292 Beneficiaries of Isekelo House Projects v Gauteng Department of Housing and Another (12634/2012) [2014] ZAGPJHC 287 (14 May 2014)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG SOUTH LOCAL DIVISION, JOHANNESBURG

CASE NO: 12634/2012

DATE: 14 MAY 2014

In the matter between:

THE 292 BENEFICIARIES OF ISEKELO

HOUSING PROJECTS..........................................................................Applicant

And

GAUTENG DEPARTMENT OF HOUSING.............................First Respondent

WIETPRO HOME DEVELOPERS (PTY) LTD...................Second Respondent

JUDGMENT

SWARTZ AJ:

[1] The applicants comprise of 292 beneficiaries of the Isikelo Housing Development Programme situated in Tembisa, Gauteng. The first respondent is the Gauteng Department of Housing now known as The Department of Human Settlements. The second respondent is Wietpro Housing (Pty) Limited, a private company incorporated in terms of the Company Laws of the Republic of South Africa.

[2] The purpose of this application is to direct the first respondent to give effect to what the applicants refer to as their legitimate expectation to housing created pursuant to the conclusion of the Isikelo Igqagqa Tembisa Township Land Development Agreement by the first respondent being represented by the Tembisa City Council and the second respondent. Alternatively that I direct the first respondent to provide the applicants with houses as envisaged by the concluded Land Development Agreement, in an alternative location, which would not adversely affect the livelihoods of the applicants and their respective families. It was submitted on behalf of the applicants that the main reason for this application is because of the unilateral decision of the first respondent to cancel the implementation of the Land Development Agreement between the first and second respondent.

[3] At the commencement of the proceedings counsel for the applicants informed me that the applicants were not seeking any order against the second respondent. There was no appearance at these proceedings on behalf of the first respondent either.

[4] It was argued that the applicants launched this application in order for the first respondent to give effect to the applicants’ rights to housing as enshrined in terms of the provisions of section 26 of the final Constitution. It was submitted on behalf of the applicants that the first respondent must take reasonable measures within its available resources to achieve the progressive realisation of this rights to housing, including legitimate expectation to housing created by the conclusion of the Land Development Agreement.

[5] On 9 December 1993 an agreement was entered into between the then Tembisa City Council, there and then represented by one Henri Eybers, in his capacity as Administrator and duly authorised in terms of a resolution of the council, and the second respondent, there and then represented by one Johannes Jacobus Jacobs, duly authorised by the company. The applicants were not party to this agreement and were not signatories to the agreement concluded between the two respondents. The material terms of the agreement between the first and second respondent was the development of areas in Tembisa known as Isikelo and Igqagqa, mainly for purposes of developing a residential township, and the building of 492 houses.

[6] The second respondent proceeded to implement and develop the township. On 5 July 2005 the first and second respondents, duly represented, concluded an addendum agreement in which it was agreed to a reduction of the project from 492 houses to 197 structures. It was specifically agreed that the first and second respondents were not indebted to each other in respect of the conclusion of the agreement and the addendum. The respondents agreed to the closing off of the Agreement. The project had thus been reduced from 492 units to 197. The material terms of the agreement between the first and second respondent were, amongst others, the following: “And whereas the developer has only achieved 197 P4 milestone payments (transfers) and built only 197 top structures. And whereas the parties are not indebted to each other in respect of the conclusion of the Agreement and / or this addendum. And whereas the Department and the Developer are in agreement that the project should be concluded by signing this Addendum reducing the project size to the present status. And whereas an MEC resolution dated 9th January 2004 approves the closing off of the project...”

Again, the applicants were not signatories to the addendum agreement concluded between the first and second respondent.

[7] Some 15 years later and on 16 February 2009 the second respondent addressed a letter to the representative of the applicants advising of the cancellation of the Isikelo Land Development Agreement between the first and second Respondents. It is contended on behalf of the applicants that this was a unilateral cancellation of the Land Development Agreement between the first and second respondents. I am called upon to set aside the first respondent’s decision to cancel the implementation of the Isikelo Housing Development Project and to direct the first respondent through its realisable means to give effect to the Isikelo Housing Development Project originally entered into between the first and second respondent. On 23 February 2012 the Applicants’ attorneys addressed a letter in which the first respondent was referred to the original agreement with regards to the development of the 492 structures and the addendum to the agreement. The first respondent was invited to revert to the original agreement to build 492 structures. There was no reply to this letter, which prompted this application.

[8] Counsel who appeared for the applicants argued that the residential area would have been developed for residential purposes and because of this, the first respondent had created a legitimate expectation to housing; there was no consultation with the applicants pertaining to the cancellation of the Land Availability Agreement and, as an organ of state, so the argument went, the first respondent in making a decision which adversely affected the applicants, had to ensure that such decision was procedurally fair, as required by the provisions of the Promotion of Administrative Justice Act 3 of 2000.

[9] The applicants were not signatories to the agreement reached between the first and second respondents. They have no locus standi to bring this application. Furthermore, I find that the order sought by the applicants is not enforceable against the first respondent. The order sought would amount to nothing more than an empty judgement. At the hearing of this application I invited counsel appearing on behalf of the applicants to show, how the order the applicants seek against the first respondent, is enforceable. Needless to say, counsel could not show how any order made by this court, in terms of the specific order sought, that is to set aside the decision of the first respondent to cancel the original agreement, is enforceable. Apart from the applicants not having locus standi there is no merit in this application.

Order:

The application is dismissed.

SWARTZ AJ

ACTING JUDGE OF THE HIGH COURT OFSOUTH AFRICA

GAUTENG LOCAL DIVISION,

JOHANNESBURG

Counsel for the Plaintiff: Adv M. Makgato

Instructed by: Mokobane Attorneys

Counsel for the Defendant:

Instructed by: State Attorneys

Date of Hearing: 14 May 2014

Date of Judgment: