Blue Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue and Another (2006/11442) [2008] ZAGPHC 275 (12 September 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 2006/11442

In the matter between:

BLUE MOONLIGHT PROPERTIES

39 (PTY) LIMITED Applicant

and

THE OCCUPIERS OF SARATOGA AVENUE First Respondents

THE CITY OF JOHANNESBURG Second Respondent

J U D G M E N T

MASIPA, J:

INTRODUCTION

[1] The applicant is the registered owner of immovable property situated at Portion 1 of Erf 1308, Berea Township, Saratoga Avenue, Johannesburg (“the property”). In May 2006 it launched eviction proceedings against the unlawful occupiers of the property (“the first respondents”). The application was opposed.

[2] On 23 October 2007 Mophosho AJ granted the following order:

“1. Directing that the City of Johannesburg Metropolitan Municipality (‘the City’) be joined in these proceedings by virtue of its interest in the relief sought in the main application and in Part B of this application.

Directing that the main application be stayed pending the determination of this application.”

(I pause to state that the main application refers to the eviction application of May 2006 while Part B of this application is the present application before this Court.)

PRELIMINARY ISSUE

[3] The preliminary issue raised was that joinder of the City in this matter was irregular. It was submitted on behalf of the City that it was not appropriate for a respondent to join the City as a co-respondent in eviction cases that fall under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998. It was pointed out that the City consented to the joinder on the basis that it wished to argue the question of joinder as part of the application against it.

[4] In my view the question whether it is appropriate for the first respondents to join the City as a co-respondent cannot be entertained by this court since a court order in which the City was joined has already been granted. An order of court stands until properly set aside by a court of competent jurisdiction.1 It, therefore, does not assist the City to now come to court and say it consented to the joinder on the basis that it would argue the issue later. In the result the preliminary point cannot be upheld.

[5] In Part B of this application the first respondents seek an order against the second respondent (“City”) declaring that the City is obliged to provide accommodation for persons such as them when such persons are evicted from private property within the area under the City’s control.

[6] The first respondents also seek an order compelling the City to provide a report within two months, stating what steps the City will take to provide the first respondents with temporary emergency accommodation upon their eviction from the property, and what steps the City will take to ensure access to adequate housing thereafter.

BACKGROUND

[7] From the first respondents’ papers the following facts can be gleaned. The property is occupied by 62 adults and nine children. (I pause to state that the figure may have changed since the eviction application was launched.) One of the children, a twelve year old is disabled. Two of the occupiers of the property are pensioners. Ten of the households on the property are headed by women. All the occupiers have lived on the property for more than two years.

[8] The property is located to the rear of “Agin Court”, a block of flats situated at 1 Hatfield Road, Berea, Johannesburg. It has two entrances, one on Hatfield Road and another on Saratoga Avenue.

[9] The property consists of a small factory building, two large garages and a double storey office building. Some occupiers have erected shacks in the factory and garage spaces. Most of the rooms and shacks occupied by the first respondents are numbered.

[10] At the time the eviction application was launched there was electricity although the occupiers claimed to have been without water for four months. Until the end of 2005, most of the occupiers of the property paid rent which varied between R150 to R800 per month.

[11] Many of the occupiers were employed by a company known as Kernel Carpets which was previously housed on the property. The company, which ceased trading in 1999, allowed such occupiers to live on the property provided they paid rental.

[12] After Kernel Carpets ceased trading, the occupiers continued paying rental to the then caretaker of the property who was known to the occupiers only as “Ngcobo”. This situation continued until 2000 when “Northwest Estate Agents”, a property letting company, became involved in collecting rent from the occupiers.

[13] During 2002, another company, “Dynamic Realty Management”, began collecting rent from the occupiers of the property. This company was after some time replaced by a Mr Musi Nguni and a Mr Phanjow who began collecting rent from the occupiers. Meanwhile living conditions on the property had begun to deteriorate and the occupiers had to effect repairs to the property at their own expense.

[14] Two complaints by the occupiers to the Rental Housing Tribunal first against the Northwest Estate Agents, then against Nguni and Phanjow, yielded no results.

[15] In 2005 someone known as “Eddie” came to talk to the occupiers claiming to speak on behalf of the applicant. He promised to renovate the property. Later someone called Nkomo began collecting rent, claiming to do so on behalf of the applicant. The occupants were required to pay rent into separate two accounts held at ABSA Bank.

[16] In January 2006 the occupiers received a notice to vacate the property before Sunday 5 February 2006. This was followed by the present eviction application.

[17] The applicant alleges that it has no knowledge of the circumstances or events which took place prior to 2004 when it purchased the property. It alleges, however, that since it took over the property, as owner, it has not received any rental from any of the first respondents.

[18] Furthermore the applicant alleges that the property is a commercial and not a residential property; that the occupation of the premises does not comply inter alia, with the various relevant statutes and that restoring the property to a position where it would comply with the statutory requirements would not be economically viable.

COMMON CAUSE FACTS

[19] The following are undisputed facts or common cause.

19.1 All of the first respondents are “unlawful occupiers” as contemplated in s 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). All have lived on the property for more than six months. Many of the occupiers have lived on the property for more than two years.

19.2 The occupiers are poor people with an average income of R940,00 per month. Many of them have no income at all. A great number of occupiers has no formal employment and is dependent on informal trading and/or on doing casual “piece-work” in the inner city for a livelihood. Some do heavy manual labour on building sites to survive.

19.3 There is no lawful and affordable alternative accommodation available to the occupiers in the event of their eviction. Some of the occupiers have been homeless before and are terrified of being homeless again.

THE ISSUE

[20] The issue in this matter is twofold namely:

20.1 Whether the City is obliged to provide accommodation (be it temporary or permanently) to unlawful occupiers who are being evicted from private property.

20.2 Whether the City is obliged to provide a report re-housing needs of unlawful occupiers in its area of jurisdiction and if yes what is the scope of such a report.

THE APPLICATION

The City’s obligations relating to providing accommodation or housing to unlawful occupiers who are being evicted from private property.

[21] The first respondents’ contention is that the City is obliged to provide temporary accommodation and eventually permanent housing to the first respondents.

[22] The City’s contention on the other hand is that while it is true that the State has a general obligation to take reasonable measures to ensure progressive realisation of the rights of access to adequate housing, such obligation does not rest on the City alone. The City merely implements national and provincial policy in this regard, it was argued.

[23] The correct legal position is set out in the Constitution of the Republic of South Africa Act 108 of 1996 as well as in the Housing Act No 107 of 1997. The role of local government was also clearly enunciated by the Constitutional Court in the case of the Government of the Republic of South Africa v Grootboom (“the Grootboom judgment”).

[24] In terms of s 7(2) of the Constitution the State is under a duty to “respect, protect, promote and fulfil” the rights in the Bill of Rights. The State includes the City.

[25] Section 26 of the Constitution provides inter alia, that:

“(1) Everyone has the right to have access to adequate housing.

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

In addition no one may be evicted from their home without an order of court made after considering all the relevant circumstances (my emphasis).

[26] Section 26 of the Constitution has a positive and a negative aspect both of which were dealt with in Grootboom2 (supra).

[27] In terms of the positive duties imposed by s 26(2) the State, (and this includes local government), is required to devise and implement a “reasonable” housing programme. The Grootboom judgment set out the broad principles with which a housing programme must comply in order to be reasonable within the meaning of section 26(2).

[28] In summary a State housing programme must, inter alia, be comprehensive, coherent and effective; have a sufficient regard for the social economic and historical context of widespread deprivation; have sufficient regard for the availability of the State’s resources; make short, medium and long term provision for housing needs; give special attention to the needs of the poorest and most vulnerable; be aimed at lowering administrative, operational and financial barriers over time; allocate responsibilities and tasks clearly to all three spheres of government; be implemented reasonably, adequately resourced and free of bureaucratic inefficiency or onerous regulations; respond with care and concern to the needs of the most desperate; achieve more than a mere statistical advance in the number of people accessing housing, by demonstrating that the needs of the most vulnerable are catered for; and a program that excludes a significant segment of society cannot be said to be reasonable.3

[29] It is clear from this judgment that the emphasis is on assisting the poor and desperate people with housing. Also clear is that there should be an element of urgency especially when dealing with people in crisis situations. In this regard the Constitutional Court ruled that persons living with no roof over their heads or otherwise in a situation of crisis could not be expected to wait indefinitely for permanent housing development and that in order to be reasonable a housing programme had to make provision for such persons – albeit of a temporary nature. In this regard Yacoob J held that a housing programme must –

“facilitate access to temporary relief for people who have no access to land, no roof over their heads, for people who are living in intolerable conditions and for people who are in crisis because their homes are under threat of demolition. These people are in desperate need. Their immediate need can be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability encompassed by the definition of housing development in the Housing Act.”>4

THE HOUSING ACT NO. 107 OF 1997

[30] The Housing Act was promulgated in order to give effect to the State’s positive obligations in terms of s 26 of the Constitution. Thus its preamble records that –

“In terms of section 26 of the Constitution of the Republic of South Africa, 1996, everyone has the right to have access to adequate housing, and the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”

[31] The Housing Act imposes specific obligations on local government in this regard. Section 9 requires every municipality to take all reasonable steps within the framework of national and provincial housing legislation and policy to – inter alia, ensure that the inhabitants of its area of jurisdiction have access to adequate housing on a progressive basis;5 set housing delivery goals in respect of its area of jurisdiction6 and initiate, plan, co-ordinate, facilitate, promote and enable appropriate housing development in its area of jurisdiction.7

[32] In terms of section 2 of the Housing Act municipalities must perform the above functions in a manner which, inter alia gives priority to the needs of the poor in respect of housing development.8 (emphasis added)

THE EMERGENCY HOUSING PROGRAMME

[33] The National Housing Code’s “Programme for Housing Assistance in Emergency Housing Circumstances”, adopted in terms of the Housing Act, (“the Emergency Housing Programme”) was a response to the Grootboom’s ruling that the State’s positive obligations in terms of section 26 of the Constitution include an obligation to provide temporary relief for persons in crisis or in a desperate situation.

[34] Clause 12.3.1 of the Emergency Housing Programme defines an emergency as, inter alia, a situation where –

“the affected persons are, owing to situations beyond their control, evicted or threatened with imminent eviction from land or unsafe buildings, or situations where pro-active steps ought to be taken to forestall such consequences or whose homes are demolished or threatened with imminent demolition or situations where pro-active steps ought to be taken to forestall such consequences.9” (my emphasis)

[35] The Emergency Housing Programme stresses that the provision of temporary shelter to persons who qualify for emergency housing should represent an initial phase towards a permanent housing solution and requires municipalities to plan and develop such permanent solutions.

[36] It is clear from the above that the occupiers in the present case are eligible for assistance in terms of the Emergency Housing Programme.

Not so clear are the reasons why the City seems reluctant to assist the occupiers in casu.

[37] One can only infer from the papers filed on behalf of City, that the City’s attitude is that it will not assist persons facing evictions from private land. It seems that the City is of the view that its obligations to assist unlawful occupiers are confined only to cases where occupiers are evicted from public property. That this cannot be correct is clear from the relevant statutes already referred to above as well as from case law.

[38] In the Grootboom judgment it was held that organs of State have a special duty towards persons in crisis who have no access to land, no roof over their heads and who are living in intolerable crisis situations.

[39] There is no doubt that the occupiers in the present case would fit the description above. An eviction application is hanging over their heads and it may be a matter of time before an eviction order is granted. Should it be granted the first respondents will be homeless. Until recently these occupiers were ordinary law abiding citizens. They were lawful occupiers who paid rental until events beyond their control made them unlawful. Some stayed on the property while working for Kernel Carpets which operated from the premises. Even then they paid for their stay. Long after Kernel Carpets terminated its operations they still continued to pay rental. It is common cause that living conditions on the property have deteriorated and that they are less than ideal. Despite this it is very probable that the occupiers would have continued to pay rent if the matter had been discussed with the applicant. These are some of the unique circumstances that should weigh heavily and play a role in any decision taken in the present case.

[40] Of significance also is that the occupiers are relatively settled in that they have made the property their home. A court generally should be reluctant to grant an eviction order against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme (see Port Elizabeth Municipality v Various Occupiers).10

[41] There is no doubt that the applicant is suffering prejudice the longer the unlawful occupiers reside on his property. In fact counsel for the applicant urged this Court to bear in mind that while the first respondents and the City were engaged in the present legal battle the party suffering the most prejudice was the applicant. He submitted that a speedy resolution in this matter was called for.

[42] It is so that under the new constitutional dispensation evictions have taken on a new character in that a landowner cannot enforce his property rights as and when he likes. Courts have been given new responsibilities to ensure that the conflicting rights of the landowner as well as those of homeless people are properly recognised and given effect to.

[43] That courts do strive to balance the section 25(1) property rights against the section 26(1) housing rights has been demonstrated in a number of cases. (See the Supreme Court of Appeal judgment in Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd.)11

[44] Modderklip Boerdery (Pty) Ltd was a private landowner of agricultural land in the Benoni area which successfully applied for an eviction order in the Witwatersrand Local Division of the High Court after its land had been invaded by several thousands unlawful occupiers.12

[45] When the eviction order was not executed by the Sheriff, the landowner brought a fresh application in the Transvaal Provincial Division of the High Court. This application too was successful with the court holding that the State was in breach of its constitutional obligations by failing to give effect to the eviction order.13

[46] The matter was then taken on appeal and the Supreme Court of Appeal had to consider both the original order in the WLD and the enforcement order in the TPD.

[47] Dealing with the clash between section 25 property rights and the section 26 housing rights, Harms JA, writing for a unanimous court, held as follows –

“Basic to this case is Modderklip’s right to its property enshrined by section 25(1) of the Bill of Rights which provides that ‘no one may be deprived of property except in terms of a law of general application’. De Villiers J found that the refusal of the occupiers to obey the eviction order amounted to a breach of this right. Counsel for the state accepted that this finding was justified. Counsel also accepted that the unlawful occupation of Modderklip’s land per se, even had the eviction order not been granted, amounted to a breach of the section 25(1) right. I agree.14

The occupiers have a right of access to housing under section 26(1). That it exists is not in issue. Nor is the extent of the right at stake in this case – it is limited to the most basic. … But the real issue is not the existence of the right; it is whether the State has taken any steps in relation to those who, on all accounts, fall into the category of those in ‘desperate need’. The answer appears to be fairly obvious; it did not. Does the state have any plan for the ‘immediate amelioration of the circumstances of those in crisis?’ The State at all three levels, central, provincial and local gave the answer and it is also no. The medium and long term plans at present also provide no apparent solution.”15 (emphasis added)

[48] Harms JA further stated the following –

“There is another angle. To the extent that we are concerned with the execution of the court order, Grootboom made it clear that the government has an obligation to ensure, at the very least, that evictions are executed humanely. As must be abundantly clear by now, the order cannot be executed – humanenly or otherwise – until the State provides some land.”16 (emphasis added)

[49] The learned judge concluded that “the State was in breach of its obligation to the occupiers [and this] leads ineluctably to the conclusion that the State simultaneously breached its section 25(1) obligations towards Modderklip”.17

[50] Harms J ruled that the only appropriate relief was to allow the occupiers to remain on the land until alternative land or accommodation was made available to them by the State and to require the State to pay constitutional damages to Modderklip for the violation of its constitutionally entrenched property rights.

THE CITY’S DUTY TO PROVIDE THE COURTS WITH MEANINGFUL INFORMATION REGARDING ALTERNATIVE ACCOMMODATION AND LAND

[51] PIE was adopted with the objective of inter alia, ensuring that evictions took place in a manner consistent with the values of the new constitutional dispensation (see Port Elizabeth (supra)18). Hence the need of special judicial control of a process that is both socially stressful and potentially conflictual.19

[52] In eviction proceedings, therefore, generally a court will not be in a position to determine when an eviction might be just and equitable without any input from the relevant municipality. It follows, therefore, that the input must not only be comprehensive but must also be meaningful and specific to assist the court to come to a just decision in a particular case. The court has an obligation in terms of PIE to “have regard to all relevant circumstances”. Before it can fully comply with such an obligation it has to be apprised of such circumstances.

[53] In Absa Bank v Murray and Another the court held that the failure of municipalities to submit meaningful reports to courts in proceedings brought under the PIE Act was unacceptable as it also hampered the courts’ ability to make decisions which were truly just and equitable –

“In my view the failure by municipalities to discharge the role implicitly envisaged for them by statute, that is, to report to the court in respect of any of the factors affecting land and accommodation availability and the basic health and amenities consequences of an eviction, especially on the most vulnerable such as children, the disabled and the elderly, not only renders the service of the notice a superfluous and unnecessarily costly exercise for the applicants, but more importantly, it frustrates an important objective of the legislation. It will often hamper the court’s ability to make decisions which are truly just and equitable.”20

[54] In Ritama Investments v The Unlawful Occupiers of Erf 62, Wynberg and Others ([2007[ JOL 18960 (T) handed down under case number 2005/30782) the court stressed that meaningful information regarding available housing for the homeless is critical in order to determine whether an eviction order should be made at all and, if so, on what terms and conditions justice and equity would be served.

[55] In the present case the City has filed a report (“the report”). The City contends that the report is adequate while the first respondents contend that it is not.

[56] To deal with the issue it is necessary to examine the contents of the report as well as the purpose for which it is submitted.

THE NATURE OF THE CITY’S RESPONSE TO THIS APPLICATION

[57] City has filed a bulky report. What is striking about the report is the following statement:

“Up to 300 notices in terms of section 4(2) of PIE are served on the City every month. It would be administratively and financially impossible for the City to prepare a separate Report in respect of each and every such matter. Instead the City has resolved to prepare a general Report which will be updated every 6 months or in the event of a particularly relevant development. This Report will then be made available in copy form if requested by the Applicant’s attorneys or by the Honourable Court.”21

[58] It is therefore, clear, at the outset, that the report was not prepared for the present proceedings. It is a general report, dealing in general terms, with programmes and plans of the City with regard to land and accommodation in general. What is most disturbing, however, is that whatever plans the City contends it has expressly exclude the first respondents.

[59] The report sets out detailed plans to accommodate occupants evicted for safety reasons from dangerous buildings. It then continues:

“Because of the scale of the task facing the City the City cannot for the time being make any of its emergency shelters available for any persons evicted from property by way of PIE.”22 (emphasis added)

[60] The report deals mainly with the City’s own programmes for the elimination of hundreds of dangerous buildings imposed on it by the National Building Regulations and Building Standard Act 103 of 1977 (“the NBRA”).

[61] The report concludes as follows:

“At present and for the foreseeable future, all temporary accommodation available to the City must be utilised by the City itself in order to provide safe interim accommodation to certain of those currently occupying dangerous buildings. The City cannot absorb the occupiers of scores of buildings into its programme at short notice.”23

[62] Counsel for the City submitted that the City had done all that could be expected of it at this stage and had reported fully to the court. I disagree.

[63] In my view the City’s response leaves much to be desired since it fails to address the issue in this matter. The general report submitted by the City in this matter may be interesting and useful as a progress report as it sets out the City’s housing programmes. It is the kind of report that would probably placate critics who question whether the City is doing something to reduce homelessness. It is definitely not designed to assist the court faced with a peculiar set of circumstances come to a just decision.

[64] Each eviction case is different. Hence the necessity to treat each differently. Circumstances of unlawful occupiers either as individuals or as a group are also unique. In the City’s answering affidavit the deponent states “any obligation that may rest with the State with regard to the first respondents … will depend on a number of factors including personal circumstances of the individuals concerned”. However, there is no indication either in the affidavit or in the report that the circumstances of the first respondents were given consideration. We are here dealing with unlawful occupiers who are desperately poor and some of whom have been rendered homeless before. Such cases require extra vigilance and compassion on the part of the courts. Hence the need to get specific information from the City regarding a specific case. A one-fits-all solution in eviction cases is, therefore, not only unworkable but also unacceptable.

[65] Section 4(7) of PIE reads:

“If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances including … whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupiers and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

[66] The court is enjoined to consider “all the relevant circumstances”. The circumstances expressly include whether alternative land or accommodation is available for the relocation of “the unlawful occupiers”. It is evident that in eviction cases a municipality is obliged and expected to give the court a full picture of, inter alia, whether land has been made available or can reasonably be made available, for the relocation of a specific group of unlawful occupiers not unlawful occupiers in general. Implicit in the above is that the municipality concerned, in order to submit a proper report, must, inter alia, investigate the circumstances of a case as well as consult with the stakeholders, where necessary.

[67] PIE and the Constitution require local authorities to respond in a proper and meaningful way to every eviction application that has the potential to result in homelessness. Counsel for the first respondents correctly submitted that the City’s failure to furnish a proper report is conduct at odds with the spirit and purpose of the Bills of Rights. As was held in the Grootboom judgment at paragraph 44F-H:

“The right of access to adequate housing is entrenched because we value human beings and want to ensure that they are afforded their basic human needs. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality … the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of the most desperate they may not pass the test.”

[68] In Port Elizabeth Municipality (supra) the Constitutional Court reiterated that municipalities are required to address the actual situation of the persons concerned and that it is not sufficient merely to point to general plans and policies –

“… it would not be enough for a municipality merely to show that it has in place a programme that is designed to house a maximum number of homeless people over the shortest period of time in the most cost-effective way. The existence of such a programme would go a long way towards establishing a context that would ensure that the proposed eviction would be just and equitable. It falls short, however, from being determinative of whether and under what conditions an actual eviction order should be made in a particular case.”24 (emphasis added)

[69] In the present case the report has not attempted to even remotely deal with the present eviction application and its implication as well as how or when it would be in a position to assist. A statement such as “the City cannot for the time being make any of its emergency shelters available for any persons evicted from property by way of PIE” is vague in the extreme and not helpful at all. It is clear that the City is trying to distance itself from the problems of the unlawful occupiers in this matter. This indeed is at odds with the Constitution and is tantamount to failure by the City to comply with its constitutional obligations.

THE RELIEF SOUGHT

[70] The relief sought is a structural interdict against the second respondent.

[71] Counsel for the City submitted that structural relief is neither necessary nor appropriate in this case as there has been no allegation that the City has breached its constitutional obligations.

[72] A further submission was that the City’s decision to use all presently available emergency accommodation in the inner City for in the execution of its non-programme for the evacuation of dangerous buildings is a policy decision with which courts should be reluctant to interfere. Neither of the submissions has merit.

[73] Firstly, the response from City, through its inadequate report, has indeed demonstrated a breach by the City of its constitutional and statutory obligations.

[74] That courts can grant structural interdicts where appropriate is clear. (See Fose v Minister of Safety and Security25.) In this case it was stated, inter alia, that courts may grant appropriate relief such as declaration of rights, interdict, mandamus or such other relief as may be required to ensure that rights enshrined in the Constitution are protected and enforced. It was stated further that courts may have to fashion new remedies for this purpose, where necessary. (See also City of Cape Town v Neville Rudolf and Others;26 EN and others v Government of the Republic of South Africa and others27 and Minister of Health v Treatment Action Campaign and Others (2)28.) The facts, however, surrounding the violation of rights will determine what form of relief is appropriate.

[75] In casu an eviction application is pending. Before a court hearing the application can reach a just and equitable decision it has to have the full assistance and cooperation of the municipality. The City has furnished a report but it falls far short of the requirements implicit in section 4(7) of PIE. Without a full and meaningful report the court hearing the application will be ill-equipped to deal with the eviction application properly.

[76] Secondly, the relief sought in this matter is of a general nature and requires the court to leave the City with as much latitude as possible in its design and method of implementation. There has been no suggestion that the City is not entitled to continue with its programme regarding occupiers from dangerous buildings. On the other hand a reasonable programme has to be balanced and flexible and make appropriate provision of attention to housing crises and to short, medium and long term needs. A programme excluding a significant segment of society would not be reasonable.29 There has, therefore, been no encroachment on policy matters in this case.

[77] Having regard to the above I am persuaded that a case has been made out for part of the relief that is sought.

[78] In the result I grant the following order:

78.1 The City is ordered, within four weeks of the date of this order to report to the court what steps it has taken and in future can take to provide emergency shelter or other housing for the first respondents in the event of their eviction as prayed;

78.2 The applicant and the first respondents may within two weeks of the delivery of such report file an affidavit dealing with the report;

78.3 The matter is postponed sine die;

78.4 Costs of the application are reserved.

________________________

T M MASIPA

JUDGE OF THE HIGH COURT

COUNSEL FOR THE APPLICANT G A FOURIE

INSTRUCTED BY SCHINDLER ATTORNEYS

COUNSEL FOR THE FIRST

RESPONDENTS H BARNES

INSTRUCTED BY WITS LAW CLINIC

COUNSEL FOR THE SECOND

RESPONDENT S J DU PLESSIS SC

INSTRUCTED BY MOODIE & ROBERTSON

ATTORNEYS

DATE OF HEARING 30 MAY 2008

DATE OF JUDGMENT 12 SEPTEMBER 2008

1 See Culverwell v Beira 1992 (4) SA 490 (W) at 494B; Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 229B-D.

2 2001 (1) SA 46 (CC).

3 Grootboom, paras 40-46.

4 At para 52.

5 Section 9(1)(a).

6 Section 9(1)(b).

7 Section 9(1)(f).

8 Section 2(1)(a).

9 P 270.

10 [2004] ZACC 7; 2005 (1) SA 217 (CC) para [28]H.

11 2004 (8) BCLR 821 (SCA).

12 Judgment of Marais J: Modderklip Boerdery (Pty) Ltd v Modder East Squatters and Another 2001 (4) SA 385 (W).

13 Judgment of De Villiers J: Modderklip Boerdery (Pty) Ltd v President van die RSA en Andere 2003 (6) BCRL 638 (T).

14 Para [21].

15 Para [22].

16 Para [26].

17 Para [28].

18 Para [11].

19 Para [18].

20 2001 (2) SA 15 (C) para [41]C-D.

21 Page 503 of the papers para [1].

22 Page 509 of the papers para [4].

23 Page 534 of the papers para [41].

24 At para 29. See also the Grootboom judgment at para 44.

25 [1997] ZACC 6; 1997 (3) SA 786 (CC).

26 2004 (5) SA 39.

27 2007 (1) BCLR 84 (D).

28 [2002] ZACC 15; 2002 (5) SA 721 (CC).

29 Grootboom supra para [43]E.