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[2012] ZAWCHC 180
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City of Cape Town v Hoosain NO and Others (10334/2011) [2012] ZAWCHC 180 (24 October 2012)

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No:
10334/2011
Before: The Hon. Mr Justice Binns-Ward
In the
matter between:
THE
CITY OF CAPE TOWN
...............................................................................................
Applicant
and
RUWAYA
HOOSAIN N.O.
.......................................................................................
First
Respondent
SELWYN HOCKEY N.O.
..............................................................................
Second
Respondent
EDWIN
JOHN PETERSEN N.O.
..............................................................................
Third
Respondent
ABDURAZAK
OSMAN N.O.
........................................................................
Fourth
Respondent
ALL
THOSE ADULT MALES AND FEMALES
OCCUPYING
ERF 9967 GUGULETHU a.k.a
SS MASONWABE PARK SCHEME NUMBER 9/1992,
SITUATED AT DR MOERAT ROAD, GUGULETHU
.........................................
Fifth
Respondent
THE MEC HUMAN SETTLEMENTS (WESTERN CAPE)
.................................
Sixth
Respondent
THE MINISTER OF TRADE AND INDUSTRY
........................................
Seventh
Respondent
CENTRE FOR APPLIED LEGAL STUDIES
(Amicus curiae)
............................................................................................................
Intervening
Party
JUDGMENT DELIVERED: 24 OCTOBER2012
_____________________________________________________________________
BINNS-WARD J:
Introduction
This matter came before the court at the instance of the
municipality of the City of Cape Town (‘the City’),
which
was concerned about the living conditions in two apartment
buildings at the Masonwabe Park sectional title scheme in Gugulethu.

The buildings were erected several decades ago to provide hostel
accommodation for workers employed by a major construction company.

The property had subsequently been acquired by the Western Cape
Housing and Development Trust in or about 1993, with financial

assistance from a foreign government aid-donor. The acquisition had
been made with the object of converting the hostel into
sectionalised apartments to be sold in due course to persons in the
local community in need of housing. A number of families had
already
taken occupation of the units, but, for various reasons, which it is
not necessary to describe, the contemplated transfer
by the Trust of
the 40 flats in the complex to individual purchasers was never
implemented. Many of the families that were in
occupation of the
buildings when the Trust had acquired the property had subsequently
moved into newly built houses in the immediate
vicinity of the
complex and given possession of the units to friends and relatives,
or had permitted third parties in need of
accommodation to use the
premises. Most of the 40 sectional title units had been informally
compartmentalised to accommodate
more than one family.
It is evident that the Trust has lost control over the property, and
lacks the means to implement the originally contemplated

housing-ownership scheme. So hopeless has the position become that
the Trust is willing to transfer ownership of the property
to the
municipality, against a write-off of the accumulated arrears in
respect of rates and services.
1
It was common cause that the buildings have fallen into such an
advanced state of disrepair that they are no longer safe for
human
habitation. The structural defects which affect the buildings are of
such a nature that it is not feasible to restore them.
The City gave
notice to the Trust to address the position, or demolish the
buildings. The Trust had, in turn, given notice to
the occupants of
the buildings to vacate. The occupants did not comply with the
notice. The City thereafter sought to achieve
the vacating of the
building by engaging directly with the occupants about the necessity
for them to move and the availability
of temporary alternative
housing. When the occupants failed to vacate the buildings pursuant
to these initial engagements, the
City instituted eviction
proceedings. The process preceding the institution of litigation had
stretched over a period of more
than two years.
2
The trustees of the owner-Trust were cited individually as the first
four respondents, and the members of the community occupying
the
buildings were cited collectively as the fifth respondent.
The City’s application was expressly founded on the provisions
of s 12(4) of the Building Act
3
,
alternatively s 6 of the PIE Act
4
,
and in the further alternative, ‘the common law’.
5
The fundamental basis for the City’s legal interest in
addressing the conditions at Masonwabe Park, however, lay in
s 152(1)(d)
read with s 152(2) of the Constitution, which
provides the promotion of a safe and healthy environment as one of
the objects
of local government which every municipality must strive
to achieve. The two statutes invoked by the City are amongst the
instruments
which are available, in appropriate circumstances, to
assist municipalities to achieve the fulfilment of their
constitutional
objects.
The fifth respondent opposed the application and brought a
counter-application in terms of which quite wide ranging declaratory

and attendant structural interdictory relief was sought. The fifth
respondent’s opposition to the application was based,
in part,
on the allegation that the occupants of the buildings had not been
given notice in writing by the City as required in
terms of
s 12(4)(b) of the Building Act; they also denied that they were
‘unlawful occupiers’ of the property
within the meaning
of the PIE Act.
The substantive relief sought by the City has been addressed in
terms of a settlement agreement that was concluded in circumstances

to be described presently. Consequent upon the settlement, the only
aspect of the counter-application that is being persisted
with is
the fifth respondent’s application for an order declaring the
provisions of s 12(4) and (5) of the Building
Act to be
unconstitutional. In their answering affidavit, which also served as
the supporting affidavit in the counter-application,
the fifth
respondent indicated that they would seek the impugnment of the
statutory provisions only if the City would not withdraw
its
reliance on them. The City did not. (Indeed, by the stage its heads
of argument were filed, it appeared from the submissions
set out
therein that the only basis on which the City was proceeding was in
terms of s 12(4).) The other matter that remains
unresolved by
the settlement is the issue of costs.
At an advanced stage of the proceedings the Centre for Applied Legal
Studies (‘CALS’) applied for, and was granted,
leave to
intervene as an
amicus curiae
. CALS argued in support of
the case for the impugnment of the statutory provisions. The
submissions made by CALS focussed
especially on the influence which
it was contended various international instruments should have on
the issue, having regard
to s 39(1) of the Constitution.
6
The declaratory relief sought by the fifth respondent resulted in
the joinder of the Western Cape Provincial Government and the

Minister of Trade and Industry as the sixth and seventh respondents,
respectively. Consequent upon the settlement, the issues
in respect
of which the sixth respondent was joined are no longer before the
court. The seventh respondent is the member of the
Cabinet currently
responsible for the administration of the Building Act.
The history of the litigation
This judgment is directed at determining the issues that the parties
have been unable to dispose of in the settlement. It is
appropriate
to begin by summarising the history of the litigation.
The matter was set down for hearing on 14 September 2011.
7
It was evident at that stage, however, that it would not be
appropriate for the case to be entertained until there had been more

meaningful engagement between the parties. At the court’s
urging, the parties agreed to terms of engagement which, with
minor
adjustments, were incorporated in a court order made on that date.
8
The hearing was then postponed to 20 October 2011 so that the
court could review the results of the further engagement process
and
decide how to proceed with the hearing.
The City and the fifth respondent made good progress in the
engagement process. It became apparent, however, that a major
sticking
point in the way of an agreed solution to the issue of the
resultant homelessness of the occupants when the buildings were
vacated
was the number of temporary housing structures to be made
available by the City to accommodate the 81 family units (each
comprised
of between one and nine persons) of which the fifth
respondent community was made up. The City proposed to make 80
structures
available, while the community contended that 107 were
needed. The parties asked the court to make a declaratory order on
the
issue, which they agreed to accept as binding for the purpose of
their further negotiations. On 21 October 2011, an order
was
made declaring that the provision by the City of 80 temporary
housing units would, subject to the fulfilment of certain

conditions, fall within the bounds of reasonableness. Directions
were also issued at the same time for the continuation of the

extra-curial engagement process. Reasons for the declaratory order
were furnished in a written judgment handed down at the time.
The
hearing was then postponed to 23 November 2011.
It was at the commencement of proceedings on 23 November 2011
that CALS was admitted as an intervening party. I was then
informed
that the outcome of the continued engagement between the parties
gave reason to believe that the occupants of the building
could
feasibly be settled, at least temporarily, on vacant land nearby.
Thereafter, and by agreement, the terms of a conditional
settlement
between the City, the Trust and the community were incorporated into
an order of court.
9
The court was, however, requested to hear argument on the two
matters that remained unresolved.
10
Taking an optimistic view that the conditions for the settlement of
the other issues would be fulfilled, it seemed practical
and
cost-effective in the circumstances to accede to the request,
notwithstanding that it would not be possible for judgment
to be
given until certainty on the settlement had been obtained.
Happily, the optimism that informed the course taken on
23-24 November 2011 was not misplaced. I was informed in
chambers
at the end of July 2012 that the availability of the
alternative land for the settlement of the displaced members of the
fifth
respondent had been confirmed after the successful completion
of the required legal and administrative processes. A notice to this

effect was also delivered by the City’s attorneys. The
intervening passage of time meant, however, that my recollection
of
the detail of the facts and the arguments addressed to me had faded
somewhat. I could have prepared a judgment provisionally
soon after
the conclusion of argument in November, but had decided against that
course; preferring rather not to be led by such
an exercise into
committing myself mentally to any conclusions on matters on which it
would be better for me to keep an open
mind lest the settlement
unravelled. Time therefore had to be found to allow me to refresh
myself. The immediate demands of the
succession of other cases
coming before me during the third term made it impossible to get
back to the matter until the spring
recess, hence the delivery of
judgment only at this rather late stage on the issues that were
argued almost a year ago. As will
become apparent, there have been
relevant developments in the pertinent jurisprudence in the
intervening period. I have endeavoured
to take appropriate account
of these.
The challenge to the constitutionality of sub-sections 12(4)
and 12(5) of the Building Act
The challenge to the constitutionality of subsections 12(4) and (5)
of the Building Act was based primarily on their alleged

incompatibility with s 26 of the Constitution, which enshrines
the right of everyone to access to adequate housing and imposes
a
positive obligation on the state to take reasonable measures to
achieve the progressive realisation of the right. The provision
also
provides that no person may be evicted from his home or have it
demolished except pursuant to an order made by a court after

consideration of all the relevant circumstances. The complaint is
that subsections 12(4) and (5) are characterised by ‘a

marked absence of any references to the need for affected parties to
be granted hearings, for notices to be served by the sheriff
or for
local authorities to obtain court authorisation for …[their]
actions’. It was contended that s 12(4)(b)
formed ‘part
of a battery of provisions which confer upon local authorities
extensive powers of self-help in respect of
the erection, demolition
and alteration of buildings, paying scant regard to affected
parties’ rights to property, procedural
fairness, access to
courts or to housing.’
11
It was argued further that the ‘impact of these powers is
exacerbated by the provision of criminal sanctions to enforce

them’.
12
Subsections 12(4) and (5) of the Building Act comprise part of
the second of
two subsets which make up s 12.
13
They fall to be read with sub-section 12(6), which completes
the subset. The first subset, which is comprised of sub-sections

12(1)-(3), provides local authorities with powers to address the
issues that can arise from dilapidated or unsafe buildings and

unsafe earthworks and building activity. It also imposes a duty on
the owner of any building or earthwork that is in a dangerous

condition to notify the local authority. The second subset, in which
the impugned provisions resort, is directed at providing
local
authorities with the powers to address the habitation or use by
persons of buildings that are in an unsafe condition, and
matters
related thereto.
The powers afforded in terms of the second subset are clearly
complementary to those afforded in terms of the first subset. The

jurisdictional prerequisite to their exercise is the determination
by the local authority that it is necessary for the safety
of any
actual or potential occupant or user of a building at whom an order
made in terms of s 12(4) might be directed that
they be
prohibited from occupying or using the building for so long as the
condition threatening their safety endures. It is
beyond debate that
the exercise of the powers has to be undertaken conformably with the
requirements of lawful, reasonable and
fair administrative action;
see s 33 of the Constitution and the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’),
14
15
and cf.
Zondi v MEC for Traditional and Local Government
Affairs and Others
[2004] ZACC 19
;
2005 (3) SA 589
(CC),
2005 (4) BCLR 347
, at
para.s 98-103. Thus it is not without significance that in
Schubart
Park
Residents’ Association and Others v City of
Tshwane and Another
[2012] ZACC 26
(9 October 2012),
16
at para. 38, the Constitutional Court referred to the section
as one directed at providing for ‘the timeous removal
of
people living in unsafe buildings’. In context it is clear by
this that the Court read the provision as one that would
not
ordinarily operate with immediate effect unless reasonably justified
by conditions of urgent threats to human safety. A reasonable
period
of notice and opportunity for consultation with the affected parties
will thus ordinarily precede the issue or coming
into effect of an
‘order’ in terms of s 12(4). However, the very
object of the provision and the diverse, but
individually unique,
considerations which are liable to invoke its application call for a
wide measure of flexibility, which
it would be difficult to
accommodate within finitely prescribed procedural requirements.
The argument by the fifth respondent’s counsel that it is not
permissible to use the provisions of PAJA to interpret the
impugned
subsections in the Building Act because the latter statute preceded
the former is misconceived. PAJA does not apply
for interpretative
purposes. It applies because any action by local authorities in
terms of s 12(4) of the Building Act
is ‘administrative
action’ within the meaning of PAJA,
17
and must therefore be undertaken conformably with its prescripts.
The current proceedings are not the first in which a challenge has
been made against the constitutional compatibility of s 12(4)-(6).

A like attack was made in the matter of
City of
Johannesburg
v Rand Properties (Pty) Ltd and Others
2007 (1) SA 78
(W),
2006
(6) BCLR 728
,
[2006] 2 All SA 240.
That attack, which was made in a
counter-application by the occupants of the inner city buildings in
Johannesburg who were the
subject of eviction proceedings at the
instance of a local authority, was not determined by the court of
first instance. The
constitutionality challenge was addressed,
however, on appeal to the Supreme Court of Appeal (‘the SCA’).
The contention
that the provisions were constitutionally
incompatible was rejected and the counter-application consequently
dismissed; see
City of Johannesburg v Rand Properties (Pty) Ltd
and Others
.
18
The order made by the SCA in
Rand Properties
was set aside by
the Constitutional Court in
Occupiers of 51 Olivia Road,
Berea Township
.
19
It appears from the judgment that none of the attacks on s 12(4)-(6)
was expressly taken forward before the Constitutional
Court, which
found that it was not in the interests of justice to deal with them
in the circumstances.
20
The court did, however, hold
mero motu
that s 12(6), in
the form in which it had been promulgated, was unconstitutional. It
read-in the following proviso to the
sub-section in order to save
it: ‘
This subsection applies only to people who, after
service upon them of an order of court for their eviction, continue
to occupy
the property concerned
’.
21
The reading-in introduced a qualification to s 12(6) that
appears to go further than meeting the requirements of s 26(3)

of the Constitution, for it is not limited in effect only to the
consequences of a failure of a person to comply with a notice
in
terms of the provision when the affected building is that person’s
home. Its effect is to underline the fact that the
provisions of
s 12(4) do not permit a local authority to resort to self-help
and expel persons who fail to comply with notices
issued in terms of
the sub-section; a court order is necessary in all cases where an
eviction is required to enforce compliance.
In this respect it
confirms what was held by the SCA in
Rand Properties
, at
para. 53. The reasoning for the finding of unconstitutionality
in s 12(6) and the formulation of the remedial reading-in
were,
however, expressly premised on the requirements of s 26(3) of
the Constitution.
Despite its finding that the constitutionality of subsections 12(4)
and (5) was not a matter deserving of its attention in that
case,
the Constitutional Court set aside the orders made by the SCA in
Rand Properties
in their entirety, including the order
dismissing the counter-application. The result is that,
notwithstanding the obviously persuasive
influence of the reasoning
in the SCA’s judgment - to the extent that it was not
disturbed by the Constitutional Court
– on any subsequent
consideration of the provisions, the challenge to the statutory
provisions in that case was effectively
left undecided.
The City abided the judgment of the court on the issue of the
constitutionality of s 12(4) and (5) of the Building Act.
It
did, however, file an affidavit by an official in its Department of
Planning and Building Development Management confirming
that the
City had always understood and applied the provisions in a manner
compliant with the import of the SCA jurisprudence
in
Rand
Properties
read with the Constitutional Court judgment in
Occupiers of 51 Olivia Road
.
The Minister of Trade and Industry, however, took as a preliminary
point against the appropriateness of a determination of the
issue,
its mootness, because of the settlement between the City and the
fifth respondent. In the event of his preliminary point
not being
upheld, he contended that the challenge to the constitutionality of
the provisions should be dismissed.
It is necessary therefore first to determine whether this court
should entertain the issue in the context of the settlement.
As a
general approach, courts are not readily disposed to deciding issues
which are moot, hypothetical, or only of academic interest
between
the litigants; cf.
Compagnie Interafricaine de Travaux v South
African Transport Services and Others
[1991] ZASCA 16
;
1991 (4) SA 217
(A), at
230I-J;
Shoba v Officer Commanding, Temporary Police Camp,
Wagendrift Dam, and Another
;
Maphanga v Officer Commanding,
South African Police Murder and Robbery Unit, Pietermaritzburg, and
Others
1995 (4) SA 1
(A), at 14F, and
JT Publishing (Pty) Ltd
and Another v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997
(3) SA 514
(CC), at para. 15. Counsel for the Minister stressed
this general approach, and submitted that it would be appropriate to

apply it in the circumstances. Ms.
Pillay
cited a number
of Constitutional Court judgments in support of her argument,
including
Zantsi v Council of State, Ciskei and Others
[1995] ZACC 9
;
1995
(4) SA 615
(CC), at para.s 2-5,
Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC), at para 199, and
S v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC), at
para 12-13, and highlighted the observation made in note 18 to
the judgment in
National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others
2000 (2) SA 1
(CC) that ‘
The general proposition is that a case is not
justiciable if it no longer presents an existing or live controversy
which should
exist if the Court is to avoid giving advisory opinions
on abstract propositions of law
’.
To that list might be added, of course, the example afforded by the
Constitutional Court having declined to deal with the issue
in
Occupiers of 51 Olivia Road
, also in the context of a
settlement having been reached on the central issue of the
evictions. However, I am mindful that a
material factor in the court
having adopted that approach appears to have been (as mentioned) the
failure of the parties to carry
the issue forward, which was not the
position in the current matter. It is nevertheless not without
significance, I think, that
the Constitutional Court decided to deal
mero motu
with subsection 12(6) and to leave subsections
12(4) and (5) alone. This does tend to suggest that the need for
intervention,
if at all, in a context not dissimilar to the present,
was perceived to be less evident in respect of the latter
provisions.
Ms
Pillay
also pointed out that the attack on s 12(4)
and (5) had been limited in the papers to its effect on the fifth
respondent’s
circumstances, and that the counter-application
had not been brought on a public interest or class action basis.
22
She stressed that there was no evidence before the court as to how
the provision was being applied generally. (The Director-General
of
Trade and Industry, who deposed to an affidavit on behalf of the
Minister in opposition to the fifth respondent’s

constitutional challenge, averred that to the best of his knowledge
the provisions were not being applied by local authorities
to
achieve evictions without a court order.)
Counsel for the fifth respondent and the
amicus
on the other
hand argued that the issue was not moot. The counter-application for
declaratory relief remained, notwithstanding
any settlement of the
issues pertaining to the vacation of the buildings and the temporary
resettlement of the occupants. Moreover,
the question of the ability
of the City to competently rely on s 12(4) of the Building Act
was relevant to the determination
of the issue of costs. Recognising
the discretionary character of declaratory relief, Mr
Hathorn
and Mr
Brickhill
also stressed the desirability of
entertaining the counter-application for declaratory relief, even if
the issue had become moot
between the City and the fifth respondent.
In this regard they invoked the approach of the Constitutional Court
in
Independent Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC),
2001 (9) BCLR 883
, at para. 11, and that
- essentially to the same effect - adopted by the SCA in determining
matters affected by s 21A
of the Supreme Court Act 59 of 1959,
23
when, generally by reason of intervening events, the only live issue
remaining between the litigants by the time the appeal is
heard is
that of costs. Those courts will determine an issue on appeal,
notwithstanding that it has become moot, if the interests
of justice
require it. A pre-requisite for them to do so is that any resultant
order must have a practical effect either on the
parties, or on
others.
The SCA has used the discretion allowed in terms of s 21A of
Act 59 of 1959 to decide matters, notwithstanding that the
issues
have become moot between the parties, in cases in which there was a
lack of clarity on the meaning of a statutory provision
originally
in issue and it is evident that providing clarity by means of its
judgment will be of practical use in the future.
Compare, for
example,
Minister of Trade and Industry and Another v EL
Enterprises and Another
2011 (1) SA 581
(SCA) at para. 2
and
Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA),
[2005] 4 All SA 509
, at para.s 6 and 7.
Counsel for the fifth respondent and the
amicus
submitted
that resort to s 12(4) of the Building Act by local authorities
could be expected to be a common occurrence in
the prevailing
socio-economic conditions in the country, and that a determination
of its constitutionality was thus desirable
because the persons
affected would all too frequently be ignorant of their rights and
unable to obtain legal representation.
There was a pressing need for
certain procedural safeguards to be read-in. They contended that
expressly stipulated safeguards
were necessary to ensure that the
power under s 12(4) was exercised in a constitutionally
compatible manner. This was especially
because of the potential
impact of the power on the most vulnerable sections of society. It
was ventured - no doubt with reference
to the intended effect of the
meaningful engagement principles laid down in
Occupiers of 51
Olivia Road
- that in those cases in which legal representation
was obtained the chances of settlement being achieved before a court
would
be able to address the constitutionality of the provisions as
a live issue were high, and that this consideration militated in

favour of entertaining the application for declaratory relief.
Shortly after argument was heard in this matter analogous
considerations concerning mootness and constitutional materiality in

the context of pertinent jurisprudence were weighed in the
Constitutional Court’s judgment in
Pheko and Others v
Ekurhuleni Municipality (Socio-Economic Rights Institute of South
Africa intervening as amicus curiae)
2012 (2) SA 598
(CC),
2012
(4) BCLR 388.
That case concerned the involuntary permanent removal
by a local authority of a community which had settled on vacant land
which
was unsafe because of its susceptibility to sinkholes.
24
The local authority had purported to act in terms of the Disaster
Management Act 57 of 2002 (‘the DMA’). The members
of
the affected community accepted the need for them to move, but
contended that their removal to a place further away from the
place
where they had been living than was considered reasonable, and
without adequate and genuine prior consultation, was tantamount
to
an eviction within the meaning of s 26(3) of the Constitution.
Their case was that the forced removal had thus been unlawful

because it had not been authorised in terms of a court order made
after consideration of all the relevant circumstances. The
South
Gauteng High Court nevertheless refused their urgent application for
an interdict stopping the alleged eviction and giving
them attendant
spoliatory relief.
The community then applied for leave to appeal against that refusal
directly to the Constitutional Court. The interdictory relief
that
had been sought before the High Court was no longer feasible by the
time the application for leave to appeal was argued.
The local
authority consequently argued that leave should be refused because
the issues had become moot. The local authority
also contended that,
having acted administratively in terms of the applicable provisions
of the DMA, its conduct in removing
the community from the land on
which they had settled did not constitute an eviction of the
residents in the sense contemplated
by s 26(3) of the
Constitution. (In this respect the local authority relied on the
treatment of the provisions of s 12(4)-(6)
of the Building Act
by the SCA in
Rand Properties
supra - failing to appreciate,
apparently, that nothing in the
Rand Properties
judgment
would serve to justify its resort to self-help, or had recognised a
power in the local authority to permanently remove
people from their
homes without the sanction of a court order made after compliance
with the requirements of s 26(3) of
the Constitution.)
In addressing the mootness argument, the Constitutional Court cited
the remarks of Yacoob J and Madlanga AJ in
Langeberg
Municipality
supra, loc cit, and proceeded ‘
It is
beyond question that the interdictory relief sought will be of no
consequence as the applicants have already been removed
from
Bapsfontein. Although the removal has taken place, this case still
presents a live controversy regarding the lawfulness
of the
eviction. Generally, unlawful conduct is inimical to the rule of law
and to the development of a society based on dignity,
equality and
freedom. Needless to say, the applicants have an interest in the
adjudication of the constitutional issue at stake.
The matter cannot
therefore be said to be moot. It is also live because if we find
that the removal of the applicants was unlawful,
it would be
necessary to consider their claim for restitutionary relief
’;
(at para. 32, footnote references omitted). The court decided
that it was in the interests of justice to entertain
the case
because of the controversy over whether the rights of the members of
the community had been infringed. It is evident,
however, that it
would not have entertained the application if it had considered the
issues to be moot; see para. 31 of
the judgment.
There are a number of features in the current case which materially
distinguish it from that in
Pheko
.
The interdictory relief sought in
Pheko
had become arguably
moot because by the time the matter reached the Constitutional Court
the community had already effectively
been evicted (or ‘evacuated’
as the local authority preferred to term it), their homes had been
destroyed, and no
purpose would be served by their re-erection on
land that was dangerous for habitation. Significantly, all those
events had occurred
without a court order because the local
authority maintained that the removal did not constitute an
eviction. In the current
case, by contrast, the City at no stage
apprehended, or gave reason to any party to understand that it
apprehended, that the
residents of the buildings could be forced to
leave the property other than in terms of a court order. There was
no forced eviction
of the members of the fifth respondent community
in the current case, and not even the threat of eviction without a
court order
first being obtained. The City dealt with the exigencies
of a compulsory removal of the community pursuant to the
requirements
of s 12(4) at all times mindful of the need for
compliance with s 26 of the Constitution. The City engaged with
the
community and made arrangements for their relocation to
temporary emergency shelter. (That these arrangements were
insufficient
or inadequate, or that engagement with the community
before the institution of proceedings might have been more
meaningful than
it was, are matters to which I shall give attention
when determining the unresolved issue of costs.)
In
Pheko
, there was also the unresolved claim for
restitutionary relief for an alleged breach of constitutional rights
which kept the
determination of the ambit and effect of the relevant
provisions of the DMA very much alive as an issue. In the current
case
the fifth respondent’s defence to proceedings founded on
s 12(4) was more centrally directed at the alleged failure
by
the City to give them, as distinct from the Trust, notice as
required in terms of the sub-section. It was also founded on
their
contentions as to the City’s obligations towards them in
respect of emergency temporary housing and subsequent permanent

resettlement. Those contentions are no longer live issues before the
court by reason of the settlement.
In
Occupiers of 51 Olivia Road
, while the Constitutional
Court held that the right of a local authority to act under s
12(4)(b) and the right of the persons
affected by a notice given
under the provision to access to adequate housing were not
reciprocal, it emphasised, however, that
this did not imply that the
local authority, when determining upon the exercise of the power to
give notice in terms of s 12(4)
of the Building Act, was
relieved of the duty to consider and appropriately address the
consequences of homelessness that might
foreseeably result upon the
implementation of its order. The Constitutional Court unambiguously
identified the practical interrelationship
between s 12(4) and
s 26(2) of the Constitution when homelessness was a possible
result of the exercise of the power
under the Building Act. The
Court stated that any exercise of the power thus had to be
undertaken in an appropriately integrated
or ‘holistic’
way. It was in this context that Yacoob J commented that the SCA’s
characterisation of the case
as ‘only peripherally about the
constitutional duty of organs of state towards those who are evicted
from their homes and
are in a desperate condition’ was
‘unfortunate’.
25
The Constitutional Court also stressed that that any court
considering any application for the eviction of a person from their

home was required in terms of s 26(3) to consider all relevant
circumstances. In my view it is thus evident that the
interrelationship
between the rights in terms of s 26 and those
under other provisions of the Bill of Rights mandates an enquiry by
any local
authority contemplating acting in terms of s 12(4)
broader than one merely into whether the jurisdictional prerequisite

for the exercise of the s 12(4) power has been satisfied, as
the judgment in
Rand Properties
might be read to suggest; it
also enjoins an enquiry into the manner and consequences of the
implementation of a s 12(4)
order affecting a person’s
home.
Although there was no challenge to the constitutionality of the
pertinent provisions of the DMA in
Pheko
, the judgment
implicitly underscored the effect of that in
Occupiers of 51
Olivia Road
as to the practical interrelationship of provisions
such as s 12 of the Building Act and s 26 of the
Constitution.
The City’s conduct in the current matter was at
all times consistent with an understanding that a holistic approach
to
the application of s 12(4) of the Building Act was required
when the permanent loss of the affected parties homes was entailed;

in other words its reading of the provision was plainly reconcilable
with that of the Constitutional Court.
A further distinguishing feature, in this instance between the
current proceedings and the attack previously mounted in
Rand
Properties
, is that the fifth respondent’s
counter-application was brought in circumstances in which the
proviso read into s 12(6)
of the Building Act by the
Constitutional Court in
Occupiers of 51 Olivia Road
has
rendered the prohibition in terms of s 12(5) toothless –
certainly to the extent that it might be relied upon
by any
authority to purport to
permanently
deprive a person of the
right to return to his or her home, unless supported by a
court-granted eviction order. The result is
that it seems quite
certain that s 12(5) can be availed of for enforcement purposes
only where it is reasonable to do so,
and never in a manner that
effectively trumps s 26 of the Constitution. There is in any
event nothing on the facts of the
current case to demonstrate the
practical application of s 12(5). On my reading of the
provision, its intended effect is
in any event merely to make it
clear that a vacating order in terms of s 12(4), or any order
with similar effect in terms
of s 12(1), shall be of continuing
effect until permission is granted by the local authority for the
re-occupation or resumed
use of the building in question.
The reading-in by the Constitutional Court has also, by necessary
implication, eroded the imperative or coercive effect of the
use of
the verb ‘order’ in s 12(4), upon which counsel for
the
amicus
placed emphasis. The contextual effect of the
reading-in militates against the ability of anyone to properly
construe subsections
12(4) and (5) in a manner that renders them
incompatible with s 26 of the Constitution; cf.
Pheko
,
at para.s 37-38.
It is also now clearly determined by Constitutional Court
jurisprudence that the immediate removal of persons from their homes

in terms of s 12 of the Building Act or comparable provisions
in the DMA cannot, by itself, lawfully deprive them permanently
of
their rights to those homes. That can be achieved lawfully only by
means of a court order obtained in the circumstances contemplated
by
s 26(3) of the Constitution; see
Schubart Park
, at
para. 20.
Any local authority applying s 12(4) of the Building Act in
circumstances which would occasion the persons affected by a
notice
in terms of s 12(4)(b) to be despoiled of their homes, however
inadequate they might be, would also know that it
would have to act
in a manner compliant with its responsibilities as explained in
Government of the Republic of South Africa and Others v Grootboom
and Others
2001 (1) SA 46
(CC),
2000 (11) BCLR 1169.
This much
is confirmed in the cross-references to that judgment in
Occupiers
of 51 Olivia Road
, especially at para. 10 (with an emphasis
on the inextricable interrelationship between the rights in s 26
of the Constitution
and those of reasonable governmental action and
the respect for and protection of human dignity in s 10), and
para.s 16
and 21 (with regard to the importance and
significance of prior meaningful engagement). Any local authority
that purports to
apply s 12(4) with disregard of these
requirements should know that it will be acting unlawfully. It is
authoritatively
established that no-one has to submit to the
coercive effect of an unlawfully made administrative decision; and
its litigious
enforcement may be resisted by means of collateral
challenge; see
Oudekraal Estates (Pty) Ltd v City of Cape Town
and Others
2004 (6) SA 222
(SCA)
[2004] 3 All SA 1
, at para.s
32-36. (The nature of the challenge I have in mind would be to the
legality of the action, not to the constitutionality
of the
empowering provision.)
There is nothing in the facts of the current case to indicate that
local authorities will not be cognisant of this when determining
to
issue an order in terms of the provision. There is certainly no
longer any reason for uncertainty on their part as to their
duties
in this respect. Although
Schubart Park
affords an instance
of a local authority inappropriately seeking to rely
ex post
facto
on the provisions of s 12 to justify its removal of
the occupants of a tenement complex, it is evident that the
municipality
was astute to the unfounded nature of that reliance by
the time the case was argued in the Constitutional Court. There was
nothing,
however, to suggest that the urgent removal of the
occupiers had not been necessary in the circumstances of that case,
or that
the provisions of s 12 of the Building Act had operated
in the circumstances to infringe anyone’s rights in terms of

s 26 of the Constitution.
The context of the application for their eviction under whatever
label – that is, that it was brought by the City before
a
competent court - made the fifth respondent’s impugnment of
s 12(4) as incompatible with s 26 of the Constitution

somewhat academic in character from the very outset,
26
particularly because it was not supported by any evidence of the
application of the provision by any municipality, post-
Rand
Properties
, in a manner in conflict with s 26.
I have described these features of the case of the case in an
historic jurisprudential context at some length because I consider

that the single most important factor in making the determination as
to whether to entertain the counter-application for declaratory

relief is whether it would be in the interests of justice to deal in
this case with the constitutionality of subsections 12(4)
and (5). I
have done so fully astute to the consideration that mootness, by
itself, is not a bar to the propriety of entertaining
the
application for declaratory relief; cf.
Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development and Others
2009 (4) SA 222
(CC),
2009 (7) BCLR 637
,
at para. 40. But unless there is evidence, rather than
hypothesis, that the application of s 12(4) of the Building
Act
is currently occasioning, or likely to occasion an infringement of
persons’ fundamental rights in terms of the Constitution,
or
that the state of the applicable law is giving rise to unwholesome
uncertainty on how the provisions fall to be applied, it
does not
seem to me to be in the interests of justice to entertain the
constitutional challenge.
The state of the law when it comes to use of the provision does not
appear to be uncertain and the facts of the current case
do not
support the conclusion that the wording of the impugned provisions
had conduced to a breach of their rights.
The argument that there is a pressing need for procedural safeguards
to be expressly read-in into s 12(4) to render it
constitutionally compatible is not convincing; and certainly, if
appropriate regard is had to the guidance already provided,
especially in the judgments in
Occupiers of 51 Olivia Road
and
Rand Properties
, there is nothing about the evidence in
the current case that makes out a compelling case for this court to
go into the matter.
The authorities upon which counsel for the fifth
respondent and the
amicus
relied to press this part of their
argument (
Abahlali baseMjondolo Movement SA and Another v Premier
of the Province of KwaZulu-Natal and Others
2010 (2) BCLR 99
(CC) and
Centre for Child Law v Minister for Justice and
Constitutional Development and Others
2009 (6) SA 632
(CC),
2009
(11) BCLR 1105)
were decided with reference to legislation of a
quite distinguishable character.
The provisions of s 16 of the KwaZulu-Natal Elimination and
Prevention of Re-emergence of Slums Act 6 of 2007 that were
in issue
in
Abahlali
entailed a very different coercive power from
that entailed in s 12(4) of the Building Act. Section 16
of the KwaZulu-Natal
statute obliged landowners, and failing them,
municipalities, to evict unlawful occupiers from land when
instructed to do so
by the MEC in a notice. Compliance with the
notice would take the form of the institution of eviction
proceedings in terms of
the PIE Act. Those at whom a notice by the
MEC was directed were obliged to institute eviction proceedings even
if it they were
of the view that the justice and equity requirements
for eviction in terms of the PIE Act could not be met. The basis for
the
finding of constitutional incompatibility, as I understand the
majority judgment, was not the absence of express procedural
safeguards
, but rather that the coercive effect of the provision
was premised on an overly broad power invested in the MEC, which,
according
to the plain and undiscriminating language of the section,
was open to being exercised in a manner irreconcilable with ‘the

dignified [legislative] framework that has been developed for the
eviction of unlawful occupiers’ pursuant to s 26(2)
of
the Constitution. The impugned provision afforded the MEC an
unrestrained policy-directed power, the use of which could override

safeguards built into the other applicable legislation of the
character contemplated by s 26(2) of the Constitution. The

majority judgment held that the approach in the minority judgment,
which sought to construe the language of the impugned provision
in a
manner that would render it constitutionally compatible, was
untenable because such a construction had ‘the effect
of
re-writing section 16 in a manner that is not apparent on its
face and that is in conflict with the coercive design of
section 16
to eliminate slums and informal settlements’.
27
A procrustean treatment of the text in accordance with the approach
in the minority judgment, so held the majority, would also
be
inimical to the rule of law requirement that the law be certain and
accessible.
By contrast with s 16 of the KwaZulu-Natal statute, s 12(4)
of the Building Act affords an expressly circumscribed

administrative power to local authorities, which, on a proper
reading of the provision, can be enforced, when its effect is to

evict people from their homes, only through a court order of the
nature contemplated in terms of s 26(3) of the Constitution.

The power of local authorities in terms of s 12(4) can thus be
exercised only if the jurisdictional prerequisites are satisfied

and, even then, subject to the overriding constitutional provisions
pertinent to reasonable and procedural fair administrative
action
set out in PAJA. The court order necessary to enforce the
administrative action will, in general, not be obtainable unless

there has been meaningful prior engagement by the local authority
with the affected persons. As I have sought to describe, a
detailed
jurisprudential context has already been provided for the
application of the provision in a constitutionally compatible

manner.
The observations made by Moseneke DCJ at para. 124 of
Abahlali
, on which Mr
Brickhill
laid emphasis, to the
effect that it is important for the rule of law that the effect of
legislation should be clear from its
language, fall to be understood
in this context.
28
The effect of the jurisprudence, in my view, is such that it is not
evident that persons affected by the impugned provisions
(certainly
if advised by their lawyers), or the local government functionaries
empowered to apply them, will not be clear on
how the provisions
should operate in a constitutionally compliant way. I mention these
distinctions not to reject the constitutionality
challenge on its
merits, but only to explain why I do not consider that the
Abahlali
judgment advances the argument that there is sufficient need in the
context of the current matter to entertain it.
Centre for Child Law
concerned the constitutionality of
prescribed minimum sentencing provisions that treated children
between the ages of 16 and
18 indistinguishably from adults. The
provisions were found to be incompatible with 28(1)(g) of the
Constitution.
29
The aspect of the majority judgment upon which counsel for the
amicus
relied was its rejection of the approach adopted in
the minority judgment (of Yacoob J) that the provisions could
be read
so not to conflict with s 28. Cameron J, writing
for the majority, stated in this regard (at para. 67) ‘…
the
approach of Yacoob J entails serious operational perils for the
sentencing of child offenders. Because it equivocates in the
way I
have shown, it does not adequately explain how far the minimum
sentencing regime can legitimately push sentences upwards.
It
therefore leaves an especially vulnerable group with a significant
degree of uncertainty about the content of their constitutional

rights. As this Court said in
Richter
,
[
30
]
“
a law that regulates a fundamental right should be
expressed in a manner which will enable citizens to determine with
relative
clarity what rights they have and do not have.”
’.
It is apparent from what I have said earlier in this judgment that I
am not persuaded that there is such a degree of
uncertainty
attending the exercise by local authorities of their powers in terms
of s 12(4) in a constitutionally compatible
manner as to make
it evident that it would be in the interests of justice to entertain
the constitutional challenge in the circumstances
of the current
case.
Mr
Brickhill
submitted that the contended for
constitutional incompatibility of s 12(4) could be cured by
reading-in the following underlined
words ‘
If
,
after notice to and consultation with the owner and occupiers of the
relevant building,
the local authority…
’.
I think it is evident from my review of the pertinent jurisprudence,
however, that it is clear enough that fulfilment
of those procedural
requirements would ordinarily be implied unless the exigencies of a
situation made it reasonable to dispense
with them. Mr.
Brickhill
also sought to suggest that the facts of the current case
demonstrated that the local authority could, by dealing with the
owner
of a building and not its occupants, unlawfully impinge on the
occupants’ security of tenure. I am not persuaded that the

facts do afford such demonstration. On the contrary, it is evident
that when it becme apparent that the owner was unable to clear
the
building, the City engaged directly with the occupiers. Nothing in
the City’s dealings with the owner would support
the notion
that the owner could effect an eviction of the occupants, should
they not voluntarily move out, other than by authority
of a court
order of the nature contemplated by s 26(3) of the
Constitution.
The application of s 12(4) of the Building Act is undoubtedly
an important feature in the armoury of municipalities –

especially those in the bigger urban centres - confronted with the
consequences of urban decay, frequently characterised by the

abandonment of rundown tenements by their owners and their
appropriation for housing by the poor and desperate, who are unable

to afford to restore or maintain them in a safe and habitable
condition. Like any weapon it can be misused. Whether in a
particular
case it is indeed misused to unconstitutional effect will
fall to be determined, I would think, from the factual context. Thus

it is more readily conceivable, at least in abstract, that any
infringement of rights would arise from the peculiar application
of
the impugned provisions rather than from their language construed
correctly.
When it declined to enter into the question of the constitutionality
of s 12(4) of the Building Act in
Occupiers of 51 Olivia
Road
in comparable circumstances to those of the current case,
the Constitutional Court was astute to the likelihood that the
provision
would be regularly used by local authorities and of the
desirability that they be assisted by some guidance in respect of
the
use of the procedure.
31
The Court’s unwillingness, in the face of the its
consciousness of those considerations, to go into the
constitutionality
of subsections 12(4) and (5) counts against some
of the submissions on behalf of the fifth respondent and the
amicus
that there is a pressing need in the interests of justice that this
court should entertain the constitutionality challenge.
Mr.
Brickhill
submitted that the Constitutional Court’s
refusal to deal with the constitutional compatibility of the
provisions had given
rise to uncertainty. I do not accept this to be
so. On the contrary, it is evident that the Court was at pains to
give guidance
so as to achieve the opposite effect.
To sum up on this issue: It will be apparent that I have not found
obvious merit in the challenge against the constitutionality
of
subsections 12(4) and (5) of the Building Act. I have decided,
however, that rather than reject the challenge on the merits,
it
would be preferable to leave the way open for the question to be
considered, if required, in a factual context, should one
arise,
which might lend more practical support to the arguments counsel for
the fifth respondent and the
amicus
have sought to advance. I
am not persuaded that such a degree of uncertainty attends the
application of the provisions that it
is in the interests of justice
that a determinative decision is required in the context of the
current case concerning their
constitutionality. (This should not be
misread to imply an application by me of the misguided approach that
an enquiry into the
constitutionality of a statutory provision
should be dependent on its effect on a particular litigant. Rather,
it is an approach
which suggests that a case in which the operation
of the impugned provisions has arguably resulted in an infringement
of rights
would afford a better basis for a constitutionality
challenge to be determined. This, in essence, conforms to the
principle that
a court should not readily decide constitutional
questions unless the facts of the case require it, and then only as
a last resort.)
For these reasons the relief sought in terms of
paragraph 8 of the notice of counter-application, as amended, will
be refused.
Costs
As mentioned, the City’s heads of argument suggested that the
only basis upon which it sought to argue its entitlement
to an order
for the eviction of the fifth respondent was in s 12(4) of the
Building Act. I do not think that it would have
succeeded on that
basis because of its omission to give the members of the fifth
respondent notice in terms of s 12(4)(b).
The City’s
papers did, however, establish, at least on their face, an
alternative basis to obtain an eviction order; namely
in terms of
s 6 of the PIE Act. It is impossible to say what course the
proceedings would have taken if the settlement had
not intervened
and if the City’s vulnerability in founding its argument
solely on s 12 of the Building Act had become
apparent. It
might have been that the City would, if the matter had proceeded,
shifted back to the PIE Act. It might have sought
leave to have the
contentious issue of the legal status of the fifth respondent’s
occupation of the buildings determined
with reference to oral
evidence. If it were determined on the basis of such evidence that
the members of the fifth respondent
were in unlawful occupation of
the property, an eviction order in terms of s 6 of the PIE Act
would have been a quite conceivable
result. I am thus unable to find
that the City’s application would probably have failed, or
that the fifth respondent’s
opposition would necessarily have
succeeded. This militates in favour of an order that each party
should pay its own costs.
The fifth respondent’s counsel argued, however, that the City
had failed in its duty to engage meaningfully with the occupants
of
the buildings before instituting proceedings and that its offer of
emergency alternative accommodation had been demonstrably

inadequate. He submitted that these factors, by themselves,
justified a costs order in the fifth respondent’s favour. Mr
Hathorn
sought support for his contentions in the costs
orders made against the City of Johannesburg in
Occupiers of 51
Olivia Road
.
In my judgment the facts of the two cases are materially
distinguishable. In the current case it is evident that the City did

engage with the fifth respondent community and indeed almost
achieved agreement with its representatives that those in need of

emergency alternative accommodation would move to the Blikkiesdorp
transitional relocation area. The adequacy of the engagement
process
was bedevilled by understandable suspicion and hostility by some
members of the fifth respondent community when they
perceived their
security of tenure to be imperilled by the City’s actions. It
is also evident that the City was confronted
with a practical
difficulty in offering alternative accommodation in that, through no
fault of its own, it was unable to reliably
determine the
composition of the fifth respondent community. Matters were not
assisted by the fifth respondent community’s
insistence that
any relocation should occur to the Site 5 transitional relocation
area. That site is reserved for the purposes
of accommodating people
temporarily displaced in the context of work on the N2 Gateway
housing project. Equally - and the statement
is made mindful of the
practical constraints under which it has to operate - the City’s
position was, at times, objectively
not beyond reproach. So, for
example, the units made available at Blikkiesdorp did not conform to
the applicable minimum standards;
and the tenor of its letter to the
fifth respondent, dated 13 December 2010, was unfortunate.
The housing question is one of the most pressing socio-economic
issues with which our developing country is confronted. The enormity

of the challenges it presents is especially manifest in the
metropolitan centres to which large numbers of people from the rural

areas have been moving over a period of many years now in the
universal trend to urbanisation. The legacy of apartheid policies
of
racially determined land reservation and influx control continues to
compound, and will do for years to come, the difficulties
in the way
of an expeditious realisation of adequate housing to which everyone
in South Africa is entitled to aspire under the
Constitution.
32
No-one can be unaware that resources and capacity are limited; and
the demands on them beyond the state’s ability to deliver,

other than incrementally. Dealing with the challenges in a workable
order is a complex and demanding process for all concerned.
It would
be unrealistic to pretend that the going can be smooth.
It is evident, if one takes an armchair approach, that certain
issues could have been dealt with in a better and more constructive

way on both sides in the current case, but it cannot be said that
there was bad faith or unconscionable conduct by anyone involved.
On
the contrary, both the residents of Masonwabe Park and the City’s
officials, as well as all the parties’ respective
legal
representatives, conducted themselves in a commendably constructive
manner in eventually resolving the main issue in the
case. Ideally,
litigation should not have been unnecessary, but in the final
analysis I think it is evident that the litigious
process actually
assisted in allowing them to find each other under the court’s
supervision.
I do think, however, that there is some cogency in Mr.
Hathorn
’s
argument that the fifth respondent has succeeded in obtaining a
better standard of alternative accommodation than that
tendered by
the City and that this represents a substantial measure of success
that deserves to be reflected in the costs order.
This is so
especially because the character of the accommodation offered did
not meet the minimum standard stipulated in terms
of the National
Housing Code. This has to be balanced by the consideration that
considerable time was devoted in argument to
the constitutionality
challenge, which has not been successful. Assessed by itself, the
ordinary consequence of the result in
the constitutionality
challenge would be that each party would bear its own costs;
cf.
Biowatch Trust v Registrar, Genetic Resources, and
Others
2009 (6) SA 232
(CC),
2009 (10) BCLR 1014.
In the result, I have concluded that it would be fitting overall
that the City should pay thirty per cent of the fifth respondent’s

costs of suit in the proceedings. For this purpose no distinction is
drawn between the application and the counter-application.
As far as
the other parties are concerned, there shall be no order as to
costs.
The following orders are made:
The declaratory relief sought in terms of paragraph 8 of the
fifth respondent’s notice of counter-application, as
amended,
dated 22 September 2011,
33
concerning the constitutionality of subsections 12(4) and (5)
of the National Building Regulations and Building Standards
Act 103
of 1977 is refused.
The applicant is ordered to pay thirty per cent of the fifth
respondent’s costs of suit in the proceedings.
Save as provided in paragraph 2 there shall be no order as to
costs.
A.G. BINNS-WARD
Judge of the High Court
FOR THE APPLICANT : Adv. A. Katz SC
: Adv. N. Mayosi
INSTRUCTED BY: Fairbridges.
FOR THE 5
TH
RESPONDENT: Adv. P. Hathorn
INSTRUCTED BY: ChennellsAlbertyn
FOR THE 6 & 7
TH
RESPONDENTS :Adv. K. Pillay
INSTRUCTED BY: State Attorney
DATE OF HEARING : 14SEPTEMBER 2011
19 OCTOBER 2011
23 NOVEMBER 2011
24 NOVEMBER 2011
DATE OF JUDGMENT : 24 OCTOBER 2012
1
The
Trust caused a draft deed of ‘sale’ to be prepared for
this purpose. The draft deed reflected the purchase price
as ‘nil
rand’, but provided for the ‘purchaser’ to pay all
costs incidental to the transfer, including
the costs of obtaining
any ‘rates or other clearance certificate’.
2
The
City had in fact commissioned a report on the integrity of the
buildings as early as 2006.
3
The
National Building Regulations and Building Standards Act 103 of
1977. The text of s 12 of the Act is set out in full
at n. 13,
below.
4
The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998.
5
The
papers did not explain what the common law basis of the application
might be.
6
Cf.
Jaftha v Schoeman and others; Van
Rooyen v Stoltz and others
[2004] ZACC 25
;
2005 (2) SA
140
(CC),
2005 (1) BCLR 78
, at para. 23.
7
There
had been some earlier postponements. It is unnecessary to describe
them.
8
Compare
the approach of the Constitutional Court to meaningful engagement in
analogous circumstances in
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.
9
See
the judgment handed down on 24 November 2011.
10
See
para. , above.
11
The
powers in s 12 concerning the demolition, alteration or
securing of buildings and earthworks arise in subsection (1)

thereof. Subsection 12(5) cross-references to s 12(1) as well
as to s 12(4). Section 12(1) is, however, not impugned
in these
proceedings.
12
The
quotations in this paragraph are from the fifth respondent’s
heads of argument.
13
Section
12 of Act 103 of 1977, as amplified by the Constitutional Court,
provides as follows:
(1) If the local authority in question is of the
opinion that-
(a) any building is dilapidated or in a state of
disrepair or shows signs thereof;
(b) any building or the land on which a building was
or is being or is to be erected or any earthwork is dangerous or is
showing
signs of becoming dangerous to life or property,
it may by notice in writing, served by post or
delivered, order the owner of such building, land or earthwork,
within the period
specified in such notice to demolish such building
or to alter or secure it in such manner that it will no longer be
dilapidated
or in a state of disrepair or show signs thereof or be
dangerous or show signs of becoming dangerous to life or property or
to
alter or secure such land or earthwork in such manner that it
will no longer be dangerous or show signs of becoming dangerous to

life or property: Provided that if such local authority is of the
opinion that the condition of any building, land or earthwork
is
such that steps should forthwith be taken to protect life or
property, it may take such steps without serving or delivering
such
notice on or to the owner of such building, land or earthwork and
may recover the costs of such steps from such owner.
(2) If the condition of any building or the land on
which a building was or is being or is to be erected or any
earthwork is such
that it is dangerous to life or property, the
owner of such building, land or earthwork shall forthwith notify the
local authority
in question thereof.
(3) (a) If the condition of any building or the land
on which a building was or is being or is to be erected or any
earthwork
is such that it is dangerous or is showing signs of
becoming dangerous to life or property, the local authority,
irrespective
of whether it was notified in terms of subsection (2),
may by notice in writing, served by post or delivered, order the
owner
of such building, land or earthwork to instruct at the cost of
such owner an architect or a registered person to investigate such

condition and to report to such local authority on the nature and
extent of the steps to be taken, in the opinion of such architect
or
registered person, in order to render such building, land or
earthwork safe.
(b) The local authority in question may by notice in
writing, served by post or delivered, order that any activities be
stopped
or prohibit the performance of any activities which may
increase the danger or hinder or obstruct the architect or
registered
person referred to in paragraph (a) from properly
carrying out the investigation referred to in that paragraph.
(c) If it is brought to the attention of a local
authority or appears that an architect or registered person
instructed in terms
of paragraph (a) to perform certain duties is
for any reason not competent to carry out the duties in question,
the local authority
may require such architect or registered person
to submit evidence of his or her competence to carry out such
duties.
(d) If the architect or registered person
contemplated in paragraph (c) is unable to satisfy the local
authority of his or her
competence to carry out the duties in
question, the local authority may order the owner of the building,
land or earthwork in
question to instruct another architect or
registered person to carry out the duties.
(4) If the local authority in question deems it
necessary for the safety of any person, it may by notice in writing,
served by
post or delivered-
(a) order the owner of any building to remove,
within the period specified in such notice, all persons occupying or
working or
being for any other purpose in such building therefrom,
and to take care that any person not authorized by such local
authority
does not enter such building;
(b) order any person occupying or working or being
for any other purpose in any building, to vacate such building
immediately
or within a period specified in such notice.
(5) No person shall occupy or use or permit the
occupation or use of any building in respect of which a notice was
served or delivered
in terms of this section or steps were taken by
the local authority in question in terms of subsection (1), unless
such local
authority has granted permission in writing that such
building may again be occupied or used.
(6)
Any person who contravenes or fails to comply with any provision of
this section or any notice issued thereunder, shall be
guilty of an
offence and, in the case of a contravention of the provisions of
subsection (5), liable on conviction to a fine
not exceeding R100
for each day on which he so contravened.
This
subsection applies only to people who, after service upon them of an
order of court for their eviction, continue to occupy
the property
concerned.
(Underlined wording
read-in by the Constitutional Court.)
14
The
fifth respondent’s counsel submitted that s 12 fell to be
read and construed in its context as a product of the
apartheid era,
and in particular with regard to the highhanded approach by the
legislature of that period to the eviction and
removal of people. It
needs to be pointed out, however, that the provision has been
legislatively revisited in the post-constitutional
era. The
provisions of s 12(3) were substantially revised in terms of
s 3 of the National Building Regulations and
Building Standards
Amendment Act 49 of 1995. The nature of the revisions were directed
at assisting local authorities to obtain
the report of an architect
or ‘registered person’ at the expense of a property
owner on the state of buildings and
earthworks under consideration.
The evident purpose of that power was to assist local authorities to
determine whether, and to
what effect, to use the powers conferred
in terms of sub-sections (1), (2) and (4). I have not overlooked the
observations made
in
Jaftha
supra,
at para.s 25-29 about the appositeness of a sensitive approach
to matters concerning security of tenure in the light
of our
history. It is not in issue in the current matter that s 26 of
the Constitution must be construed generously and
read as a whole,
and recognised as a particularised manifestation of other rights, in
particular the right to human dignity.
15
See
City of Johannesburg v Rand Properties (Pty) Ltd and
Others
2007 (6) SA 417
(SCA),
2007 (6) BCLR 643
,
[2007] 2 All SA
459
, at para.s 54-56.
16
http://www.saflii.org.za/za/cases/ZACC/2012
.
17
See
the definition of ‘administrative action’ in s 1 of
PAJA.
18
Note 15,
above.
19
Note 8,
above.
20
Occupiers
of 51 Olivia Road
supra, at para. 47.
21
See
n 13, above.
22
In
a supplementary affidavit, the fifth respondent did assert that its
impugnment of sub-secs 12(4) and (5) of the Building
Act was
also advanced on a public interest basis.
23
Section
21A(1) of Act 59 of 1959 provides:
When at the hearing of any civil appeal to the
Appellate Division or any Provincial or Local Division of the
Supreme Court the
issues are of such a nature that the judgment or
order sought will have no practical effect or result, the appeal may
be dismissed
on this ground alone
.
24
The
community was forcibly removed by a private security firm employed
by the local authority for the purpose (the so-called ‘Red

Ants’). In the course of the removal the shelters in which the
members of the community had resided were demolished.
25
See
para.s 43-46 of the judgment.
26
This
may also have been a factor that weighed with the Constitutional
Court when it declined to deal with the impugnment of s 12(4)

and (5) in
Occupiers of 51
Olivia Road
. Proceedings
for the eviction of the occupiers in that matter consequent upon a
notice given in terms of s 12(4)(b) were
instituted by the
local authority before a court and had been settled; see para. 39 of
the judgment. The local authority in that
matter, as in the current
case, did not construe the provisions of s 12 to afford it the
power to enforce its order without
the sanction of a court.
27
Abahlali
at para. 115.
28
In
para. 124 of
Abahlali
,
Moseneke DCJ, writing for the majority, held
‘
The rule of law is a founding
value of our constitutional democracy. Its content has been expanded
in a long line of cases. It
requires that the law must, on its face,
be clear and ascertainable. To read in one qualification to achieve
constitutional conformity
is very different from reading in six.
Indeed, reading in so many qualifications inevitably strains the
text. This is all the
more so when the legislation in issue affects
vulnerable people in relation to so vital an aspect of their lives
as their security
of tenure. It will be impossible for people in the
position of the applicants, even if advised by their lawyers, to be
clear
on how this provision will operate. The same will indeed apply
to others affected by the law, such as owners, and the bureaucrats

charged with applying it.
’
29
Section 28(1)(g)
of the Constitution provides: ‘
Every
child has the right-
not to be
detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections
12 and 35, the
child may be detained only for the shortest appropriate period of
time, and has the right to be-
kept
separately from detained persons over the age of 18 years; and
treated
in a manner, and kept in conditions, that take account of the
child's age
’
.
30
Richter
v Minister for Home Affairs and Others (with Democratic Alliance and
Others Intervening, and with Afriforum and Another
as Amici Curiae)
2009 (3) SA 615
(CC),
2009 (5) BCLR 448
, at
para. 64
.
31
See
Occupiers of 51 Olivia Road
,
at para. 39.
32
Cf.
Residents of Joe Slovo Community,
Western Cape v Thubelisha Homes and Others (Centre on Housing Rights
and Evictions and Another,
amici curiae)
2010
(3) SA 454
(CC)
(2009 (9) BCLR 847)
, at para.s 191-198.
33
At
p. 810 ff of the papers.