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[2016] ZACC 20
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Pheko and Others v Ekurhuleni Metropolitan Municipality and Others (No 3) (CCT19/11) [2016] ZACC 20; 2016 (10) BCLR 1308 (CC) (26 July 2016)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 19/11
In the matter
between:
NTHABISENG
PHEKO
First Applicant
OCCUPIERS OF BAPSFONTEIN
INFORMAL
SETTLEMENT
776 Further Applicants
and
EKURHULENI METROPOLITAN
MUNICIPALITY
First Respondent
EXECUTIVE MAYOR OF
EKURHULENI
METROPOLITAN
MUNICIPALITY
Second Respondent
MUNICIPAL MANAGER OF
EKURHULENI
METROPOLITAN
MUNICIPALITY
Third Respondent
MEMBERS OF THE EXECUTIVE
COUNCIL FOR
HUMAN SETTLEMENTS,
GAUTENG
Fourth Respondent
HEAD OF THE DEPARTMENT
OF HUMAN
SETTLEMENTS FOR
EKURHULENI
METROPOLITAN
MUNICIPALITY,
DEVRAJ CHAINEE
N.O.
Fifth Respondent
and
SOCIO-ECONOMIC RIGHTS
INSTITUTE OF SOUTH
AFRICA
Amicus Curiae
Neutral
citation:
Pheko
and Others v Ekurhuleni Metropolitan Municipality and Others (No 3)
[2016] ZACC 20
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Nkabinde J, Nugent AJ, Van der Westhuizen J,
and Zondo J
Judgment:
Nkabinde J (unanimous)
Decided on:
26 July 2016
Summary:
Interlocutory application following
Pheko
I
— disputed facts of technical nature — discharge of
supervisory jurisdiction — referral to High Court —
oral
evidence — declaration of unlawfulness not discharged
ORDER
Interlocutory
application for referral of the matter to the High Court of South
Africa, Gauteng Division, Pretoria:
1.
Condonation is granted.
2.
Paragraphs 6 to 8 of the order in
Pheko I
are discharged.
3.
The matter is transferred to the High Court of South Africa, Gauteng
Division,
Pretoria to—
3.1
determine issues relating to the identification of suitable
alternative land in the vicinity
of Bapsfontein for the Mayfield
Community;
3.2
supervise the relocation of the Mayfield Community; and
3.3
supervise the housing project for the N12 Highway Park Community as
described in the reports
filed on 30 November 2014 by the Ekurhuleni
Metropolitan Municipality.
4.
The Judge President of the High Court of South Africa, Gauteng
Division, Pretoria,
is asked to allocate this matter to a Judge or
Judges for the purposes of case management and its expedient hearing.
5.
The Municipality is ordered to pay the applicants’ costs
including costs
of two counsel and the qualifying fees of Professor
Mark Oranje.
6.
The Registrar of this Court is directed to send the copy of this
judgment to
the Registrar of the High Court of South Africa, Gauteng
Division, Pretoria.
JUDGMENT
NKABINDE J (Mogoeng
CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Nugent
AJ, Van Der Westhuizen J and Zondo J concurring):
Introduction
[1]
Supervisory orders arising from
structural interdicts ensure that courts play an active monitoring
role in the enforcement of orders.
In an appropriate case, this
guarantees commitment to the constitutional values of accountability,
responsiveness and openness
by all concerned, in a system of
democratic governance. By granting the structural interdict a
court secures a response in
the form of reports and thereby prevents
a failure to comply with the positive obligations imposed by its
order. Generally,
the court’s role continues until the
remedy it has ordered in a matter has been fulfilled.
[2]
In this application for
interlocutory relief the applicants ask this Court, among other
things, to relinquish its supervisory jurisdiction.
The issues
include whether the matter should be referred to the Gauteng Division
of the High Court, Pretoria
(High Court)
for that Court to deal with questions arising from the decision of
this Court in
Pheko I
.
[1]
Should this Court favour referral, the questions are what the
referral terms will entail and whether it would be in the interests
of justice to discharge the order of supervisory jurisdiction.
The Municipal respondents do not oppose the referral but oppose
the
terms of the discharge and referral of the order of supervisory
jurisdiction. The amicus curiae opposes the application
for
referral.
Parties
[3]
The applicants are the former
residents of the Bapsfontein Informal Settlement (Bapsfontein
settlement). They have no secure
land tenure. The first
respondent is the Ekurhuleni Metropolitan Municipality (Municipality)
in whose area the settlement
is situated. The second, third and
fifth respondents, the Executive Mayor, Municipal Manager, and Head
of the Department
for Human Settlements, respectively, were joined to
these proceedings. Collectively, they are referred to as the
Municipal
respondents. The fourth respondent is the Member of
the Executive Council for Human Settlements (MEC). The
Socio-Economic
Rights Institute of South Africa (SERI) continues to
be a friend of the Court (amicus curiae). The parties were
invited to
make written submissions and the Court has decided the
issues without oral hearing.
Background
[4]
This matter has a long history.
The applicants were removed forcibly from Bapsfontein settlement.
Their properties were
demolished and they were relocated by the
Municipality to a far-off area. This happened after Bapsfontein
settlement was
declared a disaster area in terms of the Disaster
Management Act.
[2]
Subsequently, the applicants unsuccessfully sought urgent
interlocutory relief against the Municipality in the High Court.
In a successful application for leave to appeal directly to this
Court the applicants challenged the decision of the High Court.
This Court granted the following order:
“
In
the event, the following order is made:
1.
Condonation is granted.
2.
Leave to appeal directly to this Court is
granted.
3.
The appeal is upheld.
4.
The order of the North Gauteng High Court,
Pretoria under Case No 5394/11 is set aside.
5.
It is declared that the removal of the
applicants from their homes, the demolition of the homes, and their
relocation by the Ekurhuleni
Metropolitan Municipality were unlawful.
6.
The Municipality must identify land in the
immediate vicinity of Bapsfontein for the relocation of the
applicants and engage meaningfully
with them on the identification of
the land.
7.
The Municipality must ensure that the
amenities provided to the applicants and people resettled in terms of
this order are no less
than the amenities and basic services provided
to them as a result of the relocation of March 2011.
8.
The Municipality must file a report in this
Court confirmed on affidavit by no later than 1 December 2012
regarding steps taken
in compliance with paragraph 6 of this order to
provide access to adequate housing for the applicants.”
[5]
Several expert reports were filed by
the parties after which further disputes arose. It is necessary
to mention, in some detail,
the contents of these reports to
appreciate the alleged resultant dispute of facts between the
parties.
[6]
The first report, filed on 30
November 2012, was by the Municipality. It detailed the
consultation the Municipality had with
the members of the Bapsfontein
settlement, and set out the land identified: namely, the Daveyton
Farm (73 IR), portions of Putfontein
Farm (26 IR) and certain erven
within the Mayfield Extensions 9 and 10. One community,
the Mayfield Community, agreed
to occupy the identified land on
condition that they were allocated permanent houses with running
water and sewage but this was
problematic for the Municipality
because of land uses planning concerns.
[3]
The report indicated that the other group, the N12 Highway Park
Community, was willing to be relocated to the identified
land.
The land was to be tested and confirmed to be safe before relocation
could take place. The identified land, which
is privately
owned, was not expected to have a high susceptibility to sinkhole
formation.
[7]
The Mayfield Community filed its own
expert reports on 7 July 2014 (SA1 report and SA2 report). In
the SA1 report of the Council
for Geoscience (Council), Dr Stewart
Foya did not comment on the Municipality’s report about the
suitability of any
of the land close to Bapsfontein that could be
considered safe to accommodate the Mayfield Community. The
report recommended
that a dolomite investigation in accordance with
“SANS 1936” should be conducted.
[4]
In the SA2 report, Dr Foya identified three pockets of land that the
Council considered suitable: land 2.5 km from the main
crossing in
Bapsfontein; the entire area north and east of the West Park
Agricultural Holdings; and the area south of the R50 road
(to Delmas)
and east of the R51 road. These areas were to be proven
suitable after a detailed dolomite investigation conducted
in
accordance with SANS 1936.
[8]
The other report commissioned by the
Mayfield Community was by Professor Mark Oranje. He could not
comment on the Municipality’s
report regarding the
impossibility of providing bulk services on the identified land by
the Mayfield Community because the Municipality
had not provided
information on the identified land. He recommended that the
Municipality should, (a) quantify the risk to
the community should it
choose to settle on the identified land; and (b) detail the costs of
providing: (i) engineering services
to the identified land; and (ii)
services in relation to budget and administrative capacity of the
Municipality.
[9]
The Municipality filed another
report concerning issues connected with the relocation of the N12
Community. It mentioned constraints
in making full use of the
surface on the land identified. It predicted that about 910
housing units could be placed on Portions
52-4 including the costs of
bulk services installations
[5]
and providing internal services per unit.
[6]
The report also recommended a geotechnical evaluation in respect of
Portions 52-4 and that further negotiations should be
conducted with
the registered owners of those Portions to purchase the land.
Regarding Portions A to G,
[7]
a survey of the existing electricity transmission lines was to be
completed and the borrow pits measuring 3ha in Portion B were
to be
assessed by a civil engineer for the viability of the backfill and
compaction of the area. And the geotechnical assessment
was to
be completed for the areas.
[10]
On 12 January 2015 the Municipality
filed a report addressing issues raised by Professor Oranje regarding
the quantification of
risk, costs and impact of providing bulk and
link engineering and impact on the budget and capacity. In that
report the Municipality
assessed the dolomite risk management and
safety as high. It reported the closest bulk water and sewer
link to be approximately
10 km and 15 km away, respectively.
The costs in respect of both are estimated at R580 million and those
in respect of the
internal engineering were estimated at 60% of the
cost necessary to provide bulk services.
[8]
The costs of the necessary dolomite stability investigation and
compilation of the dolomite stability report are estimated
at R1.8
million and the costs of undertaking a SANS 1936 feasibility stage
dolomite stability investigation is estimated at R1.17
million.
The report stated that the costs in respect of bulk and link
engineering services and amenities would be enormous
and that
provision of bulk and internal services to one community may impact
negatively on other communities.
[11]
The Municipality’s report does
not support the Council’s analysis in relation to the third
area (south of the R50 road
and east of the R51 road). It
stated that the problem zone is below the groundwater rest level with
the result that sub-areas
may present a high susceptibility to
sinkhole or subsidence formation
[9]
from a groundwater level. It mentioned that all the identified
three areas are situated on privately owned agricultural land.
The Municipality recommended that a dolomite stability investigation
be conducted in respect of the first area and that if it is
underlain
at depth by dolomite, the inherent hazard class should be established
in accordance with SANS 1936.
[12]
Simultaneously with the filing of a
further report on 21 April 2015, in response to both reports by the
Municipality, the applicants
filed this interlocutory application.
They asked for an order—
(a)
condoning the late filing of the report in
relation to the portion of the Municipality’s report dealing
with the N12 Community;
(b)
remitting the matter to the High Court for
that Court to deal with—
(i)
the implementation of the housing project for the N12 Community as
per the report
filed by the Municipality on 30 November 2014 and
12 January 2015; and
(ii)
all issues relating to the identification of suitable alternative
land in the vicinity
of Bapsfontein and implementation of an
appropriate relocation project for the Mayfield Community as
described in the various reports
on behalf of the parties; and
(c)
directing the Municipality to pay all costs
not already granted by this Court including costs of two counsel and
the qualifying
costs of Professor Oranje.
[13]
In directions issued by the Chief
Justice, the parties were directed to file written submissions on the
terms of referral and whether
the interests of justice favour a
discharge of the order of supervisory jurisdiction.
[14]
The applicants’ basis for the
referral is that the implementation of the housing project would be
best monitored by the High
Court because it will be a multi-year
project and also that there are disputes of fact and technical
disputes in respect of the
Bapsfontein relocation. The disputes
were not identified in the affidavits. This prompted further
directions by the
Chief Justice in which the parties were asked to
file submissions identifying the disputes. These disputes
relate to whether
the preferred site is suitable for development,
whether the costs of developing the preferred site are proportionate
to the benefit
to the Mayfield Community and whether there has been
sufficient engagement with the Mayfield Community and the broader
Bapsfontein
Community.
[15]
The respondents did not oppose the
referral back to the High Court. They accept that it will be in
the interests of justice
that the opposing standpoints adopted by the
parties be fully ventilated in an open court. The respondents
submitted that
the most convenient forum is the High Court.
They argued that, whilst the demand of the Mayfield Community is
unreasonable
in the circumstances and pursued for self interest,
oral evidence will address the applicants’ belief that the
respondents
allegedly acted in bad faith.
[16]
The parties’ proposed terms of
referral differ markedly. In their written submissions the
applicants, in deviating from
the prayers in their notice of motion,
asked this Court to appoint a fact-finding commission or referee in
terms of section 7(1)
of the Constitutional Court Complementary
Act
[10]
or section 38 of the Superior Courts Act
[11]
to address the factual disputes and report back to this Court. They
submitted that it would be in the interests of justice
to refer the
matter “where the original terms of the supervisory order need
to be reassessed or need to be underpinned by
further evidence”.
The applicants stated that this is so because of the factual and
technical disputes which have arisen.
They said that this Court
has already exercised its own supervisory jurisdiction to the point
where it is no longer just and equitable
to do so. The
applicants proposed certain options open to this Court.
[12]
[17]
The respondents oppose the orders in
the proposed options by the applicants. They submitted that the
suggested options raise
issues outside of what the applicants
mentioned in the notice of motion and go beyond the case they were
called to answer.
The respondents suggested an order this Court
may make.
[13]
They said that in light of the difficulties that have arisen with
regard to the implementation of this Court’s order
of 6
December 2011, this Court should not relinquish its supervisory
jurisdiction over the matter. They submitted that the
supervisory order should not be discharged. They proposed an
order that—
“
1.
[a]ll affidavits which shall be filed in the High Court in terms of
this order shall also be filed
with the Registrar of this Court for
purposes of supervision of compliance with this order.
2.
This Court shall at any time issue such supervisory directives as it
may deem
necessary to ensure compliance with this order.”
[18]
The amicus curiae submitted that
there are no disputes of fact that warrant remittal. It is
opposed to this Court’s
relinquishment of its supervisory
jurisdiction.
[19]
To recap, in the order of 6 December
2011 this Court declared that the removal of the applicants from
their homes, the demolition
of the homes, and their relocation by the
Municipality were unlawful.
[14]
The Court ordered the Municipality to “identify land in the
immediate vicinity of Bapsfontein for the relocation of
the
applicants and engage meaningfully with them on the identification of
the land”.
[15]
Further, the Municipality was ordered to “file a report in this
Court confirmed on affidavits . . . regarding steps
taken in
compliance with paragraph 6 of the order to provide access to
adequate housing for the applicants”.
[16]
And the applicants were afforded an opportunity to file affidavits in
response to the Municipality’s report.
Following the
Pheko I
order, several expert reports and affidavits have been filed by the
parties.
[17]
[20]
On examination of the reports the
dilemma is this: The Municipality has identified three portions of
land that are dewatered dolomite.
The portions are state owned,
zoned residential and are within the municipal “urban edge”.
On the applicants’
estimation, they are between 20 to 30 km
away from Bapsfontein settlement, the original site. The
Mayfield Community submitted
that the distance is not in compliance
with this Court’s order because the pieces of land are not in
the “immediate
vicinity” of Bapsfontein. They view
the Municipality’s assertion that it is impossible to identify
viable land
in the “immediate vicinity” of Bapsfontein as
a refusal to comply with the order in
Pheko
I
.
[21]
The applicants (Mayfield Community)
have identified land in the “immediate vicinity” of
Bapsfontein settlement.
That land is zoned agricultural and is
under a seven-year lease to a farmer. The Municipality has set
out extensive evidence
that the land identified by the applicants is
likely to be found to be dolomitic and that the costs of providing
services on the
land will be prohibitive.
Issues
[22]
Issues for determination are—
(a)
whether this Court should discharge its
supervisory jurisdiction;
(b)
whether the matter should be referred to
the High Court or whether a fact-finding commission should be
appointed; if so,
(c)
what the terms of referral should be; and
(d)
whether costs not previously awarded,
including the qualifying costs of Professor Oranje, should be
determined by the High Court.
Discharge of the order
in Pheko I
[23]
It needs to be stressed that the
remedy in
Pheko I
had both declaratory and structural relief components. The
applicants submitted that the orders in paragraphs 5 to 8
[18]
of the order in
Pheko I
should be discharged. In paragraph 5 of the order, this Court
declared the removal of the applicants from their homes and
the
demolition of their homes and their relocations unlawful. This
“softer”
[19]
relief was considered to be “appropriate”
[20]
because the Court found that the applicants’ right under
section 26 of the Constitution was violated. The Court held
that the Municipality has an obligation
[21]
to provide the applicants with suitable temporary accommodation.
In
Fose
[22]
this Court said:
“
Appropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstance
of each
particular case the relief may be a declaration of rights, an
interdict, a mandamus or such other relief as may be required
to
ensure that the rights enshrined in the Constitution are protected
and enforced. If it is necessary to do so, the courts
may even
have to fashion new remedies to secure the protection and enforcement
of these all important rights.”
[23]
[24]
Evidently, paragraph 5 of the
original order does not form part of the structural interdict.
Its discharge will cause irreparable
prejudice to the applicants
because it will imperil the effectiveness of the relief that was
granted to guarantee the protection
of their right in terms of
section 26(3) of the Constitution.
[24]
The declaratory relief benefitted the applicants as it obliged the
Municipality to comply with its constitutional obligation
of
providing access to adequate housing for them.
[25]
In
Treatment
Action Campaign
[25]
this Court remarked:
“
Where
a breach of any right has taken place, including a socio-economic
right, a court is under a duty to ensure that effective
relief is
granted. The nature of the right infringed and the nature of
the infringement will provide guidance as to the appropriate
relief
in a particular case. Where necessary this may include both a
mandamus
and the exercise of a supervisory jurisdiction.”
[26]
[26]
The declaratory component of the
order in
Pheko I
should thus not be discharged.
[27]
The structural interdict is, by its
nature, a much more interventionist remedy than declaratory
relief.
[27]
In relation to that component of the remedy, this Court ordered the
Municipality, among other things, to—
“
identify
land . . . for the relocation of the applicants and engage
meaningfully with them on the identification of land; . . .
ensure
that amenities provided to the applicants . . . are no less than the
amenities and basic services provided to them . . .
; [and to] file a
report . . . regarding steps taken . . . to provide access to
adequate housing for the applicants.”
[28]
The Municipal respondents’
opposition to the discharge of the structural interdict is based on
the difficulty in implementing
the order in
Pheko
I.
They urged this Court not to
discharge the order of supervisory jurisdiction. The Municipal
respondents submitted that
this Court could refer the matter while
retaining supervisory jurisdiction in respect of paragraphs 6 to 8 of
Pheko I
.
The MEC was opposed to this bifurcated supervision.
[29]
The bifurcated supervision is not
pragmatic. It will result, impermissibly, in a piecemeal
consideration of the issues.
[28]
Any attempt by this Court to supervise the implementation of the
proposed housing scheme while the High Court exercises oversight
over
it may result in this Court being enmeshed in disputes on technical
issues that are best suited to be determined by
the High Court.
[30]
As the terms of referral
[29]
are limited to the structural relief of the order in
Pheko
I
, I think that that component of the
order should be discharged. The discharge will give the High
Court full authority to
consider the technical evidence in the
reports and hear oral evidence (a) pertaining to the implementation
of the housing project
for the N12 Community as per the reports filed
by the Municipality on 30 November 2014 and 12 January
2015; (b) relating
to the identification of suitable alternative land
in the vicinity of Bapsfontein; and (c) regarding the implementation
of an appropriate
relocation project for the Mayfield Community as
described in the various reports on behalf of the parties. This
component
of the relief in
Pheko I
should thus be discharged and this will be reflected in the order.
Referral to the High
Court
[31]
In the main application, this Court
dealt with constitutional issues of importance concerning the
unlawful removal of the applicants
from, and demolition of, their
homes. It granted the structural interdict requiring the
Municipality to take certain steps
under this Court’s
supervision. This Court still retains its jurisdiction.
[32]
Section 172(1)(b)
[30]
of the Constitution confers upon this Court broad remedial powers.
Section 38(1) of the Superior Courts Act also entitles
this Court,
with the consent of the parties, to refer any matter for enquiry and
report to a referee.
[31]
This section also affords a court a wide discretion. A court
exercising a discretion in terms of section 38(1) may
adopt any of
the courses provided for in the section.
[33]
Although the applicants initially
sought an order of referral to the High Court, in their written
submissions they said that a referee
or a fact-finding commission be
appointed in terms of section 7(1) of the Constitutional Court
Complementary Act or in terms of
section 38 of the Superior Courts
Act
[32]
to address the factual disputes that have arisen.
[33]
In their further submissions the applicants, asked for the
establishment of a fact finding commission.
[34]
The volte-face is prejudicial to the respondent and is
impermissible as the Municipality and further respondents were not
called to meet this case.
[35]
[34]
The rules of Court make provision
for a referral in order to hear oral evidence.
[36]
This procedure is often resorted to in practice. The
circumstances of a particular case may on occasion not require
the
referral to oral evidence. A court may reach a conclusion on
the papers.
[37]
Here, the parties have agreed that the matter should be referred to
the High Court for it to deal with the factual dispute
emerging from
the expert reports that were filed following the order in
Pheko
I
.
[38]
[35]
The disputed facts
[39]
are of a technical nature and require oral evidence of expert
witnesses. Needless to say, the expert evidence in relation
to
the geotechnical evaluation and the civil engineer’s assessment
of the viability of the identified land is of a technical
nature and
will require extensive examination before any findings can be made on
the implementation of the housing project for
the applicants.
The evidence of specialist expertise in relation, among other things,
to the suitability of the land earmarked
by the applicants and the
budgetary consequences necessitates the ventilation of the issues in
the High Court.
[36]
It follows that the issues are
incapable of being resolved on the papers by this Court. The
referral will allow this Court
to avoid sitting as a court of first
and final instance in the resolution, at an interlocutory stage of
litigation, of conflicting
expert evidence on affidavits. It
will ensure that evidence is brought before the High Court regarding
the disputed facts.
[37]
Accordingly, it is in the interests
of justice to refer this matter to the High Court.
Terms of referral
[38]
In the notice of motion the
applicants sought referral to the High Court to enable it to deal
with—
(a)
the implementation of the housing project
for the N12 Community as per the report filed by the Municipality on
30 November 2014
and 12 January 2015; and
(b)
the issues relating to the identification
of suitable alternative land in the vicinity of Bapsfontein and
implementation of an appropriate
relocation project for the Mayfield
Community as described in the various reports on behalf of the
parties.
[39]
However, in the written submissions
the applicants suggested different terms of referral.
[40]
These include whether non-compliance with this Court’s
order dated 6 December 2011 can be sustained on the basis
of a
plea of impossibility or on the basis of being financially
unfeasible.
[41]
The applicants also asked for a bifurcated filing of reports both to
this Court and the High Court. They proposed an
order
discharging not only the structural relief in paragraphs 6 to 8 of
the order in
Pheko I
but also the order declaring the conduct of the Municipality
unlawful.
[40]
The respondents’ suggested
terms of referral
[42]
are generally in line with the relief sought in the notice of motion
by the applicants. The terms include a referral to the
High
Court for the resolution of the issues including the identification
of suitable alternative land in the vicinity of Bapsfontein
for the
relocation of the applicants and implementation of the housing
project for the N12 Highway Park Community as described
in the
reports filed in this Court.
[41]
In my view, the terms of referral
should be limited to the structural relief granted in paragraphs 6 to
8 of the order in
Pheko I
.
[43]
Costs
[42]
The applicants urged this Court to
determine costs not previously awarded by this Court. It is not
clear from the affidavit
which costs the applicants are referring to
but one assumes that they are referring to the qualifying fees of the
expert reports,
the Council and Professor Oranje. There is no
reason why the Municipality should not be ordered to pay these costs.
Condonation
[43]
The applicants sought condonation
for the delay in filing their expert report in relation to the
portion of the Municipality’s
report of 30 November 2014
dealing with the N12 Community. The applicants explain that
that report is comprehensive and provides
for proper serviced stands
with housing structures thereon. As a result, so it is
contended, they do not take issue with
that report and the
Municipality’s project in that regard. They maintain that
the Municipality should timeously comply
with its own plan. It
is for these reasons that they did not file a report as envisaged in
this Court’s order of 28
August 2014.
[44]
The applicants explained that, in
relation to the Mayfield Community, they awaited the Municipality’s
second report on the
more contentious and complicated issues
regarding the relocation of the Mayfield Community. They
received the second report
on 12 January 2015 and forwarded it to
Professor Oranje. The Court did not specify the date for any
response to the second
report. The applicants said that they
therefore assumed that the response was to be made within a
reasonable time.
They accepted that there have been some delays
in filing Professor Oranje’s report. They explain that
Professor Oranje
was outside of the country for the first half of
March 2015 and that they had further consultations with him in
the third
week of March 2015. His final report was sent on 30
March 2015.
[45]
The respondents do not oppose the
granting of condonation. The explanation for the delay is
acceptable. The respondents
have suffered no prejudice. I
would condone the delay in filing Professor Oranje’s report in
response to the Municipality’s
report pertaining to the
Mayfield Community.
Order
[46]
The following order is made:
1.
Condonation is granted.
2.
Paragraphs 6 to 8 of the order in
Pheko I
are discharged.
3.
The matter is transferred to the High Court of South Africa Gauteng
Division,
Pretoria to—
3.1
determine issues relating to the identification of suitable
alternative land in the vicinity
of Bapsfontein for the Mayfield
Community;
3.2
supervise the relocation of the Mayfield Community; and
3.3
supervise the housing project for the N12 Highway Park Community as
described in the reports
filed on 30 November 2014 by the
Ekurhuleni Metropolitan Municipality.
4.
The Judge President of the High Court of South Africa, Gauteng
Division, Pretoria,
is asked to allocate this matter to a Judge or
Judges for the purposes of case management and its expedient hearing.
5.
The Municipality is ordered to pay the applicants’ costs
including costs
of two counsel and the qualifying fees of Professor
Mark Oranje.
6.
The Registrar of this Court is directed to send the copy of this
judgment to
the Registrar of the High Court of South Africa, Gauteng
Division, Pretoria.
For the Applicants:
C R Jansen
SC, M A Dewrance and M Bishop instructed by Gilfillan
Du Plessis Inc
For the First, Second,
Third
and Fifth
Respondents:
N Cassim SC, K Tsatsawane and M Sibanda
instructed by Khoza and
Associates Inc
For the Fourth
Respondent: S Kazee instructed by the State Attorney,
Johannesburg
For the Amicus
Curiae: S Wilson and
I De Vos instructed by SERI Law Clinic
[1]
Pheko and Others v Ekurhuleni Metropolitan
Municipality
[2011] ZACC 34
;
2012 (2)
SA 598
(CC);
2012 (4) BCLR 388
(CC) (
Pheko
I
).
[2]
57 of 2002.
[3]
The report provides the following at paragraph
55:
“
The
Mayfield Community Committee, however, expressed that they would be
willing to occupy the land on condition that they were
allocated
permanent houses with running water and sewage. This poses a
problem for the Municipality since there are land
use planning
activities that are still outstanding and land acquisition process
that need to be finalised (willing sellers).
Further, there is
a long list of persons that are awaiting permanent houses. The
group cannot jump the queue.”
[4]
The investigation in accordance with SANS 1936
involved the drilling of percussions boreholes in order to determine
the possibility
of hazardous sinkholes forming.
[5]
These costs amounted to approximately R2 687 000
for Portions 52-4.
[6]
These costs amounted to about R32 550 000.
[7]
Portions A to E being the remainder of farm
Daveyton 73 IR and Portions F and G being Portions 266 and 103 of
Putfontein 26 IR
respectively.
[8]
That is to say, approximately R348 million.
The Municipality states that these costs are difficult to quantify.
[9]
That is a sinking to low or lower level
formations of the earth surface.
[10]
13 of 1995. This Act has been repealed by
the
Superior Courts Act 10 of 2013
.
[11]
10 of 2013. In relevant parts, section 38
of the Superior Courts Act reads:
“
(1)
The Constitutional Court . . . may with the consent of the
parties,
refer—
(a)
any matter which requires extensive examination of documents or
a
scientific, technical or local investigation which in the opinion of
the court cannot be conveniently conducted by it; or
. . .
.
(b)
any other matter arising in such proceedings,
for
enquiry and report to a referee appointed by the parties, and the
court may adopt the report of any such referee, either wholly
or in
part, and either with or without modifications, or may remit such
report for further enquiry or report or consideration
by such
referee, or make such other order in regard thereto as may be
necessary or desirable.”
[12]
The two options are:
“
Option
A
28.
The matter is referred back to the Gauteng Division of the High
Court,
Pretoria, for determination of the following issues:
28.1
whether the non-compliance with this [C]ourt’s order dated
6 December
2011 can be sustained on the basis of a plea of
impossibility or on the basis of being financially unfeasible;
28.2
the further implementation of the order of this [C]ourt in the event
that the court
a quo finds that compliance with the order of
6 December 2011 is possible and financially feasible;
28.3
in the event that the High Court should find that the implementation
of that order
is impossible or financially unfeasible, that such
amendment to the order be made as is appropriate and that the
further implementation
and supervision of this [C]ourt’s order
take place in accordance with the judgments in
Pheko I
and
Pheko II
.
29.
The further conduct of the matter shall be determined in terms of
the
rules, processes and practice directives of the High Court.
30.
The Judge President of the Gauteng Division of the High Court,
Pretoria,
is requested to allocate the matter to a Judge for the
purposes of case management and the expedient hearing of the matter.
31.
The reporting requirements of this [C]ourt in the order of 6
December
2011 must be read to require the appropriate reporting
periods before the High Court. All reports filed before the High
Court
must simultaneously be filed with this [C]ourt.
32.
The first respondent is to pay the costs of the applicants not
previously
awarded in this [C]ourt, such costs to include the costs
of two counsel as well as the qualifying fees of the expert evidence
of Professor Oranje.”
Option
B entails the handing over of this Court’s supervisory
jurisdiction to the High Court, without retaining oversight.
It reads:
“
33.
The contents of paragraph 5 to 8 of this Court’s order of 6
December 2011
is discharged.
34.
The order of the High Court is substituted with the following order:
34.1
[I]t is declared that the removal of the applicants from their
homes, the demolition
of their homes and their relocation by the
Ekurhuleni Metropolitan Municipality were unlawful;
34.2
The [M]unicipality must identify land in the immediate vicinity of
Bapsfontein
for the relocation of the applicants and engage
meaningfully with them on the identification of land;
34.3
[T]he Municipality must ensure that the amenities provided to the
applicants and
people resettled in terms of this order are no less
than the amenities and basic services provided to them as a result
of the
relocation of March 2011.
34.4
The reports and expert evidence filed before this [C]ourt since the
order of 6 December
2011 shall be deemed to form part of the
High Court record.
35.
The non-compliance by the Municipality with the order of 6 December
2011 must be further adjudicated by the High Court, considering the
content of the judgments of this [C]ourt of 6 December 2011
and 7
May 2015.
36.
The Judge President of the High Court is requested to allocate a
Judge
to this matter for further adjudication of the question
whether the non-compliance with the order of 6 December 2011 can be
legally
justified.
37.
The first respondent is to pay the costs of the applicants not
previously
awarded in this [C]ourt, such costs to include the costs
of two counsel as well as the qualifying fees of the expert evidence
of Professor Oranje.”
[13]
The order suggested by the respondents reads:
“
1.
The matter is referred back to the Gauteng Division of the High
Court, Pretoria to resolve the following issues—
1.1
the identification of suitable alternative land in the vicinity of
Bapsfontein
for the relocation of the applicants;
1.2
the implementation of an appropriate relocation project for the
Mayfield
Community as described in the reports filed of record in
this Court; and
1.3
the implementation of the housing project for the N12 Highway Park
Community
as described in the reports filed of record in this Court;
and
1.4
the question of Costs which have not previously been awarded by this
Court.
2.
The municipal respondents are directed, within sixty
days from the
date of this order, to file in the High Court and in this Court,
affidavits and such reports as they may deem necessary
in support of
the contents of such affidavits, in which they—
2.1
identify suitable alternative land in the vicinity of Bapsfontein
for
the relocation of the applicants;
2.2
set out the relocation plan for the relocation of the applicants to
such identified land and the manner in which such plan shall be
implemented and the time table for such implementation;
2.3
set out the implementation plan for the relocation project of the
Mayfield
Community and the N12 Highway Park Community;
2.4
[set out] the reasons why the costs which have not been previously
awarded
by this Court should not be paid by the municipal
respondents.
3.
The applicants are directed to file their responding
affidavits to
the municipal respondents’ aforesaid affidavits within sixty
days from the date on which such affidavits
are delivered.
4.
The municipal respondents shall, if so advised, file
replying
affidavits to the applicants’ aforesaid responding affidavits
within thirty days from the date on which the applicants’
affidavits are delivered.
5.
The [Judge President of the] High Court is directed to
allocate this
matter to a judge or judges for purposes of case management and its
expedited hearing.
6.
Once all the aforesaid affidavits have been filed, the
Full [Court]
of the High Court shall hear the matter on such dates as shall be
arranged between the parties.”
[14]
Paragraph 5 of the order above [4].
[15]
Paragraph 6 of the order above [4].
[16]
Paragraph 8 of the order above [4].
[17]
Three reports have been filed by the Municipality
and six by the applicants.
[18]
Orders 5 to 8 are set out in [4] above.
[19]
See Currie and De Waal
The
Bill of Rights Handbook
5 ed (Juta &
Co Ltd, Cape Town 2005) at 215 and Roach and Budlender
Mandatory
Relief and Supervisory Jurisdiction
(2005) 122
SALJ
325
at 346.
[20]
Section 38 of the Constitution provides in
relevant part:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
[21]
Section 8(1) of the Constitution provides:
“
The
Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.”
In
terms of section 152(1) read with section 153(a) of the
Constitution, a municipality must provide services in a sustainable
manner to the communities within its area of jurisdiction including
to the applicants. Section 153(a) enjoins a municipality
to
structure and manage its administration, 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.
In
addition, the
Housing Act 107 of 1997
and the Housing Policy are
legislative and policy instruments enacted to give effect to the
housing obligations of the various
organs of state, including
municipalities. In particular,
section 9(1)
of the
Housing Act
provides
, in relevant part, that a municipality—
“
must
. . . take all reasonable and necessary steps within its 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;
. . .
(b)
set housing delivery goals in respect of its area of jurisdiction;
(c)
identify and designate land for housing development.”
[22]
Fose v Minister of Safety and Security
[1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
[23]
Id at para 19.
[24]
Section 26(3) of the Constitution provides that
“[n]o 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.”
[25]
Minister of Health v Treatment Action Campaign
(No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) (
Treatment
Action Campaign
).
[26]
Id at para 106.
[27]
See Currie and De Waal above n 19 at 215 and
City
of Cape Town v Rudolph and Others
2004
(5) SA 39
(C) at 88E where the Court noted that a structural
interdict was “something more” than a mere declaratory
when it
held:
“
I
do not believe that a declaration, standing on its own, will
suffice. There has already been such a declaration, made
by
the Constitutional Court. It has not induced the applicant to
comply with its constitutional obligations. Something
more is
therefore necessary.”
[28]
This Court has expressed reluctance to determine
matters in a piecemeal fashion. See
Tongoane
and Others v National Minister for Agriculture and Land Affairs and
Others
[2010] ZACC 10
;
2010 (6) SA 214
(CC);
2010 (8) BCLR 741
(CC) at para 42;
S
v Basson
[2005] ZACC 10
;
2007 (3) SA
582
(CC);
2005 (12) BCLR 1192
(CC) at para 148; and
Director
of Public Prosecutions, Cape of Good Hope v Robinson
[2004] ZACC 22
;
2005 (4) SA 1
(CC);
2005 (2) BCLR 103
(CC) at para
61.
[29]
Above [14]-[17].
[30]
Section 172(1) reads in relevant part:
“
When
deciding a constitutional matter within its power, a court—
.
. .
(b)
may make any order that is just and
equitable.”
[31]
Above n 11. This Act has repealed the whole
of the Supreme Court Act 59 of 1959 which made provision, in section
19bis,
that somewhat mirrors that in section 38(1).
[32]
Above n 11.
[33]
Although the law does make provision for the
appointment of a referee to investigate and report, this Court has
not had occasion
to utilise the relevant legislative provision in
terms of the
Superior Courts Act. This
Court, in
Fose
,
above n 22 at para 19, has however called for innovative thinking
about constitutional remedies and the fashioning of new ones
where
necessary.
[34]
The applicants submitted that in the remedial
context, there is some similarity between a referee/commission and
the American
institution of a special master, often appointed by the
US courts to manage the implementation of complex constitutional
remedies.
The courts in India have played an active role in
the appointment of “fact-finding” commissions to make
sure that
they have sufficient information before them. In
this regard see Bhagwati “Judicial Activism and Public
Interest
Litigation” (1985) 23
Columbia
Journal of Transnational Law
561 at
574-5 and authorities cited therein.
[35]
See
Molusi
and Others v Voges N.O. and Others
[2016] ZACC 6
;
2016 (3) SA 370
(CC);
2016 (7) BCLR 839
(CC) at para 28 and cases cited therein.
[36]
Uniform
rules 38(3)
-(8) are incorporated into
this Court’s rules by
rule 29.
A commission can be
appointed on the court’s own accord and without the parties’
agreement.
[37]
In
KwaZulu-Natal
Joint Liaison Committee v Member of the Executive Council,
Department of Education, KwaZulu-Natal and Others
[2013] ZACC 10
;
2013 (4) SA 262
(CC);
2013 (6) BCLR 615
(CC) at para
34, this Court was minded to refer the matter to the High Court,
given the dearth of evidence. However the
applicant
discouraged remittal and strongly urged that the matter be decided
on the papers, “do or die”, on whether
the 2008 notice’s
promise was enforceable. The Court, recognising that the
applicant is master of the process it
has initiated (
dominus
litis
), decided to respect its wishes.
[38]
Courts often make orders of referral for oral
evidence where there are real disputes of fact. The proper
approach where
a real dispute of fact is alleged is to take the
facts as set out by the applicant, together with any facts set out
by the respondent
which the applicant cannot dispute, and to
consider whether, having regard to the inherent probabilities, the
applicant could
on those facts succeed. In this regard see
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634E-I.
In
Road Accident Fund v
Mdeyide
[2007] ZACC 7
;
2008 (1) SA 535
(CC);
2007 (7) BCLR 805
(CC) at para 45, the Court emphasised the importance of the full
ventilation of issues before the appropriate forum. Instances
of an appeal court remitting matters to a High Court for oral
evidence include
National Director of Public Prosecutions v
Parker
[2005] ZASCA 124
;
2006 (3) SA 198
(SCA). There, the
NDPP made a forfeiture application in terms of the Prevention of
Organised Crime Act 121 of 1998 (on
notice of motion) in respect of
Ms Parker’s house as it was viewed as an instrumentality of an
offence (drug-dealing).
The High Court found that the house
was not sufficiently closely related to the drug-dealing to be an
instrumentality.
The Supreme Court of Appeal overturned
the High Court’s finding. The Court held that the house
was, on the papers,
an instrumentality of the offence.
However, on the question of whether Ms Parker had an “innocent
owner” defence,
the Supreme Court of Appeal held that there
were disputes of fact in the papers. It referred the matter to
the High Court
for oral evidence on that question.
[39]
See above [14].
[40]
See the notice of motion and the applicants’
suggested options in n 12 above.
[41]
See Option A (para 28.1) above n 12.
[42]
Set out above n 13.
[43]
See above [4] for the order granted in
Pheko
I
.