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[2017] ZACC 24
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Baron and others v Claytile (Pty) Limited and Another (CCT241/16) [2017] ZACC 24; 2017 (10) BCLR 1225 (CC); 2017 (5) SA 329 (CC) (13 July 2017)
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Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 241/16
In the matter between:
ISAK
BARON
First Applicant
DAVID
BAILEY
Second Applicant
ERIC
CUPIDO
Third Applicant
JONATHAN
STOFFELS
Fourth Applicant
RICHARD
FIGLAND
Fifth Applicant
ANTHONY
MERRINGTON
Sixth Applicant
OTHER OCCUPIERS RESIDENT AT
CLAYTILE
Seventh Applicant
JOOSTENBERG BRICK, HERCULES PLAAS
ROAD,
MULDERSVLEI, WHOSE OCCUPATION IS
DERIVED FROM THE APPLICANTS
and
CLAYTILE (PTY)
LIMITED
First Respondent
CITY OF CAPE TOWN
MUNICPALITY
Second Respondent
Neutral citation:
Baron and Others v Claytile (Pty) Limited and Another
[2017]
ZACC 24
Coram:
Nkabinde ADCJ,
Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
Pretorius AJ (majority): [1] to [54]
Zondo J (qualified concurrence): [55] to [58]
Heard on:
23 March 2017
Decided on:
13 July 2017
Summary:
Extension of Security of Tenure Act 62 of 1997
— section 26
of the Constitution — eviction by a private landowner —
suitable alternative accommodation —
constitutional obligations
of organs of state to provide suitable alternative accommodation in
evictions
ORDER
On appeal from the Land Claims Court
hearing an appeal from the Bellville Magistrate’s Court
the following order is made:
1.
Condonation is granted for:
(a)
The late filing of the appeal record; and
(b)
The late filing of the first respondent’s answering affidavit.
2.
The application for leave to adduce further evidence is granted.
3.
The application to amend the application for leave to appeal is
granted.
4.
Leave to appeal is granted.
5.
The appeal is dismissed.
6.
The eviction order of the Bellville Magistrate’s Court is
confirmed.
7.
The applicants are ordered to vacate the first respondent’s
premises within
three months of the date of this order.
8.
The first respondent is ordered to transport the children, who are
subject to
this eviction order, from Wolwerivier to the school they
are presently attending and back home every school day from the date
of
eviction to the end of the 2017 school year.
9.
The City of Cape Town Municipality is ordered to pay the costs of the
applicants
up to 23 February 2017 including the costs of two counsel,
where applicable.
JUDGMENT
PRETORIUS AJ
(Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mhlantla J, Mojapelo AJ concurring):
Introduction
[1] This is an application for leave to
appeal against the judgment and order of the Land Claims Court (LCC)
granted on 23 March
2016. The LCC ordered the eviction of the
applicants from private land in terms of the provisions of the
Extension of Security
of Tenure Act
[1]
(ESTA). The applicants amended their Notice of Application for
Leave to Appeal to this Court by inserting an alternative
appeal
against the confirmation of the order on review in terms of section
19(3) of ESTA by the LCC. The Bellville Magistrate’s
Court (Magistrate’s Court) order was confirmed on review
in terms of section 19(3) of ESTA on 21 October 2015.
[2] Recently, this Court considered the
effect of certain provisions of ESTA in
Daniels
[2]
to establish what rights ESTA bestows on ESTA-occupiers. In the
present matter, this Court must again consider the provisions
of ESTA
to determine when an eviction will be just and equitable and what it
means that occupiers are granted “suitable alternative
accommodation” under certain circumstances.
[3] In
Daniels
, the Court
painstakingly set out the historical and social context in which ESTA
must be understood to operate. The legislation
cannot be
severed from the purpose it was enacted to serve: “to
facilitate long-term security of land tenure; to regulate
the
conditions of residence on certain land; to regulate the conditions
on and circumstances under which the right of persons to
reside on
land may be terminated; and to regulate the conditions and
circumstances under which persons, whose right of residence
has been
terminated, may be evicted from land; and to provide for matters
connected therewith”.
[3]
ESTA forms part of the legislative measures envisaged in section 25
of the Constitution which is to form part of the land
reform and
redistribution program. Secure tenure on rural land is a
vitally important part of the land reform scheme which
is crucial to
the balanced functioning of the property clause.
[4]
[4] The main issue is whether there had
been compliance with the provisions of section 10 of ESTA, read with
sections 25 and 26
of the Constitution for the eviction. The
Supreme Court of Appeal (SCA) dismissed the application for
special leave
to appeal, hence the present application.
Parties
[5] The first, second, third and fifth
applicants were occupiers on Farm 1676, Muldersvlei (farm) on 4
February 1997. Section
10 of ESTA was therefore applicable when
the eviction was considered. The fourth applicant became an
occupier after 4 February
1997 and section 11 of ESTA applied.
The sixth applicant has passed away and his family has voluntarily
moved elsewhere.
The seventh applicant includes the wives and
relatives of the applicants, although they were not individually
cited.
[6] The first respondent is a company
that owns the farm on which it is conducting a brick manufacturing
business. Mr Julian
de la Hunt was appointed by the
first respondent to represent it in the eviction proceedings.
The second respondent
is the City of Cape Town Municipality (City).
[7] Ms Jennifer Jonkers (Ms Jonkers) is
the cousin of the first applicant and currently resides with him in
his housing unit on
the farm. She was not cited as a party
before this Court, but is included in the ambit of the eviction
order. It is
evident, from the submissions made to this Court,
that Ms Jonkers is still employed on the farm and her employment has
not been
terminated, although she lives in the same housing unit as
the first applicant.
Background
[8] The applicants, except for Ms
Jonkers, were all former employees of the brick manufacturing
business on the farm.
This entitled them to reside in
housing units on the farm for the duration of their employment.
It is common cause that
some of the applicants had lived on the farm
for some years before they were employed by the first respondent.
Their employment
was terminated during the period 2006 to 2011
pursuant to disciplinary enquiries premised on misconduct on their
part. The
termination of their employment was never challenged.
[9] The first, second, third, fourth and
fifth applicants’ housing was linked to their employment.
They are still residing
in the housing units on the farm, although
they have not been employed by the first respondent for some years.
On 3 November
2012 the first respondent gave them written eviction
notices to leave the farm on or before 8 December 2012.
The applicants
failed to comply with the notices and continued
residing on the farm. The first respondent instituted eviction
proceedings
in the Magistrate’s Court in June 2013. The
City, at the time, indicated to the Court that no suitable
alternative
accommodation was available due to a long waiting list.
An eviction order was granted on 7 February 2014, which was found
to
be just and equitable in the circumstances. The applicants were
ordered to vacate the farm by 30 October 2014, some
eight months
after the eviction order had been granted.
Constitutional and legislative
framework
[10] Two provisions of the Constitution
are directly implicated: sections 25 and 26. The preamble to
ESTA sets out the purpose
for which ESTA was enacted as being to
provide for security of land tenure and to give effect to the
provisions of sections 25
and 26 of the Constitution.
[5]
Section 25(1) protects the property of the landowner by guaranteeing
that no person shall be arbitrarily deprived of their
property.
But this provision serves to protect the ESTA occupier too, albeit
indirectly. How so? For ESTA occupiers
to enjoy a strong
form of secure tenure, as envisaged by the Constitution, we must
recognise that ESTA occupiers enjoy rights and
entitlements over the
land they occupy, and that these rights and entitlements are every
bit as worthy of protection as those of
private landowners.
This has most recently been established in
Daniels
, but is
built on the jurisprudence leading up to it.
[6]
However, despite this acknowledgement, occupiers may not rely on
section 25(1) directly to protect their interests, since
the
subsidiarity principle provides that where legislation was enacted to
give effect to certain constitutional rights, reliance
must first be
placed on the provisions of the specific legislation, and challenged
if they do not adequately give effect to the
constitutional rights in
question.
[7]
[11] Section 26 of the Constitution
protects persons from being evicted from their homes without an order
of court after considering
all the relevant circumstances.
[8]
One of the purposes for which Parliament enacted ESTA was to regulate
evictions from land.
[12] Previously occupiers of farmland
were not protected under common law. They are currently
protected by the provisions
of ESTA. Section 8 of ESTA deals
with the circumstances that may lead to the right of residence being
terminated.
[9]
In the present instance, section 8(2) is applicable as the rights of
residence of the applicants arose from their employment
by the first
respondent and these rights of residence were terminated when they
resigned or were dismissed. Section 9
is titled
“limitation on eviction” and sets out the procedure that
had to be followed after the applicants’ right
of residence had
been terminated. Section 10 applies to the eviction of
occupiers before 4 February 1997 and is applicable
to the first,
second, third and fifth applicants. Section 11 applies to the
eviction of occupiers after 4 February 1997,
and is applicable to the
fourth applicant. The fourth applicant will be dealt with
simultaneously with the other applicants
as section 11 sets a lower
threshold for the grant of an eviction than section 10. He
will not be prejudiced if his
position is dealt with in the same way
as the other applicants.
Litigation history
Magistrate’s Court
[13] The eviction application was heard
in the Magistrate’s Court. The Court had to consider
whether the provisions
of sections 8 and 9 of ESTA had been complied
with. In considering the interests of both parties, the Court
dealt with the
applicants’ concerns as to the disruptions it
would cause to their daily lives and also with the position of moving
the 11
school-going children to another school. On
6 December 2013, in the supplementary housing report, the
City indicated
that people who qualified were allocated housing units
at Delft Temporary Relocation Area (TRA), should any housing units
become
available. These housing units at Delft TRA, also
known as Blikkiesdorp, consisted of “corrugated iron structures
comprising one room, without electricity and shared toilet
facilities”. The applicants raised certain concerns
including
that they could not “see themselves moving from a
brick dwelling to a corrugated iron structure”, should it be
made
available to them. The two reports set out that the City
had no available accommodation at the time and did not foresee having
alternative accommodation available in future.
[14] The Court considered the first
respondent’s position – the applicants had lived on the
farm for many years, free
of charge, without working for the first
respondent. This resulted in the current employees of the
first respondent
reporting late for work or being absent because
of the lack of accommodation at their place of employment. The
first respondent
operates 24 hours a day for seven days a week.
The Court found that the applicants’ employment or occupation
had been
terminated fairly and lawfully. After considering all
the evidence, which included the probation officer’s report and
the two reports from the City, the Court granted an eviction order on
7 February 2014. The applicants were ordered to
vacate the
housing units by 30 October 2014. The Court found it
to be just and equitable to evict the applicants
and, having regard
to the disruption the eviction would cause to their lives, to grant
them almost eight months’ extension
to vacate the housing
units.
Land Claims Court
[15] In terms of section 19(3) of ESTA,
the order of the Magistrate’s Court had to be sent on
automatic review to the
LCC. The eviction order of the
Magistrate’s Court was confirmed on 21 October 2015 by the LCC
on the ground that the
proceedings in the Magistrate’s Court
had been in accordance with justice.
[16] The applicants subsequently
appealed to the LCC on 3 December 2015, as they were dissatisfied
with the eviction order.
On 23 March 2016 the LCC dismissed the
appeal and made no order as to costs. The Court held that the
first respondent suffered
undue hardship, as the applicants continued
to reside on the farm for a period of three years and three months
after their
employment had been terminated. They paid neither
rent nor water and electricity in that time at all. Their
continued
residence caused the first respondent not to be able to
accommodate its own employees on the farm, contrary to its employment
policy.
This caused hardship to both the first respondent
and its employees.
[17] The LCC held that, although the
availability of alternative accommodation was a consideration that
had to be taken into account
in terms of section 10(3),
[10]
as contended by the first respondents’ representative, it
remained but one factor a court should consider. In
Port
Elizabeth Municipality
,
[11]
it was emphasised that to elevate the factor of alternative
accommodation to a pre-condition for an eviction order would have
far reaching and chaotic consequences which could never have
been envisaged by the Legislature. To this end, the LCC
held
that the constitutional obligation to ensure access to adequate
housing lies solely on the State and not on private citizens.
The LCC, placing reliance on
Changing Tides 74
,
[12]
found that the first respondent undeniably had the immediate need to
use the housing units to house its current employees.
[18] The LCC relied on
Theewaterskloof
Holdings
[13]
in concluding that the first respondent had shouldered the
State’s responsibility to house the applicants for many years.
It found that it had been long enough and had been detrimental to the
first respondent and its current employees. It stated
that the
appeal cannot succeed, especially given the first respondent’s
status as a private owner with a right to property.
[19] The LCC dismissed an application
for leave to appeal to the SCA on 24 June 2016 on the ground that no
other court would come
to a different conclusion.
[20] While the LCC cannot be faulted for
turning to established jurisprudence to assist with its assessment of
whether suitable
alternative accommodation was a pre condition
of eviction, and what it meant for determining the balance of equity,
it should
be pointed out that the statement in
Port Elizabeth
Municipality
was about PIE, and not ESTA. This is
significant. Not because what was said in
Port Elizabeth
Municipality
regarding the “constitutional matrix” of
evictions and the balancing of housing interests with property
interests have
no bearing on the ESTA context, but rather because it
must be kept in mind that we are dealing with different pieces of
legislation
with different purposes. ESTA was enacted to
strengthen the lawful occupation of persons residing on farms, as
part of the
land reform scheme envisaged in section 25 of the
Constitution. It does not go without saying that legal
principles developed
with reference to PIE can apply to ESTA, or that
the balance that must be struck will be struck in the same way.
[21] It was decided by this Court in
Snyders
[14]
that where the LCC had already reviewed an eviction order, it cannot
thereafter decide an appeal on the same order.
Supreme Court of Appeal
[22] Aggrieved by the LCC’s
decision, the applicants petitioned the SCA on 21 July 2016. On
13 September 2016 the SCA
ordered that the application for special
leave to appeal be dismissed with costs on the ground that the
requirements for special
leave to appeal were not met.
In this Court
[23] All the applicants, save for the
sixth applicant, who is deceased, sought leave to appeal to this
Court.
Points in limine
Condonation
[24] The applicants seek condonation for
the late filing of the record of the application for leave to
appeal. The reasons
for the delay are briefly that on
23 December 2016 they failed to serve the record on the City,
when they filed same at this
Court. They also failed to certify
the record by the LCC. On 29 December 2016 the record was
certified and Lawyers
for Human Rights (LHR), the applicants’
attorneys, was informed by the Registrar on 10 January 2017 that the
certification
was in order. The application for condonation was
not opposed. The reasons for the delay are sufficient and there
is
no prejudice. It is in the interests of justice to grant
condonation for the late filing of the record of the application
for
leave to appeal.
[25] The first respondent seeks
condonation for the late filing of its answering affidavit as its
attorney mistakenly relied on
the 15-day period envisaged in rule 11
of this Court’s Rules. As the current application is an
appeal, the provisions
of rule 19 apply, which stipulate a period of
10 days. This application was not opposed.
[26] The answering affidavit was filed
five days out of time. It is in the interests of justice to
condone the late filing
of the answering affidavit, having regard to
factors such as the extent of the delay, the explanation and effect
of the delay,
as well as the importance of the issues to be raised in
the appeal.
[15]
Further evidence
[27] On 27 February 2017, the City filed
an affidavit to place further evidence before this Court, relating to
available alternative
accommodation at Wolwerivier. The
requirements for the admission of further evidence on appeal have
been met in terms of
rule 31(1)
[16]
of this Court’s Rules. No party will suffer any prejudice
and the applicants do not oppose the application. I
am of the
opinion that the application for leave to adduce further evidence
should be granted as it is in the interests of justice.
Issues
[28] The principal issues remain the
same as they are in the parties’ submissions to this Court,
except for the new issues
raised for the first time in this Court
which were:
·
There was no meaningful engagement between the landowners and the
occupiers;
·
Interpreting section 4 of ESTA to require landlords, in co-operation
with municipalities,
to provide subsidies for on-site and off-site
housing;
·
The non-joinder of the Department of Rural Development and Land
Reform; and
·
The duty of a private landowner to provide alternative accommodation
to evicted occupiers.
Leave to appeal
[29] During the hearing, counsel for
both parties conceded that the issues had narrowed down to the single
issue of “suitable
alternative accommodation”.
Throughout the litigation the central thrust of the argument was
homelessness. This
matter raises a constitutional issue to
determine the meaning of “suitable alternative accommodation”,
as defined in
section 1 of ESTA.
[17]
This Court should address and bring about legal certainty
regarding the duties of organs of state and private landowners
in
these and similar circumstances, where occupiers have been evicted in
terms of ESTA. It is in the interests of justice
to grant leave
to appeal.
The City’s constitutional
obligations
[30] Events took a different turn on 27
February 2017 when the City made an offer of alternative
accommodation. In the explanatory
affidavit, the City indicated
that it was in a position to secure suitable alternative
accommodation for those applicants who required
it. The City
indicated that it was able to make five housing units available
to the applicants at Wolwerivier.
The applicants had to
indicate by 17 March 2017 whether the offer was acceptable.
[31] On 20 March 2017 the applicants
rejected the offer. According to the applicants the
accommodation at Wolwerivier was
unacceptable due to the distance
from Wolwerivier to the applicants’ places of employment and
the children’s school.
They further submitted that the
housing units at Wolwerivier were inadequate structures as the units
had been constructed with
corrugated cladding.
[32] The applicants urged this Court to
make a value judgment as to what is just and equitable, which
includes consideration of
the distance from the applicants’
places of employment and the distance from social amenities, such as
schools, clinics and
shopping centres. The applicants failed to
deal with the objection that Wolwerivier was far from their places of
employment,
but relied on a bald allegation, without setting out any
particulars as to where they were employed and the distance from
Wolwerivier.
They did not deal with any hardship they would
suffer should they move to Wolwerivier.
[33] The housing unit at Wolwerivier was
described by the City as “a 26.5m
2
emergency housing
structure, which consists of the prefabricated light gauge steel
structure with corrugated cladding”.
Here each unit will
be fitted with an inside toilet and washbasin. In comparison
with the previous, tentative offer by the
City at Delft TRA, it
is manifest that this present unit at Wolwerivier is a much better
unit than that at Delft TRA. At
Wolwerivier the plumbing
installation, bulk water installation and electricity infrastructure
have been completed and internal
gravel roads have been provided,
whilst the entire development will be fenced with a concrete palisade
fence.
[34] At the hearing of the matter the
first respondent offered to transport the children, being affected by
the eviction of their
parents, from their temporary housing at
Wolwerivier to the school and back home again until the end of the
2017 school year.
If we decide the matter in terms of section
26(2), read with sections 26(1) and 26(3) of the Constitution we need
not deal with
the other issues, as conceded by the applicants’
counsel.
Duties of a private landowner
[35] In
Daniels
it was held that
ESTA can, under certain circumstances, place a positive obligation on
a private landowner. This does not
mean that private landowners
carry all or the same duties as the State to fulfil the obligations
set out in the Constitution.
However, it has long been
recognised in our constitutional dispensation that ownership of land
comes with certain duties or responsibilities,
which may differ
significantly from the duties and obligations that rested on
private landowners in the pre-constitutional
context. With
this in mind, the applicants argued that the first respondent, as a
commercially-able private landowner, was
obligated to assist the
applicants to obtain suitable alternative accommodation, and failing
that, to provide such accommodation.
[36] Is this a case where it is
justified to impose an obligation on private landowners? If in
the end the result is such
that what could be classified as a
horizontal obligation is imposed it must be justified. But
often adherence to a strict
classification of horizontal or vertical
application of the Bill of Rights obfuscates the true issue:
whether, within the
relevant constitutional and statutory context, a
greater “give” is required from certain parties.
Any “give”
must be in line with the Constitution.
This Court has long recognised that complex constitutional matters
cannot be approached
in a binary, all-or-nothing fashion, but the
result is often found on a continuum that reflects the variations in
the respective
weight of the relevant considerations.
[37] The provisions of ESTA do not spell
out, in section 10(2), who is responsible for making available
suitable alternative accommodation.
The logical role player
would be the State. But where the State has been cited as a
party and has meaningfully participated
in the proceedings, and yet
no suitable alternative accommodation could be found, is that
necessarily the end of the matter?
I think not. Section
10(2) has a narrow scope: it only applies in circumstances where an
owner wishes to evict an occupier
where there has been no breach or
breakdown of the employment relationship. Eviction under those
conditions should therefore
be allowed only in exceptional
circumstances. Within this narrow scope, it might therefore be
appropriate to expect the private
landowner to assist with the
finding of, or, failing that, in truly exceptional circumstances, to
provide suitable alternative
accommodation. This must be a
contextual enquiry, having due regard to all relevant circumstances.
Suitable alternative accommodation
[38] There is no longer any issue
between the parties that the requirements of ESTA regarding the
eviction were fulfilled.
The only question is whether the City
has fulfilled its duty to provide suitable alternative
accommodation. Section 26 of
the Constitution applies. In
Goedgelegen
, Moseneke DCJ held that ESTA is “remedial
legislation umbilically linked to the Constitution”.
[18]
Therefore, in this instance, it is incumbent on the City to provide
suitable housing to the applicants. It must however
be within
the City’s available resources in terms of section 26(2)
of the Constitution.
[39] The applicants submitted that the
latest offer by the City, that of 23 February 2017, was not
an offer which they
were willing to accept. This is the second
offer the applicants were dissatisfied with, as they had been
unwilling to consider
moving to Delft TRA during 2013. The
housing units at Delft TRA were much less favourable than the units
presently being
offered. Each unit at Wolwerivier consists of
two rooms with a toilet and a basin inside the house.
[40] The question is thus whether the
City has an obligation to continue offering accommodation until the
applicants are satisfied.
The State is obliged, in terms of
section 26 of the Constitution to take “reasonable legislative
and other measures, within
its available resources” to achieve
the right to adequate housing.
[41] In
Blue Moonlight
[19]
this Court dealt with the provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act
[20]
(PIE). Although
Blue Moonlight
dealt with
provisions of PIE and more in particular with the obligation of a
landowner, in similar conditions as the present, the
Court held:
“Of course a
property owner cannot be expected to provide free housing for the
homeless on its property for an indefinite
period. But in
certain circumstances an owner may have to be somewhat patient, and
accept that the right to occupation may
be temporarily
restricted.”
[21]
[42] This Court in
Blue Moonlight
further held that—
“The duty
regarding housing in section 26 of the Constitution falls on all
three spheres of government – local,
provincial and
national – which are obliged to co operate. In
Grootboom
this court made it clear that ‘a co-ordinated
State housing program must be a comprehensive one determined by all
three spheres
of government in consultation with each other . . .
Each sphere of government must accept responsibility for the
implementation
of particular parts of the program’.”
[43] The City is before court. The
first respondent argued that the City was acting unconstitutionally
when it indicated in
the Magistrate’s Court that it had no
temporary or emergency accommodation available. The first
respondent has been
accommodating the applicants for several years.
This is a factor that weighs heavily against imposing a further
obligation
on the first respondent.
Blue Moonlight
is applicable, although it deals with the provisions of PIE, in as
far as it cannot be expected of the first respondent to accommodate
the applicants indefinitely when an offer of alternative
accommodation has been made by the City.
[44] In
Changing Tides 74
[22]
the SCA held that—
“Much of the
litigation around evictions has dealt with contentions by various
local authorities that they do not owe constitutional
obligations to
provide emergency accommodation to persons evicted from their
existing homes and facing homelessness as a
result. Contentions
that they were not obliged to provide emergency housing (
Grootboom
);
alternative land on a secure basis (
Port Elizabeth Municipality
);
use their own funds to provide emergency accommodation
(
RandProperties
); and provide emergency accommodation to
persons evicted at the instance of private property owners (
Blue
Moonlight
); have all been advanced and rejected by this
court and the Constitutional Court. Now that it is clearly
established
that local authorities do owe constitutional obligations
to persons evicted from their homes who face homelessness as a
result,
it is appropriate to set out their obligations to the court
in proceedings of this type. I deal only with cases where, on
the principles set out above, they are joined in the litigation, and
the applicant alleges that the circumstances of the eviction
are such
that it may result in homelessness, and engage their constitutional
obligations in regard to the provision of temporary
emergency
accommodation.”
[45] In
Molusi
[23]
it was held that in eviction applications the Constitution is the
starting point, specifically section 26(3). The first
respondent agrees with the applicants that a constitutional duty
rests on the local authority to provide suitable alternative
accommodation
in this instance, where the applicants have been
evicted and face homelessness as a result of the eviction.
[46] It is quite clear that a
constitutional duty rests on the City, where occupiers are legally
evicted and rendered homeless,
to provide suitable alternative
accommodation.
[24]
The City cannot escape this obligation by simply submitting reports
indicating that there are no TRA housing units available.
The
City is constitutionally obliged, not only in terms of the provisions
of ESTA, but even more so in terms of section 26 of the
Constitution,
upon the eviction of the applicants and their families as occupiers,
to provide the applicants with suitable alternative
accommodation.
[47]
Changing Tides 74
held that
eviction is ordinarily just and equitable if alternative
accommodation is made available. In this matter the alternative
accommodation at Wolwerivier was made available. The first
respondent allayed the applicants’ concerns regarding the
interruption of the children’s schooling by offering to provide
transport to school and back from Wolwerivier for the rest
of the
2017 school year.
[48] It must be emphasised that the
preamble to ESTA does not deal only with the rights of occupiers, but
similarly recognises the
rights of landowners to apply for eviction
under certain conditions and circumstances.
[49] The applicants have enjoyed free
accommodation since 8 December 2012, when their right of occupation
was terminated, until
2017, almost five years. The
first respondent has had a temporary restriction on its property
rights for that period
and it cannot, in fairness, be expected to
continue granting free accommodation to the applicants where its
current employees are
disadvantaged. Therefore, the applicants
must be evicted to enable the first respondent to accommodate
its current employees.
Conclusion
[50] The applicants’ concerns
about what made the initial accommodation ill-suited have been
addressed by the City to the
best of its abilities. Cognisant
that the duty is one of progressive realisation, I accept that the
housing units at
Wolwerivier qualify as suitable alternative
accommodation which is provided by the City within “its
available resources”.
The applicants cannot delay their
eviction each time by stating that they find the alternative
accommodation offered by the City
unsuitable. Specifically,
their remaining concerns regarding the schooling of the children have
also been addressed by the
offer of transport by the
first respondent. This Court has to dismiss the appeal.
Appropriate relief
[51] Having regard to all the facts, it
is just and equitable that all the applicants be evicted, save for Ms
Jonkers, after three
months from the date of judgment. Should
the applicants not comply with the order, the Sheriff is authorised
to execute the
eviction and if necessary, to request the assistance
of members of the South African Police Service.
[52] It is not necessary for this Court
to deal with the other issues raised by the applicants because of the
finding regarding
suitable alternative accommodation.
Costs
[53] The first respondent should not be
mulcted in costs as it has been housing the applicants for years
without receiving any compensation
or benefit. However, the
first respondent is not asking for costs. The tedious
litigation proceedings and costs
involved before this Court, as well
as the Magistrate’s Court and LCC, would have been
obviated if the City had complied
with its constitutional duty to
provide housing from the start. Given the equally important and
urgent nature of this eviction
matter, it is astounding that the City
waited to inform this Court of its offer on alternative accommodation
until only a
few days before the hearing of the matter in this Court.
The City has had more than five years to fulfil its
constitutional
obligation to provide alternative accommodation, but
waited until the last minute when the matter was before this Court
before
making an offer. The City should be liable to pay the
costs in this Court, including the costs of two counsel, where
applicable, up to the date when the offer of alternative
accommodation was made to the applicants.
Order
[54] The following order is made:
1.
Condonation is granted for:
(a)
The late filing of the appeal record; and
(b)
The late filing of the first respondent’s answering affidavit.
2.
The application for leave to adduce further evidence is granted.
3.
The application to amend the application for leave to appeal is
granted.
4.
Leave to appeal is granted.
5.
The appeal is dismissed.
6.
The eviction order of the Bellville Magistrate’s Court is
confirmed.
7.
The applicants are ordered to vacate the first respondent’s
premises within
three months of the date of this order.
8.
The first respondent is ordered to transport the children, who are
subject to
this eviction order, from Wolwerivier to the school they
are presently attending and back home every school day from the date
of
eviction to the end of the 2017 school year.
9.
The City of Cape Town Municipality is ordered to pay the costs of the
applicants
up to 23 February 2017 including the costs of two counsel,
where applicable.
ZONDO J
(qualified concurrence):
[55] I have read the judgment prepared
by my Colleague, Pretorius AJ, in this matter. Subject to what
I say below, for the
reasons she gives I agree with the conclusion
she reaches that the application for leave to appeal should be
granted but that the
appeal should be dismissed.
[56] I prefer not to express any view on
the duties of private landowners as discussed in the first judgment
under the heading:
“Duties of the private landowner”.
Bearing in mind the basis upon which we decide the matter, I am of
the view
that expressing a view on that topic is not necessary for
our decision.
[57] I am also unable to agree that the
City of Cape Town Municipality should be ordered to pay the
applicants’ costs.
The applicants have been unsuccessful
in the appeal and the respondents, including the Municipality, have
successfully opposed
the applicants’ appeal. In ordinary
litigation, this would have meant that the applicants should be
ordered to pay
the respondents’ costs. However, because
of
Biowatch
[25]
the respondents are deprived of such costs and the applicants do not
need to pay such costs. To then go further and order
that the
Municipality must pay the applicants’ costs seems to me to be
“double punishment” on a successful party
which I
consider to be unwarranted. I think that it is sufficient that
the Municipality is deprived of its costs. I
also do no not
think that the Municipality has conducted itself in a manner that
warrants such a measure. It also seems to
me that the
Municipality was not afforded any proper opportunity to be heard on
why they should be ordered to pay the applicants’
costs.
[58] I am, therefore, of the view that
we should not make any costs order against the Municipality.
Subject to this qualification,
I agree with the order proposed in the
first judgment.
For the
Applicants:
C R Jansen SC and M R Musandiwa instructed by Lawyers for
Human Rights
For the First
Respondent:
A Dodson SC and M Adhikari instructed by September & Associates
For the Second
Respondent:
A Katz SC instructed by Fairbridges Wertheim Becker
[1]
62 of 1997.
[2]
Daniels v Scribante
[2017] ZACC 13.
[3]
See the long title to ESTA.
[4]
Section 25(1) of the Constitution provides:
“(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.”
[5]
The preamble to ESTA provides:
“To provide for measures with
State assistance to facilitate long-term security of land tenure; to
regulate the conditions
of residence on certain land; to regulate
the conditions on and circumstances under which the right of persons
to reside on land
may be terminated; and to regulate the conditions
and circumstances under which persons, whose right of residence has
been terminated,
may be evicted from land; and to provide for
matters connected therewith.”
[6]
Agrico Masjinerie (Edms) Bpk v Swiers
[2007] ZASCA 84
;
2007
(10) BCLR 1111
(SCA) at paras 29 31 and
Nhlabathi v
Fick
[2003] ZALCC 9.
[7]
Van der Walt
Property and Constitution
(PULP, Pretoria 2012)
at 49-61.
[8]
Section 26 provides:
“(1) Everyone
has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of this right.
(3) No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.”
[9]
Klaase v Van der Merwe N.O.
[2016] ZACC 17
;
2016 (6) SA 131
(CC);
2016 (9) BCLR 1187
(CC) and
Hattingh v Juta
[2013]
ZACC 5
;
2013 (3) SA 275
(CC);
2013 (5) BCLR 509
(CC).
[10]
Section 10(3) of ESTA provides:
“If—
(
a
)
suitable alternative accommodation is not available to the occupier
within a period of nine months after the date of termination of his
or her right of residence in terms of section 8;
(
b
)
the owner or person in charge provided the dwelling occupied by the
occupier; and
(
c
)
the efficient carrying on of any operation of the owner or person
in
charge
will be seriously prejudiced unless the
dwelling is available for occupation by another person employed or
to be employed by the
owner or person in charge,
a court may grant an order for eviction
of the occupier and of any other occupier who lives in the same
dwelling as him or her,
and whose permission to reside there was
wholly dependent on his or her right of residence if it is just and
equitable to do
so, having regard to—
(i)
the efforts which the
owner or person in charge and the occupier
have respectively made in order to secure suitable alternative
accommodation for the
occupier; and
(ii)
the interests of the respective
parties, including the comparative
hardship to which the owner or person in charge, the occupier and
the remaining occupiers
shall be exposed if an order for eviction is
or is not granted.”
[11]
Port Elizabeth Municipality v Peoples Dialogue on Land and
Shelter
2001 (4) SA 759
(E) at 769B-D.
[12]
In
City of Johannesburg v Changing Tides 74 (Pty) Ltd
[2012]
ZASCA 116
;
2012 (6) SA 294
(SCA); 2012 (11) BCLR 1206 (SCA)
(
Changing Tides 74
) at fn 23, the Court held the following—
“If the
landowner had no immediate or even medium-term need to use the
property and it would simply be sterilised by an
eviction order, the
court could legitimately hold the view that it was not just and
equitable at that time to grant an eviction
order.”
[13]
In
Theewaterskloof Holdings (Edms) Bpk, Glazer Afdeling v Jacobs
2002 (3) SA 401
(LCC) (
Theewaterskloof Holdings
) at para
18 it was held that:
“Wat die
posisie met betrekking tot alternatiewe akkommodasie ookal mag wees,
dit kan nie van die applikant verwag word
om die respondent
onbepaald
op sy plaas te huisves nie.”
[14]
Snyders v De Jager
[2016] ZACC 55
;
2017 (3) SA 545
(CC);
2017
(5) BCLR 614
(CC) at para 39.
[15]
Van Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20 and
Brummer v Gorfil
Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
[16]
Rule 31(1) provides:
“Any party
to any proceedings before the Court and as an
amicus curiae
properly admitted by the Court in any proceedings shall be
entitled, in documents lodged with the Registrar in terms of these
rules, to canvass factual material that is relevant to the
determination of the issues before the Court and that does not
specifically
appear on the record: Provided that such facts—
(a)
are common cause or otherwise
incontrovertible; or
(b)
are of an official, scientific,
technical or statistical nature
capable of easy verification.”
[17]
Section 1 of ESTA defines “suitable
alternative accommodation” as
—
“
alternative accommodation which is safe
and overall not less favourable than the occupiers’ previous
situation, having regard
to the residential accommodation and land
for agricultural use available to them prior to eviction, and
suitable having regard
to—
(a)
the reasonable needs and requirements of all the
occupiers in the household in question for residential
accommodation, land for
agricultural use, and services;
(b)
their joint earning abilities; and
(c)
the need to reside in proximity to opportunities
for employment or other economic activities if they intend to be
economically
active.”
[18]
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty)
Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) (
Goedgelegen
) at para 53.
[19]
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
[2011] ZACC 33;
2012 (2) SA
104
(CC);
2012 (2) BCLR 150
(CC) (
Blue Moonlight
).
[20]
19 of 1998.
[21]
Blue Moonlight
above n 19
at para 40.
[22]
Changing Tides 74
above
n 12 at para 39.
[23]
Molusi v Voges N.O.
[2016] ZACC 6
;
2016 (3) SA 370
(CC);
2016
(7) BCLR 839
(CC) at para 6.
[24]
Section 10(2) of ESTA provides:
“Subject to
the provisions of subsection (3), if none of the circumstances
referred to in subsection 1 applies, a court
may grant an order for
eviction if it is satisfied that suitable alternative accommodation
is available to the occupier concerned.”
[25]
Biowatch Trust v Registrar Genetic Resources
2009 ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).