second
Respondent
together with
LAWYERS FOR HUMAN RIGHTS
......................................................
Amicus
Curiae
Heard on : 27 November 2012
Decided on : 7 February 2013
JUDGMENT
YACOOB J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J and
Zondo J
concurring):
Introduction
This case started as an application for an interdict in the North
West High Court, Mahikeng (High Court). The application was
brought
because the Rustenburg Local Municipality (municipality) authorised
construction work on property occupied by the first
applicant. This
involved excavation of land by the use of a bulldozer right next to
the outer wall of the first applicant’s
home, exposing the
foundations of the building. The question before us is whether the
municipality acted lawfully in authorising
this work on the property
without obtaining a court order for the eviction of the applicants.
Background
The
fifteen applicants occupy homes on certain land owned by the North
West Province. The buildings are dilapidated and a renewal
programme
in respect of those buildings has been in the process of being
devised and implemented since 2004. It is not disputed
that the plan
the municipality has for the development of housing on the land on
which the applicants live cannot be executed
unless all their homes
are first demolished. Various meetings were held between
representatives of the municipality and the representatives
of the
community residing on the land earmarked for redevelopment in order
to obtain the consent of the community. Ultimately
there was no
consensus in the sense that a few people disagreed with the
development. They also refused the municipality’s
offer of
alternative accommodation.
The
applicants ultimately secured the services of an attorney to
represent their interests and there followed correspondence between
the attorney and the municipality in which they stated their
opposing positions. After that correspondence and on 19 April
2009 a service provider
1
employed by the municipality to do the work in respect of the
development of the property brought a bulldozer onto the property
and excavated land immediately adjacent to an outer wall of the
house occupied by the first applicant. The first applicant and
other
applicants protested and asked the service provider to replace the
excavated soil. A photograph taken, after some refilling
had been
done by the service provider at the request of the applicants, shows
a deep excavation with what appears to be the foundation
of the
house exposed. This demonstrates that the excavation was much worse
before some refilling had occurred. Despite these
protests the
contractor returned to the home of the first applicant and began
excavation work again on 26 May 2009. This led
to the application
for the interdict in the High Court, aimed effectively at
prohibiting the respondents from unlawfully disturbing
or
interfering with the applicants’ peaceful possession of their
homes.
The
municipality counter-applied for an order restraining the applicants
from obstructing the contractor in the execution of its
duties
pursuant to its agreement with the municipality. The municipality
relied principally on its obligation to provide housing
in terms of
the Constitution,
2
the provisions of the national Housing Act,
3
as well as certain provisions of the National Housing Code.
4
In effect, the municipality’s case was that it was
constitutionally obliged to do what it did.
The
High Court held that the applicants had no clear right to interdict
the construction activities because their right to privacy
and to
remain in the structures in the meantime had not been affected; that
the applicants would not suffer irreparable harm
because their right
to privacy and to remain in their homes would be preserved; and
that, in any event, the applicants ought
to have objected to the
decision to redevelop the land occupied by them when that decision
had been taken by the municipality.
The High Court therefore refused
the interdict. The High Court did however grant the
counter-application. The order reads:
“
[i]
The main application is dismissed with costs.
[ii] An order is granted in
terms of paragraphs 2, 3 and 4 of the counter-application.”
After
both the High Court and the Supreme Court of Appeal refused the
applicants leave to appeal, they applied to this Court for
leave to
appeal. In addition to challenging the correctness of the decision
of the High Court, the applicants advanced a novel
argument. They
contended that their homes were referred to as hostels precisely
because they, as single women, did not qualify
to own any houses
under the apartheid Black housing regime; that had they been men,
they would probably have owned the houses.
They said that they
should be regarded as owners. Lawyers for Human Rights, who were
admitted as amicus curiae, supported the
applicants’ position,
contending that the applicants’ insecure tenure should have
been upgraded. The applicants also
contended that the respondents
had failed to comply with certain provisions of the National Housing
Code in the process of the
redevelopment. It is unnecessary to go
into these arguments in the light of the way in which the issues
subsequently developed.
After
the parties had filed argument, the Chief Justice issued directions
5
requiring argument on the following issues:
“
[W]hether:
(a) section
26(3) of the Constitution or any other law confers on the applicants
any right not to be disturbed in the peaceful occupation
and
possession of their home without a court order;
(b) the
premises they occupy can properly be regarded as their homes within
the meaning of section 26(3) of the Constitution;
(c) the
conduct authorised and caused by the first respondent has resulted
and is likely to result in unlawful interference with
the right of
the applicants who occupy or possess their homes peacefully; and
(d) the
conduct authorised and caused by the first respondent can be regarded
as reasonable absent any order of court ejecting the
applicants from
the property concerned.”
Predictably,
the applicants answered the first three questions in the affirmative
and contended that the conduct of the municipality
in authorising
the construction cannot be regarded as constitutionally compliant
absent a court order. The municipality on the
other hand, while it
accepts without qualification that the accommodation in which the
applicants reside is their homes, denies
that it acted improperly in
any way. It emphasises that it is performing its duties in terms of
sections 26(1) and (2) of the
Constitution and denies that section
26(3) has anything to do with disturbance of peaceful occupation.
The
application for leave to appeal is now considered against this
background.
Leave
to appeal
Leave
to appeal must be granted if the application raises a constitutional
matter and it is in the interests of justice to do
so. This case
raises the constitutional question whether section 26(3) protects
the undisturbed occupation of everyone’s
homes absent a court
order. It also raises the issue whether the municipality has acted
constitutionally, lawfully and reasonably.
Moreover, these are
important constitutional matters and, as this judgment shows, the
applicants have prospects of success. Leave
to appeal must therefore
be granted.
Merits
Section
26 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.”
The
first question to be answered is whether section 26(3) of the
Constitution is sufficiently wide to ensure protection of the
applicants in their occupation of their homes. In my view, it does.
Its provisions would be pointless and afford no protection
at all if
municipalities and other owners were permitted to disturb occupiers
in their peaceful occupation of their homes without
a court order.
Section 26(3), by necessary implication, guarantees to any occupier
peaceful and undisturbed occupation of their
homes unless a court
order authorises interference. The idea that owners are able to do
so without offending the provisions of
section 26(3) need simply be
stated to be rejected. The underlying point is that an eviction does
not have to consist solely
in the expulsion of someone from their
home. It can also consist in the attenuation or obliteration of the
incidents of occupation.
6
We can now concern ourselves with the question whether the
municipality has acted lawfully in all the circumstances.
The
work authorised by the municipality did, in my view, interfere with
the applicants’ peaceful and undisturbed occupation
of their
homes. And what is more, the interference is by no means slight. I
have already said that the applicants attach photos
to their papers
showing the extent of the works. The intrusion was plainly so
significant a disturbance to the applicants’
occupation that
it constituted a form of eviction. It is serious and, in our
constitutional era, unacceptable.
The
municipality’s defence is that it has a servitudinal right to
enter property to perform work related to the provision
of public
services. The argument that a municipality can lawfully enter upon
property on which a home is situated to carry out
its duty, absent
urgency or other exceptional circumstances, in the face of the
objection of the home occupier without a court
order is just wrong.
For one thing, the common law requires that a servitude be exercised
civiliter modo
, that is respectfully and with due caution.
7
Patently this would not include non-consensual bulldozing. Indeed,
it would be no more than the sanctioning of self-help and the
encouragement of the municipality to take the law into its own
hands.
Our society is based on the rule of law and the rule of law
does not authorise self-help.
8
There is little difference between a municipality forcibly entering
upon a property to do its work and a person forcibly extracting
a
debt from another. Indeed, the municipality as an organ of state has
the duty to protect its citizens in their homes rather
than to
invade their homes.
9
And
the municipality knew that it was interfering with the rights of
people to occupy their homes peacefully. This is demonstrated
conclusively by the fact that the municipality has consistently (and
even in the High Court) offered those people affected by
the
development, including the applicants, alternative accommodation.
The municipality would not have offered alternative accommodation
unless it had concluded that the offer was reasonably necessary in
the circumstances. And the offer would be reasonable if, and
only
if, the particular development would have affected the applicants’
peaceful and undisturbed occupation of their homes.
It is
probable, as a matter of inference from the offer of alternative
accommodation together with the deliberate interference
with
peaceful occupation of their homes, that the municipality sought to
achieve the eviction of the applicants through the back
door. This
is not permissible.
It is
trite that the municipality must act reasonably at every stage in
the process of providing housing to people within its
jurisdiction.
Unconstitutional conduct cannot, by definition, qualify as
reasonable conduct.
The
course of action the municipality ought to have adopted was to
secure the eviction of the applicants from their homes before
carrying on with intrusive and objectionable construction work on
the properties on which their homes were situated. The interdict
should therefore have been granted. The applicants had a clear right
not to be disturbed in the peaceful occupation of their
homes; they
were suffering irreparable harm; and no alternative remedy was
available to them.
Costs
There is no reason why the municipality ought not to pay the costs
of the applicants in the High Court, in the Supreme Court
of Appeal
and in this Court.
Order
The
following order is made:
Leave
to appeal is granted.
The
appeal is upheld.
The
order of the North West High Court, Mahikeng issued under case
number 1413/2009 is set aside.
The
first and second respondents, and all persons acting under their
authority, are interdicted and restrained from performing
or causing
to be performed any construction work on the properties on which the
applicants’ homes are situated, without
the applicants’
written consent or a court order.
The
Rustenburg Local Municipality must pay the applicants’ costs
in the North West High Court, Mahikeng, the Supreme Court
of Appeal
and in this Court, including the costs of two counsel, where
employed.
For
the Applicants: Advocate N J van Niewenhuizen SC and Advocate M
O’Sullivan instructed by the Legal Resources Centre.
For
the First Respondent: Advocate L Putter and Advocate
N Rajab-Budlender instructed by Van Velden-Duffey Attorneys.
For
the Amicus Curiae: Advocate C R Jansen and Advocate G Snyman
instructed by Lawyers for Human Rights.
1
Promptique
TR 9 CC, the second respondent who did not participate in the
proceedings.
2
Section
26 of the Constitution in relevant part 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
107
of 1997.
4
Available
at:
http://www.dhs.gov.za/Content/The%20Housing%20Code%202009/index.htm,
accessed on 5 February 2013.
5
5
November 2012.
6
Article
17.1 of the International Covenant on Civil and Political Rights
(ICCPR) provides that “[n]o one shall be subjected
to
arbitrary or unlawful interference with his . . . home”. The
ICCPR was adopted on 19 December 1966 and it
entered into
force on 23 March 1976. South Africa signed the ICCPR on
3 October 1994 and ratified it on 10 December
1998.
Article 11.1 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) recognises the right of everyone
“to
an adequate standard of living for himself and his family, including
adequate food, clothing and housing”. The
ICESCR was adopted
on 16 December 1966 and it entered into force on 3 January
1976. South Africa signed the ICESCR
on 3 October 1994 but
has not yet ratified it.
The
United Nations Committee on Economic, Social and Cultural Rights
(CESCR) in General Comment 7 on forced evictions, with reference
to
Article 11.1 of the ICESCR and Article 17.1 of the ICCPR, states
that the right to housing includes the “right to be
protected
against ‘arbitrary or unlawful interference’ with one’s
home” (Committee on Economic, Social
and Cultural Rights,
“General Comment 7: The Right to Adequate Housing (Art.11.1):
Forced Evictions” Sixteenth Session,
20 May 1997, E/1998/22
at
para 8). Further, the CESCR in General Comment 4 on the right to
adequate housing states that the right to housing should be
seen as
the “right to live somewhere in security, peace and dignity”
(
Committee on Economic, Social and Cultural Rights, “General
Comment 4: The Right to Adequate Housing (Art.11.1 of the Covenant)”
Sixth Session, 13 December 1991, E/1992/23
at
para 7). See also
City of Tshwane
Metropolitan Municipality v Mamelodi Hostel Residents Association
and Others
[2011] ZASCA 227
available
at
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2011/227.html&query=mamelodi
hostel, accessed on
31 January 2013 and
Kenny v Preen
[1962] EWCA Civ 2
;
[1962] 3 All ER 814.
7
Badenhorst
v Joubert
1920 TPD 100
at 106 and
LAWSA
(2012) vol 24 at
para 544.
8
See
for example
Chief Lesapo v North West Agricultural Bank and
Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR
1420
(CC) at paras 17-8.
9
Id.