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[2010] ZAWCHC 32
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City of Cape Town v All those adult males and females whose names are set out in in Annexure "hs1" to affidavit and who reside at Bluewaters Site B and C, Lukannon Drive, Strandfontein Western Cape and Others (5083/09) [2010] ZAWCHC 32 (24 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 5083/09
in
the matter between:
CITY
OF
CAPE
TOWN
Applicant
vs
All
those adult males and females whose
names
are set out in in Annexure "HS1"
to
the
founding affidavit and who reside at
Bluewaters
Site B and C, Lukannon Drive,
Strandfontein
Western Cape
First
to Two Hundred and Thirty Sixth Respondents
All
those persons whose identities are to
Applicant
unknown who are unlawfully
occupying
Bluewaters Site B and C,
Lukannon
Drive, Strandfontein, Western Cape
Two
Hundred and Thirty Seventh Respondent
JUDGEMENT
HANDED DOWN THIS
24
th
DAY
OF FEBRUARY 2010
BACKGROUND
[1]
Respondents are all internally displaced persons (IDP's)
1
as a result
of
xenophobic
attacks on foreign nationals during the course of May 2009 in the
Cape Town
area.
1
hey
were forced to flee the communities in which they lived.
2
[2]
The Applicant and the Province co-operated in dealing with the
difficulties ensuing from the disaster, with the Applicant initially
driving the recovery processes and setting up the Disaster
Risk
Management Centre.
3
The Applicant housed affected foreign national in emergency
accommodation at various sites across the Cape Peninsula.
[3]
Those affected individuals who came to occupy the Bluewaters Site B
and C, situated at Lukannon Drive, Strandfontein, Western
Cape
('Bluewaters') during September 2008 initially did so with the
consent of the Applicant.
4
[4]
Once the emergency situation which had been caused by the xenophobic
attacks had abated, the Applicant informed the Respondents
that they
had to vacate the property. At this stage a number of individuals had
already been repatriated or reintegrated into the
community,
resulting in the consolidation of the safety zone camps into two
sites, namely Bluewaters and Harmony Park.
[5]
With
the steady decline
of
the
number
of
refugees
in the area and the consolidation of the camps, the United Nations
High Commission for Refugees (UNHCR) advised the IDPs
that there were
three sustainable solutions for them following their displacement,
namely the return to the same
or
similar
local communities (reintegration), return to their countries of
origin (repatriation), or relocation to a third country
outside South
Africa (resettlement). As appears from the facts of the case,
relocation to another area within the boarders of South
Africa also
fall within the resettlement option.
[6]
The Respondents refused to vacate Bluewaters based on the fact that
they are a particularly vulnerable group and it would be
impossible
to be reintegrated or resettled. The Applicant submitted that the
Respondents refusal has resulted in their unlawful
occupation of the
property since October
2008.
5
[7]
Before the City of Cape Town brought the application to remove the
Respondents, it offered them a resettlement package with
the
assistance of the UNHCR, taking all reasonable and necessary steps to
secure the voluntary vacation of Bluewaters.
6
In terms of the offered package, the City of Cape Town offered to
move the particularly vulnerable group to Blikkiesdorp in the
Delft
area.
7
Respondents refused the resettlement to Blikkiesdorp, claiming that
it is not safe there.
[8]
As a result of the fact the Respondents' refusal to accept the
relocation package and the deteriorating conditions at Bluewaters
(no
water, electricity
and
sanitation)
8
the Court is called upon
to
consider
the Applicant
's
request
for
an
eviction
order.
[9]
On
18
March
2009 the Applicant applied to this Court (as required
by
s 4
(2)
of PIE) for an order to issue and serve
on
the
Respondents notices containing the PIE required
s
4(5)
information. The
s
4(2)
notices were duly served on the Respondents on 27 March 2009,
9
giving them more than the minimum 14 day notice period prescribed by
PIE.
PROCEDURAL
REQUIREMENTS
OF S
4
OF
P!E
[10]
The Applicant has brought an application for the eviction of the
Respondents in terms of s
4
(6)
of PIE that reads as follows:
"If
an unlawful occupier has occupied the land in question for less than
six months at the time when the proceedings are initiated,
a court
may grant an order for eviction if it is of the opinion that it is
just
and equitable
to do so, after
considering
all the relevant circumstances,
including the rights and needs of the elderly, children, disabled
persons and households headed by women. "
10
[11]
The Respondents were relocated to Bluewaters during September 2008.
In October 2008 the Applicant informed them that they must
vacate the
premises, "through this notice the Applicant withdrew its
consent required for lawful occupation of the property.
Due to their
refusal to vacate the property, the Respondents are unlawful
occupiers within the ambit of the Act, even though they
initially
resided there lawfully.
11
The fact that the Applicant instituted proceedings in March 2009 also
places it within the "less than sixth months" time
period
prescribed by the Act. The application therefore falls within the
scope
of
s
4(6)
of
PIE.
Respondents
argue that
it
would not
be
just and equitable for them to be evicted.
[12]
The
task
of
the judiciary
in
determining
whether the eviction
can
be
described as just and equitable regard must be had to the underlying
holistic purpose of PIE. PIE was enacted with the objective
to
overcome abuses associated with evictions in the past through
depersonalised processes, by calling for the judicial consideration
of "the life circumstances of those being expelled ... [through]
humanised procedures that [focus] ... on fairness to
all.
"
12
The
judiciary is now tasked "to hold the balance between illegal
eviction
and
unlawful
occupation".
13
This calls for the exercise of
a
discretion
in balancing "the proprietary rights of the owner and the basic
human rights of the unlawful occupier",
14
but also calls for "[considerations beyond those immediate to
the parties, such as the national, social and economic context".
15
Consequently, there rests an obligation on the Court, in terms of PIE
and the Constitution, to take into considerations all relevant
circumstances in evaluating the justice and equity of an eviction
application.
16
[13]
With regard to this obligation, it must be noted that
a
range
of factors call for consideration in the application before the
Court, namely the differing conditions and factors within
the group
regarding the legitimacy of their
presence
in
the
country, .he varying degrees
of
individual vulnerability
and
the
fact
that
some
families have no breadwinners and are headed by women, to name but
a
few.
[14]
In
Port
Elizabeth Municipality v Various Occupiers,
17
the Constitutional Court explained that a court, in exercising its
discretion when weighing up all the relevant factors must consider
whether consultation (and where appropriate mediation) have taken
place.
18
[15]
Throughout this whole ordeal, the Applicant attempted to promote
dialogue between all the stakeholders
19
and encouraged the participation of the
IDPs
in
attempts to seek a viable solution. It was submitted on behalf of the
Applicant that it was with the awareness of
the
obligation
to pursue justice and equity that it began a process of engagement
with the
Respondents
in order to arrive at solutions that would ensure that
he
removal
of the Respondents from Bluewaters proceeded in
a
dignified
manner, recognising the Respondents' individual vulnerabilities and
taking all steps possible to address those difficulties.
This
approach by the Applicant is commendable.
[16]
The Applicant, NGO's and the UNHCR ultimately offered to help with
relocation, but the Respondents refused this gesture. It
was
accordingly submitted that, although the Respondents had an equal
voice in the Stakeholders Forum, they failed to demonstrate
a genuine
commitment to the finding of solutions to alleviate the extent to
which they would be adversely affected once evicted
from Bluewaters.
The Constitutional Court has recently again emphasised the importance
of cooperation:
"It
must be understood that the process of engagement will work only if
both sides act reasonably and in good faith. The people
who might be
rendered homeless as a result of an order of eviction must, in their
turn, not content themselves with anintransigent
attitude or nullify
the engagement process by mating non-negotiable, unreasonable
demands. "
20
[17]
it was further argued, on behalf of the Applicant, that it would be
insufficient for the Respondents merely to assert that
they are
entitled to remain at the Bluewaters camp merely because the
atmosphere at Bluewaters (a foreigners' enclave if one can
call it
that) is more congenial than the atmosphere found elsewhere and
security at that camp provides greater peace of mind than
would be
enjoyed if living in the open community.
[18]
Council for the Respondents however emphasised the particularly
vulnerable character of the group of foreigners residing at
Bluewaters as an important consideration calling for the Court's
attention.
PARTICULARLY
VULNERABLE GROUP
[19]
Although the Constitutional Court in
Occupiers
of 51 Olivia Road. Berea Township and Others v City of Johannesburg
and Others
21
did
emphasise that "[engagement has the potential to contribute
towards the resolution of disputes and to increased understanding
and
sympathetic care if both sides are willing to participate in the
process,'' the Court also acknowledged that considerations
surrounding the vulnerability of a group can hinder proper
engagement:
"People
about to be evicted may be so vulnerable that they may not be able to
understand the importance of engagement and may
refuse to take part
in the process. If this happens, a municipality cannot walk away
without more. It must make reasonable efforts
to engage and it is
only if these reasonable efforts fail that a municipality may proceed
without appropriate engagement. It is
precisely to ensure that a city
is able to engage meaningfully with poor, vulnerable or illiterate
people thatthe engagement process
should preferably be managed by
careful and sensiiive people on its side. "
22
[20]
I
t
can
accordingly be argued that the particular vulnerability of the IDPs
at
Bluewaters
prevented them from fully engaging with the other Stakeholders. This
is
a
factor
to take into consideration, but it does not take anything away from
the good faith efforts made by the Applicant to involve
the
Respondents in searching for
a
solution.
[21]
Particularly vulnerable individuals or groups are -hose people who
are not in a position within our society to protect themselves.
23
In
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others,
24
the
Constitutional Court recognised the vulnerability of foreign
nationals who are refugees:
'Refugees
are unquestionably a vulnerable group in our society and their plight
calls for compassion. As pointed out by the applicants,
the fact that
persons such as the applicants are refugees is normally due to events
over which they have no control. They have
been forced to flee their
homes as
a
result
of persecution, human rights violations and conflict. Very often
they, or those close to them, have been victims of violence
on the
basis of very personal attributes such as ethnicity or religion.
Added to these experiences is the further trauma associated
with
displacement to
a
foreign
country. "
25
It
Is
accordingly
accepted
that refugee status implies
'a
special
vulnerability,
since refugees are by
definition
persons
in
flight
from the threat of serious
humar
ights abuse."
26
[22]
it was the aim of the established Stakeholders Forum to identify the
vulnerabilities to which the Respondents were subject
as a
result
of
the xenophobic attacks. The dialogue promoted
by
the
Stakeholders was in pursuit
of
an
appropriate response to the vulnerabilities of the group. ~he hand of
assistance extended to the Respondents in an attempt t
o
support
them due to their vulnerable position in the current societal milieu
has been rejected.
[23]
Due to their vulnerable position it is undeniable that
they
cannot
be sent back to their countries of origin if those counties remain
unsafe. Repatriation is admittedly not an option at present.
[24]
Some foreigners previously residing in the safe zones provided by the
Applicant have reintegrated into their communities. The
majority of
the remaining IDPs in Bluewater have however not attempted
reintegration in any manner or form.
As
a
result they have no knowledge of the possible threat they could face
or the degree of their vulnerability in those communities.
Arguably
some will not be able to reintegrate into the communities in which
they were subjected to xenophobic attacks a little
more than a year
ago, as a high degree of intolerance is still prevalent in some
areas, with the recent incident in De Dooms
as
an
example of the continuing threat to foreigners in certain parts of
South Africa.
[25]
However, relocation is a viable option for those who cannot be
reintegrated. In fact, relocation is a necessary step for those
individuals whose degree of vulnerability renders them ill-suited for
reintegration, given the deteriorating living conditions
at
Bluewaters. Council on behalf of the Respondents placed reliance on
the principle of ubuntu in petitioning for the continued
occupation
of Bluewaters by the remaining IDPs. As submitted on behalf
of
the
Respondents,
"ubuntu translates
as
humaneness"
27
and envelops, along with the values of group solidarity, compassion,
and collective unity, also
the
values
of
human
dignity and respect.
28
There
is
nothing
dignified and respectful
of
the
deteriorating living conditions at Bluewaters. Relocation will
furthermore not negatively impact on the values of group solidarity
and collective unity. The Applicant and the other Stakeholders have
in fact extended a helping hand in an act of compassion and
justice.
Relocation
is
a
necessary step if one considers "the
rights
and needs
of
the elderly, children, disabled persons and households headed by
women"
29
as directed by s
4
(6)
of PIE. The relevant
rights
(dignity,
humane treatment) call for an improvement in the conditions of the
remaining IDPs.
30
The Applicant (with the assistance of the UNHCR) is also making
available an alternative place of residence as required to give
substantive effect to the rights calling for consideration. The
associated
needs
similarly
call for 'considerations which would have to be satisfied to give
substance to the rights."
31
Socioeconomic considerations are therefore called upon and also
endorse the proposed improved living conditions.
[26]
If relocation of those sufficiently vulnerable individuals can be
realised, the Applicant can set about transforming the currently
unlawfully occupied area into revenue creating recreational area.
With such endeavours the Applicant will be providing services
to
communities in a sustainable manner, promoting social and economic
development and encouraging the involvement
of
communities
and community organisations in matters of local government. Through
such action the Applicant will be fulfilling its
constitutional
obligation to "improve the quality of life of
all
citizens
and
free the potential of
all
people."
32
This
obligation is an important consideration
(seen
within the national, social and economic context) beyond the
immediate considerations affecting the Applicant and the Respondents.
This fact was also emphasised by the Constitutional Court in
Residents
of Joe Slovo Community, Western Cape
v
Thubeiisha
Homes and Others:
33
"It
is true, as is emphasised by the amid, that this relocation would
entail immense haraship. I have considerable sympathy
with the
applicants, but there are circumstances in which this Court and ail
involved have no choice but to face the fact that
hardship can only
be mitigated but can never be avoided altogether. The human price to
be paid for this relocation and reconstruction
is immeasurable.
Nonetheless it is not possible to say that the conclusion of the City
of Cape Town, to the effect that infrastructural
development is
essential in the area and that the relocation of people is necessary,
is unreasonable. There are circumstances in
which there is no choice
but :o undergo traumatic experiences so that we can be better off
later."
34
[27]
The attitude of the Respondents during the negotiation phase, and the
ultimate rejection of offers of assistance, leaves the
impression
that they seek as a right the indefinite continuation of the
preferred and special treatment at Bluewaters which they
are now
receiving.
[28]
Although it is true, as submitted on behalf of the Respondents, that
the circumstances in which they came to be residing at
Bluewaters
were not of their own making, they cannot be allowed to manipulate
the situation due to their status as particularly
vulnerable
individuals at the cost of the land owner and the community at large.
With due regard to the relevant circumstances
in the case, the Court
is exercising its discretion in favour of the Applicant, subject to
certain requirements that i deem necessary
for the eviction to be
just and equitable
[29]
The Court accordingly orders that:
1.
The respondents vacate the Bluewaters Site B and C owned by the
Applicant (hereinafter referred to as "the property"),
by
no later than 31 March 2010.
2.
The respondents, listed in annexure "A" hereto, who have
been identified
by
the
United Nations High Commissioner
for
Refugees
(UNHCR) in terms of its own assessment criteria as 'vulnerables',
together with their immediate family members, shall vacate
the
property in terms
of
clause
1 above, but shall be relocated to
a
maximum
of 40 accommodation units at :ne Applicant's existing Delft Temporary
Relocation Area (herein after referred to as "TRA"),
each
unit being an 18m2 insulated wooden and metal framework structure
including a roof and windows, erected on a concrete slab,
situated on
a site serviced with electricity, water and sanitation. These
accommodation units shall be allocated to the vulnarables
listed in
Annexure "A", together with their immediate family members,
by the applicant prior to their relocation. The
reasonable cost of
such relocation, being the transportation of the vulnerables and
their immediate family members and their belongings
to the TRA shall
be arranged and paid for by the Applicant.
3.
The applicant shall:
3.1
in order to assist with the re-integration of the respondents into
the greater Cape Town community, provide skills training
to those
respondents who elect to receive same, at the applicant's cost, to a
maximum sum of R300 000.00 (three hundred thousand
P.and). This
skills training shall be arranged and
provided
by
a
forum
of non-government organizations
who
have
been working with the respondents to date, known as the Livelihood
Task Team and comprising of Scalabrini, PASSOP, Cape Town
Refugee
Centre ("CTRC"), Bonne Esperance and Arresta. The skills
training will consist of life skills training, English
language
lessons and various trade skills as determined by the outcome of a
needs analysis that will be conducted by the Livelihood
Task Team.
The final sum which shall be allocated to this service shall be
determined after the respondents have made their election
in terms of
clause 4.1 hereinbelow: and such final sum shall then be allocated by
the Livelihood Task Team to the Respondents who
request skills
training, on a case by case basis, in their sole discretion.
3.2
Provide trauma counseling to those respondents that require same
and who elect to receive same, which counseling shall be
provided by
the Cape Town Trauma Centre at the Applicant's cost, at the property,
to a maximum sum of R100 000.00 (one hundred
thousand Rand). The
final sumwhich shall be allocated to this service shall be determined
after
the Respondents have made their election in terms of clause 4.1
hereinbelow; and such final sum shall then be allocated by the
Cape
Town Trauma Centre to the respondents who request trauma counseling,
on a case by case basis, in their sole discretion.
4.
On vacation of the property by the Respondents in terms of this
Order, each family unit or individual, as the case nay be,
shall be
entitled to
apply
for
a
once
off relocation payment from the
UNHCR,
in a
predetermined
amount,
as
delivered
and administered
by
the
UNHCR
in
its
discretion.
4.1.
Those Respondents who elect neither to undergo the skills training
not the trauma counseling or one thereof referred to
in
clauses
3.1 and 3.2 above, shall be paid their proportionate share from the
maximum funds allocated by the applicant for these purposes
as
referred to in clauses 3.1 and 3.2 above; together with any
relocation payment made by the UNHCR, referred to in paragraph 4
above, upon vacation of the property.
4.2.
The election of each Respondent in respect of life skills training
and trauma counseling shall be made and communicated to
the applicant
by the respondents within in 10 (ten) days of this agreement being
made and Order, failing which the Applicant shall
be entitled :o
assume that the respondent in question has elected to proceed with
life skills training and trauma counseling as
opposed to payment of
the
pro
rata
cash
equivalent.
5.
It is recorded that all the respondents have been given the necessary
assistance by the applicant to obtain the requisite documentation
form the Department of Home Affairs in order to legitimize their
continued residence in South Africa. The applicant shall accordingly
be obliged to comply with the terms of this Order only in respect of
those respondent who are lawfully resident in South Africa.
6.
All the respondents, whether lawfully resident
in
-South
Africa or not, shall be obliged to vacate the property by
no
later
than
31
March
2010; and agree that in the event of them not so vacating the
property, the applicant may request the Sheriff to evict them
without
further notice.
7.
All payments
to
be
made by the applicant :o the service providers referred to in clauses
3.1 and 3.2 above, i.e. in respect of those respondents
who choose to
make use of same, snail be paid directly to the sen/ice providers
concerned by the applicant on receipt of an invoice.
In respect of
those respondents who decline the offer of life skills training and
trauma counseling, their
pro
rata share
of
the maximum sums available will be paid directly to the UNHCR by the
applicant to disburse to those respondents on behalf of
the applicant
upon their vacation of the property, on or before 31 March 2010.
8.
It is specifically recorded that the applicant's financial
obligations In respect of the implementation of this Order, (other
than in respect of the costs of the TRA accommodation for the
vulnerable and their immediate family members as listed in annexure
"A" hereto, and the reasonable relocation costs which are
also for applicant's account), is which sum shall be disbursed
strictly in accordance with the provisions of this order.
9.
Those respondents who are lawful residents of South Africa (this
being defined, as those respondents who
s
,ave
made, or are currently in the process of making, application for
refugee status with the relevant authorities, appealing the
refusal
of same or have applied for the condonation of the late appeal of
same); and are not opposing this application will be
given the same
rights and opportunities as the respondent who have opposed this
application on the same terms and conditions as
are set out herein.
10.
Should any respondent fail to vacate the property by 31 March 2010,
the Sheriff of the Court is authorized summarily to evict
that person
and to remove any of the materials and/or possessions, which shall be
kept in safekeeping by the applicant for a period
of 60 (sixty) days,
calculated from 1 February 2010, or until access thereto is requested
by the lawful owner, whichever is the
sooner. In the event of no such
request being received within a period of 60 (sixty) days, then the
applicant shall be entitled
to dispose of the said items, in its sole
discretion.
11.
No order is made as to costs.
NC
ERASMUS J
1
The
1998 UN Guiding Principles on Internal Displacement (UN Doc
E/CM.4/1998/53/Add.2) defines IDPs as follows: 'Persons or groups
of
persons who have been forced or obliged to flee or to leave their
homes or places of habitual residence, in particular as
a result of
or in order to avoid
the
effect
of armed conflict, situations or generalized violence, violations of
human rights or natural or human-made disasters, and
who have not
crossed an internationally recognized state border." General
consensus as to the definition of iDPs in International
Law still
evades the legal community. For purposes of this case, the U N
definition is adequate enough to identify the Respondents
in this
case as IDPs. In this case the status of the respondents as refugees
and refugee or asylum seekers were not challenged.
2
The
Western Cape Province classified the displacement of foreign
nationals as a provincial disaster, and declared a provincial
state
of disaster in terms of
section 41
of the
Disaster Management Act 57
of 2002
.
3
The
services provided included health, ambulance and emergency services,
policing by the South African Police Service, assistance
from the
South African National Defence Force, and immigration/refugee
assistance under the guidance of the Department of Home
Affairs. The
Applicant was later assisted by the national and provincial spheres
of government with regard to health, education,
food suppiy, social
and communication services. The Applicant however remained in
effective control of the management of the
day to day operational
requirements.
4
Bluewaters
Is one of five safety zones established by the applicant. The others
zones being Soetwater, Silverstroom, Harmony Park
and Youngsfield
Military Base. With the exception of the latter, all the others
zones are camps and recreational sites.
5
In
terms of
s 1
of
PIE
an
'unlawful occupier' is defined as "a person who occupies land
without the express or tacit consent of the owner or person
in
charge, or without any other right in law to occupy such land,
excluding a person who is an occupier in terms of the
Extension of
Security of Tenure Act, 1997
, and excluding a person whose informal
right to land, but for the provisions of this Act, would be
protected by the provisions
of the Interim Protection of Informal
Land Rights Act, 1996 (Act No. 31 of 1996)."
6
A
stakeholders forum was also set up in wnich the City, the !DPs and
the UNCHR could constructively engage with one another regarding
the
proposed move from Bluewaters.
7
A
list has been identified as to who falls within the particularly
vulnerable group.
8
It
appears that the health services and sanitation facilities In the
camp have deteriorated as a result of the use and unfortunately
abuse of these services
9
The
s 4(2) notices were translated into French, Swahili, Somali, Arabic,
Portuguese, Xinyarwanda, Shona and Ndbele.
10
Own
underlining.
11
Ndlovu
v Ngcobo, Bekker and Another v Jika
[2002] 4 All SA 384
(SCA) at Par
11 per Harms AJ
12
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at par 13 per Sachs J.
13
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at par 13 per Sachs J.
14
LAWSA
Vol 11 par 684.
15
LAWSA
Vol 11 par 684. See also
Absa
Bank Ltd v Murray
2004
2 SA 15
(C);
2004 1 BCLR 10
(C). Cf the factors taken into in
Pedro
v Greater George Transitional Council
[2001]
1 All SA 334
(C);
Modderklip
Boerdery (Pty) Ltd v Modder East Squatters
2001
(4) SA 385
(W);
Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter
[2001]
1 All SA 381
(E);
Ridgway
v Janse van Rensburg
[2002]
2 All SA 506
(C);
City
of Cape Town v Unlawful Occupiers, Erf 1800, Capricorn (Vrygrond
Development)
[2003]
3 All SA 371
(C);
Baartman
v Port Elizabeth Municipality
2004
(1) SA 560
(SCA);
FHP
Management {Pty) Ltd v Theron
[2003]
2 Ail SA 516 (C);
Port
Elizabeth Municipality v Various Occupiers
2004
(12) BCLR 1268
(CC);
Davids
v Van Straaten
[2005] ZAWCHC 16
;
2005
(4) SA 468
(C);
Cashbuild
(SA) (Pty) Ltd v Scott
2007
(1) SA332 T).
16
See
LAWSA Vol 11 par 684.
17
2005
(1)SA217 (CC).
18
In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at par 43 the Constitutional Court reasoned that an
eviction will "not ordinarily be just and equitable if proper
discussions,
and where appropriate, mediation, have not been
attempted."
19
The
stakeholders included the Applicant (City of Cape Town), the UNCHR,
its NGO implementation partners, civil society, the Department
of
Home Affairs and the Respondents (IDPs) themselves.
20
Occupiers
of 51 Olivia Road, Berea Township and Others v City of Johannesburg
and Others
[2008] ZACC 1
;
2008
(5) BCLR 475
(CC) at par 20. See also
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at par 41 per Sachs J.
21
[2008] ZACC 1
;
2008
(5) BCLR 475
(CC).
22
Occupiers
of 51 Olivia Road, Berea Township and Others v City of Johannesburg
and Others
[2008] ZACC 1
;
2008
(5) BCLR 475
(CC) at par 15.
23
See
for example
Fraser
v Naude and Others
1998
(11) BCLR 1357
(CC);
Minister
of Welfare and Population Development v Fitzpatrick and Others
[2000] ZACC 6
;
2000
(7) BCLR 713
(CC);
Government
of the Republic of South Africa and Others v Grootboom and Others
2000
(11) BCLR 1169
(CC);
Bannatyne
v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
[2002] ZACC 31
;
2003
(2) BCLR 111
(CC);
Bhe
and Others v Magistrate, Khayelitsha, and Others (Commission for
Gender Equality as Amicus Curiae)
[2004] ZACC 17
;
2005
(1) SA 580
(CC).
24
2007
(4) 3CLR 339 (CC).
25
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others
[2006] ZACC 23
;
2007
(4)
BCLR
339
(CC) at par 26.
26
Hathaway
(ed)
Reconceivinq
international Refugee Law
(Martinus
Nijhoff Publishers, London 1997) at 8 as quoted in
Union
of Refugee Women and Dthers v Director: Private Security Industry
Regulatory Authority and Others
[2006] ZACC 23
;
2007
(4) BCLR 339
'CC)
at
par 29.
27
S
v
Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at par 308.
28
S
v
Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at par 308.
29
Emphasis
added.
30
The
Constitutional Court in
Dawood
and Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC)
confirmed
that right (not exclusively reserved for South African citizens)
such as the right to dignity is extended to all individuals
within
t
he
borders
of the country.
31
ABSA
Bank Limited v Murray and another
2004
(2) SA 15
(
Z)
at
par 28.
32
See
the premeable of the 1996 Constitution Emphasis added
33
2009
(9) BCLR 347
(CC).
34
Residents
of
,oe
Slovo
Community, Western Cape v Thubeiisha Homes and Others
2009
(9) BCLR 347
I
-C)
at
par 107.