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[2011] ZAWCHC 97
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Beja and Others v Premier of the Western Cape and Others (21332/10) [2011] ZAWCHC 97; [2011] 3 All SA 401 (WCC); 2011 (10) BCLR 1077 (WCC) (29 April 2011)
1
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 21332/10
In the matter between:
NTOMBENTSHA
BEJA
….......................................................
First
Applicant (in the main application) First Respondent (in the
counter-application)
ANDILE
LILI
…..........................................................................
Second
Applicant (in the main application) Second Respondent (in the
counter-application)
ANDISWA
NCANI
…..................................................................
Third
Applicant (in the main application) Third Respondent (in the
counter-application)
and
PREMIER
OF THE WESTERN CAPE
…....................................
First
Respondent (in the main application) Fourth Respondent (in the
counter-application)
MAYOR
OF THE CITY OF CAPE TOWN
…................................
Second
Respondent (in the main application)
CITY
OF CAPE TOWN
…............................................................
Third
Respondent (in the main application) First Applicant (in the
counter-application)
MEC FOR HUMAN
SETTLEMENTS,
WESTERN
CAPE
…...................................................................
Fourth
Respondent (in the main application) Fifth Respondent (in the
counter-application)
SOUTH AFRICAN HUMAN
RIGHTS
COMMISSION
…........................................................................
Fifth
Respondent (in the main application) Sixth Respondent (in the
counter-application)
THE
MINISTER OF HUMAN SETTLEMENTS
….......................
Sixth
Respondent (in the main application)
Seventh
Respondent (in the counter application)
THE
MINISTER OF WATER AND
ENVIRONMENTAL
AFFAIRS
…......................................
Seventh
Respondent (in the main application)Eighth Respondent (in the
counter- application)
JUDGMENT
DELIVERED ON THIS 29
th
DAY
OF APRIL 2011
ERASMUS,
J
Introductio:
1.
The Constitution of the Republic of South Africa
1
(hereinafter
referred to as the "Constitution") has as its primary
objective the protection and the restoration of human
dignity; it
means simply that human beings be treated as human beings
2
.
We have a duty, more particularly public representatives and
government to promote human dignity. This duty must be fulfilled
responsibly and with the utmost maturity. A failure to do this
diminishes us all.
2. It is unfortunate
that in the scramble for limited resources, which have to address
the historical imbalances and to cater
for immediate needs, it has
become the subject of political contest and patronage as opposed to
the responsible use thereof to
fulfill the State's constitutional
obligations.
3. In this matter we
have seen, various government organisations litigating on opposing
sides at a high cost to the tax payer.
The Mayor of the City of Cape
Town (the second respondent, hereinafter referred to as the "Mayor")
Mr Dan Plato and
second applicant, Mr Andile Lili, who purports to
be a political leader and an Executive member of the African
National Congress
Youth League, (hereinafter referred to as "ANCYL")
simply failed to rise above their political contest as opposed to
their duty towards those that need to benefit the poor and
vulnerable.
4.
In Shabalala and Others v Attorney-General of the Transvaal and
Others
3
the
Constitutional Court stated:
"What
is perfectly clear from these provisions of the Constitution and the
tenor and spirit of the Constitution is that the
Constitution is not
simply some kind of statutory codification of an acceptable or
legitimate past. It retains from the past
only what is defensible
and represents a radical and decisive break from that part of the
past which is unacceptable. It constitutes
a decisive break from a
culture of Apartheid and racism to a constitutionally protected
culture of openness and democracy and
universal human rights for
South Africans of all ages, classes and colours. There is a stark
and dramatic contrast between the
past in which South Africans were
trapped and the future on which the Constitution is premised. The
past was pervaded by inequality,
authoritarianism and repression.
The aspiration of the future is based on what is "justifiable
in an open and democratic
society based on freedom and equality".
....
The
relevant provisions of the Constitution must therefore be
interpreted so as to give effect to the purposes sought to be
advanced by their enactment".
(my
underlining)
5.
The marginalisation of poor and vulnerable groups in our society
remains an obstacle in the realisation of our national goals.
"It
must be emphasised that the entrenchment of a Bill of Rights,
enforceable by a judiciary, is designed, in part, to protect
those
who are the marginalised, the dispossessed and the outcasts of our
society. They are the test of our commitment to a common
humanity
and cannot be excluded from it"
4
.
6.
The Preamble to the Constitution states:
"We therefore,
through our freely elected representatives, adopt this Constitution
as the supreme law of the Republic so
as to;
Heal
the divisions of the past and establish a society based on
democratic values,
social
justice
and
fundamental
human rights;
Lay the foundations
for a democratic and open society in which government is based on
the will of the people and every citizen
is equally protected by
law;
Improve
the quality of life of all citizens
and
free the potential of each person; and
Build
a united and democratic South Africa able to take its rightful place
as a sovereign state in the family of nations"
5
.
(my
underlining)
Hence the realisation of
rights and the demands therefore should never be trivialized and
made off lightly.
The Application:
7. The first, second and
third applicants approached this court for the following relief:
7.1.
"Declaring
the conduct of the first, second third and fourth respondent, in
providing open toilets to the applicants and
the community of
Makhaza informal settlement, to be in violation of their
constitutional rights as contemplated in sections 9,
10, 12, 14, 24,
26 and 28 of the Constitution of the Republic of South Africa.
Declaring that any
written or oral agreement purported to have been entered into
between the third respondent and individual
members of the
community of Makhaza in respect of the provision of open toilets,
to be unlawful, and inconsistent with [sic]
constitutional duties
of the third respondent as contemplated by sections 7(2), 24, 26
and 28 of the Constitution of the
Republic of South Africa.
7.2. Ordering the
third and fourth respondents to enclose all 1316 toilets including
the 51 open toilets, which form part of the
Silvertown Project,
Khayelitsha (which includes those erected in the Makhaza informal
settlement), in accordance with the Upgrading
of Informal Settlement
Programme ("UISP") which was evaluated and approved, in
principle, by the fourth respondent
on 12 July 2005 in terms of a
memorandum of understanding concluded between the third and fourth
respondents on 21 November 2005,
as governed by Part 3 of the
National Housing Code ("the Code'), 2009 read together with the
National Housing Act ("the
Act') No 107 of 1997, as amended.
7.3. Ordering the
third and fourth respondents, in complying with their obligations as
prescribed under the Code and the Act (as
per prayer above) to
comply, in addition, with Regulation 2 of the Regulations Relating
to Compulsory National Standards and
Measures to Conserve Water (GN
R509 in GG 22355 of 8 June 2001) promulgated in terms of the
Water
Services Act No 108 of 1997
, as amended.
7.4. Directing the
first, second, third and fourth respondents to pay the costs of this
application".
8. A provisional counter
application was brought by the City of Cape Town (third respondent
hereafter referred to as the "City")
should the applicants
obtain any relief in the main application, seeking the following
relief:
8.1. "Declaring
that the "National Housing Code ("the Code"),
published by the Department of Human Settlements
in terms of
s4
of
the
Housing Act 107 of 1997
, is unconstitutional, unlawful and
invalid to the extent that:
8.2. The Code,
properly interpreted, improperly requires a minimum of one toilet
per five households/erven in chapters dealing
with "incremental
interventions" for the provision of housing and services under
the "Emergency Housing Programme"
and the "Upgrading
of Informal Settlements Programme" (or "UISP');
8.3. The Code
enjoins, permits and requires all spheres of government to consult
and make agreements with beneficiary communities
regarding the level
of services which can be provided within budgetary constraints -
including the standard, type and extent
of services - even though
the agreed outcomes cannot be lawfully implemented;
8.4.The provisions of
the Code dealing with the projects funded under the UISP are
premised on the unlawful assumption that beneficiaries
can be made
responsible (by their agreement or otherwise) for building their own
dwellings, or aspects of their dwellings;
8.5. The Code
unlawfully fails to provide guidance as to what constitutes an
adequate enclosure for toilets in projects funded
under the UISP or
other chapters dealing with incremental intervention; and/or
8.6.
The provision of the Code relating to the quantum of the subsidy
which can be claimed by the City (or other implementing
municipalities) when undertaking a project funded under the UISP, do
not
:
(a) provide any component for the construction of individual,
enclosed toilet facilities on each erf in a newly created formal
township; and (b) provide any process to claim supplementary amounts
to cover all the actual reasonable expenses incurred in
supplying
necessary services in a specific area;
8.7. Directing the
seventh respondent, within an appropriate time-frame, to publish a
revised version of the Code:
8.8. Correcting the
unlawful aspects dealt with above; and providing a process for all
municipalities to seek additional funding
in projects funded under
the UISP to cover the construction and enclosure of individual
toilets on each erf; and to cover all
the actual reasonable expenses
incurred in supplying necessary serviced erven in a specific area;
8.9. Declaring that,
in the context of the project undertaken by the City to upgrade the
Silvertown area in Khayelitsha under
the UISP (by the creation of
1316 serviced sites), an adequate enclosure for the individual
toilets supplied by the City on each
erf is one constructed of
corrugated iron and timber, including apolyurethane door (suspended
on a steel bar, and capable of
being locked from both the inside and
the outside), with an internal spacing of not less than 2.5 metres
in height, 1.5 metres
in depth and 1.0 metres wide".
The Facts:
9.
The Government of the Republic of South Africa is a party to the
United Nations Millennium Development Goals, which provides
for
significant improvement in the lives of at least 100 million "slum"
6
dwellers
by 2020. In addition to this convention, South Africa adheres to the
following declarations under the UN Habitat programme:
the Vancouver
Declaration on Human Settlements (1976), the Istanbul Declaration on
Cities and Other Human Settlements (1996)
and the Habitat Agenda
(1996), the focus of which is to address the plight of persons
without adequate housing. The Upgrading
of Informal Settlements
Programme (UISP) is consistent with the above conventions with its
primary objective being to cater for
the special development
requirements of informal settlements
7
.
10.
The Programme at hand is instituted in terms of section 3(4) (g) of
the Housing Act, 1997 (Act No.107 of 1997)
8
,
("The
Housing Act"
;) and is referred to as the National
Housing Programme: Upgrading of Informal Settlements.
11. The City made the
decision to upgrade the informal settlement at Silvertown
Khayelitsha in terms of the Upgrading of Informal
Settlements
Programme (UISP). However the Silvertown area, known as SST, was not
big enough to accommodate the number of people
in the area based on
the erf size that the city had intended for the residents.
12. The City then
decided to use two undeveloped sites nearby and relocated some of
the residents in the SST area to the two other
sites known as
Makhaza and Town 2, in an effort to allow for all 1316 households to
be accommodated. Therefore the three areas,
being Makhaza, Town 2
and SST now all formed part of the Silvertown project.
13. The original tender
by the City was for the whole of the Silvertown project. The upgrade
provision was for interim services,
full engineering infrastructure
and relocation assistance. This upgrade would consist of four
phases. The top structure, which
was phase 4, was to be implemented
at a later stage. During October 2004 the City submitted the
application to the Province of
the Western Cape (the fourth
respondent, hereinafter referred to as the "Province") for
funding of this project. It
is unclear from the papers whether the
funding provided for individual or communal toilets.
14. The Province
approved the project in July 2005 on condition that, an agreement
between the Province and the City was entered
into regulating the
obligations of the parties, project milestones and the
implementation programme for the project. This memorandum
of
understanding was concluded in November 2005, recording the
agreement between the City and the Province and stating that the
provisions of The National Housing Code (hereinafter referred to as
the "Code") would govern the agreement.
15. For this project the
City decided to install communal toilets on a ratio of 1:5; this
meant that one toilet would be provided
for every five families.
During consultations the three identified sites were discussed and
it was established that SST had 897
erven, Makhaza had 298 erven and
Town 2 had 121 erven. The breakdown of the communal toilets was
therefore: 179 toilets to be
installed in SST, 59 toilets to be
installed in Makhaza and 25 toilets to be installed in Town 2. A
tender, in March 2005, was
awarded to three contractors for the
construction of the communal toilets for the entire project. These
communal toilets consisted
of a concrete slab on which the toilet
was built with the cistern and water pipes and this was enclosed
with a pre-cast concrete
structure. I pause to note that I was not
referred to any meaningful community engagement before this decision
was made.
16. The installation of
the communal toilets began in 2007. 63 toilets were constructed in
Makhaza, 30 in Town 2 and 63 in SST.
From these figures it is
evident that more toilets were built in Makhaza and Town 2 than the
original number envisaged on the
1:5 ratio. There was however, a
shortfall of the communal toilets constructed in the SST area. By
July 2007 the contractor had
installed 63 toilets in SST and whilst
busy with another 62 toilets, the community expressed their
unhappiness with communal
toilets and requested that the
installation thereof to be stopped. The community demanded an
individual toilet for each erf.
Therefore construction of the
communal toilets was discontinued and only 156 of the 282 communal
toilets were completed.
17. The City allegedly
had a meeting with the community in late November 2007. It was said
that the community, community leaders,
ward councillor and the
project manager for the City were present. Various topics were
discussed at the meeting including the
individual toilets to be
installed by the City in addition to the communal toilets that were
already in use by the community.
Each of the erven would now have an
individual toilet; however, the community would have to enclose the
individual toilets themselves
as the City would be providing 1316
unenclosed toilets. I shall return to this meeting later in this
judgment.
18. A second tender for
the individual toilets to be constructed on each erf as per the
community's request was done on 2 April
2009; two years after the
alleged meeting took place with the community and almost 4 years
after funding was approved.
19. The City then began
to install the unenclosed toilets in Silvertown, Khayelitsha, during
May 2009 and completed this in December
2009. The unenclosed toilets
installed in SST and Town 2 were all enclosed by the residents
themselves. However in Makhaza 225
toilets were installed and all
but 55 toilets were enclosed by the residents. The unenclosed
toilets consisted of a concrete
slab for the toilet to stand on with
the cistern and a water pipe that was not affixed to any walls. The
toilets were completely
open and in full view of every person in the
community, and mostly situated close to the road. It is disturbing
to note from
correspondence between the consulting engineers and the
municipal managers that these structures were referred to as "a
loo with a view". This term unfortunately also found its way
into official reports and was used as a description, in the media.
I
wish to point out that this description and the continued use
thereof, even after complaints were lodged with the SAHRC, is
reprehensible and fails to afford any regard to the dignity of poor
people, compelled to use these toilets in unfortunate circumstances.
20. The ANCYL of the
Dullah Omar Region then engaged with the community about the 55
unenclosed toilets and approached the South
Africa Human Rights
Commission (the fifth respondents, hereinafter referred to as the
"SAHRC"). A complaint was filed
stating that it was a
violation of human dignity that the residents of Makhaza have to use
these unenclosed toilets and cover
themselves with blankets in full
view of the public.
21. The SAHRC
investigated the complaint that led to considerable public interest
and media reports. The City tried to enclose
the remaining
unenclosed toilets with corrugated galvanised iron and timber with a
secure door. The City's contractors were interrupted
by unknown
members of the community who put up resistance to the construction
of the enclosures and the contractors were unable
to enclose the
toilets and as a result had to leave Makhaza.
22. A Councillor met
with the community to establish an agreement, for the City to
enclose the toilets, however the meeting was
unsuccessful. The City
went to Makhaza again in March 2010 in an attempt to enclose the
toilets. 26 toilets were enclosed and
then immediately destroyed and
broken down by persons claimed to be ANCYL members. Again the
construction was stopped. The City
then laid criminal charges for
the structures that were broken down, removed and stolen.
23. One evening in April
2010, Mrs Beja, the first applicant, a 76 years old female, used one
of the unenclosed toilets to relieve
herself covering herself with a
blanket. Once she relieved herself she got up and started
approaching her dwelling when she was
attacked and stabbed. She
received medical treatment for the injuries sustained.
24. The Mayor then went
to the residents of Makhaza to address the community but was
confronted by community members who tried
to stop him from
addressing the community affected by the unenclosed toilets. On 17
May 2010 the Mayor met with the second applicant
and other members
of the ANCYL, the ward councillor and the senior housing officials
of the City. The outcome of the meeting
was that construction to
enclose the unenclosed toilets was to commence once again.
25. The construction
resumed on 24 May 2010 and several toilets were enclosed until the
community members once again became aggressive
and demolished the
structures. Once again the contractors had to leave Makhaza. The
Mayor ordered that the unenclosed toilets
were to be removed
completely and a further 10 toilets were removed thus making the
total of 65 toilets removed from Makhaza.
It is important that at
this time the Mayor made the following comments at a press
conference: "I want to throw it back
at the community... that
you need to tell those rude hooligans, those thugs, that you must
march and burn tyres against those
hooligans,"
26. During this time the
SAHRC continued their investigation and discussed their findings in
a press conference on 4 June 2010.
The Mayor and the Premier of the
Western Cape (the first respondent, hereinafter referred to as the
"Premier") went
to Makhaza on 23 June 2010 to address the
community about reinstalling the toilets. No success was achieved
instead the focus
was shifted to a public attack on the integrity
and perceived impartiality of the SAHRC.
27.
In July 2010 the City appealed against the findings of the SAHRC
through the internal appeal process which appeal was dismissed
on 21
September 2010. On 23 September 2010 Mrs Beja together with second
and third applicants, who are also residents of Makhaza
filed this
application against the City of Cape Town and others. A review
application was brought by the Premier and the City
in respect of
the SAHRC findings, which application was postponed
sine
die.
28.
The matter appeared before me on the 29
th
of
November 2010 for a directions hearing. As it was evident that the
hearing of the main application was only to be done by 2011,
the
Court held an inspection
in
loco
to
determine whether any interim relief should be ordered.
29.
At the inspection
in
loco
the
court was accompanied by the legal representatives of all the
parties. We observed firsthand the living conditions of the
affected
community. I noted in particular the aspects relating to the
toilets. It was apparent that it is an impoverished community
where
only the basic services existed. Most of the toilets that were
enclosed by the residents themselves, clearly showed that
it was
enclosed with whatever, often mixed, materials that could be found.
Most of the self enclosed toilets were unsatisfactory
to satisfy
dignity and privacy. E.g. I observed a toilet, pointed out by a
woman occupier that had no door. The opening faced
a public
thoroughfare. She indicated she could not afford a door. There was
no provision made for the disabled, the elderly and
other vulnerable
groups. I was particularly disturbed by the conditions observed in
the case of an elderly, wheelchair bound,
gentleman who had to use a
makeshift enclosure. It was constructed with pieces of wood and no
roof. Access with a wheelchair
was almost impossible. The only
access to water for use to him was from the cistern above the toilet
bowl.
30. The communal toilets
that were visited were in a bad state and it can hardly be said that
it satisfied the minimum requirement
to promote dignity. They were
positioned less than a metre from the kerbside with doors facing the
road and generally filthy
and underserviced. Some of the residents
were also excessive distances from the nearest communal toilets. I
observed that the
area had no streetlights and we measured in an
area of 70-80 paces from one point, one communal toilet with 10
dwellings having
this as their closest toilet.
31. I was of the view
that it was appropriate to at least order interim relief to
alleviate the conditions of the community and
restore some dignity,
albeit interim. The structure, that I ordered to be installed, was
available and tendered by the City.
I observed same, knowing that
the community were unhappy with it, but with the full knowledge that
the interim relief was urgent,
the festive season was approaching,
the structures were available and budgeted for and could be
installed without delay.
32. The interim relief
ordered were:
6. "Pending the
finalisation of the main and review applications:
6.1 The City shall:
6.1.1. At the written
request of any of the 1316 beneficiaries of the Silvertown UISP (in
the areas of Silvertown, Makhaza and
Town 2), adequately enclose the
individual toilets of such beneficiaries with a corrugated iron and
timber structure, including
a polyurethane door, suspended on a
steel bar, and capable of being locked from both the inside and the
outside, with an internal
spacing of not less than 2,5metres in
height, 1,5 metres in depth and 1,0 metres wide, alternatively such
other structure or
part thereof as may be agreed upon between the
City and individual beneficiaries before 16 December 2010; and
costing not more
than R2800-00 per completed unit inclusive of
installation costs and VAT at its own cost.
6.1.1.1. Any proposal
as to an alternative enclosure or part thereof to the one described
in paragraph 6.1.1 above, must be agreed
on by no later than 16
December 2010, failing which the City shall be obliged to
immediately proceed with the installation of
the galvanised iron and
wood structures described in that paragraph in respect of all
residents of the affected erven who have
by then requested same; and
6.1.1.2. the City
shall immediately proceed to prepare and hand deliver by 9 December
2010, to each erf in the Silvertown UISP,
in English and isiXhosa, a
written notice:
a) asking the
residents on such erven to indicate, by means of a cross on the
notice, that the occupants of that erf would like
the City to
install a galvanised iron and wooden structure around the individual
toilet which has previously been installed on
their erf or an
alternative resolution within the prescribed budget as stated in
paragraph 6.1.1 and 6.1.1.1 above.
b) indicating that
the residents have until 16 December 2010 to inform the City of
their wish in this regard and shall furthermore
indicate where such
notices can be delivered back to the City, this being a physical
location within the Silvertown UISP; and
c)
enquiring of the residents whether any particular circumstances
exist that would make the implementation of the order in paragraph
6.1.1 above impractical or impossible as far as their particular
circumstances are concerned; more particularly whether they
are
affected vulnerable beneficiaries in respect of disabilities; age,
or health; and
d) in the event of it
being necessary to adapt the structure described in paragraph 6.1.1
above, to satisfy the needs of the beneficiaries
in (c) above, the
City is ordered to apply the National Norms and Standards
applicable; and
e) a copy of this
order in both English and isiXhosa shall be attached to the said
notice.
6.1.2 Immediately
reinstall and reconnect the 65 individual toilets subject to
paragraph 6.1.1.2. (c) and (d) above in Makhaza
which were removed
by the City, and shall at the same time enclose such toilets with a
corrugated iron and timber structure,
including a polyurethane door,
suspended on a steel bar, and capable of being locked from both the
inside and the outside, with
an internal spacing of not less than
2.5 metres in height, 1.5 metres in depth and 1.0 metres wide,
costing of R2800-00 per unit,
inclusive of VAT and installation
costs at its own cost.
7. In the event of
any circumstance that leads to the City being unable to execute this
order, they are ordered to report back
to this Court by Thursday 23
December 2010, on the steps taken with regard to the construction of
adequate structures and any
other relevant issues".
33. During December
2010, and whilst I was abroad on official duties, it came to my
attention that the City was being frustrated
in its attempts to
comply with the interim order.
34. I issued an
electronic order, to the following effect:
"Having regard
to the order of this court on 29 November 2010 that set the date of
23 December 2010 on which the parties
have to report back to the
court to record compliance with the order and in the exercise of the
court's duty to ensure the integrity
of court processes and orders,
the parties are ordered as following:
1. Affidavits are to
be filed by all parties to the matter, which affidavits must
include:
1.1. full particulars
as to compliance or not with the order and the reasons for non
compliance,
1.2. full reasons why
any party should not be held in contempt of court for failing to
comply with the order.
35.On 23 December 2010
the City informed the Court that they were unable to implement the
interim order. It was alleged that the
community and the ANCYL had
vandalised the structures that the City were compelled to put up.
Serious allegations were made against
the second applicant and his
role in the City's failure to comply with the Court's order. I did
not deal with the contempt allegations
and decided to amend the
interim relief to have regard to the new time frames and
additionally ordered as follows"
…
.....
7. The Registrar of
this court is ordered to submit all the papers in the current file
to the South African Police Services on
or before 31 December 2010.
8. The South African
Police Service is ordered to, without delay open and investigation
into the conduct of any individual or
groups that relate to the
contempt of this court's order dated 29 November 2010.
9. The investigation
must include the conduct of any party, in the public domain, in
respect of the above order.
10. The South African
Police Service must file a progress report with this court on or
before 7 March 2011.
11. The Second
Applicant is directed not to in any way, act in a manner that will
frustrate the implementation of the court orders
issued in this
matter".
36.
Section 165 (4) of the Constitution reads as follows:
"Organs
of state, through legislative and other measures, must
assist
and
protect the courts
to
ensure the independence,
impartiality,
dignity, accessibility and
effectiveness
of the courts
".
it
is important that the orders of Courts are respected and
implemented. Courts have a duty to ensure full compliance with their
orders. Organs of state, including the South African Police Services
should do their constitutional duty in this regard, failing
which
one od the cornerstones of our democracy is threatened.
37.
At
the hearing of 8 March 2011 it transpired that the South African
Police Service failed to fully comply with the above order
at the
enquiry in respect of heir failure, the SAPS conceded their
ineptness. I thus have made an order for further investigation
by
the South African Police Services, which investigations are
continuing and will be the subject of separate proceedings, should
the Director of Public Prosecutions decide to prosecute individuals
for the contempt of the Court's order.
The Legal Framework:
38. There has been a
constant need to address the provision of adequate housing and the
development of sustainable human settlements
in South Africa. The
number of persons who are in need of housing is ever increasing.
39.
The right of access to adequate housing is not to be seen in
isolation. It must be seen as a whole, in light of its close
relationship with other socio-economic rights, all read together in
the setting of the Constitution. It is unquestionable that
the State
is obliged to take positive action to meet the needs of those living
in extreme conditions of poverty and intolerably
inadequate
housing
9
.
40. There are various
pieces of legislation that needs consideration when one deals with
the
development of housing and the progressive realisation of the
right to adequate housing. I shall attempt hereunder to refer to the
applicable law.
The Constitution:
41. The Constitution has
many sections that affect the development of housing, it is vital
that these following sections are considered
as it has a direct
impact on the progressive realisation of housing in South Africa.
42.
Section 1 (a) of the Constitution entrenches the respect for human
dignity stating "The
republic
of South Africa is one, sovereign, democratic state founded on ...
(a) Human dignity, the achievement of equality and
the advancement
of human rights and freedoms".
43. Section 7(2)
requires the State, that includes local government, to respect,
protect, promote and fulfil all fundamental rights.
44. Section 10 is of
significance to the case at hand in that it states: "Everyone
has inherent dignity and the right to
have their dignity respected
and protected."
45. Section 14 provides:
"Everyone has
the right to privacy"...
46.
Section
26 provides:
"(1) Everyone
has the right to have access to adequate housing.
(2) The state must
take reasonable legislative and other measures within its available
resources, to achieve the progressive realisation
of this right.
(3) ..."
47.
All of the above rights are fundamental, however Section 36 states
that
"the
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including the nature of the right; the importance of the
purpose of the limitation; the nature and extent
of the limitation;
the relation between the limitation and its purpose; and less
restrictive means to achieve the purpose".
48.
Section 39(1) provides that
"when
interpreting the Bill of Rights, a court, tribunal or forum (a) must
promote the values that underlie an open and democratic
society
based on human dignity, equality and freedom".
49.
In terms of section 139 provincial government has a particular
responsibility to ensure that local government performs in
terms of
their constitutional and legal obligations
10
.
Subsection
(7) states:
"If
a provincial executive cannot or does not or does not adequately
exercise the powers or perform the functions referred
to in
subsection (4) or (5), the national executive must intervene in
terms of subsection (I)or (5) in the stead of the relevant
provincial executive.
(8) National
legislation may regulate the implementation of this section,
including the process established by this section".
50.Section
156(1)(b) provides that a municipality will have executive authority
and the right
to administer matters that have been assigned to
them by national and/or provincial legislation. In this matter the
applicable
legislation is the
Housing Act and
the Western Cape
Housing Development Act 6 of 1999
11
.
The
Housing Act
12
>:
51.
The
Housing Act defines
"housing development" as the
establishment and maintenance of habitable, stable and sustainable
public and private
residential environments to ensure viable
households and communities in areas allowing convenient access to
economic opportunities,
and to health, educational and social
amenities in which all citizens and permanent residents of the
Republic will, on a progressive
basis, have access to-
(a) permanent
residential structures with secure tenure, ensuring internal and
external privacy and providing adequate protection
against the
elements; and
(b) potable water,
adequate sanitary facilities and domestic energy supply.
52. It is clear that the
requirements of privacy, protection against the elements and
adequate sanitary facilities are central
features of housing
development in South Africa.
Section
2(1)
sets out the general principles of the
Housing Act, stating
in
short that the three spheres of government must prioritise the
needs of the poor and must ensure that meaningful engagement
is had
with the communities affected by a housing development
13
.
Government must also encourage and support individuals and
communities; they need to promote the socio economic needs of the
community as well as take cognisance of the impact of housing
development on the environment.
54. It is important that
the community be involved in the process as stipulated in
section
2(1)(b)
as the community is affected by the housing development.
Section
2(1)(h)
states:
"in
the
administration of any matter relating to housing development--
i)
respect,
protect, promote and fulfil the rights in the Bill of Rights in
Chapter
2 of the
Constitution;
ii)
observe
and adhere to the principles of co-operative government
and
intergovernmental relations referred to in section 41(1) of
the Constitution;
and
iii)
comply
with all other applicable provisions of the Constitution;"
55. The national
government, through the Minister, must determine the national policy
including the norms and standards relating
to the housing
development in terms of
section 3(2)(a)
of the
Housing Act. The
administrative and procedural guidelines for the effective
implementation and application of the national housing policy are
found in the Code. The Code is binding on all provincial and local
spheres of government and governs all matters reasonably incidental
to the national housing policy.
56.
Section 7(1)
of the
Housing Act obliges
every provincial government to facilitate the
provisions of housing within the framework of the national housing
policy. Therefore
provincial government must take reasonable steps
to support the municipalities to exercise the powers and perform the
functions
in respect of housing development. Should a municipality
not be able to fulfil the executive obligation to the
housingdevelopment
then the provincial government may intervene in
terms of section 139 of the Constitution to fulfil the obligation.
57.
The
Housing Act sets
out the functions of the municipalities in
section 9(1)
in short as follows
14
:
that the Municipality must take reasonable and necessary steps
within the framework of the national and provincial housing
legislation and policy to ensure that there is access to adequate
housing on a progressive basis with conditions conducive to
the
rights in the bill of rights.
58. In terms of
section
9(2)
of the
Housing Act, the
municipality is entitled to participate
by acting as a developer in the planning and execution of the
housing project. Within
the framework of the
Housing Act, provinces
receive funds from national government to finance any national or
provincial housing programme which is in line with the national
housing policy. The head of the Provincial Department of Human
Settlements is responsible for the allocation of money from the
national housing programme.
The UISP:
59. The UISP was
instituted in terms of the
Housing Act to
make provision for the
upgrading of informal settlements. The UISP is an important
programme that seeks to assist to upgrade
the living conditions
within informal settlements for millions of poor people, by
providing basic services and housing. It is
a process of rapid
urbanisation.
60.
The Code outlines the objective of the UISP as
"The
[UISP] directly encourages the development of social capital
by
supporting the active participation of communities
in
the
design,
implementation and evaluation of projects
.
This is indeed to reinforce a cooperative relationship between
the local government and communities to directly support
the
upgrading process and to enhance the long-term sustainability of
interventions.
The
process of engagement is also intended to build mutual trust,
reciprocity and enhance networks, ultimately reducing household
vulnerability, social crime and enhancing security
."
(my
underlining)
61. The USIP aims to
address the social and economic integration of communities, and to
bring about social cohesion, stability
and security in integrated
developments. The Programme may be undertaken in three phases,
focusing on community participation,
planning, emergency services,
basic services and housing construction as part of a final phase.
62. Once a project has
been approved and funds have been allocated by the Provincial
Department of Housing, the municipality shall
forthwith enter into a
written agreement with the Provincial Department which agreement
will address the basic municipal engineering
services to be
provided, with appropriate undertakings from the municipality in
that regard.
63. Interim services
will typically entail the provision of rudimentary water supply for
communal use, communal and other temporary
sanitation facilities
refuse removal and certain access roads.
64.
One of the responsibilities of the Municipality under this process
is to provide materials, assistance and support where necessary
to
enable the
in
situ
upgrading
to proceed.
65.
In terms of the Code community participation is of vital importance.
It is stated that:
"To
ensure that fragile community survival networks are not compromised
and to empower communities to take charge of their
own settlements,
one of the basic tenets of the programme is that beneficiary
communities must be involved throughout the project
cycle. All
members of the community, also those who do not qualify for
subsidies, are included."
66. The Programme is
premised upon substantial and active community participation and
funding is accordingly made available to
underpin social processes.
The following parameters are applicable:
(a) Community
participation is to be undertaken through the vehicle of Ward
Committees or a similar structure.
(b) Ongoing effort must
be made to promote and ensure the inclusion of all key stakeholders
within the participatory process.
(c) The municipality
must demonstrate that effective interactive community participation
has taken place in the planning, implementation
and evaluation of
the project.
(d) Special steps may be
required to ensure the ongoing involvement of vulnerable groups.
67. One of the
fundamental principles of the programme is the empowerment of
communities to enable them to assume ownership of
their own
development and improvement of life. The involvement of the target
community from the outset must in all circumstances
be pursued.
"Community participation must preferably be undertaken within
the context of a structured agreement between
the municipality and
the community. A framework for such an agreement is attached as
Annexure A to the Guidelines."
58. A municipality may
apply for funding for the appointment of external capacity to assist
in the processes leading up to the
conclusion of the participation
agreement with the communities.
69. Once the project has
been registered and the funding reservation confirmed by the MEC the
municipality will proceed with the
implementation of phase 2 of the
project. During this phase of the upgrading process, municipalities
will receive funding to
and "must" undertake certain
activities which includes the conclusion of the agreement between
the municipality and
the community that will regulate participation,
the project approval processes etc. and the installation of interim
services.
70. In phase 3 the
municipality shall submit a Final Business Plan including certain
"minimum information" to the MEC
for approval. That
information includes details of the community participation
structures established and contracted with.
71. Annexure A is
entitled "Guidelines for the contents of an agreement between
the municipality and the inhabitants of an
informal settlement to be
upgraded". It identifies certain issues which "should be
addressed in a contract that is
designed to bind the parties to the
agreement regarding the development of the informal settlement."
These include:
(a) A clear indication
on how the membership of the parties to the agreement is structured,
who is represented by each party,
and in terms of what mandate.
(b) The responsibilities
of each party to the agreement. This could include a list of
functions to be performed in terms of the
agreed development
process, and "should be specific so that all members know what
is required of them".
The processes and
proceedings of the agreement including where, when and how often
the parties will meet, the description of
the quorum for the
meeting etc
(d) The signatures of
members to indicate acceptance of the terms of the contract.
72.
National Housing Code sets out various principles for the UISP which
includes
15
:
"•
A holistic approach:
Entails
an area and/or community wide focus, fostering holistic development
of the settlement with minimum disruption of existing
fragile
community networks and support structures. To the greatest extent
possible, settlements should be upgraded in a holistic,
integrated
and locally-appropriate manner. Engagement between community members
and their local authorities is of the utmost
importance to ensure
locally appropriate solutions;
Public
to public partnership:
This
Programme is premised on the provisions of the Intergovernmental
Relations Framework Act, 2005 (Act No. 13 of 2005) that
provides
for the establishment of co-operative governance structures and
systems, as well as alignment mechanisms. Local government
is the
main implementing agency. To counter the lack of capacity at local
government level, a focused capacity building programme
to support
municipalities must be established by provincial housing
authorities;
Service
standards:
The
Programme provides funding for the installation of interim and
permanent municipal engineering services. Where interim services
are to be provided it must always be undertaken on the basis that
such interim services constitute the first phase of the provision
of permanent services, the nature and level of permanent
engineering infrastructure must be the subject of engagement
between
the local authority and residents. Community needs must be
balanced with community preferences, affordability indicators and
sound engineering practice;
Community
Partnership:
The
Programme is premised upon extensive and active community
participation. Funding is accordingly made available to support
the
social processes. Community participation should be undertaken
through Ward Committees with ongoing effort in promoting
and
ensuring the inclusion of key stakeholders and vulnerable groups in
the process. The municipality must demonstrate effective
interactive community participation".
The
Water Services
Act:
73.
>
The
Water Services Act 108 of 1997
16
is
the legislative framework relating to water
services; it states
the objectives of basic sanitation as follows:
"Basic
Sanitation" - "the prescribed minimum standard of services
necessary for the
safe,
hygienic
and adequate collection, removal, disposal or purification of human
excreta, domestic waste-water and sewage from households,
including
informal settlements."
"Sanitation
services" - "the collection, removal, disposal or
purification of human excreta, domestic waste-water,
sewage and
affluent resulting from the use of water for commercial purposes."
74.
Section
3
of the
Water Services Act, provides
that everyone has a right of
access to basic water supply and basic sanitation. Every water
services authority that includes
the City, is prompted to take
reasonable measures to realise these rights, including in its water
services development plan.
75.
Regulation
2
of the Regulations Relating to Compulsory National Standards and
Measures to Conserve Water in terms of Government notice R509
of 8
June 2001 states:
"The minimum
standard for basic sanitation services is-
(a) The provision of
appropriate health and hygiene education; and
(b) A toilet which is
safe, reliable, environmentally sound, easy to clean, provides
privacy and protection against the weather,
well ventilated, keeps
smells to a minimum and prevents the entry and exit of flies and
other disease-carrying pests."
76.
I
now deal with the issues at hand, in terms of the legal framework
set out above.
The issues:
There are four main
issues that will be dealt with. They are:
The Agreement: whether a
legally enforceable agreement was reached with the affected
community.
The 1:5 ratio: whether
the 1:5 ratio was applicable.
The Constitutional
issues: whether any constitutional rights of the affected community
was infringed.
The Counter Application:
whether certain aspects of the Housing Code is unconstitutional,
whether the application is competent.
The "Agreement":
77. The city alleges
that the unenclosed toilets were provided pursuant to an agreement
with the affected communities for its
enclosure by the community
themselves, at their own cost. This alleged agreement is denied by
the applicants. It needs to be
considered whether the agreement, if
proven, is enforceable. Coupled to this issue must be the conduct of
the second applicant
herein.
78. The City submitted
that individual toilets were unaffordable and therefore decided that
the solution would be communal toilets,
on a ratio of one toilet to
every five erven (i.e.1:5). As this was resisted by the community it
was proposed that an alternative
of individual unenclosed toilets
per erven be installed on condition that the community enclose such
toilets themselves and at
their own cost. According to the City this
was an effort to go beyond the minimum required (i.e. 1:5), to meet
the concerns of
the community regarding the communal toilets which
in itself were unsatisfactory. It was this decision that led to the
alleged
agreement with the community.
79.
The Premier, who was the Mayor of the City at the relevant time,
states that there was never a formal decision, at executive
or
council level, within the City to provide unenclosed toilets. The
agreement reached was an
ad
hoc
one
between officials and community representatives to meet the demands
of a specific project and further that the agreement was
never
conveyed to her either as Mayor or Premier. In fact, according to
her, the provision of unenclosed toilets, absent an agreement
for
enclosure, would be an affront to human dignity.
80. I now turn to the
meeting of 27 November 2007 where the agreement was allegedly
concluded. The community were given a mere
four days notice. This
was done on the Thursday preceding the meeting. The meeting was
scheduled for the Sunday, upon an open
field in the area. The
proposed agenda of this meeting included only two items to be
discussed, namely electricity and refuse
removal. The topic of
toilets and or sanitation was not on the agenda for this meeting.
However, it was allegedly placed on the
agenda, at the meeting,
shortly before the start thereof.
81.
It is alleged by the City that 60 members of the community, the ward
councillor, the then project manager for the City and
community
leaders attended. None of the alleged attendees deposed to
affidavits except for the community and development manager
of a
contractor. At this meeting the City "presented a proposal to
the community based on what was affordable" and
based on this
proposal "it was agreed" between Mr Mzomba and "
the
community leaders
"
that the City would in addition to the communal toilets, build
individual toilets on each of the 1316 erven in Silvertown.
It is to
be noted that in its answering affidavit, the City stated that it
"admits that the
community
agreed
and understood the installation of the toilets, which would be
enclosed by the community, was only feasible and justifiable
on the
basis that such toilets would indeed be incorporated into the final
top structures to be erected on the individual erven
in due course."
It is, alleged that the people who attended raised no objections to
the proposal hence the City is of the
view that the proposal was
acceptable and that the attendees agreed thereto.
82. The City submitted
from the outset that they took the need to consult with the
community seriously and appointed independent
contractors to
undertake this task. A steering committee comprising relevant
stakeholders was appointed. The appointment of paid
community
liaison officers (CLOs); who included the second applicant was done.
The City's subcontractor conducted the process
of the community
participation through the CLO's at site meetings to discuss the
aspects of the development. It is however not
alleged that any CLO
and in particular the second applicant attended this meeting.
83. There are no minutes
of the meeting; as they were allegedly not taken, and therefore
there is no way of proving who all attended
the meeting. According
to Caso, this was because the meeting was called in the open and on
a Sunday and attended by many people.
He explains that the keeping
of minutes was accordingly impractical. It is important to note that
this meeting was held two years
prior to the installation of the
unenclosed toilets. The tender was only awarded on 2 April 2009. The
question arises as to whether
the 60 people of the community who
attended the meeting in 2007 were still within the community in 2009
when the unenclosed toilets
were installed.
84. There are minutes of
other meetings that were held with the CLO's which included the
second applicant, however these meetings
were held to establish the
site of the toilets. Nothing about the community enclosing their own
individual toilet arises out
of these minutes.
85. In terms of the 2004
version of the UISP (the prevailing framework at the time when the
alleged agreement was concluded),
the main objective was to
facilitate the structured upgrading of informal settlements. The
programme promoted the development
of healthy secure living
environments by facilitating the provision of a whole range of
services, and the programme was not only
to restore dignity to the
urban poor but also to build human capital.
86. The Programme is
premised upon substantial and active community participation
andfunding is accordingly made available to
strengthen social
processes in order to ensure that true, proper and meaningful
engagement is had with the community that will
be affected. The
following parameters are applicable:
e) "Community
participation is to be undertaken through the vehicle of Ward
Committees or a similar structure.
f) Ongoing effort
must be made to promote and ensure the inclusion of all key
stakeholders within the participatory process.
g) The municipality
must demonstrate that effective interactive community participation
has taken place in the planning, implementation
and evaluation of
the project.
(h)
Special
steps may be required to ensure the ongoing involvement
of
vulnerable groups. "
17
87.
Meaningful engagement was discussed in the case of
Occupiers
of 51 Olivia Road
18
Yacoob,
J stated the following:
"Engagement
is a two-way process in which the city and those ... would talk to
each other meaningfully in order to achieve
certain objectives.
There is no closed list of the objectives of engagement".
88.
Yacoob J went further elaborating upon this point:
'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. People about to be
evicted may be so vulnerable that they may not
be able to understand
theimportance 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 that the engagement
process should preferably be managed by careful and sensitive people
on its side
."
19
(my
underlining)
89.
In the Joe Slovo
20
case,
Ngcobo J (as he then was) state that meaningful engagement must be
had with the people affected stating:
"In
my view, the key requirement in the implementation of a programme is
engagement. There must be meaningful engagement
between the
government and the residents. The requirement of engagement flows
from the need to treat residents with respect and
care for their
human dignity."
90. Community
participation must preferably further be undertaken within the
context of a structured agreement between the municipality
and the
community. A framework for such an agreement, is annexed to the
guidelines as Annexure A to the Housing Code. It clarifies
certain
issues which "should be addressed in a contract that will bind
the parties to the agreement regarding the development
of the
informal settlement." As quoted in para (71) above.
91. It is uncontentious
that the State's housing policy, particularly as articulated in the
Housing Code contemplates consultation
with the affected community
and, necessarily, arrangements and agreements for the implementation
of whatever consensus is achieved.
It is equally uncontentious that
any agreement must reflect a proper consensus achieved with
representatives and legitimate community
leaders.
92. The parties
proferred divergent views and reasons to support their contention as
to whether the agreement would be enforceable
or not.
93. The City argued that
as they had collected "happy letters" from the majority of
the community in the Silvertown
area with only one negative comment,
it constitutes evidence of the community's agreement. Furthermore,
the second applicant
raised no complaints about his own toilet. I
shall revert to the second applicant later in this judgment.
94. In my view reference
to a vague agreement is simply not good enough. The City is bound by
the prescripts of the Code and the
Consitution and accordingly must
ensure that community participation and negotiated agreements that
are entered into, are consistent
with the prescripts of the Code.
This is patently absent here.
95. We are dealing with
a poor vulnerable community, who met with the City in order to reach
agreement on important issues regarding
their day to day existence.
In the circumstances can it be said that the City has complied with
the Code in concluding the agreement
with the community? Poor people
enclosed toilets which were open, it seems, in desperation to
salvage some basic element of human
dignity. They did not do so as
evidence of an agreement.
96.
The City further relies on the fact that no one raised any
objections in the meeting and therefore accepted the proposal of
unenclosed toilets to be enclosed by themselves. In my view, absent
any information relating to the circumstances, means or any
other
relevant fact in relation to the present individuals, such inference
cannot be supported
21
.
97. In my view scant
information is available as to what was considered when residents
signed the so called "happy letters",
and for the reasons
and findings I make elsewhere in this judgment it is in any event
irrelevant.
98. The conclusion of
agreements with communities for the purposes of giving effect to
socio- economic rights is commendable.
These agreements, to be
enforceable, ought to at least satisfy four minimum requirements;
(i) it must be concluded with duly
authorised representatives of the
community; (ii) it must be concluded at meetings held with adequate
notice for those representatives
to get a proper mandate from their
constituencies, (iii) it must be properly minuted and publicised.
(iv) it must be preceded
by some process of information sharing and
where necessary technical support so that the community is properly
assisted in concluding
such an agreement. None of these requirements
were met in this matter.
99. Even if an agreement
satisfies all four requirements, an agreement cannot be a vehicle
through which a majority within a community
approve arrangements in
terms of which the fundamental rights of a vulnerable minority
within that community will be violated.100.
In terms of the alleged
agreement we have 60 people concluding an agreement that is going to
govern the living circumstances
of approximately 6 000 people, that
is less than 1%, and there is no evidence of any representative
status. The ward councillor
does not have a mandate to sign away the
individual rights of members of the community.
101. A collective
agreement of this nature, alleged by the City, cannot amount to a
waiver of individual fundamental rights to
dignity and privacy.
These rights are of a fundamentally, individual nature, and in this
regard the objects of the constitution
would be subverted if a
majority group within a community, even an overwhelming majority
within a community, could agree to a
program from which they stood
to gain, even in circumstances where that program violated the
fundamental rights to dignity and
privacy of a small and vulnerable
minority within that community.
102. The alleged
agreement made no provision for those who were unemployed and poor
and could not fund the enclosure of their
own toilets. One of the
requirements of reasonableness under section 26(2) of the
Constitution is that a housing programme must
be framed in a manner
that takes account of the needs of the most vulnerable and
desperate. The City ought to have come to the
assistance of those
who, due to poverty and their particular disadvantaged
socio-economic status could not afford to enclose
their toilets.
Also no regard was had to persons with disabilities or to issues of
safety for those most vulnerable to violence
in terms of the
structure. The City failed to take into consideration the gender
impact on women and girls both in terms of different
biological
needs as well as their vulnerability to higher levels of
gender-based violence. All of these are to be considered
as a
violation of fundamental rights of human beings and cannot be waived
by the agreements, as alleged here.
103. The nature of the
consent in this instance is problematic, as there is no proof of who
was present, there is no proof of
a representative capacity, there
is no proof of a positive agreement, and in particular there did not
appear to be any consideration
at the time the agreement was
ostensibly concluded as to the costs of enclosing the toilets and
whether the community could afford
to do so, the City also did not
state how they would deal with toilets for members of the community
who could not afford to enclose
the toilet themselves.
104.
The conduct and involvement of the second applicant in this matter
also needs to be discussed under this issue. The second
applicant is
a member of the community in Makhaza and he is one of the executive
members of the ANC Youth League. The second
applicant was one of the
CLO's who interacted with the City in meetings regarding the
project. What has become evident is that
the second applicant had a
core function of promoting the interests of the City's contractor
22
.
In fact the second applicant was being paid by the contractor and
the question arises if the second applicant was indeed a community
representative who was taking the communities best interests to
heart. Not only was the second applicant in the pocket of the
contractor but his role undermined the principle of community
participation.
105. I am of the view
that the conduct of the second applicant is questionable.
106. Based on the above,
I am of the view that the agreement relied upon is not a valid and
enforceable between the City and the
Community. This could not
legitimise the installation of the unenclosed toilets.
The 1:5 issue:
107. Apart from its
reliance on the agreement, the primary defence of the City is that
it provided the open toilets in addition
to the enclosed communal
toilets that were already installed. The ratio of 1:5, the City
contends, is what the Code identifies
as a minimum for housing
projects (thereby stating that they could not have violated the
fundamental rights of residents unless
that minimum is itself,
unconstitutional). Furthermore the City contends that as the UISP in
the Code contemplates that residents
will build their own homes, it
cannot be unconstitutional for the City to have required residents
to build the structures to
enclose their toilets, unless the Code is
in itself unconstitutional.
108.
The City expressed the view that they would prefer to construct
individual toilets in projects funded under the UISP
23
.
However, this was not possible in the Silvertown project for
budgetary reasons. The construction of communal toilets was always
considered a compromise.
109. The City maintained
that the provision of communal toilets was left to the discretion of
the municipality implementing the
project and that there was no
provision in the Code preventing communal toilets in the interim
period on any particular ratio
and does not require the construction
of individual toilets on each erven.
110. The Minister of
Human Settlements (the sixth respondent, hereinafter referred to as
the "National Ministry") submitted
that the City was
incorrect that the Code prescribes a minimum of 1:5 in relation to
the upgrading of informal settlements. They
stated threethings in
relation to this, firstly that the City itself did not lay a proper
basis for its interpretation of the
Code; secondly the City took one
clause out of the UISP, and it took one clause under the emergency
housing programme, and says
that the emergency housing programme
ought therefore to be used to interpret the UISP.
111.
The Housing Code envisages housing programmes governing different
issues. The emergency housing programme is aimed at a temporary
situation to respond to unpredictable or sudden situations. This
programme was the result of the
Grootboom
24
judgement.
In
Grootboom,
the
Constitutional Court found, that while government had a long-term
housing programme, it was lacking in relation to the immediate
provision of housing needs. The court specifically said in
Grootboom,
that
what the programme needs to do is to make provision for housing
needs that fall short of the definition of housing development
under
the
Housing Act.
112. Paragraph
13.7.1 of
the Code is based on
section 9
(1) of the
Housing Act which
provides
that every municipality, as part of its process of integrated
development planning, must take reasonable and necessary
steps
within the framework of national and provincial housing legislation
and policy to ensure that the inhabitants of its area
of
jurisdiction have access to adequate housing on a progressive basis,
that conditions not conducive to the health and safety
of the
inhabitants of its area of jurisdiction are prevented or removed,
and that services in respect of water and sanitation,
electricity,
roads, storm water drainage and transport are provided in a manner
which is economically efficient.
113. As far as
provincial government is obliged in terms of
s 7(1)
of the
Housing
Act to
do everything in its power to facilitate the provision of
adequate housing within the framework of the national housing
policy.
Similarly, local authorities must act within the framework
of the national and provincial housing legislation. In terms of
s
9(2)(a)
of the
Housing Act, participation
by a local authority in a
national housing programme is to be in accordance with the rules
applicable to that programme.
114. The standards that
are applicable for emergency housing will be lower than those
required for projects that are designed
to be of a longer duration
and that can be implemented after considered planning. The
Silvertown UISP project falls into the
latter category and is not a
case of emergency housing.
115. The programme
itself states that the national norms and standards do not apply to
the UISP, but it could serve as a guideline.
The norms and
standards, serving as a guideline in this regard, they make
provision for a toilet, a shower, a standard tap with
washing
facilities for clothes, and a hand basin and sink unit. Secondly, in
terms of the UISP it must always be undertaken on
the basis that
such interim services will constitute the first phase of the
permanent services to be provided.
116. The City has taken
an interpretation in relation to the upgrading of informal
settlements that is entirely inconsistent with
the programme itself,
in terms of which it seeks to cross-pollinate from the emergency
housing programme which was adopted with
a very different purpose
and objective in mind. And notwithstanding that, the City at no
stage sought any clarity from the National
Department with regard to
the interpretation of the programme.
117. Further there is no
indication, in any event that by implementing 1:5 that any
meaningful engagement with the community took
place.
118. Consequently I find
that the City cannot rely on the 1:5 ratio to justify, with
reference to any legislative framework, the
installation of
unenclosed toilets as it did.
The Constitutional
Issues:
119. Having found that
the alleged agreement was not valid and enforceable and that the 1:5
is not a prescribed minimum that can
be relied on, I now turn to the
question whether the provision of unenclosed toilets infringed on
any of the basic human rights
of the beneficiaries.
120. Although the
standing of the parties was not seriously challenged I need to
comment on the standing of both the SAHRC and
the applicants in this
matter.
121.
In terms of section 184(3) of the Constitution
25
the
SAHRC is mandated to investigate violations of rights entrenched in
the Bill of Rights as well as to monitor the measures
taken by
relevant organs of state towards the realisation of the rights in
the Bill of Rights concerning housing, healthcare,
food, water,
social security, education and the environment.
122.
Section 38 of the Constitution states that any person with an
interest in the matter may approach the court where they allege
that
a right contained in the Bill of Rights has been infringed or
threatened. A declaration of rights can be appropriate relief
in
thecircumstances of a particular case
26
.
123. I was referred to a
range of constitutional rights that might have been infringed in
this instance by the provision of unenclosed
toilets. This Court
does not look upon these rights lightly. Our commitment to social
justice and fundamental rights demand that
when any fundamental
rights are violated, it must be addressed.
124.
It is the duty of this Court to promote the Constitution and the
rights contained therein in order to
"heal
the divisions of the past and establish a society based on
democratic values, social justice and fundamental human
rights; Lay
the foundations for a democratic and open society in which
government is based on the will of the people and every
citizen is
equally protected by law; Improve the quality of life of all
citizens and free the potential of each person; and Build
a united
and democratic South Africa able to take its rightful place as a
sovereign state in the family of nation."
As
stated in the preamble of our Constitution
27
.
125.
In S
v
Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at para 329 the Constitutional Court reinforced the
central place that human dignity occupies in our constitutional
framework
in these words:
"Respect for the
dignity of all human beings is particularly important in South
Africa. For apartheid was a denial of a common
humanity. Black
people were refused respect and dignity and thereby the dignity of
all South Africans was diminished. The new
Constitution rejects this
past and affirms the equal worth of all South Africans.
Thus recognition and
protection of human dignity is the touchstone of the new political
order and is fundamental to the new Constitution."
126.
In
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v
Minister of Home Affairs and Others; Thomas and Another
v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) at para 35 the Constitutional Court said the
following:
"The value of
dignity in our constitutional framework cannot therefore be doubted.
The Constitution asserts dignity to contradict
our past in which
human dignity for black South Africans was routinely and cruelly
denied. It asserts it too to inform the future,
to invest in our
democracy respect for the intrinsic worth of all human beings. Human
dignity therefore informs constitutional
adjudication and
interpretation at a range of levels. It is a value that informs the
interpretation of many, possibly all, other
rights. This Court has
already acknowledged the importance of the constitutional value of
dignity in interpreting rights such
as the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and
the right to life. Human dignity
is also a constitutional value that
is of central significance in the limitations analysis. Section 10,
however, makes it plain
that dignity is not only a value fundamental
to our Constitution, it is a justiciable and enforceable right that
must be respected
and protected."
127.
In
the more recent matter of
NM
and Others v Smith and Others (Freedom of Expression Institute as
Amicus Curiae)
[2007] ZACC 6
;
2007
(5) SA 250
(CC) at paras 49-50. The Court once again pointed out
that:
"A constant
refrain in our Constitution is that our society aims at the
restoration of human dignity because of the many
years of oppression
and disadvantage. While it is not suggested that there is a
hierarchy of rights it cannot be gainsaid that
dignity
occupies a central
position. After all, that was the whole aim of the struggle against
apartheid - the restoration of human dignity,
equality and freedom.
. . . If human dignity is regarded as foundational in our
Constitution, a corollary thereto must be that
it must be jealously
guarded and protected. .. ."
128.
The Constitutional Court also dealt with interrelationship between
privacy and dignity and concluded that:
28
"The right to
privacy recognises the importance of protecting the sphere of our
personal daily lives from the public. In
so doing, it highlights the
inter-relationship between privacy, liberty and dignity as the key
constitutional rights which construct
our understanding of what it
means to be a human being. All these rights are therefore
interdependent and mutually reinforcing.
We value privacy for
this reason at least - that the constitutional conception of being a
human being asserts and seeks to foster
the possibility of human
beings choosing how to live their lives within the overall framework
of a broader community. The protection
of this autonomy, which flows
from our recognition of individual human worth, presupposes personal
space within which to live
this life."
129.
Specifically in relation to the right to privacy the Court in
S
v Jordan (Sex Workers Education & Advocacy Task Force as Amici
Curiae)
2002
(6) SA 642 (CC)
29
held
that
"the
constitutional commitment to human dignity invests a significant
value in the inviolability and worth of the human body
and the right
to privacy, therefore, serves to protect and foster that dignity".
130.
In Investigating Directorate:
Serious
Economic Offences v Hyundai Motor Distributors (Pty) Ltd and Others:
In re Hyundai Motor Distributors (Pty) Ltd and Others
v Smit NO and
Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC)
30
the
Court held:
"As we have
seen, privacy is a right which becomes more intense the closer it
moves to the intimate personal sphere of the
life of human beings,
and less intense as it moves away from that core."
131.
In
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC)
31
Ackermann
J characterises the right to privacy as lying along a continuum,
where the more a person inter-relates with the world,
the more the
right to privacy becomes attenuated. Moreover
that:
"A very high
level of protection is given to the individual's intimate personal
sphere of life and the maintenance of its
basic preconditions and
there is a final untouchable sphere of human freedom that is beyond
interference from any public authority.
So much so that, in regard
to this most intimate core of privacy, no justifiable limitation
thereof can take place. But this
most intimate core is narrowly
construed. This inviolable core is left behind once an individual
enters into relationships with
persons outside this closest intimate
sphere; the individual's activities then acquire a social dimension
and the right of privacy
in this context becomes subject to
limitation."
132.
In the case of
Joe
Slovo
32
,
Justice
O'Reagan stated the following, dealing with the Section 26 matter:
"In
considering this and similar cases courts need on the one hand to be
aware of the enormity of the task that Governments
perform in
seeking to improve the quality of life of all citizens, and be
astute not to impair the government's ability to perform
this task.
On the other hand courts must not permit government to treat
citizens in a manner that is not consistent with human
dignity of
pursuing laudable programs."
This
case also stressed that there is a primary responsibility on
government to act reasonably when giving effect to constitutional
rights, in particular socio-economic rights.
133.
In the
Grootboom
case
section 26 of the constitution was discussed
33
:
"'All
implementation mechanisms and all State action in relation to
housing falls to be assessed against the requirements
of s 26 of the
Constitution. Every step at every level of government must be
consistent with the constitutional obligation to
take reasonable
measures to provide adequate housing."
134.
Yacoob
J went on to state that the Constitution would be worth infinitely
less than its paper if the reasonableness of State action
concerned
with housing was determined without regard to the fundamental
constitutional value of human dignity, adding that:
"Section 26,
read in the context of the Bill of Rights as a whole, must mean that
the respondents have a right to reasonable
action by the State in
all circumstances and with particular regard to human dignity. In
short, I emphasise that human beings
are required to be treated as
human beings. This is the backdrop against which the conduct of the
[council]
towards the [occupiers] must be seen.'"
34
135. The City argued
that the potential violation of dignity ought to be properly
considered. They stated that no-one was ever
expected or compelled
to use the individual unenclosed toilets in Makhaza before they were
enclosed. The communal toilets were
installed before anyone moved
into the Makhaza area of the Silvertown project. They submitted that
the issue was not whether
the City expected residents to waive their
rights to dignity by using unenclosed toilets, or left them with no
other alternative
but to do so. That was not the intention of the
City. They continued to argue that though the communal toilets were
available
to be used, no one was obliged to make use of an
unenclosed toilet. Once the City became aware of the unenclosed
toilets they
attempted to enclose those toilets but to no avail.
136. This argument of
the City loses sight of the uncontested evidence on behalf of the
City before this Court. The City, in support
of their counter
application, filed a supporting affidavit by Thembisa Princess
Sokabo, who is a resident in an area where communal
toilets (1:5
ratio) were installed. I deem it necessary to quote from her
affidavit:
"
The
toilets we have in Nkanini (i.e. the one to five households toilets)
are generally in an appalling state, notwithstanding
the City's
attempt to maintain same, to the extent that members of the
community generally do not use them. They are always blocked
and
filthy, and are not appropriate for human use. Due to the fact that
they are communally owned, people do not take responsibility
and
personal pride in them. Not only are the toilets filthy and unsafe,
but they are a health hazard to people in general and
to children in
particular as they have burst pipes which are overflowing with
faeces.
As a consequence of
the above, other people have dug deep pits in their yards and
enclosed them with enclosures made of timber
and zinc material. Many
people in my community prefer to now use these toilets instead of
using the communal ones.
As a single female
parent, I do not have a pit toilet. My three year old granddaughter
relieves herself in plastic bags. In the
past, people who have pit
toilets have been of great help to their neighbours, but they have
since complained that their pits
will get full if neighbours
continuously make use of them.
When it is time for
me to relieve myself, I walk to my sister's house in the upgraded
Makhaza section and the walk takes me twenty
minutes. I can only
embark on this walk when nature calls during the day. At night I
have to make do with whatever is available
whether it is a carrier
bag or any other container to relieve myself.
I have friends and
relatives who are staying in the area which is the subject of these
proceedings. As this Honourable Court would
know, these proceedings
are a topical issue in Makhaza due to the significance of the
upgrade project and the subsequent media
attention this matter has
received and which it continues to receive.
The general view is
that, as a matter of principle, toilets should be enclosed. However,
the community is divided on what materials
should be used to enclose
the toilets. Certain members of the community are of the view that
toilets must be enclosed with concrete
enclosures. Other members of
the community are happy with the timber and zinc enclosures.
The
general feeling within my community, it that individual toilets,
enclosed with any material to a degree that allows for privacy
when
ablating, are better than the communal toilets, which have in the
past been the norm".
The
content of this affidavit confirms my own observations. The question
then arises whether in any event the communal toilets,
as provided,
complied with human dignity. I submit not.
137. The Constitution
provides for the right to freedom and security of person. In section
12(2) "Everyone has the right
to bodily and psychological
integrity, which includes the right to security in and control over
their body".
138. The applicants
submitted that the installation of unenclosed toilets to a poor
community stigmatizes the residents in a manner
that is both
demeaning and degrading. They argued that the action of the City
sent a message that the residents of Makhaza are
not worthy of the
privacy in terms of section 14 of the Constitution that an enclosed
toilet provides and this is a violation
of their rights to decent
living conditions which include privacy.
139. The applicants
argued that the demeaning use of people using unenclosed toilets
could not be consistent with the values of
our constitutional
dispensation. They went further saying that the harm arising from
the public notoriety associated with the
use of unenclosed toilets
was a form of state abuse.
140.
The first applicant, I need to emphasize a
76
year old female
,
had to cover herself with a blanket to relieve herself. This is
neither humane nor dignified. She was attacked as she was the
unenclosed toilet in full view of the community.
141.
The Courts have repeatedly held that the State, including
municipalities, is obliged to treat vulnerable people with care
and
concern and to treat human beings as human beings.
35
142.
Also the objects of local government in the Constitution are, among
other things,
"to
ensure the provision of services to communities in a sustainable
manner"
36
and
"to
promote a safe and healthy environment"
37
.
A
municipality is obliged to try to achieve these objectives.
Section
73(1)(c)
of the
Local Government: Municipal Systems Act 32 of 2000
echoes the constitutional precepts and obliges a municipality to
provide all members of communities with "the
minimum
level of basic municipal services".
143. Such minimum level
would include the provision of sanitation and toilet services.
Irrespective whether it is built individually
on separate erven, or
communally, it must provide for the safety and privacy of the users
and be compliant with the fundamental
rights guaranteed in the
Constitution. Any housing development which does not provide for
toilets with adequate privacy and safety
would be inconsistent with
s 26 of the Constitution and would be in violation of the
constitutional rights to privacy and dignity.
144. The facts showed
that the City had failed to heed this injunction; it may be pursuing
a laudable program, being the upgrading
of the Silvertown informal
settlement and the rolling out of individual household toilets,
however, in the process, the City
lost sight of the needs of the
poorest of the poor and their human dignity.
145. The manner in which
the City acted was not in line with the provisions of section 26 of
the Constitution. No thought was
given to the outcome of their
decision and how it would affect the lives of the community.
146.
The City's decision to install unenclosed toilets lacked
reasonableness and fairness; the decision was unlawful and violated
constitutional rights. The legal obligation to reasonably engage the
local community in matters relating to the provision of
access to
adequate housing which includes reasonable access to toilet
facilities in order to treat residents
"with
respect and care for their dignity"
was
not taken into account when the City decided to Install the
unenclosed toilets.
38
,
39
.
147. The applicants
argued that the Premier and Province would be similarly implicated
in that Province entered into an agreement
with the City to
construct open toilets on the basis of an alleged agreement, which
was based on a misrepresentation of the Code.
148.
Whilst it is so that I cannot agree that the Premier and the
Province had any direct involvement in the installation of the
unenclosed toilets it needs to be pointed out that both the
provincial government as well as the national department have an
obligation to monitor and assist in the implementation of projects
that are funded under the UISP. In this matter it is patently
clear
that both the provincial and national departments simply failed in
their duty
40
.
149.
I am further of the view that the provision of unenclosed toilets is
unlawful as it is inconsistent with Regulation 2 of
the Regulations
Relating to compulsory National Standards and Measures to Conserve
Water.
41
An
illegality cannot be cured by providing something lawful alongside
that which is unlawful.
150. Based on the facts
presented to this court, I find that there was a violation of the
rights in terms section 10, 12,14,24,26
and 27, by the provision of
unenclosed toile
The Counter
Application:
The basis of the
counter application:
151. The City submitted
that if the Court finds that they acted unlawfully, then this flows
directly from defects in the Housing
Code. The City has accordingly
brought a conditional counter application in which it challenges the
lawfulness of the Housing Code
on the following bases:
152. First, as the
provisions of the Housing Code are unlawful to the extent that they
do not require an individual toilet on each
erf as a minimum.
153. Secondly, the
Housing Code requires the City to consult with the community on every
aspect. If the City cannot, as a matter
of law, act on an agreement
with the community, then there is no purpose to such consultation.
154. Thirdly, the UISP is
premised on beneficiaries building their own informal settlements
until funding is obtained for permanent
housing. If it is unlawful to
expect beneficiaries to construct enclosures around their toilets,
then the expectation that they
must build their own informal
settlement must also be unlawful.
155. Fourthly, the
Housing Code provides no guidance as to what constitutes an adequate
enclosure for toilets and lastly, the formula
for funding under the
UISP does not cover the expenses reasonably incurred in providing
services to an area, including the provision
of individual, enclosed
toilets.
156. The City also
submits that they had taken into account those that were not able to
enclose their own individual toilet and
took into account to
construct their toilet enclosures. They stated that should it be
found that they acted unlawfully then in
terms the Code too is
unlawful on the basis that it too does not adequately take into
account the genuinely poor, the aged, the
infirm and the disabled.
157.
The City argued that the provisions of the Code are rendered vague
and provide no sensible guidance to implementing municipalities.
As
was held in
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
;
2006
(3) SA 247
(CC)
(2005 (6)
BCLR 529)
at para 108:
"The
doctrine
of vagueness is founded on the rule of law, which . . . is a
foundational value of our constitutional democracy. It requires
that
laws must be written in a clear and accessible manner. What is
required is reasonable certainty and not perfect lucidity.
The
doctrine of vagueness does not require absolute certainty of laws.
The law must indicate with reasonable certainty to those
who are
bound by it what is required of them so that they may regulate their
conduct accordingly"
42
.
158.
Further they argued that the provisions of the Code fall foul of the
requirement of the rule of law that
"where
a wide discretion is conferred upon a functionary, guidance should be
provided as to the manner in which those powers
are to be
exercised."
43
The
City submits that the national department should have indicated the
type of factors which should have been considered in determining
the
number of communal toilets to supply in a particular project.
44
159. The Premier submits
that the Code itself is essentially inadequate. It is designed to
provide basic services and for that reason
does not go far enough to
meet the need of people who are living in intolerable circumstances.
160. In order to address
the problem of the nature and extent of basic services to be provided
in the upgrade of informal settlements
(phases 1 to 3 of the UISP)
the Premier was of the opinion that this calls for a reconsideration
and re-evaluation of housing policy
as reflected in the Housing Code
and in the UISP in particular. It is national government which is
obliged, in terms of
s 3(2)(a)
of the
Housing Act, to
determine
national policy, including national norms and standards in respect of
housing development. National housing policy is
contained in the
Housing Code which contains the administrative and procedural
guidelines in respect of the effective implementation
and application
of national housing policy.
161. The Premier argued
that the Court ought to require it of any legislative programme that
some attempt should be made to provide
norms or standards and
guidelines for the provision of the basic sanitation facilities for
occupants of informal settlements who
have no reasonable access to
such facilities. Hence individuals who are living, in the words of
Yacoob J, in intolerable circumstances.
The programme appears to
contemplate that some form of communal facility will be provided to
those in intolerable circumstances
or in a position of emergency or
acute need. The City has contended that if regard is had to the Code
as a whole, incorporating
all its provisions, and if due notice is
taken of the purpose of interim facilities it is not unreasonable to
draw assistance and
guidance from the provision dealing with
emergency situations because Yacoob J regarded an emergency as being
when people are living
in intolerable circumstances.
The basis of
opposition:
Intergovernmental
Relations Framework Act:
162.
The applicants submit that the City and the Province have not
exhausted the remedies available to them under Chapter 3 of the
Constitution and the
Intergovernmental Relations Framework Act
(hereinafter
referred to as "IGFRA")
45
.
They argued that the constitutional challenge to the Housing Code by
an organ of state against another organ of state is undesirable
unless it is within the process established in Chapter 3 of the
Constitution and dealt with in terms of IGFRA.
163. The National
Minister argued that the constitutional challenge against the
department of human settlements will inevitably
result in possible
amendments to the Housing Code; this would mean a legislative process
that would involve the participation of
the Province and the input of
the City. Unless the City and the Province are able to show that
there is a breakdown in the intergovernmental
relations to warrant
the route of litigation, they submit that the counter-application,
and any dispute relating to the constitutionality
of the Housing Code
should first be dealt with in terms of the
Intergovernmental
Relations Framework Act.
164.
Chapter
3 of the Constitution read together with the relevant
provisions of the
Intergovernmental Relations Framework Act is
applicable to the counter-application. Section 40(2) of the
Constitution provides a mandatory requirement for the resolution of
intergovernmental disputes. It makes it mandatory for all spheres of
government to observe and adhere to the principles in Chapter
3 and
demands that all spheres of government conduct their activities
within the parameters of Chapter 3. Section 41(4) provides
a Court
with a discretion:
"If
the Court is not satisfied that the requirements of subsection (3)
have been met, it may refer a dispute back to the organs
of state
involved".
165. In terms of section
45 of IGFRA makes it clear that no government or organ of state may
institute judicial proceedings in order
to settle an
intergovernmental dispute unless the dispute has been declared a
formal intergovernmental dispute.
166.
Section 41(1)(h) of the Constitution requires co-operation between
organs of state in mutual trust and good faith, by fostering
friendly
relations, assisting and supporting one another, informing one
another of, and consulting one another on, matters of common
interest, co-ordinating their actions and legislation with one
another, adhering to agreed procedures and avoiding legal proceedings
against one another
46
.
167. It is common cause
that the City has never, whether formally in structures between the
national government, provincial and
local, or by way of instituting
litigation, sought to challenge the constitutionality of the housing
code. Indeed on the City's
version, they respected it and acted in
compliance with the prescripts of the code. The City has not
attempted to utilise the procedures
and processes provided for in
terms of Chapter 3 of the Constitution.
168.
The National Ministry has explained that a task team was formed
(comprising senior officials from the national department,
nine
provinces and the metropolitan municipalities) for the purposes of
drafting and revising the Code. In that process, a draft
national
housing programme was produced by the Department and then subjected
to scrutiny by the task team and finalised after intense
discussion
and debate. The National Ministry also explained that the Code could
be revised pursuant to requests from MinMEC
47
.
There is no conceivable reason as to why the City did not approach
MinMEC or the National Ministry directly regarding revisions
to the
Code.
169. Furthermore, had the
City been uncertain regarding any aspect of the interpretation of the
Housing Code, it ought to have approached
the National Department.
Indeed one of the responsibilities of the National Department under
the Code is to assist with the interpretation
of policies and
programmes. Instead of approaching the National Department to resolve
the issues it now complains of, the City
decided to embark on
litigation instead in, disregard of the prescripts for co-operative
governance under the Constitution.
170. The City has not
complied with the
Intergovernmental Relations Framework Act No. 13 of
2005
or the constitutional prescripts of co-operative governance. The
City has also not provided any proper explanation for its failure
to
have done so. In this regard, it should be noted that the UISP itself
is "premised on the provisions of the Intergovernmental
Relations Framework Act, 2005 (Act No. 13 of 2005) that provides for
the establishment of co-operative governance structures and
systems,
as well as alignment mechanisms. Local government is the main
implementing agency."
171. The Code has a
direct and material bearing on all municipalities and provincial
governments in South Africa. All provinces,
municipalities and sector
partners are given an opportunity to participate in the revision of
the Code. That notwithstanding, none
of the other provinces or
municipalities are party to these proceedings in which fundamental
underpinnings of the Code are being
challenged for their
unconstitutionality.
172. I would therefore
dismiss the counter application on the basis that there was
non-compliance with section 3 of the Constitution
and with IGFRA and
therefore premature and incompetent, however in the event that I am
wrong, I shall deal with the other arguments
hereunder.
Grounds of the counter
application:
173. I now turn to deal
with the grounds of the counter application as set out above.
174. The central and
important question raised in this matter is the extent to which
national housing policy as contained in the
Housing Code and the UISP
is compliant with the obligations resting on the State in terms of s
26(2) of the Constitution. In this
regard, one must keep in mind that
in terms of
s 3(2)(a)
of the
Housing Act 107 of 1997
national
government is obliged to determine national housing policy, including
national norms and standards in respect of housing
development.
National housing policy is contained in the National
Housing Act
which
contains the administrative and procedural guidelines in
respect of effective implementation and application of the policy.
These
important and complex questions of executive policy fall to be
dealt with by appropriate consultation and co-operation between the
national and provincial spheres of government, involving local
government where appropriate.
175. The
Housing Act
makes
provision for the adoption of a Housing Code, the National
Ministry has explained the co-operative basis on which that Code is
in fact adopted by them and it is also explained that that Code is
not a static document and is amended and revised on a regular
basis.
176. There are budgetary
limits for any sphere of government; however the important
considerations of a housing policy arise in
relation to the policy
followed by national government and Province of spreading available
resources to as many people as possible,
rather than delivering more
to fewer people.
177.
As to a Court's role, there is no doubt as to the justiciability of
the socio-economic rights contained in the Bill of Rights,
and in
particular section 26 and 27, being the most visible of such
socio-economic rights
48
.
As to the positive protection of these rights
49
,
the problems of separation of powers and the polycentricity of the
decision-making process are said to explain much about the
Constitutional Court's approach to reviewing government compliance
with socio-economic rights
50
.
178.
In
Grootboom
51
,
the Constitutional Court declined the invitation to set a core
minimum obligation guideline for the right to housing. Establishing
a
core minimum standard raises the problem of the polycentricity of the
decision. The determination would require a great deal
of evidence
and information, not ordinarily available to the court. It held as
follows:
'It
is not possible to determine the minimum threshold for the
progressive realisation of the right of access to adequate housing
without first identifying the needs and opportunities for the
enjoyment of such a right. These will vary according to factors such
as income, unemployment, availability of land and poverty. The
differences between city and rural communities will also determine
the needs and opportunities for the enjoyment of this right.
Variations ultimately depend on the economic and social history and
circumstances of a country. All this illustrates the complexity of
the task of determining a minimum core obligation for the progressive
realisation of the right of access to adequate housing without having
the requisite information on the needs and the opportunities
for the
enjoyment of this right. The committee developed the concept of
minimum core over many years of examining reports by reporting
States. This Court does not have comparable information.
52
179.
Grootboom
53
emphasises
the extent to which a court must exercise a degree of care and
deference when faced with the invitation to involve itself
in a
necessary decision or question, to find that the State's housing
programme is deficient
54
.
The question will ultimately be whether the legislative and other
measures taken by the state, are reasonable. Accordingly it
was
necessary to recognise that there is a wide range of possible
measures that can be adopted to meet the state's obligations.
Many of
these would meet the requirement of reasonableness, and once it is
shown that the measures do so, the requirement under
Section 26 (2)
has been met
55
.
180. The nature of the
enclosures are an inherently fact dependent enquiry. These are issues
that are unique to the development
in question. It depends on the
circumstances, and enclosures could conceivably be with brick and
mortar or with alternative materials
such as precast concrete panels
or with corrugated iron or galvanised iron and timber. These are
decisions best left to implementing
structures, given that the
appropriateness of materials is entirely dependent on the prevailing
conditions at a particular development.
And it is for that reason
that the Code is not prescriptive in that regard.
181.
In
Khosa
and Others v Minister of Social Development and Others; Mahlaule and
Others v Minister of Social Development and Others
[2004] ZACC 11
;
2004
(6) SA 505
(CC)
56
the
Constitutional Court held that in dealing with the issue of
reasonableness in the context of socioeconomic rights, context
is all-important. Reasonableness ought to be understood in the
context of the Bill of Rights as a whole
57
.
182.
In
Mazibuko
and Others v City of Jhb and Others
2010
(4) SA 1
(CC) the Constitutional Court held:
(a)
"At the time the Constitution was adopted millions of South
Africans did not have access to the basic necessities of life,
including water. The purpose of the constitutional entrenchment of
social and economic rights was thus to ensure that the State
continue
to take reasonable legislative and other measures progressively to
achieve the realisation of the rights to the basic
necessities of
life. It was not expected, nor could it have been, that the State
would be able to furnish citizens immediately
with all the basic
necessities of life. Social and economic rights empower citizens to
demand of the State that it act reasonably
and progressively to
ensure that all enjoy the basic necessities of life. In so doing, the
social and economic rights enable citizens
to hold government to
account for the manner in which it seeks to pursue the achievement of
social and economic rights."
58
(b)
"Moreover, what the right requires will vary over time and
context. Fixing a quantified content might in a rigid and
counter-productive
manner prevent an analysis of context. The concept
of reasonableness places context at the centre of the enquiry and
permits an
assessment of context to determine whether a
governmentprogramme is indeed reasonable. '
59
183. It should be borne
in mind that in dealing with such matters, the Courts are not
institutionally equipped to make wide ranging
factual and political
enquiries regarding the determination of core standards. Although it
recognised that there are pressing demands
on the public purse and
that the Courts are ill suited to adjudicate upon issues where court
orders could have multiple social
and economic consequences for the
community.
184. This Court cannot be
called upon to determine firstly, whether the housing code provides
the best possible policy framework
that can be expected of
government; secondly whether the housing code could have been better
drafted by the National Ministry;
thirdly whether the housing code
could provide more detail than it presently does; fourthly whether
there are loopholes in the
code, as the City stated in their
argument; and fifthly whether the housing code could be less rigid.
Unless it can be demonstrated
that any of these grounds would impugn
the threshold requirement of reasonableness under the code.
185.
As to the alleged vagueness of the code, both the National
Housing
Act and
the Western Cape Housing Development Act
60
,
make provision for provincial legislation, for provincial policies,
and indeed for a provincial code on such issues. Therefore
it cannot
be a situation where the national code needs to be prescriptive in
relation to every single issue at a provincial level.
186. In so far as the
agreement that the City purported to have entered into, was unlawful,
the City submits that its unlawfulness
was occasioned by the
unconstitutionality of the Code. In this matter I found that the
agreement was unlawful by the City's failure
to have complied with
the peremptory requirements of the Code dealing with agreements and
particularly the failure to recognise
the basic human rights of the
community. Therefore it simply does not follow that the
counter-application arises for determination.
187. Finally, what the
City further seeks to do is to declare certain aspects of the 2009
code unconstitutional, however at the
time when the agreement in this
matter was concluded, in other words 2007 November, the 2009 Code was
not in operation. It was
the 2004 Code that was in operation.
188.
It
is accordingly my view that the counter application should be
dismissed.
Costs:
189. It was argued on
behalf of the City that should the applicants be successful their
costs be limited to only two counsel alternatively
two thirds of
their total costs.
190. I am of the view
that due to the complexity and voluminous nature of this matter that
there is no reason to limit the normal
costs order that would follow.
Conclusion:
191.
I
am indebted to counsel for the manner in which they conducted
themselves throughout
the proceedings and for the assistance to
the Court. I am particularly indebted to Ms Nikki Ramages-Hanafey,
law researcher of this
Court, for her assistance and dedication given
to the Court in researching and transcribing this judgment.
192.
For
the reasons stated above the following order is made.
Order:
1. It is declared that
the conduct of the second and third respondents in providing
unenclosed toilets to the applicants and the
community of the Makhaza
informal settlement, to be in violation of their constitutional
rights more particularly, section 10,12,14,24,26
and 27 contemplated
in the Constitution for the Republic of South Africa.
2. It is declared that
any purported agreement entered into between the second and third
respondents and individual members of the
community of Makhaza in
respect of the provision of unenclosed toilets, to be unlawful, and
inconsistent with constitutional duties
of the second and third
respondent as contemplated by the Constitution of the Republic of
South Africa as well as with other laws.
3. The second and third
respondents is ordered to enclose all 1316 toilets which form part of
the Silvertown Project, Khayelitsha
(which includes those erected in
the Makhaza informal settlement), in accordance with the Upgrading of
Informal Settlement Programme
("UISP") which was evaluated
and approved, in principle, by the fourth respondent on 12 July 2005
in terms of a memorandum
of understanding concluded between the third
and fourth respondents on 21 November 2005, as governed by Part 3 of
the National
Housing Code ("the Code"), 2009 read together
with the National
Housing Act
("the Act") No 107 of 1997,
as amended, and in addition to comply with Regulation 2 of the
Regulations Relating to Compulsory
National Standards and Measures to
Conserve Water (GN R509 in GG 22355 of 8 June 2001) promulgated in
terms of the
Water Services Act No 108 of 1997
, as amended and in
compliance with their duty in terms of section 7(2) of the
Constitution of the Republic of South Africa Act
108 of 1996.
4.
The counter application is dismissed.
5. The second and third
respondents are to pay the applicants costs which shall include the
cost of three counsel.
Erasmus,J
Judge
of the Western Cape High Court
1
The
Constitution of the Republic of South Africa Act 108 of 1996.
2
Residents
of Joe Slovo Community, WC v Thubelisha Homes
2010
(3) SA 454
(CC).
3
Shabalala
and Others v Attorney-General of Transvaal and Others
[1995] ZACC 12
;
1996
(1) SA 725
at para 26.
4
S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at para 332.
5
The
constitution of the Republic of South Africa Act 108 of 1996,
preamble.
6
The
word slum if used in the United Nations Millennium Development
Goals. It is placed in inverted commas as I do not deem it
appropriate to refer to a human beings abode in those terms.
7
National
Housing Code of 2009
8
The
Housing Act 107 of 1997
9
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
[2011]
ZASCA 47
;
Government
of the Republic of South Africa & Others v Grootboom &
Others
2001
(1) SA 46
(CC) para 23-24.
10
Section
139 of the Constitution states:
"Provincial
intervention in local government-(1) When a municipality cannot or
does not fulfil an executive obligation in
terms of the Constitution
or legislat.ion, the relevant provincial executive may intervene by
taking any appropriate steps to
ensure fulfilment of that
obligation, including -
a)
issuing
a directive to the Municipal Council, describing the extent of the
failure to fulfil its obligations and stating any steps
required to
meet its obligations;
(b)
assuming
responsibility for the relevant obligation in that municipality to
the extent necessary to -
(i)
maintain essential national
standards or meet established minimum standards for rendering of a
service;
(ii)
prevent that Municipal Council
from taking unreasonable action that is prejudicial to the interests
of another municipality or
to the province as a whole; or
(iii)
maintain economic unity; or
(c)
dissolving the Municipal Council
and appointing an administrator until a newly elected Municipal
Council has been declared elected,
if exceptional circumstances
warrant such a step...
(5)
If a municipality, as a result of a crisis in its financial affairs,
is in serious or persistent material breach of its obligations
to
provide basic services or to meet its financial commitments, or
admits that it is unable to meet its obligations or financial
commitments, the relevant provincial executive must-
(a)
impose a recovery plan aimed at
securing the municipality's ability to meet its obligations to
provide basic services or its financial
Commitments, which-
(i)
is to be prepared in accordance
with national legislation; and
(ii)
binds the municipality in the
exercise of its legislative and executive authority, but only to the
extent necessary to solve the
crisis in its financial affairs; and
(b)
dissolve the Municipal Council,
if the municipality cannot or does not approve legislative measures,
including a budget or any
revenue-raising measures, necessary to
give effect to the recovery plan, and-
(i)
appoint an administrator until a
newly elected Municipal Council has been declared elected; and
(ii)
approve a temporary budget or
revenue-raising measures or any other measures giving effect to the
recovery plan to provide for
the continued functioning of the
municipality; or
(c)
if the Municipal Council is not dissolved in terms of paragraph (b),
assume responsibility for the implementation of the recovery
plan to
the extent that the municipality cannot or does not otherwise
implement the recovery plan.
11
The
Western Cape Housing Development Act 6 of 1999.
12
The
Housing Act 107 of 1997
.
13
Section
2(1)
of the
Housing Act sets
out the general principles as follows:
1)
National, provincial and local spheres of government must-
a)
give priority to
the
needs of the poor in respect of
housing
development;
b)
consult meaningfully with individuals and communities affected by
housing development;
c)
ensure that housing development-
i)
provides as wide a choice of housing and tenure options as is
reasonably possible;
is
economically, fiscally, socially and financially affordable and
sustainable;
iii)
is
based on integrated development planning; and
iv)
is
administered in a transparent, accountable and equitable manner, and
upholds
the practice of good governance;
d)
encourage
and support individuals and communities, including, but not limited
to, co- operatives, associations and other bodies
which are
community-based, in their efforts to fulfil their own housing needs
by assisting them in accessing land, services and
technical
assistance in a way that leads to the transfer of skills to, and
empowerment of, the community;
e)
promote--
i)
education
and consumer protection in respect of housing development;
ii)
conditions
in which everyone meets their obligations in respect of housing
development;
iii)
the
establishment, development and maintenance of socially and
economically viable communities and of safe and healthy living
conditions to ensure the elimination and prevention of slums and
slum conditions;
iv)
the
process of racial, social, economic and physical integration in
urban and rural areas;
v)
the
effective functioning of the housing market while levelling the
playing fields andtaking steps to achieve equitable access
for all
to that market;
vi)
measures
to prohibit unfair discrimination on the ground of gender and other
forms of unfair discrimination by all actors in the
housing
development process;
vii)
higher
density in respect of housing development to ensure the economical
utilisation of land and services;
viii)
the
meeting of special housing needs, including, but not limited to, the
needs of the
disabled;
ix)
the
provision of community and recreational facilities in residential
areas;
x)
the
housing needs of marginalised women and other groups disadvantaged
by
unfair discrimination; and
xi)
the
expression of cultural identity and diversity in housing
development;
f)
take due cognisance of the impact of housing development on the
environment;
g)
not inhibit housing development in rural or urban areas;...
i)
strive to achieve consensus in regard to the policies of the
respective spheres of government in respect of housing development;
j)
observe and adhere to the principles in Chapter 1 of the Development
Facilitation Act, 1995 (Act No. 67 of 1995), in respect
of housing
development;
k)
use public money available for housing development in a manner which
stimulates private investment in, and the contributions
of
individuals to, housing development;
l)
facilitate active participation of all relevant stakeholders in
housing development; and
m)
observe and adhere to all principles for housing development
prescribed under subsection (2).
14
Section
9
(1) of the
Housing Act:
"Every
municipality
municipality
municipality
municipality
municipality
municipality
must, as part of
the municipality's process of integrated development planning, take
all reasonable and necessary steps within
the framework of national
and provincial housing legislation and policy to--
a)
ensure
that-
i)
the inhabitants of its area of jurisdiction have access to adequate
housing on a progressive basis;
ii)
conditions
not conducive to the health and safety of the inhabitants of its
area of jurisdiction are prevented or removed;
iii)
services
in respect of water, sanitation, electricity, roads, stormwater
drainage and transport are provided in a manner which
is
economically efficient;
b)
set
housing delivery goals in respect of its area of jurisdiction;
c)
identify
and designate land for
housing
development;
d)
create
and maintain a public environment conducive to housing development
which is financially and socially viable;
e)
promote
the resolution of conflicts arising in the housing development
process;
f)
initiate,
plan, co-ordinate, facilitate, promote and enable appropriate
housing development in its area of jurisdiction;
g)
provide
bulk engineering services, and revenue generating services in so far
as such services are not provided by specialist utility
suppliers;
and
h)
plan
and manage land use and development."
15
See
also:
•
Grants
to municipalities:
Funding
under the programme will be made available to municipalities as
grants for the undertaking of projects based on approved
business
plans for the upgrading of whole settlements;
•
Application
of the programme:
The
programme is first and foremost applicable to the in situ upgrading
of informal settlements. It will also apply in cases where
communities are to be relocated for a variety of reasons including
dedensification of settlements. The provisions of this programme
are
equally applicable to both the upgraded settlement and the
relocation site;
•
Relocation
requirements:
In
cases of relocation the approval of the community to relocate must
be secured and the new location must be in an area designated
in
terms of an approved Integrated Development Plan (IDP);
•
Qualification
for benefits:
the
programme provides benefits for all the inhabitants of an informal
settlement, in a variety of ways, including persons currently
excluded from the benefits of the Housing Subsidy Scheme;
•
Programme
Scope:
The
programme will finance the development of serviced stands while
housing consolidation, is facilitated through the housing
development options of the National Housing Programme as separate
projects;
•
Suitable
land:
The
programme will only provide funding in respect of informal
settlements situated on land suitable for permanent residential
development and within an approved IDP of the municipality
concerned. The Programme also provides for marginal land to be
rehabilitated
in certain cases;
•
Norms
and standards:
The
National Norms and Standards in respect of the creation of serviced
stands shall not apply to this Programme but could serve
as a
guideline;
•
Stand
sizes:
The
layout of informal settlements generally precludes the determination
of uniform stand sizes. Accessible stand sizes should
emerge through
a process of dialogue between local authorities and residents;
•
Social
and economic amenities:
The
National Housing Programme: Social and Economic Amenities may be
utilised to access funding for the construction of basic
social and
economic infrastructure. Note: Where funding is available from line
functions departments this should be the first
option.
•
Tenure:
The
Programme promotes security of tenure as the foundation for future
individual and public investment. The broad goal of secure
tenure
may be achieved through a variety of tenure arrangements and these
are to be defined through a process of engagement between
local
authorities and residents;
•
Housing
Consolidation:
Beneficiaries
of this programme will only receive access to land, basic municipal
engineering services and social amenities and
services. To qualify
for housing assistance benefits, such as registered ownership and a
consolidation subsidy, beneficiaries
need to comply to the
requirements of the relevant programmes;
•
NHBRC
project enrolment:
Municipalities
must ensure that the project areas are enrolled with the National
Home Builders Registration Council (NHBRC) at
the earliest stage of
planning. This ensures that enrolment of houses with the NHBRC is
effectively facilitated and not compromised
in any way;
•
Discounting
of grants:
A
grant approved under this Programme in respect of the cost of
planning, township establishment and installation of municipal
engineering services and project management will be discounted
against subsequent Housing Consolidation subsidies only to the
extent to which it might have contributed materially to the
permanent housing solution. As a minimum, subsidies allocated to
individuals for house construction must be equal to the value of the
prevailing consolidation subsidy;
•
Project
Management:
Municipalities
should prepare a capacity building strategy to support the
implementation of the upgrading project in order to
establish
capacity constraints and address these constraints efficiently;
•
Procurement:
Procurement
procedures must be fair, equitable and transparent for the
acquisition of housing goods and services and the guidelines
of the
Preferential Procurement Policy Framework Act, 2000 (Act No. 5 of
2000), must be followed; and
•
Demolition
of shacks:
The
municipality must table a comprehensive action plan for the
management of projects specifically addressing measures to prevent
re-invasion of land and the process of shack demolition in the event
of persons accessing housing consolidation benefits.
16
The
Water Services Act 108 of 1997
17
The
National Housing Code of 2009
18
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and Others
[2008] ZACC 1
;
2008
(3) SA 208
(CC) at para 14
19
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and Others
[2008] ZACC 1
;
2008
(3) SA 208
(CC) at para 15
20
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(Centre on the Housing Rights and Evictions and Another,
Amici
Curiae)
2010
(3) SA 454
(CC)
21
See
footnote 17.
22
"The
primary
task of a CLO is to be a link between the community and the
Contractor. The CLO to be extension of the Contractor who
is
employed by the Contractor and has the Contractor's interest at
heart".
Excerpt
from the minutes of site meeting dated 1 June 2009.
23
For
instance, in the Bardale area 6000 individual enclosed toilets could
be constructed with pre-cast concrete surrounds. This
was possible
as the development was on a Greenfield site, and it would be many
years until housing would follow.
24
Government
of the Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46
(CC)
25
The
Constitution of the Republic of South Africa Act 108 of 1996,
section 184(3)
26
The
Constitution of the Republic of South Africa Act 108 of 1996,
section 38.
27
The
Constitution of the Republic of South Africa Act 108 of 1996,
preamble.
28
NM
v Smith (Freedom of Expression Institute as Amicus Curiae)
[2007] ZACC 6
;
2007 (5)
SA 250
(CC) at para 131.
29
S
v Jordan (Sex Workers Education & Advocacy Task Force as Amici
Curiae)
[2002] ZACC 22
;
2002
(6) SA 642
(CC)at para 81.
30
Serious
Economic Offences v Hyundai Motor Distributors (Pty) Ltd and Others:
In re Hyundai Motor Distributors (Pty) Ltd and Others
v Smit NO and
Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at para 18.
31
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC) at para 77.
32
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(Centre on the Housing Rights and Evictions and Another,
Amici
Curiae)
2010
(3) SA 454
(CC) at para 265.
33
Government
of the Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
para 82.
34
Government
of the Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
2001
(1) SA 46 (CC)
at para 83.
35
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(Centre on the Housing Rights and Evictions and Another,
Amici
Curiae)
2010
(3) SA 454
(CC) at para 76.
36
The
Constitution of the Republic of South Africa Act 108 of 1996,
Section 152(1)(b).
37
The
Constitution of the Republic of South Africa Act 108 of 1996 Section
152(1)(d).
38
The
City is in further violation of
Section
152(1)(e) of the Constitution
which
provides for public involvement in the sphere of local government',
by requiring it to 'provide democratic and accountable
government
for local communities; and encourage the involvement of communities
and community organizations in the matters of
local government. In
that regard we must refer to sections 2 and 5 of the Municipal
Systems Act which requires community involvement
in local
development planning and budget processes, monitoring and
performance review initiatives. The Municipal Systems Act
imposes a
duty on municipalities to create a conducive and accessible
environment for implementing a continuous systematic process
of
involving citizens in taking decisions relating to their affairs.
Section 4 in particular imposes a duty on municipalities
to
contribute towards building the capacity of local communities, to
enable them to participate in the affairs in the municipality.
According to this section, councillors and staff have the active
duty to foster community participation through developing a
culture
of municipal governance that complements formal representative
government with a system of participatory governance.
Such
constitutional and legislative provisions leave no doubt as to the
existence of extraordinary political commitment to notions
of
participatory governance.
39
The
City violated its own policy approved by Council on
30
March 2009
called,
"Public
Engagement Policy City of Cape Town", ("the Policy').
1.
Section
4 deals with Mechanisms for Municipality Service Delivery Local
Government Municipality Systems Act 32 of 2000 and Establishment
of
internal Municipal Services Districts.
2.
Section
4 states that:
2.1.1.
a
municipality must review and decide on the appropriate mechanism to
provide a municipal service in the Municipality when requested
by
the local community through mechanisms, processes and procedures
established in terms of Chapter 4 of the Local Government
Municipality Systems Act 32 of 2000, ("the Act") (section
77 (e));
2.1.2
if
municipality decides in terms of sub section 2 (b) of the Act to
explore the possibility of providing the municipal service
through
an external mechanism, it must -
2.1.2.1.
give notice to the local community of its intention to explore the
provision of municipal service through an external
mechanism;
2.1.2.2
assess the different service delivery options in terms of section 76
(b) of the Act, taking into account the views of
the local community
and the views of the organised labour. (Section 78 (3) of the Act).
3.
Before
a Municipality enters into a service delivery agreement with an
external service provider, it must establish a program
for community
consultation and information dissemination regarding the appointment
of external service provider and the contents
of service delivery
agreement must be communicated to the local community through the
media (section 80 (2) of the Act).
40
Part
3 of the National Housing Code of 2009, Incremental Interventions:
Upgrading Informal Settlements.
41
Published
under Government Notice R509 of 8 June 2001.
42
See
too
South
African Liquor Traders' Association and Others v Chairperson,
Gauteng Liquor Board, and Others
2009
(1) SA 565
(CC) at para 27-28.
43
Janse
van Rensburg NO and Another v Minister of Trade and Industry and
Another NNO
2001
(1) SA 29
(CC) at para 24-25. See too,
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home
Affairs
and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) at para 42-48.
44
This
is not the type of case in which the number of factors is so broad
that they could not be delineated (as in
Armbruster
v Minister of Finance
[2007] ZACC 17
;
2007
(6) SA 550
(CC) at para 77-78). The main considerations would be the
number of households, the number of people in each household and the
expected period that the communal toilets will remain in place.
45
Intergovemental
Relations Framework Act 13 of 2005
46
The
Constitution of the Republic of South Africa Act 108 of 1996,section
41 (1)(h)
47
Minsters
and Members of the Executive Council.
48
Ex
parte Chairperson of the Constitutional Assembly: In re:
Certification of the Constitution of the Republic of South Africa
1996
('the
First Certification judgment')
1996 (4) SA 744
(CC) paras 77-78
01
(1) SA 46
(CC) at para 34.
49
Negative
protection from improper invasion appears to be less problematic -
see the First Certification judgment at para 78 and
Government
of the Republic of South Africa v Grootboom
20
50
The
Bill of Rights Handbook
by
Iain Currie and Johan de Waal (5ed, 2005) at 571.
51
Government
of the Republic of South Africa v Grootboom
2001
(1) SA 46
(CC).
52
Government
of the Republic of South Africa v Grootboom
2001
(1) SA 46
(CC)At para 32.
53
Government
of the Republic of South Africa v Grootboom
2001
(1) SA 46
(CC).
54
See
also
Soobramoney
v Minister of Health (Kwazulu Natal)
[1997] ZACC 17
;
1998
(1) SA 765
(CC).
55
See
also
Minister
of Health and Others v Treatment Action Campaign and Others
[2002] ZACC 16
;
2002
(5) SA 703
(CC).
56
Khosa
and Others v Minister of Social Development and Others; Mahlaule and
Others v Minister of Social Development and Others
[2004] ZACC 11
;
2004
(6) SA 505
(CC) at para 49.
57
Government
of the Republic of South Africa v Grootboom
2001
(1) SA 46
(CC) para 44.
58
Mazibuko
and Others v City of Jhb and Others
2010
(4) SA 1
(CC) at para 59.
59
Mazibuko
and Others v City of Jhb and Others
2010
(4) SA 1
(CC) at para 60.
60
Western
Cape Housing Development Act 6 of 1999.