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[2018] ZASCA 76
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Ekurhuleni Metropolitan Municipality and Others v Thubakgale and Others (125/2018) [2018] ZASCA 76 (31 May 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case
no: 125/2018
In
the matter between:
EKURHULENI
METROPOLITAN MUNICIPALITY
FIRST APPELLANT
EXECUTIVE
MAYOR, EKURHULENI MUNICIPALITY
SECOND APPELLANT
CITY
MANAGER, EKURHULENI MUNICIPALITY
THIRD APPELLANT
HEAD
OF DEPARTMENT, HUMAN SETTLEMENT,
EKURHULENI
MUNICIPALITY
FOURTH APPELLANT
and
THUPETJI
ALEXANDER THUBAKGALE
FIRST RESPONDENT
EKURHULENI
CONCERNED RESIDENTS ASSOCIATION SECOND
RESPONDENT
THE
RESIDENTS OF WINNIE MANDELA INFORMAL
SETTLEMENT
THIRD TO 134
th
RESPONDENT
Neutral
citation:
Ekurhuleni
Metropolitan Municipality & others v Thupetji Alexander
Thubakgale & 134 others
(125/2018)
[2018] ZASCA 76
(31 May 2018)
Bench:
Ponnan, Swain and Mbha JJA and Davis
and Pillay AJJA
Heard:
2 May 2018
Delivered:
31 May 2018
Summary:
Municipality – right to housing –
dates fixed by court for delivery of houses incapable of fulfilment.
ORDER
On
appeal from
:
Gauteng
Division of the High Court, Pretoria (Teffo J sitting as court of
first instance):
1.
The appeal is upheld.
2.
Paragraphs 1.1 and 1.2 of the order of the high court are set aside
and substituted
with the following:
‘
1.
The first respondent is ordered to:
1.1
provide each of the first and third to one hundred and thirty-fourth
applicants (the residents)
with a house at Tembisa Extension 25, or
at another agreed location, on or before 30 June 2019;
1.2
register the residents as the titleholders of their respective erven
by 30 June 2020.’
3.
The first appellant shall pay the respondents’ costs, including
the costs
of two counsel.
JUDGMENT
Ponnan
JA (Swain and Mbha JJA and Davis and Pillay AJJA concurring):
[1]
On 15 December 2017 and on the application of the respondents, the
Gauteng Division
of the High Court (per Teffo J) issued the following
order against the first appellant, the Ekurhuleni Metropolitan
Municipality
(the Municipality):
‘
1.
The first respondent is ordered to:
1.1
provide each of the first and the third to one hundred and
thirty-fourth applicants (‟the
residents”) with a house
at Tembisa Extension 25, or an another agreed location, on or before
31 December 2018;
1.2
register the residents as the titleholders of their respective erven
by 31 December 2019;
1.3
deliver written reports to the residents, through their attorneys,
and to the registrar
and the court, not more than three months, from
the date of this order, and at three months intervals thereafter,
setting out the
timeline for completion of, and the progress which
has been made in providing, the houses referred to in paragraph 1.1
above.
2.
The second, third and fourth respondents are ordered to take all the
necessary
administrative and other steps necessary to ensure that the
first respondent complies with the order in paragraph 1 above.
3.
The respondents will establish a Steering Committee which will meet
quarterly
to oversee the process of construction. The Steering
Committee will include –
3.1
three representatives from the residents, to be chosen from the
residents to be chosen by
the residents themselves;
3.2
a representative from the second applicant;
3.3
representatives from the first, fifth and sixth respondents, one of
whom shall have direct
responsibility for the construction of the
houses to be provided to the residents.
4.
In the event that the respondents fail to comply with their
obligations in terms
of paragraphs 1 to 3 above, the applicants may
supplement their papers and enroll this application on 10 days’
notice for
further appropriate relief.
5.
The first respondent is directed to pay the applicants’ costs
including
the costs of two counsels.’
[2]
On 8 February 2018
Teffo J granted leave to the Municipality to appeal against
paragraphs 1.1 and 1.2 of her order. In its notice
of appeal filed
with this court, the Municipality contended that the effective dates
in those paragraphs should be the 31 December
2021 and 31 December
2022 respectively.
[3]
At the hearing of the
appeal on 2 May 2018, counsel for the Municipality took the view that
the dates fixed by Teffo J lacked a
proper factual foundation.
Whether that was so hardly need detain us, because it came to be
accepted by the parties that as the
evidence on record was dated,
leave should be granted to the: (a) Municipality to file an updated
progress report with the registrar
of this court; and (b) respondents
to file a response thereto, if so advised.
[4]
The Municipality states in its updated progress report dated 8 May
2018 that ‘the project manager . . . estimates
that
the houses in Phase 1 will be completed and ready for the 134
[Respondents] to occupy by 30 June 2019’. In an affidavit
filed
in response to the Municipality’s report, the respondents’
attorney persists in the assertion that the Municipality
is ‘more
than capable of providing the respondents . . . with the houses to
which they are entitled by the deadline the High
Court set: 31
December 2018’. There is, however, nothing in that affidavit to
gainsay the statement by the Municipality’s
that the houses
will only be ready for occupation some six months after the date
fixed by the high court. In these circumstances,
the dates fixed by
the high court, which are incapable of fulfillment, cannot stand. To
that extent the appeal must accordingly
succeed.
[5]
The Municipality commendably accepted that, irrespective of its
success in the appeal, it would be liable for the costs of the
appeal.
[6]
In the result:
1.
The appeal is upheld.
2.
Paragraphs 1.1 and 1.2 of the order of the high court are set aside
and substituted
with the following:
‘
1.
The first respondent is ordered to:
1.1
provide each of the first and third to one hundred and thirty-fourth
applicants (the residents)
with a house at Tembisa Extension 25, or
at another agreed location, on or before 30 June 2019;
1.2
register the residents as the titleholders of their respective erven
by 30 June 2020.’
3.
The first appellant shall pay the respondents’ costs, including
the costs of two counsel.
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
First to Fourth Appellants:
C Georgiades (with him Z Ngwenya)
Instructed
by:
Tshiqi
Zebediela Inc, Kempton Park
Matsepes
Attorneys, Bloemfontein
For
Respondents:
S
Wilson (with him I De Vos)
Instructed
by:
Socio
Economic Rights Institute, Braamfontein
Webbers,
Bloemfontein