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[2014] ZACC 25
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Malan v City of Cape Town (CCT 143/13) [2014] ZACC 25; 2014 (6) SA 315 (CC); 2014 (11) BCLR 1265 (CC) (18 September 2014)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 143/13
In
the matter between:
JOHANNA
MALAN
..................................................................................................................
Applicant
and
CITY
OF CAPE
TOWN
.........................................................................................................
Respondent
Neutral
citation:
Malan v City of Cape Town
[2014] ZACC 25
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:
20 February 2014
Decided
on:
18 September 2014
Summary:
Lease agreement – public rental
housing – right to have access to adequate housing –
constitutionality of clauses
in public rental housing lease agreement
– notice of cancellation – right to be afforded
opportunity to rectify breach
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998
ORDER
On
appeal from the Western Cape High Court, Cape Town (Dolamo J):
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
DAMBUZA
AJ (Froneman J and Madlanga J concurring):
Introduction
[1]
This is an application for leave to appeal against
an eviction order granted by the Western Cape High Court, Cape Town
(High Court).
The eviction order resulted from allegations of
breach of a lease by the applicant (Ms Malan) and consequent
cancellation
of that agreement by the respondent (the City).
[2]
In 1994 the democratic government inherited a
legacy of a segregated national housing system in terms of which very
little housing
had been built for black people by the apartheid
government.  In the new constitutional dispensation, the right
of access
to housing for all citizens of this country was placed
within the realm of fundamental constitutional and human rights.
The
country has made great strides in providing housing and basic
services to indigent persons but there are still huge backlogs.
[3]
The right of access to adequate housing is
entrenched in section 26 of the Constitution which 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.”
[4]
The
national, provincial and local spheres of government share the
responsibility of concretising this right by providing housing
to
deserving individuals.  To implement this constitutional
mandate, Parliament passed the Housing Act
[1]
(Act).  Under this Act and the National Housing Code of 2009,
the national government determines the national housing policy
which
must be adhered to by the provincial and local governments.
[2]
Delivery of housing has been achieved through various forms of
acquisition.  The lease that is central to the issues
in this
case is one example of acquisition.  However, the agreement in
this case was concluded long before the advent of democracy
and was
assimilated into the new constitutional dispensation.
Nevertheless it still serves the function of regulating the
exercise
of the right to housing.  Some of its terms, however, are still
reminiscent of the language and rigidity of the times
during which it
was concluded, some of which may not be consistent with the level of
respect accorded to all members of the South
African society
today.
[3]
The
parties
[5]
The
applicant, Ms Malan, is a widow who is about 74 years old and resides
at 100D Sonderend Road in Manenberg, Cape Town (property).
The
respondent, the City, is a metropolitan municipality established in
terms of the Local Government, Municipal Structures
Act.
[4]
Factual
background
[6]
Ms Malan has been occupying the property since
1979 when she took occupation by virtue of a lease between her
husband and the predecessor
in title of the City.  After the
death of her husband in 1982, she concluded a lease with the City in
respect of the same
property.  She continued living there with
her three children who were her co-respondents in this matter before
the High Court.
[7]
The
City cancelled the lease in a letter dated 31 October 2008,
delivered to her on 23 November 2008.
[5]
She was given until the end of December 2008 to vacate the property.
The reasons for cancellation of the agreement,
as set out in the
letter of cancellation, were that first, as at the end of April 2008,
Ms Malan was in arrears with rental
payments in the amount of
R8 290.90.  Second, that the South African Police Service
(SAPS) had reported to the City that,
on numerous occasions, drugs,
liquor and illegal firearms had been confiscated from the property
and arrests had been made for
illegal activities conducted on the
property.  In terms of the letter of cancellation, the lease was
cancelled with effect
from 31 December 2008.
[8]
Ms Malan did not vacate the property on 31
December 2008.  On 24 January 2009 another letter was
delivered to her
from the City’s legal representatives.
The letter advised her that the lease had been cancelled and legal
proceedings
would be instituted to evict her from the property.
She still remained in occupation of the property.
Before
the High Court
[9]
On
1 October 2009 the City approached the High Court seeking an order of
eviction against Ms Malan, her children and whoever else
might be in
occupation of the property.  This application was brought on the
basis that she and her family were unlawful occupiers
[6]
as the lease had been cancelled for the reasons stated in the letter
of 31 October 2008.  The City contended that, even if
Ms Malan
had not been in breach of the agreement, it was entitled to terminate
the agreement by giving her a month’s notice
to vacate the
property.  In this regard, the City relied expressly on clause 2
of the agreement.
[10]
In the High Court, a further ground on which the
City sought eviction was that Ms Malan had effected structural
alterations to the
property in breach of clause 22(a) of the
agreement.
[11]
Ms Malan opposed the eviction application,
disputing the validity of the cancellation of her lease.  She
admitted that in April
2008 she was in arrears with rentals in the
amount of R8 290.90.  It was common cause that in July 2008
she made
arrangements with the City to settle the arrears in
instalments of R50 per month.  It was not in dispute that, even
after
she had made the arrangements to pay her arrears, Ms Malan
again defaulted in her rental payments, including payment of the R50

agreed on.  In her answering papers before the High Court she
stated that as at 28 February 2009 the total amount of
rental
payable (to the City) was R1 208.40 and as at 6 November 2009 it
was R396.  She also contended that the letter
of
cancellation was invalid for ambiguity.  She further denied that
she had allowed illegal activities to be conducted from
her house.
She insisted that, although numerous raids had been conducted by
members of the SAPS at her house, no one had
been charged and
convicted of a criminal offence.  She challenged the validity of
clause 24 of the agreement – on which
the City relied regarding
the “illegal activities” – on the basis that it is
inconsistent with sections 9, 10,
14, 25 and 26 of the Constitution.
Her further contention was that clause 2 is against public policy as
it detracts from
a lessee’s security of tenure; and clause 28,
which provides for cancellation of the agreement in the event of
failure to
pay rent, is unconstitutional because it does not afford a
tenant an opportunity to rectify such a breach.
[12]
Regarding the unauthorised buildings on the
property, Ms Malan contended that these enhanced the value of the
property, rather than
detract from it.
[13]
The High Court found that the contents of the
letter of cancellation were clear, and that the agreement had been
properly cancelled
in terms of clause 2.  It reasoned that the
acceptance of Ms Malan’s offer to settle the arrears, in July
2008, constituted
a notice affording her an opportunity to rectify
the breach.  Having failed to adhere to the accepted terms of
the July offer,
she could not be heard to complain that she was never
afforded opportunity to rectify her breach.  There was therefore
no
merit in her complaint that the failure to give her notice
rendered the application of clause 2 contrary to public policy.
[14]
The High Court held further that the numerous
police raids on the property had (or must have) alerted Ms Malan to
the illegal activities
that were taking place on the property in
breach of clause 24 of the agreement.  In any event, so it held,
clause 24 did not
require that she be given prior notice of breach of
the agreement.  The agreement correctly provided for summary
eviction
in the event of a breach.  The High Court also found
that structural alterations had indeed been effected to the property
in breach of clause 22(a) of the agreement.
[15]
An order of eviction was granted against Ms Malan
and her family.  They were given two months to vacate the
property.
Accommodation would be secured for Ms Malan at
an old-age home as tendered by the City.  Leave to appeal
against the
judgment of the High Court was refused by both the High
Court and the Supreme Court of Appeal.
In
this Court
[16]
Ms Malan seeks leave to appeal against the
judgment of the High Court.  In the main, she denies having
breached material terms
of the lease.  She contends that any
breach she might have committed did not justify cancellation of the
lease.  She
insists that clauses 2, 24 and 28 of the lease which
are implicated in the cancellation are against public policy are
unconstitutional
and are therefore unenforceable.
[17]
At the hearing, counsel for Ms Malan informed us
that she had abandoned her contention that the notice of cancellation
was ambiguous.
He conceded that the letter was, at least in
form, a clear notice of cancellation of the lease.
[18]
Further,
before us, all parties accepted that the unauthorised alterations are
not an issue on appeal. I may add that the alterations
were never
cited as a basis for cancellation of the lease in the letter of
cancellation.
[7]
[19]
Therefore, the issues are whether—
(a)
leave to appeal should be granted;
(b)
clauses 2, 24 and 28 of the lease are against public policy or
unconstitutional, either as they stand or in their application;
(c)
Ms Malan was in breach of the lease and the City was entitled to
cancel the lease;
(d)
the provisions of PIE are applicable; and
(e)
PIE was properly applied.
Should
leave to appeal be granted?
[20]
Although the core issue is whether the agreement
had been breached when it was cancelled, the inquiry into whether the
agreement
is consistent with the spirit and provisions of the
Constitution cannot be ignored.  At the hearing, the City
submitted that
the constitutionality of the clauses need not be
decided by this Court because the City had invoked clear grounds of
cancellation,
all premised on Ms Malan’s breach of the lease.
However, Ms Malan contends that the clauses on which the City relied

in cancelling the agreement are against public policy and offend
fundamental rights guaranteed in the Constitution.
[21]
The fact that the agreement serves a public
purpose is of significance in the consideration of the issues.
The lease cannot
be viewed as a pure exercise of private contractual
power.  This is so in respect of both the lessor and the various
lessees.
It is the instrument through which the City fulfils
the constitutional obligation on the state to provide housing to Ms
Malan
and millions of other persons of similar social standing and
through which indigent persons exercise their rights to housing.
These
leases are central to the building of communities and
regulating the lives of members of those communities.  If
certain clauses
offend public policy as Ms Malan contends, they
are unenforceable.  The manner in which these contracts are
crafted and
enforced is of important public interest.  The
issues raised by Ms Malan are of considerable public interest and she
bears
prospects of success on the merits.  Leave to appeal
should be granted.
Constitutionality
of the clauses
[22]
On the papers before us, Ms Malan pursued largely
the same challenge to her eviction as in the High Court.  First,
she contended
that the clauses invoked by the City to cancel the
agreement are, in any event, unconstitutional; clause 2 insofar as it
provides
for a 30-day notice period for termination without providing
any reason therefore (thus detracting from a lessee’s security

of tenure); and clause 28, insofar as it is inconsistent with
sections 9, 10, 14, 25 and 26 of the Bill of Rights.  Finally,

she contended that even if the clauses pass constitutional muster, it
is not just and equitable to evict her in the circumstances.
[23]
The test for determining whether a contractual
clause passes constitutional muster was laid down in
Barkhuizen
:
“
There
are two questions to be asked in determining fairness.  The
first is whether the clause itself is unreasonable.  Secondly,

if the clause is reasonable, whether it should be enforced in the
light of the circumstances which prevented compliance with the
time
limitation clause.
The
first question involves the weighing-up of two considerations.  On
the one hand, public policy, as informed by the Constitution,

requires in general, that parties should comply with contractual
obligations that have been freely and voluntarily undertaken.
This
consideration is expressed in the maxim
pacta sunt servanda
,
which, as the Supreme Court of Appeal has repeatedly noted, gives
effect to the central constitutional values of freedom and dignity.

Self-autonomy, or the ability to regulate one’s own
affairs, even to one’s own detriment, is the very essence
of
freedom and a vital part of dignity.  The extent to which the
contract was freely and voluntarily concluded is clearly
a vital
factor as it will determine the weight that should be afforded to the
values of freedom and dignity.  The other consideration
is that
all persons have a right to seek judicial redress.  These
considerations express the constitutional values which must
now
inform all laws, including the common-law principles of contract.
The
second question involves an inquiry into the circumstances that
prevented compliance with the clause.  It was unreasonable
to
insist on compliance with the clause or impossible for the person to
comply with the time-limitation clause.  Naturally,
the onus is
upon the party seeking to avoid the enforcement of the time
limitation clause.  What this means in practical terms
is that
once it is accepted that the clause does not violate public policy
and non-compliance with it is established, the claimant
is required
to show that in the circumstances of the case there was a good reason
why there was a failure to comply.”
[8]
(Footnotes omitted.)
[24]
A clause in a contract may be constitutionally
offensive for various reasons.  For example, it may be included
in the contract
for immoral or illegal purposes; it may be
intrinsically offensive to public policy; or, although not in itself
illegal, unconstitutional
or against public policy, it may become so
in its application.  Ms Malan’s contention, as I
understand it, falls
within the last category.
[25]
At
common law, a clause in a lease giving the lessor the power to cancel
the agreement for non-payment of rent is enforceable strictly

according to its terms.  The court has no equitable jurisdiction
to relieve the debtor of automatic forfeiture where there
is breach.
Once
the breach is committed, its seriousness – even objectively
judged – is irrelevant.
[9]
However, in the new constitutional dispensation, fairness is often
central in the determination of whether a clause in a
contract is
against public policy.
[10]
In
Brisley
v Drotsky
,
the Supreme Court of Appeal held:
“
The
jurisprudence of this Court has already established that, in addition
to the fraud exception, there may be circumstances in
which an
agreement, unobjectionable in itself, will not be enforced because
the object it seeks to achieve is contrary to public
policy.
Public policy in any event nullifies agreements offensive in
themselves – a doctrine of very considerable antiquity.

In its modern guise, ‘public policy’ is now rooted in our
Constitution and the fundamental values it enshrines.  These

include human dignity, the achievement of equality and the
advancement of human rights and freedoms, non-racialism and
non-sexism.
It
is not difficult to envisage situations in which contracts that
offend these fundamentals of our new social compact will be struck

down as offensive to public policy.  They will be struck down
because the Constitution requires it, and the values it enshrines

will guide the courts in doing so.  The decisions of this Court
that proclaim that the limits of contractual sanctity lie
at the
borders of public policy will therefore receive enhanced force and
clarity in the light of the Constitution and the values
embodied in
the Bill of Rights.”
[11]
[26]
State
organs must be able to rely on undertakings given by beneficiaries of
public rental housing schemes that they will honour
their obligations
as stipulated in the agreements they conclude.  Apart from this
being a fundamental principle of contract
law, performance of
obligations under these contracts is necessary for state organs to be
able to continue to provide services
to communities and for the
effective exercise by all members of communities of their right of
access to housing.  Occupants
of public rental housing schemes,
therefore, owe it to themselves and to other community members to
exercise their right of access
to housing responsibly, in a manner
that promotes law and order and good neighbourliness.  Local
authorities have an obligation
to regulate and even monitor the
exercise of the right of access to housing for the benefit of all
members of communities.
[12]
[27]
On the other hand, local authorities should be
mindful that their primary role in this context is provision of homes
to qualifying
members of the public, and that crime fighting and
prevention must be done within the parameters of the rights and
obligations
arising from the leases concluded with tenants.
[28]
It is an inescapable feature of agreements
relating to public rental housing that they are not negotiated.
Practicality does
not allow for agreements that would be
“tailor-made” for each of the millions of beneficiaries.
Within this context
features the unequal bargaining position of the
parties to the agreement.  This much is self evident.
These agreements
are a consequence of extremely adverse financial
circumstances.  Qualification for public rental housing reveals
the beneficiary’s
compromised economic and social status.
In the context of the public function served by these contracts, the
lessees’
limited scope to negotiate the terms must be a weighty
factor in the determination of the reasonableness of the terms of
these
agreements.  It is against this background that the
constitutionality of the clauses implicated in this matter must be
viewed.
Clause
2
[29]
Clause 2 of the agreement provides:
“
This
lease shall be terminated on one month’s notice in writing
given by either party to the other and shall be deemed to
have been
duly given—
(a)
By the Lessor if signed by the Town Clerk or his
nominee and handed to the Lessee personally or to some person
apparently over the
age of sixteen years residing upon the premises,
or sent by prepaid registered letter addressed to the Lessee at the
premises;
(b)
By the Lessee if signed by him and handed to the
official in charge of the Estate in which the premises are situate or
sent by prepaid
registered letter addressed to the Director of
Housing, P O Box 298 Cape Town.”
[30]
This clause is not, in and of itself, inconsistent
with the Constitution.  It is also
not
unfair between freely contracting parties.  However, insofar as
the City contended that this clause entitles it to terminate
the
agreement on notice, without cause, its application would be unfair
and against public policy.  In the context of its

subject matter, public housing, the application of the clause as
contended can easily facilitate arbitrary evictions by public

officials.  The result would indeed be erosion of the lessees’
security of tenure.  In this sense its application
would be
unconstitutional.
[31]
The City
submitted that
clause 2 must be read with clause 28.  I do not agree.  Clause
28 provides:
“
If
the Lessee
shall
fail to pay the rent or any other charges or amounts due under this
lease punctually on due date or if he shall commit or
permit any
other breach of the conditions of this lease or of any laws relevant
thereto, this lease may be cancelled forthwith
by the Lessor and the
fact of such cancellation shall be conveyed to the Lessee by an order
in writing under the hand of the Town
Clerk which order shall require
him to vacate the premises forthwith and to give the Lessor quiet
possession thereof.”
[32]
The word “forthwith” in clause 28
renders a reading of clauses 2 and 28 together, irreconcilable.
Whilst clause 2 provides
for termination on a month’s notice,
clause 28 provides for immediate cancellation and eviction. The two
clauses can therefore
not be read together as the City suggests.
Again, clause 28 may be enforceable between freely
contracting parties. But it would be unfair for the City to invoke it
to summarily
evict Ms Malan or any public rental housing lessee for
failure or delay in rental payments.
[33]
On
a strict application of this clause, it being common cause that as at
the end of April 2008 Ms Malan was in arrears with rental
payments,
the City was entitled to summarily cancel the lease. The extent of
the breach is irrelevant. Moreover, under clause 28
Ms Malan was
obliged, upon receipt of an order made in writing by the Town Clerk
(read Municipal Manager) “to vacate the
property forthwith and
to give [the City] quiet possession of [the property].” In
Jaftha
this
Court held that “any measure which permits a person to be
deprived of existing access to adequate housing limits the
rights
protected in section 26(1).”
[13]
The City’s entitlement to cancel summarily and the concomitant
order that the Town Clerk may issue requiring a lessee to
vacate the
property, have the effect of altering the position of a lessee from
one of a lawful occupier with a measure of security
of tenure to the
tenuous position of an unlawful occupier whose last protection are
the provisions of PIE read with section 26(3)
of the
Constitution.
[14]
That summary
cancellation in terms of clause 28 violates the provisions of section
26(1) and is at variance with this Court’s
decision in
Jaftha
is
manifest.
[15]
It bears mention
that in
City
of Cape Town v De Bruin and Others
[16]
a replica of clause 28 was held to be contrary to public policy and
unconstitutional to the extent that it allowed a landlord to
cancel a
lease without affording a tenant opportunity to rectify a breach.
[34]
It is also significant that clause 29 of the
agreement confirms the right of the City to evict a tenant summarily.
The clause provides:
“
Forthwith
upon delivery of [the order of the Town Clerk] such order referred to
in clause 28 the Lessee’s rights under this
lease shall
terminate and he shall give quiet possession of the premises to the
Lessor in a state of good order and repair, fair
wear and tear
excepted.”
[35]
Most striking, on a strict application of both
clauses 2 and 28, at no stage is the lessee given an opportunity to
protest the City’s
conclusion on a perceived breach or to
rectify the breach prior to cancellation of the lease.  Once a
notice in terms of either
clause is delivered, the right to occupy
the leased property terminates, either at the end of one month
(clause 2) or with immediate
effect (clause 28).  In the case
before us, although the City wrote a further letter to Ms Malan on 14
January 2009, that
second letter was not a letter of cancellation; it
only served to advise Ms Malan that her lease had been cancelled.  In
fact,
by 14 January 2009 Ms Malan was already holding over, her
rights under the agreement having ceased on 31 December 2008, as

per the letter of 31 October 2008.
[36]
However, clauses 2 and 28 are capable of
application in a manner that is fair and which does not offend public
policy.  This
is so if the clauses are invoked in the following
manner: the affected lessee’s attention must be drawn to the
breach prior
to cancellation of the agreement, to the details of the
alleged breach and the lessee must be afforded an opportunity (a
reasonable
period) within which to rectify the breach, failing which
the lease may be cancelled.
[37]
The City accepts that notification of breach to a
lessee is necessary.  According to the City, its policy is that
cancellation
of leases concluded with beneficiaries of public rental
housing, where they default with rental payments, is a matter of last
resort.
I can only assume from this that the City also accepts
that in these cases reasonable notification of breach entails
affording
a lessee who is in breach opportunity to rectify that
breach.  It is not the City’s case that its policy of
tolerance
towards arrear rentals was applied in this case.  The
conclusion must be that the arrear rentals were not the
real
reason for cancellation of the agreement.
[38]
From the record it is clear that cancellation was,
in fact, an attempt at assisting the SAPS in its crime combating
endeavours.
This much was also evident from Ms Bawa’s
(counsel for the City) introductory submissions before us.  Indeed,
a
copy of the written resolution by the City, for institution of
legal proceedings against Ms Malan and other tenants, reveals

that the decision was made because those tenants had been identified
as “illegally dealing in drugs and alcohol in the properties

they occupy”. This explains why, despite Ms Malan having made
fairly regular payments from January 2009 until the balance

owing on her account with the City was R396 as at 21 October
2009, the City insisted that she should be evicted from her home.
Clause
24: Illegal activities
[39]
The City relied on clause 24 of the agreement in
respect of the allegation of illegal activities.  The High Court
dealt with
this issue on that basis.  Clause 24 deems breach of
the agreement in the event of a conviction.  The clause,
entitled
“[c]riminal offences”, provides:
“
In
the event of the Lessee or any other person, whether residing upon
the premises or not, being convicted of unlawfully selling,
supplying
or possessing intoxicating liquor as defined in the Liquor Act, 30 of
1928, or Bantu beer as defined in the Bantu Beer
Act, 63 of 1962, or
dagga or any other habit-forming drug upon the premises or in the
event of the Lessee being convicted of any
offence under the Arms and
Ammunition Act, 28 of 1937, the Tear Gas Act, 16 of 1964, or the
Dangerous Weapons Act 71 of 1968, or
of assault in any form or any
other offence involving violence, the Lessee shall be deemed to have
committed a breach of this lease
and the provisions of Clauses 28 to
31 shall apply.”
[40]
I will not enter the debate on all the possible
ramifications of the full import and possible implications of clause
24.  Suffice
it to say that the clause provides that a
conviction on one of the listed offences results in the lessee being
deemed to be in
breach of the lease, with the further result that
clauses 28 to 31 become applicable.  That means the deemed
breach entitles
the City to terminate in the summary manner provided
for in clause 28, a subject I have dealt with above.  That
summary cancellation
is at variance with the provisions of section
26(1) of the Constitution.
[41]
It may be that, as raised with counsel for the
respondent at the hearing, clause 23 (rather than 24) was the
more appropriate
clause for the City to invoke.  Clause 23
provides:
“
The
Lessee and all persons, whether residing upon the premises or present
upon the premises by the invitation or permission of the
Lessee for
whose conduct the Lessee is hereby made responsible, shall at all
times conduct themselves in a decent, quiet and orderly
manner and
shall abstain from any conduct which may materially interfere with
the ordinary comfort, convenience, peace or quiet,
or adversely
affect the safety or health of any other Lessee; provided that the
Lessor shall in no case be responsible to any person
for any breach
of this Clause whether by the Lessee or by any other Lessee.”
[42]
The
letter of 31 October 2008 properly informed Ms Malan of the
allegations of breach.  At common law it is not a requirement

that a notice of cancellation must correctly identify the cause of
cancellation or the breached clause in the lease.
[17]
The absence of reference, in the cancellation notice, to a particular
clause in the agreement is not unfair, although preferable.
The
requirement is that the notice must be “clear and
unequivocal”.
[18]
The
relevant portion of the notice of cancellation in this case reads:
“
In
further breach of the lease she has allowed illegal activity to take
place at the property.  Our client advises us further
that the
South African Police Services have reported to them that on numerous
occasions drugs, liquor and illegal firearms have
been confiscated
from the property and, inter alia, arrests have been made for illegal
activities conducted at the property.
As a result of the
arrears and the illegal conduct at the property our client has
decided to cancel the lease agreement and hereby
gives you one
month’s notice of their intention to cancel the agreement.”
[43]
The notice adequately informed Ms Malan of the
allegations and details of illegal activities complained of with
sufficient particularity,
such that she would be able to determine
whether the allegations were true and whether they constituted a
breach of the agreement.
Therefore, indeed clause 23, being a
general “good behaviour” clause, could be implicated.  I,
however,
do not think that it would be fair and proper to decide the
matter on the basis of clause 23 given that the parties had dealt
with
the matter on the basis of a clause 24 breach and the High Court
had considered the issues on the same basis.
[44]
Even if cancellation was premised on clause 23,
having found that it is imperative that lessees in public rental
housing schemes
be afforded opportunity to rectify a breach, the
question would be whether Ms Malan was afforded such opportunity in
respect of
the illegal activities prior to the lease being
cancelled.  I did not understand it to be the City’s case
that she was;
and I can find no legal basis for a conclusion that she
was not entitled to a notice affording her an opportunity to rectify
the
breach of “allowing illegal activities”.  It
seems to me that opportunity to rectify was particularly necessary
in
this case since cancellation was based on the conduct of third
parties rather than Ms Malan’s conduct, even though some
of the
real culprits are her own children.
[45]
The notice of cancellation expressly provided that
the effective date of cancellation of the lease was 31 December 2008.
It provided:
“
As
a result of the arrears and the illegal conduct at the property, our
client has decided to cancel the lease agreement and hereby
gives you
one month’s notice of their intention to cancel the agreement.
Please be advised that the lease agreement will
be cancelled with
effect from 31 December 2008 and Ms Malan and all who hold title
under her are to vacate on that date.”
[46]
The letter did not call upon Ms Malan to either
pay rental or to ensure that the activities complained of were
stopped.  It
rather informed her in no uncertain terms, that as
a result of the specified conduct a decision had been taken to cancel
her lease
and she had to vacate the property on a specified date; her
right to occupy the property would cease on that day.  On the
City’s own evidence the last incident of arrest for illegal
activities was on 14 October 2008.  As I have stated, the
letter
of cancellation dated 31 October 2008 was received by Ms Malan on 23
November 2008.  Cancellation was confirmed on
24 January 2009.
The fact that in January 2009 the City confirmed cancellation of the
lease without there having been further
complaints of “illegal
activities” in the intervening period is evidence that the City
never intended to afford Ms
Malan opportunity to rectify the breach.
[47]
Ms Malan contended that the breached clause 24 was
applied unfairly in that the City never communicated with her
regarding the allegations
of unlawful conduct prior to cancellation.
Can it be said that the requirement to afford her an
opportunity to rectify the
breach was satisfied because she was aware
of the police raids and drugs and firearms found on the leased
property?  I do
not think so. The City was never part of police
raids conducted on the premises.  It never discharged its
obligation of warning
her that she was at risk of losing her home.
On the evidence, the City’s first communication with her
regarding the
illegal activities was when it cancelled the agreement
based on allegations made by the SAPS (the letter of 31 October
2008).
[48]
Neither Ms Malan’s awareness of the police
raids and drugs found on the property nor her denial that illegal
activities took
place there disentitled her of the right to rectify
the breach.  In the context of leases that relate to occupation
of public
rental housing, the right of a lessee to be afforded
opportunity to rectify a breach is not available only to innocent
lessees.
The requirement recognises that a lessee could, in
fact, be in the wrong as alleged; it then ensures that even such a
lessee
is given a chance to retain the right to occupy her home.
Further, where there is an obligation to first demand that a
lessee
rectify a breach, it seems to me that it would be anomalous to
say that investigations done by a third party (SAPS) who is not a

party to the lease absolves the lessor from complying with that
obligation.
[49]
A demand that Ms Malan rectify the breach would
have served the important purpose of pertinently alerting her that
the conduct complained
of had become a threat to her continued
occupation of her home.  A conclusion that her awareness of the
raids disqualified
her from that right would be unjust.  I also
do not agree with the conclusion that such a notice would have served
no purpose
given her denial that the illegal activities took place.
The fact remains that she was not afforded the opportunity to rectify
and therefore the cancellation was premature.  It is for this
reason that, in my view, the failure by the City to afford Ms
Malan a
proper opportunity to rectify the breach rendered the cancellation
invalid and contrary to public policy.
[50]
For these reasons I would have upheld the appeal.
MAJIEDT
AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Jafta J, Khampepe J and
Van der Westhuizen J concurring):
Introduction
[51]
The
City of Cape Town (City) seeks to evict an elderly lady from her
home.  That, alone, alerts us to the rights and values
of the
Constitution that are at issue.  These are, primarily, the right
not to be evicted from one’s home without an
order of court
made after considering all the relevant circumstances,
[19]
and,
behind that right, the foundational right to dignity.
[20]
But
also at stake is the obligation the City, as an organ of state, bears
to take reasonable measures, within its available resources,

progressively to realise the right everyone has to access adequate
housing.  The City convincingly demonstrated in its papers
the
huge challenges it faces in meeting these responsibilities.  One
of the methods it employs is to provide public rental
housing at a
nominal charge.
[52]
The
property from which the City seeks to evict Ms Malan is part of what
is known as the City’s “rental stock”,
that is,
subsidised houses rented to people who meet the City’s
qualifying criteria.  There were some 55 000 housing
units in
the City’s rental stock when the City deposed to its evidence,
but the waiting list for state housing was up to
400 000
households.
[21]
So
there is a huge demand for rental housing units, which the City
cannot meet from its present rental stock.  It has to act

diligently and responsibly in ensuring this scarce resource is
properly utilised.  It is in the exercise of this responsibility

that it seeks to evict Ms Malan.  The question is whether it
should succeed.
[53]
I am in respectful disagreement with the judgment
of my Colleague, Dambuza AJ (main judgment), regarding the
outcome on the
merits and the underlying reasoning.  My view is
that leave to appeal should be granted but that the appeal should be
dismissed
with no order as to costs.
[54]
Before
turning to the facts, which are set out in the main judgment, it is
appropriate to make a few general observations regarding
the right to
housing.
[22]
My
Colleague has already placed this important right in its historical
perspective.  I agree with those views.  But it
would be
remiss to ignore the significant hurdles a rapidly expanding
metropolis like the City faces to meet its constitutional
obligations
in respect of housing delivery.
[55]
In
Grootboom
,
this Court described the state’s constitutional obligations in
respect of housing as “a constitutional issue of fundamental

importance to the development of South Africa’s new
constitutional order”.
[23]
And it sketched the historical inequality and iniquities of the
apartheid regime’s policy of influx control in the
Western
Cape, resulting in the acute housing shortage there.
[24]
In
Port
Elizabeth Municipality
,
Sachs J alluded to the worldwide phenomenon of landless and destitute
rural poor people flocking to the cities in search of a
better life
and job opportunities.
[25]
[56]
Section
152 of the Constitution sets out the objects of local government,
[26]
while
municipalities’ developmental responsibilities are provided for
in section 153.
[27]
Section
9(1) of the Housing Act
[28]
is
of particular importance insofar as the obligations placed upon
municipalities to realise their inhabitants’ right of
access to
housing are concerned.  For present purposes section 9(1)(a)(i)
and (ii) is apposite.
[29]
[57]
The qualifying criteria for the 55 000 units of
rental accommodation at the City’s disposal include that the
applicant or
tenant and her spouse or partner earn less than R7 000
per month, be South African citizens and own no other property.
In
respect of every rental property the City has a tenant file that
is usually kept at the local housing office in the area where the

particular property is located.  A tenant file would ordinarily
contain all records of correspondence, personal interviews
and
telephonic communications between the tenant and the relevant housing
official(s).
[58]
The City says that it strives to fulfil its
constitutional duty in respect of granting its inhabitants access to
housing through,
among other things, a policy not to terminate leases
with lessees of public rental housing units who are in default of
their obligations
to pay rental (usually at a nominal rate), unless
as a last resort.  But, given the huge demand, the City has
adopted a zero-tolerance
approach to drug dealing being conducted at
any of its rental housing units.  It says this stems from the
need to fulfil its
constitutional obligation to provide adequately
habitable crime-free housing to its citizens.
[59]
The uncontroverted facts bear out these
assertions.  It is against this backdrop that we must consider
the merits of the cancellation
and subsequent eviction application.
And it will be apparent from the common cause facts that the City was
fully justified
in cancelling the lease agreement with Ms Malan and
in seeking her eviction together with all those occupying the
property through
her.
The
breach and cancellation of the lease agreement
[60]
My
Colleague, Dambuza AJ, correctly mentions the responsibility that
occupants of public rental housing units have to honour their

obligations under the lease agreements.
[30]
I agree that the parties enter into these lease agreements on the
basis of vastly disparate bargaining powers.
[31]
But the second proposition must not be understood to detract from the
first.  Here, the City showed, on the uncontroverted
facts, that
Ms Malan was in breach of the lease agreement in that she was in
arrears with her rent.  In addition, there were
widespread
criminal activities on the property, of which she could not have been
ignorant.
[61]
The
City justified cancelling Ms Malan’s lease agreement on the
reasons set out in its letter dated 31 October 2008 and on
the basis
that it had validly cancelled the agreement on one month’s
written notice, as provided for in clause 2.
[32]
As the main judgment explains, both parties now accept that the
City’s letter expressed an unambiguous notice of intention
to
cancel the lease agreement.
[33]
The City’s attorneys wrote to Ms Malan:
“
Our
client instructs us that in breach of the lease agreement Ms Malan is
in arrears with rental payments in the amount of R8 290.90
as at the
end of April 2008.  In further breach of the lease she has
allowed illegal activity to take place at the property.
Our
client advises us further that the South African Police Service [has]
reported to them that on numerous occasions drugs, liquor
and illegal
firearms have been confiscated from the property and, inter alia,
arrests have been made for illegal activities conducted
at the
property.
As
a result of the arrears and the illegal conduct at the property, our
client has decided to cancel the lease agreement and hereby
gives you
one month’s notice of their intention to cancel the agreement.
Please be advised that the lease agreement
will be cancelled with
effect from 31 December 2008 and Ms Malan and all who hold title
under her are to vacate on that date.”
The
letter ends by advising that failure to vacate by the deadline set
out would result in eviction proceedings.  It is important
to
note that this letter is not, in itself, a letter of cancellation.
It is, instead, a letter giving Ms Malan one month’s
notice of
the City’s “intention to cancel the agreement”.
The cancellation itself was only intended to
take effect one month
later, on 31 December 2008.  The letter thus served as a warning
to Ms Malan of an intention to cancel
on the basis of the illegal
activities at the premises, mentioned in the letter.
Cancellation
on mere notice – clause 2
[62]
Clause
2 of the lease agreement provides that either party may terminate the
lease on one month’s notice.
[34]
The City relied on this clause in terminating the agreement.
But, in argument, the City correctly conceded that it
could not
properly terminate on the basis of the power in clause 2 alone.
The City thus accepted that to terminate a lease
agreement in public
rental housing on one month’s notice would be oppressive and
unconstitutional on the second leg of the
test for contractual
validity in
Barkhuizen
.
[35]
[63]
The
City’s concession is correct.  Read and applied on its
own, the power of mere cancellation in clause 2, without further

justification, does not pass constitutional muster.  This is
because it enables either party to terminate the lease agreement

without any cause, provided only that one month’s written
notice is given.  For a public authority to cancel a lease

agreement with a poor tenant on mere notice, for no further reason,
is unreasonable and against public policy.  This is because
it
would be an abuse of contractual power.  Apart from infringing
the tenant’s security of tenure, it would create the

possibility of arbitrariness and abuse.
[36]
[64]
Tenants in public housing thus may not be evicted
merely on notice.  There must be something more: either further
breaches
of the lease agreement, or the necessity to secure vacant
premises for other pressing public reasons.  It is unnecessary
to
decide in this case what those pressing public reasons may be.
It is sufficient to say that, absent good cause, the Constitution

forbids a government agency from using a contractual power of
termination against a tenant in need of public housing.
Arrears
and opportunity to remedy arrear rentals
[65]
Was the City entitled to cancel the lease
agreement on the ground of arrear rentals?  The first question
is whether Ms Malan
was in fact in arrears and whether she was given
an opportunity to pay her arrears.  When the lease agreement
commenced in
1982, the monthly rental was R17.38.  It increased
over the years to R345.50 at the time of the eviction application.

The City’s case is that Ms Malan breached her rental
obligations so that she was in arrears to the tune of R8 290.90 at
the end of April 2008.  Records from the tenant file for
the property indicate that Ms Malan had a meeting on 21 July
2008
with a City housing official about the arrears.  She disclosed
her monthly income (a state pension).  She also signed
an
arrangement, undertaking to pay the arrears in monthly instalments of
R50.  A note in her tenant file further indicates
that she
visited the housing office again on 21 September 2008 when she paid
an amount of R450.
[66]
But not only was Ms Malan afforded an opportunity
to remedy her default, it is common cause that she failed to do so,
not even keeping
up with the arrear payments of the R50 per month as
arranged.  Her continued default resulted in the letter dated
31 October
2008.  She did not dispute the fact that she was
in default.  What she took issue with was the precise amount of
arrears
at the time of the eviction proceedings.
[67]
The letter was hand-delivered at the property on
23 November 2008 by two of the City’s law-enforcement
officers.  The
second respondent in the eviction proceedings, Mr
Dennis Malan, signed to acknowledge receipt.  The cancellation,
indicated
in the letter dated 31 December 2008, occurred by way of
further letter from the City’s attorneys, dated 14 January
2009.
This informed Ms Malan that her lease had been cancelled
and that eviction proceedings would follow.  A handwritten note
on
this letter records that it was handed to Ms Malan personally at
17h05 on 24 January 2009, but that she refused to
acknowledge
receipt.  During the period of just over two months,
between 23 November 2008 and 24 January 2009, Ms Malan did not settle

the arrear rentals, nor did she attempt to do so.
[68]
At the time when the City launched the eviction
proceedings—
(a)
Ms Malan was in arrears on her own version;
(b)
she had been afforded an opportunity to remedy the
default, but had failed to do so;
(c)
the City had given due and proper notice of
cancellation based, among other things, on these arrears; and
(d)
Ms Malan had not taken any steps to settle her
arrears in the period of just over two months between the date of
notice of cancellation
and the cancellation itself.
[69]
May a public authority properly cancel a lease
agreement on the ground of arrear rentals alone?  I think it
may.  The
contrary conclusion would be untenable.  It would
mean that a poor tenant, once she took occupation of public housing,
could
decline to pay any rent, assured in the knowledge that no
amount of arrear rentals would provide a reason for eviction.
This
cannot be.  The City is the custodian of an exceptionally
scarce public resource and is surely entitled to ration it according

to just principles of payment.  The City has important
constitutional obligations to fulfil in providing housing.  It

faces enormous challenges to meet them, as a result of historical
deprivations and the continuing flood of people from rural areas

pouring into the City in pursuit of employment and a better life.
The City is duty-bound to make the most of a very scarce
resource for
which there is massive demand.  It must fulfil its
constitutional obligations fully cognisant of the need to
allocate
housing to the needy and deserving on a fair and equitable basis.
[70]
But
the City first had to afford Ms Malan proper notice to settle her
arrear rentals.  It would have contradicted important

constitutional values had it not done so.  These include the
duty of procedural fairness a public authority owes its poor
housing
tenants.
[37]
But a fair
process was followed in this case. Nevertheless, it is not necessary
for us to decide whether the arrears, in
and of themselves, would
have been a sufficient ground for eviction, taking into account
considerations of constitutionality and
fairness. This is because
there is a further strongly compelling ground for cancellation and
subsequent eviction: the wide-ranging
illegal activities that were
being conducted on Ms Malan’s property.
Illegal
activities
[71]
The City’s letter dated 31 October 2008 did
not summarily cancel the lease.  Instead, it gave Ms Malan “one
month’s
notice of [the City’s] intention to cancel”
on the basis of illegal conduct on the property.  The
cancellation
itself took effect more than two months later, on 24
January 2009.  In both the letter of cancellation dated
31 October 2008
and in its eviction application, the City
claimed that widespread, serious criminal activities were being
conducted on the property.
In her answering affidavit, Ms Malan
gave a bare denial.  But she also challenged the City to prove
that any convictions had
flowed from the alleged illegal conduct.
This proved a mistake.  For, in reply, the City met this
challenge, as I explain
below, by enumerating extensive instances of
illegal activity on the property.  Its replying affidavit
detailed at length
exhaustive attempts by the police to intervene
against a high volume of criminal activity taking place at Ms Malan’s
premises,
including unlawful possession of ammunition and possession
of and dealing in drugs.  The City expressly invited Ms Malan

to file a further set of affidavits.  This invitation was, the
City said, “to mitigate any potential prejudice”
to Ms
Malan because of its new, more detailed allegations.
[72]
What is more, the City afforded Ms Malan a further
chance.  This arose in the following way.  The City’s
replying
affidavit was late.  Ms Malan opposed the admission of
the affidavit on this ground.  Condonation proceedings ensued.

Eventually, the City obtained an order from the High Court, to which
Ms Malan ultimately acquiesced, admitting its affidavit.
[73]
Significantly,
Ms Malan never took up the opportunity to respond to the allegations
made in the City’s replying affidavit.
Faced with the
City’s overwhelming evidence of crime perpetrated on her
property, Ms Malan filed no further affidavits.
Instead, she
put up a feeble attempt to have the extensive new material excluded
as being inadmissible hearsay, emanating as it
did mostly from the
police and from dockets in their possession.  This half-hearted
challenge was eventually aborted.
The City’s extensive
allegations, left unanswered, were damning.  A litigant is
required to engage fully and seriously
with allegations in an
affidavit, more so when all or some of those allegations are sought
to be disputed.  A bare denial
in circumstances where the
relevant facts are peculiarly within the litigant’s knowledge
does not suffice.  Absent a
detailed and motivated answer or
countervailing evidence from Ms Malan we are bound to accept the
City’s uncontroverted allegations.
[38]
It fully justified the cancellation of the lease.  A brief
recital of the various instances of illegal conduct will
bear
testimony to this fact in that—
(a)
on at least five occasions, people were arrested
at the property for being in possession of and selling mandrax
tablets and other
drugs;
(b)
cash and drugs were repeatedly seized and
forfeited to the state as the proceeds of crime;
(c)
ammunition was confiscated;
(d)
Ms Malan’s son was twice convicted, in 1999
and 2000, for the possession of drugs and her daughter was convicted
of the same
offence in 1999; and
(e)
a third party was convicted for the possession of
drugs, on 14 October 2008, seized at the property (although Ms
Malan’s son
was arrested and charged at the same time, the
charges against him were withdrawn).
[74]
The City had held extensive consultations with the
police to garner information on the illegal activities the founding
papers mentioned
as one of the grounds for cancellation.
Affidavits by various policemen were attached.  The
uncontroverted evidence
establishes that the illegal activity
continued beyond the date of the notice of cancellation, dated 31
October 2008: illegal activities
occurred on 20 December 2010 and on
9 June 2011.
[75]
Ms Malan decided to live with the City’s
replying affidavit.  All this puts her in a precarious
position.  The City’s
evidence is strong.  The
absence of a reply strengthens it.  The almost ineluctable
inference is that she knew of, and
condoned, criminal activity on her
premises.  The City’s uncontroverted evidence establishes
that widespread criminality
occurred on the property even after
notice of cancellation was given.  Ms Malan offered only a bare
denial in her answering
affidavit, in which she claimed she was
unaware of these activities.  That assertion the High Court
correctly rejected as
untenable.  These illegal activities
constituted a serious breach of the lease.  Ms Malan did not
aver that she was unaware
of these activities or that she had tried
to put an end to them.  Instead she contented herself with a
bare denial in circumstances
where that denial must be rejected
outright on the papers.
[76]
Were
cancellation and eviction warranted in these circumstances?  Ms
Malan claimed that, in reliance on clause 24 of the lease,
the City
had to prove
convictions
ensued
from the various arrests before it could evict.  This is
misplaced.  Clause 24 provides that, upon conviction of
certain
offences, there is a deemed breach of the lease.
[39]
It does not provide that the lease agreement is breached only upon
conviction.  It merely contains a deeming clause
that is meant
to assist the City by deeming a criminal conviction to be a breach of
the lease.
[77]
The
clause makes reference to the application of clauses 28 to 31 when a
breach in terms of clause 24 occurs.  Clause 28 must
be read in
conjunction with clause 24.  Clause 28 is applicable here.
[40]
In addition, clause 23 is pertinent.  It places an obligation on
the lessee, and persons for whose conduct she is responsible,
to
“conduct themselves in a decent, quiet and orderly manner”.
It requires that they abstain “from any
conduct which may
materially interfere with the ordinary comfort, convenience, peace or
quiet, or adversely affect the safety or
health of any other lessee”.
[78]
Read together, as they must be, clauses 23 and 24
are sensible and sound provisions in public-housing contracts.
They provide
for both the tenant’s own, and other tenants’,
rights to dignity and secure living.  They afford all residents

of public housing the entitlement to dignified and safe housing.
[79]
When then is it legitimate for a public authority
to enforce “illegal activities” clauses in public housing
rental contracts?
It would be unfair to impose more onerous
burdens on poor people simply because they are reliant on social
housing.  Their
unequal bargaining power is a factor here.
These clauses and reliance on them are, in my view, legitimate as
long as (1)
they make it clear what conduct is prohibited; (2) the
tenant has the means to control the prohibited conduct; and (3) the
tenant
has an opportunity to rectify a breach before cancellation.
[80]
These conditions were fulfilled here.  Ms
Malan was well aware of what was happening on her property and at no
stage averred
that she could not control the prohibited conduct.
Her denials, in light of the long history of criminal activity on the
property, are untenably disingenuous.  If nothing else did, the
frequent police raids on the property must have put her on
notice of
the gravity of the situation at the centre of which she was living.
What is more, the City’s letter dated
31 October 2008 expressly
relied on the illegal activities at the property, and gave Ms Malan a
warning, on one month’s notice,
that the City intended to
cancel the lease on 31 December 2008 on the ground of illegal
activities being conducted at the property.
The cancellation
itself took effect just under a month later, on 24 January 2009.
That period enabled her, if so minded or
able, to protest the
allegation that there were illegal activities, or, if it was
admitted, to take steps to bring them to an end.
She did
neither.  In the face of this bare, unsubstantiated denial and
the continuation of the illegal activities beyond the
date of the
notice of cancellation, the unavoidable conclusion is that Ms Malan
has failed to remedy the breach.
[81]
The City thus complied with the requirements of
section 26(3) of the Constitution.
[82]
In summary: the City lawfully and validly
cancelled the lease agreement on the ground of the illegal activities
on the property.
I will now consider whether the High Court
was correct in finding that it was just and equitable to evict Ms
Malan and all
other persons who occupied the property through her.
Just
and equitable
[83]
Ms
Malan’s eviction from the property must occur within the
requirements of the Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act
[41]
(PIE).  The High Court granted the City an eviction order in
terms of section 4(8) of PIE.
[42]
Since the City is an organ of state,
[43]
the eviction should have been granted in terms of section 6(1) of
PIE,
[44]
but nothing turns on
this.  PIE, in accordance with section 26(3) of the
Constitution, requires a court to balance the opposing
interests of
landowners and occupiers.
[45]
What is just and equitable therefore bears consideration in respect
of both parties.
[46]
Factors including fairness, social values and the implications of the
eviction have to be considered.
[47]
[84]
In
the present instance the City’s enormous challenges in meeting
its constitutional obligations to provide public housing
have been
highlighted.  On the other hand, as the main judgment
explains,
[48]
Ms Malan is an
elderly and widowed pensioner.  But the City offered to make
alternative accommodation available to Ms Malan.
The
eviction order against the other occupiers (her children and their
offspring) was not appealed against (this much was expressly
conceded
by Ms Malan’s counsel at the hearing), so we are only
concerned with Ms Malan’s circumstances at this
juncture.
The City’s tender entails accommodating Ms Malan in a home for
the aged, which the City controls.  A
list of the possible homes
was annexed to the replying affidavit.
[85]
Counsel
for the City informed us that all these homes are located within a
radius of 8 to 10 kilometres from the property.
This is a very
reasonable offer.  It firmly tilts the scales in the City’s
favour when considering whether it is just
and equitable to evict Ms
Malan.  Another compelling reason is that scarce housing stock
should be put to the best possible
use by the City.  A further
persuasive consideration in respect of an eviction is the effect of
the provisions of the Prevention
of Organised Crime Act
[49]
(POCA).  For instance, in 2009 a preservation order was granted
against residents of the property and a subsequent forfeiture
order
was granted in 2011.  As a result of the illegal activities
occurring on the property, it may well become the subject
of further
preservation and forfeiture orders, being the instrumentality of an
offence under POCA.
[50]
As Ms Malan will be adequately accommodated as proposed, there is no
good reason why the property should not be made available
to a
deserving, needy family.  We were informed by counsel for the
City that there are many thousands of people waiting to
be
accommodated.  The City must also bear in mind the rights and
needs of these people.  I am satisfied that the High
Court was
correct in ordering the eviction.
Costs
[86]
Ms Malan has raised an important constitutional
issue pertaining to housing.  She should not be mulcted with
costs.
Order
[87]
I make the following order:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
ZONDO
J:
Introduction
[88]
I have had the benefit of reading the judgment by
my Colleague, Dambuza AJ (main judgment) and the judgment by my
Colleague, Majiedt
AJ.  Majiedt AJ concludes that the City of
Cape Town (the City) was entitled to cancel the applicant’s (Ms
Malan’s)
lease and that her eviction would be just and
equitable.  Accordingly, he takes the view that the appeal
should be dismissed.
Dambuza AJ concludes that the City was not
entitled to cancel the lease as it was obliged to give Ms Malan the
opportunity to rectify
the breach but failed to do so.
Accordingly, she would have upheld the appeal.
[89]
With respect, I am unable to agree with the
conclusion that the City was entitled to cancel Ms Malan’s
lease and that her
eviction will be just and equitable.
Ultimately the real reason for the City’s decision to cancel Ms
Malan’s
lease was that it alleged that Ms Malan allowed certain
illegal activities to take place on the property.  In my view
the
City failed to show that Ms Malan allowed such activities and
that there was any breach of the lease on her part in regard to those

activities.  However, I take the view that, even if Ms Malan did
allow the illegal activities to take place on the property
and even
if this constituted a breach of the lease, the City was not entitled
to cancel her lease without first taking certain
procedural steps,
including giving her the opportunity to rectify the breach.  I
say that, since the City failed to take such
procedural steps, it was
not entitled to cancel the lease when it did.
[90]
Dambuza AJ also takes the view that the City was
obliged to afford Ms Malan the opportunity to rectify the alleged
breach before
it could cancel the lease but failed to do so.
She concludes that, for that reason, the City was not entitled to
cancel the
lease and that, therefore, she would have upheld the
appeal.  Although Dambuza AJ and I are agreed that the City was
obliged
to afford Ms Malan the opportunity to rectify the breach
before it could cancel the lease, I go a step further.  I also
hold
that, even if the City was entitled to cancel the lease, it was
not entitled to an order of eviction because Ms Malan’s
eviction
would not be just and equitable.  My reasons and
approach appear below.
Background
[91]
The City has low-cost housing units that it leases
to people within its municipal area.  These housing units are
subsidised
by the City.  It calls them its rental stock.
Ms Malan lives in the house at 100D Sonderend Road, Manenberg, Cape
Town.
That house is part of the City’s rental stock.
She is an elderly woman, aged 75, a pensioner, grandmother and
widow.
She suffers from ill-health.  She has lived in that
house since 1979 when her late husband, Mr Cecil Malan, leased it
from
the City.
[92]
After her husband had died, Ms Malan took over the
lease of the house.  Prior to 1979 Mr Malan had been living in
another property
that he had leased from the City since 1968.
It seems that Ms Malan lived with him on that property but it is not
clear from
when she had done so.  Ms Malan lives with some of
her adult children on the property.  They are Shaun, Bradley and
Amanda.
She also lives with three grandchildren aged 12, 8 and
4.  They are Amanda’s children.  The fact that Ms
Malan
has lived in the house since 1979 means that she has spent more
than half of her life in that house.
[93]
During the second half of 2008 the City purported
to cancel Ms Malan’s lease and required her and her family to
vacate her
home.  When she did not accept the cancellation and
did not vacate her home, the City brought an application in the
Western
Cape High Court (High Court) for an order evicting her and
her family from the property.  She opposed that application.

The High Court concluded that the City was entitled to cancel the
lease and issued an order for her eviction and the eviction of
others
who lived on the property through her.
[94]
This
matter raises constitutional issues.  This Court has previously
said that matters that relate to socio-economic rights
raise the
issue of human dignity.
[51]
As I hope to show below, there are important issues that arise for
determination in this matter.  The appeal has reasonable

prospects of success. It is, therefore, in the interests of justice
that leave to appeal be granted.
[95]
The lease between Ms Malan and the City was for an
indefinite period.  Clause 2 provided that either party
could terminate
the lease on one month’s notice.  Clause
22 precluded Ms Malan from making structural alterations to the
property.
Clause 24 is important.  It reads:
“
In
the event of the Lessee or any other person, whether residing upon
the premises or not, being convicted of unlawfully selling,
supplying
or possessing intoxicating liquor as defined in the Liquor Act, 30 of
1928, or Bantu beer as defined in the Bantu Beer
Act, 63 of 1962, or
dagga or any other habit-forming drug upon the premises or in the
event of the Lessee being convicted of any
offence under the Arms and
Ammunition Act, 28 of 1937, the Tear Gas Act, 16 of 1964,
or
the Dangerous Weapons Act 71 of 1968, or of assault in any form or
any other offence involving violence, the Lessee shall be
deemed to
have committed a breach of this lease and the provisions of clauses
28 to 31 shall apply.”
Clause
28 reads:
“
If
the Lessee shall fail to pay the rent or any other charges or amounts
due under this lease punctually on due date or if he shall
commit or
permit any other breach of the conditions of this lease or of any
laws relevant thereto, this lease may be cancelled
forthwith by the
Lessor and the fact of such cancellation shall be conveyed to the
Lessee by an order in writing under the hand
of the Town Clerk which
order shall require him to vacate the premises forthwith and to give
the Lessor quiet possession thereof.”
Clause
29 reads:
“
Forthwith
upon delivery of such order referred to in Clause 28 the Lessee’s
right under this lease shall terminate and he
shall give quiet
possession of the premises to the Lessor in a state of good order and
repair, fair wear and tear alone excepted.”
[96]
On 31 October 2008 the City’s attorneys
wrote a letter to Ms Malan giving her notice of the cancellation of
the lease.
Its terms are important.  The letter read as
follows:
“
Our
client instructs us that in breach of the lease agreement Mrs Malan
is in arrear with rental payments in the amount of R8 290.90
as at
the end of April 2008.  In further breach of the lease she has
allowed illegal activity to take place at the property.
Our
client advises us further that the South African Police Services have
reported to them that on numerous occasions drugs, liquor
and illegal
firearms have been confiscated from the property and, inter alia,
arrests have been made for illegal activities conducted
at the
property.
As
a result of the arrears and the illegal conduct at the property, our
client has decided to cancel the lease agreement and hereby
gives you
one month’s notice of their intention to cancel the agreement.
Please be advised that the lease agreement
will be cancelled with
effect from 31 December 2008 and Ms Malan and all who hold title
under her are to vacate on that date.
If
you do not vacate on that date and make suitable arrangements for the
payment of the monies due to our client, our client will,
without
further notice to you, institute legal proceedings for your eviction
and for the recovery of the amounts due, the cost
of which shall be
claimed from you.
”
(Emphasis
added.)
[97]
The third of the quoted paragraphs of the letter
conveyed that the City had made a decision to cancel its lease with
her and required
her to vacate the property.  It was referring
to a decision that had already been taken.  That is why it said:
“our
client has decided to cancel the lease agreement”.
It is true that later that sentence contains the words “and

hereby gives you one month’s notice of their intention to
cancel the agreement”.  Indeed, it is also true that
in
the next sentence the letter informed Ms Malan that “the
lease agreement will be cancelled with effect from 31 December

2008” which, if read in isolation, may give the impression that
the decision to cancel was yet to be taken.  However,
I think
that, if one reads that sentence and the second part of the one
before it with due regard to the whole letter, there can
be no doubt
that a decision to cancel the lease and require Ms Malan to vacate
her home had already been taken.
[98]
The first sentence of the third paragraph of the
letter says so.  The second part of the second sentence of that
very paragraph
instructed Ms Malan and her family to vacate the
property on 31 December 2008.  Why would the City instruct Ms
Malan to vacate
the property on that date if it had not yet taken a
final decision to cancel the lease?  In the fourth paragraph the
City
made it clear that, if Ms Malan did not vacate the property on
the given date, it would go to court to force her out of the
property.
Accordingly, any proposition that that letter did not
reflect that a final decision had been taken is without any
justification.
[99]
The third paragraph of the letter reveals that
there were two reasons upon which the decision to cancel the lease
and require Ms
Malan to vacate the property was based.  They
were that Ms Malan was in arrears with her rental payments and that
she had
allowed illegal activities to take place on the property.
The letter made it clear that the cancellation would take effect
on
31 December 2008 and that Ms Malan and her family were required to
vacate the property on that date.  It is important to
point out
that in the letter the City did not invite Ms Malan to make any
representations to the City concerning the alleged illegal
activities
or the alleged breach of the lease.
[100]
On 14 January 2009 the City’s attorneys
wrote another letter to Ms Malan in terms of which they confirmed
that the City had
cancelled the lease.  The letter read as
follows:
“
We
refer to the above matter and confirm, subsequent to our letter of 31
October 2008 that your lease has now been cancelled by
the City of
Cape Town.  Our instructions are to proceed with court
proceedings for your eviction.”
This
letter did not mean that the City had made any new decision.  It
was meant to say no more than that the cancellation of
the lease had
taken effect on 31 December 2008 as had been contemplated in the
letter of 31 October 2008.  The City’s
attorneys also said
that they had been instructed to institute proceedings for Ms Malan’s
eviction and the eviction of others
who live on the property through
her.  By way of a letter dated 26 January 2009 Ms Malan’s
attorney disputed the City’s
right to cancel the lease. He
pointed out that Ms Malan denied the allegations in the letter of 31
October 2008.
[101]
After the letter of 26 January 2009 nothing of
significance happened for about nine months.  In October 2009
the City instituted
an eviction application in the High Court.
In the City’s founding affidavit, the Director: Legal Services,
Mr Lungelo
Mbandazayo, said that it was the City’s policy
that property that is part of the “rental stock” could
not be
utilised for illegal activities and leases were cancelled if
they were used for such activities.
[102]
Mr Mbandazayo also said the following about the
policy of the City and the eviction of lessees from the City’s
rental stock:
“
[The
City] has approximately 55 000 housing units in its rental stock.
[The City] only evicts people from these dwellings
as a last resort
and accordingly few houses become available from the rental stock.
[The City] has several measures in place
in an attempt to keep rental
defaulters in their homes rather than evict them.  There is
considerable demand for rental housing
units which [the City] cannot
service on its existing rental stock.  [The City’s] policy
not to evict rental defaulters
other than as a last resort, places a
further strain on its available resources.”
[103]
In the founding affidavit the City’s case
was that its cancellation of the lease was a consequence of Ms
Malan’s breaches
of that lease.  It said that in terms of
clause 2 of the lease and by letter dated 31 October 2008 it had
given Ms Malan “one
month’s notice that the lease would
be cancelled with effect from 31 December 2008”.  The City
also said: “In
terms of clause 2 of the lease agreement the
[City] can cancel the lease on one month’s notice and on this
basis alone the
lease was validly cancelled.”  The illegal
activities upon which the City relied related, mainly, to the alleged
possession
and use of illegal drugs on the property by some of Ms
Malan’s adult children and other persons.
[104]
In the founding affidavit the City added a third
ground to justify its decision to cancel the lease and require Ms
Malan to vacate
the property.  It said that she had effected
certain structural changes to the property without its consent and
contended
that this was in breach of clause 22 of the lease.  In
her answering affidavit Ms Malan admitted having made certain
structural
changes to the property without the City’s consent
but she contended that she had tried to obtain the City’s
consent
in vain.
[105]
In her answering affidavit Ms Malan repeatedly
complained that “[o]n not one single occasion” had the
City ever had
a meeting with her or called her to complain that there
were illegal activities taking place in her home.  In
complaining
that “on not one single occasion” had the
City written her a letter or held a meeting with her about its
complaint
concerning illegal activities, she in effect was
complaining that the City had not engaged her on its complaint.
In the founding
affidavit the City had averred that its staff had
received a report on 10 September 1996 that “[u]ndesirable
persons were
allowed to congregate on the property and that liquor
was being sold unlawfully”.  In response to this averment
Ms Malan
repeated her complaint that the City had never called her or
held a meeting with her to complain about the alleged illegal
activities.
After complaining that the City’s averment in
this regard was inadmissible hearsay evidence, she said:
“
Secondly
and more importantly, I again have never received a letter of
complaint from [the City] regarding this issue and nor has
a staff
member of [the City] come to see me about it.  All I
received-some 12 years later, was a letter stating that there
was
illegal conduct taking place at the property”.
This
was a reference to the notice of cancellation of the lease.
[106]
Lastly, Ms Malan had the following to say about
the alleged illegal activities on the property as a basis for the
City’s decision
to cancel her lease and seek her eviction from
her home:
“
I
find it most strange that if the authorities were of the view that
illegal activities [were taking place] on the property—
31.1
why I have never been consulted about the issue either by way of a
letter or a meeting.  After all [the City] knows full
well that
I and I alone am the tenant of the property.”
Ms
Malan also said that she was—
“
wholly
unaware of any illegal activities, whether they related to drugs or
firearms or any other similar activity, that have taken
place on the
property.  Most certainly I would never allow so-called gang
activities to take place on my property, even if
my son (Third
Respondent) was a member of a gang.  For the record I am totally
unaware of the suspicions of the authorities
that the Third
Respondent is a so-called gangster”.
[107]
The City detailed many incidents based on the
information it got from the South African Police Service relating to
illegal activities
which had allegedly taken place on the property.
The City also referred to incidents in which some of Ms Malan’s

children had been arrested in connection with the use of drugs.
However, there were only few incidents of convictions of
some of Ms
Malan’s children in a court of law arising from those
activities.  The only convictions that the City produced
in
regard to Ms Malan’s children were convictions that related to
about 9 or 10, 12 years prior to the notice of cancellation
of which
the City was itself not aware at the time of the cancellation of the
lease.
[108]
In its replying affidavit the City also tendered
to accommodate Ms Malan in one of the old-age homes run by the City
but it did
not specify which one nor did it specify the terms and
conditions that would govern Ms Malan’s stay.  Whether she
would
be required to pay anything or not and, if so, how much, is
also not clear.  The validity or otherwise of the City’s

decision to cancel the lease and require Ms Malan to vacate the
property must be tested as at the time when that decision was taken.

That decision was made in October 2008.  At that time there was
no offer to accommodate Ms Malan at an old-age home.
Indeed,
that offer was made more than two years later when the replying
affidavit was filed in court.
[109]
The City did not deny Ms Malan’s version
that it had not raised the issue of illegal activities with her
before it made the
decision to cancel the lease and require her to
vacate the property.  Nor did it dispute the assertion that it
made its decision
to cancel her lease and to seek her eviction
without having sent her any letter complaining about such activities
and without having
had any meeting with her to discuss the matter.
Ms Malan also complained that the City had made its decision without
having
afforded her an opportunity to rectify whatever breach of the
lease there may have been on her part.
[110]
The City referred to the fact that Ms Malan had
been allowed to enter into an agreement with it for the payment of
rental arrears.
It contended that through that agreement she
had been given an opportunity to rectify the breach.  However,
it was not the
City’s case that it had afforded Ms Malan the
opportunity to rectify the breach in so far as such breach had taken
the form
of the illegal activities which is the real reason for the
City’s cancellation of the lease and for seeking to evict Ms
Malan.
In
this Court
[111]
Although one of the grounds upon which the City
based its decision to cancel the lease and seek Ms Malan’s
eviction was that
she was in arrears with her rental payments, before
us counsel for the City conceded, quite properly in my view, that
this ground
would not be sufficient on its own to justify the City’s
decision to cancel the lease and seek Ms Malan’s eviction.

This concession must be seen against:
(a)
the fact that the City’s policy is not to evict tenants because
of rental arrears except as a measure of last resort;
in this regard
the City admitted that it gives tenants opportunities to rectify
their defaults in paying their rent; the City referred
to its policy
in terms of which it even allows tenants to live in the housing units
and pay a monthly rental as low as R10 when,
for example, they are
unemployed.
(b)
Ms Malan’s undisputed evidence that the City’s
representatives at the Rent Office had assured her that the City

would not evict her because of rental arrears and that, if she found
it difficult to pay the monthly rental that she had undertaken
to
pay, she should go back to them and the amount could be reduced
further.
[112]
Counsel for the City also took the position that
the City did not rely on the structural alterations to justify the
cancellation
of the lease and eviction of Ms Malan.  This leaves
the illegal activities as the ground upon which we should focus in
this
matter.  For purposes of this judgment I am prepared to
accept that certain illegal activities did take place at various
times
on the property.
[113]
The result of the City’s concessions is that
the focus in deciding this matter must be on whether, having regard
to the other
grounds relied upon by the City and all the relevant
circumstances, it can be said that the City was entitled to cancel
the lease
and require Ms Malan to vacate the property as it did.
[114]
At this stage it is appropriate to make three
observations that are quite important in the adjudication of this
matter.  The
first is that it is not the City’s case that
Ms Malan’s alleged breach of the lease is constituted by her
participation
in illegal activities.  Its case is that Ms Malan
“allowed” illegal activities to take place on the
property.
That this is the City’s case is supported by
the fact that in the notice of cancellation of 31 October 2008 the
City wrote
thus to Ms Malan:
“
In
further breach of the lease [Ms Malan] has
allowed
illegal
activity to take place at the property.”  (Emphasis
added.)
The
second is that Ms Malan denied that she had allowed any illegal
activities to take place on the property.  The third is
that, in
deciding whether Ms Malan had acted in breach of her lease with
regard to the alleged illegal activities, the High Court
ought to
have appreciated that there was a genuine dispute of fact on whether
Ms Malan had allowed illegal activities to take place
on her
property.
[115]
As
the City had not applied for the matter to be referred to oral
evidence on this dispute of fact, and as Ms Malan’s version

could not be said to be far-fetched and untenable, on the application
of the
Plascon-Evans
approach
[52]
the matter should have been decided on Ms Malan’s version.
The result thereof is that Ms Malan had not allowed illegal

activities to take place on her property.  That being the case,
there had been no breach of her lease in regard to the alleged

illegal activities.  However, even if it can be said that Ms
Malan’s breach of the lease has been established, that
is not
the end of the matter.
[116]
In his submissions counsel pursued Ms Malan’s
complaint articulated in her answering affidavit that, when the City
made the
decision to cancel her lease and require her to vacate her
home, it had never alerted her that she had acted or was acting in
breach
of the lease.  Nor had the City alerted her that there
was any conduct on anybody’s part that it believed rendered her

in breach of the lease and that such conduct could lead to the
cancellation of her lease and her eviction from her home.
[117]
For
the above submission counsel for Ms Malan relied upon the decision of
the Western Cape High Court in
City
of Cape Town v De Bruin and Others
.
[53]
He also referred to a statement in the judgment of this Court in
Port
Elizabeth Municipality
that
“[w]here the need to evict people arises some attempts to
resolve the problem before seeking a court order will ordinarily
be
required.”
[54]
He argued that the City did not place any evidence before the court
that it had made any attempts to address its concerns
with Ms Malan
before it made the decision to cancel the lease and require her and
her family to vacate the property.  He,
therefore, submitted
that the City was not entitled to have Ms Malan evicted.
[118]
This matter must be decided on the basis that the
City did not raise the issue of illegal activities with Ms Malan, did
not consult
with her on its concern about them, did not in any way
discuss the illegal activities with her, did not afford her the
opportunity
to be heard and did not afford Ms Malan the opportunity
to rectify such a breach before it could decide to cancel the lease
and
seek her eviction.  For convenience I shall refer to these
steps collectively simply as “the procedural steps”
or
“procedural requirements”.  The question that
arises, therefore, is whether the City was obliged to take those

steps before it could make its decision to cancel her lease and seek
her eviction.  To answer these questions, it is necessary
to
have regard to the constitutional and statutory framework within
which the City’s decision to cancel the lease and to
require Ms
Malan to vacate her home must be evaluated.
Constitutional
and statutory framework
[119]
As the City is an organ of state, section 7(2) of
the Constitution applies to it.  It reads:
“
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
Section
26 of the Constitution is part of the Bill of Rights.  It reads:
“
(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.”
As
the City brought the eviction proceedings in terms of the Prevention
of Illegal Evictions from and Unlawful Occupation of Land
Act
[55]
(PIE), the relevant provisions of that statute must be considered as
well.  Section 4(1) of that statute reads:
“
Notwithstanding
anything to the contrary contained in any law or the common law
,
the provisions of this section apply to proceedings by an owner or
person in charge of land for the eviction of an unlawful occupier.”

(Emphasis added.)
The
provisions of section 4(2) to (6) are not relevant in the present
case.  Section 4(7) reads:
“
If
an unlawful occupier has occupied the land in question for more than
six months at the time when the proceedings are initiated
,
a court may grant an order for eviction if it is of the opinion that
it is just and equitable to do so, after considering all
the relevant
circumstances
,
including, except where the land is sold in a sale of execution
pursuant to a mortgage, whether land has been made available or
can
reasonably be made available by a municipality or other organ of
state or another land owner for the relocation of the unlawful

occupier, and including the rights and needs of the elderly,
children, disabled persons and households headed by women.”

(Emphasis added.)
Section
4(8) reads:
“
If
the court is satisfied that all the requirements of this section have
been complied with and that no valid defence has been raised
by the
unlawful occupie
r,
it must grant an order for the eviction of the unlawful occupier, and
determine—
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated

in paragraph (a).”  (Emphasis added.)
[120]
Section 6(1) permits an organ of state to
institute proceedings for the eviction of an unlawful occupier from
land which falls within
its area of jurisdiction, subject to one
exception that is not relevant in this matter.  It then
provides:
“
[
T
]
he
court may grant such an order if it is just and equitable to do so,
after considering all the relevant circumstances, and if—
(a)
the consent of the organ of state is required for the erection of a
building or structure on that land or for the occupation
of the land,
and the unlawful occupier is occupying a building or structure on
that land without such consent having been obtained;
or
(b)
it is in the public interest to grant such an order.”
(Emphasis added.)
[121]
Section 6(3) provides for some factors to which a
court is enjoined to have regard in deciding whether it would be just
and equitable
to grant an eviction order.  Section 6(3) reads:
“
In
deciding whether it is just and equitable to grant an order for
eviction, the court must have regard to—
(a)
the circumstances under which the unlawful occupier occupied the land
and erected the building or structure;
(b)
the period the unlawful occupier and his or her family have resided
on the land in question; and
(c)
the availability to the unlawful occupier of suitable alternative
accommodation or land.”  (Emphasis added.)
[122]
Section
4(1) is significant.  It says that the provisions of section 4
apply to proceedings by an owner or person in charge
of land for the
eviction of an unlawful occupier “notwithstanding anything to
the contrary contained in any law or the common
law”.
This means that the provisions of section 4 prevail over any
principle or rule of common law or provision of
another statute to
the extent that such principle or rule of common law or provision of
another statute is inconsistent or in conflict
with section 4.
At common law the owner of land is entitled to cancel a lease in
accordance with the strict terms of the
lease or upon agreed or
reasonable notice of cancellation with or without a good reason and,
indeed, even for a bad reason.
Section 4(1) means that, to
the extent that that common law right may be inconsistent with or in
conflict with any provisions
of section 4, it will not apply or may
not be given effect to.  The view that a rule of common law
yields to the provisions
of section 4 of PIE is consistent with the
pronouncement by this Court in
Port
Elizabeth Municipality
that,
unlike its predecessor, PIE seeks “to temper common law
remedies with strong procedural and substantive protections”.
[56]
[123]
The provisions of section 4(7), (8) and section 6
also require that an eviction be just and equitable before it can in
effect be
approved by a court.  Those provisions also say that,
in determining whether an eviction will be just and equitable, a
court
must “consider all relevant circumstances” and must
pay special attention to the elderly, children, disabled persons
and
households that are headed by women.  From this it is clear that
unlawful occupiers who fall into these categories of
persons require
special consideration.  We must, therefore, give special
consideration to Ms Malan’s situation because
she is elderly
and hers is a household headed by a woman.
[124]
As the right in section 26 falls within the rights
in the Bill of Rights, it is one of the rights that an organ of state
such as
the City (as a municipality) is obliged by section 7(2) to
“respect, protect, promote and fulfil the rights in the Bill of

Rights.”  The question that arises within the context of
an organ of state as a lessor in respect of a person’s
home is:
what does an organ of state’s obligation to protect and promote
a lessee’s right of access to adequate housing
entail when the
organ of state becomes aware of an alleged breach of the lease and
contemplates a decision to cancel the lease
and have the lessee
evicted?
[125]
In
Tsebe
[57]
this Court held that it would be a breach of the state’s
obligation to respect, protect, promote and fulfil Mr Tsebe’s

right to life and other rights
[58]
if the South African government extradited him to Botswana to face a
charge of murder and the real risk of the imposition and execution
of
the death penalty if he was convicted unless it first secured an
undertaking from the Botswana government that the death penalty
would
not be executed if imposed.
[126]
In my view, in adopting the approach that it
adopted in
Tsebe
,
this Court sought to strike a fair balance between the state’s
obligation under section 7(2) to protect and promote Mr Tsebe’s

right to life and Botswana’s legitimate expectation that those
who flee to South Africa to escape charges of serious crimes
such as
murder would be extradited back to Botswana to face those charges.
The balance was that South Africa could hand Mr
Tsebe over to
Botswana to face such charges provided that the Botswana authorities
gave South Africa the requisite undertaking.
If South Africa
had handed Mr Tsebe over to the Botswana authorities without securing
such an undertaking, that would have been
a breach by the state of
its section 7(2) obligation to protect and promote Mr Tsebe’s
right to life, right to human dignity
and right not to be treated or
punished in a cruel, inhuman and degrading way.
[127]
Having a home is very important to the dignity of
any person.  It would be inconsistent with the obligation to
protect and
promote the right of access to adequate housing if an
organ of state were to resort to the cancellation of a lease or the
eviction
of a lessee on the grounds of a breach of the lease without
first making an effort to try and avoid the cancellation or
eviction.
In my view, in such a case an organ of state should
only resort to the cancellation of the lease or to the eviction of
the lessee
as a measure of last resort and after affording the lessee
the opportunity of rectifying the breach.
[128]
If one accepts that an organ of state has an
obligation under section 7(2) to protect and promote everyone’s
section 26 right,
it seems to me that under the present
constitutional dispensation, such an organ of state cannot, simply
make a decision to cancel
the lease in the same way as it would have
done at common law.  In other words, it cannot simply adopt the
attitude that there
is a breach of the lease and, therefore, it is
entitled to cancel the lease and go ahead and cancel it.  That
is what the
City did in this case.  It became aware of what it
believed to be a breach of the lease by Ms Malan and, without first
raising
the issue with her or discussing it with her, or affording
her an opportunity to rectify the breach, decided to cancel the lease

and sent her a notice of cancellation.  That is what a landlord
would have done at common law in the absence of our Constitution
and
PIE.
[129]
Under the Constitution that is no longer enough.
Something more is required of an organ of state.  The question
that
arises is: what is that something more?  In my respectful
view, at a minimum what is required is that the organ of state, as
a
lessor, should raise the alleged breach with the lessee, discuss it
with him or her, hear his or her side of the story and give
him or
her the opportunity to rectify the breach before it can decide to
cancel the lease.  For convenience, I shall refer
to these steps
collectively simply as “the procedural steps” or
“procedural requirements”.
[130]
Although
the section 7(2) obligation of an organ of state means that an organ
of state may not simply cancel a lease in respect
of a home in the
same way as it could do at common law, it also does not mean that the
organ of state may not cancel a lease in
respect of a home when there
is a breach of the lease.  It only means that an organ of state
must delay exercising its right
to cancel the lease until it has
allowed for an opportunity for steps to be taken to avoid taking away
the lessee’s home
from her if at all reasonably possible.
In
Glenister
II
this
Court held that “implicit in section 7(2) is the requirement
that the steps the state takes to respect, protect, promote
and
fulfil constitutional rights must be reasonable and effective.”
[59]
In my view the procedural steps referred to above that the City
should have taken before it could make the decision to cancel
the
lease and seek to evict Ms Malan are all reasonable.
[131]
An
organ of state should, generally speaking, have no difficulty in
taking the procedural steps referred to above in order to protect
or
promote a lessee’s section 26 right in respect of a home.
It, therefore, seems to me that the cancellation of a
lease in
respect of a home by an organ of state without taking these steps is
a breach of its obligation to protect and promote
the lessee’s
section 26 right.  As Didcott J said in a different but relevant
context in
Sibiya
:
“The lawful exercise of the right depended on the way in which
it was exercised, on the procedure that was then followed.
In
the meantime the existing rights of the applicants remained
intact.”
[60]
Didcott J said this in respect of the Administrator’s exercise
of the right to terminate the contracts of employment
of the
applicants in that case on notice when viewed against the
Administrator’s obligation to afford them a hearing before
he
could exercise that right.
[132]
The City made the decision to cancel Ms Malan’s
lease without taking the procedural steps referred to earlier.
It was
not entitled to cancel the lease in those circumstances.
There is a suggestion that the City did give notice of the illegal

activities to Ms Malan by way of the letter of 31 October 2008.
This is not correct.  By writing her that letter, the
City was
not giving Ms Malan a notice of the illegal activities in order to
invite her to discuss the issue or in order to enable
her to take
steps to rectify the breach and avoid the cancellation of the lease.
The City referred to illegal activities
only to give Ms Malan one of
its reasons for the decision it had already taken to cancel the lease
and to instruct her to vacate
the property on 31 December 2008.
In any event, even if the contents of the letter did alert Ms Malan
to the illegal
activities, it was too late as the City had made its
final decision and the letter could not serve the purpose of giving
her the
opportunity to rectify the breach.  The horse had
already bolted.
[133]
It
is appropriate to invoke what Corbett CJ said in
Traub
[61]
in rejecting a contention that it was in compliance with the
audi
alteram partem
rule
that a meeting had been held, and, some representations had been
made, after the relevant decision had been taken.  The
learned
Chief Justice said:
“
Generally
speaking, in my view, the audi
[
alteram
]
principle
requires the hearing to be given before the decision is taken by the
official or body concerned, that is, while he or
it still has an open
mind on the matter
.
In
this way one avoids the natural human inclination to adhere to a
decision once taken.  Exceptionally, however, the dictates
of
natural justice may be satisfied by affording the individual
concerned a hearing after the prejudicial decision has been taken
.
This may be so, for instance, in cases where the party making the
decision is necessarily required to act with expedition,
or where for
some other reason it is not feasible to give a hearing before the
decision is taken.  But the present is, in
my opinion, not such
a case.  There is no suggestion that the decision whether or not
to appoint the respondents to the posts
applied for by them had to be
taken in a hurry: in fact all the indications are to the contrary.
Nor is there any basis for
concluding that for some other reason a
hearing prior to the decision was not feasible.”
[62]
(Citations omitted and emphasis added.)
[134]
No exceptional circumstances existed why the
decision to cancel the lease could not be delayed while the City took
the steps that
it was required to take before making such a
decision.  Indeed, it took the City about a year after it had
made that decision
before it instituted eviction proceedings in court
and nowhere does it even attempt to explain why it was so quick to
make the
cancellation decision if such a long time would lapse before
taking the matter further.
[135]
In any event the very formulation of the maxim:
audi alteram partem
makes
it clear that the opportunity to be heard should, generally speaking,
be before the relevant decision is taken.  In
Traub
,
Corbett CJ formulated the principle thus:
“
The
maxim expresses a principle of natural justice which is part of our
law.
The
classic formulations of the principle state that, when a statute
empowers a public official or body to give a decision prejudicially

affecting an individual in his liberty or property or existing
rights, the latter has a right to be heard before the decision is

taken . . .
,
unless
the statute expressly or by implication indicates the contrary
.”
[63]
(Citation omitted and emphasis added.)
[136]
Even if it cannot be said that section 7(2)
required the City to take the steps referred to above before it could
cancel the lease,
it seems to me that the requirement of justice and
equity provided for in section 4(7), (8) and section 6 of PIE
dictated that
the City should have taken those steps before it could
seek to have Ms Malan evicted.  Those provisions enjoin a court
dealing
with an eviction application to only grant an eviction order
if it is of the opinion that the eviction will be just and equitable

when regard is had to all the relevant circumstances of the case.
Absent its satisfaction that an eviction will be just and
equitable,
a court may not grant an eviction order.
[137]
A
court must be satisfied that an eviction will be just and equitable.
Some circumstances may render an eviction substantively
unjust and
inequitable, others procedurally unjust and inequitable.  That
the justice and equity requirement may have components
of a
substantive and procedural nature, even though they may not always be
easy to separate, was acknowledged by this Court in
Port
Elizabeth Municipality.
There
this Court made the point that “the procedural and substantive
aspects of justice and equity cannot always be separated”.
[64]
[138]
It may well be that, in the case of the eviction
of an unlawful occupier whose occupation has never been lawful, an
eviction might
not be substantively unjust and inequitable.
However, I think that, in a case such as the present, where the
occupation was
lawful for a long time, an eviction may well be
substantively unjust and inequitable.  The requirements of
procedural and
substantive fairness in respect of the termination of
contracts of employment are well known in our law.
[139]
I have difficulty with the proposition that the
City had no obligation to discuss the issue of illegal activities
with Ms Malan
before it could seek to evict her from her home of over
30 years on the basis that there were illegal activities taking place
on
the property.  In my view, absent exceptional circumstances,
which are not present in this case, the City was obliged to at
least
raise the issue with her, discuss it with her and give her an
opportunity to rectify the alleged breach.  Ms Malan’s

eviction from her home of over 30 years on the basis that she allowed
illegal activities to take place on the property cannot be
just and
equitable in a case where the City did not take these procedural
steps before such a decision.  The City never raised
its
complaint about illegal activities with her.  It never discussed
the matter with her and never gave her any opportunity
to take
whatever steps she could have taken to avoid losing her home.
To lose one’s job or one’s home must be
two of the most
traumatising experiences for anyone.  To lose either without
being afforded even the opportunity to discuss
the reason for losing
your job or home is, to say the least, procedurally unfair.
[140]
It is important that a court dealing with an
eviction application under PIE should appreciate its role and
function.  This
Court has already articulated that role in its
judgment in
Port Elizabeth
Municipality
.  It has said that—
(a)
that role is one of ensuring that “justice and equity
[prevails] in relation to all concerned.”
[65]
(b)
a court must “hold the balance between illegal eviction and
unlawful occupation.”
[66]
(c)
that role “is not to establish a
hierarchical
arrangement between different interests involved
,
privileging in an abstract and mechanical way the rights of ownership
over the right not to be dispossessed of a home or vice
versa.
Rather it is to balance out and reconcile the opposed claims in as
just a manner as possible taking account of all
the interests
involved and specific factors relevant in each particular case”.
[67]
(Emphasis added.)
(d)
the court “must take account of all relevant circumstances,
including the manner in which occupation was effected, its
duration
and the availability of suitable alternative accommodation or
land.”
[68]
(e)
“[i]t is the duty of the court in applying the requirements of
the Act
to
balance these opposing interests and bring out a decision that is
just and equitable.
”
[69]
(Emphasis added.)
(f)
the court is “called upon to decide whether, bearing in mind
the values of the Constitution, in upholding and enforcing
land
rights, it is appropriate to issue an order which has the effect of
depriving people of their homes.”
[70]
[141]
In
Port Elizabeth
Municipality
this Court also set out
some of the important principles or guidelines that must be taken
into account in determining whether an
eviction is just and
equitable.  Those that appear to be applicable to the present
matter are that—
(a)
“justice and equity require showing special concern when
settled communities or individuals are faced with being uprooted.

The longer the unlawful occupiers have been on the land, the more
established they are on their sites and in the neighbourhood,
the
more well settled their homes and the more integrated they are in
terms of employment, schooling and enjoyment of social amenities,
the
greater their claim to the protection of the courts.”
[71]
(b)
“justice and equity would take account of the extent to which
serious negotiations had taken place with equality of voice
of all
concerned.”
[72]
(c)
“[i]t is the duty of the court in applying the requirements of
the Act to balance these opposing interests and bring out
a decision
that is just and equitable”.
[73]
(d)
“[g]iven the special nature of the competing interests involved
in eviction proceedings launched under section 6 of PIE,
absent
special circumstances it would not ordinarily be just and equitable
to order eviction if proper discussions and, where appropriate,

mediation, have not been attempted.”
[74]
(e)
whether mediation has been tried is relevant to the question whether
an eviction order would be just and equitable.
[75]
(f)
whether the municipality has made attempts “to listen to and
consider the problems of [the occupier or occupiers]”.
[76]
In
Port
Elizabeth Municipality
this
Court found that the municipality had not made any attempts to listen
to and consider the problems of the particular group
of occupiers and
this was one of the important factors that persuaded this Court to
conclude that the eviction would not be just
and equitable.
[77]
(g)
section 26 of the Constitution 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
.
[78]
(h)
a “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.”
[79]
Application
of the above principles or guidelines
[142]
The
principle in paragraph 141(a) shows part of the purpose of PIE.
Under the Prevention of Illegal Squatting Act
[80]
(PISA) the law of eviction operated too unjustly against black people
and was over-protective of property owners who were, mostly,
white;
part of the purpose of PIE was to change this so as to strike a fair
balance between the interests of property owners and
those of
unlawful occupiers.  The principle in paragraph 141(b) that
justice and equity require showing special concern when
settled
communities or individuals are faced with being uprooted is relevant
to this case because the Malan family has been settled
on this
property for over three decades.  The principle or guideline in
paragraph 141(b) is to the effect that the longer
the unlawful
occupiers have been on the land, the greater their claim to the
protection of the courts.
[143]
The principle or guideline in paragraph 141(c) is
to the effect that taking into account the extent to which serious
negotiations
had taken place with equality of voice of all concerned
is required by considerations of justice and equity.  In
Port
Elizabeth Municipality
this Court
required compliance with this guideline or principle in a case where
the unlawful occupiers had never had the right to
occupy the land in
the first place.  It seems to me that, in a case such as the
present where the unlawful occupier’s
original entry into the
property was lawful and, indeed, in a case where, for three decades,
the unlawful occupier’s occupation
was lawful, this Court would
even be firmer in requiring compliance with this guideline.
[144]
In my view a situation cannot be allowed where the
owner of property cancels the lease, and seeks the eviction, of
someone who has
lived on the property lawfully for three decades
without even first having had any discussions or negotiations with
such a person
on the issue which is the reason for the cancellation
or eviction.  Such a person certainly deserves a better
treatment.
In the present case there was not even a single
attempt by the City to engage in any form of discussion or
consultation or negotiation
with Ms Malan despite the fact that she
had been a lawful occupier of the property for so long and despite
the fact that, by the
City’s own admission, she had never taken
part in the illegal activities that were a concern to the City.
[145]
The principle or guideline in paragraph 141(d) is
the overall principle governing the role of every court required to
decide whether
or not to grant an eviction order under PIE.
When all is said and done, the court must ask itself the question:
will an eviction
in this particular case and in these particular
circumstances be just and equitable?  If the answer is in the
negative, the
court may not grant an eviction order.  If the
answer is in the affirmative, it may grant an eviction order.
[146]
The principle or guideline in paragraph 141(e)
links up with the principle or guideline in 141(c).  The
principle in paragraph
141(e) is to the effect that, unless there are
special circumstances justifying the contrary, an eviction without
any attempt to
have proper discussions or, where appropriate,
mediation will ordinarily not be just and equitable.  In the
present case the
City made no attempts whatsoever to have any
discussions or negotiations with Ms Malan or to attempt mediation
before it took the
decision to cancel her lease and require her to
vacate her home.  In my view there were no special circumstances
that justified
the City’s failure to do so.
[147]
In considering whether Ms Malan’s eviction
would be just and equitable a number of factors need to be taken into
account.
These include that she had lived on the property for
over three decades as a lawful tenant, the City had never complained
to her
about the illegal activities, in the light of her age and poor
health, she may not have known the full extent of the illegal
activities,
the City accepts that she herself had not taken part in
the illegal activities and that she had been offered accommodation at
an
old-age home.  In my view the fact that she has been offered
accommodation at an old-age home would not outweigh all the other

factors because to live in one’s home and to live at an old-age
home are two vastly different things.  In any event
the terms
and conditions of living at the old-age home offered by the City are
not known as yet.
[148]
I have decided this matter on the basis that the
City was obliged to take the procedural steps referred to above
before it could
make the decision to cancel the lease and seek Ms
Malan’s eviction but failed to do so.  This is in line
with the jurisprudence
of this Court.  This is so because those
procedural steps form part of the content of the duty of engagement
that this Court
has articulated in a number of housing or eviction
cases.
[149]
In
Occupiers
of 51 Olivia Road
this
Court, following upon similar statements in
Grootboom
[81]
and
Port
Elizabeth Municipality
,
[82]
said:
“
The
Constitution therefore obliges every municipality to engage
meaningfully with people who would become homeless because it evicts

them”.
[83]
In
my view that duty of engagement is not limited to persons who would
be homeless once evicted.  There is no reason in principle
or
logic why it should be restricted in that way.  I also do not
think that this Court had intended to restrict the duty in
that way.
In my view the duty applies whenever a municipality becomes aware of
conduct or a state of affairs that may lead
to an eviction of a
person or people from their homes.  In any event, in the present
case, when the City decided to cancel
Ms Malan’s lease and seek
her eviction in 2008, it did not make any offer to accommodate her
anywhere.  That remained
the case for the next two years or so
because it was only when it filed its replying affidavits that it
made the offer to accommodate
her in an old-age home.
[150]
The duty of engagement that a municipality is
obliged to observe entails that the municipality should raise its
concerns with persons
whose eviction it may seek, discuss possible
solutions with them and try and find ways of accommodating their
concerns if it can
do so within its available resources.  That
falls squarely within the steps I have said above the City was
obliged to take
in this matter which it failed to take.  The
result is that my conclusion that the City was obliged to take the
procedural
steps to which I have referred above before it could
cancel Ms Malan’s lease or before it could require her to
vacate her
home can be explained on the basis of not only section
7(2) of the Constitution but also of a breach of its duty to engage
with
Ms Malan before it could seek her eviction from her home.
In this regard I understand the duty of engagement to also
form part
of the content of the requirement of justice and equity prescribed by
section 4(7), (8) and section 6 of PIE.
[151]
The connection between section 7(2) of the
Constitution and the City’s obligation to take the steps to
which I have referred
above finds support in the judgment of this
Court in
Occupiers of 51 Olivia Road
.
There this Court connected the section 7(2) obligation to respect,
protect, promote and fulfil rights in the Bill of Rights
with the
duty of engagement.  The Court said:
“
Most
importantly [the Municipality] must respect, protect, promote and
fulfil the rights in the Bill of Rights.  The most important
of
these for the present purposes is the right to human dignity and the
right to life.  In the light of these constitutional
provisions
a municipality that ejects people from their homes without first
meaningfully engaging with them acts in a manner that
is broadly at
odds with the spirit and purpose of the constitutional obligations
set out in this paragraph taken together.”
[84]
(Footnotes omitted.)
[152]
The facts suggest that, had the City raised the
issue of alleged illegal activities with Ms Malan prior to taking the
decision to
cancel the lease and require her to vacate the property,
Ms Malan may have taken steps to address the issue of the illegal
activities
in which some of her children allegedly took part.
That is that, subsequent to Ms Malan becoming aware of the City’s

decision to cancel her lease and to require her to vacate the
property, she increased her rental payments over the year of 2009.

Whereas, before the cancellation, she had not paid for at least the
five months before January 2009 when she received the letter
of
cancellation, the schedule of payments that she provided in her
answering affidavit reveals that, from January to December 2009,
she
effectively paid for all the months.
[153]
In conclusion I refer to how Ms Malan expressed
her attitude to finding herself in a situation where the City sought
to evict her
from her home because of the illegal activities
allegedly committed by, among others, her son, Shaun, without
discussing its concerns
with her in this regard.  She said:
“
The
fact of the matter is that the police seem hell-bent on having my son
arrested for whatever reason as they believe he is a gangster.
My
attitude is a simple one.  If the police produce the necessary
evidence, then the law must take its course.  But I
have never
and will never approve of illegal activities taking place in my
house.  This whole story seems like a ghost to
me and I do not
know what I am supposed to have done which has resulted in me facing
eviction from my home.  If this is how
the law operates in this
country then there is no point in living
”
.
(Emphasis added.)
In
my view our law does not operate in such a way that the City is
entitled to evict Ms Malan from her home without first raising

its concerns with her in order to enable her to rectify whatever
breach of the lease she may have committed and, thus avoid eviction.
[154]
In the premises Ms Malan’s eviction is not
just and equitable.  It seems to me that the High Court did not
take proper
account of all the above principles or guidelines as well
as the provisions of section 7(2) in coming to the contrary
conclusion.
I would allow the appeal, set aside the decision of
the High Court and replace it with an order dismissing the City’s
application
with costs.
For
the Applicant:
D
Stephens instructed by Mario Walters & Associates.
For
the Respondent:
N
Bawa and U K Naidoo instructed by Fairbridges Attorneys.
[1]
107
of 1997.
[2]
Part
1, Volume 1 of the National Housing Code of 2009.
[3]
For
example clause 17 provides that, in the event of breach by the
lessee of any term of the agreement, the lessor shall be entitled
to
cut off power supply to the leased property and that the lessee
shall not have any claim against the lessor “by reason
of the
cutting off of the supply of electricity as aforesaid”.
In terms of clause 19 “[t]he Lessee shall not,
without prior
written permission of the Lessor, allow any person other than those
set forth in his application to the Lessor
for this lease to occupy,
reside or sleep in the premises or in any part thereof”.
Clause 24 refers to “Bantu”
and “Bantu
beer”.
[4]
117
of 1998.
[5]
Cancellation
became effective on delivery of the cancellation letter to Ms
Malan.  See Christie
The
Law of Contract in South Africa
6
ed (LexisNexis, 2011) at 562.
[6]
The
eviction was sought in terms of section 4(7) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998
(PIE).
[7]
Clause
22(a) reads as follows:
“
The
Lessee shall not make any structural alteration to the premises, nor
shall he alter or in any way interfere with the electricity,
water
or drainage installations of the premises, nor shall he in any
manner whatsoever damage, deface or disfigure the walls,
ceilings,
doors, windows, floors or other wood, stone or iron work of the
premises.”
[8]
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at paras 56-8.
[9]
Christie
above n 5 at 535.
[10]
Barkhuizen
above
n 8.
[11]
Brisley
v Drotsky
[2002]
ZASCA 35
;
2002 (4) SA 1
(SCA);
2002 (12) BCLR 1229
(SCA) at paras
4-5.
[12]
Section
9(1)(a) of the Housing Act.
[13]
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 34.
[14]
I
say the latter position is tenuous because there is no guarantee
that, after the court’s exercise of discretion in terms
of
PIE, the erstwhile lessee will not be evicted from her home.
For the wording of section 26(3), see [3] above.
[15]
Section
26(1) appears in [3] above.
[16]
Unreported
judgment of the Western Cape High Court, Cape Town, case number
6914/2009.  It was submitted before us that in
this case the
court a quo was bound by the decision of the High Court.  It is
not apparent from the record whether in this
case, before the High
Court, the City placed as much reliance on clause 28 as it did
in this case.
[17]
Christie
above n 5.
[18]
Id.
[19]
Section
26(3).
[20]
Section
10 reads:
“
Everyone
has inherent dignity and the right to have their dignity respected
and protected.”
Section
1 provides that the Republic of South Africa is founded on values
that include human dignity.  Section 37 provides
that the
right to human dignity is entirely non-derogable, even in a state of
emergency.
[21]
This
waiting list has grown exponentially since the mid-1980s.  The
City says demand grows between 10 000 and 12 000
families
annually.  The City can only meet approximately half of this
increasing demand every year.
[22]
As
enshrined in section 26(1).
[23]
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
)
at para 1.
[24]
Id
at para 6.  Although that observation was made in the context
of the dire housing shortages in respect of Black Africans,
against
whom influx control measures had been directed, it admits of little
doubt that, as government strives to level the playing
fields and
battles to reduce the staggering backlogs, these historical
inequalities have affected people of all races in the
public rental
housing sector.
[25]
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) (
Port
Elizabeth Municipality
)
at para 10.
[26]
Section
152 reads as follows:
“
(1)
The objects of local government are––
(a)
to provide democratic and accountable government for local
communities;
(b)
to ensure the provision of services to communicate in a sustainable
manner;
(c)
to promote social and economic development;
(d)
to promote a safe and healthy environment; and
(e)
to encourage the involvement of communities and community
organisations in the matters of local government.
(2)
A municipality must strive, within its financial and administrative
capacity, to achieve the objects set out in subsection
(1).”
[27]
Section
153 reads as follows:
“
A
municipality must––
(a)
structure and manage its administration and budgeting and planning
processes to give priority to the basic needs of the community,
and
to promote the social and economic development of the community; and
(b)
participate in national and provincial development programmes.”
[28]
107
of 1997.
[29]
Section
9(1) reads:
“
Every
municipality must, as part of the municipality’s process of
integrated development planning, take all reasonable and
necessary
steps within the framework of national and provincial housing
legislation and policy to––
(a)
ensure that––
(i)
the inhabitants of its area of jurisdiction have access to adequate
housing on a progressive basis; [and]
(ii)
conditions not conducive to the health and safety of the inhabitants
of its area of jurisdiction are prevented or removed”.
[30]
At
[26].
[31]
At
[28].
[32]
At
[9].
[33]
At
[17].
[34]
At
[29].
[35]
Above
n 8.
[36]
Id
at para 59.
[37]
Joseph
and Others v City of Johannesburg and Others
[2009]
ZACC 30; 2010 (4) SA 55 (CC); 2010 (3) BCLR 212 (CC).
[38]
See
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008]
ZASCA 6
;
2008 (3) SA 371
(SCA) at para 13.
[39]
Clause
24, headed “Criminal Offences”, reads as follows:
“
In
the event of the Lessee or any other person, whether residing upon
the premises or not, being convicted of unlawfully selling,

supplying or possessing intoxicating liquor as defined in the Liquor
Act 30 of 1928, or Bantu beer as defined in the Bantu Beer
Act 63 of
1962, or dagga or any other habit-forming drug upon the premises or
in the event of the Lessee being convicted of any
offence under the
Arms and Ammunition Act 28 of 1937, the Tear Gas Act 16 of 1964, or
the Dangerous Weapons Act 71 of 1968, or
of assault in any form or
of any other offence involving violence, the Lessee shall be deemed
to have committed a breach of this
lease and the provisions of
Clauses 28 to 31 shall apply.”
[40]
Clause
28, headed “Default and Cancellation”, reads as follows:
“
If
the Lessee shall fail to pay the rent or any other charges or
amounts due under this lease punctually on due date or if he
shall
commit or permit any other breach of the conditions of this lease or
of any laws relevant thereto, this lease may be cancelled
forthwith
by the Lessor . . . and the fact of such cancellation shall be
conveyed to the Lessee by an order in writing under
the hand of the
Town Clerk which order shall require him to vacate the premises
forthwith and to give the Lessor quiet possession
thereof.
Such order may be delivered to the Lessee by:
(a)
handing it to him personally, or
(b)
handing it to some person apparently over the age
of sixteen years residing upon the premises, or
(c)
sending it by prepaid registered letter,
addressed to the Lessee at the premises, and in this event the
provisions of Clause 4
shall apply, or
(d)
by affixing it to the front door of the
premises.”
[41]
19
of 1998.
[42]
Section
4(8) reads as follows:
“
If
the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of
the unlawful occupier, and determine––
(a)
a just and equitable date on which the unlawful
occupier must vacate the land under the circumstances; and
(b)
the date on which an eviction order may be
carried out if the unlawful occupier has not vacated the land on the
date contemplated
in paragraph (a).”
[43]
Section
239 of the Constitution.
[44]
Section
6(1) reads as follows:
“
An
organ of state may institute proceedings for the eviction of an
unlawful occupier from land which falls within its area of

jurisdiction, except where the unlawful occupier is a mortgagor and
the land in question is sold in a sale of execution pursuant
to a
mortgage, and the court may grant such an order if it is just and
equitable to do so, after considering all the relevant

circumstances, and if––
(a)
the consent of that organ of state is required
for the erection of a building or structure on that land or for the
occupation
of the land, and the unlawful occupier is occupying a
building or structure on that land without such consent having been
obtained;
or
(b)
it is in the public interest to grant such an
order.”
[45]
Port
Elizabeth Municipality
above
n 25 at para 33.
[46]
Id.
[47]
Id.
[48]
At
[5].
[49]
121
of 1998.
[50]
Sections
38 and 48.
[51]
Mokgoro
J in
Jaftha
above
n 13 at para 21 relying upon
Grootboom
above
n 23 at para 83.
[52]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A) (
Plascon Evans
)
at 634E-635C.
[53]
Above
n 16.
[54]
Above
n 25 at para 56.
[55]
19
of 1998.
[56]
Above
n 25 at para 12.
[57]
Minister
of Home Affairs and Others v Tsebe and Others
[2012]
ZACC 16
;
2012 (5) SA 467
(CC);
2012 (10) BCLR 1017
(CC) (
Tsebe
).
[58]
The
other rights were his right to have his dignity respected and
protected as provided for in section 10 of the Constitution
and his
right not to be subjected to treatment or punished in a cruel,
inhuman or degrading way, provided for in section 12 of
the
Constitution.
[59]
Glenister
v President of the Republic of South Africa and Others
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) (
Glenister
II
)
at para 189.
[60]
Sibiya
and Another v Administrator, Natal and Another
1991
(2) SA 591
(D) (
Sibiya
)
at 593J.  This passage was quoted with apparent approval by the
Appellate Division in
Administrator,
Natal and Another v Sibiya and Another
[1992] ZASCA 115
;
1992
(4) SA 532
(A)
.
There,
the Appellate Division said at 538H-I:
“
The
[Administrator’s] right under the contract to give notice
terminating it cannot alter the fact that the decision to
give
notice palpably and prejudicially affected the rights of [the
workers].  In approaching the Court below, the [workers]
in no
way challenged the [Administrator’s] right to give them
notice.  They did no more than assert their claim to
be treated
in a procedurally fair manner before the [Administrator] exercised
such right.”
[61]
Administrator,
Transvaal and Others v Traub and Others
[1989] ZASCA 90
;
1989
(4) SA 731
(A) (
Traub
).
[62]
Id
at 750C-F.
[63]
Id
at 748G-H.
[64]
Above
n 25 at para 39.
[65]
Id
at para 13.
[66]
Id.
[67]
Id
at para 23
.
[68]
Id
at para 25
.
[69]
Id
at para 33.
[70]
Id
at para 32.
[71]
Id
at para 27.
[72]
Id
at para 30.
[73]
Id
at para 33.  It is not clear whether in making this point this
Court was simply recording a statement by Horn AJ
in
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter
and
Others
2000
(2) SA 1074
(SE) or it was making this statement itself.
However, if it was recording a statement by Horn AJ, I think it was
doing
so with approval.
[74]
Id
at para 43.
[75]
Id
at para 45.
[76]
Id
at para 59.
[77]
Id.
[78]
Jaftha
above
n 13 at para 28.
[79]
Port
Elizabeth Municipality
above
n 25 at para 39.
[80]
52
of 1951.
[81]
Above
n 23.
[82]
Above
n 25.
[83]
Occupiers
of 51 Olivia Road and 197 Main Street, Johannesburg v City of
Johannesburg
[2008]
ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) (
Occupiers
of 51 Olivia Road
)
at para 18.
[84]
Id
at para 16.