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[2014] ZAWCHC 32
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Fischer and Another v Persons whose identities are to the apllicants unkown and who have attempted or are threatening to unlawfully occupy Erf 150 (Remaining extent) Philippi In re: Ramahlele and Others v Fisher and Another (297/2014) [2014] ZAWCHC 32; 2014 (3) SA 291 (WCC); 2014 (7) BCLR 838 (WCC); [2014] 3 All SA 365 (WCC) (13 March 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No:
297/2014
DATE:
13 March 2014
REPORTABLE
In the matter
between:
IRIS ARILLDA
FISCHER
..............................................................................
First
Applicant
CITY OF CAPE
TOWN
...............................................................................
Second
Applicant
And
PERSONS WHOSE IDENTITIES
ARE TO THE APPLICANTS
UNKNOWN AND WHO HAVE
ATTEMPTED OR ARE
THREATENING TO
UNLAWFULLY OCCUPY ERF 150
(REMAINING
EXTENT),
PHILIPPI
...............................................................
Respondent
And
BOITUMELO RAMAHLELE AND
FORTY-SIX APPLICANTS
LISTED IN ANNEXURE
“A” TO THE APPLICANTS’
.......................
First
to Forty-Sixth
NOTICE OF
COUNTER-APPLICATION
............................................................
Applicants
And
IRIS ARILLDA
FISCHER
.......................................................................
First
Respondent
CITY OF CAPE
TOWN
........................................................................
Second
Respondent
JUDGMENT: THURSDAY 13 MARCH 2014
GAMBLE
J
INTRODUCTION
1.
On 7 and 8 January 2014 the Second
Applicant, the City of Cape Town (“the City”) conducted a
series of raids on the Cape
Flats which were reminiscent of the
well-documented operations conducted by the apartheid government in
the 1980’s in areas
such as Crossroads and KTC. Units of
heavily armed men clad in bullet-proof gear and protective helmets
went on to private
property and systematically demolished informal
structures.
2.
Residents of Cape Town who had lived
through the civil unrest of the 1970’s and 1980’s may
well have had a sense of
deja vú
if they had witnessed this event. They may have asked
themselves whether such behaviour was permissible in a constitutional
democracy. Had they asked the City if this was possible they
would have been assured that it considered that it was acting
lawfully and fully within its rights.
3.
When the persons whose structures had been
demolished approached the High Court for urgent spoliatory relief,
the City opposed and
asserted the lawfulness of its behaviour.
That is what this case is about. But first, some background.
THE PROPERTY
4.
The First Applicant Ms. Iris Arillda
Fischer, is the owner of Erf 150 Philippi, a piece of land some 2,7
ha in extent. She resides
on the property in a formal brick
house with her son, Mr. Jacob Fischer, who occupies another brick
house on the property. Ms. Fischer
is a 78-year old pensioner and Mr.
Fischer a school teacher in his 40’s.
5.
The property is located in an area to the
east of Lower Crossroads and to the south of Cape Town International
Airport, and has been
in the Fischer family for more than half a
century. Ms. Fischer herself has lived on the property for 47
years. The property
appears to be unfenced and located in an
undeveloped area on the Cape Flats, there being no agricultural or
commercial enterprise
thereon. As I understand the photographs
which accompany the papers in this matter, the surroundings on the
property are covered
with bush and scrub typical of the sort of
vegetation that one encounters on the Cape Flats.
6.
I do not know how far the property is from
the nearest area of human settlement, but it is not in dispute that
since April 2013 there
have been a number of incursions onto the
property by people seeking to erect informal structures thereon.
7.
In late April and early May 2013 the City
moved onto the property at the request of the Fischers and demolished
a good number of structures
which had been put up on the property
shortly before. On 30 April 2013 the City says it demolished 73
structures and the following
day another 120. Included in the
latter were a number of structures which had been re-erected
overnight.
8.
The Fischers were seemingly unaware of the
presence of these structures given the size of the property and the
density of the vegetation
thereon. Be that as it may, the
structures were erected without the consent of the owner of the
property and it is not in issue
that they were illegal. The
occupiers took no steps at that time to address the lawfulness of
their removal from the land by
the City.
9.
The City says that after the May 2013
demolition, there was a small group of people who put up four or five
structures every night
and took them down again in the morning.
In August 2013 the City gave Ms. Fischer notice under section 6 of
PIE
[1]
to evict the unlawful occupiers. She evidently engaged the
services of a local attorney who did precious little to assist her.
In the meantime, says the City, there was a gradual increase in
incursions onto the property at the rate of about one structure a
week. By early January 2014 this number allegedly stood at
about 20 structures.
THE EVENTS OF 7 AND 8 JANUARY 2014
10.
On Monday, 7 January 2014 at about 15h00,
City officials observed a number of vehicles in the street near the
property from which
large quantities of building material were being
offloaded. At the same time, people commenced with the erection
of informal
structures on the property. These appear to have
been constructed from wood and corrugated iron sheets.
11.
The City commenced with a demolition
operation at about 18h00 on that day. In the process it took
down about 32 structures.
However, not all were taken down and
when the City’s law enforcement officials withdrew from the
area at around 19h00, there
were between 20 and 30 structures left on
the property.
12.
The City’s demolition squad returned
on the morning of Tuesday, 8 January 2014 at around 09h00. It
discovered that a further
15 structures had been erected on the
property overnight and it took immediate steps to demolish some of
these. The City withdrew
from the property at around 10h30 that
day and says that since then there have been no further incursions
onto the land.
THE MAIN APPLICATION
13.
On Friday, 10 January 2014, the City and
Ms. Fischer launched the main application in these proceedings to
prevent any further incursions
onto the property. Binns-Ward J
granted an order that day in which the respondent was described as”
“
Persons
whose identities are to the applicants unknown and who have attempted
or are threatening to unlawfully occupy Erf 150 (remaining
extent),
Philippi
”.
These
unidentified persons were ordered to show cause on 18 February 2013
why they should not be interdicted from:
“
2.
…
2.1
…
2.1.1 Entering or being upon
Erf 150 (remaining extent), Philippi (hereinafter referred to as “the
property”)
for purposes of unlawfully occupying or invading the
property.
2.1.2
Erecting, completing and/or occupying any structure on the property.
2.1.3
Intimidating, harassing, assaulting
or in any way interfering with the first applicant.
2.1.4
Inciting or encouraging other
persons to settle on the property or to erect structures on the
property for the purposes of unlawfully
occupying or invading the
property or erecting any structures on the property.
2.1.5
Occupying any vacant structures on
the property.
2.2
Authorising the Applicants, duly assisted by the Sheriff and insofar
as needs be, by the members
of the South African National Defence
Force and the South African Police Service to give effect to the
provisions of this Order by:
2.2.1
forthwith removing any person found
to be in breach of this Order;
2.2.2
demolishing any structure erected on
the property since the grant of this Order;
2.2.3
removing any possessions found at or
near such structures including any building materials, which
possessions and/or building materials
shall be kept in safe custody
for three months by the Second Applicant until released to the lawful
owner thereof and to take all
reasonable steps in order to give
effect to this Order.
3.
Paragraphs 2.1 and 2.2 of this Order shall operate as an Interim
Order with immediate
effect. For clarity it is recorded that
the provisions of paragraphs 2.1.1 and 2.1.2 shall not apply to
occupation of the property
by persons who are already primarily
resident thereon at the time the Order is made.
”
14.
Provision was made in that order for
service thereof by the Sheriff at the property by,
inter
alia
, reading out the contents with a
loud-hailer and by erecting a notice board with the order pinned to
it at the entrance to the premises.
The court also granted any
sufficiently interested party leave to anticipate the return date on
24 hours notice to the City’s
attorneys.
THE COUNTER-APPLICATION
15.
On Tuesday, 14 January 2014, forty-two
listed persons (whom I shall call either “
the
counter-applicants
” or “
the
occupiers
”) sought leave to
anticipate the return date of Binns-Ward J’s order. They
asked for the discharge of the rule
nisi
granted on 10 January 2014, costs of suit and the following
substantive relief:
“
4.
That a rule nisi do issue calling upon the respondents
[2]
to show cause on the 10
th
day of February 2014 why the following relief should not be made
final:
4.1
declaring the conduct of the City of
Cape Town in demolishing and/or dismantling the informal structures
erected by the applicants
at Erf 150 (remaining extent) Philippi to
be unconstitutional and unlawful;
4.2
interdicting and restraining the
respondents from evicting or demolishing any informal structures
erected by the applicants at Erf
150 (remaining extent) Philippi
without a valid Court Order;
4.3
interdicting and restraining the
respondents from demolishing, removing or otherwise disposing of any
informal structures, or the
constituent materials of such structures,
erected by the applicants at Erf 150 (remaining extent) Philippi;
4.4
interdicting and restraining the
respondents from intimidating, harassing or assaulting the applicants
or any person occupying Erf
150 (remaining extent) Philippi;
4.5
directing the City of Cape Town to
construct for those applicants, whose informal structures were
demolished on 7 and 8 January 2014
and who still require them,
temporary habitable dwellings that afford shelter, privacy, and
amenities at least equivalent to those
that were destroyed and which
are capable of being dismantled, at the site at which their previous
informal housing structures were
demolished;
4.6
directing the City of Cape Town to
pay the costs of the applicants’ counter-application on the
attorney and client scale.
”
16.
On that day (a provisional court day during
the summer recess) the matter was heard by Zondi, J. The
parties were of the view
that the occupiers’ founding affidavit
in the counter-application (which served as a reply in the main
application), disclosed
certain material disputes of fact which could
not be resolved on the papers. They agreed that those issues be
sent to oral
evidence on Wednesday, 19 February 2013 for
determination of the following issue:
“
Whether
the structures which were dismantled by the City of Cape Town on 7
th
and 8
th
January 2014, at the property known at Erf 150 Philippi-East
remaining extent, were those which were unoccupied and vacant.
”
The
customary procedural directions relevant to such a hearing were
made.
17.
The main application seems, at that stage,
to have followed a separate course. It was postponed to the
Motion Court where, also
on 19 February 2013, Salie-Samuels AJ
granted an agreed order to further postpone the matter to 22 May
2014.
18.
Shortly before the hearing of the
counter-application on 19 February 2014 I intimated to counsel in
chambers that before hearing oral
evidence I required the parties to
address me on two points of law to which I shall refer shortly.
I indicated to counsel that
I regarded this approach to be in
accordance with, for example, the
Wallach
case.
[3]
I also indicated to counsel that I was of the view that the main
application should be anticipated and be heard together with
the
counter-application the following day. The parties were
amenable to these proposals.
19.
The law points were argued on 20 and 25
February 2013 with
Mr. S Magardie
,
the Director of the Cape Town offices of the Legal Resources Centre,
appearing for the occupiers, and
Mr. A
Katz SC
and
Ms.
M Adhikari
for the City and Ms.
Fischer. The court is indebted to the legal representatives for
their assistance in this matter, both
in their heads of argument and
in court in relation to what appears to be a novel point.
THE CITY’S ALLEGATIONS REGARDING THE STATUS OF THE
STRUCTURES
20.
The City’s answer to the spoliation
application brought by the occupiers is made at various levels of
authority. At the
top of the chain of command is Mr. Stephen
Hayward who is the City’s Head: Anti-Land Invasion, a
unit which is located
within the City’s Directorate of Human
Settlements. Hayward deposed to the principal affidavit in the
founding papers
before Binns-Ward J and the answering papers before
Zondi J.
21.
The next in line is Mr. David Nortje, a
Principal Field Officer with the Anti-Land Invasion Unit (“
the
ALIU
”) within the City’s
aforesaid Directorate of Human Settlements. Then there are
Messrs Deon Dowman and Jeffrey Dawson,
who are Senior Field Officers,
and Rudolf Henry, a Junior Field Officer with the ALIU, all of whom
made affidavits in support of
Hayward. Affidavits are
also made by employees in the City’s Directorate of Safety and
Security, including Mr.
Lodewyk Pieterse, a Law Enforcement Officer
who has worked for the City for 28 years, and Mr. Arthur Daniels, a
Principal Inspector:
Law Enforcement Officer. I shall
deal briefly with the relevant parts of the affidavits filed by these
employees of the City.
HAYWARD’S AFFIDAVIT
22.
Hayward works in an office in Bellville,
some distance from the property, and does not appear to have been on
the ground, as it were,
on either 7 or 8 January 2014. He
relies on the allegations of his fellow employees (contained as they
are in supporting and
confirmatory affidavits) for the purposes of
his affidavit.
23.
In regard to the City’s conduct at
the property on the days in question, he says the following in his
affidavit of 14 January
2014:
“
5.
… Nortje did not attend at the property at the time
during the removal of
the structures on 7 January 2014 and 8 January
2014 but … he visited the property after the removals had been
completed and
… he was in constant radio communication with
the ALIU staff members and the law enforcement officials who effected
the removals.
…
6.
…
7.
… [I]t must be emphasised that the City takes its
constitutional and
statutory obligations very seriously. It, at
all times, tries to comply with its duties to protect the rights of
all.
It appreciates the importance of section 26(3) of the
Constitution and the provisions of the Prevention of Illegal Eviction
Act 19
of 1998 (“PIE”) and attempts to satisfy them.
8.
Indeed it is submitted that the City did not violate PIE or s26(3) of
the Constitution
on Erf 150, Philippi on the 7
th
and 8
th
of January 2014 or at any other time.
9.
…
10.
The question immediately arises why were some structures demolished
and others not.
The City says, and common sense and logic, are
consistent with the City [sic] views, that it was only structures
that were
not
yet homes that were demolished. …
25.
The City contends that the operations of the ALIU generally, and in
this particular instance
are consistent with the Constitution and the
law and are lawful in that the ALIU operates solely in circumstances
where land invasions
are either taking place or are imminent.
The ALIU does
not
demolish homes without a court order.
26.
In such cases there can be no suggestion that the provisions of PIE
find application in that
the operations of the ALIU are never
directed at evicting persons from their homes or dwellings.
27.
All that the ALIU does in circumstances where land invasions are
taking place or are imminent
is to prevent any structure from being
erected on a particular property or to remove such structures where
they are in the process
of being erected, and prior to such
structures being occupied by any person.
”
24.
The allegations made in these paragraphs
formed the foundation of the City’s case in opposing the
counter-application.
Mr. Katz SC’s
argument focussed on the sharp point that what the City demolished
were not homes and, because they were not homes, the City was
not
bound to observe the provisions of PIE.
Mr.
Katz SC
readily accepted that if the
City’s argument on this score did not find favour, that was the
end of the matter and the counter-application
had to succeed.
25.
I shall deal with the City’s argument
in more detail below but before I do so I need to refer to other
parts of Hayward’s
affidavit. He sought to distinguish
three discrete groups of people who were in occupation of the
property:
“
17.1
first, there are those persons who had been in occupation of the
property for some length of time, prior to 7 and
8 January 2014;
17.2
secondly, there are those persons
who had attempted to unlawfully invade and/or occupy the property on
7 and 8 January 2014 and who
were prevented from erecting structures
or were [sic] they had managed to erect structures such structures
were lawfully removed
by the ALIU prior to such structures being
occupied; and
17.3
thirdly, those persons who have
[sic] attempted or are threatening to unlawfully occupy the
property
.”
26.
The third group of persons was the subject
of the main application, said Mr. Hayward, and in the absence of any
defence thereto having
been set up, the City sought confirmation of
the rule granted by Binns-Ward J. At the conclusion of
argument, however,
Mr. Magardie
and
Mr. Katz SC
were in agreement that the rule
nisi
should be extended for a number of reasons which are presently not
relevant. I shall therefore incorporate the extension of
the
rule
nisi
in the order I intend making.
27.
As regards the first group of people,
Hayward said that it had not been the City’s intention to
destroy their homes: they
admittedly enjoyed the protection of
PIE. For this reason, the City had been careful to mark the
structures which it thought
resorted under the first group with an
“
X
”
painted on the structure with red spray paint. Demolition
personnel were instructed to leave such marked structures
untouched.
28.
Hayward describes what happened after the
April/May 2013 demolitions by the City thus:
“
42.
During this period (June 2013 to August 2013) approximately 20
structures were erected and became
occupied and these structures were
not removed from the property. These occupied structures remain
on the property and form
the majority of those which were not removed
from the property during 7 and 8 January 2014.
”
29.
It seems as if the City’s regular
patrols in the area were effective and that no new structures sprung
up until January 2014
when events took the following turn:
“
44.
Matters, however, changed significantly on 7 January 2014. At
approximately 14h45 on 7 January
2014 Mr. Nortje was advised by a law
enforcement official on patrol at the property, Mr. Lodewyk Pieterse,
that vehicles were standing
in a queue outside the property and that
it appeared that a large group of people were in the process of
erecting structures on the
property. Having regard to his
experience Mr. Lodewyk Pieterse understood this process to indicate
that an orchestrated land
invasion was taking place at the time.
A copy of the audio recording of the initial report will be provided
along with this
affidavit, if required.
45.
Mr. Nortje immediately contacted his superiors including myself and
certain other City officials
in that the reported land invasion was
taking place on privately owned land and according to City policy
specific permission had
to be obtained in order to intervene in the
situation. Permission to intervene was given and Mr. Nortje
directed his staff
to attend at the property to assess the situation
on the ground. The ALIU members arrived at the property at
approximately
15h15 on 7 January 2014.
46.
In the interim Mr. Daniels and Mr. Nortje contacted the South African
Police Services, the
Metro Police and the City’s Law
Enforcement Division to advise them of the planned intervention.
A meeting was held between
the ALIU and the various law enforcement
agencies in respect of the planned intervention at the property.
The ALIU staff at
the property reported that there were between 30
and 50 people in the process of erecting new structures on the
property at the time.
47.
…
48.
Consequently the ALIU together with law enforcement officers
commenced with their activities
sometime between 17h00 and 17h30 on 7
January 2014.
”
30.
Hayward says that the ALIU followed its
“
standard operating procedures
”
which allegedly included:
30.1.
attempting to negotiate with a community
leader, where possible;
30.2.
in the absence of such a leader (which was
the case here) approaching individuals directly in an attempt to
dissuade them from further
erecting structures.
31.
The procedure then allegedly progressed as
follows:
“
49.
…
49.3
As a consequence the ALIU staff
commenced removing of [sic] all structures which had been erected on
that day;
49.4
At the commencement of the
dismantling procedures ALIU staff contacted Mr. Nortje and advised
him that there were certain structures
which were, in their opinion,
newly erected on that day, but which appeared to be occupied
nevertheless;
49.5
Mr. Nortje instructed his staff
not
to remove any structure where there was any doubt as to whether the
structure was occupied even in circumstances where the structure
appeared to be newly erected;
49.6
As a consequence the only structures
which were removed were those which were clearly
unoccupied
and vacant. Copies of the audio recordings of discussions
between Mr. Nortje and the ALIU staff members will be provided along
with this application, if required.
50.
In fact the Fischers after the
event, asked Mr. Nortje why certain structures which they were
certain had not been present on the
property on 6 January 2014 had
not been removed and Mr. Nortje advised him that where there was any
uncertainty as to whether a structure
was occupied or not such
structures were not removed.
”
NORTJE’S AFFIDAVIT
32.
Nortje says that he was not present at the
property during the demolitions on 7 and 8 January 2014 but arrived
there after the ALIU
“
had
completed the demolition of the structures which were in the process
of being erected on the property
”.
He was, however, in regular radio contact with the ALIU staff and law
enforcement officials responsible for the demolition
work on both
days.
33.
Nortje confirms that he was in charge of
the operation on both days and confirms the allegations made by
Hayward, in particular, regarding
his (Nortje’s) instructions
to staff as set out in paragraph 31 above.
DOWMAN’S AFFIDAVIT
34.
Dowman says that on 7 January 2014 at about
15h00 he was alerted to activity by the counter-applicants via a call
from Nortje.
He and his passenger, Henry, then proceeded to the
property where they saw “
people
(who) were in the process of erecting new structures on a portion of
the property
”. He reported
this back to Nortje, who arranged for the ALIU and law enforcement
officials to be despatched with all
haste.
35.
Dowman says that they then went onto the
property and sought a leader with whom to negotiate. This
proved fruitless and after
the individuals were requested to
dismantle their structures, the City officials stepped in and started
demolishing themselves.
He goes on to describe the following
events:
“
12.
We followed our normal procedure, which in the first instance
involves identifying unoccupied or
vacant structures.
13.
What the ALIU normally does in order to ascertain whether a structure
constitutes someone’s
home is to observe the state of
completion of the structure, whether the construction materials
appear to be new, whether the structure
contains any furniture or
belongings and whether the ground around the structure appears to be
undisturbed.
14.
Our standard operating procedures require that no structure which
appears to be occupied is
removed under any circumstances, at least
without a court order.
15.
We did not remove any structure which was occupied on 7 January
2014.
16.
In addition there were certain structures which appeared to be newly
erected, but which also
contained other items of furniture or
belongings.
17.
I contacted Mr. Nortje to request instructions as to what to do with
these structures, where
there was a degree of uncertainty. Mr.
Nortje instructed me that in any case where there was uncertainty as
to whether or not
the structure was occupied such structure was to be
left alone and not dismantled.
18.
We dismantled approximately 32 unoccupied structures on 7 January
2014. There were between
20 and 30 structures which had been
standing for sometime which we left alone and there were a further 15
or 16 structures which
we had initially marked for removal, but which
we were uncertain about which we also left standing as instructed by
Mr. Nortje.
19.
I further confirm that no homes or structures which appeared to be
occupied were dismantled
by the ALIU on 7 January 2014.
”
36.
Henry only confirms the affidavits of
Dowman and Hayward and has no further narrative in his affidavit.
DAWSON’S AFFIDAVIT
37.
Like Henry, Dawson is still a relatively
junior member of the ALIU – both have about two years
experience. Dawson says
that he was not involved in the
operation conducted by the ALIU on the 7
th
but on 8 January 2014 he was told by Nortje to inspect the property
to ascertain whether any of the structures demolished the previous
day had been put up again.
38.
Dawson says that on the 8
th
the ALIU dismantled about 15 structures, none of which “
appeared
to be occupied
”. When he
returned to the property the following day, Dawson conducted an audit
of the remaining structures. He
says that he then counted 53,
took photographs of them and numbered them individually from one to
53. He was unsure whether
all 53 structures were on the Fischer
property or the neighbouring property, which he identified as “
Erf
597
”. I should add that
this is the only mention that is made in the papers of structures on
any property other than the
Fischer property.
PIETERSE’S
AFFIDAVIT
39.
Pieterse says that he drove past the
property between 15h00 and 16h00 on the 7
th
of January. He says that he saw a large amount of building
materials being off-loaded from vehicles parked at the entrance
to
the property. He reported this unusual occurrence to Nortje who
despatched an ALIU official to inspect. Pieterse returned
to
his office to enlist the assistance of his colleagues in the Law
Enforcement Unit.
40.
While confirming the correctness of
Hayward’s affidavit insofar as it related to him, Pieterse
makes the following specific
observations:
“
10.
During the operation on 7 January 2014, I observed an ALIU staff
member (Mr. Deon Doman [sic]) identifying
structures empty and which
contained no furniture and appeared to be vacant as the structures
which were to be dismantled.
As far as I am aware those were
the only structures which were dismantled.
11.
I returned to the property along with the ALIU on 8 January 2014.
I observed that certain
structures which had been dismantled the
previous day had been re-erected. These structures had been
spray painted with an
“
X”
and were therefore taken down again.
12.
I further confirm that as far as I am aware no homes were dismantled
by the ALIU during this
period.
13.
My instructions from my superiors, which I always follow, and did
follow on 7 and 8 January
2014 is to never assist the ALIU if it
contravenes by. For [sic] example, dismantling a person’s
home without a court
order.
”
THE APPROACH TO THE EVIDENCE
41.
I intend approaching the allegations made
in the counter-application along the lines that one adopts when
adjudicating an exception,
i.e. that the allegations made by the
deponents to the affidavits on behalf of the City are assumed to be
correct. I believe
that, since there are disputed facts which
the parties would want to have resolved by the hearing of oral
evidence application of
the
Plascon-Evans
rule
[4]
may operate too harshly against the City in the present circumstances
before such oral evidence is heard. Counsel for the City
were
in agreement with this approach.
THE TWO ISSUES OF LEGALITY
42.
I asked the parties to address me on two
issues of legality in relation to the City’s conduct during the
demolition operation
on 7 and 8 January 2014:
42.1.
First, since the incursion had taken place
on private land, in what capacity did the City purport to act?
42.2.
Secondly, on what basis did the City claim
that its conduct was lawful in the context of the provisions of
section 26(3) of the Constitution
and PIE?
I
will deal with the questions in that order.
THE CITY’S ENTITLEMENT TO ACT ON PRIVATE PROPERTY
43.
It may have been expected, in a matter such
as this, that the City would have relied upon section 6 of PIE,
the relevant provisions
whereof read as follows:
“
6.
Eviction at instance of organ of
state
(1)
An organ of state may institute
proceedings for eviction of an unlawful occupier from land which
falls within its area of jurisdiction,
except where the unlawful
occupier is a mortgagor and the land in question is sold in a sale of
execution pursuant to a mortgage,
and the court may grant such
an order if it is just and equitable to do so, after considering all
the relevant circumstances, and
if –
(a)
the consent of that organ of state
is required for the erection of a building or structure on that land
or for the occupation of the
land, and the unlawful occupier is
occupying a building or structure on that land without such consent
having been obtained;
or
(b)
it is in the public interest to
grant such an order.
(2)
For the purposes of this section
‘public interest’ includes the interest of the health and
safety of those occupying the
land and the public in general.
(3)
In deciding whether it is just and
equitable to grant an order for eviction, the court must have regard
to:
(a)
the circumstances under which the
unlawful occupier occupied the land and erected the building or
structure;
(b)
the period the unlawful occupier and
his or her family have resided on the land in question; and
(c)
the availability to the unlawful
occupier of suitable alternative accommodation or land.
”
44.
The reluctance of the City to follow this
route is not attributable to section 6(6) of PIE which imports the
procedural provisions
of section 4 to an application in terms of
section 6(1). The City’s problem with that importation,
said
Mr. Katz SC,
is that section 4 has mandatory notice periods which effectively
delay the hearing of any application to court by more than two weeks,
given that a 14 day notice of the proposed application must be given
to any occupiers of land sought to be evicted.
45.
Where the City is the owner or “
person
in charge
” of the land, it may
avail itself of the provisions of section 5 of PIE which read as
follows:
“
5.
Urgent proceedings for eviction
(1)
Notwithstanding the provisions of
section 4, the owner or person in charge of land may institute urgent
proceedings for the eviction
of an unlawful occupier of that land
pending the outcome of proceedings for a final order, and the court
may grant such an order
if it is satisfied that:
(a)
there is a real and imminent danger
of substantial injury or damage to any person or property if the
unlawful occupier is not forthwith
evicted from the land;
(b)
the likely hardship to the owner or
any other affected person if an order for eviction is not granted,
exceeds the likely hardship
to the unlawful occupier against whom the
order is sought, if an order for eviction is granted; and
(c)
there is no other effective remedy
available.
(2)
Before the hearing of the
proceedings contemplated in subsection (1), the court must give
written and effective notice of the intention
of the owner or person
in charge to obtain an order for eviction of the unlawful occupier to
the unlawful occupier and the municipality
in whose area of
jurisdiction the land is situated.
(3)
The notice of proceedings
contemplated in subsection (2) must –
(a)
state that proceedings will be
instituted in terms of subsection (1) for an order for the eviction
of the unlawful occupiers;
(b)
indicate on what date and at what
time the court will hear the proceedings;
(c)
set out the grounds for the proposed
eviction; and
(d)
state that the unlawful occupier is
entitled to appear before the court and defend the case and, where
necessary, has the right to
apply for legal aid.
”
46.
I suppose too that the City could approach
a court on behalf of a private landowner if it was properly
authorised to do so
qua
agent of the owner. But it seems, as I shall illustrate later,
that such an interpretation would probably be stretching the
purpose
and meaning of section 5 too generously.
47.
Notwithstanding these alternatives, in this
case the City expressly turned its face against any reliance on PIE
and proceeded to demolish
structures without any prior approach to
Court. It adopted this more expeditious and expedient course of
action because, as
the affidavits cited above show, it claimed that
PIE only applied to persons who occupied land in “
homes
”,
and that the structures of the occupiers in this case had not been on
the land for sufficient period of time for them to
be termed “
homes
”.
48.
Where then does the City otherwise acquire
the power to enter upon private land and demolish structures put up
by persons ostensibly
unlawfully on such land? I believe that
the point of departure is that, in terms of
Fedsure
[5]
:
“
[55]
There are a series of provisions in chap 10 [of the Interim
Constitution] itself which make it plain that a
local government’s
powers to act are limited to powers conferred by the Constitution or
laws of a competent authority.
For example, s174(3) provides
that:
‘
A local government shall be autonomous
and, within the limits prescribed by or under law, shall be entitled
to regulate its affairs.’
And s175(4) provides that:
‘
A local government shall have the power
to make by-laws not inconsistent with this Constitution or an Act of
Parliament or an applicable
provincial law.
’
[56]
These provisions imply that a local government may only act within
the powers lawfully conferred upon
it. There is nothing
startling in this proposition – it is a fundamental principle
of the rule of law, … recognised
widely, that the exercise of
public power is only legitimate where lawful. The rule of law –
to the extent at least that
it expresses this principle of legality –
is generally understood to be a fundamental principle of
constitutional law.
”
49.
The City says that in terms of sec 151(3)
of the Constitution (in the chapter which deals with local
government):
“
(3)
A municipality has the right to govern, on its own initiative, the
local government
affairs of its community, subject to national and
provincial legislation, as provided for in the Constitution.”
It will
be noted that this sub-section is in substance similar to sec 174(3)
of the Interim Constitution, which was discussed in
Fedsure.
50.
Then says the City, sec 152(1)(b), (c) and
(d) of the Constitution confirm that the objects of local government
include the provision
of services in a sustainable manner, the
promotion of social and economic development and the promotion of a
safe and healthy environment.
It goes on to aver that its
powers are delineated by sec 156(1) of the Constitution which gives
it the authority to administer local
government matters listed in
Schedule 4 Part B, Schedule 5 Part B and “
any
other matters assigned to it by national or provincial legislation.”
In addition, the City says that sec 156(5) grants it the right “
to
exercise any power concerning a matter reasonably necessary for, or
incidental to, the effective performance of its functions
.”
51.
While accepting that the control of
incursions by land invaders onto private land is not a matter falling
directly within the ambit
of local government matters as referred to
in the aforementioned two Schedules, the City argues that the
Constitutional Court has
accepted that government sometimes takes
lawful action for which no specific authority exists in legislation
but which is sourced
in the power to perform the general
constitutional duties imposed upon it. Reference is made
to cases such as
Kyalami Ridge
[6]
and
Modderklip
[7]
.
52.
I think
Modderklip
is a good example of circumstances in which the general duty of a
local authority to act reasonably and proactively in respect of
land
invasions was recognised by the Constitutional Court. In
approaching the role of the State (be it at national, provincial
or
municipal level) to the question of land invasions, Langa ACJ
reminded us of the historical context in which the question is
located:
“
[36]
The problem of homelessness is particularly acute in our society.
It is a direct consequence
of apartheid urban planning which sought
to exclude African people from urban areas, and enforced this vision
through policies regulating
access to land and housing which meant
that far too little land and too few houses were supplied to African
people. The painful consequences
of these policies are still with us
11 years into our new democracy, despite government’s attempts
to remedy them. The
frustration and helplessness suffered by
many who still struggle against heavy odds to meet the challenge
merely to survive and to
have shelter can never be underestimated.
The fact that poverty and homelessness still plague many South
Africans is
a painful reminder of the chasm that still needs to be
bridged before the constitutional ideal to establish a society based
on social
justice and improved quality of life for all citizens is
fully achieved.”
The
“
painful consequences
” referred to by Langa ACJ
have in no way been alleviated nine years later.
53.
As Langa ACJ stressed the State is the only
party that holds the key to the effective solution of homelessness:
“
[43]
The obligation on the State goes further than the mere provision of
the mechanisms and institutions referred
to above. It is also obliged
to take reasonable steps, where possible, to ensure that large-scale
disruptions in the social fabric
do not occur in the wake of the
execution of court orders, thus undermining the rule of law.
The precise nature of the State’s
obligation in any particular
case and in respect of any particular right will depend on what is
reasonable, regard being had to the
nature and the right or interest
that is at risk, as well as on the circumstances of each case.
[44]
…
[45]
It is unreasonable for a private entity such as
Modderklip
to
be forced to bear the burden which should be borne by the State, of
providing the occupiers with accommodation. Land invasions
of
this scale are a matter that threatens far more than the private
rights of a single property owner. Because of their capacity
to
be socially inflammatory, they have the potential to have serious
implications for stability and public peace. Failure by
the
State to act in an appropriate manner in the circumstances would
mean that
Modderklip
, and others similarly placed, could not
look upon the State and its organs to protect them from
invasions of their property.
That would be a recipe for
anarchy.”
54.
In the present case the City, as the
relevant organ of State, has purported to take on the role which the
Constitutional Court defined
for it in
Modderklip
.
Fully cognisant of its obligation to uphold the rule of law under sec
1(c) of the Constitution, the City has assumed a general
duty to act
reasonably and proactively, and to take appropriate measures to
prevent unlawful land invasions, and, as it were, to
nip the
situation in the bud – before it has had the opportunity to
blossom into a full-blown problem. Accordingly, it
justifies
its conduct primarily on that basis.
55.
Then, says the City, the control of land
invasions is incidental to its housing obligations contained in sec
26(1) and (2) of the
Constitution
[8]
.
While contending that the primary legislative responsibility for
housing rests with the national and provincial spheres of
government,
the City accepts that the responsibility therefor is assigned to it
under sec 9(1) of the Housing Act 107 of 1997 (“the
Housing
Act&rdquo
;) and sec 15(1) of the Western Cape Development Act, 6 of
1999 (“the Provincial
Housing Act&rdquo
;). It says that
these provisions place a broad responsibility on it to take all
reasonable and necessary steps within the framework
of national and
provincial legislation and policy to,
inter
alia
,
55.1
ensure that inhabitants in the City have adequate access to housing
on a progressive basis;
55.2
prevent unsanitary and unhealthy conditions of human habitation;
55.3
identify appropriate land for housing development;
55.4
plan and manage land usage in an orderly fashion; and
55.5
promote conflict resolution where this occurs in the process of
housing development.
56.
The City acknowledges that under the
Housing Act
[9
]
and the Provincial
Housing Act
[10
]
the national and provincial spheres of government are enjoined to
determine housing policy. However, following
Grootboom
[11]
,
where the Constitutional Court held that the Housing Code published
by the National Minister for Human Settlements had to include
provisions to ensure the availability of emergency housing when
required, Chapter 12 of the Housing Code, now allows municipalities
to seek funding for such projects from those other spheres of
government.
57.
Then, says the City, the Constitutional
Court in
Blue Moonlight
[12]
held that the obligations of municipalities to provide emergency
housing in the cases where evictions would result in homelessness
were not secondary to those of national and provincial government and
might require the local authority to fund emergency housing
out of
its own coffers:
“
[67]
Besides its entitlement to approach the province for assistance, the
City has both the power
and the duty to finance its own emergency
housing scheme. Local government must first consider whether it
is able to address
an emergency housing situation out of its own
means. The right to apply to the province for funds does not
preclude this.
The City has a duty to plan and budget
proactively for situations like that of the Occupiers.”
A
local authority’s resources are, of cause, not boundless and
what can be expected of it in discharging its
Blue
Moonlight
obligations by way of
emergency housing is ultimately a question of reasonableness.
[13]
58.
I agree with
Mr.
Katz SC
that the consequence of the
approach articulated above is that the City has a general duty to
plan for the progression of the right
to housing in an orderly and
systematic manner and that it must be permitted to plan and manage
land usage within its jurisdiction
with a free hand, subject of
course to applicable national and provincial legislation, policy
prescripts and directions of our Courts
where permitted.
59.
I accept also that should the
City allow invasions of private land to occur, it would only be a
matter of time before it would be
called upon to address the plight
of occupiers facing eviction from such land. It is, after all,
liable to be joined as a party
in such proceedings for precisely that
reason.
60.
Accordingly, to the extent that the
unlawful occupation of private land poses a fundamental threat to the
orderly planning and development
of available land by the City, and
the City has been asked to intervene, I am persuaded that the City is
enjoined to take all reasonable
steps available to it to prevent
unlawful incursions onto private land. The first legal
point is therefore decided in
favour of the City.
61.
I would add that the primary responsibility
for the protection of private property rests with the owner
[14]
and that party has access to the relief afforded by sections 4 and 5
of PIE. Yacoob J made the following observation
in this
regard in
Mkontwana
,
albeit in a different context
[15]
:
“
[59]
This unlawful occupation benefits neither the property nor the owner
and, in most cases,
is prejudicial to both. It is nevertheless the
duty of the owner to safeguard the property, to take reasonable steps
to ensure that
it is not unlawfully occupied and, if it is, to take
reasonable steps to ensure the eviction of the occupier. If the
owner
performs these duties diligently, unlawful occupiers will not,
in the ordinary course, remain on the property for a long period.
It is ordinarily not the municipality but the owner who has the power
to take steps to resolve a problem arising out of the unlawful
occupation of her property. It is accordingly not unreasonable
to expect the owner to bear the risk.”
62.
Whether a municipality can take the
pre-emptive steps referred to above of its own volition is not
something which has to be decided
in this matter since it is clear
that the City stepped in only after Ms. Fischer had asked for help to
deal with a problem with which
she manifestly could not cope.
This case is therefore limited to that situation.
WAS THE CITY BOUND TO OBSERVE PIE IN THIS CASE?
63.
This question requires an interpretation of
PIE in accordance with the contextual approach recently determined by
the Supreme Court
of Appeal in the
Natal
Pension Fund
case
[16]
:
“
[18]…The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the
words
used in a document, be it legislation, some other statutory
instrument,
or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the
document
as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document,
consideration
must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the
provision appears;
the apparent purpose to which it is directed and
the material known to those responsible for its production.
Where more than
one meaning is possible each possibility must be
weighed in the light of all these factors. The process is
objective, not subjective.
A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent purpose
of the document. Judges must
be alert to, and guard against, the temptation to substitute what
they regard as reasonable, sensible
or businesslike for the words
actually used. To do so in regard to a statute or
statutory instrument is to cross the
divide between interpretation
and legislation; in a contractual context it is to make a contract
for the parties other than the one
they in fact made. The
‘inevitable point of departure is the language of the provision
itself’ …read in
context and having regard to the
purpose of the provision and the background to the preparation and
production of the document.”
64.
In
Port
Elizabeth Municipality
[17]
Sachs J dealt at length with the origins of PIE and the relegation of
its predecessor, PISA
[18]
,
to the scrap heap of some of the apartheid era’s most obnoxious
legislation. As Sachs J observed, the use of PISA by
the
government of the day effectively criminalised the occupation of
land by “
squatters
”
and facilitated their speedy removal therefrom:
“
[9]
PISA was an integral part of a cluster of statutes that gave a
legal/administrative
imprimatur
to the usurpation and forced removal of black people from land and
compelled them to live in racially designated locations.
For
all black people, and for Africans in particular, dispossession was
nine-tenths of the law..residential segregation was the cornerstone
of the apartheid policy. This policy was aimed at
creating separate ‘countries’ for Africans within South
Africa…Through a combination of spatial apartheid, permit
systems and the creation of criminal offences, the [Native Urban
Areas Consolidation] Act strictly controlled the limited rights that
Africans had to reside in urban areas. People living outside
of
what were defined as native locations were regarded as squatters and,
under PISA, were expelled from the land on which they lived.
[10]
Differentiation on the basis of race was, accordingly, not only a
source of grave assaults
on the dignity of black people. It
resulted in the creation of large, well-established and affluent
white urban areas co-existing,
side by side, with crammed pockets of
impoverished and insecure black ones…The principles of
ownership in the Roman-Dutch
law then gave legitimation in an
apparently neutral and impartial way to the consequences of
manifestly racist and partial laws and
policies. In this
setting of State-induced inequality, the nominally race-free PISA
targeted black shack-dwellers with dramatically
harsh effect…
PISA, accordingly, gave the universal social
phenomenon of urbanisation…an intensely racialised South
African character.
Everywhere, the landless poor flocked to
urban areas in search of a better life. This population shift
was both a consequence
of and a threat to the policy of racial
segregation. PISA was to prevent and control what was referred
to as squatting on public
or private land by criminalising it and
providing for a simplified eviction process…The power to
enforce politically motivated,
legislatively sanctioned and
State-sponsored eviction and forced removals became a cornerstone of
apartheid land law…
This marked a major shift,
both quantitavely and qualitatively (politically). Evictions
could be sought by local government
and achieved by use of criminal
rather than civil law… It was against this background, and to
deal with these injustices,
that s26(3) of the Constitution was
adopted and new statutory arrangements made.”
65.
As Sachs J went on to
observe, PIE was adopted with the express intention of overcoming the
manifest abuses of the past and promoting
the new order promised in
s26:
“
[12]
PIE not only repealed PISA but, in a sense, inverted it: Squatting
was decriminalised and the eviction
process was made subject to a
number of requirements, some necessary to comply with certain demands
of the Bill of Rights.
The overlay between public and private
law continued, but in reverse fashion, with the name, character, tone
and context of the statute
being turned around. Thus, the first
part of the title of the new law emphasised a shift in thrust from
prevention of illegal
squatting to prevention of illegal eviction.
The former objective of reinforcing common-law remedies, while
reducing common-law
protections, was reversed so as to temper
common-law remedies with strong procedural and substantive
protections; and the overall
objective of facilitating the
displacement and relocation of poor and landless black people for
ideological purposes was replaced
by acknowledgement of the
necessitous quest for homes of victims of past racist policies.
While awaiting access to new housing
development programs, such
homeless people had to be treated with dignity and
respect.”
66.
The
constitutional right of illegal occupiers to due process in a court
of law before eviction from, and/or demolition of their homes
as
protected in s26(3), is given content to in the provisions of
PIE, which prescribes how effect is to be given to the right
of such
due process.
[19]
67.
As I have said, the
thrust of the City’s argument in this case is that PIE does not
apply because it did not destroy people’s
“
homes
”.
While there is reference to the word “
home
”
in the preamble to PIE, there is no further reference to the word in
the body of the Act. Rather, the mischief which
PIE is aimed at
addressing is to ensure due process in relation to evicting unlawful
occupiers from land, buildings or structures.
68.
The concepts relevant
to such due process are defined as follows in sec 1 of PIE:
68.1
“
evict
”
means to deprive a person of occupation of a building or structure,
or the land on which such building or structure is erected,
against
his or her will, and “
eviction
”
has a corresponding meaning.
68.2 “
building
or structure
” includes any hut, shack, tent or similar
structure or any other form of temporary or permanent dwelling or
shelter.
68.3 “
land
”
includes a portion of land; and
68.4
“
unlawful
occupier
”
means a person who occupies land without the express or tacit consent
of the owner or person in charge, or without any other
right in law
to occupy such land…
69.
The only sections of
PIE (other than the definition of “
evict
”)
in which the words “
building
or structure
”
are to be found are sections 6(1)(a) and 6(3)(a), which I have set
out above. Those sections pertain to local authority
activity,
such as that employed by the City in this case.
70.
The activity that PIE
proscribes without a court order under either of sections 4, 5 or 6,
is:
70.1 to deprive a person of the
occupation of,
70.2 either a building or structure
(including a hut, a shack, a tent or similar structure, whether
temporarily
or permanent), or the land on which such building or
structure is erected, in circumstances where,
70.3 the occupation of such building,
structure or land occurs without the consent of the owner or person
in charge
thereof.
71.
Applying that approach
to the instant case, the following emerges:
71.1 It is common cause that the
occupiers had no consent to be on the Fischer property;
71.2 It is not in dispute that on 7
and 8 January 2014 the City destroyed temporary structures falling
within the
definition of “
building or structure
”;
71.3 The only issue then is whether
the occupiers were deprived of occupation of the temporary
structures, or occupation
of the land on which these were erected.
72.
The argument of the
City based on the evidence which I have set out above, is that all
structures in which their demolition squad
found people or signs of
human habitation, were regarded as “
homes
”.
For this reason the ALIU did not demolish those temporary
structures.
73.
The City contends
further that those temporary structures that were vacant (in the
sense that there were no people found therein,
or that there were no
signs of human habitation therein such as furniture or personal
effects) were lawfully demolished since the
City did not regard such
structures as “
homes
”.
74.
In my view, the City’s
approach was fundamentally flawed. The question was
not
whether the
temporary structures were
homes
.
Rather, the question was whether those structures were
occupied
at the time that
they were demolished.
75.
The evidence presented
by the City suggests that it was ultimately left up to Dowman to
decide which structures were to be destroyed,
albeit that he was
instructed by his superiors as to how to go about his work.
Dowman explains in para 13 of his affidavit
what he did “
in
order to ascertain whether a structure constitutes someone’s
home
”.
This included
observing the state of completion of the structure, whether the
building materials used appeared to be new, whether
the surrounding
ground appeared to be undisturbed, and whether the structure housed
any furniture or personal effects.
76.
Dowman also refers to
certain standard operating procedures requiring members of the ALIU
not to demolish any structure which “
appears
to be occupied
”.
And, in the event of doubt, the preferred option was to
leave the structure standing. Pieterse on the other
hand says
that on 8 January 2014 he saw that structures which were marked with
an “X” were demolished. But he too
asserts that “
no
homes were dismantled”
on
the 8
th
of January 2014.
77.
As the papers
demonstrate, the City’s operation seems to have been somewhat
haphazard in that the evidence suggests both confusion
and a degree
of arbitrariness in the selection of targeted structures. This
is no doubt because the City’s officials
did not ask themselves
the correct question
viz
are these
unlawful
occupiers
?
78.
Had the City approached
the matter properly and contextually considered the provisions of
PIE, I am of the view that it would have
come to the conclusion that
none of the structures that were pulled down were being unlawfully
occupied under PIE. I say so
for the following reasons:
78.1 It is common cause, and
Mr.
Katz SC
accepted, that all of the structures demolished over the
two days in question were complete;
78.2 The fact that the structure had
reached the stage of its completion indicates an intention on the
part of the
builder thereof to take up residency therein.
Common sense tells one that poor people who invade another’s
land, do so
in the hope that they will be able to stay there and,
importantly, permanently so, because they will in all likelihood no
longer
have anywhere else to stay. Hence, the necessity to take all
of their worldly possessions with them when they move.
78.3 The fact that a particular
structure was empty when the City demolished it most certainly does
not lead to
the conclusion that it was unoccupied: the occupant
may have been at work, or have taken the children to the clinic or,
most
importantly, collecting his/her furniture and belongings
elsewhere to move them into the recently erected structure. The
alternatives
are limitless.
79.
At the very least
though, I would suggest that people effectively occupy the land upon
which an informal structure is erected (regardless
of its state of
completion) by virtue of the fact that the structure is located
thereon. I refer in this regard to the minority
judgment in
Ndhlovu
[20]
where Olivier JA discussed the meaning of “
unlawful
occupier
”
with focus on the word “
occupier
”:
“
[41]
The problem inherent in the expression ‘unlawful occupier’
is that it is latently capable
of two expositions. The verb
‘occupy’ can legitimately be used in two senses, viz,
firstly, ‘to hold possession
of … reside in; to stay
abide’; or, secondly, ‘to take possession of
(a place) by settling in it, or by
conquest” (see the
Shorter
Oxford Dictionary
sv ‘Occupy’). On the face of it, the words ‘a
person who occupies land without the express or tacit consent
of the
owner …’ means anyone who
now
continues in
occupation without the necessary consent irrespective of whether that
person originally took occupation of the land with
or without the
necessary consent. But the words can also refer to a specific
act, viz the taking of possession or occupation
without the necessary
consent.”
80.
The learned Judge of
Appeal also considered the Afrikaans text of PIE (which was the
unofficial text) and came to the following conclusion:
“
[42] …There is thus
an indication, in the Afrikaans text, that PIE was intended to apply
to the unlawful occupation of land
as a positive action, as in the
case of squatters taking
occupation
of land
, and
not to apply to defaulting ex-tenants and ex-mortgagors who simply
remain in unlawful occupation. (Emphasis added)
81.
Olivier JA
went on to observe that in
interpreting PIE courts had to move away from textual
interpretation. In an approach which preceded
the
Natal
Pension Fund
case
by almost a decade, the learned Judge of Appeal said the following:
“
[43]
The problem of ascertaining to which situations PIE applies is,
however, not capable
of a definite and final solution by a mere
textual interpretation of the definition itself. The answer is
to be found in broad,
context-sensitive to PIE (
sic
)
and its place in the constitutional and legislative framework of land
tenure laws.
[44] There
seems to be general agreement that PIE applies to the situation where
an informal
settler (a squatter) moves onto vacant land without any
right to do so and without the consent of the landowner or his/her
agent.
There are thousands, if not millions, of such squatters
in our country. They are usually unemployed, the poorest of the
poor,
and live with their families in self-erected tin, cardboard or
wooden shacks.”
82.
In my view, since the
fundamental principle of PIE is to afford a right to due process to
the most marginalised members of society
before being evicted from
another’s land, it does not serve the purpose of the
legislation to measure with “
intellectual
callipers
”,
as it were, how long the occupier has been on the land, or whether
there are factors indicating a possibility that the act
of occupation
has not been completed or that the person may perhaps have given up
occupation, before affording the right to judicial
oversight of the
process of eviction. If the structure is complete, the invasion
of the piece of land in question has taken
place, occupation has
occurred, and the provisions of PIE are applicable.
83.
I am accordingly of the
view that the second legal point is to be decided in favour of the
occupiers.
84.
In the event that I am
wrong in this approach, and that the question which ought to
have been asked was indeed whether the relevant
structures were
“
homes
”,
I am of the view that the position is no different for the City.
I say so for the reasons which follow.
85.
When considering the
type of structure which enjoys protection under sec 26(3) as a
“
home
”,
Sachs J remarked in
Port
Elizabeth Municipality
that the section:
“
[17] …Evinces
special constitutional regard for a person’s place of abode.
It acknowledges that a home is more
than just a shelter from the
elements. It is a zone of personal intimacy and family
security. Often, it will be the only
relatively secure space of
privacy and tranquillity in what (for poor people, in particular) is
a turbulent and hostile world.”
86.
In
Barnett
[21]
Brand J noted that while “
home
”
is a difficult concept to pin down, it contemplates an element of
“
regular
occupation coupled with some degree of permanence.”
87.
However, the facts of
that case are materially different to the present. The matter
concerned a group of relatively well-off,
“
literate
and sophisticated people”
who had unlawfully built a collection of rudimentary holiday cottages
on pristine State land along the Wild Coast in the Eastern
Cape.
They all had dwellings elsewhere from which they set out every time
they went to visit their cottages. When the
Government sought
an eviction order against them the occupiers relied,
inter
alia
, on the
protection of PIE which they said was applicable to their “
home
s”
on the Wild Coast, and argued that their eviction from these
structures was not fair in the circumstances.
88.
With reference to Sachs
J’s comments referred to in para 85 above, Brand JA
disposed of the PIE argument thus:
“
[40] His sentiments
cannot, in my view, apply to holiday cottages erected for holiday
purposes and visited occasionally over
weekends and during vacations,
albeit on a regular basis, by persons who have their habitual
dwellings elsewhere. Thus I conclude
that for purposes of PIE,
the cottages concerned cannot be said to be the defendants’
‘homes’. Their ‘homes’
are in
KwaZulu-Natal. Consequently I hold the view that PIE finds no
application.”
89.
On the facts before
him, Brand JA appears to have been satisfied that the cottages which
were temporarily occupied by the owners thereof
were not “
homes
”
under PIE because the occupants’ permanent places of residence
were elsewhere. It was this fact, rather than the
duration or
manner of occupancy of the cottages that persuaded the Court that the
structures were not homes covered by PIE.
Since the occupiers
of the cottages had ordinary places of residence elsewhere, their
rights to shelter would not be affected by
the demolition of the
unlawfully erected structures on the Wild Coast. Obviously in
those circumstances they did not require
nor deserve the protection
of PIE.
90.
Mr. Magardie
drew the Court’s attention to
an insightful article by Prof. Fox of Queens University in Belfast,
Northern Ireland, in the Journal
of Law and Society.
[22]
The abstract to the paper suggests that interdisciplinary research,
could provide a starting point for the development of a
more clearly
articulated socio-legal understanding of the meaning and value of
home to occupiers. The author points to:
“
The
centrality of home in human dealings, and the deep significance of
rights and obligations relating to home [which] renders the
lack of
rigorous analysis directed towards the formulation of a legal concept
of the value of home difficult to defend.”
The
author also points to the following observation by K.J. Gray and P.D.
Symes
[23]
:
“
All of us – even the
truly homeless – live somewhere, and each therefore
stands in some relation to land as
owner – occupier, tenant, licensee or squatter. In this
way land law impinges upon
a vast area of social orderings and
expectations, and exerts a fundamental influence upon the lifestyles
of ordinary people.”
91.
It is important
therefore to properly locate the concept of “
home
”
as it is contemplated in s26(3) of the Constitution for it is that
form of structure that may not be demolished without due
process.
Applying a contextual interpretation to the word “
home
”
in the section of the Constitution which deals with socio-economic
rights, I believe that the interpretation should be wide
rather than
restrictive. People with limited, if any, resources, such as
the occupiers in this case, have managed to scrape
together enough
money to buy the basic materials (wood, iron and plastic sheeting) to
erect the most basic of structures in which
they wish to live
peacefully would undoubtedly call those structures “
home
”.
92.
In
Rudolph
[24]
Selikowitz J had little hesitation in accepting that the rudimentary
structures erected in a city park (a public open space) in that
case
were the occupiers’ homes:
“
There
can be no doubt that the shelters erected by the respondents are
their homes. Indeed,
their
only homes
.
They reside with their families in these shelters and have nowhere
else to live.” (Emphasis added)
93.
In
Breedevallei
[25]
,
Bozalek J held that in determining what constituted a “
home
”
within the meaning of PIE, context was all important and that a
generous interpretation was warranted. In that matter,
a group
of people had unlawfully occupied part of a newly completed low-cost
housing project without permission for about 10 days.
In
finding that PIE was applicable the Court held as follows:
“
[19]…[The] context
in the present matter, insofar as it can be determined on the papers,
is that of people whose pre-existing
accommodation is completely
unsatisfactory, be it by reason of overcrowding or its
precariousness. It requires little imagination
to accept that
persons in these circumstances who, in the belief that they have some
claim thereto, occupy empty houses built by
a local authority for
persons such as themselves (but as yet officially unallocated) will,
without the elapse of much time in occupation,
consider such property
to be their ‘home’.
[20]…In regard to the degree of permanence of
such occupation, this can only be measured in relation to the ten day
period
between initial occupation and the challenge to their right of
occupation when the appellant launched the application on or about
13
January 2012. I can see no reason why, in this context, even
such a short period would not constitute the requisite degree
of
permanence.”
Then, somewhat presciently the Court went on to
speculate as follows:
“
It
would be a remarkable proposition if it were to be contended, for
example, that squatters who overnight make their home on unoccupied
land by erecting a make-shift shelter and who have no other fixed
abode could not claim the protection of PIE if the authorities
were
to immediately demolish such dwellings without a court order.
This was the case throughout much of the 1970’s and
the 1980’s
when so-called squatters migrated to Cape Town in large numbers and
on a daily basis had their flimsy shelters demolished
as described
above. It was against, and in the light of, this historical
background, replicated throughout the country over
decades, that
s26(3) of the Bill of Rights and PIE were enacted. In other words,
where a person’s housing circumstances are
dire, much less may
be required for such a person to establish a ‘home’ by
way of regular occupation and a degree of
permanence.”
94.
I find myself in
respectful agreement with the sentiments expressed by the learned
judges in both of these cases. In the present
matter it is not
so much the period of occupation of the property which renders PIE
applicable but the intention behind it.
Mr.
Katz SC
accepted
that all the structures that were demolished by the City were
completed when they were torn down. He sought justification
for
the legitimacy of the City’s conduct in the evidence of the
employees referred to earlier in this judgment. It was
only
those completed structures which were empty that were taken down, the
argument being that an empty structure was an unoccupied
structure
and the protection of PIE was therefore not required.
95.
In his affidavit
Hayward states baldly that such structures were “
not
yet homes
”
but unfortunately does not state what the basis for his conclusion
is. It could not have been just because they were
empty at the
time as, this could have been purely coincidental as I have already
demonstrated above.
96.
The affidavit of Nortje
shows that some structures which had been erected that day (or
overnight) were not demolished because they
were seen to be
occupied. Only vacant and unoccupied structures were apparently
removed. Clearly the short duration of
time that those
structures in which people were found to be present at the time that
the ALIU moved onto the land did not disqualify
those occupiers’
structures from being regarded as “
homes
”.
There is therefore no logical basis not to regard those completed,
but empty, structures as homes as well.
CONCLUDING REMARKS
97.
I am therefore
satisfied that the occupiers were deprived by the City of the
procedural right to be heard under PIE before their structures
were
so unceremoniously destroyed.
98.
I wish to make it very
clear that the granting of relief in this matter is most definitely
not to be interpreted as the approval by
the Court of the conduct of
the occupiers on 7 and 8 January 2014. Certainly the granting
of relief is no reward for their
behaviour which was unlawful from
the outset and unacceptable in a democratic state, which has
committed itself, through the provisions
of sec 26 of the
Constitution, to progressively advance the rights of our citizens to
have access to adequate housing. By taking
the law into their
own hands, the occupiers have undoubtedly compromised the orderly
advancement of those rights under s26.
99.
The task of the City in
discharging its constitutional obligations as a local authority in
the manner I have considered lawful in
terms of the first issue which
I have determined, is certainly a difficult one and there can be
little doubt that resources are limited.
The City must look
after the interests of its land-owners (who are after all valuable
ratepayers) when called upon to do so.
But then, the City must
ensure that it acts in accordance with the rule of law, which is the
bedrock of a constitutional state.
If it acts precipitously and
aggressively, it runs the risk that civil unrest may result as a
response to its actions. The
descent into anarchy will
seriously undermine the constitutional state.
100.
In granting the relief
set forth hereunder, I am of the view that both parties have asserted
the protection and/or advancement of
constitutional rights and
obligations. In addition, the City has achieved partial
success in relation to the issues argued.
In such circumstances, it
is appropriate that each party bears its own costs of suit.
ORDER OF COURT
A. The main application,
being the return date of the rule
nisi
issued in the
application for urgent interdictory relief by Binns-Ward J on 10
January 2014 is postponed for hearing on the semi-urgent
roll to
Thursday 22 May 2014.
B. The costs associated
with the main application are to stand over for later determination.
C. It is declared that the
conduct of the City of Cape Town in demolishing and/or dismantling
the informal
structures erected by the counter applicants at erf 150
(remaining extent) Phillipi, was unconstitutional and unlawful.
D. The Respondents in the
counter application are interdicted and restrained from evicting or
demolishing
any informal structures erected by the counter applicants
at erf 150 (remaining extent) Philippi without a valid court order.
E. The Respondents in the
counter application are interdicted and restrained from demolishing,
removing
or otherwise disposing of any informal structures, or the
constituent materials of such structures, erected by the counter
applicants
at erf 150 (remaining extent) Philippi.
F. The City of Cape Town
is directed to construct for those counter applicants whose informal
structures
were demolished on 7 and 8 January 2014, and who still
require them, temporary habitable dwellings that afford shelter,
privacy and
amenities at least equivalent to those that were
destroyed and which are capable of being dismantled, at the site at
which their
previous informal housing structures were demolished.
G. Each party will bear
its own costs of suit in regard to the counter application.
P.A.L.
GAMBLE, J
GAMBLE, J: 13 MARCH 2014
ORDER OF COURT
A. The main application,
being the return date of the rule
nisi
issued in the
application for urgent interdictory relief by Binns-Ward J on 10
January 2014 is postponed for hearing on the semi-urgent
roll to
Thursday 22 May 2014.
B. The costs associated
with the main application are to stand over for later determination.
C. It is declared that the
conduct of the City of Cape Town in demolishing and/or dismantling
the informal
structures erected by the counter applicants at erf 150
(remaining extent) Phillipi, was unconstitutional and unlawful.
D. The Respondents in the
counter application are interdicted and restrained from evicting or
demolishing
any informal structures erected by the counter applicants
at erf 150 (remaining extent) Philippi without a valid court order.
E. The Respondents in the
counter application are interdicted and restrained from demolishing,
removing
or otherwise disposing of any informal structures, or the
constituent materials of such structures, erected by the counter
applicants
at erf 150 (remaining extent) Philippi.
F. The City of Cape Town
is directed to construct for those counter applicants whose informal
structures
were demolished on 7 and 8 January 2014, and who still
require them, temporary habitable dwellings that afford shelter,
privacy and
amenities at least equivalent to those that were
destroyed and which are capable of being dismantled, at the site at
which their
previous informal housing structures were demolished.
G. Each party will bear
its own costs of suit in regard to the counter application.
P.A.L.
GAMBLE, J
[1]
The
Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act, 19 of 1998
, known by the acronym
“
PIE
”.
[2]
Ms. Fischer and the City were cited as
Respondents in the counter application
[3]
Wallach v Lew Geffen Estates CC
[1993] ZASCA 39
;
1993 (3) SA 258
(A) at 263A-H.
[4]
Plascon-Evans Paints (Pty) Limited v Van
Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984 (3)
SA 623
(A).
[5]
Fedsure Life Assurance Limited and Others v
Greater Johannesburg Transitional Metropolital Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at 399B-D.
[6]
Minister of Public Works v Kyalami Ridge
Environmental Association and Another
2001 (3) SA 1151 (CC)
[7]
President of the Republic of South Africa and
Another v Modderklip Boerdery (Pty) Ltd
2005 (5) SA 3 (CC).
[8]
S26(1)
Everyone has the right to have
access to adequate housing.
S26(2)
The state must take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of this right.
[9]
See
sec 3(2)(a)
and
7
(2)(a)
[10]
See
sec 3(2)(b)
[11]
Government of the Republic of South Africa and
Others v Grootboom
2001 (1) SA 46 (CC)
[12]
City of Johannesburg Metropolitan Municipality
v Blue Moonlight Properties 39 (Pty) Ltd and Another
2012 (2) SA 104
(CC) at para 57
[13]
Blue Moonlight
para 57.
[14]
Mkontwana v Nelson Mandela Metropolitan
Municipality and Another
2005 (1) SA
530
(CC) at para 59;
Modderklip
para 29.
[15]
The liability of a property owner for municipal
levies and charges, where the land has been occupied illegally.
[16]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) at
603F
[17]
Port Elizabeth Municipality v Various
Occupiers
2005 (1) SA 217 (CC)
[18]
The Prevention of IIlegal Squatting Act 52 of
1952
[19]
Cape Killarney Property Investments (Pty) Ltd
v Mahamba and Others
2001 (4) SA 1222
(SCA) at para 20
[20]
Ndhlovu v Ngcobo;
Bekker and Another v Jika
2003 (1) SA 113
(SCA) – a series of cases involving
mortgagors who refused to leave their properties after sales in
execution had taken
place and in respect of whom the applicability
of PIE was considered.
[21]
Barnett and Others v Minister of Land Affairs
and Others
2007 (6) SA 313
(SCA) at
para 38
[22]
Lorna Fox
, the
meaning of Home: a Chimerical Concept or a Legal Challenge, Journal
of Law and Society Volume 29 No. 4, December 2002.
[23]
Real Property and Real People
(1981 (4)
[24]
City of Cape Town v Rudolph and Others
2004 (5) SA 39
(C) at 59C-D
[25]
Breedevallei Munisipaliteit v Die Inwoners van
Erf 18184, Dikkopstraat 3, Avian Park, Worcester and 18 Others
[2012] ZAWCHC 390
(13 December 2012)