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[2006] ZAGPHC 21
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City of Johannesburg v Rand Properties (Pty) Limited and Others (10330/04 , 10331/04 , 10332/04 , 10333/04 , 24101/03 , 13835/04) [2006] ZAGPHC 21; 2007 (1) SA 78 (W); [2006] 2 All SA 240 (W); 2006 (6) BCLR 728 (W) (3 March 2006)
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IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
CASE NUMBERS: 04/10330; 04/10331;
04/10332; 04/10333; 03/24101; 04/13835
In the matter between:
THE CITY OF JOHANNESBURG Applicant
AND
RAND PROPERTIES (PTY) LIMITED
First Respondent
OCCUPIERS OF ERF 381,
BEREA TOWNSHIP
Second Respondent
MINISTER OF TRADE AND INDUSTRY
Third Respondent
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
Fourth Respondent
_______________________________________________________________
JUDGMENT
JAJBHAY J: INTRODUCTION
[1]
The consequences of rendering a person homeless in the circumstances postulated in this case have a very wide reach. It affects the very quality of a person’s life, dignity and a person’s freedom and security:
“To live in a place, and to have established one’s own personal habitat with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune
of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety,
protection from the elements and many other attributes of a shared humanity, has led the international community to recognise adequate
housing as a basic and fundamental human right.”
United Nations Housing Rights Programme, Report No 1, “Housing Rights Legislation:
Review of International and National Legal Instruments” (2002) at p1.
The right to housing as a basic human right has been expressed in
international and national human rights instruments
The right to adequate housing has been enunciated under Article 25(1) of the Universal
. Many States have Declaration of Human Rights. Article 11(1) of the ICESCR provides that “States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate… housing, and to the continuous improvement of living conditions.” Similar provisions on the right to adequate housing are contained in the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women, the Convention of the Rights of the Child, the International Convention on the Suppression and Punishment of the Crime of Apartheid, and the International Convention Relating to the Status of Refugees. The African Charter on Human and Peoples’ Rights makes no specific mention of the right to adequate housing. However, other provisions such as the right to life (Art.4) and to physical and mental health (Art.16) arguably provide a basis for the assertion of the right to housing. adopted and ratified these human rights; however their implementation still appears to present difficulties for homeless people. International human rights law stresses that all States, notwithstanding their level of economic
development, possess a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the international rights adopted. A minimum core requirement with respect to the right to adequate housing entails a State’s duty to immediately address the housing needs of its respective population, if any significant number of individuals are
deprived of basic shelter and housing. To do otherwise is considered a prima facie violation of the right to adequate housing.
[2] These applications have been consolidated and set down together. The Applicant seeks the eviction of over 300 people from 6 properties in the Johannesburg inner city. The Applicant seeks to justify their eviction by
invoking section 12(4)(b) of the National Building Regulations and Building
Standards Act 103 of 1977 (“the NBRA”)
“Demolition or alteration of certain buildings.- (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. (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 authorised 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. ability to exercise its statutory powers and duties to prevent dangerous living conditions in its area of jurisdiction. [3] The present matter incorporates the following applications:
The Joel Street Applications
Erf 381 Berea – City of Johannesburg v Rand Properties (Pty) Ltd and others (Case No:04/10330); Erf 377 Berea – City of Johannesburg v Rand Properties (Pty) Ltd and others (Case No: 04/10331); Erf 379 & Erf 380 Berea – City of Johannesburg v Rand Properties (Pty) Ltd and others (Case No: 04/10332); Erf 378 & Erf 279 Berea – City of Johannesburg v Rand Properties (Pty) Ltd and others (Case No: 04/10333). The 197 Main Street Application City of Johannesburg v Zinns Investment CC and others (Case No: 03/24101). The San Jose Application City of Johannesburg v Louw and others (Case No: 04/13835). THE ISSUES [4] In each of the above applications the Applicant seeks to exercise its
statutory powers in terms of the NBRA, as well as in terms of the
Health Act 63 of 1977
Section 20 of the Health Act 63 of 1977 imposes the following duties on the Applicant:
“20. Duties and powers of local authorities- (1)
Every local authority shall take all lawful, necessary and reasonably practicable measures-
(a)
to maintain its district at all times in a hygienic and clean condition;
(b) to prevent the occurrence within its district of: (i)
any nuisance;
(ii) any unhygienic condition;
and the Applicant’s fire by-laws.(iii) any offensive condition or (iv) any other condition which will or could be harmful or dangerous to the health of any person within its district or the district of any other local authority, or where a nuisance or condition referred to in sub paragraphs (i) to (iv), inclusive, has so occurred, to abate, or cause to be abated, such nuisance, or remedy, or cause to be remedied, such condition, as the case may be.”
[5]
The Applicant claims that it is entitled to secure
the “evacuation” of the
occupiers from the properties in terms of section 12(4)(b) of the NBRA and that doing so will serve the good of promoting public health
and safety and reversing inner city decay in terms of its Johannesburg Inner City Regeneration Strategy.
[6]
The essence of the Applicant’s resistance to the Respondents’ opposition and counter-application
is that if successful this would
“effectively put paid to the Applicant’s efforts to eradicate dangerous
living conditions.” The Applicant appeals to the Court “not to place a ‘stop’ sign on its difficult road to upliftment of the inner city.”
[7]
The provisions of section 12(1) and 12(4) of the NBRA provide for the
issuing of notices by the Applicant directing the demolition, alteration or evacuation of buildings in circumstances where the Applicant is of the opinion that the building is in such a state as to be dangerous or to show signs of becoming dangerous to life or property, or where it deems it necessary for the safety of any person. Section 12(5) prohibits the occupation of any building in respect of which a notice has been delivered, without the Applicant's written consent.
[8]
The provisions of the Fire Bylaws allow the chief fire officer to issue
notices to remedy firehazards identified on premises and empower the Applicants to take such steps as are necessary in the opinion of the chief fire officer to remove the risk or danger.
[9]
Section 20 of the Health Act directs the Applicant to take all lawful,
necessary and reasonably practicable measures to maintain its district at all times in a hygienic and clean condition and to prevent conditions that will or could be harmful or dangerous to the health of any person.
[10]
Each application is opposed on behalf of those occupying the relevant
building.
[11]
The opposition in each case entails:
11.1
a dispute
about the degree of safety or fitness of the building for human habitation;
11.2
a contention
that the Applicant is not able to invoke its Fire Bylaws or the provisions of the Health Act to obtain the relief sought;
11.3
a contention
that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) are applicable
to the exercise of the Applicant's powers in the instant case, that at least some of the occupiers are unlawful occupiers as defined
in terms of PIE and are therefore protected by its provisions, and that the application of the provisions of PIE, in particular the requirement concerning suitable alternative accommodation in section 6, leads to the conclusion that the relief sought would not be just and equitable in the circumstances;
11.4
a challenge
to the lawfulness of the administrative conduct in issue on the basis of a failure to afford the Respondents a fair hearing, and immediately approaching the court for relief;
11.5
a contention
that the occupiers' rights to access to adequate housing in terms of section 26 of the Constitution of the Republic of South Africa
Act 108 of 1996
Section 26 of the Constitution reads as follows-
Housing 26(1) Everyone has the right to have access to adequate housing. (2)
The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation
of this right.
would be unjustifiably violated if the relief sought were granted to the Applicant;(3) No one may be evicted from their home, or have their home demolished, without an order of Court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
11.6
a contention,
in the counter claim that certain of the provisions of section 12 of the NBRA are unconstitutional for violating the right not to
be arbitrarily evicted from one's home enshrined in section 26(3) of the Constitution and the right of equality enshrined in section
9 of the Constitution;
11. 7
a contention
that the Applicant has failed to fulfil its positive obligations towards the occupiers in terms of sections 26(1) and 26(2) of the
Constitution to achieve progressive realisation of the right to access to adequate housing, and a contention that this failure precludes
the Applicant from obtaining the relief it seeks;
[12]
The Respondents have instituted a counterapplication in which
it seeks the following relief;
12.1
reviewing and setting aside Applicant's decision in
each case to issue the relevant notice in terms of the NBRA;
12.2
declaring the practice of securing evictions by
reliance on the NBRA, the Health Act and the Fire Bylaws to be unconstitutional as violating sections 26(3) and 9 of the Constitution;
12.3 declaring section 12(4)(b), 12(5) and 12(6) of the
NBRA unconstitutional as violating sections 26(3) and 9 of the Constitution;
12.4 declaring that the Applicant's housing programme
fails to comply with the constitutional and statutory obligations of the Applicant in its failure to address the situation of those in desperate need;
12.5 declaring such failure to be a violation of section
26(1) and/or 26(2) of the Constitution;
12.6
interdicting the Applicant from seeking to evict the
relevant occupiers until suitable alternative
accommodation is provided to them; and
12.7 a structural interdict to procure compliance by the
Applicant with its positive obligations in terms of sections 26(1) and 26(2) of the Constitution towards the relevant occupiers. THE MATERIAL FACTS
[13]
In the present matter there are three different kinds of property at issue.
All the buildings are in urban and densely populated areas. [14] The Joel Street properties entail use of residential houses in the suburb of Berea. In each case the house has been internally partitioned to accommodate several families, and shacks have been erected in the
yard of the house. The Applicant regards them “as unfit for human
habitation, unsafe, a fire hazard that offers no room for escape and constituting a high risk of disease, particularly given the abundance of human waste.”
[15]
The San Jose building is a highrise building in Berea. According to the
Applicant “this building is without water and electricity supply and covered in human waste.” Open fires are made in a densely packed high rise environment “and all means of escape in case of fire have been blocked up by waste and materials.” The Applicant regards the conditions as unfit for human habitation and “extreme.”
[16]
The building at 197 Main Street is an erstwhile doublestorey retail building, the front of which still displays "Motorcycle Spares Centre". The top portion of this building has been gutted by fire, so that the first floor has no roof. The interior is covered with combustible
partitioning. Open fires are made. The Applicant regards the conditions as unfit for human habitation and “extreme.”
[17]
In each application, there is a dispute about the precise conditions of the
building. The disputes, in essence, concern the degree to which the building is unfit for human habitation, dangerous and unhygienic. [18] An inspection in loco was conducted where it appeared that the conditions, were in fact appalling and at times disgraceful, however far from the “extreme” conditions complained of by the Applicant. The Respondents can be classified as being in an emergency situation. I did
not observe any of the properties “covered in human waste”. It is clear
that the Respondents have attended to the cleaning and sanitising of the
buildings since the initial inspection . In each of the buildings there exists
fire and health risks. The building at 197 Main Street is already partially destroyed by fire. [19] The following facts are either not in dispute or alternatively are common cause. The properties are in an abysmal condition. Many occupiers on each property are illegal occupiers as contemplated in section 1 of PIE. Many of the occupiers on each property have been in occupation for a substantial period of time, some for as long as 10 years. The occupiers of the properties are desperately poor people. Most of the occupiers have no formal employment. In fact many of them have no income whatsoever.
[20]
The occupiers of the properties who earn some income do so by virtue of opportunities afforded by the
close proximity of the properties to the centre of Johannesburg. These include –
20.1
Informal trading;
20.2
Collecting scrap metal, paper and cardboard for sale to
recycling companies located in central Johannesburg;
and cleaning and doing other odd jobs in houses in Houghton, Yeoville and other inner city suburbs. 20.3
The livelihood strategies developed by the occupiers of
the properties depend crucially on living at a site in, or adjacent to, the inner city.
20.4
Relocation to an informal settlement or township outside
the inner city would destroy many of the livelihood
strategies developed by the occupiers of the properties. 20.5
Prior to taking its decisions to issue the notices in terms
of section 12(4)(b) of the NBRA in respect of each
property, the Applicant did not give the occupiers of the properties a hearing.
[21]
Prior to instituting the applications the Applicant did not approach the occupiers of the properties to discuss: how any steps to improve health or safety on the properties might be taken; or the question of suitable alternative accommodation for the occupiers of the properties. In addition, there is no suitable alternative accommodation available to the occupiers of the properties in the inner city.
[22] The Applicant contends that many buildings in the inner city are over crowded, and people within them live in conditions which are unacceptable from a health and safety perspective. The Applicant
concedes that the occupiers of these buildings are constrained by financial circumstances to pay for basic needs, let alone basic rental. The
Applicant in an affidavit that was submitted during the proceedings indicated that it has approved a model for affordable rental accommodation during December 2005. This model
has not been clearly designed. At this point in time all it does is that it articulates a good intention. This model does not cater for persons such as the Respondents. This affidavit deposed to by the acting city manager clearly manifests a realisation of the gravity of the problem.
[23]
The Applicant’s applications to secure the eviction of the occupiers from the properties are part
and parcel of its Inner City Regeneration Strategy which requires the shutting down of “bad” buildings or “sinkholes.”
The Applicant’s Inner City Regeneration Strategy will affect thousands of poor occupiers in the inner city in this way.
THE JOEL STREET APPLICATIONS
[24]
Mr du Plessis SC acting on behalf of the Applicant informed me during his submissions that the Applicant was satisfied that the Joel Street
properties did not constitute a health or safety risk at this point in time. The adverse conditions complained of in the founding
papers have been largely attended to and accordingly this matter should be postponed sine die. For the reasons that evolve in this judgment, I believe that I should not accede to this request. The exercise carried out on this property establishes that the occupants can maintain and comply with the necessary health and safety requirements if afforded
the assistance and co-operation.
THE APPLICATIONS AND COUNTER APPLICATIONS
[25]
In the present matter I intend dealing with the fundamental rights of access to adequate housing enshrined in section 26 of the Constitution, enjoyed by the Respondents in matters such as the present. Accordingly, and for the reasons that I have arrived at my conclusion, I do not deem it necessary to deal with any of the other prayers sought in
either the Applicant’s application or the Respondents’ counter application.
THE APPLICANT’S CONSTITUTIONAL AND STATUTORY OBLIGATIONS
[26]
The historical, social and political background highlighted in Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd
as well as in Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7; 2005 (1) SA 217 (CC)
,coupled with the relevant constitutional and legal provisions indicate that eviction is fundamentally a constitutional matter. The
historical, contextual approach to eviction under our new constitutional order has now been accepted unequivocally by the Constitutional Court.
Port Elizabeth Municipality above at paras 8-23 cited with approval in President of the RSA
In matters such as the present the municipalities’ constitutional duty, to promote a safe and healthy environmentv Modderkip Boerdery (Pty) Ltd 2005 (5) SA 3(CC) at paras 36, 55, 56.
Section 152(1)(d) of the Constitution- dealing with the objects of local government
towards the general public has to be reconciled with the State’s constitutional duty towards the poor and the destitute such as the present Respondents. The Constitution emphasises the
need for concrete and case-specific solutions.
[27]
In the decision of Government of the Republic of South Africa v Grootboom
2001(1) SA 46 (CC)
, the Constitutional Court demonstrated a new commitment to finding ways of enforcing the social and economic rights guaranteed in the Constitution. In so doing,
we have now moved away from an insistence on the mere rationality of state actions to a standard that requires the State and other relevant stake holders to act reasonably to fulfil their constitutional duties regarding social and economic rights.
[28]
In the Port Elizabeth Municipality case Sachs J emphasised that “(I)n sum, the Constitution imposes new obligations on the Courts concerning rights relating to property not previously recognised by
the common law. It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant right
not arbitrarily to be deprived of their home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people
in dire need of accommodation. The judicial function in these circumstances is not to establish a hierarchical arrangement between
the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be
dispossessed of their home, or vice versa. Rather, it is to balance out and reconcile the opposed claims in as just a manner as possible,
taking account of all the interests involved and the specific factors relevant in each particular case.”
Port Elizabeth Municipality supra at para [23]
The same may be said about the competing rights and obligations vis-a vis a municipality and occupiers such as the Respondents in the present matter.
[29]
In matters such as the present, the mere establishment by a municipality that occupation is unhealthy or unsafe does not automatically require a Court to make an eviction order. This merely triggers the Court’s discretion. The degree of emergency and desperation
of the people who have been living for many years in these squalid conditions will always have to be considered. Where occupiers have been occupying the buildings for some time, (such as in the present instance) has to be looked at with far greater sympathy than those who deliberately invade the buildings with a view to disrupting a housing
regeneration programme contemplated by a municipality.
[30]
Mokgoro J emphasised that section 26 of the Constitution must be seen as making a decisive break from the past. The Constitution emphasises the importance of adequate housing and in particular security of tenure in our new constitutional democracy. The indignity
suffered as a result of evictions from homes, forced removals and the relocation to land often wholly inadequate for housing needs
has to be replaced with a system in which “the State must strive to provide access to adequate housing for all and, where that exists, refrain from permitting people from being removed
unless it can be justified.”
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140 at para
The learned Justice emphasised in that case, that the underlying problem, is not about greed, wickedness or carelessness but poverty.
The same can be said here. “What is really a welfare problem gets converted into a property one. People at the lower end of the market are quadruply vulnerable:
they lack income and savings to pay for the necessities of life; they have poor prospects of raising loans, since their only asset
is a State-subsidised house; the consequences of inability to pay, under the law as its stands, can be drastic because they live
on the threshold of being cast back into the ranks of the homeless in informal settlements, with little chance of escape; and they
can easily find themselves at the mercy of conscienceless persons ready to abuse the law for purely selfish gain.”[29].
Jaftha supra at para 30.
[31]
Under the previous insensitive and oppressive order, the scope of evictions based on the stronger right to possession was exercised in an inhumane and arbitrary fashion. The State was
garbed with the power to remove people from land and property when State security, public health or the public interest demanded
and justified such callous action. Powers of this nature existed in different forms.
See AJ van der Walt “Exclusivity of ownership, security of tenure, and eviction orders: A
model to evaluate South African land reform legislation” 2002 TSAR; Compare AJ van der Walt “, Dancing with Codes- Protecting, developing, limiting and deconstructing property rights in the constitutional State” (2001)118 SALJ for a more detailed discussion. Apartheid land law was entrenched in over one hundred items of legislation. The most important of which, the Prevention of Illegal Squatting Act 52 of 1951 and the Group Areas Act 63 of 1966, criminalised the use and occupation of land on the basis of race: any one who occupied land designated for a different race group committed a crime. See also the Black Land Act 27 of 1913; Development Trust and Land Act 18 of 1936; Blacks (Urban areas) Consolidation Act 25 of 1945; Population Registration Act 30 of 1950; Prevention of Illegal Squatting Act 52 of 1951; Reservation of Separate Amenities Act 49 of 1953; Black (Prohibition of Interdicts ) Act 64 of 1956; Trespass Act 6 of 1959; Regulations for the Administration and control of townships in Black Areas 1962; Housing Act 4 of 1966; Slums Act 76 1979.
[32]
So for example, Vena v George Municipality
1987 Vol 4 SA 29 (C)
illustrates a situation where the local authority made use of the provision in the Act that considered occupiers as (unlawful squatters) if the structures they occupied, which were invariably self built shacks did not comply with building regulations. Informal housing of this nature never complied with the regulations,
and thus the local authorities were allowed to evict and remove the occupiers at will. [33] The Prevention of Illegal Squatting Act obliged land owners to evict “unlawful squatters” from their land. This promoted a political agenda of the apartheid regime by introducing a vague and wide ranging definition of “unlawful squatting”. It also granted draconian powers of eviction and forced removal to state owners, land owners and the police, and ousted the Court’s jurisdiction to review these actions.
Section 3(B) 4 (a) of the Prevention of Illegal Squatting Act is a notorious example; and the
Blacks (Prohibition of Interdicts) Act prohibited Black persons from obtaining an interdict to prevent or terminate state action under certain laws specified by proclamation in the Government Gazette. [34] Thus, the regulation and movement of human beings in the inner city inter alia was differentiated on the basis of race. Those affected almost in all instances by the oppressive legislation were African people. This constituted a source of grave assault on the dignity of Black people. “It resulted in the creation of a large, well-established and affluent white urban areas co-existing side by side, with crammed pockets of impoverished and insecure black ones. “
Port Elizabeth supra at para [10], Pretoria City Council v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC); Van
der Walt “Exclusivity of ownership, security of tenure, and eviction orders: a model to evaluate South African land reform legislation” 2002 TSAR 254 at 258, quoted with ‘ approval by Olivier JA in Ndlovu v Ngcovo; Bekker and Another v Jaika 2003 (1) SA 113 SCA [35] Sachs J in the Port Elizabeth Municipality case explains that “PISA, accordingly, gave the universal social phenomenon of urbanisation and 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 powers to enforce politically motivated, legislatively sanctioned and State sponsored eviction and forced removals became a corner stone of apartheid land law. This marked a major shift, both quantitatively 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 section 26(3) of the Constitution was adopted and new statutory arrangements made.”
Port Elizabeth Municipality supra at para [10].
[36] Whilst it is not necessary for me to deal with the constitutionality of section 12(4)(b) of the NBRA, for the reasons that I have already explained, I must pause to State that this section must be read as if “subject to section 26(3) of the Constitution”. In other words the Applicant cannot be allowed to arbitrarily “evacuate” occupiers such as the Respondents without engaging in the due process. This was correctly conceded by Mr du Plessis SC on behalf of the Applicant. The procedure suggested by Mr du Plessis SC in respect of notices afforded in terms of the NBRA will have to be tested in the ordinary motion court. The procedure envisages a three part process: Part A: gives a notice for consultation; Part B: Relies on section12(4)(b) of the NBRA; Part C: Requires a Court to evict an occupier in the absence of an agreement. I do not believe that it is necessary for me to pronounce on the validity of the suggested procedure at this point. However I am encouraged by the pursuance of a consultative process.
[37]
Section 26(3) of the Constitution prohibits eviction from and demolishing of homes without a court order. This constitutional principle has been
introduced in a range of reform laws that specify the qualifications for allowing evictions and the requirements for carrying them
out lawfully.
The Rental Housing Act 50 of 1999 protects the occupation rights of lawful occupiers of
rural and urban residential property; the Land Reform (Labour Tenants) Act 3 of 1996 protects lawful occupiers of agricultural land; the Extension of Security of Tenure Act 62 of 1997 protects the occupation rights of persons who lawfully occupy rural land with consent of the land owner; the Interim Protection of Informal Land Rights Act 31 of 1996 protects lawful occupiers of rural and urban land in terms of informal land rights; and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 regulates the eviction of unlawful occupiers. [38] Sachs J in the Port Elizabeth Municipality case emphasised “that a third aspect of section 26(3) is the emphasis it places on the need to seek concrete and case specific solutions to the difficult problems that arise. Absent the historical background outlined above, the statement in the Constitution that the courts must do what courts are normally expected to do namely, take all relevant factors into account would appear otiose (superfluous) even odd. Its use in section 26(3) however, serves a clear constitutional purpose. It is there precisely to underline how non prescriptive the provision is intended to be. The way in which the courts are to manage the process has, accordingly, been left as wide open as constitutional language could achieve, by design and not by accident, by deliberate purpose and not by omission.”
Ad para 22; Port Elizabeth Municipality v Peoples Dialogue on land on shelter 2002(2) SA
Our Constitution imposes an obligation on these courts in matters such as the present to balance out and reconcile the opposing claims
in a just manner, taking account of all the interests involved and the specific factors relevant in each particular case. 1074 (SE).
[39]
The Housing Act was promulgated in order to give effect to the State’s positive obligations in terms of section 26 of the Constitution. The Preamble records that –
“In terms of section 26 of the Constitution of the Republic of South Africa, 1996, everyone has the right to have access to adequate housing, and the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of
this right.”
[40]
The Housing Act imposes specific obligations on local government in this regard. Section 9 requires every municipality to take all reasonable and necessary steps within the framework of national and provincial housing legislation
and policy to: ensure that the inhabitants of its area of jurisdiction
have access to adequate housing on a progressive basis;
Section 9(1) (a) (i).
set housing delivery goals in respect of its area of jurisdiction; identify and designate land for housing development;
ensure that conditions not conducive to the health and safety of the inhabitants of its area of jurisdiction are prevented or removed;
create and maintain a public environment conducive to housing development which is financially and socially viable;
promote the resolution of conflicts arising in the housing development process;
and initiate, plan, co-ordinate, facilitate, promote and enable appropriate housing development in its area of jurisdiction.
[41]
In terms of section 2 of the Housing Act>, municipalities must perform the above functions in a manner which: gives priority to the needs of the poor in respect of housing development;
involves meaningful consultation with individuals and
communities affected by housing development;
ensures that housing development is economically, fiscally, socially and financially affordable and sustainable;
and ensures that housing development is administered in a transparent, accountable and equitable manner and upholds the practice of good governance.
THE EMERGENCY HOUSING PROGRAMME
[42]
In terms of the National Housing Code, a “Programme for Housing Assistance in Emergency Housing Circumstances,” was adopted in terms of the Housing Act, (“the Emergency Housing Programme”) and was a direct response to Grootboom’s ruling that the State’s positive obligations in terms of section 26 of the Constitution include an obligation to provide temporary relief for
persons in crisis or in a desperate situation -
“The Grootboom judgment suggested that a reasonable part of the national budget be devoted to providing relief for those in
desperate need. Consequently, this Programme is instituted in terms of section 3(4)(g) of the Housing Act, 1997, and will be referred to as the National Housing Programme for Housing Assistance in Emergency Housing Circumstances. Essentially,
the objective is to provide temporary relief to people in urban and rural areas who find themselves in emergencies as defined and
described in this Chapter.”
National Department of Housing. The National Housing Programme: Housing assistance in
emergency circumstances; policy prescripts and implementation guidelines (April 2004- Final version) pg 5.
[43]
Clause 12.3.1 of the Emergency Housing Programme defines an emergency as, inter alia, a situation where –
“the affected persons are, owing to circumstances beyond their control, evicted or threatened with imminent eviction from land
or unsafe buildings, or situations where pro-active steps ought to be taken to forestall such consequences or whose homes are demolished
or threatened with imminent demolition, or situations where pro-active steps ought to be taken to forestall such consequences.”
[44]
The Programme makes funding available from the Provincial Departments of Housing for emergency housing assistance.
[45]
The Programme requires municipalities to investigate and assess the emergency housing need in their areas
of jurisdiction and to “plan pro-actively” therefore. Where an emergency housing need is foreseen municipalities must apply to the relevant Provincial Department of Housing for funding
for the necessary assistance. After approval by the MEC of the relevant Provincial Department of Housing, the funding is made available
to the municipality for direct implementation of the assistance. In terms of the Programme the Provincial Department of Housing may
provide support to ensure the successful implementation of the assistance.
[46]
While the Programme is flexible in order to cater for diverse situations, it does lay down certain minimum
standards. It requires that water and sanitation be provided and that the floor area of a temporary shelter be at least 24 metres
squared. Notably an amount of R23 892.00, including VAT, may be made available to municipalities, per grant.
[47] In the present matter it is palpably clear that the municipality does not have such a Programme in place. In terms of the National Housing Programme and in particular the housing assistance in emergency housing circumstances rules have been determined for emergency housing circumstances. These rules relate to the assistance to people who, for reasons beyond their control, find themselves in an emergency housing situation such as the fact that their existing shelter has been destroyed or damaged, their prevailing situation poses an immediate threat to their life, health and safety, or they have been evicted, or face the threat of imminent eviction. In terms of this Programme, the municipality can provide funds to give effect to accelerated land development, the provision of basic municipal engineering services and shelter. The supplementary affidavit introduced during the hearing, constitutes a disingenuous attempt to place a disorientated view of the intended Programme. This is simply not sufficient. The Applicant fails to explain whether it attempted to provide any basic municipal engineering services in these buildings. The Applicant has not engaged in any form of constructive consultation with any of the Respondents. The Applicant does not explain what proactive steps if any were taken to forestall the imminent eviction from the unsafe buildings. The Applicant has allowed the destitution to exacerbate. CONSTITUTIONAL ANALYSIS
[48]
The plight of the Respondents has been documented by the Centre on Housing Rights and Evictions.
Centre on Housing Rights and Evictions: Any room for the poor? Forced evictions in
Johannesburg, South Africa (8 March 2005). This document captures the extent and nature of the problem. The report provides a snapshot of the lives of people in Johannesburg’s inner city buildings and informal settlements. The report further expresses the concern that there is a disjuncture between the law and practice, which is neither socially sustainable nor legally permissible. It states that the city sees informal settlements and inner city slums as blights to be eliminated, in its quest to package Johannesburg as an “African world class city”. According to the report this results in human rights violations, and further suffering for large numbers of people who are already locked in a desperate struggle for survival. [49] Housing forms an indispensable part of ensuring human dignity. “Adequate housing” encompasses more than just the four walls of a room and roof over one’s head. Housing is essential for normal healthy living. It fulfils deep-seated psychological needs for privacy and personal space; physical needs for security and protection from inclement weather; and social needs for basic gathering points where important relationships are forged and nurtured. In many societies a house also serves an important function as an economic centre where essential commercial activities are performed. Our Constitution provides for justiciability of the Bill of Rights, including the right to adequate housing. It expressly confers legal standing to aggrieved persons and their representatives to approach the courts to enforce their rights. [50] In matters such as the present, the State’s obligation vis-a-vis the right to adequate housing should not be misunderstood. The right to adequate housing does not mean that the State is required to build housing for the entire population, or that housing should be provided free of charge to the populace, or even that this right will manifest itself in the same manner in all places at all times. Rather, recognition of the right to housing by a State means: the State undertakes to endeavour by appropriate means to ensure that everyone has access to affordable and acceptable housing; the State will undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right to housing; the State will protect and improve houses and neighbourhoods rather than damage or destroy them.
[51]
The decision in Grootboom
2001(1) SA 46 (CC); Pierre de Vos: “Grootboom, the right of access to housing and
confirms that the Bill of Rights is a transformative document which is aimed at achieving a society where people will be able to
live their lives in dignity, free from poverty, disease and hunger. Our Constitution encompasses a transformative provision. As such,
the State cannot be a passive bystander in shaping the society in which individuals can fully enjoy their rights. The Grootboom judgment confirms that the full transformative power of the rights in the Bill of Rights will only be realised when they are interpreted
with reference to the specific social and economic context prevalent in the country as a whole, and the social and economic context within which the Applicant now finds itself in particular. There are vast social and economic inequalities between different groups that leave many people extremely
vulnerable and even desperate, far removed from the ideal of a life lived in dignity and respect. This approach acknowledges that
people cannot live with a semblance of human dignity and cannot fulfil their full potential as human beings where structural inequality
prevails and where the State fails to take steps to address such structural inequality and its causes. substantive equality as contextual fairness” (2001) 17 SAJHR 258.
Pierre de Vos supra at page 268.
In matters such as the present the State must address the special needs of the most vulnerable sections of society. Here, in an instance
where the average income of the Respondents amounts to R500.00, the Applicant cannot offer a home which would cost R600.00 to rent. The State’s extensive housing programme, instituted through both legislative, and other measures, is laudable. However the Applicant in its turn fails to provide in any way for those people in desperate need who find themselves in a crisis situation. [52] The fact that section 26 of the Constitution creates a right that can be enforced by individuals does not in effect mean that these individuals have a right to claim access to shelter or housing on demand. The positive component of the right of access to adequate housing therefore, places a duty on the State to take steps to address the housing needs of the Respondents. The failure by the Applicant to take adequate steps to achieve this goal constitutes a failure to engage meaningfully with the transformative vision of the Constitution. Here, no appropriate steps have been taken to meaningfully achieve this comparative. [53] A case alleging failure on the part of the Applicant to substantively fulfil its obligations in terms of section 26 of the Constitution will stand or fall on the question whether the Applicant acted reasonably or not. I have already indicated that notwithstanding the adoption of the Emergency Housing Programme; the Applicant has failed in the pragmatic implementation of this programme. In implementing the policy the Applicant must target those who can afford to pay for housing and those who cannot. The poor are particularly vulnerable and their needs do require special attention. A Programme must be balanced and flexible and make appropriate provision for attention to housing prices and to short, medium and long term needs. A Programme that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the Programme will require continuous review.
Grootboom para [43]; section 26(2) of the Constitution.
[54] The Constitution requires everyone to be treated with equal care. This means that the actions of the State could be construed as unreasonable if they fail to respond to the needs of the most desperate and vulnerable individuals in society. The right of access to adequate housing includes a duty on the State as well as other relevant players (such as the Applicant) to respect the access to housing (albeit inadequate) of those who presently enjoy it. It also entails a duty to work towards realising the vision of a future in which persons such as the Respondents are not treated equally merely in a formal manner, but one in which they are treated with equal concern and respect. The Applicant cannot simply wish the Respondents rights away in preference to its inner city project.
In the above paragraphs reference has been made to “the State”. The State has developed
a National Housing Programme. My reference to “the State” is directed to the municipality in the present matter. Section 7(2) of the Constitution obliges the State to respect, protect, promote and fulfil the rights in the Bill of Rights. Section 8 of the Constitution states that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of State. The Constitution defines the term organ of State to include the national, provincial and local spheres of government (section 239).
THE RESPONDENTS’ PREDICAMENT
[55]
In these applications the Applicant seeks to exercise its statutory powers in terms of the NBRA, as well
as in terms of the Health Act 63 of 1977 and the Applicant’s fire by-laws, to “procure the evacuation of buildings which it deems dangerous for the occupants to live in.” The Applicant claims that it is entitled to secure the “evacuation” of the occupiers from the properties in terms of
section 12(4)(b) of the NBRA and that doing so will serve the good of promoting public health and safety and reversing inner city decay in terms of its Johannesburg Inner City Regeneration Strategy.
[56]
The Respondents do not dispute that the Applicant is entitled – and obliged – to eradicate dangerous
living conditions within its area of jurisdiction. Nor do the Respondents dispute that the Applicant is entitled to pursue the regeneration
of the Johannesburg inner city. Indeed the Respondents recognise that this is a necessary and noble endeavour.
[57]
As I have already indicated, the Applicant is obliged to take reasonable steps to progressively realise
the right of access to adequate housing of all within its area of jurisdiction. Here, the occupiers of the properties are desperately poor people. However unsatisfactory their circumstances may be, they at least have
secure shelter from the elements. They also have access to water either on the properties themselves or from sources nearby. The
Applicant has no plan to enable the occupiers to find homes elsewhere. If they are evicted in the present circumstances they will
accordingly lose their protection from the elements and literally be rendered homeless. They will also lose their access to water.
The eviction of the occupiers from their current unsafe accommodation will leave them far worse off – they will be without any accommodation at all. The Constitutional Court stated in Port Elizabeth Municipality v Various Occupiers;
“It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate
quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the right-based vision
of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor
to the basic elements of a decent existence.”
At para [18].
[58]
The Respondents do not suggest that the Applicant does not have obligations in relation to health and safety.
It does. The Applicant is not entitled to seek to fulfil these obligations in a manner which breaches other obligations. Nor is the
Applicant entitled to choose to fulfil some obligations and not others.
[59]
The fundamental point is that the Applicant may not exercise its powers and perform its functions and duties
in relation to health and safety in a manner which will violate the Respondents’ constitutionally guaranteed rights –
in particular the right of access to housing, protection against arbitrary eviction and the right to dignity. This is especially
so where the Applicant has failed in its constitutional duty to provide any alternative adequate accommodation.
[60]
The lack of alternative adequate accommodation provided by the Applicant (whether safe or otherwise), has given birth to the Respondents predicament to use their own resources to find the accommodation which they presently occupy. The Applicant now seeks to take this away from them.
[61]
Towards the end of the hearing counsel for the Applicant suggested that I should consider an order in terms
whereof the Respondents are evicted, but the implementation of the order should be suspended. In reality, this submission captures
the predicament of the Applicant. It finds itself in an invidious position. However, the future plight of the Respondents coupled
with the inner city regeneration programme and the fate of the protagonist is in the hands of the Applicant. I have already clarified that a national housing plan is in place. It is for the Applicant to secure the necessary resources and assistance from national government
as well as provincial government to deal with the current crisis situation. This must be attended to with a measure of urgency; however in a co-ordinated and coherent fashion. This would include engaging in constructive dialogue with the Respondents. In the interim, the responsibility for securing and cleaning
the inner city, which includes the buildings referred to in this application lies with the Applicant. The Joel Street dispute provides a classic example where the residents and the Applicant can improve their respective lots in a mutually constructive
fashion.
[62] Our Constitution requires a court in matters such as the present to weave the elements of humanity and compassion within the fabric of the formal structures of the law. It calls upon us to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern.
Port Elizabeth Municipality supra at para [37]
Our Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that
part of the past which is disgracefully racist, authoritarian, insular and repressive, and vigorous identification of and commitment
to a democratic, universalistic, caring and aspirationally egalitarian ethos.
Mahomed J in S v Makwanyane and Another 1995(3) SA 391 CC
This statement articulates a spirit of ubuntu, which is part of the deep cultural heritage of the majority of the population.
Mokgoro J has explained: “Generally, ubuntu translates as “humanness”. In its most
fundamental sense it translates as personhood and “morality”. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to the basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation. In South Africa ubuntu has become a notion with particular resonance in the building of a democracy. “ [63] In South Africa the culture of ubuntu is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity in the interests of building, maintaining and strengthening the community. Ubuntu speaks to our inter-connectedness, our common humanity and the responsibility to each that flows from our connection. This in turn must be interpreted to mean that in the establishment of our constitutional values we must not allow urbanisation and the accumulation of wealth and material possessions to rob us of our warmth, hospitality and genuine interests in each other as human beings. Ubuntu is a culture which places some emphasis on the commonality and on the interdependence of the members of the community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community, that such a person may be apart of. In South Africa, ubuntu must become a notion with particular resonance in the building of our constitutional democracy. [64] The absence of adequate housing for the Respondents and any subsequent eviction, will drive them in a vicious circle, to the depravation of their employment, their livelihood, and therefore their right to dignity, perhaps even their right to life. The right to work is one of the most precious liberties that an individual possesses. An individual has as much right to work as the individual has to live, to be free and to own property. To work means to eat and consequently to live. This constitutes an encompassing view of humanity. The Applicant’s suggestion that the Respondents be relocated to an informal settlement flies in the face of the concept that a “person is a person through persons” (Ubuntu). Recent experience has shown that this alternative is fundamentally skewed. Occupiers of shacks in these informal settlements have not only lost their possessions through floods and fire but also their lives.
SUMMARY AND CONCLUSION
[65]
The facts of the present matter reflect the plight of thousands of people living in the inner city, in deplorable and inhuman conditions.
Our Constitution obliges the State to act positively to ameliorate these conditions. These obligations have been, and continue to be designed at a macro level. We now require a coherent plan and the implementation of this plan at the micro level. The obligation is to provide access to adequate housing to those unable to support themselves and their dependants.
See Grootboom at para [93].
[66]
The Applicant must foster conditions to enable the Respondents to have access to adequate housing in the inner city. The sole criteria for living
in the inner city should not depend on affordability or the size of one’s pocket. The values that our Constitution and the various legislative instruments espouse must be taken into account when considering the relevant criteria.
[67] In the light of the above conclusions, it is proper to make a declaratory order. The order requires a pronouncement on the Applicant’s failure to comply with its constitutional and statutory obligations with particular regard to the Respondents. The order further requires that the Applicant be interdicted from evacuating the Respondents, until such time that the Applicant has developed a pragmatic, constructive and coherent programme that will deal with the predicament that the Respondents presently have to endure. The programme must also provide for alternate adequate accommodation for the Respondents.
ORDER:
1.
It is declared that the housing programme of the Applicant fails to comply with the constitutional
and statutory obligations of the Applicant. The Applicant has failed to provide suitable relief for people in the inner city of Johannesburg who are in a crisis situation or otherwise in desperate need of accommodation;
2.
The Applicant has failed to give adequate priority and resources to people in the inner city of Johannesburg who are in a crisis situation or otherwise in desperate need of accommodation.
3.
The Applicant is directed to devise and implement within its available resources a comprehensive and co-ordinated programme to progressively
realise the right to adequate housing to people in the inner city of Johannesburg who are in a crisis situation or otherwise in desperate need of accommodation.
4.
Pending the implementation of the programme referred to in paragraph 3 above, alternatively until such time as suitable adequate accommodation is provided to the Respondents, the Applicant is interdicted from evicting or seeking to evict the current Respondents from the properties in this application.
5.
In the circumstances the application is dismissed with costs, including the costs occasioned by the employment of two counsel.
________________________
JAJBHAY J
Judge of the High Court of
South Africa DATES OF HEARING: 6, 7, 8 February 2006 DATE OF JUDGMENT: 3rd March 2006
Counsel for the Applicant
Advocate F du Plessis SC,
together with Advocate F
Snyckers, instructed by Moodie and Robertson. Counsel for the Respondents Advocate P Kennedy SC together with Advocate H
Barnes, Adv G Goedhart and Adv D
Mashingo instructed by the WITS Law Clinic and Webber Wentzel Bowens.
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