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[2010] ZAWCHC 91
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Omar NO v Omar and Others (9643/07) [2010] ZAWCHC 91 (11 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No. 9643/07
In
the matter between:
OMARJEE
ESSOP MOHAMED OMAR N.O. (in his capacity as trustee of the
Essop
Mohamed Omar Will Trust)
Applicant
and
EBRAHIM
ESSOP MOHAMED OMAR
First
Respondent
AHMED
ESSOP MOHAMED OMAR
Second
Respondent
ANWA
ESSOP
Third
Respondent
LATIEFA
EDRIES
Fourth
Respondent
JANEY
HALIM
Fifth
Respondent
SHANAAZ
SAMUELS
Sixth
Respondent
MAGDALENE
GEORGE
Seventh
Respondent
REDIWAAN
PHILANDERS
Eighth
Respondent
MOGAMAT
ABRAHAMS
Ninth
Respondent
VERONICA
BART
Tenth
Respondent
NADIA
ROSSIE
Eleventh
Respondent
ALLIE
RHODE
Twelfth
Respondent
JUDGMENT
DELIVERED ON 11
th
DAY OF MAY 2010
BINNS-WARD
J:
[1]
During the 1940's, the late Essop Mohamed Omar acquired certain
immovable property in an area of Cape Town best known as District
Six. The property is currently designated as Erven 8504, 8505 and
8513, Cape Town. It is on land bordered by Nelson, Pontac and
Aspeling Streets. A number of small dwelling houses stand on the
property. These have been occupied by various family members of
Mr
Omar and also by some longstanding tenants. One of the tenants, who
passed away after the issue of the papers in this application
and
before the hearing, had lived on the property since 1916. She had
come to the property with her parents as a seven year old
child. Her
daughter is the tenth respondent. The property is situated in a small
section of District Six on the western side of
the Eastern Boulevard
that was left physically untouched by the mass removals and
demolition that affected most of District Six
in one of the well
known notorious chapters of apartheid history.
[2]
The late Mr Omar died in 1969. In terms of the joint Will executed by
him and his subsequently deceased wife, the late
Mrs
Bibi Suyleman Omar, the property vested in a testamentary trust until
the latter's death in 2001. The Will provided that upon
the
termination of the trust, the residue of the estate was to devolve on
four of the children of the late Mr and Mrs Omar. The
immovable
property in issue in the current case forms part of that residue. The
bequest caused discord in the family because it
excluded some of
children. The family discord was settled in terms of a so-called
redistribution agreement, which provided that
eight of the Omar
children should inherit the residue of the estate upon the death of
the late Mrs Bibi Omar.
[3]
The applicant in the current matter is the eldest son of the late Mr
and Mrs Omar. He sues in his capacity as the sole trustee
of the
Essop Mohamed Omar Will Trust. He seeks an order that the respondents
and all those occupying the property under them be
ordered to vacate
the property, failing which that they be evicted therefrom. The
application was instituted in terms of s 4 of
the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
('the PIE Act'). The applicant requires
the property to be vacated so
that he can sell the property and pass vacant possession to the
purchaser. The applicant's intention
is to distribute the free
proceeds of the sale to the residuary heirs and to formally wind up
the trust in accordance with the
Will.
[4]
The current application was launched in July 2007, when the applicant
sought and was granted an order that a 'section 4(2) notice',
a copy
of which was attached to the notice of motion in the preliminary
application brought
ex
parte,
be
'authorised and issued'. The s 4(2) notice succinctly set out the
grounds of the principal application and the nature of the
substantive relief that was sought. It informed the respondents of
the date upon which the principal application had been set down
for
hearing and advised them of their entitlement to appear and defend
the case, as well as their right to apply for legal aid.
All the
respondents opposed the application; although by the time of the
hearing the fifth, sixth and twelfth respondents had voluntarily
vacated the property and no longer had an interest in the
proceedings.
[5]
The applicant had for some time prior to the institution of the
current application been engaged in various endeavours to wind
up the
trust. These endeavours, which I do not find it necessary to
particularise, had entailed engagement with the testamentary
heirs
and the occupants of the property in order to try to find an
agreedbasis for the disposition or transfer of the property.
In this
regard consideration had been given to the subdivision of the
property, but after expert advice had been taken and regard
had to
the limited means of the trust, this had been discarded as
impracticable. The various measures considered by the applicant,
including an attempt by him to sell the property on auction, had
given rise to heated opposition, during the course of which the
occupants of the property enlisted the support of a community trust
involved in representing the interests of the District Six
land
restitution claimants.
1
[6]
Part of this history led to the institution of an application
2
by one of the heirs, one Moosa Essop Mohamed Omar,
3
for an order to the following effect:
1.
Declaring that the only power granted to the First Respondent
[i.e.
the applicant in the current case]
in
terms of the will in relation to the rest and residue
4
of the estate is to transfer the properties into the names of all the
beneficiaries jointly, alternatively, to subdivide the rest
and
residue of the estate and to transfer the subdivided units into the
names of the beneficiaries;
2.
Directing the First Respondent to transfer the rest and residue of
the estate into the names of the beneficiaries jointly,
alternatively,
as subdivided units;
3.
Directing
that the costs of this application be costs in the winding up of
5
the
Trust....
[7]
The application to compel the transfer of the property to the Will
beneficiaries in joint ownership, or in subdivided units
was
dismissed (by Jamie AJ). In the reasons for judgment it was held that
the Will did not prescribe how effect was to be given
to the bequest
and that the first respondent in that case (the applicant in this
case) had unrestricted authority to implement
the bequest as he saw
most practicable, including by alienating the assets in order to
render the proceeds susceptible to division
in equal shares between
the beneficiaries. It follows that there can be no argument at this
stage against the applicant's entitlement
to sell the property for
the purpose aforementioned and, if it should facilitate the execution
of that objective, to seek the eviction
of any person currently
unlawfully occupying the property.
[8]
There was some attempt in the answering papers to argue that the
respondents have not been given valid notice to vacate the
property
and that they are not unlawful occupiers. I find itunnecessary to
examine these arguments in any detail. While not abandoned,
they were
not pursued with any enthusiasm at the hearing by Mr
Wilkin,
who
appeared at hearing as counsel for the first to fourth and seventh to
twelfth respondents; rightly so in my opinion.
6
Suffice it to say that I am satisfied that the respondents have all
been given sufficient and effective notice to vacate the properties
and that in disregard of such notice they have remained there
unlawfully.
[9]
The effect of the PIE Act is that, if the property in question
happens to be the unlawful occupier's home, the owner is not
entitled
on common law grounds to obtain the eviction of the occupier simply
because the occupier's presence on the property is
unlawful. An
eviction order can be made only after all the relevant circumstances
have been considered by the court and the court
concludes upon such
consideration that it would be just and equitable to make the order.
Sub-sections 4(7),(8) and (9) of the PIE
Act are applicable in the
current case. Those sub-sections provide:
(7).
If an unlawful occupier has occupied the land in question for more
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, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the
relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.
(8).
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).
(9)
In
determining a just and equitable date contemplated in subsection (8),
the
court must have regard to all relevant factors, including the
period the
unlawful occupier and his or her family have resided on
the land in question.
[10]
Before addressing whether it would be just and equitable to make an
order as sought by the applicant, and if so, upon what
terms, it is
necessary to deal with three issues raised by the respondents
in
limine.
These
were (i) a procedural objection to the amenability of the application
to determination in the absence of a notice of motion;
(ii) an
objection to the matter being heard before the receipt of an improved
report from the local municipality and (iii) an objection
to the
application being heard before mediation by the municipality, as
contemplated in terms of s 7 of the PIE Act, had been attempted.
After hearing argument on these preliminary issues I declined to
uphold them and indicated that I would furnish my reasons in the
judgment on the merits of the main case.
Absence
of notice of motion
[11]
As mentioned earlier, the relief sought by the applicant was set out
in the notice served on the respondents in terms of s
4(2) of the PIE
Act. As required by the Act, the notice in terms of s 4(2) was also
served on the municipality (which was later
joined as the thirteenth
respondent). The notice in terms of s 4(2) was accompanied by the
founding affidavit made in support of
the relief sought in the
principal application. (I distinguish the 'principal application'
from the application for permission
to serve the s 4(2) notice, which
was moved in terms of a notice of motion moved in
ex
parte
proceedings.)
There was no notice of motion setting out the relief sought in the
principal application, as required in terms of
rule 6(1) and (2) of
the Uniform Rules.
[12]
The objection to the absence of a notice of motion is well-taken from
a technical point of view. The time at which the objection
should
have been taken, however, was before the delivery of any answering
papers. As matters transpired, the respondents filed
a full set of
answering papers traversing the merits of the principal case at
length. They do not appear to have been in any way
embarrassed by the
absence of a notice of motion. They were adequately informed by the
notice in terms of s 4(2) of the relief
that was being sought by the
applicant. The applicant then filed a replying affidavit. In
addition, the matter was thereafter postponed
by order of court made
by agreement between the parties on 31 August 2009; in terms of
which, amongst other things, the municipality
was joined as a
respondent in the application and directed to file a report, to be
confirmed on affidavit, dealing with various
matters. The order
granted the respondents leave to respond on affidavit to such report.
[13]
The order made on 31 August 2009 contained (in paragraph 4 thereof) a
rather curious provision:
4.
The matter is postponed until 21
st
April 2010, for consideration of the matter, including, if
appropriate, the possibility of mediation to seek a resolution of the
matter and such other interim or final order, as it may be considered
appropriate.
4.1
On the 21
st
April 2010 Applicant shall ask for the relief as set out in its
'Notice of Motion', a copy whereof is attached hereto marked "A".
4.2
Respondents specifically reserve the right to dispute that said
document indeed constitutes a valid notice of motion or that
this
'application' has been properly initiated or pursued.
Attached
to the order, as annexure A, was a document entitled 'notice of
motion'. It gave notice of the applicant's intention to
apply for the
relief set out therein on 21 April 2010 and stated that the
affidavits filed of record would be used in support of
the
application. The order of court and annexed 'notice of motion' were
served by the Sheriff on all the respondents, with the
exception of
the eighth respondent.
[14]
It is evident on the record that all the respondents, including the
eighth respondent, have notice of these proceedings and
that all of
them who are opposed to the relief sought are represented by counsel.
The opposing respondents have filed answering
papers and were party
to obtaining an order joining the City of Cape Town as the thirteenth
respondent and imposing on the City
the obligation of filing a report
confirmed on affidavit. It is taking technicality to absurd lengths
for the respondents to suggest
in the circumstances I have just
described that the application should not be heard because the
provisions of rule 6 were not complied
with at the outset. It has
been pointed out on several occasions in the past that the rules of
court are there for the court; and
not the court for the rules. The
rules are applied to facilitate the administration of justice, not to
hinder it. As it is, rule
30 and rule 30A of the Uniform Rules
afforded the appropriate means and procedure for a party to take this
type of objection. One
of the requirements of rule 30 is that the
objecting party must raise the objection before itself taking a
further step in the
proceedings. The rationale for this requirement
is highlighted by the unacceptable consequences that would attend
upholding an
objection of this nature at an advanced stage of the
proceedings, when full papers have been exchanged and the matter is
ripe for
hearing. (To Mr
Wilkin's
credit,
he did not press this objection when it was clear that it found no
favour with the court.)
The
adequacy of the municipality's report
[15]
Turning to the second preliminary objection. The municipality filed
two reports in the form of affidavits made by Mr Gregory
Goodwin, who
holds the office of Head: Sub-councils and Area Co-ordination. The
first affidavit was 13 pages in length, supported
by annexures
running to 77 pages. It set out in general terms a description of the
enormity of the housing shortage in the
City
of Cape Town. This has been caused, in the main, by the ingress of
several million people into the city in recent years as
part of the
large scale urbanisation that has been the most prominent
characteristic of South African social development in recent
history.
7
According to the report, there are currently approximately 400 000
inadequately housed families in the metropolitan area. This
number is
currently increasing by between 16 000 to 18 000 households annually.
[16]
On consideration of the report I am satisfied that the City of Cape
Town is conscientiously striving to address its constitutional
obligations in respect of the provision of adequate housing within
the applicable financial and logistical constraints. I accept
the
evidence that there is no way in which the City is able to address
the accommodation requirements of any evictee from the property
within its current housing programmes. It seems to me in any event
that the basic accommodation opportunities that are made available
in
terms of the programme are directed at providing basic shelter and
access to 'basic municipal services', as defined in the
Local
Government: Municipal Systems Act 32 of 2000
; and not atproviding
alternative accommodation at the level enjoyed by the occupants of
formal housing such as that provided to
the unlawful occupiers of the
property currently in issue. In this regard it is perhaps significant
that s 4(7) of the PIE Act
requires the consideration of the
availability of alternative
land
for
unlawful occupiers and not of alternative
housing.
8
[17]
Mr Goodwin further suggested that the Department of Social Services
was a more appropriate agency of government to deal with
the problems
that might arise if all the current occupants of the property,
including those unable independently to obtain alternative
accommodation, were to be evicted. He pointed out in his initial
report, however, that the papers provided insufficient information
about the means and income of the occupiers to permit a proper
assessment whether or not they were able to make their own
arrangements
with regard to alternative accommodation.
[18]
In response to the additional information subsequently provided, Mr
Goodwin expressed the view of the City that only the eleventh
respondent was in need of consideration for the provision of
alternative accommodation with the assistance of the State.
Hearticulated
the City's submission that if the eleventh respondent
(an 80 year old woman) was in need of assistance, the provincial
department
of Social Development should be able to subsidise board
and lodging costs at one of the 'number of State funded homes for the
aged
in the Western Cape'.
[19]
The respondent's counsel criticised the reports submitted by the
municipality as having failed to engage sufficiently with
the
individual circumstances of each of the respondents and as having
shown insufficient commitment to determining the availability
of
alternative accommodation for the respondents. In my view this
criticism is unfounded. I do not consider that the provisions
of the
PIE Act place a responsibility on municipalities to involve
themselves in the detail of the possible consequences of every
eviction case.
9
The criterion of reasonableness, which is defined with regard to the
characteristics of the case judged in the context of the local
authority's practical ability to ameliorate the probable effects of
an eviction, governs the extent of the municipality'sobligation
under
s 26(2) of the Constitution. Similar considerations will determine
the extent to which the courts will look to a municipality
for
detailed input. This much is recognised in the two-judge bench
judgment of this court in
Drakenstein
Municipality v Hendricks and others
2010
(3) SA 248
(WCC). (It was also the criterion which decided me against
insisting on a report from the municipality in
Absa
Bank Ltd v Murray and Another
2004
(2) SA 15
(C)
(2004 (1) BCLR 10)
, despite being of the view (which I
still hold) that a report by the municipality should be filed in all
s 4 PIE applications.)
I need only say that I am in full agreement
with the reasoning set out in para.s [15]-[17] and [26]-[32] of the
Drakenstein
Municipality
judgment.
[20]
The respondent's counsel however drew attention to the recent
judgment of the Supreme Court of Appeal in
The
Occupiers of Shorts Retreat v Daisy Dear Investments
[2009]
ZASCA 80
(3 July 2009),
10
in which, at the request of the parties, an order was made upholding
the appeal against the eviction order granted by the court
of first
instance and remitting the matter for further consideration, with
regard, amongst other things, to a report thatthe local
authority was
directed to file dealing with (I quote from para (c) of the order) -
(i)
What
steps it has taken and what steps it intends or is able to take
in
order to provide alternative land and/or emergency
accommodation
for the Occupiers of Erven 101, 102, 104 and 112
Shorts Retreat in
the event of their being evicted and when such
alternative land or
accommodation can be provided;
(ii)
What
the effects would be if the eviction would take place
without
alternative land or emergency accommodation being made
available;
(iii)
What
steps can be taken to alleviate the effects of the current
occupation
of the properties referred to above if the occupiers are
not
immediately evicted and pending alternative land or
accommodation
being made available.
[21]
I was informed by counsel that the judgment in
The
Occupiers of Shorts Retreat
and
certain judgments of the Gauteng High Courts
11
which suggest that the local municipality should be joined as a
respondent in all eviction cases under the PIE Act were the
underlying
reason for the seeking of the order taken by agreement in
this matter on 31 August 2009 joining the municipality as a
respondent
and directing it to file a report.
[22]
In my view the nature of the input that the court will look to from a
municipality will depend on the peculiar circumstances
ofthe case in
issue. One of the most material considerations in this regard will be
whether the application for eviction is instituted
by or at the
instance of the municipality itself.
[23]
As acknowledged in the
Drakenstein
Municipality
judgment,
12
'there
will inevitably be a grey area between' the category of case where
the relevance of the availability of alternative land
is evident and
that in which it is not readily apparent. The court is always in a
position to call for further information from
a municipality if that
should appear necessary.
[24]
The role of the local authority in the statutory framework is most
obviously relevant where the eviction of communities of
landless
persons is in issue. The progressive realisation by the State of the
right to everyone to adequate housing in terms of
s 26(2) of the
Constitution is most centrally directed at meeting the needs of this
large, mainly recently urbanised, section of
our society. The facts
in
The
Occupiers of Shorts Retreat
afford
a recent example of such a case. In that matter the persons subject
to eviction belonged to a community of approximately.2000
people, the
majority of whom were unemployed, poor and homeless, settled in
informal dwellings on vacant land. They had been there
for about five
years. The application for their eviction had been instituted by the
private landowner, who had tolerated their
existence without
objection, on the insistence of the municipality -apparently because
the existence of the informal dwellings
contravened the health
bylaws. In the circumstances of that case a detailed input from the
municipality dealing with available
alternative means of dealing with
the situation was obviously called for before the court could be
satisfied that it would be just
and equitable to make an eviction
order.
[25]
In the current case the municipality's report makes it clear that the
municipality is unable to accommodate any of the unlawful
occupiers
of the property who may be subject to eviction in these proceedings
in its housing programme. Unpalatable as that information
might be,
nothing will be served by requiring further reports from the local
authority. The reports have served a useful purpose
in informing the
court, to the extent that it might reasonably be expected of a local
authority so to do, of the realities that
any evictee without the
means to obtain alternative accommodation will face if an eviction
order should follow. These realities
form an important part of the
matters that the court is required to weigh in deciding whether the
grant of an eviction order would
be just and equitable within the
meaning of the PIE Act. I see no point in the circumstances of this
case in imposing further on
the local authority's limited resources
by requiring a further supplemented report.
Mediation
[26]
The other criticism directed at the municipality's reports was that
they did not address the possibility of mediating the dispute
between
the applicant and the respondents. It is convenient to consider this
complaint in the context of dealing with the respondents'
third
preliminary objection; viz. that the application should not be
entertained until mediation by the local authority had been
attempted.
[27]
Section 7 of the PIE Act provides (insofar as currently relevant):
Mediation
(1)
If the municipality in whose area of jurisdiction the land in
question is situated is not the owner of the land the municipality
may, on the conditions that it may determine, appoint one or more
persons with expertise in dispute resolution to facilitate meetings
of interested parties and to attempt to mediate and settle any
dispute in terms of this Act: Provided that the parties may at any
time, by agreement, appoint another person to facilitate meetings or
mediate a dispute, on the conditions that the municipality
may
determine.
(2)
If the municipality in whose area of jurisdiction the land in
question is situated is the owner of the land in question, the
member
of the Executive Council designated by the Premier of the province
concerned, or his or her nominee, may, on the conditions
that he or
she may determine, appoint one or more persons with expertise in
dispute resolution to facilitate meetings of interested
parties and
to attempt to mediate and settle any dispute in terms of this Act:
Provided that the parties may at any time, by agreement,
appoint
another person to facilitate meetings or mediate a dispute, on the
conditions that the said member of the Executive Council
may
determine.
(3)
Any party may request the municipality to appoint one or more persons
in terms of subsections (1) and (2), for the purposes
of those
subsections.
(4)
A person appointed in terms of subsection (1) or (2) who is not in
the full-time service of the State may be paid the remuneration
and
allowances that may be determined by the body or official who
appointed that person for services
performed
by him or her.
[28]
In support of this ground of preliminary objection the respondent's
counsel relied on the dicta of Sachs J in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at para.s [39] - [45]. At para. [45] of the judgment
Sachs J said:
In
my view, s 7 of PIE is intended to be facilitative rather than
exhaustive. It does not purport, either expressly or by necessary
implication, to limit the very wide power entrusted to the court to
ensure that the outcome of eviction proceedings will be just
and
equitable. As has been pointed out, s 26(3) of the Constitution and
PIE, between them, give the courts the widest possible
discretion in
eviction proceedings, taking account of all relevant circumstances.
One of the relevant circumstances in deciding
whether an eviction
order would be just and equitable would be whether mediation has been
tried. In appropriate circumstances,
the courts should themselves
order that mediation be tried.
[29]
Mr
Wilkin
also
relied on a passage from the judgment in
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg
and others
[2008] ZACC 1
;
2008
(3) SA 208
(CC) at para.
[13]
:
It
became evident during argument that the city had made no effort at
all to engage with the occupiers at any time before proceedings
for
their eviction were brought. Yet the city must have been aware of the
possibility, even the probability, that people would
become homeless
as a direct result of their eviction at its instance. In these
circumstances those involved in the management of
the municipality
ought at the very least to have engaged meaningfully with the
occupiers both individually and collectively.
The
dictum of Yacoob J at para. [13] was uttered in the context of
furnishing the court's reasons for an interim order, made earlier
in
the proceedings, which had directed the City of Johannesburg 'to
engage with' the potential evictees in an effort, amongst other
matters, 'to resolve the differences and difficulties aired in this
application in the light of the values of the Constitution,
the
constitutional and statutory duties of the municipality and the
rights and duties of the citizens concerned'.
13
[30]
In
Port
Elizabeth Municipality v Various Occupiers,
the
parties at whom the eviction application by the Port Elizabeth
municipality had been directed were 68 people, including 23 children,
who occupied 29 shacks erected on undevelopedprivately owned land.
They were landless persons who had settled themselves on vacant
land
close to the City. The eviction proceedings in that case were
instituted, not in terms of s 4 of the PIE Act, but in terms
of s 6.
While recognising that the provisions of s 25(3) to (8) make it plain
that the right to property in terms of s 25(1) of
the Constitution is
not an absolute right, the societal considerations and constitutional
implications of an eviction at the instance
of an organ of state are
different from those which pertain in an application by a private
property owner.
14
An incidence of this is a duty on a municipality which seeks the
eviction of persons on property within its jurisdiction to engage
with them in order to try to achieve a resolution that recognises and
addresses the needs and concerns of the potential evictees.
The stark
difference between the current case and that in
Port
Elizabeth Municipality
is
highlighted by contrasting the facts of this matter with those
apparent in the discussion at para.s [48]-[59] of the
Port
Elizabeth Municipality
judgment.
[31]
Occupiers
of 51 Olivia Road
was
also an application for eviction at the instance of a municipality.
There was no order made that the dispute between the municipality
and
the occupiers of the condemned buildings in issue in that case should
be referred to mediation. Rather, as pointed out above,
the
municipality was ordered to engage with the occupiers.
[32]
I do not find it necessary to rehearse the reasoning of the
Constitutional Court in making that order. Suffice it to say that
a
central consideration was the character of the application for
eviction as one at the instance of the municipality, assessed
in the
context of the constitutional obligations of a municipality towards
all persons living in its jurisdiction. The conclusion
(stated in
para. s [21] and [22]) is that 'in any eviction proceedings at the
instance of a municipality therefore, the provision
of a complete and
accurate account of the process of engagement, including at least the
reasonable efforts of the municipality
within that process, would
ordinarily be essential'... 'The ejectment of a resident by a
municipality in circumstances where the
resident would possibly
become homeless should ordinarily take place only after meaningful
engagement. Whether there had been meaningful
engagement between a
city and the resident about to be rendered homeless is a circumstance
to be considered by a court in terms
of s 26(3)' of the Constitution.
[33]
The order taken in the
Shorts
Retreat
matter
was (notwithstanding the absence of any reference thereto in the
judgment) the consequence of a palpable failure by the municipality
in that case to comply with the requirements described at paragraphs
[21] and [22] of the judgment in
Occupiers
of 51 Olivia Road.
[34]
I confess to some difficulty in understanding exactly how a court is
expected to make an effective order directing private
parties to
refer their dispute to mediation. Mediation, like arbitration, is
ordinarily premised on an underlying consensual reference
by the
parties. This is confirmed in the passage from Nupen
'Mediation'
in
Pretorius (ed)
Dispute
Resolution
(Juta,
Cape Town, 1993) at p. 39, quoted at footnote 38 in para. [40] of the
Port
Elizabeth Municipality
judgment:
'Mediation is a process in which parties in conflict voluntarily
enlist the services of an acceptable third party to assist
them in
reaching agreement on issues that divide them.' In matters where
mediation is compulsory by reason of a statutory provision,
the
legislation invariably makes provision for the establishment and
funding of a mediatory tribunal; take, for example, the Commission
for Conciliation, Mediation and Arbitration established in terms of
s
112
of the
Labour Relations
Act
66 of 1995
.
[35]
The position might be different when the municipality is the party
applying for the eviction. In that situation it might be
that the
municipality could be said to be under a statutory obligation to
consider mediation and the circumstances of a given case
might
justify a conclusion that it had been unreasonable in not referring
the dispute to mediation. That, presumably, is the sort
of situation
that Sachs J had in mind when he ventured that it might be
appropriate in a given case to order mediation. It seems
to me,
however, that the most this court could do in the current case to try
to encourage a mediated settlement of the dispute
would be to decline
to make an order until the applicant had satisfied it that everything
reasonably possible had been done by
it to engage in such a process.
However, the evidence indicates strongly that no positive purpose
would be served by following
such a course in this matter. It is not
necessary to review the history in detail, but it is evident that
various courses possible
to resolve the issue have already been the
matter of lengthy and drawn out engagement and debate. Indeed,
mediation under the auspices
of one of the respected members of the
family, Ms Tasneem Essop, a former member of the Executive Council of
the Western Cape,
was in fact attempted, with no success.
[36]
It is moreover significant that notwithstanding that both sides in
this case are legally represented, no request has been made
to the
municipality in terms of s 7(3) of the PIE Act for the appointment of
a mediator. On the peculiar facts of the case, even
had such a
request been directed, it is not apparent to me why the municipality
should have acceded to it. A rational basis for
the exercise by the
municipality of its discretion in terms of s 7(1) in favour of
appointing a mediator would be afforded if the
characteristics of the
matter suggested a realistic possibility that a settlement could be
facilitated. That does not appear to
be the case. The dispute has
dragged on for nearly nine years, despite the conscientious efforts
of the applicant to bring matters
to a mutually satisfactory
conclusion. The dispute in question is suitable for determination by
a court of law and this court would,
in my view, be failing in its
duty if it were to further delay a determination of the matter in the
prevailing circumstances.
The
considerations in terms of s 4(7) of the PIE Act
[37]
The applicant's rights are clear, but, as mentioned, they are not
absolute. Whether it would be just and equitable to grant
an eviction
order as prayed depends on the circumstances; more particularly, on
the one side, the personal circumstances of the
occupiers of the
property and their ability to procure alternative accommodation and,
on the other side, the applicant's reasons
for bringing the
application.
[38]
Before turning to consider the individual circumstances of the
affected respondents, it is convenient to address the argument
that
it would not be just and equitable to grant an order for the eviction
of any of the respondents because of the significance
of the property
as a remnant of the previously existing District Six and because the
respondents' situation as persons who remained
living in District Six
when the surrounding area was subject to mass removals and extensive
demolition of the built environment
gave rise to some special form of
'community' which it would be unjust and inequitable to destroy.
These submissions were made
with reliance on an affidavit made by the
Provincial Manager in the Western Cape of the South African Heritage
Resources Agency.
[39]
I did not find these submissions particularly persuasive. The
National Heritage Resources Act 25 of 1999
provides for the formal
declaration of heritage sites and for the protection and management
of such sites. The effect of those
provisions, if made applicable to
the property in issue, would be to prevent their realisation for
commercial redevelopment in
the manner contemplated by the applicant
to enable him to raise a sum of money for distribution to the trust
beneficiaries. Notwithstanding
the passage of nearly three years
since the answering papers were filed nothing has occurred to suggest
that the property is likely
to obtain heritage status in terms of the
legislation.
[40]
While I readily accept that there is a sense of community between the
current occupiers of the property, the indications are
that this
sense of community is fundamentally related to family connection and
neighbourliness established through a long period
of living in close
mutual proximity, rather than to the history of District Six. These
considerations would arise irrespective
of where the property might
be situated. It is only natural that people tend to grow attached to
established neighbours and familiar
facilities whenever they live in
any one place for all, or a very significant part of their lives. In
the current case that phenomenon
is accentuated by the fact that the
majority of the respondents are in occupation of various parts of the
property by reason of
family ties or connections.
[41]
Insofar as District Six implications play a role, it cannot be
overlooked that the eviction proceedings in issue arise because
of
the testamentary scheme of the head of an established District Six
family and property owner; and that it is being effected
at the
instance of a scion of that family, specially entrusted by the
patriarch with the task, so that several members of the second
generation of that family can come into part of their inheritance. It
seems that it is only those heirs currently in occupation
that oppose
the relief sought by the applicant. The generation that the founder
of the trust wished to benefit are rapidly ageing.
They are in their
70's and 80's and it is evident that if the winding up of the estate
is to be further delayed they are in danger
of not realising their
inheritance within their lifetimes. (Indeed one of them passed away
during the three years that have intervened
between the launch and
the hearing of this application.) These - the non-resident
beneficiaries - are also people who lived through
and no doubt were
traumatised by the tearing down of District Six and the forced
removal of the great majority of the community
that had been
well-established there.
[42]
In the result, while I do not entirely disregard the considerations
invoked with reference to the history of District Six,
they do not
weigh with me as heavily in the decision that has to be made as do
the socio-economic circumstances of each of the
respondents. I am
most centrally concerned in my approach to deciding the matter with
the potential of any eviction order to render
some of the respondents
homeless.
[43]
The first respondent is an heir and beneficiary of the Trust. At the
time that he deposed to his supporting answering affidavit
in the
application, in September 2007, he was 75 years of age. He has
resided on the property without interruption since 1964;
initially at
128 Pontac Street and latterly (since about 1977) at 126-128 Pontac
Street. According to his answering affidavit,
the first respondent is
a pensioner with an income of approximately
R4
000.00 a month (as at 2007). He averred, that considering his age,
his state of health was fair. He pointed out that he resided
at the
property with his second wife, Dawn Mohamed, who is some eight years
younger than him, but in a state of poor health. He
claimed not to be
in a financial position to fund alternative accommodation and pointed
out that his children live in Johannesburg.
During the time that he
has lived at the premises he has affected repairs and improvements to
the property, without reimbursement.
He placed on record that he had
no objection to the sale of the property, as long as the sale was
subject to the continuing right
of occupation of all residents who
currently reside there.
[44]
The second respondent, who is also a beneficiary of the Trust, has
resided on the property since 1971. He initially lived on
the part
known as 126 Pontac Street with his wife and children. His wife's
late mother and her two sisters, one of whom is the
fourth respondent
in these proceedings, lived at the same address. In about 1977 he and
his immediate family moved to 138 Pontac
Street because the first
respondent wanted to incorporate 126 Pontac Street with the premises
at 128 Pontac Street. At that stage
the fourth respondent moved into
121 Aspeling Street. At the time he made his supporting answering
affidavit, in 2007, the second
respondent was a 70 year old pensioner
and in receipt of a pension of R820.00 per month. His wife was at
that stage a 69 year old
pensioner and retired teacher in receipt of
a pension of R4 000.00 a month. Second respondent pointed out in his
affidavit that
during the time he had lived at the premises he had
effected repairs and improvement to the property without
reimbursement. He
indicated that he was in agreement in principle to
the subdivision of the property, or the sale thereof, subject,
however, to the
continuing right of occupancy of all current
residents. He pointed out that the premises were his home and that he
and his wife
had lived in District 6 through out their lives 'and
this is our community'. He stated that he could not afford to find
reasonable
alternative accommodation; certainly not in the area which
had been his family home for so long. His family were unable to
accommodate
him.
[45]
The third respondent is the son of the second respondent. He had
lived with his mother and father on the premises until 2000
when he
married, and moved with his wife to rented premises in the Bo-Kaap.
He said that he always hoped to return to the property
and to what he
refers to as 'the community there' when one of the dwellings might
become available. He was able to move into the
premises at 134 Pontac
Street in late 2004. He paid a rental of R550.00 per month for the
premises, which he says had been substantially
renovated by him. At
the time he made his supporting answering affidavit in the
application in September 2007 he was 40 years of
age and working as a
freelance photographer with income earning capacity of approximately
R8 500.00 per month. At the time he had
been diagnosed with
tuberculosis and regularly attended the TB clinic in Chapel Street
just one road down from Pontac Street. He
resided at the premises
with his wife and daughter. His wife, at the time 32 years old, was
employed as journalist at a well known
Cape Town newspaper with a
nett income in 2007 of approximately
R15
000.00.
[46]
The fourth respondent was 73 years of age when she deposed to her
answering affidavit in September 2007. At that stage she
had resided
on the property for 36 years, having moved into 126 Pontac Street in
1971 and into 121 Aspeling Street in
1977.
As at 2007 the fourth respondent received a pension of R870.00 per
month. She pointed out that over the years of living at
the premises
she had effected many repairs and improvements to the premises,
without reimbursement. Her married son lives in Grassy
Park with his
wife and three children in a two bedroom house which is too small to
accommodate her as well. She stated that there
is no alternative
accommodation available to her and points out that 'this community is
my home and my family. I have nowhere else
to go.' Updated
information, as at April 2010, indicates that the fourth respondent's
pension has increased to an amount of R1010.00
per month. In a
handwritten affidavit, made on 18 April 2010, fourth respondent
reiterated her inability to move in with her son
and his family
pointing out, in addition to the facts mentioned above, that she is
'a very independent person and able to live
on my own. I need my
space and will not be able to adapt in an old age home. We are a very
close knit community where we assist
one another e.g. we go shopping
together etc. We are close to all important amenities e.g. mosque,
shops etc.'
[47]
The seventh respondent, who was born on 23 December 1937, moved onto
the property in or about 1980. At that time she was employed
by the
first respondent at his 'strapping factory'. One the seventh
respondent's children, the eighth respondent, also lives on
the
property, at a different address. The seventh respondent's current
income consists of an old age pension of R1 010.00 per month.
She
states that her health is poor and she has regularly to attend at
Groote Schuur Hospital for treatment. In an update affidavit
made on
19 April 2010, the seventh respondent pointed out that her husband
had recently died. She stated further that she was 'very
independent
and do all my own chores, therefore I do not see myself living in an
old age home. ... all my children are married
and have their own
families to take care of and cannot offer me accommodation. We have
built up a very close knit community and
do not see ourselves living
elsewhere. We live in close proximity to all amenities liked church,
hospital, shops etc'.
[48]
As mentioned, the eighth respondent is a child of the seventh
respondent. He has lived in premises, separate from those of
the
seventh respondent, on the property, at 126A Aspeling Street since
1995. He paid a low rental for the premises. He resides
at the
premises with his wife and three children. When he deposed to an
answering affidavit in September 2007 he was a 46 year
old domestic
waste manager with an income of R980.00 per week. He averred that he
did not have the means to find alternative reasonable
accommodation;
certainly not in the same area.
[49]
The ninth respondent had been living on the property since 1970. His
wife has a family connection to the property, as at the
time of her
birth her maternal grandparents already lived there. His wife's
family were tenants living at the premises at the time
it was
purchased by the late Mr Essop Mohamed Omar in the 1940's. When he
deposed to his answering affidavit in September 2007
the ninth
respondent was 63 year old plasterer with a monthly income of
approximately R4 000.00. His wife was in receipt of pension
of
R870.00 per month, which, I have assumed, will have increased to R1
010.00 in line with the old aged pensions receipts of the
other
respondents referred to. The ninth respondent's adult daughter lives
with her parents. As at 2007 she was employed as a clerk
with a
monthly income of approximately R4 000.00. The ninth respondent
points out that during the time that his family had lived
on the
property various renovations and improvements had been effected,
without reimbursement. He avers that he does not have
the means to
find reasonable alternative accommodation; certainly not in the area
which had been his home for most of his adult
life and where his wife
was born.
[50]
In an updated affidavit, made on 19 April 2010, the ninth respondent
stated 'we do not see ourselves moving into an old age
home as we are
totally independent and our other two daughters are married and are
not able to offer us alternative accommodation.
We are very much part
of this community and assist one another when the need arises e.g. do
our shopping -collecting our pension
etc'.
[51]
The tenth respondent is a recently retired school teacher. She has
lived on the property her entire life. Her mother had moved
to the
property in 1915, when she was 7 years old, and had lived there ever
since until her death in her late nineties, some time
after the
institution of these proceedings. As at 2007, just before her
retirement, the tenth respondent expected to be in receipt
of a R60
000.00 once off pension payout and thereafter to receive
approximately R2 000.00 per month as a monthly pension. She pointed
out that her family was unable to offer her alternative accommodation
and that she herself did not have the means to find reasonable
alternative accommodation; certainly not in the area in which she had
lived since was born. In an updated affidavit, made on 19
April 2010,
the tenth respondent stated 'I do not see myself living in an old age
home as I am totally independent and value my
space. I involved in my
church and community doing voluntary work using my teaching expertise
and are called up very often to assist
at the neighbouring school
were I taught for 20 years. My two sons are married and they are not
able to offer me accommodation
as their houses are just big enough
for their families'.
[52]
The eleventh respondent had married into a family which had occupied
130 Pontac Street since the 1940's. When she married her
late husband
in 1953, he set up home with her in Salt River. His mother and sister
remained living in 130 Pontac Street. After
her mother-in-law had
passed away, and her sister-in-law's husband had obtained work in
Paarl which occasioned them to move to
that town and vacate 130
Pontac Street, the eleventh respondent and her husband moved into the
premises in 1980. When she deposed
to her answering affidavit in
September 2007 the eleventh respondent stated that she paid a monthly
rental in respect of the property
of R550.00. She is widowed and has
no children. She says the other residents of the property 'have
become my family and we look
after one another'. At the time of
making her answering affidavit, in 2007, the eleventh respondent was
in receipt of a monthly
pension R870.00 and earned a little extra
from casual sewing work. I have assumed that, in line with the other
pensions referred
to earlier, her pension will by now have escalated
to R1 010.00 per month. In her 2007 affidavit the eleventh respondent
stated
that her health was deteriorating and that the other residents
looked after her. She stated further that she needed the emotional
and practical support of the other residents in the community. She
had nowhere else to go and could not afford alternative
accommodation.
[53]
She gave a somewhat more optimistic description of her circumstances
in an updated affidavit, made on 19 April 2010. In the
latter
affidavit she stated 'I am totally independent doing my own chores,
sewing for the community and caring for myself. Therefore
I do not
see myself in an old age home. . I live in a very caring and close
knit community which assists me in various way e.g.
doing shopping,
paying my rent at the bank etc. I collect my own pension. I do not
see myself moving out of this area as everything
is in close
proximity; shops, mosque, friends and very helpful neighbours always
ready to assist in time of need'.
[54]
In a supplementary affidavit made by Mr Goodwin of the City of Cape
Town municipality on 29 March 2010, reference is made to
further
information as to the means of the occupiers supplied by the
applicant's attorney (whom Goodwin had understood to be the
respondents' attorney). He pointed out that only four of the
respondents are not gainfully employed. These are identified as being
the fourth, seventh, tenth and eleventh respondents.
[55]
Mr Goodwin argued that, with the exception of the eleventh
respondent, these respondents are 'well connected to family who
would
be (morally) obliged to care for them and will have the means and
support to secure satisfactory and safe alternative accommodation.'
The ability of these respondents' family connections to support them
and provide them with alternative accommodation is, however,
disputed
on the papers.
[56]
With regard to the eleventh respondent, Mr Goodwin averred 'as far as
I am aware there are a number of State funded homes for
the aged in
the Western Cape. The Provincial Department of Social Development can
subsidise the board and lodging fees for persons
who are very frail
and in need of assistance. Anyone who can pay the full board and
lodging fees can also apply for accommodation
in these homes.' Mr
Goodwin concluded 'It is according(ly) the City's submission that the
Applicant needs to investigate the possibility
of [the eleventh
respondent] being accommodated at one such home with the Western Cape
Province's Social Development Department..,
and advise the court
accordingly, as the matter does not fall within the City's housing
mandate.'
[57]
I gained the impression that the update affidavits filed by the four
respondents in question, mentioned above, were made in
response to
the suggestion by Mr Goodwin that the solution might be to place the
elderly respondents who had insufficient means
to obtain alternative
accommodation in an old age home, with subsidised board and lodging
if need be. I have assumed that the circumstances
of the other
respondents who did not make update affidavits have not altered
materially in real terms since the filing of the principal
answering
affidavits. (I think that this is a reasonable assumption in the
context of their having been ably represented by privately
engaged
attorneys and counsel.)
[58]
There is no information on the papers that enables me to assess
meaningfully the prospect of the four respondents in question
being
able to obtain lodging in a home, or if they could, in what
conditions they would be housed. The applicant had mentioned
in his
replying affidavit that he had been in communication with Communicare
in regard to the possible accommodation of those respondents
unable
to obtain alternative accommodation. The affidavit was silent,
however, about the results of such communication. I therefore
requested further information to be provided in this respect. In a
supplementary affidavit, filed during the hearing, the applicant
averred that Communicare had advised that 'they were currently unable
to assist any of the respondents as a result of a waiting
list of
three to five years'. That information took matters no further.
[59]
While I understand and accept the emotional ties that the respondents
have to the property on which they have lived for so
long and the
mutually supportive structure that has been built up between them as
close neighbours during that time, these considerations
cannot, in my
view, stand in the way of the exercise by the applicant of the right
to dispose of the property to give effect to
the terms of the Will
trust. The respondents have been in occupation of the property
cognisant in the main of its place in the
testamentary scheme of the
late Mr and Mrs Omar. The fact that they have been there for a long
time must be judged in the context
of how they came to be there,
which cannot be done leaving the testamentary scheme out of account.
In this regard it should also
be said that the renovations effected
to parts of the property by some of the respondents must be seen in
the context of the terms
under which they were originally given
occupation. It seems clear from the evidence that the respondents
were aware that they were
responsible for the upkeep of the premises
they occupied. This may be inferred from the very low rentals charged
and the absence
of any evidence that the respondents had ever claimed
reimbursement for the work they did on the property.
[60]
It must also be taken into account that the applicant has tendered
assistance to the respondents to facilitate their move.
This
takes the form of the offer of rent free accommodation at their
current addresses until the end of October 2010 (a period of
five to
six months) and a payment of R7 500 each to cover their relocation
expenses. The first and second respondents are offered
loans from the
Trust to re-establish themselves elsewhere. The loans would be
repayable from those respondents' share of the proceeds
of the sale
of the property.
[61]
The means and ability of the various respondents to find alternative
accommodation for themselves differ in the sense that
some appear
objectively able to do so, and others not. On the basis of my
assessment of the general circumstances, and in particular
of the
financial ability of some of the respondents to establish themselves
elsewhere, I have concluded that it would be just and
equitable to
order those respondents to vacate the property. I consider that the
period afforded by the applicant's tender, that
is to the end of
October affords a just and equitable period to enable the affected
respondents to make the necessary arrangements.
[62]
In my judgment the circumstances of the first, second, third, eighth
and ninth respondents are such that it can reasonably
beexpected of
them to independently secure alternative accommodation. An order will
issue accordingly directing them and the persons
occupying the
property under them to vacate by the end of October, failing which
the applicant shall be entitled, as of 1 November
2010, to obtain and
have executed a writ of eviction and to recover the attendant costs
from the respondents concerned.
[63]
The application in respect of the eviction of the fourth, seventh,
tenth and eleventh respondents will be postponed
sine
die.
The
applicant shall be granted leave to set down the postponed
application for hearing on supplemented papers regarding the
provision
of alternative accommodation for those respondents. In this
regard the fourth, seventh, tenth and eleventh respondents are
advised
that it is expected of them that they should be proactive in
seeking to obtain such alternative accommodation.
15
The postponement of the application does not have the effect of
authorising their continued occupation of the property; it denotes
no
more than that the court is not able on the information currently to
hand in the evidence to find that it would bejust and equitable,
in
the sense contemplated by s 4(7) of the PIE Act, to make an order for
their eviction at this stage.
16
[64]
Section 26 of the Constitution does not afford a right to unlawful
occupiers against eviction, even if that might result in
homelessness. The effect of s 26(3) is to afford a right against
arbitrary eviction: the constitutional scheme is that if eviction
must occur, it must happen with due regard to the evictees' human
rights, most especially their right to dignity. The right to
dignity
is a widely embracing concept; certainly homelessness is inimical to
the maintenance of human dignity. It is the availability
of
alternative accommodation for fourth, seventh, tenth and eleventh
respondents that is insufficiently dealt with on the evidence.
It is
important, however, that these respondents should disabuse themselves
of any notion that they have a right to remain in occupation
of the
property. On the contrary, if the court were to be satisfied that
reasonable alternative accommodation was available to
them it would
be just and equitable that the owner of the property should be
allowed to assert its entitlement to regain full possession
thereof.
Order
[65]
The following order will issue:
11.
The first, second, third, eighth and ninth respondents and the
persons occupying the property under them are directed to vacate
the
property on Erven 8504, 8505 and 8513 Cape Town by no later than 31
October 2010.
12.
Upon compliance by each of the third, eight and ninth respondents
with the provisions of paragraph 1
by
the date therein stipulated
,
the applicant shall thereupon pay to each such respondent the sum of
R7500 by way of a contribution to each such respondent's
costs of
relocation and re-establishment.
13.
The undertaking by the applicant to advance a loan to the first and
second respondents in an amount up to the estimated value
of their
share of the free proceeds of the realisation of the property to
assist in those respondents' costs of relocation and
re-establishment
incurred in the context of compliance with paragraph 1 of this order
is formally noted.
14.
In the event of non-compliance by any of the respondents or the
persons holding under them with the provisions of paragraph
1 of this
order, the applicant shall be entitled, as from 1 November 2010, to
obtain the issue by the Registrar and execution by
the Sheriff of a
writ of eviction to enforce the removal of the said persons from the
property.
15.
The application against the fourth, seventh, tenth and eleventh
respondents is postponed
sine
die,
with
leave granted to the applicant to apply to the Judge President for
the setdown thereof, on directions to be given as to the
exchange of
affidavits and other procedures, for further consideration and
determination on the basis of additional evidence concerning
the
availability of alternative accommodation for the said respondents.
16.
Save that any respondent against whom it is necessary to issue and
execute a writ of eviction shall be liable for the applicant's
costs
incurred in connection therewith, there shall be no order as to
costs.
A.G.
BINNS-WARD
Judge
of the High Court
1
The
property in issue is not the subject of any land restitution claims.
2
The
application was brought in this court under case no. 479/06.
3
The
second respondent in the current application.
4
The
expression 'rest and residue' derives from the terms of the Will.
5
Quoted from the judgment in case no. 479/06.
6
Although
the heads of argument submitted by Mr
Wilken
suggest
that he represents the twelfth respondent. The evidence is that the
twelfth respondent has vacated the property.
7
For an insight into this 'universal social phenomenon', see
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at para.
[5]
; especially footnote 7.
8
Cf.
Port
Elizabeth Municipality,
supra,
at para.s [19]-[20] as to the objects of the PIE Act assessed in the
context of the Constitution.
9
In
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg
and others
[2008] ZACC 1
;
2008
(3) SA 208
(CC) at para.
[26]
the Constitutional Court reiterated
the point made earlier in
Government
of the Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46
(CC)
(2000 (11) BCLR 1169)
at para. [82] that 's 26(2) [of
the Constitution] mandates that the response of any municipality to
potentially homeless people
with whom it engages must also be
reasonable. It may in some circumstances be reasonable to make
permanent housing available
and, in others, to provide no housing at
all. The possibilities between these extremes are almost endless. It
must not be forgotten
that the city cannot be expected to make
provision for housing beyond the extent to which available resources
allow.
10
Available online at
http://www.supremecourtofappeal.gov.za/judgments/sca
2009/sca09-080.pdf.
and
http://www.saflii.org.za/za/cases/ZASCA/2009/80.html
.
11
CashBuild (South Africa) Pty Ltd
v
Scott
and Others
2007
(1) SA 332
(T);
Sailing
Queen Investments v The Occupants of LA Colleen Court
2008
(6) BCLR 666
(W) and
Blue
Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and
Another
[2008] ZAGPHC 275
;
2009
(1)
SA 470
(W).
12
At para. [32].
13
T
he
terms of the order are set out at para. [5] of the judgment.
14
Cf
Port
Elizabeth Municipality,
supra,
at para. [24], where the observation is made that the PIE Act
reflects the difference in the discreteness of the provisions
of s 4
and s 6, respectively.
15
Cf.
Occupiers
of 51 Olivia Road,
supra,
at para. [20];
Ndlovu v Ngcobo, Bekker and Another v Jika [
2002]
ZASCA 87
;
[2002] 4 All SA 384
(SCA);
2003 (1) SA 113
(SCA) at para.
[19]
.
16
Cf.
Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v
Steele
[2010]
ZASCA
28
(25 March 2010)
at
para. [11].