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[2016] ZACC 31
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Ngomane and Others v Govan Mbeki Municipality (CCT17/16) [2016] ZACC 31; 2016 (12) BCLR 1528 (CC) (8 September 2016)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 17/16
In
the matter between:
BONGANE
NGOMANE
First
Applicant
SAMSON
NKABINDE
Second
Applicant
NOMAWETHU
CAWE
Third
Applicant
OCCUPIERS
OF EXTENSIONS 9, 21,
25
Fourth
and further Applicants
KINROSS
AND THE FARM ZONDAGSKRAAL
125
IS, DISTRICT KINROSS
and
GOVAN
MBEKI
MUNICIPALITY
Respondent
Neutral
citation:
Ngomane and Others v Govan Mbeki Municipality
[2016]
ZACC 31
Coram:
Mogoeng CJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Judgments:
The Court (unanimous)
Decided
on:
08 September 2016
Summary:
Eviction — Municipality obligations for meaningful
engagement — Section 26 — Prevention of Illegal
Eviction
from and Unlawful Occupation of Land Act 19 of 1998 —
Illegal occupants — Interdict application altered — R
es
judicata
ORDER
On
appeal from the High Court of South Africa, Gauteng Division, the
following order is made:
1. Leave to appeal
is granted.
2. The appeal
succeeds with costs.
3. The order of the
High Court is set aside and replaced with the following:
(a)
The Govan Mbeki Municipality and the applicants are required to
engage with each other meaningfully to come up with a reasonable
solution that accords with the applicants’ rights and the
Municipality’s obligations under section 26 of the
Constitution.
(b)
To facilitate such engagement, the Municipality must proactively seek
the participation of the applicants, including those amongst
the
fourth and further applicants. The Municipality may choose
measures that facilitate engagement, but those measures must
reasonably enable the applicants to participate meaningfully in the
processes of engagement. Adopting and modifying the order
of
the High Court to ensure adequate notice under section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1998, such measures may include:
i) assigning an
identification feature on existing complete and incomplete structures
in Extensions 21 and 25 Kinross and on the
farm Zondagskraal 125 IS,
Kinross;
ii) affixing notice
to such structures that informs occupiers of engagement forums,
invites their participation, and provides enough
time between the
date of the notice and the date of the event so that the occupiers
have a reasonable opportunity to participate;
iii) erecting five
notice boards in common areas in Extensions 21 and 25 Kinross and the
farm Zondagskraal 125 IS, Kinross respectively
and affixing notice
described in 3(b)(ii) to the notice boards; and
iv) distributing
pamphlets containing notice described in 3(b)(ii) in English and in
two other languages spoken by persons occupying
Extensions 21
and 25 Kinross and the farm Zondagskraal 125 IS, Kinross.
(c)
Meaningful engagement must occur as soon as possible.
(d)
Should a resolution not be reached, and should the Municipality again
seek to evict the applicants, compliance with this order
will be
relevant to whether the Municipality fulfilled its obligations under
the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act 19 of 1998.
(e)
The applicant is ordered to pay the respondents’ costs.
JUDGMENT
THE
COURT (Mogoeng CJ, Bosielo AJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J):
[1]
The
applicants apply for leave to appeal against a judgment and order of
the High Court of South Africa, Gauteng Division, Pretoria
(High
Court). The High Court set aside a rule nisi granted against
the applicants for the removal of some 200 families from
a tract of
municipal land, but proceeded to order ordinary eviction proceedings
in terms of section 4 of the Prevention of Illegal
Eviction from and
Unlawful Occupation of Land Act.
[1]
The applicants seek to appeal that decision. The
respondent does not oppose the application in this Court.
Background
[2]
The respondent, Govan Mbeki Municipality (the Municipality),
sought two separate eviction orders in a period of a year. It
seeks to have the applicants and other occupiers (the occupiers)
evicted from properties that it owns and which are zoned as
agricultural
land. The occupiers have erected structures which
they use as residential dwellings on the properties without the
consent
of the Municipality. The Municipality first brought an
application on 3 September 2013, after which an order
interdicting
Mr Dlamini, Ms Nkambule and others, cited as
”illegal occupants”, from occupying vacant stands at
Extension 21
Kinross, was successfully obtained. The occupiers
were evicted from the said property and the Municipality was
authorised
to demolish the “illegal shacks”. The
order was executed in October 2013.
[3]
The occupiers who were evicted in October 2013 proceeded to
take refuge in the community hall in Kinross. They were evicted
from the hall within two weeks. Thereafter, they stayed at the
local primary school. They made several attempts to
meet the
officials of the Municipality in order to find an amicable solution.
The majority of the occupiers have been on
the Municipality’s
housing waiting list since 2002 but have not yet received any
housing. Prior to taking occupation
of Extension 21
Kinross, they were renting dwellings in the backyards of permanent
residents where they were allegedly charged
unreasonably high rental
fees and were often evicted arbitrarily. Some of the residents
are dependents of the occupiers and
have now become adults that
require their own accommodation.
[4]
In response to the occupiers’ plight, the Municipality’s
officials stated that the occupiers should return to where they
came
from. The occupiers alleged that, in light of the intolerable
conditions that they were exposed to as backyard tenants
and the fact
that some of them were evicted by their landlords, it was not a
viable option for them to return.
[5]
In May 2014 the occupiers took occupation of Extensions 21 and
25 Kinross and the farm Zondagskraal 125 IS, District Kinross,
Mpumalanga
(properties). The occupation of the properties took
place in February when a piece of land was vacated and intended to be
used for a pre-primary school facility by the Municipality. These
events prompted the Municipality to bring an urgent application
to
the High Court for the eviction of the occupiers from the properties.
The application was also aimed at obtaining an order
for the
demolition of the illegal shacks on the properties and an interdict
prohibiting the community from erecting shacks on the
properties in
future.
Litigation
History
[6]
On 16 May 2014 Hlapi J granted a rule nisi calling on the
community to show cause why the order should not be made final. The
application was opposed by some of the occupiers. The matter
was heard on 30 July 2014 by Modiba AJ in the High Court.
The
representatives of the community raised several points
in limine
(preliminary points), among others, that the Municipality did not
rely on section 5 of the PIE Act in its founding papers and only
referred to it in its replying affidavit. The applicants
alleged that this was an admission of the intention to evict and
not
to make out a proper cause in the founding affidavit to support an
urgent eviction. All four points
in limine
were upheld
by the High Court. The rule nisi was set aside.
[7]
Stating that an outright dismissal of the application would
render it
res judicata
, the Court proceeded to make an order
demanding that the necessary procedural steps be taken –
detailing the measures that
the Municipality needed to employ in
order to ensure compliance with an ordinary eviction process in terms
of section 4(2) of the
PIE Act. The High Court also included
additional duties that the Municipality had to comply with to give
effect to substantive
fairness. This included requiring them to
identify the respondents on the housing list and submitting a report
to the court
containing a housing policy (for provision of emergency
housing to people on the housing list). The High Court held
that
as a general rule our courts do not make cost orders in cases
involving constitutional rights. The judgment was handed down
on 26 September 2014.
[8]
The occupiers’ application to the High Court for leave
to appeal to the Supreme Court of Appeal was dismissed on 20 March
2015. An application to the Supreme Court of Appeal for leave
to appeal was dismissed on 7 December 2015– on the grounds
that
there were no reasonable prospects of success and that there was no
other compelling reason why an appeal should be heard.
No costs
order was made.
In
this Court
Jurisdiction
[9]
The applicants contend that this matter gives rise to
constitutional issues. The Municipality has attempted to
circumvent
the PIE Act, which in turn undermines the rights in
section 26(3) of the Constitution. It is in the interests of
justice
for this appeal to be heard. Despite the order not
being final, they allege the Municipality has made a habit of
evicting
occupiers in this manner which, they argue, is an abuse of
process. In support, they attach orders that were granted in
applications
of a similar nature. They view the Municipality’s
actions as attempts to circumvent the PIE Act.
[10]
The applicants also contend that their application for leave
to appeal presents arguable points of law of general public
importance.
Firstly, because proper compliance with the PIE Act
in eviction applications is required in order to ensure that the
rights
in section 26 of the Constitution are protected. Secondly,
because it is essential for legal certainty that this Court provides
direction to the application and ambit of rule 6(6) of the Uniform
Rules of Court – to establish whether a court may
mero moto
(of its own accord) alter an interdict application into an
eviction in terms of the PIE Act.
Merits
[11]
The applicants seek leave to appeal against the whole of the
judgment of Modiba AJ, handed down in September 2014. They
request that the order of the High Court be set aside and
substituted with an order providing for the discharge of the rule
nisi and that the application be dismissed with costs.
[12]
The applicants submit that the High Court erred in the
following respects:
(a)
That the points
in limine
raised only procedural defects that
are not fatal to the application. It is argued that the points
in limine
are substantively defective, as compliance with the
High Court’s directives does not cure the application –
the requirement
of meaningful engagement before instituting eviction
proceedings is negated;
(b)
That the Court had a discretionary power in terms of rule 6 of the
Uniform Rules of Court to issue directives in order to transform
the
interdict application into an eviction application. It is
argued that rule 6(6) is intended to allow a party to
remedy a
procedural defect. In this case the court a quo went beyond the
ambit of the rule by allowing the Municipality to
amend its entire
application and granting relief in terms of section 4(2) of the PIE
Act – without such relief being sought;
and
(c)
To dismiss the application would render the issue of the lawfulness
of the occupation of the properties
res judicata.
It is
contended that the Municipality would be free to institute eviction
proceedings at any future date if meaningful engagement
failed to
reach a settlement – it would not be a claim for the same
relief.
Leave
to appeal
[13]
This matter raises important constitutional issues relating to
the right to access to housing and the eviction of people from their
homes under section 26 of the Constitution, and the PIE Act. There
are prospects of success. Leave should be granted.
The
appeal
[14]
The
High Court made a practical order that sought to accelerate the
process of reaching a just and fair solution to the problem.
That
is commendable, but it overlooked two aspects that prejudiced the
applicants. The applicants were essentially
successful in their
opposition to the application and had the High Court not out of its
own accord made the order it did, they
would have been entitled to a
costs order if the application was dismissed. That should be
rectified. The second advantage
the applicants were deprived of
was an opportunity of meaningful engagement with the Municipality in
accordance with
Olivia
Road,
[2]
before further proceedings for their eviction could proceed.
[15]
Accordingly the appeal must succeed to the extent that these
defects must be remedied.
Order
[16]
The following order is made:
1. Leave to appeal
is granted.
2. The appeal
succeeds with costs.
3. The order of the
High Court is set aside and replaced with the following:
(a)
The Municipality and the applicants are required to engage with each
other meaningfully to come up with a reasonable solution
that accords
with the applicants’ rights and the Municipality’s
obligations under section 26 of the Constitution.
(b)
To facilitate such engagement, the Municipality must proactively seek
the participation of the applicants, including those amongst
the
fourth and further applicants. The Municipality may choose
measures that facilitate engagement, but those measures must
reasonably enable the applicants to participate meaningfully in the
processes of engagement. Adopting and modifying the order
of
the High Court to ensure adequate notice under section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1998, such measures may include:
i) assigning an
identification feature to all complete and incomplete structures on
existing complete and incomplete structures
in Extensions 21 and 25
Kinross and on the farm Zondagskraal 125 IS, Kinross;
ii) affixing notice
to such structures that informs occupiers of engagement forums,
invites their participation, and provides enough
time between the
date of the notice and the date of the event so that the occupiers
have a reasonable opportunity to participate;
iii) erecting five
notice boards in common areas in Extensions 21 and 25 Kinross and the
farm Zondagskraal 125 IS, Kinross respectively
and affixing notice
described in 3(b)(ii) to the notice boards; and
iv) distributing
pamphlets containing notice described in 3(b)(ii) in English and in
two vernacular languages spoken by persons
occupying Extensions 21
and 25 Kinross and the farm Zondagskraal 125 IS, Kinross.
(c)
Meaningful engagement must occur as soon as possible.
(d)
Should a resolution not be reached, and should the Municipality again
seek to evict the applicants, compliance with this order
will be
relevant to whether the Municipality fulfilled its obligations under
the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act 19 of 1998.
(e)
The applicant is ordered to pay the respondents’ costs.
For
the Applicants: Lawyers for Human Rights
For
the Respondent: Dikotope Attorneys
[1]
19 of 1998 (PIE Act).
[2]
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg
v City of Johannesburg and Others
[2008]
ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC) (
Olivia
Road
)
at para 15.