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[2018] ZASCA 74
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Mogale City Local Municipality v Black Tad Investments CC (889/2017) [2018] ZASCA 74 (31 May 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 889/2017
In
the matter between:
MOGALE
CITY LOCAL MUNICIPALITY
APPELLANT
and
BLACK
TAD INVESTMENTS CC
RESPONDENT
Neutral
citation:
Mogale
City Local Municipality v Black Tad Investments CC
(889/17)
[2018]
ZASCA 74
(31 May 2018)
Coram:
Shongwe
ADP, Mbha, Van der Merwe and Mocumie JJA and Plasket AJA
Heard:
8
May 2018
Delivered:
31
May 2018
Summary:
Eviction
– whether the municipality owed alleged unlawful occupiers on
privately owned land statutory and constitutional obligation
to
provide temporary emergency accommodation – question answered
positively – court found that municipality failed
to comply
with such obligation.
ORDER
On
appeal from:
Gauteng
Local Division, Johannesburg (Dippenaar AJ sitting as court of first
instance):
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Shongwe
ADP (Mbha, Van der Merwe and Mocumie JJA and Plasket AJA concurring)
[1]
This appeal concerns an interlocutory structural interdict granted by
the court a quo against the appellant, (Mogale City Local
Municipality). The essence of the order was a declaration that the
appellant owed the occupiers of Stand 48 Steynsvlei, a statutory
and
constitutional obligation to provide them with emergency
accommodation in terms of the Emergency Housing Programme (EHP). The
court a quo also declared that the appellant failed to make adequate
provision for temporary emergency accommodation for the occupiers.
The appellant appeals against these orders with the leave of the
court a quo.
[2]
The background is that on 25 September 2013 Black Tad Investments CC
(the respondent) the registered owner of Holding No 48,
Steynsvlei
Agricultural Holdings (the property), launched eviction proceedings
against certain alleged illegal occupiers (the eviction
application.)
The appellant was cited as a party in the eviction proceedings. The
appellant, however elected not to be party to
the proceedings and did
not file an answering affidavit. On 10 October 2014 the respondent
launched an interlocutory application
for an order against the
appellant to obtain certain information and present a formal and
comprehensive report to the court. The
appellant again, for unknown
reasons, elected not to participate in these proceedings. On 7
November 2014 the court (Tshabalala
J) granted an order on an
unopposed basis. I consider it important to restate the terms of the
entire order:
‘
1.
The Second Respondent provide a list of names and other details of
the First Respondent who shall require emergency and/or alternative
accommodation upon granting of an eviction order within 10 (TEN) days
of this Court Order being granted.
2.
The Second Respondent is to file a comprehensive report regarding the
availability of alternative and/or emergency accommodation
in terms
of Section 4 (7) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998, within 30
(Thirty)
calender days from granting of the order.
3.
The Second Respondent’s report to contain on the following:-
3.1 the Second
Respondent’s information on the Applicant’s property;
3.2 the Second
Respondent’s information on the First Respondent;
3.3 whether an
eviction order is likely to result in all or any of the occupiers
becoming homeless;
3.4 if so, steps the
Second Respondent proposes to alleviate the possible homelessness;
3.5 implications for
the owners of delaying the eviction; and
3.6 the Second
Respondent’s engagement with the First Respondent.
4.
The Second Respondent’s report be supported by substantiating
documents reflecting the Second Respondents findings in relation
to
the report.
5.
The Second Respondent is to pay the costs of this application should
the application be opposed.’
[3]
The order of 7 November 2014 required the appellant to file a report
within 30 days of the said order being granted. The appellant
once
more failed to comply with this portion of the order. After several
efforts by the respondent including a threat to launch
contempt of
court proceedings, the appellant filed a report only on 30 January
2015. The said report is vague, and devoid of any
facts. In my
considered view it could not assist the court in any way. However,
the report contains a significant concession that
the occupiers live
in deplorable conditions and that the eviction application is likely
to render some or all of the occupiers
homeless. In my view, this
provided all the more reason for the appellant to seriously consider
its positive involvement to participate
and comply with its
legislative and constitutional obligations.
[4]
Because the respondent considered the report to be meaningless and of
no assistance, it wrote a letter to the appellant pointing
out that
it was clear that the appellant had not engaged the occupiers and had
failed to set out in its report what it will do
to provide the
occupiers with temporary accommodation upon eviction. A meaningful
report by the appellant is crucial and necessary
to enable the court
dealing with the eviction application to consider all relevant
circumstances to avoid rendering the occupiers
homeless. The
appellant’s failure to provide a proper report will necessarily
exacerbate delay of the eviction proceedings.
Thus the owner would be
prejudiced in its endeavour to protect its right of ownership. The
letter sought an undertaking within
five days by the appellant to
cause an investigation into the occupiers’ personal
circumstances and to file a further report
setting out its findings
of such investigations and engagement. The appellant once again
failed to give such an undertaking hence
the respondent felt obliged
to approach the court seeking a declaratory order that the appellant
owed the occupiers a statutory
and constitutional obligation to
provide them with emergency accommodation in terms of the EHP.
[5]
The court a quo found the report to be vague and general in its terms
and that it did not illustrate that the respondent had
taken any
meaningful steps to address the plight of the occupiers. It found
further that, on the papers, the appellant did not
dispute that it
owed the occupiers a statutory and constitutional obligation to
provide them with emergency accommodation in terms
of the EHP. The
court a quo also found that the appellant did not dispute that it was
infringing upon the respondent’s constitutional
right –
it referred to
Modderfontein
Squatters v Modderklip Boerdery
2004
(6) SA 40
para 31. It concluded that it was satisfied that the
appellant was in breach of its statutory and constitutional duties
owed to
the respondent and the occupiers – who are faced with
the threat of imminent eviction and that the respondent was entitled
to the relief sought.
[6]
The appellant in its answering affidavit conceded that the occupiers
were ‘extremely poor and cannot afford to pay market-related
rentals for the nearby residential accommodation.’ It further
contended that at the time the eviction application was launched
it
did not have any alternative accommodation available and that it
still did not have suitable alternative land to accommodate
the
occupiers. The appellant made reference to possible available land at
Portion II of the farm Horingklip 178 IQ, a nearby farm
in respect of
which it had commenced with an application for the establishment of a
township. But that the application must first
be finalised before it
can begin planning for the relocation of the occupiers. However, what
is significant is the admission that
the occupiers must also be
consulted once the establishment of the township is completed and
that meaningful engagement be undertaken
with them and their legal
representatives.
[7]
Before this court the appellant raised an issue which it did not
raise in its answering affidavit. It argued that the property
which
is the subject of the appeal is an agricultural holding and therefore
the eviction application should have been launched
in terms of the
Extension of Security of Tenure Act 62 of 1997 (ESTA) and not in
terms of the Prevention of Illegal Eviction and
Unlawful Occupation
of Land Act 19 of 1998 (PIE). Counsel for the appellant conceded that
this defence was not pertinently raised
in the appellant’s
answering affidavit, but argued that it was implied in the facts of
the case. It is trite that the purpose
of pleadings is to define the
issues for the parties and the court. In application proceedings, the
affidavit does not only constitute
evidence, but it also fulfils the
purpose of pleadings. In other words they must set out the cause of
action or defence in clear
and unequivocal terms to enable all
concerned to know what case to meet. (See
Diggers Development
(Pty) Ltd v City of Matlosana & another
[2012] 1 All SA 428
(SCA) para 18;
Naidoo v Sunker
[2012] JOL 28488
(SCA).) A
party is duty bound to allege in its affidavit all material facts
upon which it relies. A trial by ambush is impermissible.
(See also
Swissborough Diamond Mines v Government of the Republic of South
Africa
1999 (2) SA 279
(T) at 323F – 324C;
Molusi &
others v Voges NO & others
(CCT96/15)
[2016] ZACC 6
;
2016 (3)
SA 370
(CC);
2016 (7) BCLR 839
(CC) (1-3-2016).) In the result the
issue was not properly raised and cannot be determined by this court.
[8]
The appellant contended that it should not be expected or ordered to
provide emergency accommodation
at this stage because this will
entail the municipality spending public money irrespective of the
merits and outcome of the eviction
application. The order granted by
the court a quo may appear to be too wide, however, the appellant in
this matter displayed indifference,
defiance and a non-co-operative
attitude, hence the court a quo wished to cover all bases.
Notwithstanding the order of Tshabalala
J, the appellant elected not
to comply. Counsel for the appellant conceded that the appellant has
a general duty to provide emergency
accommodation to the occupiers
and also acknowledged the possibility of the occupiers being rendered
homeless. This court cannot
be expected to decide the merits of the
eviction application i.e whether PIE or ESTA is applicable, however,
it is duty bound to
assist the court dealing with the eviction
application to arrive at a just and equitable solution by having all
the facts and circumstances
necessary before an eviction order is
granted or refused.
[9]
The respondent contended that it could not prosecute its eviction
application without the appellant discharging its obligations
to the
court and to the occupiers. It further contended that in terms of s
26 of the Constitution a general obligation on municipalities
is
placed to make a contingency plan for people facing eviction. This
duty exists irrespective of whether the eviction is sought
under PIE
or ESTA. The respondent further argued that the court below was
correct in granting appropriate relief in the form of
a structural
interdict directing the manner in which the appellant was to remedy
its breaches of the Constitution. I agree, the
reasoning and
conclusion of the court a quo cannot be faulted.
[10]
Section 26 of the Constitution obliges the State to take reasonable
legislative and other measures to bring about the realisation
of the
right of access to adequate housing. To give effect to this
obligation the State enacted the
Housing Act 107 of 1997
which
empowered the Minister to publish the National Housing Code in terms
of
s 4
of the
Housing Act. Section
4(3) provides that the Minister
must furnish a copy of the code to every provincial government and
municipality. The Minister of
Human Settlements, being the
functionary responsible for the administration of the
Housing Act and
as part of the code, promulgated the EHP. The main objective of this
programme is to provide temporary assistance in the form of
secure
access to land. Clause 2.3.1 (e) of the EHP provides that the
programme will apply to emergency situations of exceptional
housing
need, such as the one in this case, which are referred to as
emergencies. An emergency will exist when the Member of the
Executive
Council (MEC), on application by a municipality (the appellant in
this case) agrees that persons affected owing to situations
beyond
control: ‘Are evicted or threatened with imminent eviction from
land or from unsafe buildings, or situations where
pro-active steps
ought to be taken to forestall such consequences.’ The
appellant having been given more than one opportunity
failed even to
attempt to take advantage of applying to the MEC for assistance.
[11]
In
Government of the RSA v Grootboom & others
2001 (1) SA
46
(CC) paras 93 – 95, Yacoob J observed that:
‘
[93]
This case shows the desperation of hundreds of thousands of people
living in deplorable conditions throughout the country.
The
Constitution obliges the State to act positively to ameliorate these
conditions. The obligation is to provide access to housing,
health-care, sufficient food and water, and social security to those
unable to support themselves and their dependants. The State
must
also foster conditions to enable citizens to gain access to land on
an equitable basis. Those in need have a corresponding
right to
demand that this be done.
[95]
Neither section 26 nor section 28 entitles the
respondents to claim shelter or housing immediately upon
demand. The
High Court order ought therefore not to have been made.
However, section 26 does oblige the State to devise
and
implement a coherent, co-ordinated programme designed to meet
its section 26 obligations. The programme that has
been
adopted and was in force in the Cape Metro at the time that this
application was brought, fell short of the obligations imposed
upon
the State by section 26(2) in that it failed to provide for
any form of relief to those desperately in need of access
to
housing.’
The
reason to act positively is that the court seized with the eviction
application must consider in assessing whether it is just
and
equitable to evict the occupiers under s 4(7) of PIE, whether land
can be made available by the appellant for the relocation
of such
occupiers. (See
City
of Johannesburg v Changing Tides
2012 (6) SA 294
(SCA) paras 12, 18, 19 and 25.) In
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty)
2012 (2) SA 104
para 47 – 65) a local authority (like the
appellant in this case) was held to be obliged to have a plan to
address the needs
of occupiers facing the danger of being rendered
homeless as a result of their eviction from their homes.
[12]
Evictions in our country, are a serious social problem, which to a
great extent has been influenced by the socio-economic and
political
milieu, the poverty of the majority of the population accompanied by
the deleterious system of apartheid. Thus, the owners
of land, the
occupiers and the state, in this case especially the municipality,
must focus and be mindful that this social-ill
needs to be resolved
by all concerned by finding a solution. In other words it is a
responsibility requiring a collective resolution.
[13]
In conclusion, I cannot find any fault in the reasoning and order of
the court quo. The structural interdict asked for by the
respondent
is well-founded and appropriate relief in the circumstances. I am of
the view that the appellant owes the occupiers
a statutory and
constitutional duty to provide them with emergency accommodation.
Further, that the appellant failed to make adequate
provision for
such temporary emergency accommodation and thus is in breach of the
statutory and constitutional obligation owed
by it to the respondent
and the occupiers.
[14]
Regarding costs, it is trite that the court considering the issue of
costs exercises a judicial discretion. The appellant is
unsuccessful
and the respondent is the successful party. It follows as a matter of
principle that costs should follow the result.
(See
Affordable
Medicines Trust & others v Minister of Health & others
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
;
[2005] ZACC 3
para 139;
Biowatch
Trust v Registrar, Genetic Resources & another
2009
(6) SA 232
(CC) paras 21 – 23).) I find no cogent reason to
deviate from these authorities.
[15]
In the result I make the following order:
The
appeal is dismissed with costs including the costs of two counsel.
_______________________
J
B Z Shongwe
Acting
Deputy President Supreme Court of Appeal
Appearances
For
the Appellant:
J J Botha
Instructed by:
Smith van der Watt
Incorporated, Krugerdorp;
Symington De Kok,
Bloemfontein
For
the Appellant:
A W Pullinger (with him D Mokale)
Instructed by:
SSLR Incorporated,
Weltevredenpark;
Rossouws,
Bloemfontein