Ark City of Refuge v Bailing and Others (A107/2011) [2012] ZAWCHC 285 (10 August 2012)

THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: A107/2011

In the matter between:

THE ARK CITY OF REFUGE ...........................................................................Appellant

and

MIKE BAILING ......................................................................................First Respondent

THERESA BAILING ........................................................................Second Respondent

MAGDELINE SCHIPPERS ..................................................................Third Respondent

JOHN MENTOOR ..............................................................................Fourth Respondent

MARTHA MENTOOR ............................................................................Fifth Respondent

THE CITY OF CAPE TOWN ................................................................Sixth Respondent

JUDGMENT DELIVERED: FRIDAY 10 AUGUST 2012

SALDANHA, J

[1.] This is an appeal against a judgment in which the eviction of three families from the premises of the appellant, a registered non-profit charitable organization, was refused. The appellant, as its name suggests, provides refuge on a temporary basis to persons who are homeless and destitute and also provides rehabilitation services to persons afflicted by drug and alcohol addictions. The premises were leased by the appellant from the Provincial Administration of the Western Cape, Department of Public Works, at a nominal renta! of R100.00 per month for the express purpose of “conducting a rehabilitation centre for the upiiftment of destitute families and individuals. ” The appellant is also reliant oh charity and the voluntary assistance of its employees in order to provide the rehabilitation services.

[2.] The first to the sixth respondents, were all residents of the premises and have been so for the last sixteen to seventeen years,

The fourth respondent has since died. The appellant sought the eviction of the respondents and their children in terms of section 4 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of .1998 (‘the Pie Act’) on the ground that they were no longer destitute as each of the families earned an income and those with addictions, were fully rehabilitated;

[3.] In the judgment of the court a quo Dlodlo J found that none of the respondents were in unlawful occupation of the premises and moreover, even if they were, it would

in his view not have been just and equitable to have evicted them in the light of their circumstances and the fact that there was no alternative accommodation available for them.

[4.] The eviction application was lodged in August 2007 and after the first, second, fourth and fifth respondents filed their Answering Affidavits the application was enrolled on the semi-urgent roll for hearing. At the end of October .2009 the appellant formally joined the City of Gape Town as the sixth respondent in the proceedings. On the 26th November 2009 the application was postponed to enable the third respondent to file an opposing affidavit. It appears that by the 24th May 2010 the third respondent had still not filed an opposing affidavit but had indicated. her desire to do so. . The. matter was

thereafter postponed to the 24th August 2010 whereupon it was heard by Dlodlo J. Judgment was handed down on the 15th September 2010 and leave to appeal was granted on the 1st December 2010.

[5.] Prior to hearing the. appeal on the 27 July 2011 we indicated to the legal representative of the sixth respondent that we wished to receive both written and oral submissions on behalf of the sixth respondent in respect of the appeal,

[6.] Having heard argument on the 12 August 2011 and pending our judgment on the merits of the appeal, we issued an Interim Order on 22 September 2011 to the effect that:

(i) The sixth respondent was ordered to engage in meaningful negotiations with the first, second, third and fifth respondent with a view to furnishing them and their

extended families with temporary emergency or any other form of accommodation at the latest as from the 13th January 2012;

(ii) The sixth respondent was ordered together with the legal representatives acting on behalf of the other respondents to furnish the court with a written report on the negotiations and the outcome thereof by no later than the 15th November 2011.

[7.] The sixth respondent filed a report on the 15th November. .2011. It confirmed that the legal representatives of the respective parties had met. The sixth respondent had also considered

the availability of accommodation in its various emergency sites and found that there was no space to accommodate any of the respondents.

The sixth respondent also explained its policies and its limited financial means and stated that it was unable to be of any assistance

to the respondents. Having considered the report of the sixth respondent and having noted the position that it had adopted we were

of the view that the sixth respondent's position may well have been inconsistent with the obligations of a local authority as were set out by the Constitutional Court in the matter of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & 1 Other Lawyers for Human Rights Amicus Curiae GCT37/11 [2011] ZACC33 (2012 (2) BCLR 150 (CC)). Sixth respondent was provided with an opportunity to reconsider its position and was ordered to provide the court with a further report by no later than 23rd February 2012. The outcome of the appeal itself was further postponed pending the further report.

[8.] On the 24th February 2012 the sixth respondent filed the report and stated that without seeking to create any precedent or conceding that its housing plans and policies were inconsistent with the decision of the Constitutional Court in the Blue Moonlight matter (above) it had since found limited space to accommodate the first, second, third and fifth respondents at one of its emergency housing areas at Symphony Way, Delft, also known as “Blikkesdorp". The respondents were required to report to the sixth respondent to take up the accommodation by no later than the 29th February 2012. It appears however that the respondents have not taken up the offer of the alternative accommodation, by the sixth1 respondent and have continued to remain on the premises of the appellant.

Brief factual background.

[9.] The first respondent had been living at the appellant’s ,premises since June 1994. Prior thereto he served a term of imprisonment in Kroonstad and; upon his release his mother, who had been living in a retirement village at the time and thus unable to accommodate him arranged for him to live at the appellant’s premises. The first respondent successfully complied with all of his parole conditions at the appellant’s premises. He met his wife, the second respondent, during 1994 at the premises. She had also moved there in May 1994 with her two sons. The first and second respondent married each other on the 7th December 1994 and thereafter lived together as a family at the appellant’s premises. The first respondent claimed that although he never adopted the second respondent’s two sons he raised them as if they were his own children. He subsequently obtained employment and also assisted at the appellant’s premises as a driver and with the transportation of food and furniture and its staff members. In accordance with the rules of the appellant he paid over to it each month 30% of his earnings. He claimed that the appellant began demanding more money from him and he therefore moved off the premises with his wife and the children to

his wife’s cousin’s place in Mitchells Plain. There they paid rent of an amount of R250.00 per week- Approximately si* months later he moved into a shack in: Ravensmead as he was not able to afford the rental at his. wife’s cousin’s place. In December 1996 he moved back to the appellant’s premises and in May 1997 their youngest daughter was born. Upon their return he claimed that he again attended the appellant’s bible classes and over a period of time he and his wife had become actively involved in various activities and responsibilities at the appellant, Two of the children1 attended the school on the premises. In August 2006 he commenced employment as a driver with LJA Construction in Elsies River where he earned a weekly salary of R600.00. His wife, who was also employed at that stage, resigned from her position in December 2006 as he claimed that he had been, informed by the appellant that if both he and his wife were employed they would be required to leave the premises.

[10.] The second respondent for her part claimed that at the age of 26 she left her mother and stepfather’s house in Ravensmead as she had not got along with her stepfather. She had two children, a seven month old baby and a four year old boy. She had been unemployed and was unable to afford rental accommodation. A social worker referred her to the appellant and in May 1994 she moved into the women’s quarters at the appellant. She was thereafter appointed as a supervisor at the appellant. She met the first respondent at the- appellant’s premises and they had been living together ever since.

[11.] Both the first and second respondent denied any knowledge of what the appellant referred to as The Conditions of Entry to This Church". The conditions are premised on what are referred to as -Christian'*' principles. The appellant claimed that its ministry was to provide

temporary shelter, food and drink to the homeless. The “Conditions” also stated that the appellant was not an old age home or a permanent place: of residence for unemployed persons. It further set out a number of terms of entry, such as the compulsory attendance ;of a fifty day bible course, that residents may not use alcohol or narcotic drugs, that residents may not engage in any employment until the completion of the fifty day bible course and that if any residents were to obtain employment they were required to : pay 30% of their salary towards their accommodation at the appellant. Further, if: any of them received a pension or state grant they were required to pay 30% of it over to the appellant and those that received child grants were required to pay 10% of it over to the appellant. The residents were also required to attend all church services and meetings. The second respondent also denied that she had signed an acknowledgment of the “Conditions" and disputed the signature on a y document reflecting the “Conditions" which was attached to the appellant’s founding papers. Both first and second respondent claimed that they had occupied the

appellant’s premises on the following basis: that 30% of their earnings had to be paid to the appellant, that they would receive food and clothing from the appellant and that their children would attend the school and Sunday school. They denied that they had ever been informed that their occupation was of a temporary nature or that they resided on the basis of a precarium at the appellant’s premises.

[12.] The third respondent had been living at the appellant premises since 1999 with her two adult children and one minor child. She claimed that when she first entered the appellant they were informed that it served as a temporary refuge for the destitute until they were back on their feet and 'ready to go back to society”. She claimed that there was no term fixed for their stay and neither was; there any v oral or written agreement entered into between her and the appellant .Shis also denied that she had signed any "Conditions of Entry" or that she had ever been informed that her stay at the appellant’s premises, was of a temporary nature and on the conditions as referred to in the document.

[13.] The fourth respondent (now deceased) had claimed that he had been living at the appellant’s premises since August 1992 and prior thereto had been employed as a welder at a workshop. He lived at a night shelter in Woodstock, Cape Town. He claimed that he was an alcoholic and realized that he needed : help. He was referred to the appellant for assistance for his addiction it appeared that up to his death he lived at the appellant’s premises. He claimed that within- the first week he had been was appointed as a senior supervisor in the workshop of the appellant. He met the fifth respondent in September 1992 at the appellant’s premises. The fifth respondent had a two year old son and in March 1993 he and the fifth respondent married each other' They had lived together as a family. He had also participated in the

50 day bible course. He had claimed that as a result of his good behavior, his rehabilitation and his involvement in the church he earned the respect of the residents and the staff of the appellant and ; in 1994 was ordained as a . pastor of the appellant He was subsequently ; diagnosed with a permanent heart disease, angina, and in 1998 was placed on strong medication. In 2005 he applied for a disability grant for permanent illness with the state’s Social Services and. received an amount of R780;00 per month. He claimed that due to an incident at the appellant involving his nephew he was dismissed as a pastor. He also claimed that he had paid 30% of his social grant to the appellant but that he had stopped doing so as the appellant had refused to i provide him with food and clothing. Both fourth and fifth respondent claimed that they had also been accommodated at the premises of the appellant on the same ; terms and conditions as that claimed by the first and second respondent. They : had Iso denied that they had ever seen the “Conditions of Entry” and the fifth: respondent likewise denied that she had ever sighed any such document.

[14.] All the respondents disputed the appellant’s claim that they were able to . access alternative accommodation in the area. The fourth respondent had claimed that he had applied in 2007 to the City of Cape Town for state housing and had remained on its waiting list. The first respondent also claimed that he: had applied for state housing in 1995 but was unable to furnish any proof thereof. The respondents further claimed that the appellant had in 2006 instituted proceedings in the Kuilsriver Magistrates Court for their eviction. They claimed that the application was withdrawn because the Department of Public Works did not support the application on the basis that the Department did not believe the respondents to be unlawful occupiers in terms of the PIE Act.

[15.] All of the respondents claimed that they had been fully rehabilitated and that none of them had any disabilities or suffered .ill health except for the fourth respondent.

[16.] The appellant claimed that it provided .accommodation for approximately 1000 homeless and destitute persons. It claimed that there was a lengthy waiting list for persons who currently live on the streets and who are in desperate need of shelter, especially during, the winter months: The appellant stated categorically that it did not provide permanent accommodation for persons arid was merely a temporary place of refuge for the destitute until they were able to : properly deal with their own accommodation needs and were fully rehabilitated to join society. The appellant claimed that it had

given notice to all of the respondents in September 2004 as each of the respondents were employed and were able to obtain alternative

accommodation elsewhere. The appellaht claimed that it had not taken the decision lightly to seek the eviction of the respondents as the forceable removal of such persons went against the very grain and spirit of the appellant. It claimed though that it was left with no other

choice as it had repeatedly requested the respondents to vacate the premises but was met with outright refusals and that a situation had developed where the respondents had become openly contemptuous of the rules of the appellant and abusive to its employees. The appellant claimed -that there was no longer any meaningful relationship or communication with any of them.

[17.] The sixth respondent initially filed a notice that it would abide the decision of the court. However, upon being formally joined as a party to the proceedings, the sixth respondent filed what it referred to as an Explanatory Affidavit. The Head: Sub-Council Housing Mr; Gregory James Goodwin.claimed in the affidavit that he had checked the housing data base of the= sixth

respondent: and he V confirmed that only the fourth and fifth respondents had in about 2007 applied for housing. None of the others

had done so. In the Explanatory Affidavit, Goodwin dealt with the housing policies of the sixth respondent, the huge backlog, and:

explained that the sixth respondent had a limited budget for the purposes of housing. The sixth respondent had established a number of emergency areas to accommodate persons who had been rendered homeless in crisis situations such as in fires or floods and in certain cases of evictions from unsafe or hazardous areas or from private land. The emergency areas had rapidly become over-subscribed due to a large number of evictions and that there was no place to accommodate any more people. Goodwin indicated that new transit areas (TRA’S) were being planned but were being earmarked in particular for flood victims and the relocation of persons living on municipal waste sites. The sixth respondent claimed that it was therefore not able to accommodate the respondents in any of their existing areas or planned transit areas. In the concluding paragraph to the Explanatory Affidavit Goodwin stated that;

“....from the aforegoing the City does not have the capacity to accommodate the respondents and it is important that any eviction order should

appropriately identify the responsibility for and the method of addressing the displacement that will be occasioned by the implementation of the eviction order, it also .undertook to provide any further information to the court if necessary and that it was willing; to do so”

[18.] The judgment of the court a quo was attacked on appeal on: an umber of grounds. The appellant claimed that the court had erred in rejecting ' the appellant’s submission that it was not "in the business of providing accommodation." The basis for the rejection by Dlodlo, J appeared to be four­fold: that the appellant had not provided financial information to support such an allegation, that the submission was misleading, and that the appellant was : shirking both its statutory and constitutional: obligations by not providing accommodation to the respondents.

[19.] The appellant also claimed that the court a quo had erred in finding that the appellant had failed to prove that the '‘Conditions of Entry” governed the respondents’ residence at the premises and that the appellant could therefore not rely on the "Conditions” for the termination of the respondents’ accommodation. The appellant further claimed that the court a quo’s finding that the “Conditions of Entry“ were unconstitutional or at worst contra bonis mores was irrelevant for the proper determination as to whether the respondents were accommodated at the appellant’s premises by way of a precarium. The appellant further submitted that the court a quo had erred in finding that the respondents’ constitutional: ‘right to housing” far outweighed the appellant’s interest and: use of the property for rehabilitation services to people in desperate need. The appellant also submitted that the court a quo was incorrect in finding that the municipality had. delegated its obligation to provide housing to the appellant. The appellant further claimed that the court a quo had erred in finding that because of the unavailability of alternate accommodation it could not find that it would have been just and equitable to have evicted the respondents.

[20.] In my view it appears that the central attack by the appellant on the judgment of the court a quo was directed at the finding that the appellant had incurred by delegation from the municipality a constitutional obligation to

provide accommodation to persons in the position of the respondent.

[21.] The appellant has clearly explained its position that it provided temporary accommodation and relief to persons in desperate

circumstances and to those who received rehabilitation assistance. Moreover, appellant is a non­governmental organization that

provides such services to those in need on a voluntary and charitable basis. It obtains the use of the premises through a lease from the Provincial Government at a nominal rental to provide such invaluable services. The appellant is not an organ of state and there was no; evidence placed before the court that it had ever entered into any contractual arrangement with the municipality or the Provincial Government to carry out any obligations with regard to the realization of the right of access to housing as contained in section 26 of the Constitution. Although the appellant’s own constitution was not placed before the court a quo it appeared from the: lease , agreement that the premises were provided for the very specific purpose of providing accommodation , to persons in desperate circumstances and for rehabilitaition services. It is my view that, contrary to the finding of the court a quo, the. appellant has not attracted any constitutional obligation with regard to the realization of the right of access to housing in terms of section 26: of the Constitution, other than its obligation to comply with the provisions of the: PIE Act and the constitution generally when it sought the eviction of the residents from its premises. There was further no suggestion by the respondents that the appeliaht had not complied with any of the procedural provisions of the PIE Act when it brought the application for eviction.

[22.] Two determinative questions arise from the judgment of the court a quo; namely, (i) whether the respondents were in unlawful occupation of the: appellant’s property and (ii) if found to be in unlawful occupation whether it was just and equitable that they be evicted in terms of the provisions of the “PIE Act”, The appellant claims that it had given notice to the respondents and that it had lawfully terminated their accommodation as they were no longer destitute, they were employed and none of them required any rehabilitation (where necessary) from the appellant. It is apparent that the conditions under which each of the respondents had been accommodated at the appellant’s premises had substantially changed from that when they first arrived; Each of the three families were in receipt of a monthly income and none of them in. fact required any rehabilitation assistance from the appellant. Although they disputed that they received notice of the termination of their accommodation from the: appellant: such denial rang hollow, particularly in the light of the fact that the appellant had' previously launched an application out of the Kuilsriver Magistrates Court in: which it had also sought their eviction.

[23.] Mr. Verster who acted on behalf of the appellant submitted that the court a quo had also erred in regarding the "Conditions, of Entry" as strict terms of a lease agreement. He submitted that the court a quo should have regarded 'it as no more than guidelines for the stay by residents at the appellant’s premises and moreover the conditions were not strictly enforced.. He claimed that it'could certainly not have been considered to be a lease agreement and neither had the appellant relied on it as the vehicle to obtain rental from any of the respondents and as such no lease agreement had ever been agreed to between the parties. Mr. Verster correctly submitted in my view that the “Conditions of Entry” were by and large irrelevant to the determination of the lawfulness of the respondents’ : occupation at the appellant’s premises and so too was the finding of the court a quo that the provisions of the conditions of entry was unconstitutional or contra bonos mores. Although the “Conditions of Entry” are unnecessarily prescriptive of the appellant's religious precepts and while it is apparent that they were unduly and financially onerous on the residents, in particular those that received state grants, the determination of the constitutionality of its terms was not necessary or relevant for the purposes of the eviction application. In my view the court a quo had accordingly erred in coming to the conclusion that the respondents were not in unlawful occupation of the premises.

[24.] The second leg of the enquiry, the determination as to whether it is just and equitable to evict the respondents, required a far more inquisitorial approach by the court a quo than that evidenced from the record, and in particular with regard to the provision of alternative accommodation by the sixth respondent.

See the remarks by Sachs J in the decision of Port Elizabeth Municipality v Peoples Dialogue and Shelter & Others .2001 (4) SA 759, There was no evidence that the sixth respondent had engaged at all with any of the respondents with regard to exploring options of alternative accommodation. Save for setting out in detail its policies and its difficulties in providing accommodation, the sixth respondent disavowed any responsibility to assist the respondents and the appellant in their respective predicaments. It is for that very reason that in the consideration of the appeal this court required of the sixth respondent to properly engage with the respondents on the issue of alternative accommodation. Mr. Simon, who appeared on behalf of the sixth respondent, was readily disposed to assist the court with such engagement and to explore all available options in which the sixth respondent could assist the respondents. From the first report it appeared that meetings had been held between the legal representatives of the respondents, the appellant arid the sixth respondent. The sixth respondent in its first report also indicated to the court, that it had .again considered the availability of emergency housing for the respondents in the event of their eviction but was constrained by a lack, of: availability of any such accommodation.

[25.] The decision of the Constitutional Court in the Blue Moonlight matter was thereafter handed down and we were of the view that the sixth respondent should be given the opportunity of reconsidering its position in the light of this decision. The sixth respondent did so and in the second report it sought to distinguish its position from that of the Johannesburg City Council in the Blue Moonlight matter. It was however able to report to us that it had in the meantime found limited accommodation which had become available to accommodate each of the respondents, in as much as the two reports of the sixth respondent had not been fully debated before this court and in particular whether the housing policies and programs of the sixth respondent complied with its constitutional obligations we make no finding on its compliance or otherwise. We do however wish to record our appreciation to the legal representative and the officials of the sixth respondent who with appropriate urgency and seriousness engaged with the concerns raised by this court in our Interim Orders.

[26.] However, it appears that notwithstanding the respondent’s claim in their opposing affidavits that they were willing to vacate the appellant’s premises in the event of alternative accommodation being available to them they have refused to take up the offer made by the sixth respondent. Each of the respondents had also been given an extremely lengthy period of time within which to have explored other options of alternate accommodation since the inception of the proceedings in August .2007 in the court a quo. The appeal itself has dragged on for a considerable period of time because of the. intervention by the court in seeking the assistance

of the sixth respondent. I am satisfied that the respondents have had ample opportunity to obtain alternative accommodation; and moreover their refusal to take up the offer by the sixth respondent is nothing more than unreasonable in the circumstances.

[27.] In the circumstances I am of the view that having found that the respondents were and continue to be in unlawful occupation of the premises of the appellant, it is both just and equitable that they be evicted. Moreover, the appellant has accommodated each of the families for between fifteen and seventeen years (if not longer) and there remains no reason at all for their continued stay at the appellant’s premises which is required for other persons in far more desperate circumstances than that of the respondents.

[28.] However, in the light of the nature of the matter and the overall financial circumstances of the respondents I am of the view that it is appropriate that they not be saddled with an adverse order of costs.

In the result the following order is made:

(1.) The appeal is upheld.

(2.) The order of the court a quo made by Dlodlo J in case number 8969/2007 on the 15th of September 2010 is set aside and ; substituted with the following order.

(2.1) First, second, third and fifth respondents and ail those holding title under them are evicted from, the premises known as, Covenant City I and II, the Ark City of Refuge, 5 Old National Road, Faure, Western Cape, .(“the premises”)..together with their possession by the 31st October 2012.

(2.2) Should the respondents not vacate the premises on or before such date, the sheriff is authorized to remove the respondents, and anyone occupying through them, together with their possessions from the premises forthwith.

(3.) No order is made as to costs.

I agree.

YEKISO, J

I agree and it is so ordered.

DESAI, J