Abahlali Basemjondolo Movement SA v and Another v Premier of Kwazulu-Natal and Others (1874/08) [2009] ZAKZHC 1; 2009 (3) SA 245 (D) ; 2009 (4) BCLR 422 (D&CLD) ; [2009] 2 All SA 293 (D) (27 January 2009)

IN

THE HIGH COURT OF SOUTH AFRICA

REPORTABLE

DURBAN AND COAST LOCAL DIVISION

CASE NO: 1874/08

In the matter between

ABAHLALI BASEMJONDOLO MOVEMENT SA First Applicant

SIBUSISO ZIKODE Second Applicant

and

PREMIER OF KWAZULU-NATAL First Respondent

MEMBER OF THE EXECUTIVE COUNCIL FOR

LOCAL

GOVERNMENT, HOUSING AND TRADITIONAL

AFFAIRS, KWAZULU-NATAL Second Respondent

MINISTER OF

HOUSING Third Respondent

MINISTER OF LAND

AFFAIRS Fourth Respondent

_________________

JUDGMENT

Delivered:

27 January 2009

TSHABALALA

JP

INTRODUCTION

[1] This is an application for an order declaring the KwaZulu-Natal Elimination and Prevention of Re-Emergence of Slums Act 6 of 2007 (“the Slums Act”) unconstitutional.

[2] The first Applicant is Abahlali baseMjondolo Movement South Africa, a voluntary association which seeks to improve the lives and living conditions of shack dwellers in South Africa. The second applicant is Sibusiso Zikode, President of the first applicant.

[3] The first respondent is the Premier of the Province of KwaZulu-Natal and is cited in his official capacity as the head of the KwaZulu-Natal Provincial Legislature which enacted the Slums Act. The second respondent is the Member of the Executive Council for Local Government, Housing and Traditional Affairs in the Province of KwaZulu-Natal. He is cited in his official capacity as the official responsible for the administration of the Slums Act. The third respondent is the Minister of Housing and is cited in her official capacity as the Minister responsible for the National Housing Act 107 of 1997 (“the Housing Act”) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”). The fourth respondent is the Minister of Land Affairs who is cited in her official capacity as the Minister responsible for land reform and land tenure issues.

APPLICANTS’ CASE

[4] The first argument raised by the applicants was that the Slums Act purports to regulate eviction, land tenure and access to land, matters which fall outside the legislative competence of provincial government thereby rendering the Slums Act unconstitutional.

Alternatively it was argued that sections 16, 9, 11, 12 and 13 of the Slums Act are inconsistent with section 26 (2) of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”). In the final alternative it was argued that the Slums Act is in conflict with the provisions of the Housing Act and the PIE Act.

[5] Dealing with the first argument applicants’ counsel submitted that the Slums Act deals primarily with land and issues of land are not a concurrent competence of provincial government. Reference was made to Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and Another [2000] ZACC 2; 2001 (1) SA 500 (CC) wherein the test for provincial competence was established as follows:

1. one must examine the essence and true purpose and effect of the legislation.1

2. the functional areas of provincial legislative competence must be purposively interpreted in a manner which will enable the national Parliament and the provincial legislatures to exercise their respective legislative powers fully and effectively.2

[6] According to the applicants the Slums Act has two objectives which are to eliminate slums and to prevent the re-emergence of slums and these objectives are achieved through sections 5, 6, 14, 15, 16(1), 16(2) and 11. In its papers applicants declare that “the chief mechanisms employed by the Slums Act to achieve its objectives are then: the mandatory institution of eviction proceedings and a prohibition on the occupation of certain land and buildings”.3

Counsel for the applicants submitted that whilst the Slums Act does refer to housing it essentially deals with eviction, land tenure and access to land. The Preamble, although also referring to housing, is not determinative of the Slums Act. During argument applicants’

counsel stated that the Slums Act has duplicated the application of the PIE Act at provincial level, in that the PIE Act applies to unlawful occupiers all over the country whilst the Slums Act tries to regulate eviction in relation not only to slum dwellers but also to unlawful occupiers throughout the province.

Other submissions made by applicants’ counsel were that section 5 of the Slums Act which “prohibits the use of substandard

accommodation for financial benefit” adds nothing new to what is already contained in the National Building Regulations and Building

Standards Act 103 of 1977. Applicant has argued that the result of section 5 is that it seeks to regulate tenure. Section 7 of the Slums Act repeats the content of section 7 of the Housing Act. In terms of section 8, the second respondent is obliged to ensure the alignment and implementation of provincial and municipal housing slum elimination policies. However this obligation is one which the second respondent is already under in terms of the Housing Act and the KwaZulu-Natal Housing Act 12 of 1998. Section 9(1)(a) provides that municipalities may take reasonable measures to progressively realise the right of access to adequate housing in section 26 of the Constitution but these duties are already to be found in the Housing Act.

During argument it was submitted that if the repeated sections contained in the Slums Act were to be removed it would not make a difference since the sections are contained in other pieces of legislation. Thus the purpose of the Slums Act must be seen to be in the new provisions.

Counsel’s closing comments regarding the first argument was that the references in the Slums Act to housing are insufficient. The true purpose of the Slums Act is to eliminate slums and prevent their re-emergence through the institution of eviction proceedings and regulating the access of land. It was submitted that only national government is competent to legislate on matters of eviction, land tenure and access to land and thus the Slums Act is ultra vires the legislative authority of the provincial government and is therefore unconstitutional.

[7] The alternative argument was that sections 16, 9, 11, 12 and 13 of the Slums Act must be be declared invalid by virtue of their

inconsistency with section 26(2) of the Constitution. It was submitted that the Slums Act does not constitute a reasonable measure

to progressively realise the right of access to adequate housing within the meaning of section 26(2) of the Constitution.

Applicants’ counsel set out the constitutional and statutory framework applicable to housing rights and evictions in South Africa.

There is no need to go into detail into that suffice to say that the Housing Act was enacted to give effect to section 26(2) of the Constitution and it contains mandatory provisions requiring provincial and local government to promote and facilitate the provision of adequate housing within the framework of national housing policy. ‘Breaking New Ground: A Comprehensive Plan for the Development of Sustainable Human Settlements’, (the “BNG”), was adopted by the National Department of Housing in September 2004. The BNG arose out of a need for change in the South African housing policy. The National Housing Code was adopted in March 2000 with Chapter 13 being adopted in October 2004. The objective of Chapter 13 is to provide a programme to facilitate the structured upgrading of informal settlements in order to give effect to the principles set out in the BNG. The Chapter advocates the in situ upgrading of informal settlements and discourages evictions.

[8] Applicants’ counsel submitted that the reality in Durban is that what is required in terms of the Constitution is not adhered to. Chapter 13 of the National Housing Code does not appear to be implemented in Durban with the applicants claiming to be unaware of Chapter 13 ever being implemented by the second respondent in a partnership with a municipality in Durban or Pietermaritzburg.

[9] It was submitted that section 16 of the Slums Act is inconsistent with the Constitution in the following respects:

9.1 it undermines security of tenure;

9.2 it mandates the institution of eviction proceedings without a consideration of the particular circumstances of those whose eviction is sought; and

9.3 it does not require the State to provide alternative accommodation in the event that those whose eviction is sought will be left homeless as a result.4

Another reason as to why section 16 is unconstitutional is that it renders the constitutional requirement of meaningful engagement

nugatory. The requirement of meaningful engagement is important, but with the Slums Act any engagement conducted between the municipalities and the occupiers could only take place after the decision to evict has been made.

[10] The effect of sections 9, 11, 12 and 13 of the Slums Act, read together, is to give municipalities an open-ended discretion as to how to deal with informal settlements. Municipalities are given a discretion whether to upgrade informal settlements at all and whether to even provide alternative accommodation. In Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC), the Constitutional Court stressed the importance of guidelines and criteria to guide the exercise of discretionary powers granted by legislation, particularly where constitutional rights are implicated.

Applicants’ counsel submitted that the Slums Act makes no reference to the constitutional and statutory framework applicable to housing rights. Accordingly, it was argued, that this Court should find that the failure of the Slums Act to provide guidance to municipalities to ensure that apply their discretion consistently should render it invalid.

It was also argued that there is a constitutional obligation on the State to provide at least temporary accommodation to persons who will be rendered homeless as a result of eviction (see Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd; President of the RSA and Others v Modderklip Boerdery (Pty) Ltd (2004 (8) BCLR 821 (SCA) and City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 (6) SA 417 (SCA).

[11] The final alternative was that certain sections of the Slums Act are in conflict with national legislation.

Section 16 of the Slums Act conflicts with the national legislation for the following reasons:

11.1 it conflicts with section 4(6) of the Housing Act and the provisions of Chapter 13 of the National Housing Code which require

that informal settlements be upgraded in situ and permit eviction proceedings only as a last resort. The section’s requirement that eviction proceedings be instituted precludes the institution of in situ upgrading;

11.2 it conflicts with section 2(1)(a) of the Housing Act (read with the decision of Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others [2008] ZACC 1; 2008 (3) SA 208 (CC) which requires meaningful engagement with individuals and communities prior to eviction proceedings;

11.3 it also conflicts with sections 4, 5 and 6 of the PIE Act in that it compels the institution of eviction proceedings while the aforesaid sections of PIE do not.

Counsel for the applicant even suggested that section 16 conflicts with the PIE Act in a broader and more fundamentals sense in that it says that eviction proceedings ‘must’ be instituted and thus removes the discretion granted to a landowner by the PIE Act. It also removes the protection which an unlawful occupier receives from a landowner who is prepared to tolerate the occupation of his land.

[12] Sections 9, 11, 12 and 13 were argued to be irreconcilable with Chapter 13 of the National Housing Code. It was submitted that the provisions of the National Housing Act and the PIE Act must prevail over the provisions of the Slums Act since they are pieces of constitutional legislation enacted in order to give effect to section 26 of the Constitution. These Acts also provide uniformity needed across the country in the areas of housing rights and evictions.

[13] It was counsel’s final submission that the Slums Act has taken away the rights of many people, and that should not be condoned.

RESPONDENTS’ CASE

[14] The second and third respondents (“the respondents”) contend that the Slums Act was a measure designed to improve the

lives of those living in slum conditions and to ensure that slum conditions do not continue to proliferate.

At the outset respondents’ counsel submitted that the applicant’s arguments were without merit because the Slums Act is consistent with and gives effect to:

1. government’s international law obligations;

2. government’s constitutional obligations;

3. the provinces’s obligations in national housing policies and laws;

4. the provinces’s obligations in terms of duly adopted housing laws and policies;

5. the Slums Act is a reasonable and rational policy and legislative response to ensure that the living conditions of those who live in informal settlements are improved; and

6. the Slums Act is a reasonable and rational legislative and policy response to ensure that the overall provincial housing project,

through the delivery of housing units in sustainable human settlements, is not continuously undermined by the proliferation and

expansion of informal settlements.5

Respondents’ counsel stated that should the Court find that the Slums Act violates section 26(2) of the Constitution, that such

limitation would be reasonable and justifiable in terms of 36(2) of the Constitution.

[15] An important submission made by respondents’ counsel was that this matter appears to be an ‘abstract constitutional challenge’

since the applicants in wanting to declare the Slums Act to be unconstitutional, have not done so on the basis of the actual implementation of the provisions sought to be impugned. There has also not been any attack on the housing policies and programmes in the province. During argument, counsel for the respondents submitted the Slums Act is based on the Housing Act but they have not attacked the constitutionality of the Housing Act. Neither was the KwaZulu-Natal Housing Act attacked. In counsel’s words ‘if you are going to try and cut off a vine, you have to cut if off at the root.’6

Other arguments included that legislation must be interpreted consistently with the Constitution, which principle finds expression

in section 39(2) of the Constitution.

[16] It was submitted that applicants first argument that the Slums Act is ultra vires is difficult to understand. Regard must be had to the overall purpose of the law as well as the legislative history and framework underpinning the law. The Slums Act deals with informal settlements and the need to prevent the re-emergence of slum settlements. The Preamble of the Slums Act states that the Slums Act seeks to “enable the control and elimination of slums, prevent the re-emergence of slums, in a manner that promotes and protects housing construction programmes of both provincial and local governments”. Counsel argued that the Slums Act relates to housing and housing is a concurrent competence of national and provincial government in Part A of Schedule 4 to the Constitution read with section 104 thereof.

[17] Regarding applicants’ contention that sections 16, 9, 11, 12 and 13 of the Slums Act contravenes section 26(2) of the Constitution, respondent submitted that when the Slums Act is read in the context of national and provincial housing laws and policies, it is actually designed to achieve the progressive realisation of the right of access to adequate housing as is required in section 26 (1) read with section 26 (2) of the Constitution. Furthermore section 16 does not sanction wide once off massive evictions.

[18] The argument made by the applicants that the effect of sections 9, 11, 12 and 13 of the Slums Act was to give the municipalities an open ended discretion whether to upgrade or relocate informal settlements with the related compliant that they are given no

guidance on how to exercise such discretion must fail. Municipalities are bound by national and provincial housing legislation and policies which sets out the framework for municipal planning and implementation of housing programmes.

[19] Applicants relied on the unreported decision of this Court in Jaca and Others v eThekwini Municipality (Case No: 1020/2008), a judgment delivered by Acting Judge Mnguni. The case dealt with whether the applicants were entitled to an interdict to prevent a demolition to their homes and does not demonstrate the allegation that evictions are carried out unlawfully in Durban.

[20] Counsel for the respondents submitted that the enquiry into whether the Slums Act is a reasonable measure designed to meet the province’s obligations in section 26(2) of the Constitution must be assessed against the principles set out in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC). It was further submitted that the Slums Act is not a provincial plan to eradicate slums.

[21] The other arguments made by the applicants was that section 16 of the Slums Act undermines security of tenure and no provision is made for a municipality to provide alternative accommodation or to engage with the affected community. Another issue was that

municipalities are given no guidelines on how to exercise the powers accorded to them by the Slums Act.

Regarding meaningful engagement, respondent submitted that consultation and engagement with affected communities is a constitutional imperative. Thus there can be no merit that the Slums Act will not require consultation.

It was submitted that national and provincial laws bind the municipalities. The Dawood judgment must be distinguished in that it dealt with a different matter altogether. It is not right for the applicants to argue that the municipalities will not implement the Slums Act properly.

[22] The final argument that the Slums Act is in conflict with national legislation must also fail since the Slums Act specifically

incorporates the provisions of the PIE Act. Such incorporation ensures that all relevant circumstances are taken into account in the determination of whether eviction would be just and equitable in the circumstances. The applicants are thus incorrect in saying that the evictions will be carried out without a consideration of all the circumstances.

Applicants have argued that compelling eviction contravenes Chapter 13 of the National Housing Code which contemplates relocation of residents of slums as a last resort. Respondent submitted that this was inaccurate in that Chapter 13 provides for relocation where de-densification is needed and also where communities are living in hazardous circumstances.

[23] In conclusion respondents’ counsel submitted that the applicants arguments were without merit and that the application ought to be dismissed.

APPLICANTS’ REPLY

[24] Applicants’ argument is not based on section 16 having a bulldozer effect instead the argument is based on the words ‘must’

in the section. It is the peremptory nature of the provision that renders it unconstitutional.

[25] Regarding security of tenure, people have it in different forms. In order to achieve the objectives in section 26(2) of the

Constitution, security of tenure must be promoted not undermined. Counsel argued that there is nothing in the Act which saves section

16 from the fact that it renders engagement meaningless. The respondents cannot rely on section 22 of the Slums Act to cure section 16 thereof.

[26] Counsel for the applicants finally submitted that where you have national legislation saying that you must upgrade, you then cannot have the Slums Act giving the municipalities a discretion whether to upgrade or not. Further where national legislation says eviction must be a last resort, you cannot have an Act that says you must evict in all circumstances

APPLICATION OF THE LAW

[27] At the outset it must be said that this is a very sensitive and important matter since so many people are affected by it. The living conditions of those who live in slums and slum conditions is a universal problem The right to housing as a basic human right has been expressed in international and national human rights instruments. This Court acknowledges the plight of the thousands in this country and province that are without proper housing, however this case must be adjudged according to the facts at hand. This is the first case where the Slums Act is being challenged.

[28] There was an application to strike out the COHRE report brought by the respondents but I do not think that it is an important matter since this Courts findings will be made according to the merits of the case at hand.

[29] The Slums Act specifies its objectives in section 3, which are:

(a) to eliminate slums;

(b) to prevent the re-emergence of slums;

(c) to promote co-operation between the department and municipalities in the elimination of slums;

(d) to promote co-operation between the department and municipalities in the prevention of the re-emergence of slums;

(e) to monitor the performance of the department and municipalities in the elimination and prevention of the re-emergence of slums; and

(f) to improve the living conditions of the communities, in the Province.

[30] Chapter 2 of the Slums Act prohibits the unlawful occupation of any land or building without the consent of the owner or person in charge of such land or building. Section 4 (2) states that any person who contravenes subsection (1) in respect of residential premises, may be evicted from such land or building after following the procedure set out in sections 4, 5 or 6 of PIE.

[31] The sections of the Slums Act that are in dispute in this matter are 9, 11, 12, 13 and 16. The main section that is attacked is section 16 which reads as follows:

Eviction of unlawful occupiers

(1) An owner or person in charge of land or a building, which at the commencement of this Act is already occupied by unlawful occupiers must, within the period determined by the responsible Member of the Executive Council by notice in the Gazette, in a manner provided for in section 4 or 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, institute

proceedings for the eviction of the unlawful occupiers concerned.

(2) In the event that the owner or person in charge of land or a building fails to comply with the notice issued by the responsible Member of the Executive Council in terms of subsection (1), a municipality within whose area of jurisdiction the land or building falls, must invoke the provisions of section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

[32] Counsel for the applicants tried her best to convince this court that the Slums Act was ultra vires in that the provincial legislature lacked the authority to enact the Act since it dealt with land and tenure. She focused on the sections of the Slums Act that dealt with land and used this to substantiate her line of reasoning that the Slums Act dealt with land. However one can not pull out sections of an Act and consider them in a piecemeal fashion. The Act must be looked at in its entirety. After reading the Slums Act properly and carefully this Court comes to the conclusion that it does deal with housing. You cannot have housing without land and even though there may be some aspects that seem to deal with land that does not detract from the main objective of the Act which is issues of housing.

The first argument must accordingly fail.

[33] The second argument relates to whether the Slums Act violates section 26(2) of the Constitution. Section 26(2) reads as follows:

“The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”

Interpreting a right in its context requires the consideration of two types of context. On the one hand, rights must be understood in their textual setting. This will require a consideration of chapter 2 and the Constitution as a whole. On the other hand, rights must also be understood in their social and historical context. Yacoob J held in Grootboom supra that in terms of our Constitution the question is “whether the measures taken by the State to realise the right afforded by s 26 are reasonable”.7

[34] The Housing Act was promulgated in order to give effect to the State's positive obligations in terms of s 26 of the Constitution. The Housing Act imposes specific obligations on local government in this regard. In terms of the Housing Act the National Minister of Housing had to publish a National Housing Code, which would incorporate a National Housing Policy as well as procedural guidelines in respect of the implementation of such a policy. The Code is binding on the provincial and local spheres of Government. In terms of section 7(2) of the Housing Act, every provincial government, through its MEC, must, after consultation with the provincial organisations representing municipalities as contemplated in section 163 (a) of the Constitution, do everything in its power to promote and facilitate the provision of adequate housing in its province within the framework of national housing policy. This provision is repeated in section 2B of the KwaZulu-Natal Housing Act.

The Slums Act provides a legislative framework for the implementation of housing policies in KwaZulu-Natal. Section 7 of the Slums Act states subject to the provisions of the Housing Act the responsible Member of the Executive Council must promote and facilitate the provision of adequate housing throughout the Province within the framework of the national policy on housing development.

From the aforementioned it is correct to state that national and provincial legislative instruments have recommended that provincial

legislatures try and facilitate housing policies and this is exactly what the Slums Act has tried to do. The Slums Act is not a

duplication of the PIE Act at provincial level as contended for by applicants counsel. The intention of the Slums Act appears to be with assisting the provincial and local governments in the provision of housing as stated in its preamble.

[35] Section 9 of the Slums Act provides for the progressive realization of right to adequate and affordable housing, section 11

provides for the submission of status and annual reports to responsible Member of Executive Council, section 12 is the condition for provision of alternative land or buildings and section 13 provides for the establishment of a transit area. Counsel for the applicants argued that these sections do not say enough but this Court cannot find any problem with these sections.

[36] The case of Jaca and Others v EThekwini Municipality was referred to by the applicant but in that case when the action was brought before Mnguni AJ it was not about the unlawfulness of the Slums Act but about the unlawfulness of the municipality’s actions, therefore the case is distinguishable from the case at hand.

This Court finds that the Slums Act constitutes a reasonable legislative response to deal with the plight of the vulnerable in our society. Applicants second argument must fail.

[37] The third and final claim that the Slums Act is in conflict with national legislation is unfounded. There can be no conflict if the Slums Act is actually endorsing the PIE Act and other national legislation.

The PIE Act is endorsed in sections 10 and 4 of the Slums Act. Section 10 reads as follows:

“A municipality may, subject to section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, the

Constitution, and any other national legislation protecting the housing or occupational rights of persons, institute proceedings for the eviction of an unlawful occupier from land or buildings falling within its area of jurisdiction if such eviction is in the public interest”.

Section 4(2) reads:

“Any person who contravenes subsection (1) in respect of residential premises, may be evicted from such land or building after

following the procedure set out in sections 4, 5 or 6 of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act”.

The Slums Act does not envisage a random eviction of people. Evictions will be carried out with a due consideration of whether it is just and equitable to do so.

[38] Applicants have come to Court with the view that the Slums Act is evil and bad and that there will be no meaningful engagement with the affected people before the decision to evict is taken, people will not be given alternative accommodation and that municipalities

are given no guidelines on how to exercise the powers given to them in the Slums Act. The problem that this Court finds with that line of reasoning is as follows:

1. The Slums Act incorporates the PIE Act8 and a municipality is made subject to the provisions set out in section 6 of the PIE Act. After a reading of section 6 of the PIE Act one would see that the problems anticipated by the applicants are covered in that a court must have regard to:

“(a) the circumstances under which the unlawful occupier occupied the land and erected the building or structure;

(b) the period the unlawful occupier and his or her family have resided on the land in question; and

(c) the availability to the unlawful occupier of suitable alternative accommodation or land.”9

As mentioned earlier in this judgment section 4(2) of the Slums Act also makes provision for certain procedural requirements being

complied with before eviction takes place.

2. As submitted by both parties engagement is necessary prior to eviction taking place as it is a constitutional imperative (see

Olivia judgment supra).

3. The National Housing Code is binding on all spheres of government by virtue of the provisions of section 4(6) of the Housing Act. Thus Slums Act does not open the door for widespread evictions which are left to the discretion of municipalities. Municipalities are governed by national and provincial law.

4. Section 2 (1) (b) of the Housing Act requires all spheres of government to “consult meaningfully with individuals and communities affected by housing development”.

5. Whilst in situ upgrading is required, it sometimes becomes necessary to relocate people in order to make way for essential engineering or where

conditions are too hazardous.

In the result applicants third argument must also fail.

[39] The province of KwaZulu-Natal must be applauded for attempting to deal with the problem of slums and slum conditions. This is the first province to have adopted legislation such as the Slums Act. The Slums Act makes things more orderly in this province and the Act must be given a chance to show off its potential to help deal with problem of slums and slum conditions. This Court can not strike the Act down before it has even being properly implemented.

[40] The Slums Act is the first of its kind and other provinces are waiting to see how it functions in this province. This is a facial challenge. It must be restated that in this case the applicants have chosen not to join the eThekwini Municipality as a party to these proceedings. Accordingly this Court can not deal with the conduct of the Municipality.

ORDER

[41] The following order is made:

1. Application is dismissed.

2. There is no order as to costs.

TSHABALALA JP _________

Date of Hearing: 6 November 2008

Date of Judgment: 27 January 2009

Counsel for Applicants: Ms H. Barnes

Ms K McLean

Instructed by: Wits Law Clinic

c/o Nichols Attorneys

Counsel for Respondents: Mr. J.J. Gauntlett, SC

With him: Ms A.A. Gabriel

Instructed by: The State Attorney

1 See para 36 of judgment.

2 See para 17 of judgment.

3 Applicants heads of argument, para 39.

4 Applicants heads of argument, para 99

5 Respondents heads of argument, para 8.

6 Page 91 of transcript.

7 Para 33 of Grootboom judgment.

8 Sections 10 and 4 of the Slums Act.

9 Section 6(3) of PIE.