IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC Case no: CCT 22/08
CPD Case no: 13189/07
In the matter between:
VARIOUS OCCUPANTS
Applicants
and
THUBELISHA HOMES
MINISTER OF HOUSING
MINISTER OF LOCAL GOVERNMENT
AND HOUSING, WESTERN CAPE
First Respondent
Second Respondent
Third Respondent
______________________________________________________________
HEADS OF ARGUMENT ON BEHALF OF THE RESIDENTS
REPRESENTED BY THE TASK TEAM
______________________________________________________________
Page 2
TABLE OF CONTENTS
INTRODUCTION
3
The parties
3
The nature of these proceedings
3
The course of the proceedings
7
The main submissions of residents represented by the Task Team 10
The review of the land availability agreements
12
PART 2:
JUSTICE
A CONSTITUTIONAL MATTER, AND THE INTERESTS OF
14
A constitutional matter
Interests of justice
14
15
PART 2: THE RESIDENTS ARE NOT UNLAWFUL OCCUPIERS, AND THE
PIE ACT IS THEREFORE NOT APPLICABLE
17
The definition of unlawful occupier
The facts with regard to consent
The Rademeyer case
Conclusion on the facts
The legal nature of the residents’ right to occupation
Good cause for termination
Reasonable notice of termination
PART 3: LEGITIMATE EXPECTATION
Introduction
The factual foundation
The promises
The reality
The contractual documents
Ws the expectation legitimate?
Substantive legitimate expectation
Procedural legitimate expectation
The finding of the Court a quo
Relief sought
PART 4: JUST AND EQUITABLE; THE PUBLIC INTEREST
Legitimate expectation
The consequences of eviction
19
21
29
32
36
39
40
45
45
46
46
50
53
55
58
61
62
64
67
68
71
Page 3
INTRODUCTION
The parties
1.
The Applicants are the residents of a settlement known as Joe Slovo,
which is situated alongside the N2 in Cape Town, in the area between
Langa and the N2. The settlement was first established about 15 years
ago. There are approximately 18 000 to 20 000 persons living in 4 500
informal dwellings in the area. We refer to them as “the residents”.
2.
The Respondents are the following:
2.1
The First Respondent, Thubelisha Homes (“Thubelisha”) is a
company established by the government to undertake various of
its housing functions.
It is a national public entity listed in
Schedule 3 Part A of the Public Finance Management Act 1 of
1999.
It is the agency responsible for implementing the N2
Gateway Project, which is a major housing project initiated by
the government.
2.2
The Second Respondent is the National Minister of Housing.
2.3
The Third Respondent is the Provincial Minister of Housing and
Local Government in the Western Cape (“the MEC”).
Page 4
3.
The residents are represented by two committees, known respectively
as the Task Team and the Committee headed by Mr Penze. They
have co-operated in representing the residents, and in these
proceedings. These heads of argument are submitted on behalf of the
residents represented by the Task Team. While some duplication is
unavoidable, we shall attempt to avoid repetition of the submissions
made on behalf of the residents represented by Mr Penze’s committee,
by referring to and adopting those submissions where appropriate. We
also adopt and do not repeat the detailed factual analysis contained in
those submissions.
The nature of these proceedings
4.
The present Respondents brought an urgent application under the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 (the PIE Act) for the eviction of the residents. They joined
the following parties as Respondents, in addition to the residents:
4.1
The City of Cape Town (“the City”), which is the owner of the
land in question.1
1
In the proceedings in the High Court, the residents whom we represent disputed that the
present Respondents) had proved that the City of Cape Town was the owner of the land. We
do not persist in that argument, and we accept that, as the present Respondents allege, the
City is indeed the owner of the land.
Page 5
4.2
Firstrand Bank Ltd (“Firstrand”), which was party to a contract
with Thubelisha in terms of which part of the Joe Slovo land was
made available to Firstrand for it to develop housing which it
would sell.
5.
Neither the City nor Firstrand filed any papers or played any part in the
proceedings.
6.
The Respondents asserted that the residents ought to be evicted in
order for permanent housing to be erected at Joe Slovo. The project
consisted of the following elements:2
6.1
Phase 1 consisted of 705 rented flats, which had already been
erected on part of Joe Slovo. This land was previously occupied
by certain of the present Applicants who were moved to other
parts of Joe Slovo, and by other members of the Joe Slovo
community who left the area when Phase 1 was to be
undertaken.
Very
many
of
the
latter
are
presently
accommodated in Temporary Relocation Areas (TRAs) in Delft,
awaiting permanent accommodation.
There are 3 432
households from Joe Slovo currently accommodated in the Delft
TRAs.3
2
3
Sigcawu: Vol 2, pages 77-78, para 26.2.3.
Adlard: Vol 7, page 651, para 4.1.
Page 6
6.2
Phase 2 consisted of 680 untits, in a combination of “creditlinked” units (for households whose income exceeds R350 per
month) and “BNG” (Breaking New Ground) units, for households
with a lower income.
6.3
7.
Phase 3 consisted of not less than 500 BNG houses.
Since they instituted these proceedings, the Respondents have
apparently changed their plans for Phase 2. They now state that the
number of “credit-linked” houses is to be reduced to 35, and that there
will now be between 1500 and 2000 BNG houses erected at Phase 2.4
They have however not explained how an additional more than 1000
(and perhaps as many as 1500) additional BNG houses will be built on
land on which previously only 165 credit-linked houses would have
been built.
The fact that the number of houses to be erected still
remains vague, suggests that detailed plans have not yet been
formulated. We submit that for two reasons, the matter falls to be
determined on the facts which existed at the time when the
proceedings were instituted:
7.1
As a matter of principle, the legal issue is whether a cause of
action existed at the time when proceedings were instituted,
which in turn depends on the facts which existed at that time.
4
Vawda: Vol 14, page 1259, para 17.3.2
Page 7
7.2
As a practical matter, the assertion now made as to what will be
done at Phase 2 is so vague and general in its content, that it is
unsafe to place reliance on it.
The course of the proceedings
8.
The first step in these proceedings was an ex parte application by the
Respondents for an order and directions as to service of the main
application to be brought in terms of the PIE Act.
That order was
granted. The ex parte application is contained in volume 1 (pages 1 to
47 of the Record).
9.
The Respondents then brought a substantive application. The relief in
the notice of motion referred only to section 5 of the PIE Act,5 but the
Respondents’ principal deponent, Prince Sigcawu, stated that he
accepted that section 6 of the PIE Act was applicable.6 Section 5 of
the PIE Act deals with interim relief pending the determination of an
application for eviction. Section 6 deals with an application by an organ
of State for a final order of eviction.
10.
5
6
The residents brought cross- and counter-applications:
Vol 2, page 48 para 1
Sigcawu: Vol 2, page 99, para 56.
Page 8
10.1
They applied for an order setting aside the various land
availability agreements which had been entered into between
the City, the MEC, Thubelisha and Firstrand in respect of the
land at Joe Slovo.7
10.2
They asserted that they have a substantive and procedural
legitimate expectation to at least 70% of the housing which is to
be provided at Joe Slovo.8 At the hearing, counsel for the Task
Team (with the support of counsel for Mr Penze’s committee)
handed up a draft of declaratory order which was sought in this
regard. This draft is missing from the Court file. None of the
parties has been able to track down a copy. In essence, what
the residents sought (and still seek) is an order declaring that
they have a legitimate expectation to not less than 70% of the
permanent housing which is to be built at Joe Slovo.
They
contend that in the light of the explicit promises which have been
made in this regard, they have a substantive legitimate
expectation. Alternatively, they claim that they have a legitimate
expectation to the provision of such housing, and that they may
not be deprived of it without first being given a hearing.
11.
The residents contended, in their answering affidavits, that they had the
consent of the owner of the land to reside there, and that this consent
had not been terminated. They stated that if the present Respondents
7
Vol 6, pages 458-463; see also vol 16, pages 1510-1526
Page 9
contended that such consent had in fact been terminated, then they
would seek to have the decision to terminate the consent reviewed and
set aside.9
12.
In reply, the Respondents did not contend that the consent had been
terminated. Rather, it was the Respondents’ position that no consent
had existed at all.10 There was therefore no application to have any
termination reviewed and set aside.
13.
The application was heard by Hlophe JP. During the course of the
hearing he gave a ruling dismissing the interlocutory application for the
review of the land availability agreements, and indicated that he would
give reasons later. The main application and the counter-application
for a declaratory order were then argued.
14.
On 10 March 2008 Hlophe JP handed down judgment. Although he did
not formally dismiss the application for a declaratory order, he held that
the residents had no legitimate expectation. He made an order for the
eviction of the residents and certain ancillary relief.11
15.
The parties agreed that having regard to the nature of the matter and
the surrounding circumstances, it was desirable that application be
8
Sopaqa: Vol 6, page 475, para 45.2 and 45.3
Sopaqa: Vol 6, page 507, para 162
10
Vawda: Vol 14, page 1264, para 27
11
Judgment: Vol 16, pages 1568-1618
9
Page 10
made for leave to appeal directly to this Court, rather than to the
Supreme Court of Appeal.
The main submissions of the residents represented by the Task Team
16.
In these heads of argument, we make the following main submissions
on behalf of the residents represented by the Task Team.
17.
In Part 1, we submit that this case raises a constitutional matter, and
that it is in the interests of justice that leave be granted for an appeal to
this Court.
18.
In Part 2, we then address the question whether the PIE Act, under
which the eviction application was brought, applies to the residents.
We submit that:
18.1
the PIE Act applies only to “unlawful occupiers” as defined;
18.2
the residents are not “unlawful occupiers” of the land, because
they have the express or tacit consent of the owner (the City) to
reside on the land;
Page 11
18.3
that consent has never been terminated, either by the City or by
any person acting with its authority;
18.4
from this it must follow that the application must fail, as its
premise is that the residents are unlawful occupiers, and are
therefore subject to the provisions of the PIE Act.
19.
In Part 3, we submit that the residents have a legitimate expectation
that not less than 70% of the housing to be provided at Joe Slovo will
be made available to them. We further submit that a declaratory order
should be made in this regard.
20.
In Part 4 we submit that if the PIE Act is indeed applicable, then under
all of the circumstances, it is not just and equitable to order the eviction
of the residents.
21.
We accordingly submit that the application for leave to appeal should
be granted, and the appeal should be upheld with the costs of two
counsel.
The counter-application for a review of the land availability agreements
22.
The counter-application for the reviewing and setting aside of the land
availability agreements is potentially relevant to two matters; the locus
Page 12
standi of the Respondents, and the validity of any purported termination
of the consent to the residents’ occupation of the land.
Locus standi
23.
In the Court a quo, the residents contended that neither the Second
Respondent (the Minister) nor the Third Respondent (the MEC) had in
terms asked for relief. They had been curiously coy on the subject
even in reply, after the matter had been raised in the answering
affidavits. The residents further contended that the First Respondent
(Thubelisha) had no locus standi, on the basis that the land availability
agreements from which it derived its rights were invalid and ought to be
set aside.
24.
The residents accept that the Third Respondent (the MEC) has locus
standi under section 6 of the PIE Act to seek the relief which is sought
in the Notice of Motion. They now accept further that notwithstanding
his somewhat coy attitude, he has sought such relief.
25.
That being the case, no practical purpose would be served by pursuing
the counter-application in order to establish that the First Respondent
has no locus standi.
Termination of consent
Page 13
26.
If it were to be contended that Thubelisha or another Respondent has
terminated the consent of the land owner (the City), the validity of any
such termination would depend on inter alia the validity of the various
land availability agreements. In that event, the residents would persist
in their application to have those land availability agreements reviewed
and set aside.12
27.
The Respondents have however not alleged that they have terminated
the consent given to the residents to occupy the land. Their case is
that no such consent was ever given.
28.
That being so, no practical purpose would be served by pursuing the
counter-application insofar as it is relevant to the power to terminate
the consent.
29.
Under the circumstances, the Applicants will not in this Court pursue
the counter-application in respect of the validity of the land availability
agreements.
12
It is not clear whether Hlophe JP refused to permit these counter- or interlocutory
applications to be made, or dismissed them on their merits. The judgment suggests a
dismissal on the merits, but that cannot be so, because the Respondents had not yet
produced the Rule 53 record, and the residents had not yet had an opportunity to supplement
their attack in terms of Rule 53(4). It appears that in substance what the Court a quo did was
hold that its leave was necessary for the making of the interlocutory applications, and then
refuse to grant such leave, on the basis that there were no reasonable prospects of success.
Page 14
PART 1
A CONSTITUTIONAL MATTER AND THE INTERESTS OF JUSTICE
A constitutional matter
30.
It does not appear that there is any dispute between the parties that the
present application raises constitutional matters.13
31.
At the simplest level, the core question in this case is the proper
interpretation of the PIE Act. The Preamble to the PIE Act makes it
clear that the statute was enacted to give content to the constitutional
rights contained in sections 25(1) and 26(3) of the Constitution. The
Preamble articulates the purpose of the Act. It refers specifically to the
constitutional right not to be deprived of property except in terms of law
of general application; and it reiterates the constitutional provisions that
no law may permit arbitrary deprivation of property; and 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.
32.
This Court has consistently held that where a statute has been enacted
to give content to a constitutional right, the proper construction of such
13
Sopaqa: Vol 17, pages 1626 – 1627, para 15; Sigcawu: Vol 18, page 1748, para 9.3 and
following; page 1758, para 18.
Page 15
statute is a constitutional matter for the purposes of section 167(3)(b) of
the Constitution.14
33.
We submit that as contended by Mr Sopaqa in paragraph 15 of his
affidavit in support of the application in terms of Rule 19 for leave to
appeal to this Court,15 this application in fact raises several
constitutional matters. However, we respectfully submit that in the light
of the clear and explicit purpose of the PIE Act, it is not necessary to
traverse the other constitutional matters which are raised.
34.
We accordingly submit that this application does raise a constitutional
matter.
The interests of justice
35.
We submit that it is in the interests of justice that the residents be
granted leave to appeal to this Court, having regard to the following
factors:16
14
See for example: National Education Health and Allied Workers Union v University of Cape
Town 2003 (3) SA 1 (CC) at [14] and [15]; Alexkor Ltd and Another v the Richtersveld
Community and Others 2004 (5) SA 460 (CC) at [23]; Department of Land Affairs and Others
v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) at [31]; and most recently,
Mphela and Others v Haakdoornbuilt Boerdery CC and Others [2008] ZACC 5 at [24].
15
Sopaqa: Vol 17, page 1626, para 15
16
The jurisprudence of this Court with regard to the tests to be applied is conveniently
summarized in Farlam, Fichardt and Van Loggerenberg in the current edition of Erasmus
Superior Court Practice at C4-55 to C4-57.
Page 16
35.1
the matters is of substantial importance for the parties and for
the public at large;
35.2
the constitutional matter is one of substance on which a ruling by
this Court is desirable;
35.3
the evidence in the proceedings is sufficient to enable this Court
to deal with and dispose of the matter without having to refer the
case back to the Court a quo for further evidence;
35.4
there is a reasonable prospect, for the reasons given below, that
the Court will reverse or materially alter the judgment of the
Court a quo if permission to bring the appeal is given;
35.5
a substantial saving in time and costs will result if a direct appeal
from the High Court is allowed.
36.
While we accept that it can not be decisive that the parties agree that a
direct appeal to this Court is in the interests of justice, we submit that
this is a further consideration which weighs in favour of granting leave
to appeal.
Page 17
PART 2
THE RESIDENTS ARE NOT UNLAWFUL OCCIUPIERS AND THE PIE ACT
IS NOT APPLICABLE
37.
The Respondents brought these proceedings in terms of the PIE Act.
38.
In the notice of motion in the main application, the Respondents relied
on section 5 of the PIE Act.17
39.
In the founding affidavit, the deponent Prince Sigcawu stated that:
“Applicants accept that Section 6 of PIE is applicable”.18
40.
In either event, the prerequisite for a successful application under the
PIE Act is that the persons sought to be evicted are “unlawful
occupiers” as defined. That is the position with regard to both
40.1
Section 5, which deals with an urgent application for an interim
order of eviction pending the outcome of proceedings for a final
17
18
Vol 2, page 48, line 29.
Vol 2, page 99, para 56.
Page 18
order: it is plainly not applicable to the present dispute, where a
final order for eviction is sought; and
40.2
Section 6, which deals with an application for eviction by an
organ of state.19
41.
The Respondents did not seek an eviction on the basis of other
legislation which is premised on buildings which have not been duly
authorised, or which are deemed to be unhealthy or unsafe – for
example the National Building Regulations and Building Standards
Act,20 or land zoning or local government laws. Those laws prescribe
different requirements for an order for demolition or eviction.
42.
The starting point must therefore be to determine whether the
occupiers are “unlawful occupiers” as defined in the PIE Act. If they
are not unlawful occupiers as so defined, then the provisions of
sections 5 and 6 of the PIE Act are not applicable to them. In that
event, the application ought to have failed, and the appeal ought to
succeed.
19
That is also the position with regard to section 4, which deals with eviction at the instance of
the owner or person in charge of the land. This section is not relied upon by the
Respondents.
20
Act 103 of 1977
Page 19
The definition of unlawful occupier
43.
Section 1 of the PIE Act defines an unlawful occupier as:
“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 …”
44.
“Consent” is defined in section 1 as
“the express or tacit consent, whether in writing or otherwise, of
the owner of person in charge to the occupation by the occupier
of the land in question”.
45.
The definition of “consent” is deliberately and explicitly broad, as it is in
the other main post-1994 statute which provides protection against
arbitrary or unfair eviction.21
It does so because the legislature
recognised that there are many circumstances in which people occupy
land without formal documents or other formal proof of their right to be
on the land, or without formal or explicit acknowledgment of their
entitlement or permission to be there. Having regard to the origin of the
PIE Act in the Constitution, the definition of “unlawful occupier” in
21
See section 1 of the Extension of Security of Tenure Act 62 of 1997.
Page 20
section 1 must be interpreted in such a manner as to give the fullest
protection to persons who are vulnerable.22
46.
Taking a broad approach to the concept of “consent” to the occupation
of land is in fact not new in our law. As far back as 1893, the High
Court recognised (in dealing with an alleged contravention of the
Vagrancy Act of 1843) that “some sort of permission” was sufficient to
defeat a complaint of trespass.23
47.
More recently, in S v Molelekeng24 Roos AJ (with Kriegler J concurring)
held that the word “permission” (“toestemming”) in section 1 of the
Trespass Act 6 of 1959 has its usual (“gewone”) meaning which
includes permission through conduct, tacit permission and so on (“en
so meer”).
48.
We submit that it could hardly be suggested that the definition of
consent in a post-apartheid statute, which is explicitly cast in broad
terms, has a narrower meaning than that which was impliedly intended
by vagrancy legislation of 1843 or trespass legislation enacted at the
height of apartheid in 1959.
22
Compare Cape Killarney Property Investments (Pty) Ltd v Mahamba and others 2001 (4)
SA 122 (SCA) at 1229E; Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113
(SCA); and
23
R v Trahoe and Spillman (1892-1893) 7 EDC 145 at 146.
24
1992 (1) SACR 604 (T) at 606h.
Page 21
The facts with regard to consent
49.
The residents have been on the land for a very long period. Some of
them have now been there for as long as 15 years.25 The City is the
owner of the land.
There is no suggestion that the City has ever
attempted to remove the occupiers from the land, or has even told
them that their presence on the land is without the consent of the City.
50.
On the contrary, the City has acted as one would expect a responsible
local authority to do.
It has accepted the existence of a de facto
situation which arises from the housing crisis in Cape Town. That crisis
and its causes were described by this Court in Grootboom.26 The crisis
is the result of apartheid housing policies, not least of them the
“coloured labour preference policy” which was imposed in the Western
Cape, and the pass (influx control) laws. As a result of those policies, a
deliberate decision was made not to provide housing for Africans in
Cape Town, in order to minimise African presence and African family
life in Cape Town.
The papers in this case show that the crisis
described in Grootboom in 2000 has regrettably not been resolved:
indeed, there is evidence that the scale of the crisis has grown larger.
25
Mr Sopaqa’s wife moved onto the site in early 1993, and found that there were
approximately ten families already there: Sopaqa: Vol 6, page 468, para 16. Ms Mfeketo
states that when she took office as Mayor in 1998, there was already a large informal
settlement at Joe Slovo: Mfeketo Vol 14, page 1319, para 5.
26
Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1)
SA 46 (CC) at [6]
Page 22
51.
Under the circumstances, the City plainly recognised that to evict
people from the land which they had occupied, under circumstances in
which there was not any other housing which could be made available
to them, would achieve nothing but to cause human misery and social
dislocation and conflict. The City therefore accepted the presence of
the occupiers on its land, at least on an interim basis, and for that
reason provided them with services.
52.
There is extensive evidence, both negative and negative, of the City’s
acknowledgement and acceptance of the occupation of the residents.
It is analysed in detail in the submissions on behalf of Mr Prenze’s
committee. Here we only summarise the main points of the evidence
and refer to a limited amount of the detail.
53.
The positive evidence includes the following:
53.1
the provision of fairly substantial services of a permanent nature,
including electricity supply;27
53.2
27
the issuing of “red cards” to the residents;28
These are described in detail in the heads of argument on behalf of Mr Penze’s committee.
This is addressed in detail in the heads of argument on behalf of Mr Penze’s committee.
The residents say that the issuing of the red cards was the granting of permission to be on the
land. We submit that for the reasons given in the heads of argument of behalf of Mr Penze’s
committee, the Respondents have not even succeeded in raising a dispute of fact in this
regard. To the extent that there might be such a dispute, it is to be resolved on the present
Applicants’ version, on the Plascon-Evans basis.
28
Page 23
53.3
the City’s request that residents not locate themselves under the
power-lines, and its refusal to provide services to people who
nevertheless lived under the power-lines – and by contrast its
provision of services to people living elsewhere in Joe Slovo.
53.4
the fact that when the Respondents wished to develop Phase 1,
the City advised and assisted residents of that area of Joe Slovo
to take up occupation of vacant parts of Phases 2 and 3.
54.
The City’s acknowledgement and acceptance of the occupation of the
residents is negatively evidenced by the fact that the City at no stage,
over a period of some 15 years, has ever told the residents that they
are not permitted to reside at Joe Slovo, or that they should leave the
land.
55.
.Mr Sopaqa states that when his wife first moved to the site in early
1993, she found that there were approximately ten families already
living there. In a matter of months the number of people in the area
had increased substantially.
For about seven months there were
regular demolitions by the police, after which the people concerned reerected their structures. The demolitions then stopped, and this was
followed by the City providing water for the increasing number of
people on the site.29
29
Sopaqa: Vol 6, paras 16 – 22, pages 468 – 469.
Page 24
56.
These facts are not disputed by any of the deponents on behalf of the
Respondents.
We submit that they are only consistent with the
interpretation that the authorities had accepted that it was not
practically possible to remove the occupiers, that they would continue
to remain on the site, and that services should therefore be provided to
them at the place where they were. It amounts either to consent by
conduct, or to tacit consent in the form of an acceptance and toleration
of the occupation of the land, at least for the time being.
57.
We submit that in circumstances where people have lived on the land
(on the Respondents’ version) since 1994,30 and where it is undisputed
that since that time, no-one has attempted to evict them from the land
or suggested that their occupation is unlawful, the conclusion is
inescapable that their presence on the land has been with actual
consent which is manifested by the conduct of the owner (the City), or
at the very least, with the tacit consent of the City which has accepted
and tolerated the presence of the residents on the land.
58.
Mr Sopaqa states further that in 2000 there was a fire at Joe Slovo.
Thereafter the City, in consultation with the leaders in Joe Slovo:
30
Sigcawu: Vol 2, page 100, para 56.3.2.
Page 25
“Embarked on a programme to make Joe Slovo a safer place, by
moving us into blocks, which allowed access to emergency
vehicles and to bring municipal services to the residents”.31
59.
Again, this conduct by the owner of the land is only consistent with an
acceptance that the residents were on the land, and would remain
there, at least for an appreciable time. It is inconsistent with any notion
that the City neither expressly nor tacitly consented to the continuing
presence on the land of the residents.
60.
Mr Sopaqa states further, in the context of the events of 2000:
“As a consequence of the work done by the City after that fire,
Joe Slovo became a considerably more pleasant and safer
place in which to live. At no stage during the course of the
upgrade work done by the City after the fire did anybody ever
refer to my family and me as unlawful occupants of the area. To
the contrary, we were treated as the legitimate occupants of the
area, participating in an improvement scheme devised by the
City in consultation with us”.32
31
32
Sopaqa: Vol 6, page 471, para 36.
Sopaqa: Vol 6, page 472, para 37.
Page 26
61.
This too is undisputed. It is consistent only with the interpretation that
the City accepted the reality that the residents would remain living at
Joe Slovo, and consented to this, at least for the foreseeable future.
62.
Mr Sopaqa explains that when Phase 1 (where the flats have now been
built) was to be developed, Councillor Gophe on behalf of the City
encouraged occupants of that area to move to the area known as
Phase 2. The Councillor on behalf of the City provided transport for
people from Phase 1 to move onto the land at Phase 2.33
63.
Mr Gophe confirms this. He explains that the people from the Phase 1
area (on the western side) moved, by agreement which he had reached
with the community structures, to vacant space in the more easterly
part of Joe Slovo which had been created by the departure of some of
the residents of that area for Delft). This move to occupy land at Phase
2 was at his instance.34
He says that he was “instrumental in
persuading persons to move from the western portion of Joe Slovo
towards the spaces made available by the relocation of these 1,000
families”.35
64.
What this means is that certain of the present occupiers of Phase 2 of
Joe Slovo moved and took up residence there at the request of, and
with the assistance of, the City (the owner of the land). We submit that
33
34
Sopaqa: Vol 6, page 478, paras 46 and 48.
Gophe: Vol 14, pages 1351 – 1353, 1360, paras 9.2, 10.2 and 22.
Page 27
there could hardly be clearer evidence of the consent of the owner of
the land.
65.
Mr Sopaqa also states that in 2000:
“We were advised by City officials not to build houses under the
power lines which run across the area, as to occupy that area
would be unlawful. People who did build houses under the
power lines were never connected to the electricity grid for this
reason”.36
66.
By contrast, nearly all of the other houses in Joe Slovo have been
provided with electricity by the City.37
67.
The statement that people should not build in a particular area because
to occupy that area would be unlawful, followed by a refusal to connect
them to the electricity grid “for this reason”, can only mean that the City
accepted that it would be lawful for people to occupy the other areas.
This inference is inescapable once it is shown that the electricity
service which was denied to the “unlawful” occupiers was provided to
the other occupiers.
35
Gophe: Vol 6, page 1365, para 29.2
Sopaqa: Vol 6, page 506, para 158.2
37
Sopaqa: Vol 6, page 505, para 155.
36
Page 28
68.
Mr Sopaqa states that since the early months in which his family’s
shelter was demolished:
“No-one has attempted to evict us from the land or suggested
that our occupation is unlawful.”38
69.
He states further that apart from the evictions in the early 1990s and
the statement by City officials that it would be unlawful to build houses
and occupy the area under the power lines, it has never been
suggested in the course of the residents’ dealings with the City that
their occupation of the area is unlawful. No-one has challenged their
right to occupy the land.
At all relevant times, they have been
permitted to remain on the property and:
“Neither the City, nor anyone purporting to act on its behalf, has
purported to terminate our permission and our right to remain
there”.39
70.
None of this evidence is disputed.
The only response of the
Respondents has been to produce an affidavit by Ms Mfeketo, the
former Mayor. That affidavit is somewhat ambiguous in its content. In
any event, it does not address the matter because she was not in
control of the land when many of the residents took up occupation, and
38
Sopaqa: Vol 6, page 470, para 25.
Page 29
she was last in control when she gave up her office in the first quarter
of 2006.40 Ms Mfeketo does not say in terms that the City did not
consent to the continued occupation by the residents; she can not say
what the City’s present attitude is; and she does not say that the City
has ever taken any steps to attempt to end that occupation – even to
the extent of telling the occupiers that they were required to leave, let
alone taking any steps to compel them to do so.
71.
We submit that the conclusion is inescapable that the City has
consented to the occupation of the land by the residents. If this is so,
then the residents are not “unlawful occupiers”, and the PIE Act is not
applicable to them.
The Rademeyer case
72.
The Court a quo was referred in argument to the Rademeyer case.41
There, on similar facts, the Court held that the conduct of the local
authority in permitting the occupiers to remain on the property, and
providing them with water and sanitation, constituted at the very least
tacit consent to their residing on the property.
The present is, we
submit, an a fortiori case.
39
Sopaqa: Vol 6, pages 505 – 506, paras 157, 158, 159 and 160.
Ms Mfeketo served as Mayor from 1998 to 2000, and from 2002 until the first quarter of
2006: Mfeketo: Vol 14, p 1319 para4.
41
Rademeyer and Others v Western Districts Council and Others 1998 (3) SA 1011 (SEC).
40
Page 30
73.
The Court a quo did not suggest that Rademeyer was wrongly decided.
Rather, it attempted to distinguish the case, on the basis that the
decision was made under the Extension of Security of Tenure Act42
(ESTA) before the enactment of the PIE Act, and before the decision of
this Court in the Grootboom case.43
74.
We submit that this attempt to distinguish Rademeyer must fail.
75.
In the first instance, the PIE Act and the ESTA are inextricably
interlinked, and must be consistently interpreted. The PIE Act defines
an “unlawful occupier” as excluding, amongst others, a person who is
an “occupier” in terms of the ESTA. An ESTA occupier is a person who
occupies land belonging to another with the express or tacit consent of
the owner or person in charge.44
76.
It follows that in order to know who is an “unlawful occupier” in terms of
the PIE Act, one has to know who is an “occupier” in terms of the
ESTA; and in order to know who is an “occupier” in terms of the ESTA,
one has to interpret the meaning of “consent” in the ESTA.
77.
Under these circumstances, we submit that it is inconceivable that the
legislature intended that the term “consent” in the PIE Act should have
a different meaning from the word “consent” in the ESTA.
42
Act 62 of 1997
Page 31
78.
To the extent that it is necessary to belabour the point, we point out
that the ESTA defines “consent” as “express or tacit consent of the
owner or person in charge of the land in question”.
The PIE Act
defines an unlawful occupier as “a person who occupies land without
the express or tacit consent of the owner or person in charge”. The
definitions are for practical purposes identical. It is difficult to see on
what basis it could reasonably be contended that the term “consent” in
the PIE Act is to be interpreted differently from that same term in the
ESTA.
79.
Finally, and in any event, we submit that these are cognate or kindred
Acts which are in pari materia, and ought to be interpreted in a
consistent manner.45
80.
We submit further that the fact that the decision in Rademeyer was
made before the judgment of this Court in Grootboom takes the matter
no further.
81.
We accordingly submit that there is no basis for the attempt of the
Court a quo to distinguish the Rademeyer judgment
43
Judgment: Vol 16, page 1612, para 79.
ESTA: section 1(1): see the definitions of “occupier” and “consent”.
45
See the discussion in LAWSA Vol 25 Part 1 (First Re-issue, 2001) “Statute Law and
Interpretation” by L M Du Plessis at para 359.
44
Page 32
82.
We therefore submit that unless it is found that the decision in
Rademeyer was incorrect – and the Court a quo did not suggest that it
was incorrect – then the interpretation adopted by the Court in
Rademeyer should also be followed in the present case.
Conclusion on the facts with regard to consent
83.
The Court a quo dealt with this fundamental issue in one paragraph.46
The premise of the judgment is that the City did not consent to the
occupation, because the previous Mayor disputed the allegation that
the “red cards” entitled the occupiers to remain in undisturbed
possession; that the previous Mayor stated that services had been
provided for basic humanitarian reasons and should not be construed
as consent by the City or granting the residents any enforceable right to
remain in the area; and that it was always intended that informal
settlements in general would be upgraded, moved or redeveloped in
due course.
84.
The Court a quo appears, with respect, to have misunderstood the
submissions on behalf of the residents. We submit, however, that the
very finding of the Court a quo that it was intended that informal
settlements would be upgraded, moved or redeveloped on a
progressive basis, implies that they would remain where they were until
those steps were taken in due course. In other words, the occupiers
Page 33
were permitted on an interim basis to continue to occupy the land. As
the evidence shows, that “interim” period was lengthy indeed.
85.
It is not the residents’ case that the provision of services per se
amounts to consent. It is that the provision of services is evidence of a
state of mind that the residence is a fact, and will be accepted and
tolerated for the foreseeable future. The provision of services is only
one of the factors, albeit an important factor, which leads to that
conclusion. We have referred above to other factors which point to that
conclusion. These include that at least since 1994, the residents have
never been told that their presence on the land is unlawful; that there
has been no attempt to evict them; that a distinction has been drawn
between those building unlawfully under the power and those building
and residing elsewhere; and that red cards have been issued to the
residents signifying acknowledgement of their presence on the land.
86.
This is all inconsistent with a denial that the City has, at the very least,
accepted and tolerated the occupation of the land by the residents.
87.
When one adds to this the fact that it was Councillor Gophe himself
(one of the deponents on behalf of the Respondents) who told certain
of the residents to move from Phase 1 and occupy certain of the land at
Phase 2, and that the City provided transport for the residents to
enable them to move there, then we submit that the conclusion is
46
Vol 16, page 1586, paragraph 37.
Page 34
utterly inescapable that the residents are on the land with the consent
of the City. That being so, they cannot be unlawful occupiers, and the
PIE Act is inapplicable.
88.
We accept that there could be circumstances in which the provision of
services would not signify consent. The meaning of the action depends
on its context.
One can for example imagine a situation in which
someone occupies an owner’s land, and the owner says “I require you
to leave immediately. As you have not done so, I am going to take
steps to have you removed. As a humanitarian gesture, and because
of the emergency situation which prevails, I will provide you with water
until you are removed, even though I am taking steps to have you
removed”. In that situation, the provision of water would not constitute
consent.
89.
But where:
89.1
the owner takes no steps to have the occupier removed,
89.2
the owner never says to the occupier that his or her presence is
unlawful and forbidden,
89.3
the occupier remains on the land for as long as fifteen years,
89.4
the owner provides an ever-increasing range of services.
Page 35
89.5
these include services which are not emergency services – they
include laying on electricity, building roads, refuse collection,
private toilets, and
89.6
the owner requests and assists the occupier to move from one
part of the land to another part of the land,
it is impossible to conclude that the owner has not consented to the
occupier’s continued presence on the land.
90.
If the Respondents wish to have the residents evicted on the basis that
the buildings do not comply with the statutory building framework, or it
is unsafe for them to remain there, then it must take steps in
accordance with the statutes which deal with those situations. It is not
entitled to rely on a statute whose premise is that the occupiers are on
the land without the consent of the owner.
91.
This of course does not mean that the City has agreed that the
occupiers can live at Joe Slovo forever, or that it has abandoned the
land to them. We deal below with the legal nature and consequences
of the City’s consent. We submit however that it is indisputable, on the
facts, that the City has consented to the residence of the Applicants.
Page 36
The legal nature of the residents’ right of occupation
92.
The circumstances under which the City’s consent to the residents’
occupation of the land at Joe Slovo may be terminated depends upon
the nature of the consent, and the rights which flow from that consent.
93.
In the Adamson case,47 Van Winsen AJP (on behalf of a Full Bench)
explained the difference between two relevant concepts in this regard:
93.1
Commodatum arises from contract. It involves the delivery of
property, which can include the right to the use and occupation
of property. The rights held by the grantee are for a certain
length of time. The grantor is bound to allow the grantee the use
of the thing lent for the stipulated time or for a reasonable time
or for certain fixed use, from which the length of the time of the
contract could be determined.48
93.2
A precarium is possession or occupation which may be
terminated at any time.49
94.
We accept that there was not a contractual agreement which binds the
City to allow the occupiers to reside at Joe Slovo for a stipulated or
47
Adamson v Boshoff and Others 1975 (3) SA 221 (C).
At 225, and see the authorities cited there.
49
At 225.
48
Page 37
reasonable period, or for a use from which the length of the time of
occupation can be determined. The occupation is therefore precario.
95.
A precarium has been defined as follows by the Appellate Division in a
passage which has often been cited:
“The authorities quoted by the learned Judge show that
precarium is the legal relationship which exists between parties
when one party has the use or occupation of property belonging
to the other on sufferance, by the leave and licence to the other.
Its essential characteristic is that the permission to use or
occupy is revocable at the will of the person granting it”.50
96.
As the Appellant Division held in the Bisschop case,51 there is ample
authority that the request and grant need not be express, but may be
effected tacitly.52
97.
In the present case, the key issue with regard to the legal content of a
precarium is the manner in which occupation may be brought to an
end.
In the leading case of Lechoana,53 Kotzé JA set out the
requirements for termination of a precarium:
50
Malan v Nabygelegen Estates 1946 AD 562 at 573.
Bisschop v Stafford 1973 (3) SA 1 (A).
52
At 8.
53
Lechoana v Cloete and Others 1925 AD 536.
51
Page 38
“Subject to reasonable notice, and such notice was given in the
present case, the appellant must give up his occupation and quit
the land, upon good cause shown by the respondents, who are
the board of the trustees of the Mission Stations. The trustees,
as owners, have in no way parted with the right to call upon the
appellant to vacate his occupation. They are at liberty at any
time to sell a portion or the whole of the land on which the
Mission Station carries on its work. In the case before us it
appears that, owing to a pressing necessity for funds to continue
this mission work, a portion of the land on which the appellant is
living precario, or tot weder opzegging, has to be sold. There is
nothing to prevent a sale of this kind by the trustees, provided
they do not act arbitrarily or capriciously towards the appellant.
They have shown good cause for the decision come to in regard
to the sale of portion of the land belonging to them, and have
given the appellant a twelve months’ notice to quit”. 54
98.
From this passage, it appears that there are two requirements for a
valid termination of a right which is held precario:
98.1
The owner must have good cause, and not act arbitrarily or
capriciously; and
98.2
54
At 552.
The owner must give notice of the termination of the right.
Page 39
Good cause for termination
99.
What constitutes good cause will depend on the circumstances of the
matter. Questions which will no doubt be relevant in this regard would
include the following:
99.1
The nature of the use and occupation;
99.2
The nature of the consent which was given;
99.3
The legal obligations of the grantor (precario dans);
99.4
The needs of the occupier (precario habens);
99.5
The investment the occupier has made in the land;
99.6
Such other rights (not arising from the precarium) as the
occupier may have against the owner.
99.7
The requirements of the Constitution: if the termination is for
reasons which are impermissible under the Constitution – for
example, they are discriminatory, the owner not wishing to have
Page 40
any black persons living on the land – then the owner will not
have good cause for the termination.
100.
We accept that the requirement of good cause will usually not place a
very heavy obligation on the owner. Just how heavy the obligation will
be, will depend on factors such as those which we have listed above.
For example, if the owner is a public authority, and the consequence of
the termination is that the occupiers will either be rendered homeless or
compelled to live under intolerable circumstances, that will militate
against a conclusion that the termination is for good cause. A court will
not lightly conclude that an action by a public authority which results in
a denial of constitutional rights is for good cause.
Reasonable notice of termination
101.
It has repeatedly been held that while permission to occupy under a
precarium is revocable at the will of the person granting it, this is
subject to the proviso that reasonable notice of such revocation is given
to the occupier (precario habens).55 If reasonable notice has not been
given, the precarium has not been terminated.56
55
Lechoana v Cloete and Others 1925 AD 536 at 552; McIntosh v Corbishley 1943 (TPD) 127
Malan v Nabygelegen Estates 1946 AD 562 at 573; Theron v Joynt 1951 (1) SA 598 (A)
509E-G; Adamson v Boshoff 1975 (3) SA 221 (C) 228E-229A; Johannesburg City Council v
Johannesburg Indian Sports Ground Association 1964 (1) SA 678 (W) at 684 (in fine); Ellis v
Viljoen 2001 (4) SA 795 (C at 798; Gemeenskapsontwikkelingsraad v Williams and Others (2)
1977 (3) SA 955 (W) at 968.
56
Adamson is an example of this.
Page 41
102.
In Adamson the court held:
“…The grantor withdrawing the concession to the holder of the
precarium must give him reasonable notice of his decision to do
so. What length of notice is reasonable must be determined in
relation to the nature of the concession and the circumstances of
the case”.57
103.
As was held in Johannesburg City Council v Johannesburg Indian
Sports Ground Association:58
“This question of what must in the circumstances be considered
reasonable depends on several features. Where the precarium
was intended to give the habens some enjoyment of a more
than transitory nature, a use from which he was to derive some
beneficial interest for himself, then it is understandable that in
such event there should be no recall until such a period of time
had elapsed as would be reasonable in relation to the enjoyment
expected, the expenditure incurred and the probabilities in
relation to being able to find some substitute of similar content”.
57
58
Adamson at 229
At 685.
Page 42
104.
In the present instance, the occupiers have been on the land for a
substantial period, some as long as 15 years. They have built homes
there.
105.
For the purposes of the present case, it is not necessary to decide what
would constitute reasonable notice. That issue does not arise, as the
Respondents do not allege that notice has been given. The point is a
more fundamental one: until reasonable notice has been given, the
precarium has not been validly terminated; and as long as the
precarium has not been validly terminated, the consent remains in
operation, and the occupiers are not unlawful occupiers within the
meaning of the PIE Act.
106.
The occupiers raised squarely in their answering affidavits, the
contention that they were on the land with the consent of the City,
which is the owner of the land. As we have submitted above, there is
no evidence whatsoever that the City has withdrawn that consent. The
evidence in fact points in the opposite direction, namely that the City
has continued providing services to the occupiers.
107.
Finally in this regard, we point out that the Court a quo did not find that
the consent of the City had been terminated by it or by another party
acting with its authority. The reason for this was clearly that in the view
of the Court, no such consent had ever been shown.
Page 43
108.
As we have pointed out in another context, Mr Sopaqa stated that an
alleged termination of the right of the residents to remain on the
property would constitute administrative action which materially and
adversely affected their rights, that they were entitled to a fair
procedure before any such action was taken, and that they had not
been given any hearing in this regard. Accordingly, he stated, if the
Respondents alleged that the right of occupation of the residents had
been terminated, the Respondents would bring a counter-application in
which they sought to have such purported termination reviewed and set
aside.59
109.
None of the Respondents has, in reply, asserted that there was such a
termination. There plainly was none.
110.
In the heads of argument filed on behalf of the Second Respondent in
the Court a quo, the submission was made that if the provision of
services was to be construed as consent (which was disputed), then by
virtue of the bringing of this application, the residents no longer had
such consent.60
We submit that this cannot be correct, for three
reasons:
59
60
Sopaqa: Vol 6, page 507, para 162.
Second Applicant’s heads of argument in the CPD, para 31.
Page 44
110.1 As we have submitted above, the termination of a precarium
requires the giving of reasonable notice.
The institution of
proceedings cannot constitute that notice.
110.2 Until notice has been given, the would-be evictor has no cause
of action. The cause of action cannot arise from the institution of
proceedings. The premise of the application is that termination
has already taken place.
110.3 In any event, the termination has to be carried out by the owner
of the land, or a person acting with its authority. If any of the
Respondents were to allege such authority, that would raise the
question of the validity of the land availability agreements – the
very matter which Hlophe JP did not permit the residents to
raise.
111.
We submit that it follows that the residents have the consent of the
owner to occupy the land; that the consent has not been terminated;
that the residents are accordingly not unlawful occupiers in terms of the
PIE Act;
dismissed.
and that accordingly, the application should have been
Page 45
PART 3
LEGITIMATE EXPECTATION
Introduction
112.
Mr Sopaqa asserts61 that:
112.1 the residents of Joe Slovo have a substantive legitimate
expectation that the housing to be developed at Joe Slovo, or at
least 70% of it, will be made available to members of the
community.
The Respondents now seek to make the
overwhelming bulk of that housing available to other persons,
and to have the residents evicted from the land in order to
achieve that unlawful purpose;
112.2 in any event, the residents have a legitimate expectation that the
authorities will not make the housing to be provided at Joe Slovo
available to other persons such that less than 70% of the
housing will be made available to the residents of Joe Slovo,
without giving them a hearing in that regard.
113.
If the residents are correct in this, the proposed evictions are clearly
designed to facilitate the achievement of an unlawful objective. We
submit that as a matter of law a court will not grant such an order, and
Page 46
in any event, will not hold that it is “just and equitable” to do so in terms
of the PIE Act.
114.
We deal first with the factual background to the claim of a legitimate
expectation: what promises have been made, and what the reality is.
We then address the question of whether the promises gave rise to a
legitimate expectation.
We then deal with the different forms of
legitimate expectation which are asserted. Thereafter, we address the
finding of the Court a quo that the residents did not have a legitimate
expectation.
The factual foundation
The promises
115.
Mr Sopaqa states that the then Mayor (Ms Mfeketo)62 and the third
Respondent’s predecessor, MEC Fransman, told the Joe Slovo
community that there would be a 70:30 split of the allocation of the
housing in the Joe Slovo project: 70% would be allocated to persons
living in Joe Slovo, and 30% to those living in backyards in Langa.63
116.
Ms Mfeketo states that this was the approach to the N2 Gateway
Project as a whole:
61
Sopaga: Vol 6, page 475, paras 45.2 and 45.3.
At this time, the City was actively involved in the N2 Gateway project.
63
Sopaqa: Vol 6, page 479, para 62.
62
Page 47
“Much thought was given to the conflicting demands of these
two groups. As a compromise, a position was adopted that of all
housing which became available under the N2 Gateway project,
30% thereof would be allocated to the backyarders, and 70% to
the residents of the informal settlements along the N2. I aver
that this policy is a rational one and sought to accommodate the
conflicting desires of the two groups. It is this policy which is
referred to in the papers filed by Respondents, when discussing
the allocation of 30% of housing to the backyarders”.64
117.
It will be recalled that the land is owned by the City, and that the City
made it available to the Province for the purpose of housing
development. The agreement in terms of which the City made the land
available to the Province for this purpose confirms that the general
policy applicable to the N2 Gateway Project was specifically applicable
to Joe Slovo.65 That agreement provides as follows:
“7.1
The Province hereby undertakes to:
…
7.1.4
allocate the properties in line with the beneficiary
allocation plan agreed by the Project Steering
64
65
Mfeketo: Vol 14, page 1320, para 8.
XS23: Vol 5, pages 370-386.
Page 48
Committee and annexed hereto as appendix
A”66
118.
Appendix A in turn states as follows:
“The allocation of housing opportunities in the Project shall be as
follows:
Joe Slovo
•
70% from Joe Slovo informal settlement
•
30% from Langa database
It is agreed that for the 705 rental units in phase 1, the
catchment
of
potential
tenants
is
extended
to
include
Bokmakerie, Bonteheuwel, Guguletu and Nyanga”.67
119.
This therefore lends support to Mr Sopaqa’s statement that the
residents were promised that 70% of the housing at Joe Slovo would
be made available to them. That had to be done, because it was a
condition of the agreement under which the Province obtained the right
to develop the land.
66
67
Vol 5, page 375.
Vol 5, page 381.
Page 49
120.
Mr Fransman seeks to give a slightly different account of the promise
which was made:
“6.1.1 It is mentioned that I told residents that there would be a
70:30 allocation of housing opportunities as between
those living in Joe Slovo, and those living in the backyards in Langa.
6.1.2
This is correct, subject to the qualification that this ratio
was to apply to the “BNG” housing built. In terms of the
Comprehensive Plan for the Development of Sustainable
Human Settlements (which was adopted as national
policy in September 2004), housing developments would
contain a mix of housing which would include bonded or
“credit-linked” housing. The ratio did not apply to this
housing”.68
121.
There is a contradiction here between the versions of Ms Mfeketo and
Mr Fransman: Ms Mfeketo states that the ratio applied to “all” housing
which became available under the N2 Gateway project; whereas Mr
Fransman asserts that this excluded the “bonded” or “credit-linked”
housing.
122.
To the extent that there is a conflict, this must be resolved in favour of
the residents, who assert that the undertaking of a 70:30 allocation
68
Fransman: Vol 14, page 1344, para 6.1.
Page 50
applied to all housing. That assertion is supported by Ms Mfeketo. The
contract under which the Province obtained the right to develop the
land, makes it clear that it applied to all housing, and that it was
applicable to the Joe Slovo development. We submit that it is not even
necessary in this regard to rely on the Plascon-Evans rule, but to the
extent necessary, that rule is decisive of the matter.
123.
In any event, there will now be only 35 “bonded” or “credit-linked”
houses at Joe Slovo.69 Even if the version now given by Mr Fransman
is correct, the exclusion of 35 houses from the 70:30 allocation does
not have a material impact on the question whether effect has been
given to the 70:30 undertaking.
124.
The residents moved willingly from Phase 1, vacating it to enable the
flats to be built, because of the promises which had been made.70
The reality
125.
The number of housing opportunities in the N2 Gateway project, and
their distribution, are analysed in detail in the report of Mr Adlard, to
which we refer below. The numbers have varied from time to time as
the Respondents have changed their plans, and even since this
application was launched.
69
70
Vawda: Vol 14, page 1259, para 17.3.2
Sopaqa: Vol 6, pages 482-483. para 71-75; page 566, para 359.3.
Page 51
126.
However, one thing is absolutely clear, namely that the Respondents
have abandoned their undertaking – which was a condition of the
agreement in terms of which the City made the land available to the
Province – that 70% of the housing opportunities at Joe Slovo would be
made available to residents of Joe Slovo.
127.
Phase 1, consisting of the flats, has been completed. There are 705
units. Hardly any Joe Slovo residents have been accommodated in the
705 flats.71 Mr Sopaqa pointed out in his answering affidavit that the
Respondents’ founding papers are “noticeably silent” on the question of
how many Joe Slovo residents have been accommodated in the Phase
1 flats, and invited them to remedy this shortcoming in their replying
papers.72
128.
The Respondents did not deny the assertion that hardly any Joe Slovo
residents are accommodated in the Phase 1 flats. They did not take up
the invitation to state how many are accommodated there. Their only
response was the weak statement by Prince Sigcawu that:
“I am aware of residents who qualified for rentals in Phase 1 but
decided not to take the flats, stating that they would rather await
the allocation of BNG housing”.73
71
Sopaqa: Vol 6, pages 484 – 484, paras 79 – 80.
Sopaqa: Vol 6, para 81, page 436.
73
Sigcawu: Vol 14, page 1308, para 19.2.
72
Page 52
129.
Prince Sigcawu does not say who these people are, how many of them
there are, or how he knows of them.
130.
Mr Vawda states the following with regard to the allocation of housing
opportunities in Joe Slovo:
“17.3
Applicants accept that fewer residents of Phase 1 were
drawn from the ranks of Joe Slovo residents. Two points
must, however, be made:
17.3.1
The situation is – as respondents accept –
irreversible.
opportunities
Others occupy the housing
in
Phase
1,
and
this
will
contribute to the integrated nature of the
redeveloped
area,
both
racially
and
economically.
17.3.2
It is inappropriate to view Phase 1 in isolation.
Joe Slovo is a phased development and the
expectations of the community will reasonably
be met by the end result of the total
development.
I refer in particular to my
averments above regarding the reduction of the
number of bonded units in Phase 2 from
approximately 200 down to 35. This will have
the consequence that – in the entire remaining
Page 53
area of what constitutes Joe Slovo – all save
35 housing opportunities will be available in the
ratio of 70:30 as between Joe Slovo residents
and ‘backyarders’”.74
131.
This is the starkest admission possible of the abandonment of the
undertaking. According to Mr Vawda, the 70:30 undertaking now does
not apply to either:
131.1 the 705 housing opportunities in Phase 1; or
131.2 the bonded houses to be provided in Phase 2 – previously
stated to be 200, and now stated to be 35.
132.
We submit that even without regard to the statistics compiled by Mr
Adlard, it is plain that the Respondents have abandoned the
undertaking which they gave. They have abandoned even the version
of the undertaking which Mr Fransman now asserts.
The contractual documents
133.
The process of abandonment of the undertakings (and of the legal
obligations of the MEC) - on the basis of which those from Phase 1
moved to Phase 2 or to Delft in order to enable the Phase 1
74
Vawda: Vol 14, pages 1258-1259.
Page 54
development to take place – is reflected in the relevant contractual
documents.75
134.
The key contractual document (XS23)76 is the land availability
agreement entered into between the City and the MEC. As we have
pointed out about, it requires the Province to make 70% of the housing
at Joe Slovo available to the residents.
135.
However, the land availability agreement entered into between the
MEC and Thubelisha on 25 May 2007 (“XS24”) abandoned this
provision. In terms of this agreement, the Province made Joe Slovo
Phase 2 available to Thubelisha for the construction only of “affordable”
(i.e. credit-linked) housing.77 It made no reference to the allocation
conditions which had been contained in the land availability agreement
under which the City had made the land available to the MEC. In
effect, the MEC had abandoned the contractual undertaking which he
had given to the City, on the basis of which the City had made the land
available.
136.
The next step in this process took place when Thubelisha made Phase
2 of Joe Slovo available to Firstrand. This agreement (XS26) provides
that there is no requirement for subsidies to be part of the financing,
there is no controlled price range, and it is expressly “recorded that
75
The sequence is more fully described in the report of Adlard, Vol 7, pages 652 – 654.
Vol 5 pages 370-386.
77
Vol 5, page 319, clause 3.3.
76
Page 55
there is no requirement that the target market is limited to persons
currently residing in the Joe Slovo settlement or Langa areas”.78
137.
From this it is apparent that the Respondents not only abandoned their
obligation to the City (the owner of the land) that 70% of the housing at
Joe Slovo would be allocated to residents of Joe Slovo, and the
undertakings given to the residents to that effect. The Respondents
also abandoned their previous position that Phase 2 was to be financed
substantially by housing subsidies or grants, and that only eligible
beneficiaries would benefit from this housing. This condition was also
contained in the first contract between Cape Town and Thubelisha.79
138.
We now turn to the factual and legal consequences of the undertaking
which was given to the residents. We then deal, in the sections which
follow, with the consequences of the abandonment of the undertaking.
Was the expectation legitimate?
139.
We submit that it cannot be effectively denied that as a matter of fact,
the residents had an expectation that at least 70% of the housing
opportunities at Joe Slovo would be made available to residents of Joe
Slovo. The legal question is whether that expectation was “legitimate”.
78
Vol 5, pages 414 – 415, clause 1.1.38. See also: clauses 1.1.1 (page 409) and 20 (page
428).
79
See in this regard XS20, Vol 4, page 332, clause 4.1.7; and XS21, Vol 4, page 355, para
4.2.
Page 56
140.
There has been considerable debate about when the source of an
expectation is such that the expectation is “legitimate”. It has been
pointed out that the English decisions show that a legitimate
expectation “may arise from a variety of circumstances”, and it has
been submitted that “it is essential not to close the list of possible
sources of a legitimate expectation. To do so would hinder the inherent
flexibility and further development of the doctrine to meet the needs of
modern societies”.80 This question was again referred to by this Court
in the Walele case.81
141.
However, there is one source of legitimate expectation on which all
authorities agree, and that is an undertaking given by a public authority.
142.
It is of course important to distinguish between undertakings and loose
political promises. This however, was a clear undertaking. The terms
of the undertaking reflected one of the contractual conditions on which
the land had been made available to the MEC. The undertaking was
made in terms. It was made to a group of people who were desperate
for housing.
It was relied upon by the Respondents in order to
persuade certain of the residents to move on a temporary basis to Delft
or to other parts of Joe Slovo. A considerable number of them did so
move in the context of this undertaking.82
80
Hlophe “The Doctrine of Legitimate Expectation and the Appellate Division” South African
Law Journal 200 – 201.
81
Walele v City of Cape Town and others [2008] ZACC 11 at [35] (Jafta AJ) and [133]
(O’Regan J)
82
Sopaqa: Vol 6: pages 482-483, paras 71 to 75.
Page 57
143.
Unless one is to conclude that the authorities were entirely cynical, and
that the undertaking was simply meant to pacify the residents and
persuade some of them to move out of Joe Slovo, one is entitled
assume that it was intended to be taken seriously. It is clear that it was
taken seriously. Again, we point out that that this formula was the
foundation of any rights which the MEC and Thubelisha had to develop
the land.
144.
All of this shows that this was a serious undertaking which was
intended to be taken seriously, and was taken seriously. It gave rise to
a legitimate expectation.
145.
It is noteworthy that the Respondents do not deny Mr Sopaqa’s
assertion that the Province is bound, under the first land availability
agreement, to allocate 70% of the housing opportunities created on Joe
Slovo to residents of Joe Slovo informal settlement.83
146.
The Respondents also do not deny:
146.1 the assertion by Mr Sopaqa that the residents have a legitimate
expectation in this regard.
Mr Vawda simply evades the
proposition.84
146.2 the correctness of Mr Adlard’s statement that the Province has
breached this condition and undertaking.85
Page 58
147.
The legitimate expectation can give rise to both substantive and
procedural rights on the part of the residents. We address each of
these in turn.
Substantive legitimate expectation
148.
The first question which arises is whether the legitimate expectation
was substantive in form, in that it gave rise to an entitlement to a
substantive benefit.
149.
Our courts have developed the concept of legitimate expectation
through borrowing or learning from developments in English law. The
experience of the English courts in this regard is instructive.
150.
There was initially some hesitance on the part of English courts with
regard to the concept of substantive legitimate expectation. However,
the concept is now well-established in English law. The key decision in
that regard was the judgment of the Court of Appeal in the Coughlan
case.86
83
See for example Sopaqa: Vol 6: pages 513-514, para 192.
Sopaga Vol 6: page 475, para 45.2 and 45.3; Vawda: Vol 14, page 1252, para 8.1.
85
Sopaqa: Vol 6: pages 513-514, para 192, Adlard: Vol 7, page 653, para 4.2.3.
86
R v North and East Devon Health Authority ex parte: Coughlan [2000] 3 All ER 850 (CA).
84
Page 59
151.
The development of the law is explained in the leading work by Wade
and Forsyth.87 They analyse the decisions of the courts, and conclude
as follows:
“These are revealing decisions. They show that the courts now
expect government departments to honour their statements of
policy or intention, and that there is a clear link between
unreasonableness and unfairness.
Lord Scarman made an
emphatic statement that unfairness in the purported exercise of
power can amount to an abuse or excess of power. Fairness is
a powerful ally for the litigant and the unexpressed basis of
many rules”.88
152.
In an analysis of developments in South African law, Hoexter has
shown that in our courts there have already been several instances of
what would count as substantive enforcement of legitimate expectation,
but they have not been couched in those terms.89 The question of
principle has not yet been decisively answered.
153.
We submit that the learned authors Wade and Forsyth are correct in
asserting that the touchstone is fairness. This is a constitutional state
in which the principles of fairness and accountability are fundamental.90
It would run counter to those principles for the authorities to give
87
Wade and Forsyth Administrative Law (9th ed) 372 to 376.
At 374.
89
Hoexter, Administrative Law in South Africa 387 to 388.
90
See in this regard, for example, section 195 of the Constitution.
88
Page 60
undertakings of this kind, and then simply to abandon them, on the
grounds that they have changed their minds.
154.
As was pointed out in the Johannesburg Municipal Pension Fund
case:91
“Public administrators must be accountable; act lawfully and
fairly and not arbitrarily; act honestly and ethically and be bound
by their lawful undertakings.”92
155.
This does not mean, of course, that such undertakings can never be
changed. But what the Coughlan case illustrates is that particularly
where a change affects the fundamental rights of the people
concerned, there will need to be an “overriding public interest” before
the courts will accept that a change of policy overrides and outweighs
the obligations created by an undertaking or promise.93
156.
In Coughlan, it was held that what the government must show is “a
sufficient overriding interest to justify a departure from what had
91
Johannesburg Municipal Pension Fund and others v City of Johannesburg and others 2005
(6) SA 273 (W)
92
At [17], relying on Reuters Group plc 2001 (12) BCLR 1265 (C) at [2], [33] - [35], [46] and
[47]; Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte
President of the Republic of South Africa and Others 2002 (2) SA 674 (CC) at [133] and [148];
Hardy Ventures CC v Tshwane Metropolitan Municipality 2004 (1) SA 199 (T); York Timbers
Ltd v Minister of Water Affairs and Forestry and Another 2003 (4) SA 477 (T) ([2003] 2 All SA
710) at 506 - 7 (SA); Premier, Western Cape v President of the Republic of South Africa 1999
(3) SA 657 (CC) (1999 (4) BCLR 382) at [45] - [46].
93
Wade and Forsyth at 375.
Page 61
previously been promised”.94 Whether a sufficiently overriding interest
has been shown is a question for the court to determine.95
157.
We submit that in this case, no such overriding public interest has been
shown. The authorities should be held to the undertaking which they
gave, which one must accept was seriously intended at the time, and
which was taken seriously by the persons to whom it was made, some
of whom acted upon it to their detriment.
Procedural legitimate expectation
158.
We submit that once it is accepted that the Joe Slovo residents have a
legitimate expectation that not less than 70% of the housing to be
provided at Joe Slovo will be allocated to them, then the authorities are
bound not to abandon that promise or undertaking without giving the
persons affected a hearing, seriously considering their views, and then
making a decision. This is a procedural legitimate expectation.
159.
This duty is part of the duty to act fairly, which is at the heart of the
doctrine of legitimate expectation. It is a matter of “enforcing the rules
of natural justice and fair play”.96
160.
The Respondents do not suggest that they have given the residents a
hearing in respect of this abandonment of the original undertaking. The
94
at para 58
at para 76
96
Hlophe op cit at 199.
95
Page 62
facts show that there has been a change, and a change of a
fundamental kind.
The original undertaking has been abandoned,
without giving the beneficiaries any opportunity to attempt to persuade
the decision-makers that they should continue to comply with the
undertaking which they gave.
161.
We submit that this case is a clear instance of an unfair breach of the
procedural rights which follow from the existence of a legitimate
expectation. We submit that it should not be countenanced by the
courts. This is particularly so where the people affected are the most
vulnerable, who have no other remedies open to them, and whose last
recourse is an appeal to the courts to protect their rights, their interests
and their legitimate expectations.
The finding of the Court a quo
162.
The Court a quo held that a legitimate expectation could not arise, for
the following reason:
162.1 No-one can have a legitimate expectation of doing something
contrary to the law, or of preventing a functionary from
discharging his statutory duty; and
Page 63
162.2 As the Court a quo had found that the residents had no consent
to reside in Joe Slovo, they were occupying the area unlawfully,
and unlawful conduct cannot give rise to a legitimate
expectation.97
163.
We respectfully submit that this is a non sequitur.
164.
It is well established in our law and in English law that there cannot be
a legitimate expectation that a public body will act outside its powers or
otherwise unlawfully.
If it gives an undertaking so to act, it may
repudiate that undertaking, and cannot be bound to it by the person to
whom the undertaking was given.98
165.
In the Hamble case,99 it was explained that the reason for this is that to
bind public bodies to an unlawful representation would have the dual
effect of extending their statutory power, and destroying the ultra vires
doctrine by permitting public bodies arbitrarily to extend their powers. It
was further pointed out that to bind bodies to a promise to act outside
their powers would in effect be to endorse an unlawful act.
97
Judgment: Vol 16, pages 1610 – 1611, paras 74 – 75.
Hoexter Administrative Law in South Africa 378-379. The doctrine is more fully articulated,
and its possible limits are analysed, in Woolf, Jowell and Lesueur De Smith’s Judicial Review
(6th ed, 2007) at 636 – 643.
99
R v Ministry of Agriculture, Fisheries and Food Ex parte: Hamble (Offshore) Fisheries Ltd
[1995] 2 All ER 714, a case relied upon in University of the Western Cape and Others v MEC
for Health and Social Services and Others 1998 (3) SA 124 (C), on which the Court a quo
relied in this regard.
98
Page 64
166.
The doctrine therefore does not address the question of whether the
person who seeks to enforce an undertaking has himself or herself
acted lawfully or unlawfully.
It addresses the question whether the
agency which gave the undertaking would be acting lawfully or
unlawfully if it gave effect to the undertaking.
167.
In this matter, there is no suggestion that the Respondents would be
acting unlawfully if they gave effect to the undertakings which they had
given.
The expectation that they should do so may therefore be
legitimate.
The question whether the Applicants are lawfully or
unlawfully on the land in question is, we submit, irrelevant to the
question of whether a legitimate expectation may arise from the
undertakings which were given. We respectfully submit that the Court
a quo fundamentally misdirected itself in this regard.
Relief sought
168.
In the answering affidavits, the residents asserted that they had a
legitimate expectation that the housing to be developed at Joe Slovo,
or at least 70% of it, will be made available to members of the
community.100
At the hearing, they asked for a declaration of the
existence of their legitimate expectation.
As we have pointed out
above, the draft order which was handed up in this regard has
unfortunately gone astray. The record in the application to this Court
Page 65
contains a space for the insertion of the document in question.101
Unfortunately, the legal representatives of the parties have not been
able to locate a copy of the document in question.
169.
One of the grounds of the notice of application to the Court a quo for
leave to appeal,102 and the application for leave to appeal directly to
this Court,103 is the failure of the Court a quo to find that the Applicants
have a substantive, alternatively a procedural, legitimate expectation
that at least 70% of the housing to be developed at Joe Slovo will be
made available to the members of the Joe Slovo community.
170.
The relief which the residents seek in this regard is set out in the
affidavit of Mr Sopaqa, which was both an answering affidavit in the
main application, and the founding affidavit in the counter-application.
Following the formulation in paragraphs 45.2 and 45.3 of the affidavit of
Mr Sopaqa104 the Applicants seek (as they sought in the Court a quo),
a declaration as follows:
170.1 it is declared that the residents of Joe Slovo have a legitimate
expectation that at least 70% of the housing to be developed at
Joe Slovo will be made available to the past and present
members of the Joe Slovo community; and in the alternative
100
Sopaqa: Vol 6, pages 475 – 493, paras 45.2 – 112.
Vol 15, page 1509.
102
Vol 17, pages 1721 – 1722, para 16.
103
Vol 17, page 1627, para 15.2; pages 1647 – 1652, paras 72 – 85.
104
Sopaqa: Vol 6, page 475.
101
Page 66
170.2 the residents of Joe Slovo have a legitimate expectation that the
Respondents will not make the housing to be provided at Joe
Slovo available to other persons, such that less than 70% of the
housing will be made available to the past and present members
of the Joe Slovo community, without giving the members of the
Joe Slovo community a hearing in that regard.
Page 67
PART 4:
JUST AND EQUITABLE / PUBLIC INTEREST
171.
In order for an eviction order to be made under section 6 of the PIE Act,
there are two findings which must be made by the court:
171.1 It must find that it is just and equitable to grant an eviction
order;105 and
171.2 It must find either
171.2.1
that the consent of the applicant organ of state was
required to the erection of a building or structure on the
land, or for the occupation of the land, and such consent
was not obtained;106 or
171.2.2
that it is in the public interest to grant an eviction
order.107
105
Section 6(1)
Section 6(1)(a)
107
Section 6(1)(b)
106
Page 68
172.
We do not repeat the submissions made on behalf of Mr Penze’s
committee with regard to whether it would be just and equitable, and in
the public interest, for the residents to be evicted.
We respectfully
adopt those submissions.
173.
We deal here with only two aspects of those issues. These relate to
the legitimate expectation, and to the consequences of the eviction
order if it is made.
Legitimate expectation
174.
The development of Joe Slovo has been an unfortunate saga of
repeated broken promises. The saga is set out in some detail in the
report of Mr Adlard.
175.
The residents were given an undertaking that the housing to be
developed there, or at least 70% of it, would be reserved for them. The
residents moved willingly from the area developed as Phase 1. They
did so because they understood that Joe Slovo residents would be the
beneficiaries of the development.108
176.
In the event, it has already been demonstrated that this will not be the
case. As we have pointed out above, hardly any of the Joe Slovo
108
Sopaqa: Vol 6, page 513-514, para 192; page 566, para 359.3.
Page 69
residents are accommodated in Phase 1. At least one of the reasons
for this is that while it was initially anticipated that the rentals would be
between R150 and R300 per month, in the event the flats were
allocated to people who could afford to pay R600 per month for a single
unit and R1 050109 per month for two-roomed flats. These rentals were
completely unaffordable to most Joe Slovo residents.
As a result,
hardly any of them have been accommodated in Phase 1 of the
project.110
177.
Quite remarkably, Prince Sigcawu stated in his founding affidavit that
all 1 885 housing units at Joe Slovo had been earmarked for the
accommodation of the residents of Joe Slovo. These, he said, would
comprise:
177.1 the 705 rental units already completed in Phase 1;
177.2 680 units comprising Phase 2, which would be a combination of
credit-linked units (for those who can afford to buy houses), and
BNG housing (for those who cannot afford to buy housing);
177.3 not less than 500 BNG houses in Phase 3.111
109
Sopaqa: Vol 6, pages 483-484, para 78-80
Sopaqa: Vol 6, pages 484 – 484, paras 79 – 80.
111
Sigcawu: Vol 2, pages 77 – 78, para 26.2.3.
110
Page 70
178.
This was plainly not the truth. Very few of the flats in Phase 1 have
been occupied by Joe Slovo residents, and it is clear that very little (if
any) of the “credit-linked” housing will be for them – in fact, the
agreement with Firstrand, which is undertaking that development,
specifically records that “there is no requirement that the target market
is limited to persons currently residing in the Joe Slovo settlement or
Langa areas”.112
179.
Faced with the obvious difficulty caused by the fact that he has not told
the truth in his founding affidavit, in reply Prince Sigcawu claims that
70% of the BNG housing in Joe Slovo will become available to Joe
Slovo residents.113
He does not attempt either to explain the false
statements in his founding affidavit, or to explain on what basis the
promise is to be changed yet again. Neither, for that matter, does he
explain why the residents should place any reliance on this promise in
the light of the history of the matter.
180.
We have already addressed the question of legitimate expectation, and
will not repeat those submissions here. We submit, however, that a
court will not find that it is just and equitable to order eviction where the
purpose of the eviction is to breach the residents’ substantive and
112
113
Sopaqa: Vol 6, page 555, para 344.2 quoting XS 26, Vol 5, pages 414-415, clause 1.1.38.
Sigcawu: Vol 14, page 1308, para 19.1.
Page 71
procedural legitimate expectation. In this regard, we repeat what was
said in the Johannesburg Municipal Pension Fund case:114
“Public administrators must be accountable; act lawfully and
fairly and not arbitrarily; act honestly and ethically and be bound
by their lawful undertakings.”
181.
It can not be just and equitable to authorise public administrators to act
otherwise.
The consequences of an eviction order
182.
In paragraph 4.3 of his report115 Mr Gerald Adlard, a development
consultant who was closely involved in the development of the N2
Gateway Project, has analysed the availability of housing in Delft for
residents of the Joe Slovo settlement.
The Respondents have not
suggested that residents will be housed anywhere other than in Delft,
save for an unidentified number who may be able to return to Joe Slovo
when the development there has been completed.
114
Johannesburg Municipal Pension Fund and others v City of Johannesburg and others
2005 (6) SA 273 (W) at [17]
115
Adlard: Vol 7, pages 654 – 655.
Page 72
183.
Mr Adlard’s analysis of the numbers, and the conclusions which he
draws from them, have not been placed in dispute by the Respondents.
He points out the following:
183.1 There are 3 432 households from Joe Slovo currently
accommodated in the Delft Temporary Relocation Areas
(TRAs).116
183.2 There are approximately 4 500 households still living at Joe
Slovo.
183.3 From this, it follows that the Joe Slovo residents (those still there
and those who have already moved to Delft) amount to
approximately 8 000 households which will have to be catered
for.
183.4 The housing potential of the two Delft projects is 9 500.
183.5 Of those 9 500 houses:
183.5.1
30% or 2 850 must be allocated to people who
currently live in the suburbs of the existing Delft;117
116
Adlard: Vol 7, page 651, para 4.1.
Page 73
183.5.2
1 000 sites in Delft 7 – 9 must be allocated to
people from the Nyanga upgrade project;
183.5.3
840 sites must be allocated to people from
Freedom Farm and Malawi;
183.5.4
the balance available is 4 486 (according to his
table, actually 4 802);
183.5.5
these are for the residents of informal settlements
in the N2 Gateway Project, of which Joe Slovo is but one;
183.5.6
in any event, the number of sites available (4 802)
is plainly insufficient to meet even the needs of the 8 000
Joe Slovo households.
184.
Mr Adlard states further that as long as at least TRA Phase 4 exists,
Delft 7 – 9 cannot be completed, because that TRA stands upon Delft 7
– 9.
185.
117
Mr Adlard concludes:
Clause 7.1.4 of the Land Availability Agreement entered into between the MEC and the
City: “XS23”, Vol 5, pages 370 – 386.
Page 74
“Clearly the Applicants must demonstrate precisely how, where
and when they will provide permanent accommodation for the
8 000 households of Joe Slovo”.118
186.
In their replying affidavit, the Respondents did not either dispute the
analysis by Mr Adlard and his conclusions, or attempt to show where
the 8 000 households of Joe Slovo will be permanently accommodated.
187.
In truth, therefore, what the Respondents seek is an order for the
eviction of people from land where they are reasonably secure, to an
insecure future. The only virtual certainty is that a very large number of
them will not be provided with permanent accommodation.
188.
The Respondents have not produced evidence which demonstrates
even that there will be sufficient accommodation available to the
residents in the supposedly temporary TRAs if they are evicted.
189.
The order made by the Court a quo had no regard to this. It appears
that the reason for this is that the Court a quo was under the
misapprehension that as far as the residents are concerned:
118
Adlard: Vol 7, page 655, lines 11 – 12.
Page 75
“The majority of them will be able to return to Joe Slovo to live in
newly built permanent houses. They will be able to return to the
area they know well and enjoy fairly decent accommodation”.119
190.
This view is further expressed in paragraph 83 of the judgment, where
the Court stated that 70% of the present occupants of the area will be
able to return to Joe Slovo to newly built, better equipped and safer
permanent homes.120
191.
This consideration clearly weighed heavily with the Court a quo, and
understandably so. If that were the position, it would be a weighty
factor in considering whether eviction would be just and equitable.
Unfortunately, it does not reflect the evidence.
The Court a quo
misdirected itself, and the exercise of its discretion, in this regard.
192.
The evidence shows that:
192.1 The residents initially expected that they would receive either the
total housing allocated at Joe Slovo, or 70% of that housing.
192.2 The Respondents now say that the Joe Slovo residents will not
receive 70% of the total housing which is provided, but will
receive 70% of the BNG housing which is provided.
119
Judgment: Vol 16, page 1615, para 84.
This
Page 76
excludes the whole of Phase 1 (705 units), and that part of
Phase 2 which is occupied by the credit-linked subsidies (now
apparently 35 units).
192.3 There are presently 4 500 households in Joe Slovo. 70% of that
number is 3 150. the Respondents have never suggested that
anything like that number of Joe Slovo households will be
accommodated at the “new” Joe Slovo.
192.4 The factual premise of the judgment of the Court a quo is
therefore not correct.
It has never been part of the
Respondents’ case.
193.
In fact, the number of Joe Slovo households who seek permanent
accommodation, including those who agreed to move to Delft on a
temporary basis while they await permanent accommodation, is (as Mr
Adlard pointed out) approximately 8 000. 70% of that number is 5 600.
There is no suggestion that anything like that number of housing
opportunities will be made available to Joe Slovo residents in the “new”
Joe Slovo. It is not unrealistic to suggest that the Joe Slovo residents
will be extremely fortunate if 15% of the original Joe Slovo households
120
Judgment: Vol 16, page 1614, para 83.
Page 77
(1 200) find permanent accommodation in the 70% of the BNG housing
which they are now told will be allocated to them at Joe Slovo. 121
194.
The conclusion of the Court a quo is therefore, with respect, based on
a serious misreading of the evidence.
One can, with respect,
understand a conclusion that it is just and equitable to order eviction
from an informal settlement if 70% of the residents will in due course be
provided with better and permanent residence at the same place. It is
a rather different proposition when, on the most optimistic assessment,
perhaps
15%
of
the
residents
will
be
provided
with
such
accommodation.
195.
We submit that this misdirection fundamentally colours and taints the
finding of the Court a quo with regard to whether the eviction would be
just and equitable.
The reality is that at best for the Joe Slovo
residents:
195.1 only a very small proportion of them will ever find permanent
housing in Joe Slovo; and
195.2 the Respondents still have no plan as to where permanent
accommodation will be provided for a very substantial proportion
of them.
121
We submit that it would be utterly inequitable, and in fact intolerable, if the Respondents
Page 78
196.
We submit that under these circumstances, the eviction of this longsettled community is not just and equitable, and is not in the public
interest.
197.
For all of these reasons, the residents ask that the leave to given to
appeal, that the appeal be upheld with the costs of two counsel; and
that the order of the Court a quo be amended to provide that the
application is dismissed with costs, including the costs of two counsel.
GEOFF BUDLENDER
LWAZI KUBUKELI
Counsel for the Applicants represented by the Task Team
Chambers, Cape Town
July 2008
were now to adopt the position that none of the housing at Joe Slovo will be allocated to the
3423 Joe Slovo families which moved to Delft to await permanent accommodation
Page 79
______________________________________________________________
LIST OF AUTHORITIES
______________________________________________________________
1.
National Education Health and Allied Workers Union v University of
Cape Town 2003 (3) SA 1 (CC) at [14] and [15].
2.
Alexkor Ltd and Another v the Richtersveld Community and Others
2004 (5) SA 460 (CC) at [23].
3.
Department of Land Affairs and Others v Goedgelegen Tropical Fruits
(Pty) Ltd 2007 (6) SA 199 (CC) at [31].
4.
Mphela and Others v Haakdoornbuilt Boerdery CC and Others [2008]
ZACC 5 at [24].
5.
Cape Killarney Property Investments (Pty) Ltd v Mahamba and others
2001 (4) SA 122 (SCA) at 1229E.
6.
Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA).
7.
R v Trahoe and Spillman (1892-1893) 7 EDC 145 at 146.
8.
S v Molelekeng 1992 (1) SACR 604 (T) at 606h.
9.
Government of the Republic of South Africa and Others v Grootboom
and Others 2001 (1) SA 46 (CC) at [6].
10.
Rademeyer and Others v Western Districts Council and Others 1998
(3) SA 1011 (SEC).
11.
Malan v Nabygelegen Estates 1946 AD 562 at 573.
Page 80
12.
Adamson v Boshoff and Others 1975 (3) SA 221 (C).
13.
Bisschop v Stafford 1973 (3) SA 1 (A).
14.
Lechoana v Cloete and Others 1925 AD 536 at 552.
15.
McIntosh v Corbishley 1943 (TPD) 127.
16.
Malan v Nabygelegen Estates 1946 AD 562 at 573.
17.
Theron v Joynt 1951 (1) SA 598 (A) 509E-G.
18.
Johannesburg City Council v Johannesburg Indian Sports Ground
Association 1964 (1) SA 678 (W) at 684 (in fine).
19.
Ellis v Viljoen 2001 (4) SA 795 (C at 798.
20.
Gemeenskapsontwikkelingsraad v Williams and Others (2) 1977 (3) SA
955 (W) at 968.
21.
R v North and East Devon Health Authority ex parte: Coughlan [2000] 3
All ER 850 (CA).
22.
Johannesburg Municipal Pension Fund and others v City of
Johannesburg and others 2005 (6) SA 273 (W).
23.
Reuters Group plc 2001 (12) BCLR 1265 (C) at [2], [33] - [35], [46] and
[47].
24.
Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex parte President of the Republic of South Africa and
Others 2002 (2) SA 674 (CC) at [133] and [148].
Page 81
25.
Hardy Ventures CC v Tshwane Metropolitan Municipality 2004 (1) SA
199 (T).
26.
York Timbers Ltd v Minister of Water Affairs and Forestry and Another
2003 (4) SA 477 (T) at 506 - 7.
27.
Premier, Western Cape v President of the Republic of South Africa
1999 (3) SA 657 (CC) at [45] - [46].
28.
R v Ministry of Agriculture, Fisheries and Food Ex parte Hamble
(Offshore) Fisheries Ltd [1995] 2 All ER 714.
29.
University of the Western Cape and Others v MEC for Health and
Social Services and Others 1998 (3) SA 124 (C).
30.
Hlophe “The Doctrine of Legitimate Expectation and the Appellate
Division” South African Law Journal 200 – 201.
31.
Wade and Forsyth Administrative Law (9th ed) 372 to 376.
32.
Woolf, Jowell and Lesueur De Smith’s Judicial Review (6th ed, 2007) at
636 – 643.
33.
LAWSA Vol 25 Part 1 (First Re-issue, 2001) “Statute Law and
Interpretation” by L M Du Plessis at para 359.