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[2015] ZAWCHC 176
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South African Families Association and Others v City of Cape Town and Others (5516/2015) [2015] ZAWCHC 176 (12 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: 5516/2015
DATE:
12 OCTOBER 2015
In
the matter between:
SOUTH
AFRICAN FAMILIES ASSOCIATION AND 21
OTHERS
.................................
Applicants
And
CITY
OF CAPE TOWN AND 3
OTHERS
........................................................................
Respondents
J
U D G M E N T
WEINKOVE,
AJ:
This
matter comes before me as a matter of urgency. It was originally
launched on 26 March 2015. I have heard argument from both
sides in
the matter. I propose to give a short judgment. The matter has been
heard as a matter of urgency and the papers are
prolix. As far as
the question of urgency is concerned, I am satisfied that the
applicant was entitled to move this application
as a matter of
urgency and AN ORDER IN TERMS OF PRAYER 1 OF THE NOTICE OF MOTION IS
GRANTED.
Insofar
as the prayer 2 of the notice of motion is concerned, I am satisfied
that the respondent did not comply with their statutory
obligations
in terms of the Constitution and did not engage the applicants’
in a general public and meaningful public participation
in respect of
their preference to establish the route known as the phase 2A
construction.
I
accordingly feel that the applicants’ are entitled to an order
in terms of prayer 2 of the notice of motion directing the
respondents’ to comply with their statutory obligations and to
engage the applicants’ in a general, public, meaningful
participation in regard to the implementation of the road
transportation plans for the area of Wynberg. It may mean that the
respondents’ will have to determine or be persuaded to use
another route, but that is a matter for negotiation between them
and
a public participation.
At
the end of the day, the respondent will have to make a decision in
this matter and that will have to comply with its statutory
obligations in making that decision. I THEREFORE GRANT AN ORDER IN
TERMS OF PRAYER 2 OF THE NOTICE OF MOTION. Insofar as prayer
3 is
concerned, the applicants’ ask that pending their compliance
with the statutory obligations for public participation,
the
respondent should be interdicted from enforcing the termination of
the lease agreements, from evicting or causing any of the
applicants’
to be evicted from their homes and from demolishing or causing to be
demolished the properties occupied by the
applicants’.
The
extent of this relief seems to me to be too extensive in certain
respects. I AM PREPARED TO GRANT AN INTERDICT ENFORCING THE
TERMINATION OF LEASES TO BE ONLY GIVEN ON NOTICE AND IN GIVING SUCH
NOTICE, THERE MUST BE STATUTORY COMPLIANCE WITH THE REQUIREMENTS
FOR
PUBLIC PARTICIPATION. SIMILARLY, BEFORE PROPERTIES ARE DEMOLISHED OR
CAUSED TO BE DEMOLISHED, THERE MUST BE COMPLIANCE WITH
STATUTORY
REQUIREMENTS IN REGARD TO PUBLIC PARTICIPATION.
As
far as evicting or causing to be evicted any applicants’ from
their homes, this is too a wide a claim in the sense that
it may be
necessary to evict certain applicants’ from their homes for
reasons other than in respect of the implementation
of the road
transportation for the plans for the area of Wynberg. I ACCORDINGLY
GRANT AN ORDER IN TERMS OF PRAYER 3 INCORPORATING
PRAYER 2 AND 3(4)
OF THE NOTICE OF MOTION.
As
far as the prayer 4 is concerned of the notice of motion, that is
reviewing and setting aside the decision to terminate the leases,
those decisions were taken and it would be moot for this Court to
make an order reviewing or setting aside those decisions. If
the
persons affected have any claims, they will have to bring them
separately, but THE RELIEF CLAIMED IN PRAYER 4 OF THE NOTICE
OF
MOTION IS NOT GRANTED. As far as prayer 5 is concerned, that is
declaring the demolition of the council owned properties to
have been
unlawful, again it is not possible to determine the factual
circumstances of these demolitions. Applicants’ contend
the
properties were demolished in order to frighten or coerce the tenants
affected by this property to vacate their homes.
The
respondent has said that those demolitions were affected because the
persons have been lawfully evicted from their homes and
the
properties were in a dilapidated state and constituted a danger and
that it was extremely costly to the Municipality to maintain
those
properties and keep them under security pending the determination as
to what is to finally occur with them.
I
accordingly do not believe that the papers in this matter establish
that the demolition of the properties was per se unlawful.
THERE IS
A DISPUTE OF FACT IN THIS RESPECT AND ON THESE PAPERS I CANNOT
RESOLVE THEM. As far as an order directing the respondents’
to
comply with their public participation obligations in regard to phase
2A of the tender is concerned, the respondents’
have indicated
that it is complying with that obligation, it has had participation
meetings with persons affected and that an application
of this nature
was not necessary. It is clear to me from the reading of these
papers that it was necessary to alert the respondent
to its
obligation to have public participation in respect of the design and
construction of phase 2 of the tender and that the
applicants’
were justified in bringing an application of this nature to point out
that these incidents of public participation
had not occurred.
It
was only after these papers were served and during the period of time
that the respondent was busy preparing a replying affidavit
that
meetings were held and public participation did occur. In that
respect, it is clear that applicants’ themselves participated
in those meetings that were held and it is clear to me that the
respondent must have realised that they were under an obligation
to
conduct meetings of this nature.
I
ACCORDINGLY GRANT AN ORDER IN TERMS OF PRAYER 6 OF THE NOTICE OF
MOTION. Finally as far as the question of costs is concerned,
applicants’ had been successful in obtaining relief and THE
RESPONDENT IS DIRECTED TO PAY THE COSTS OF THIS APPLICATION WHICH
COSTS SHALL INCLUDE WHERE APPLICABLE THE COSTS OF EMPLOYING TWO
COUNSEL.
WEINKOVE,
AJ