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[2014] ZACC 17
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Zulu and Others v eThekwini Municipality and Others (CCT 108/13) [2014] ZACC 17; 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC) (6 June 2014)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 108/13
In
the matter between:
JABULANI
ZULU AND 389
OTHERS
...........................................................................
Appellants
and
ETHEKWINI
MUNICIPALITY
............................................................................
First
Respondent
MINISTER
OF
POLICE
...................................................................................
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HUMAN SETTLEMENTS AND
PUBLIC
WORKS,
KWAZULU-NATAL
............................................................
Third
Respondent
and
ABAHLALI
BASEMJONDOLO MOVEMENT
SOUTH
AFRICA
........................................................................................................
A
micus
Curiae
Neutral
citation:
Zulu and Others v
eThekwini Municipality and Others
[2014]
ZACC 17
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ,
Van der Westhuizen
J and Zondo J
Heard
on
: 12 February 2014
Decided
on
: 6 June 2014
Summary:
Demolition of shacks — invasion
of government land — locus standi — leave to intervene in
proceedings where no
interim demolition and eviction order granted —
allegations of the party whose locus standi is challenged to be taken
as
true for determination of locus standi — appellants have
locus standi to intervene in proceedings brought by MEC for
demolition
of their structures — demolition of someone’s
structure — act of eviction itself — constitutionality of
interim eviction order granted without compliance with Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998
— not necessary for Court to decide constitutionality of such
interim order when not on appeal and when there
is another interim
order protecting the appellants’ rights in the interim
ORDER
On
appeal from the KwaZulu-Natal High Court, Durban (Kruger J):
1.
The appeal is upheld.
2.
The First and Third respondents must pay the
appellants’ costs jointly and severally.
3.
The order by Kruger J refusing the appellants
leave to intervene in the proceedings under case number 3329/2013 is
set aside and
replaced with the following:
“
(a)
The applicants are granted leave to intervene in these proceedings as
the third and further respondents.
(b) Costs shall be
costs in the cause.”
JUDGMENT
ZONDO
J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Jafta J,
Khampepe J, Madlanga J and Majiedt AJ concurring):
Introduction
[1]
The appellants brought an application for leave to
appeal against an order made by Kruger J in the KwaZulu-Natal High
Court, Durban
(High Court) refusing them leave to intervene in
certain proceedings that had been initiated by the Member of the
Executive Council
for Human Settlements and Public Works,
KwaZulu-Natal (MEC). We granted the appellants leave to appeal
and set the appeal
down for hearing.
The
parties
[2]
The appellants are various persons who say they
live on a property which they call Madlala Village in Durban.
The official
description of that property is Erf 1112, Mobeni,
Durban. The property appears to be near a township called
Lamontville
Township. In their affidavits the first and third
respondents refer to the property as the Lamontville property.
I
propose to do the same in this judgment.
[3]
The first respondent is the eThekwini Municipality
(Municipality). It is the implementing agent and developer of a
low-cost
housing project called the Lamontville Ministerial Housing
Project which relates to the Lamontville property. The
Lamontville
property falls within the area of the Municipality.
The second respondent is the Minister of Police. He has been
cited
in these proceedings because he was a party in the High Court
proceedings in which an order was granted that gave rise to these
proceedings. The third respondent is the MEC. In her
official capacity the MEC is cited as the owner of a number of
immovable properties located in KwaZulu Natal (properties). The
Lamontville property is one of those properties.
Background
[4]
The appellants say that some of them have lived on
the Lamontville property since September 2012 whereas others moved
onto the property
later. Prior to that, they lived at
Lamontville Township where they rented backrooms from property
owners. They state
that at some point, when they still lived at
Lamontville Township, they were promised RDP houses by a certain Mr
Gumede who was
either a councillor or an official of the Municipality
but that promise was not honoured.
[5]
The appellants say that, after some time, the
rental charged by the property owners at Lamontville Township became
unaffordable
and they moved onto the Lamontville property from about
September 2012. They built their informal homes on the
property.
The appellants’ version is that the
Municipality’s Land Invasion Control Unit (Control Unit) came
to the Lamontville
property and demolished their homes soon after
they had built their structures in September 2012. The
Control Unit’s
function is to deal with land invasions
within the municipal area. It seems to owe its existence and to
derive its powers
from the Municipality’s housing policy.
[6]
The appellants rebuilt their homes after the
Control Unit had left. They further state that, thereafter, the
Control Unit
regularly visited the Lamontville property, evicted them
and demolished their homes but, on each occasion, they rebuilt their
homes.
They say that from September 2012 there have been 24
occasions on which they have been subjected to the demolition of
their
homes by the Control Unit. They point out that the
Municipality carried out the demolitions and evictions without any
court
order.
[7]
The Municipality’s and MEC’s version
is that in September 2012 they became aware that there was a group of
people poised
to invade the Lamontville property. The Control
Unit went onto the Lamontville property. The Municipality says
that,
upon arrival on the property, the Control Unit found that there
were people who were trying to invade the Lamontville property and
had put up some structures that were not complete. The
Municipality says that the people concerned were told that they had
no right to occupy the property or to build structures on the
property and that doing so was illegal. The Control Unit
demolished
a number of structures on the property. The
Municipality says that the structures it demolished were half
completed and were
not occupied. It states that, subsequent to
the demolitions, the Control Unit regularly patrolled the Lamontville
property
to make sure that the property was not invaded.
According to the Municipality the Control Unit achieved this goal.
The Municipality denies that the appellants have lived on the
Lamontville property since September 2012 and that they continue
to do so.
[8]
The Municipality points out that the Lamontville
property has been designated for low-cost housing for a group of
people who have
already been identified. It accuses the
appellants of seeking to invade the Lamontville property in order to
jump the queue
of those waiting to be allocated houses. The
appellants deny this accusation.
The
MEC’s application to the High Court
[9]
The MEC says that, after September 2012, she
learnt of other attempts or threats by other groups of people to
invade other properties
owned by her. To deal with the attempts
to invade the properties, the Municipality and the MEC had sometimes
needed the assistance
of the South African Police Service. As
time went on, the South African Police Service indicated that it
would not provide
assistance unless an order of court authorising
such assistance was obtained. In due course the MEC instituted
an application
in the High Court for various orders in respect of the
properties, including the Lamontville property.
[10]
The application that the MEC brought in the High
Court was launched under case no 3329/2013 on or about 28 March
2013. It
was against the Municipality and the Minister of
Police as the first and second respondents respectively. In the
founding
affidavit the deponent acknowledged that there were people
occupying the Lamontville property. She said that she only
disputed
those people’s right to occupy the Lamontville
property. She also acknowledged that the Legal Resources Centre
(LRC)
was representing those people in negotiations with the MEC’s
officials. She also said in the founding affidavit: “The
applicant (i.e. MEC) proposes, in due course, and should its
negotiations with the LRC fail, to launch proceedings for their
eviction.”
[11]
The MEC’s application under case no
3329/2013 came before Koen J on 28 March 2013. Koen J
issued a rule nisi with
an interim interdict. The relevant
terms of the order were as follows:
“
1.
That a rule nisi do hereby issue calling upon the respondents and any
and all other interested persons to show cause to this
Honourable
Court on the 11th day of April 2013 at 09h30 or so soon hereafter as
the matter may be heard why an order in the following
terms should
not be granted:
1.1 that the First
and Second respondents are hereby authorised to take all reasonable
and necessary steps:
1.1.1 to prevent any
persons from invading and/or occupying and/or undertaking the
construction of any structures and/or placing
any material upon the
immovable properties described in ‘NOM1-37’ to the notice
of motion.
1.1.2 to remove any
materials placed by any persons upon the aforementioned properties;
1.1.3 to dismantle
and/or demolish any structure or structures that may be constructed
upon the afore-mentioned properties subsequent
to the grant of this
order.
1.2 interdicting and
restraining any persons from invading and/or occupying and/or
undertaking the construction of any structures
and/or placing of any
material upon any of the aforementioned properties.
1.3 that any
respondent or respondents or any other party who opposes this
application be ordered to pay the costs occasioned thereby
jointly
and severally, in the event that more than one respondent does so.
2. That paragraphs
1.1 and 1.2 hereof shall operate as an interim order with immediate
effect pending the return date of the rule
nisi.”
The
immovable properties to which reference is made in the order included
the Lamontville property. For convenience I refer
to this order
as the interim order.
The
appellants’ application to interdict evictions and demolitions
[12]
On 25 April 2013 the appellants launched an
application in the High Court under case no 4431/2013 against the
present respondents.
They sought various orders including an
interdict restraining the respondents from demolishing their homes or
evicting them or
removing their belongings without an order of
court. In their affidavits the appellants set out how they came
to be on the
Lamontville property, how they had been subjected to
evictions and how the Municipality had demolished their homes on many
occasions
since September 2012 without any court order. They
also sought an order compelling the Municipality to rebuild their
homes
that it had demolished.
[13]
In due course the Municipality delivered its
answering affidavit to the appellants’ application under case
no 4431/2013. In
that affidavit the Municipality stated that it
had demolished structures on the Lamontville property both before and
after April
2013. Some of the structures that were demolished
were complete while others were incomplete.
Application
for leave to intervene in the MEC’s application in the High
Court
[14]
The appellants brought an application for leave to
intervene in the proceedings in which the interim order had been
made.
They did this ahead of the return day of the rule nisi.
The appellants complained that the MEC had not cited them in that
application even though the order sought affected them as it related
to the property on which they live. The appellants also
drew
attention to the fact that, although in the founding affidavit before
Koen J the MEC had acknowledged that there were people
occupying the
Lamontville property, the Court had granted the interim order without
insisting that those people be joined.
The appellants contended
that they had a direct and substantial interest in the proceedings
and, therefore, had locus standi (standing).
The Municipality
and MEC opposed the appellants’ application. They
contended that the appellants had no locus standi
in the proceedings
as the interim order did not affect them or their rights since it
only related to invasions or attempted invasions
that occurred or
would occur after the grant of that order.
[15]
The appellants’ application was heard by
Kruger J who dismissed it. No reasons are available for the
dismissal of the
application. The appellants applied to the
High Court for leave to appeal but that application, too, was
refused. They
petitioned the Supreme Court of Appeal for leave
to appeal but the petition was also dismissed.
The
appeal
[16]
The narrow question we are required to determine
is whether or not the High Court was correct in refusing the
appellants leave
to intervene. All three respondents oppose the
appeal. Whether the High Court was correct in refusing the
appellants
leave to intervene depends upon whether the appellants had
locus standi in the proceedings in which they sought leave to
intervene.
That in turn will be determined by whether the
appellants had a direct and substantial interest in those
proceedings. Whether
they had such an interest will depend upon
whether the order affected their rights or interests adversely or had
the potential
to affect their rights or interests.
[17]
Before us counsel for the Municipality and counsel
for the MEC contended that the appellants had no standing in the
proceedings
in which the interim order was granted. In support
of this contention they submitted that, on the appellants’
version,
the appellants had already been living on the Lamontville
property when the interim order was granted and that order did not
apply
to persons who were already in occupation of the Lamontville
property when it was granted. In this regard counsel contended
that the interim order was not intended to affect, or to apply to,
the appellants or to persons who claimed to have been in occupation
of the Lamontville property prior to its grant.
[18]
In its written submissions in this Court the
Municipality adopted the same stance. It referred to a
statement in the MEC’s
founding affidavit in the interim order
matter where she, too, had acknowledged that there were people
occupying the Lamontville
property but disputed their right to occupy
the property. The Municipality also quoted a statement from the
MEC’s founding
affidavit where she proposed to launch eviction
proceedings in due course against the people occupying the
Lamontville property
if the negotiations with the LRC failed.
It needs to be pointed out that the appellants were represented by
the LRC in negotiations
with the MEC’s department.
[19]
The
Municipality said in its written submissions:
[1]
“
It
was and is self-evident that
no
relief
was sought or granted against the appellants in the application.”
The
Municipality also said:
[2]
“
The
[Municipality] accordingly argues that the [interim order] was
directed at preventing the invasion of the Lamontville property
and
other properties
subsequent
to
the date of the grant thereof.”
In
paragraph 30.2 it stated:
“
The
Order did not justify the eviction of any persons (including the
Lamontville occupiers and the appellants) who were admittedly
in
occupation of the Lamontville property
prior
to
the date of the grant thereof.”
[20]
In
their answering affidavit filed in this Court, the second respondent
and the MEC contended that the interim order did not affect
the
appellants or their rights and that, for that reason, the appellants
had no direct and substantial interest in the interim
order
proceedings. The deponent said:
[3]
“
The
[appellants] have misconstrued the [interim] order. It does not
interfere with or affect the entrenched rights of the
[appellants]
who claim that they were in occupation of the Lamontville property
prior to the grant of the order. The [appellants]
are asserting
such rights in any event in the application under case no:
4431/2013.”
Then
followed this:
[4]
“
It
was clearly not the intention of the respondents or indeed of the
[MEC] to secure the eviction of the [appellants] or the persons
who
were already in occupation of any of the properties including the
Lamontville property through the order. . . .
The
[appellants] have misconstrued or are misstating the implications
arising from the grant of the order. As far as the [appellants]
are concerned their entrenched rights as occupiers of the Lamontville
property are totally unaffected by the grant of the order.
These rights will be addressed in the proceedings under case no:
4431/2013
alternatively
in any proceedings launched by the
[MEC] for their eviction from the Lamontville property.”
[21]
In
determining whether a person has standing in a matter, a court is
required to assume that the allegations made by that person
in the
case are true or correct.
[5]
Accordingly we must decide this appeal on the basis that the
averments by the appellants that they built shacks on the Lamontville
property and have lived there since around September 2012 are true.
That also means that we must accept, for purposes of
this appeal,
that the Control Unit has demolished the appellants’ shacks or
homes on 24 occasions after each of which the
appellants rebuilt
them.
[22]
The answering affidavit delivered by the
Municipality in response to the appellants’ urgent application
launched on 14 February
2014 supports the appellants’ case that
the appellants live on the Lamontville property. I say this
because in that
affidavit the Municipality acknowledges that both
before and after April 2013 the structures that it demolished
included many completed
structures. The fact that there were
completed structures on the property makes it likely that there were
people living in
those structures.
[23]
It is now necessary to determine whether the
appellants had standing in the interim order proceedings. To do
that, we must
consider whether that order could adversely affect the
appellants or their rights or interests.
[24]
Paragraph 1.1.1 of the interim order authorised
the Municipality and second respondent to take all reasonable steps
to prevent any
persons from, inter alia, “occupying” the
Lamontville property. There is nothing in that part of the
order to
suggest that the occupation of the property that was to be
prevented did not include continuing occupation that had commenced
prior
to the grant of the order. Indeed, the order seems wide
enough to include the prevention of the continuation of such
occupation.
That means that in terms of that part of the order
the appellants could be prevented from continuing to occupy the
Lamontville
property.
[25]
Preventing the appellants from continuing to
occupy the property would amount to their eviction because they would
be precluded
from either returning to their homes after a temporary
absence or because they would be kicked out of their homes to prevent
them
from continuing to occupy the property. This means that,
to this extent, that part of the interim order is an eviction order.
[26]
Paragraph 1.2 of the interim order interdicted any
person from “occupying . . . any structures . . . upon [the
Lamontville
property]”. This part is open to a reading
that it applies to continuing occupation of structures on the
property which
had commenced prior to the grant of the interim
order. Therefore, it could be used by the respondents to
restrain the appellants
from continuing to occupy structures that had
been built on the property prior to the grant of the interim order.
Furthermore,
to enforce this part of the order the Municipality and
the second respondent could get the South African Police Service to
physically
restrain the appellants from continuing to occupy their
shacks. This means that, when the appellants returned from
work,
they could be restrained physically by police officers from
having access to their homes. That also makes this paragraph an
eviction order.
[27]
Based on the above, there can be no doubt that the
interim order authorised the taking of steps which could have the
effect of evicting
from the Lamontville property persons who were
already living on the property or had completed building their homes
on the property
when that order was granted. Even on the
Municipality’s and the MEC’s version, when a person has
built his or
her shack on the property of another, that is an act of
occupation of the latter’s property and eviction protections
apply
if that person is to be prevented from occupying that shack.
[28]
The Municipality argued that the interim order did
not apply to people who were in occupation of the Lamontville
property before
the order was granted. Despite this argument,
the Municipality says that the appellants did not live on the
Lamontville property
before the interim order. On this
approach, the Municipality could well enforce the interim order
against the appellants
if they were found on the Lamontville property
on the basis that they must have started living there after the grant
of the interim
order.
[29]
Given
the above, I conclude that the appellants have a direct and
substantial interest in the interim order proceedings and in the
discharge of the rule nisi. That gives them standing to
intervene in those proceedings and challenge, as they wish to do,
the
grant of the order without their having been cited. This will
also enable them to make submissions on the correctness
or otherwise
of that order in the light of its effect, the provisions of the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act
[6]
(PIE) and this Court’s
jurisprudence.
[7]
The High
Court erred in dismissing their application for leave to intervene.
That being the case, the appeal must succeed.
[30]
Before I make the order I propose to say something
about events that took place on the Lamontville property the day
after the hearing
of this appeal. The hearing took place on 12
February 2014. It is common cause between the appellants and
the Municipality
that the day after the hearing, namely 13 February
2014, the Municipality demolished a number of structures on the
Lamontville
property.
[31]
The following day two of the appellants brought an
urgent application in the High Court to restrain the respondents
from, among
others, demolishing their shacks without an order of
court. It was heard by Jeffrey AJ. The Municipality
admitted that
it had demolished structures on that day and said that
the interim order authorised it to do so and this Court had not
suspended
the operation of that order. Its defence was not that
the shacks or structures it demolished on 13 February 2014 were not
those of the appellants. Jeffrey AJ granted a rule nisi with an
interim interdict restraining any further demolitions of
the
applicants’ shacks and their eviction without an order of
court. It was indicated that other appellants would be
joined
in those proceedings so that they could also benefit from that order.
[32]
The lawfulness or otherwise of the demolitions is
the subject of certain proceedings launched on 14 February 2014 that
are pending
in the High Court. For that reason I shall not say
anything about that issue. I shall confine my remarks to the
appropriateness
or otherwise of those demolitions in the light of the
stance taken by the Municipality and the MEC in these proceedings on
whether
the interim order affected the appellants.
[33]
Notwithstanding the respondents’ stance in
this Court on whether the interim order applied to the appellants, as
pointed out
already the Municipality relied on the interim order in
demolishing some of the appellants’ shacks on 13 February 2014.
The
Registrar of this Court issued a letter at the instance of
the Acting Chief Justice seeking clarification of these demolitions.
In response, the Municipality’s attorneys admitted that
on 13 February 2014 the Municipality had demolished a number
of
structures on the Lamontville property on the authority of the
interim order. They said that there was no discrepancy
between
carrying out those demolitions on the strength of that order and the
stance that the Municipality had taken before this
Court on the
applicability of the interim order to the appellants. The
Municipality persisted in the same stance in an affidavit
it
subsequently delivered dealing with those demolitions. That
affidavit was filed late and the Municipality has applied
for
condonation in this regard. It is not necessary to go into
details about the issue of condonation. I am satisfied
that it
is in the interests of justice to grant condonation.
[34]
An affidavit was furnished to the Court that was
deposed to on 11 March 2014 by Mr Clement Xulu, a Legal Advisor in
the Legal Services
Department of the Municipality. This is an
affidavit which was filed in the High Court by the Municipality in
the proceedings
before Jeffrey AJ. Those proceedings relate to
the urgent application that was launched by two of the appellants on
14 February
2014 to interdict the Municipality from carrying out
further demolitions on the Lamontville property.
[35]
In his affidavit Mr Xulu set out various
demolitions that the Municipality had carried out during the period
from 6 May 2013 to
13 February 2014. The Municipality says
that, in carrying out those demolitions, including the ones of
13 February 2014,
it was implementing the interim order.
In those incidents no less than 272 structures were demolished about
93 of which were
half-built and the rest fully built. Was there
a discrepancy between the stance taken by the Municipality at the
hearing
on the interim order and its conduct on 13 February 2014?
The Municipality’s case is not that the structures or shacks
that it demolished on 13 February 2014 had nothing to do with
the appellants nor that the structures did not belong to the
appellants. It impliedly accepted that the structures related
to or may have belonged to the appellants but relies upon the
interim
order for its authority to carry out those demolitions. In
other words, prior to the hearing and at the hearing before
us the
respondents said that the interim order did not apply to the
appellants but, after the hearing, the Municipality said that
the
order applied to the appellants and the demolitions were carried out
on the strength of it.
[36]
There is an inconsistency between the
Municipality’s stance on the interim order before this Court
prior to and on 12 February
2014 and its reliance upon that order in
carrying out the demolitions of 13 February 2014. The
Municipality has taken two
contradictory positions on the interim
order in this matter. Having taken the stance that the
Municipality took at the hearing,
it was totally unacceptable that
the day after the hearing it took a contrary position and carried out
the demolitions that it
did.
[37]
There was argument before us to the effect that in
these proceedings we should reach the interim order and set it
aside. I
would not extend this appeal to the correctness or
otherwise of that order because it is not on appeal before us.
Once we
have overturned the order refusing the appellants leave to
intervene and granted the appellants leave to intervene, the
appellants
will be able to anticipate the extended return day of the
rule nisi in the interim order proceedings and be able to seek its
discharge.
It also appears from the Municipality’s
affidavit dealing with the demolitions of 13 February 2014 that,
after the
order granted by Jeffrey AJ, the demolitions on the
Lamontville property have stopped. In my view this Court should
allow
the High Court proceedings to take their normal course.
There are already about three cases pending before the High Court
between the appellants and the respondents which are all connected
with the demolition of structures on the Lamontville property.
The parties must be given an opportunity to find a way of bringing
them to finality in one way or another.
[38]
In the result the following order is made:
1.
The appeal is upheld.
2.
The First and Third respondents must pay the
appellants’ costs jointly and severally.
3.
The order by Kruger J refusing the appellants
leave to intervene in the proceedings under case number 3329/2013 is
set aside and
replaced with the following:
“
(a)
The applicants are granted leave to intervene in these proceedings as
the third and further respondents.
(b) Costs shall be
costs in the cause.”
VAN
DER WESTHUIZEN J (Froneman J concurring):
Introduction
[39]
I
agree with the reasoning and conclusion of my Colleague, Zondo J, in
the main judgment that the Madlala Village residents (appellants)
should have been granted leave to intervene based on their direct and
substantial interest in the matter. I therefore agree
that the
appeal on this point must be upheld. I also support the finding
that the interim order issued by Koen J is effectively
an eviction
order;
[8]
and that the conduct
of the first respondent (Municipality) is totally unacceptable in
view of submissions made on its behalf to
this Court.
[9]
I am grateful to the main judgment for its thorough exposition of the
facts and procedural history.
[40]
Two issues need to be addressed further. The
first is the lawfulness and constitutionality of the interim order.
The
second is the conduct of the Municipality.
Interim
order
[41]
The main judgment’s finding that the interim
order is an eviction order should be carried to its logical
conclusion –
a finding that the order is unlawful. Why is
it desirable and perhaps necessary to reach this point? And are
we able
to reach it in the circumstances of this case? As I
hope to illustrate below, this Court
ought
to decide this issue and
can
reach the issue of constitutionality.
[42]
The
main judgment is correct that “there can be no doubt that the
interim order authorised the taking of steps which could
have the
effect of evicting from the Lamontville property persons who were
already living on the property or had completed building
their homes
on the property” when it was granted.
[10]
Indeed,
the finding that the appellants should have been granted leave to
intervene – on the basis that they have a direct
and
substantial interest in the matter – is premised on the fact
that the appellants were evicted on multiple occasions and
remain
vulnerable to eviction.
[43]
This aspect is crucial. In view of our
country’s history of colonialism and apartheid, dispossession
of land and gross
discrimination, as well as prevailing poverty and
inequality, issues around housing are central to our constitutional
democracy.
Section 25(1) of the Constitution states that no one
may be deprived of property, except in terms of a law of general
application,
and that no law may permit arbitrary deprivation.
Section 26(3) guarantees that, unless and until a court has issued an
order
after considering all the relevant circumstances, no one may be
evicted from her home or have her home demolished, and that no
legislation may permit arbitrary evictions.
[44]
Eviction
is governed by the provisions of PIE, which aim to ensure that the
most vulnerable among us are protected. Its rules
and
requirements are not optional.
[11]
The
interim order authorises evictions – and has been used as
authority for at least three evictions – without providing
the
unlawful occupiers a hearing and ensuring that they were protected to
the extent required by law. An order of this nature
deprives
unlawful occupiers of rights enshrined in the Constitution and
recalls a time when the destitute and landless were considered
unworthy of a hearing before they were unceremoniously removed from
the land where they had tried to make their homes.
[45]
At
the very least, an eviction order could not lawfully have been issued
without judicial determination that it was just and equitable
to do
so, considering all relevant circumstances and having allowed
affected persons, especially the most vulnerable, to present
evidence
of their circumstances in a hearing.
[12]
The order was issued without consideration of those persons whom it
would impact, in obvious contravention of PIE and in
direct violation
of underlying constitutional rights. I would find that the
interim order is unlawful and therefore unconstitutional
on the basis
that it negates the Madlala Village residents’ rights (as well
as those of unnamed others) under PIE and section
26(3) of the
Constitution.
[46]
Not for a moment do I doubt the seriousness of
illegal land invasions. But serious too is the illegal eviction
of vulnerable
individuals with nowhere else to live. This was
the motivation for the enactment of PIE and its protective measures
which
are intended to ensure due process and sufficient consideration
of housing needs prior to eviction. As state organs, the
respondents have failed in their constitutional obligations by
repeatedly evicting (or, as the case may be, sanctioning the eviction
of) the Madlala Village residents without an appropriate court order.
[47]
It is not only desirable, but necessary, to reach
the interim order because of the uncertainty concerning (a) future
litigation
in this case; (b) whether Jeffrey AJ’s order will
prevent further unlawful evictions arising from the interim order for
all
those potentially affected; and (c) the legality of orders of
this type. It is true, as the main judgment points out, that,
having been granted leave to intervene, the Madlala Village residents
will be able to argue that the rule nisi should be discharged.
This, however, does not necessarily mean that they will succeed, in
which case they will again have to make a circuit through the
courts. Even if they are successful, they may suffer –
and have already suffered – undue prejudice from the delay.
[48]
I also have difficulty understanding how the main
judgment can find that this order is an eviction order, which is
inevitably unlawful
insofar as it was issued in contravention –
or disregard – of the provisions of PIE, and yet allow
proceedings to continue
in the High Court to determine whether it
should be confirmed. On this basis, it ought to be clear that
the order cannot
or should not be confirmed, which in turn ought to
make the High Court proceedings an empty and futile formality.
[49]
The
order of Jeffrey AJ – issued on the application of two of the
Madlala Village residents after demolitions carried
out a day
after the hearing in this Court – does not necessarily mean
that the demolitions will cease. Jeffrey AJ’s
order
provided interim relief, but seems to apply only to the two Madlala
Village residents who launched the application.
It does not
apply explicitly to the other appellants, or to any other individuals
who may be living on any of the other properties
and who remain
vulnerable to sudden eviction on the basis of Koen J’s order.
Correspondence
received from attorneys should not be the basis for a finding on the
scope of the order.
[13]
[50]
Furthermore,
it is necessary that this Court establish legal certainty on orders
like the interim order. This order was not
an isolated or
unique incident – it seems that other courts have issued
similar orders, at least one of which has been found
to be
constitutionally problematic.
[14]
Many
people may well be affected by this Court’s determination that
it is unacceptable for court orders to sidestep the protections
in
PIE.
[51]
This
Court has found that even when a decision lacks practical value to
the parties before the Court, there are circumstances in
which it may
be in the interests of justice to determine a matter for broader
public benefit, to establish legal certainty, or
to achieve another
public purpose.
[15]
It
has also on occasion noted that “the litigants before the Court
should not be singled out for the grant of relief, but
relief should
be afforded to all people who are in the same situation as the
litigants”.
[16]
A
decision by this Court would benefit not only those in a similar
situation to the Madlala Village residents, but also the public
at
large.
[52]
All
of the above would be of little practical significance if we are
procedurally unable to reach the unlawfulness of the interim
order in
the circumstances of this case. So, can we reach it? This
case initially reached us framed as an appeal against
the order of
Kruger J. Prior to set-down and in response to directions from
the Chief Justice, however, the Madlala
Village residents asked
the Court to speak to the “fundamental question” of the
constitutionality of the interim order.
[17]
This response was served on all of the respondents, who dealt with
the issue. The appellants likewise dealt directly
with it in
their written submissions. During oral argument, counsel for
the Municipality summarised the appellants’
complaint as one
which challenges the order as unconstitutional and overbroad.
The submissions of the amicus curiae (friend
of the Court) focused
almost exclusively on the question of constitutionality. And
several questions and comments from the
bench dealt with the
issue.
[18]
I consider
the issue to be squarely before us, as it has effectively become the
subject of the appeal.
[53]
Although
the order is “interim” or “interlocutory”, it
may be appealed because it is indeed determinative
of rights and
obligations.
[19]
Provided a dispute relates to a constitutional matter, there is no
absolute rule preventing an appeal against an interim
order.
[20]
The qualifier is the interests of justice, since interim orders can
be reconsidered and altered by the court of first instance.
[21]
It is therefore possible for this Court to hear an appeal against an
interim order if, first, it relates to a constitutional
matter and,
second, it is in the interests of justice that it be heard.
[54]
A number of factors assist in the determination of
the interests of justice, including—
(a)
the
nature and importance of the constitutional issue raised;
[22]
(b)
whether
irreparable harm would result if leave to appeal were not
granted;
[23]
(c)
whether
the interim order is final in its effect;
[24]
and
(d)
whether
allowing the appeal would thwart the judicial role of the review
court.
[25]
[55]
These
factors must be considered in light of the particular facts and
circumstances of the matter at hand.
[26]
The interim order deals squarely with an important constitutional
matter. It directly affects the Madlala Village residents’
right under section 26 of the Constitution not to be arbitrarily
evicted from their homes, because it sidesteps the provisions
of PIE.
[56]
This
Court held in
Machele
that
the primary concern is whether irreparable harm would result if leave
to appeal were not granted in matters such as this, where
the
injustice falls on the party seeking to appeal the order.
[27]
Irreparable harm must be balanced by any potential harm to the
respondents if the interim order is overturned on appeal.
[28]
[57]
It is not difficult to see how the interim order
issued by Koen J and extended by Kruger J causes irreparable
harm. It
has deprived people of their homes. The
Madlala Village residents provided evidence that the
Municipality or others
acting on its behalf had destroyed their homes
at least three times since the issuance of Koen J’s interim
order. Each
time, their shelters have been dismantled, their
tools seized, and the materials with which they had built their
informal structures
either taken or destroyed. All of this
happened without apparent regard to the provisions of PIE or to
whether these persons
were occupying the land before the order was
issued.
[58]
In
Machele
this
Court suspended the execution order
[29]
even though the applicants were not the “poorest of the
poor”.
[30]
In this
case, the interim order may very well be used as an eviction order by
the Municipality, since it was so used the
day after oral argument in
this Court. The Madlala Village residents live in abject
poverty and the order effectively strips
them of protection for the
very little they have, including their homes. They have been
chased from place to place and evicted
each time they arrive and
establish a new home. The order permits such treatment to
continue in perpetuity, presumably across
1 568 properties owned
by the MEC. The harm is irreparable.
[59]
The Municipality argued that the harm to the
Madlala Village residents does not outweigh the burden that
overturning the order would
place on the Municipality’s housing
schedule, contending that this would allow “orchestrated land
invasions”
to continue. This argument is untenable.
Any illegal land-grab that may occur can probably be prevented by the
ordinary
exercise of police powers and the availability of court
interdicts. The Municipality has provided no evidence that the
eviction
of current occupants on the authority of an unlawful order
is justified by the purpose of preventing future orchestrated land
invasions.
Any potential hardship to the Municipality is
outweighed by the harm caused to the Madlala Village residents, if
the interim order
were left intact.
[60]
The
order is also final in its effect. This test is not, however,
set in stone. Rather, as indicated in
Mkhize
,
[31]
insofar
as a decision has “a definite bearing on” rights and
obligations, it may be subject to appeal. It is clear
in this
case that the order has a definite bearing on the Madlala Village
residents’ rights because they have already been
infringed.
The terms of the order allow the Municipality to evict the Madlala
Village residents and destroy their belongings
at any time, in spite
of the fact that they have lived on the property since September
2012.
[32]
Few
things are more final than being dispossessed of one’s home,
particularly when that home is destroyed.
[61]
By
invalidating this order, this Court will simply affirm the legal
position that the Municipality has to abide by the applicable
provisions of PIE when carrying out evictions.
[33]
Furthermore, there is no other court to which the Madlala Village
residents can turn for relief.
[34]
Jeffrey AJ’s order did not diminish the need for this Court to
speak to the constitutionality of the interim order.
On the
contrary, if this Court were to declare this order constitutionally
invalid, it may save the appellants, other affected
persons, and
people subject to similar orders, substantial prejudice that would
result if they were made to wait for the High Court
to determine
whether the interim order should be finalised.
[35]
[62]
It
follows from the above that this Court is not barred from pronouncing
on the validity of the interim order. The Constitution
gives
this Court the power to make “any order that is just and
equitable”.
[36]
This power is aimed at achieving justice and equity, rather than at
trapping litigants in the unfairness that strict adherence
to
technical procedures may produce. In
Hoërskool
Ermelo
the
Court found that
“
[t]his
ample and flexible remedial jurisdiction . . . permits [this Court] .
. . [to identify] the actual underlying dispute between
the
parties”
[37]
and to
craft an order resolving the dispute. This case illustrates
some of the reasons for the inclusion of this clause in
the
Constitution: where there are blatant infringements of fundamental
rights relating to basic human needs (such as shelter),
this flexible
remedial power allows this Court to “scratch the surface to get
to the real substance below”.
[38]
[63]
Simply
upholding the appeal – as the main judgment does – and
leaving the High Court to decide the fate of a patently
unlawful
interim order, would hardly be just and equitable as far as the
appellants, others in their position and the legal order
are
concerned. In the circumstances of this case, we know that the
Koen J order is unconstitutional. Therefore, the
appellants
will either be once again denied justice in the High Court and
eventually return to this Court, or they will succeed
in discharging
the rule nisi but will have no definitive statement regarding the
constitutionality of this type of order.
It is just to give
them – and others in their position
[39]
– the benefit of a clear statement of constitutionality now.
The law is and should be for the protection of people
and their
rights, not for courts to indulge in futile, circular processes.
[64]
I would thus find the interim order to be in
contravention of PIE and consequently unlawful and constitutionally
invalid.
Conduct
of the state parties
[65]
I agree with the main judgment on the conduct of
the state parties. More should be said, however, especially
about the Municipality.
In my view, the very integrity of the
judicial process in our young democracy – and of our country’s
apex Court –
is at stake.
[66]
This
Court has come to expect much from state parties as litigants.
We rely on them and their legal representatives.
We have to be
able to do so. It is of utmost importance that state entities –
which represent the people under their
jurisdiction and bear
significant duties under PIE and the Constitution – show
respect for the courts. Argument presented
to this Court on
behalf of the Municipality appeared continuously to blur the
distinction between concepts like “demolition”
and
“eviction”
[40]
and
drew in the spectre of “land invasions”. We were
assured that the interim order was not an eviction order
and was not
regarded as one by the Municipality. We were also told that
evictions had never taken place – nor would
they ever take
place – on the basis of that order.
[67]
Upon examining the relevant papers, I am inclined
to believe that the Municipality was indeed responsible for evictions
of the Madlala
Village residents prior to its appearance before this
Court. More importantly, further evictions happened the very
day after
the hearing. The Municipality’s attorneys of
record stated in a letter dated 14 February 2014 that “removal
of
materials and demolition of structures” occurred. How
this could not amount to eviction is not clear at all.
[68]
This Court directed the parties on 26 February
2014 to make submissions or provide information on affidavit
clarifying whether there
was a discrepancy between the Municipality’s
submissions made during the hearing and its attorneys’ letter
of 14 February
2014. In particular, given the alleged
unlawful evictions, the Court requested further clarity on the
interpretation and
application of the interim order by the
Municipality to date.
[69]
In the Municipality’s submissions in
response to the directions, it doggedly persists with the points it
pursued throughout
the proceedings. It denies the existence of
any discrepancy between the submissions made during hearing and the
attorneys’
letter of 14 February 2014 and disputes that it
engaged in any unauthorised evictions. The submissions on the
interpretation
of the order put forward by the Municipality, the
conduct of the Municipality in demolishing structures, and the
explanations offered
in this Court remain troublingly inconsistent.
[70]
Proper
and reliable instruction from clients is indispensable for counsel to
fulfil their ethical and legal duty to the Court.
[41]
All this rings with even greater resonance when an organ of state is
one of the litigating parties.
The
Constitution imposes a positive duty on organs of state to assist
courts and to ensure their effectiveness.
Section 165(4)
of the Constitution provides:
“
Organs
of state, through legislative and other measures, must assist and
protect the courts to
ensure
the independence, impartiality, dignity, accessibility and
effectiveness of the courts.”
[71]
This
duty echoes obligations of organs of state under section 7(2) of the
Constitution to respect, protect, promote, and fulfil
the rights in
the Bill of Rights, including “the right to have any dispute
that can be resolved
by
the application of law decided in a fair public hearing”.
[42]
Failing
to fulfil these obligations falls short of the constitutional
mandate. Further, government officials have a duty not
only to
discharge their functions, but also to account for when they have
not.
A
court should be able to rely on the submissions of organs of state.
Otherwise
our very constitutional order would be undermined.
MOSENEKE
ACJ (Skweyiya ADCJ, Cameron J, Dambuza AJ, Khampepe J, Madlanga J and
Majiedt AJ concurring):
[72]
I
have read the main judgment by my Colleague Zondo J and the
concurring judgment by my Colleague Van der Westhuizen J. I
agree with the identical outcome they reach and the reasons Zondo J
advances. I also agree with the reasoning of the concurring
judgment on the inappropriateness of the conduct of the
Municipality. But I respectfully disagree with its stance that
this
Court must determine the constitutional validity of the interim
order of Koen J
[43]
(first
interim order).
[73]
The concurring judgment holds that the first
interim order is inconsistent with the Constitution and PIE and thus
invalid.
The concurring judgment may or may not be correct in
taking this stance. That, however, is not the point. In
my respectful
view it is unnecessary for it to reach and decide the
constitutional validity of the first interim order.
[74]
This is so for several reasons. The
important ones are that, first, the appeal before this Court against
the granting of the
first interim order was directed against only the
ruling of the High Court that the appellants had no standing to
intervene in
those proceedings. Second, the appeal was never
aimed at declaring the interim relief inconsistent with the
Constitution
and other law. The parties did not ask this Court
to declare the first interim order inconsistent with the Constitution
and
PIE, there is no valid reason why it should do so on its own
either.
[75]
Third,
when the interests of justice so dictate, this Court may hear an
appeal against a temporary interdict.
[44]
Even so, here the first interim order is not appealable. It
does not threaten pending, ongoing and irreparable harm.
Nor
does the balance of convenience favour this Court assuming an
appellate power over the first interim order beyond the dispute
over
the standing of the appellants in the High Court. The pending
and irreparable harm has been arrested by an intervening
temporary
restraining order. After the appeal hearing in this Court, but
before our judgment, two of the appellants sought
urgent temporary
relief from the High Court (second interim interdict). That
Court forestalled the possible irreparable harm
to the two applicants
by granting them an interim interdict against their eviction pending
a return date.
[45]
In
response to an enquiry by this Court, the legal representatives of
the applicants made it plain that they were instructed
to supplement
the papers in order to include all of the appellants in this Court in
the High Court proceedings. The second
interim order granted by
the High Court to the two cited applicants would thus be extended,
beyond the two applicants, to all other
appellants.
[46]
[76]
Absent some special consideration, it is not in
the interests of justice for this Court to traverse the same field or
anticipate
the decision of the High Court on the return date.
What is more, declaring the first interim order inconsistent with the
Constitution and PIE in this appeal does not bring the appellants
relief they do not already have.
For
the Appellants:
Advocate
L Broster SC, Advocate S Linscott and Advocate I Veerasamy
instructed by the Legal Resources Centre.
For
the First Respondent:
Advocate
T Norman SC and Advocate N Bhagwandeen instructed by Gcolotela Peter
Inc.
For
the Second and Third Respondents:
Advocate
V Gajoo SC and Advocate F Abraham instructed by the State
Attorney.
For
the Amicus Curiae:
Advocate
S Wilson instructed by SERI SA Law Clinic.
[1]
In
para 28.
[2]
In
para 30.1.
[3]
In
para 54.
[4]
In
paras 64 and 77.
[5]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
[2012]
ZACC 28
;
2013 (3) BCLR 251
(CC) at para 32.
[6]
19
of 1998.
[7]
See,
for example,
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC).
[8]
Main
judgment at [25]-[27].
[9]
Id
at [36].
[10]
Id
at [27].
[11]
See,
for example,
Ndlovu
v Ngcobo, Bekker and Another v Jika
[2002]
ZASCA 87
;
2003 (1) SA 113
(SCA) at para 3:
“
PIE
has its roots, inter alia, in section 26(3) of the Bill of Rights,
which provides that ‘no one may be evicted from their
home
without an order of court made after consideration of all the
relevant circumstances’. . . . It invests in the
courts
the right and duty to make the order, which, in the circumstances of
the case, would be just and equitable and it prescribes
some
circumstances that have to be taken into account in determining the
terms of the eviction.”
[12]
See
section 4(6) and (7) of PIE.
[13]
As
noted in [75] of Moseneke ACJ’s judgment, this Court received
a letter from the Madlala Village residents’ attorneys
noting
that they held “instructions to supplement the papers in [the
urgent matter] to include further applicants.”
To date
we have not received any updates on the matter and the interim order
– as far as we know – applies only to
two of the
appellants. This Court should be slow to limit its
responsibilities on the basis of correspondence from attorneys
providing assurance that others in a vulnerable position will be
adequately protected.
[14]
In
Fischer
and Another v Persons Unknown
[2014]
ZAWCHC 32
;
2014 (3) SA 291
(WCC) Gamble J dealt with an order
identical in substance to the interim order in this case. His
judgment found that the
City of Cape Town’s conduct in
terms of the order was unconstitutional and he implied that the
order itself was invalid.
In
Fischer
and Another v Ramahlele and Others
[2014]
ZASCA 88
the Supreme Court of Appeal remitted the case to the High
Court for the hearing of oral evidence without deciding the issue of
the constitutionality of the City of Cape Town’s conduct.
The
Fischer
decisions
further indicate the existence of other persons in the same position
as the litigants before this Court, and the resultant
need for this
Court to state unequivocally that land invasion-control orders
like the one issued by Koen J, to the
extent that they
authorise evictions and carte blanche demolition of structures, are
unconstitutional. More problematic
is that the order requested
by the MEC is a form order – in other words, it has been
requested and issued in an almost
identical form in multiple cases.
There are at least two cases decided in 1996 and 1997 from which the
form order requested
by the MEC appears to have originated. In
1997, the Prevention of Illegal Squatting Act 51 of 1951 (PISA) was
still in
force. In
Ndlovu
above
n 11 at para 12, the Supreme Court of Appeal made explicit that PIE
“not only repealed PISA but in a sense also inverted
it”
by decriminalising squatting and making eviction subject to a number
of onerous requirements.
[15]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
[2009]
ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC) at para 40,
where it was indicated that even where an issue does not have
immediate impact on the parties’ positions,
a court may deal
with an issue if “its immediate resolution will be in the
public interest”, and
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa and Another
[2004]
ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 22.
[16]
S
v Bhulwana; S v Gwadiso
[1995]
ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
[17]
While
in their formal pleadings the appellants did not address the
constitutionality of the interim order directly, in their response
to the Chief Justice’s directions dated 1 October 2013, they
did prior to set down ask this Court to speak to this
issue.
The appellants’ first response to these directions was this:
“
The
fundamental question in the application under CCT: 108/13 is the
constitutionality of the order issued by Koen J which authorises
the
Municipality and the Minister of Police to evict people without
affording them the protection of PIE.”
[18]
For
example, during hearing, counsel for the Municipality stated that if
the appellants wanted to complain about the interim order,
they
needed to return and seek a declarator. In response, Moseneke
ACJ noted: “But the order is before us. And
all the
papers complain about this order.” The “sudden
death” of the interim order was repeatedly raised
as a
possible remedy, and both the Madlala Village residents and the
amicus curiae agreed it was the best option.
[19]
See
South
African Informal Traders Forum and Others v City of Johannesburg and
Others; South African National Traders Retail Association
v City of
Johannesburg and Others
[2014]
ZACC 8
(
SAITF
);
Machele
and Others v Mailula and Others
[2009]
ZACC 7
;
2010 (2) SA 257
(CC);
2009 (8) BCLR 767
(CC) (
Machele
);
and
Khumalo
and Others v Holomisa
[2002]
ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) (
Khumalo
)
at paras 6 and 8. See also
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
)
at para 50; and
Minister
of Health and Others v Treatment Action Campaign and Others (No 1)
[2002]
ZACC 16
;
2002
(5) SA 703
(CC);
2002 (10) BCLR 1033
(CC) (
Treatment
Action Campaign
)
at para 12.
[20]
SAITF
id
at para 17.
[21]
See
ITAC
above
n 19 at para 50 for a discussion of the policy considerations
underlying a court’s hesitancy to hear appeals of interim
orders.
[22]
Id
at para 55.
[23]
Id
and
Machele
above
n 19 at para 24.
[24]
Khumalo
above
n 19 at para 8.
[25]
SAITF
above
n 19 at para 22 and the other cases cited in n 19 above.
[26]
ITAC
above
n 19 at para 41. See also
SAITF
above
n 19 at para 20 and the other cases referred to in n 19 above.
[27]
Machele
above
n 19 at paras 22-3. Although
Machele
dealt
with an order of execution, which is different to an interim order,
the same analysis applies. No one factor is necessarily
determinative of the entire enquiry; the relative weight of each
factor will vary according to the particular facts of each case.
However, in
Treatment Action
Campaign
above
n 19 at para 12, this Court held that if irreparable harm cannot be
shown, the request to appeal an interim order will generally
fail.
[28]
Machele
above
n 19 at paras 28-32.
[29]
The
current case is distinguishable in this regard because in
Machele
the
merits of the order were squarely before the Supreme Court of Appeal
and leave to appeal was already granted on the validity
of that
order.
[30]
Machele
above
n 19 at para 28.
[31]
Absa
Bank Ltd v Mkhize and Another; Absa Bank Ltd v Chetty; Absa Bank Ltd
v Mlipha
[2013]
ZASCA 139
;
[2014] 1 All SA 1
(SCA) at para 17, citing
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[1996]
ZASCA 2
;
1996 (3) SA 1
(AD) at paras 13-4.
[32]
Note
that other individuals not before this Court who may live on any of
the many properties subject to Koen J’s order
may also be
evicted without requisite due process.
[33]
See
[44]-[46] above.
[34]
See
[49] above.
[35]
See
SAITF
above
n 19 at para 22 and
United
Democratic Movement v President of the Republic of South Africa and
Others (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as Amici Curiae)
(No 1)
[2002]
ZACC 33
;
2003 (1) SA 488
(CC);
2002 (11) BCLR 1179
(CC) at para 12.
[36]
Section
172(1)(b).
[37]
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[2009]
ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) (
Hoërskool
Ermelo
)
at para 97.
[38]
Head
of Department, Department of Education, Free State Province v Welkom
High School and Others
[2013]
ZACC 25
;
2014 (2) SA 228
(CC);
2013 (9) BCLR 989
(CC) at para 130.
[39]
See
Fischer
above
n 14 for an example of a similar order which affected a number of
people in substantially similar positions to the Madlala
Village
residents.
[40]
The
definition of “evict” in PIE reads—
“
to
deprive a person of occupation of a building or structure, or the
land on which such building or structure is erected,
against his or
her will, and ‘eviction’ has a corresponding meaning”.
Thus,
it is clear that eviction constitutes the deprivation of either (1)
the occupation of a building or structure, or (2)
the land on
which such building or structure is located. Demolition is
just a particularly permanent means of such deprivation.
This
Court has emphasised that section 26 – including the
provisions protecting against unlawful evictions and demolitions
–
must be read as a whole. See, for example,
Jaftha v
Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC
25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at para 28:
“
[I]t
is important to emphasise that section 26 of the Constitution must
be read as a whole. . . . Section
26(3) is the
provision which speaks directly to the practice of forced removals
and summary eviction from land and which guarantees
that a person
will not be evicted from his or her home or have his or her home
demolished without an order of court considering
all of the
circumstances relevant to the particular case. The whole
section, however, is aimed at creating a new dispensation
in which
every person has adequate housing and in which the state may not
interfere with such access unless it would be justifiable
to do so.”
[41]
De
Lacy and Another v South African Post Office
[2011]
ZACC 17
;
2011 (9) BCLR 905
(CC) at paras 119-20 and
Van
der Berg v General Council of the Bar of South Africa
[2007]
ZASCA 16
;
[2007] 2 All SA 499
(SCA) at paras 15-6 (noting that
although counsel need not believe all the evidence a client
instructs her to put before a court,
it is another thing entirely if
it is clear that the evidence is false or misleading).
[42]
Section
34 of the Constitution.
[43]
The
case was brought under case number 3329/2013 in the KwaZulu-Natal
High Court, Durban. The terms of the order which Koen
J made
on 28 March 2013 are set out at [11] above.
[44]
SAITF
above
n 19 at paras 17 21;
Magidiwana
and Others v President of the Republic of South Africa and Others
[2013]
ZACC 27
;
2013 (11) BCLR 1251
(CC) at paras 6 8;
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012]
ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) at paras
22 5; and
ITAC
above
n 19 at paras 41 and 46 59
.
[45]
On
14 February 2014, the KwaZulu-Natal High Court, under case number
1762/2014 made the following order:
“
1.
A rule nisi do hereby issue calling upon the 1st respondent or any
other interested party to show on the 11th day of March 2014 at
09h30 as to why the following order should not be made:
(a)
That the 1st respondent is interdicted and
restrained from evicting the applicants from the informal settlement
situated at Madlala
Village, Lamontville without a valid court
order.
(b)
That the 1st
respondent
is interdicted and restrained from removing any materials placed at
Madlala Village by the 1st applicant and the 2nd applicant
from
the date of the granting of this order.
(c)
It is declared that the demolition of the
informal houses of the applicants carried out by the 1st respondent
on 13th February
2014 was unlawful.
(d)
That the 1st respondent is directed to pay the
costs of this application on an attorney and client scale.
2.
That the orders referred to paragraphs 1(a) and 1(b)
shall operate
as interim relief pending the determination of this application.
3.
That the costs of two counsel for today are reserved.”
[46]
The
LRC, acting on behalf of the appellants, addressed a letter to the
Registrar of this Court on 14 February 2014 which, in relevant
part,
reads:
“
An
urgent application was enrolled for hearing before the Durban High
Court at midday today, under case number 1762/2014.
The
application was brought on behalf of two applicants listed in CCT
108/13. Given the time constraints within which the
urgent
application was brought, it was not possible to consult with all the
applicants. We hold instructions to supplement
the papers in
case number 1762/2014 to include further applicants.”