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[2011] ZAWCHC 391
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City of Cape Town v Hoosain NO and Others (10334/2011) [2011] ZAWCHC 391 (20 October 2011)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Before The Hon. Mr Justice
Binns-Ward
Case no: 10334/2011
In the matter between:
CITY
OF CAPE TOWN
…..................................................................................
Applicant
and
RUWAYA HOOSAIN N.O
….....................................................................
1
st
Respondent
SELWYN HOCKEY N.O
….....................................................................
2
nd
Respondent
EDWIN JOHN PETERSEN N.O
…..........................................................
3
rd
Respondent
ABDURAZAK OSMAN N.O
…................................................................
4
th
Respondent
ALL THOSE ADULT PERSONS
OCCUPYING ERF 9967 GUGULETHU, ALSO
KNOWN AS SCHEME SS MASONWABE PARK,
SCHEME NUMBER 9/1992, SITUATE
DR. MOERAT RD, GUGULETHU
…........................................................
5
th
Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
…..............................
6
th
Respondent
THE MINISTER OF TRADE AND INDUSTRY
…....................................
7
th
Respondent
JUDGMENT DELIVERED: 21 OCTOBER 2011
BINNS-WARD, J
In this matter the City of Cape Town has applied for an order
authorising the eviction of the occupants of certain premises in
Gugulethu (Masonwabe Park) which had been determined by the
municipality to be unsafe for human occupation. The relevant
determination
was made in terms of section 12 of the National
Building Regulations and Building Standards Act 103 of 1977. The
application
became necessary when the residents failed to comply
with a notice given under section 12(4) of the Act requiring them to
vacate
the premises, or with the request of the registered owners of
the property that they should do so.
It is not in dispute that the premises are in such a state of
dilapidation that habitation there is dangerous. The vacation of
the
premises has been delayed because the residents (collectively cited
as the fifth respondent in these proceedings) were unwilling
to
accept the alternative accommodation offered to them by the City in
40 (subsequently increased to 56) temporary housing units
at a
temporary relocation area, commonly known locally as ‘Blikkiesdorp’.
When the application first came before court on 14 September, I
indicated to the parties that I was not satisfied that there
had
been sufficient engagement between them in respect of the question
of the adequacy or the appropriateness of the alternative
accommodation offered by the City (cf.
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)
(2008 (5)
BCLR 475)
, at para 21). It was plain on the papers that this had
been due to various factors, some of them being matters in dispute
on
the facts which I found unnecessary to determine. It was clear
that it was necessary for the court to give directions to facilitate
a process of meaningful engagement. These directions were duly given
and the application was postponed to allow the envisaged
process of
engagement to take place.
It is apparent from the reports on the process of engagement filed
by the City and by the fifth respondent that fruitful exchanges
have
occurred between the parties in the interim, and that the
co-operation of the provincial government (the seventh respondent)
has also been obtained. When the hearing of the matter resumed on
19 October I was requested by the parties to grant a further
postponement of the matter for approximately one month to allow the
engagement process to be pursued further. In this regard
it seems
possible that vacant ground in a situation more convenient to the
persons comprising the fifth respondent than accommodation
at any of
the established temporary relocation areas established in terms of
the City’s housing policy may be able to be
made available by
the authorities for the purposes of temporarily housing them. (It is
apparent on the evidence that the existing
temporary relocation
areas are in any event stretched to capacity.) The pursuit of this
possible alternative as a viable settlement
of the alternative
accommodation issue is complicated however by a matter in dispute
between the parties: that is whether it
would be reasonable for the
City to provide 80 temporary housing units for the accommodation of
the fifth respondent at such
alternative site, or 107 units, as
contended for by the fifth respondent community.
The parties (that is the City, the Province and the fifth
respondent) have requested the court’s assistance in resolving
the issue of the number of housing units that should be provided if
an alternative site indeed can be made available, as currently
being
considered. I received this request with some diffidence. After all
it is well established that it is not the function
of the court to
give advice and it was furthermore initially by no means clear what
the status of any pronouncement by the court
of the nature sought by
the parties would be in the circumstances.
Counsel for all three of the aforementioned parties addressed
argument in support of the contention that it would be appropriate
for the court to accede to the request. All the parties indicated in
the course of their submissions that what was variously
described by
them as an ‘order’ or a ‘ruling’ (I prefer
to call it a ‘declaration’) was needed
from the court in
order to provide ‘the parameters’ for the intended
further engagement between the parties on the
issue. They argued
that the source of the court’s power to give the direction
sought lay in the Constitution. In this regard
counsel for the City
invoked s 172(1)(b) of the Constitution. This argument was
supported by counsel for the Province, who,
in addition, also
referred to the ‘appropriate relief’ provision in s 38
of the Constitution and also by counsel
for the residents.
Ms
Karrisha Pillay
, who appeared for the Province,
supported in this respect by Mr
Hathorn
, who appeared for the
fifth respondent, buttressed the argument based on the
aforementioned provisions of the Constitution with
reliance on
various passages in the judgment of the Constitutional Court’s
judgment in
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
(2004 (12) BCLR 1268)
,
1
which emphatically suggest a deliberate intention in the drafting of
the Constitution to leave the way open in which the courts
are to
manage eviction proceedings within the ambit of s 26 of the
Constitution ‘as wide open as constitutional language
could
achieve’. In paragraph 36 of that judgment, Sachs J,
writing for the Court, expressed himself as follows: ‘
The
court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable
principles of an ongoing, stressful and law-governed social process.
This has major implications for the manner in which it must
deal
with the issues before it, how it should approach questions of
evidence, the procedures it may adopt, the way in which it
exercises
its powers and the orders it might make. The Constitution and PIE
2
require that, in addition to considering the lawfulness of the
occupation, the court must have regard to the interests and
circumstances
of the occupier and pay due regard to broader
considerations of fairness and other constitutional values, so as to
produce a
just and equitable result.
’
The eviction component of the current application falls full square
for determination in terms of PIE read with the provisions
of
s 26(3) of the Constitution and is plainly a ‘constitutional
matter’. I am persuaded by the arguments addressed
to me by
counsel that, my initial diffidence notwithstanding –
informed, as it was, by what might be described as a traditional
common law approach to the judicial function, the court should
indeed make a declaration, as requested, by the parties. A material
consideration in arriving at this conclusion was the intimation by
counsel that any such declaration would be accepted as binding
by
the parties within the context of the determination of the
application as a whole. (Its acceptance as binding in the manner
just mentioned would not, of course, affect the right of any of the
parties to seek to challenge it on appeal in the context
of its
effect on the judgment of the court - should one be required - in
what I might refer to as ‘the principal proceedings’.)
Turning then to the substantive issue. The matter of the provision
of alternative accommodation in this case arises not out of
the
state’s obligation to promote the access by everyone to
adequate
housing by taking reasonable measures, within its
available resources, to achieve the progressive realisation of the
right as
understood by the concept of ‘housing development’
as defined in
s 1
of the
Housing Act 107 of 1997
3
,
but rather out of the related and incidental obligation within any
state housing programme to provide for the needs of people
for basic
shelter occurring in situations of crisis because of natural or
manmade emergency or because their homes are under
threat of
demolition as in the current case. Thus the state’s obligation
in the current context can be met by ‘relief
short of housing
which fulfils the requisite standards of durability, habitability
and stability encompassed by the definition
of housing development
in the Act’ (see
Government of the Republic of South Africa
and Others v Grootboom and Others
2001 (1) SA 46
(CC)
(2000 (11)
BCLR 1169)
at para 52). How far short of the requisite
standards of permanent housing the relief offered by the state can
be allowed
to fall is a question not easily answered. The answer has
to be informed in the main by the striking of a reasonable balance
between available resources and the extent, in the given context, of
the overall demands on those resources, not just by the persons
immediately under consideration, but the population in general. In
the consideration of available resources account has to be
taken of
the need for a proportionate allocation of resources so as to avoid
the demands of the provision of emergency shelter
becoming an undue
impediment to the state’s ability in the ordinary course to
progressively provide permanent housing to
those in need.
The community that comprises the fifth respondent currently lives in
insanitary and unsafe conditions in a building complex comprised
of
40 apartments. These apartments have been informally partitioned
into smaller compartments (referred to in the papers as ‘rooms’
or ‘partitioned areas’) which separately accommodate
more than 80 separate family units. The family units vary in
size
between a single person and nine persons. Some of the families
housed in the building appear, from the information in the
schedule
of occupants attached to the affidavit of Ms Ellen Leputing, deposed
to on 17 October 2011, to be have some of
their members living
in housing erected in the adjoining Sandile Park. Indeed the papers
suggest that many of the original occupiers
of the complex after it
had been abandoned as a workers’ hostel by its previous owners
subsequently moved to housing built
in Sandile Park giving their
vacated space in the building to close relatives. The ability of
some families in Sandile Park to
accommodate those who will be
displaced upon the envisaged demolition of Mosanwabi Park has been
one of the matters discussed
in the engagement process between the
parties. The reports on that process however do not suggest that
much, if any, meaningful
relief could be afforded by that avenue.
The ages of those living together in the various family units varies
considerably. Some
households are comprised mainly of adults (Flat
B6A for example houses six adults ranging in age from 48 to 21 years
of age and
a child of 16 months), while others contain a majority of
children (Flat A29B for example appears to house two adults and five
children, including one born only in 2010). Ms Leputing states
that there are 317 persons in total living in the building
complex,
of whom ‘about 136’ are children.
The City’s offer of 80 temporary housing units is based to
some extent, at any rate as a point of departure, on giving
one unit
to the occupiers of each of the housing compartments or rooms in the
existing housing complex. Fifty of those compartments
or rooms
currently house four or fewer persons and there is no dispute
between the parties that in respect of those persons the
offer is
adequate. There is also no dispute about housing five other family
units each comprising between five and seven members,
including in
some cases an uncle or an aunt, in five temporary housing units. In
dispute is the reasonableness of the provision
of just 25 units for
the remaining persons currently housed in 25 compartments in
Masonwabi Park. In two of these compartments
there are nine
residents, in each case being made up of persons from ‘at
least three distinct family units’; and
in each of the other
23 there are five to seven residents comprised in each case of the
members of ‘at least two distinct
family units’ per
compartment. The fifth respondent contends that it would be
reasonable that in respect of each of the
two compartments, each
housing nine persons, three temporary housing units should be made
available (a total of six) and in respect
of each of the other 23
compartments two temporary housing units (a total of 46). That
explains how the figure of 107 temporary
housing units mentioned
earlier is arrived at. (In view of various averments on the papers,
apparently made in the context of
certain exchanges during the
engagement process meetings, it is as well that I record that Mr
Hathorn
made it clear at the hearing that the fifth
respondent was not relying on the minimum spatial standards of a
floor area of 5m²
per person posited by the UN Human
Settlements Programme (UN-Habitat) in its report entitled
The
Challenge of Slums: Global Report on Human Settlements 2003
for
its contention that 107 housing units should be provided. That
clarification makes it unnecessary to deal with the arguments
addressed to me by Mr
Katz SC
(for the City) and Ms
Pillay
on the inappropriateness of attempting to attribute a ‘minimum
core’ content to the housing and related socio-economic
rights
in the Bill of Rights.
4
)
I mentioned earlier that the City’s offer was premised to some
extent on one temporary housing unit per occupied compartment
in the
condemned premises. But it is clear that to look at the position
that way is to over simplify matters. It was made evident
in
argument, especially by Ms
Pillay
, that the state’s
assessment of the reasonableness of the extent of the alternative
accommodation offered takes into account
a balance between the total
amount of the space on offer with the total number of the persons in
need of accommodation. In this
regard Ms
Pillay
made some
illustrative calculations. She asked that it be postulated that
there were 50 compartments in the complex each
housing four
persons (that is more than are actually accommodated there in
households of four or less), two compartments housing
nine persons
each and 28 compartments housing seven persons each. That would give
a notional population of 414 persons to be
given emergency
accommodation. Assuming a given of six persons per household that
would require 69 temporary housing units as
emergency accommodation.
Accepting that 317 persons need accommodation, only 53 temporary
housing units would be required if
six persons were to be housed in
each unit. The purpose of these illustrations, if I understood the
argument correctly, was to
demonstrate how relatively generous (on a
numerical approach) the provision of 80 units to house a total of
317 persons on an
emergency basis actually is, considering it allows
for four persons per unit on average.
The difference between the 53 units postulated in the illustrative
calculation by counsel and the 80 units that the City will
offer if
vacant land becomes available is, of course, explained by its
attempt to afford a measure of provision for the retention
of family
cohesion. This approach would be consistent with the provisions of
the emergency housing provisions in the National
Housing Code
published in terms of
s 4
of the
Housing Act which
according to
its tenor makes discrete provision for the provision of temporary
shelters on an indiscriminate basis determined
by floor area
(24m²-30m²) and the provision of services such as water
and sanitation on a per family basis (e.g. ‘access
to a water
point or tap for every 25
families
must be provided’).
Having regard to the evident purpose of the provision of housing
assistance in emergency circumstances,
it would not seem consistent
with the objects of the scheme, judged in the context of ‘housing
development’ (as defined)
under the
Housing Act, to
accept
that a displaced community could reasonably expect necessarily to be
temporarily re-accommodated in the same, or even
in a more optimal
disposition per living unit than it had enjoyed before the
intervention of the emergency giving rise to its
displacement. Thus,
in a case like the present, a person who is the single occupant of a
dwelling unit cannot reasonably expect
to be accommodated on an
emergency housing basis as the single occupant of a replacement
shelter of the same dimensions as that
deemed acceptable (as the
fifth respondent is prepared to do) for six or seven persons.
Something of a redistribution of living
accommodation amongst those
displaced might be required to afford a reasonable utilisation of
the total area of emergency shelter
that can be made available. The
reality, presumably because of shortage of accommodation, is that a
number of families living
in Moswanabi Park already have to live
spread between reasonable closely proximate, but nevertheless
separate living units.
Once it is recognised that emergency accommodation by its nature
will invariably fall short of the standards reasonably expected
of
permanent housing accommodation, it follows that those who need to
occupy such accommodation must accept less than what would
ordinarily be acceptable. The apparent harshness of an acceptance of
this recognition has to be seen against the realities imposed
by the
vast scale of the housing backlogs with which the state, in general,
and the City, in particular, are having to engage.
Statistics in
this regard are set out in the City’s papers. It is
unnecessary to quote them; suffice it to say that the
picture they
paint indicates that the overwhelming breadth of the socio-economic
challenges faced by the nation today do not
differ materially from
those so graphically described by Yacoob J in
Grootboom
more than 10 years ago.
It is not the function of the court, in determining upon the
declaration that the parties have asked it to make, to itself assume
the role given by the Constitution to the legislative and executive
arms of government. As pointed out, for example, in
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC)
(2002 (10) BCLR 1075
, at
para 38, ‘
Courts are
ill-suited to adjudicate upon issues where Court orders could have
multiple social and economic consequences for the
community. The
Constitution contemplates rather a restrained and focused role for
the Courts, namely, to require the State to
take measures to meet
its constitutional obligations and to subject the reasonableness of
these measures to evaluation.
’
It
is therefore not the court’s function to decide how many units
should be provided or what their dimensions should be.
The court’s
function in the context of the question under consideration is to
decide whether what the applicant and the
seventh respondent are
willing to work towards providing falls within the bounds of
reasonableness. The determination of reasonableness
is context
bound; it would be a supererogation in this regard to retraverse
here the relevant discussion so eloquently expressed
in the
Grootboom
judgment.
This consideration explains this court’s inability to accede
to the argument of Mr
Hathorn
that were the court unable to hold that the
City’s offer of 80 units was unreasonable it should direct
that at least some
of those units should be of 30m², rather
than 24m², dimensions.
Having regard to the housing demands on the provincial government
and the City, including the demands to provide emergency housing
in
context of the broad spectrum of emergency housing situations
contemplated in terms of the National Housing Code, I am unable
to
find that the provision of 80 temporary housing units of 24m²
in floor area each as alternative emergency shelter to
house the
displaced community that is the fifth respondent would be
unreasonable. I do, however, consider that having regard
to the
requirements of each family unit involved it is necessary in order
to sustain the reasonableness of the provision of that
number of
units that the allocation of the units to the fifth respondent be
regulated by prior agreement between the community
members
determining the distribution of the allocated units in a manner that
promotes family unit cohesion and provides for an
equitable
distribution within the community of the total available floor space
and failing the ability of the community within
a reasonable time to
arrive at such agreement, an allocation determination by the
applicant directed at achieving such effect.
The following order is made:
It is declared that the provision by the applicant and or the
seventh respondent of 80 temporary housing units of 24m² in
floor area each, serviced consistently with the guidelines provided
under the norms and standards for municipal engineering services
in
temporary settlement areas, as emergency housing to the community
comprising the fifth respondent consequent upon the execution
of any
order of eviction that may be granted against the fifth respondent
would fall within the bounds of reasonableness, provided
that the
allocation of the units to the fifth respondent
is regulated by prior agreement between the members of the fifth
respondent determining
the distribution of the allocated units in a
manner that (i) promotes family unit cohesion and (ii) provides
for an
equitable distribution within the community of the total
available floor space; alternatively, failing the ability of the
members
of the fifth respondent within a reasonable time to arrive
at such agreement, an allocation determination by the applicant
directed
at achieving such effect.
.
The further hearing of the application is postponed to 23 November
2011 to enable the process of engagement between the
parties to
continue with the object of achieving the settlement of as many of
the issues in the case as possible before then.
The provisions of paragraphs 6 and 7 of the order made by this
court on 14 September 2011 shall apply mutatis mutandis
to the
continued process of engagement contemplated in terms of paragraph 2
hereof.
The applicant and the first to fifth respondents are directed to
report to this court on affidavit on the manner and progress
of
their further engagement by Thursday, 17 November 2011.
The applicant and the fifth respondent, as well as the seventh
respondent if so advised, are directed to deliver supplementary
heads of argument by Monday, 21 November 2011 at 13h00.
Delivery of all further papers, including heads of argument, must
occur in the manner directed in terms of paragraph 10
of the
order made on 14 September 2011.
All matters as to costs are reserved.
A.G. BINNS-WARD
Judge of the High Court
1
Counsel
referred to paragraphs 22-23, 32, 36 (with special reference to
fn 35) and 39.
2
The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998.
3
In
terms of that definition 'housing development' means 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’
4
See
e.g.
Mazibuko and Others v City of
Johannesburg and others
2010 (4) SA 1
(CC) at para 51-57;
Grootboom
supra, at para 32 and
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC)
(2002 (10) BCLR 1075
at
para 33-37.