City of Johannesburg v Rand Properties (Pty) Limited and Others (10330/04 , 10331/04 , 10332/04 , 10333/04 , 24101/03 , 13835/04) [2006] ZAGPHC 21; 2007 (1) SA 78 (W); [2006] 2 All SA 240 (W); 2006 (6) BCLR 728 (W) (3 March 2006)

IN THE HIGH COURT OFSOUTH AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

(WITWATERSRANDLOCAL DIVISION)

(

WITWATERSRAND

LOCAL DIVISION)

CASE NUMBERS: 04/10330; 04/10331;

CASE NUMBERS

: 04/10330; 04/10331;

04/10332; 04/10333; 03/24101; 04/13835

In the matter between:

THE CITY OFJOHANNESBURGApplicant

THE CITY OF

JOHANNESBURG

Applicant

AND

RANDPROPERTIES (PTY) LIMITEDFirst Respondent

RAND

PROPERTIES (PTY) LIMITED

First Respondent

OCCUPIERS OF ERF 381,

BEREATOWNSHIPSecond Respondent

BEREA

TOWNSHIP

Second Respondent

MINISTER OF TRADE AND INDUSTRYThird Respondent

MINISTER OF TRADE AND INDUSTRY

Third Respondent

PRESIDENT OF THE REPUBLIC OF

SOUTH AFRICAFourth Respondent_______________________________________________________________

Fourth Respondent_______________________________________________________________

JUDGMENT

JAJBHAY J:INTRODUCTION

JAJBHAY J:

INTRODUCTION

[1]Theconsequencesof rendering a person homeless in the circumstances postulated in this casehavea very wide reach. It affects the very quality of a person’s life, dignityand a person’s freedom and security:

[1]

The

consequences

of rendering a person homeless in the circumstances postulated in this case

have

a very wide reach. It affects the very quality of a person’s life

, dignity

and a person’s freedom and security:

“To live in a place, and to have established one’s own personal habitat with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognise adequate housing as a basic and fundamental human right.”United Nations Housing Rights Programme, Report No 1, “Housing Rights Legislation:Review of International and National Legal Instruments” (2002) at p1.

“To live in a place, and to have established one

’

s own personal habitat with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognise adequate housing as a basic and fundamental human right.”

United Nations Housing Rights Programme, Report No 1, “Housing Rights Legislation:Review of International and National Legal Instruments” (2002) at p1.

The right to housing as a basic human right has been expressed ininternational and national human rights instrumentsThe right to adequate housing has been enunciated under Article 25(1) of the UniversalDeclaration of Human Rights. Article 11(1) of the ICESCR provides that “States Parties tothe present Covenant recognise the right of everyone to an adequate standard of living forhimself and his family, including adequate… housing, and to the continuous improvementof living conditions.” Similar provisions on the right to adequate housing are contained in theConvention on the Elimination of All Forms of Racial Discrimination, the Convention on theElimination of Discrimination Against Women, the Convention of the Rights of the Child, theInternational Convention on the Suppression and Punishment of the Crime of Apartheid,and the International Convention Relating to the Status of Refugees.The African Charteron Human and Peoples’ Rightsmakes no specific mention ofthe right to adequatehousing.However, other provisions such as the right to life (Art.4) and to physical andmental health(Art.16) arguably provide a basis for the assertion of the right to housing.

The right to housing as a basic human right has been expressed in

international and national human rights instruments

The right to adequate housing has been enunciated under Article 25(1) of the UniversalDeclaration of Human Rights. Article 11(1) of the ICESCR provides that “States Parties tothe present Covenant recognise the right of everyone to an adequate standard of living forhimself and his family, including adequate… housing, and to the continuous improvementof living conditions.” Similar provisions on the right to adequate housing are contained in theConvention on the Elimination of All Forms of Racial Discrimination, the Convention on theElimination of Discrimination Against Women, the Convention of the Rights of the Child, theInternational Convention on the Suppression and Punishment of the Crime of Apartheid,and the International Convention Relating to the Status of Refugees.

The African Charteron Human and Peoples’ Rights

makes no specific mention of

the right to adequatehousing.

However, other provisions such as the right to life (Art.4) and to physical and

mental health

(Art.16) arguably provide a basis for the assertion of the right to housing.

. Many S

tates have

adopted and ratified these human rights; however their implementation still

appears to present difficulties for homeless people. International humanrights law stresses that all States, notwithstanding their level of economic

appears to present difficulties for homeless people. International human

rights la

w stresses that all S

tates, not

withstanding their level of economic

development, possess a minimum core obligation to ensure the satisfactionof, at the very least, minimum essential levels of each of the internationalrights adopted. A minimum core requirement with respect to the right toadequate housing entailsa State’s duty to immediately address the housingneeds of its respective population, if any significant number of individuals are

development, possess a minimum core obligation to ensure the satisfaction

of, at the very least, minimum essential levels of each of the international

rights adopted. A minimum core requirement with respect to the right to

adequate housing entails

a S

tate’s duty to immediately address the housing

needs of its respective population, if any significant number of individuals are

deprived of basic shelter and housing. To do otherwise is considered aprimafacieviolation of the right to adequate housing.

deprived of basic shelter and housing. To do otherwise is considered a

prima

facie

violation of the right to adequate housing.

[2]These applications have beenconsolidated and set down together.TheApplicant seeks the eviction of over 300 people from 6 properties in theJohannesburginner city. The Applicant seeks to justify their eviction by

[2]

These applications have been

consolidated and set down together

.

Applicant seeks the eviction of over 300 people from 6 properties in the

J

ohannesburg

inner city. The Applicant seeks to justify their eviction by

invoking section 12(4)(b) of the National Building Regulations and BuildingStandards Act 103 of 1977 (“the NBRA”)“Demolition or alteration of certain buildings.- (1) If the local authority in question is ofthe opinion that –(a) any building is dilapidated or in a state of disrepair or shows signs thereof;(b) any building or the land on which a building was or is being or is to be erected or

invoking section 12(4)(b) of the National Building Regulations and Building

Standards Act 103 of 1977 (“the NBRA”)

“

Demolition or alteration of certain buildings

.- (1) If the local authority in question is ofthe opinion that –(a) any building is dilapidated or in a state of disrepair or shows signs thereof;(b) any building or the land on which a building was or is being or is to be erected or

any earthwork is dangerous or is showing signs of becoming dangerous to life or

property, it may by notice in writing, served by post or delivered, order the ownerof such building, land or earthwork, within the period specified in such notice todemolish such building or to alter or secure it in such manner that it will no longerbe dilapidated or in a state of disrepair or show signs thereof or be dangerous orshow signs of becoming dangerous to life or property or to alter or secure suchland or earthwork in such manner that it will no longer be dangerous or showsigns of becoming dangerous to life or property: Provided that if such localauthority is of the opinion that the condition of any building, land or earthwork issuch that steps should forthwith be taken to protect life or property, it may

take such steps without serving or delivering such notice on or to the owner ofsuch building, land or earthwork and may recover the costs of such steps fromsuch owner.

(4) If the local authority in question deems it necessary for the safety of any person, it may bynotice in writing, served by post or delivered –

(a) order the owner of any building to remove, within the period specified in suchnotice, all persons occupying or working or being for any other purpose in suchbuilding therefrom, and to take care that any person not authorised by such localauthority does not enter such building;

(b) order any person occupying or working or being for any other purpose in anybuilding, to vacate such building immediately or within a period specified in suchnotice.

(5) No Person shall occupy or use or permit the occupation or use of any building in respectof which a notice was served or delivered in terms of this section or steps were taken bythe local authority in question in terms of subsection (1), unless such local authority hasgranted permission in writing that such building may again be occupied or used.

,

which concern the

Applicant's

ability to exercise its statutory powers and duties to prevent dangerous living conditions in its area

of

jurisdiction

[3] The present matter incorporates the following applications:

[

3

] The present matter incorporates the following applications:

TheJoel StreetApplicationsErf 381 Berea –City of Johannesburg v Rand Properties (Pty) Ltd and others(Case No:04/10330); Erf 377 Berea –City of Johannesburg v Rand Properties (Pty) Ltd and others(Case No: 04/10331); Erf 379 & Erf 380 Berea –City of Johannesburg v Rand Properties (Pty) Ltd and others(Case No: 04/10332); Erf 378 & Erf 279 Berea –City of Johannesburg v Rand Properties (Pty) Ltd and others(Case No: 04/10333).The197 Main StreetApplicationCity ofJohannesburgv Zinns Investment CC and others(Case No: 03/24101).TheSan JoseApplicationCity ofJohannesburgv Louw and others(Case No: 04/13835).

Joel Street

Applications

Erf 381 Berea –

City of Johannesburg v Rand Properties (Pty) Ltd and others

(Case No:04/10330); Erf 377 Berea –

(Case No: 04/10331); Erf 379 & Erf 380 Berea –

(Case No: 04/10332); Erf 378 & Erf 279 Berea –

(Case No: 04/10333).

197 Main Street

Application

City of

Johannesburg

v Zinns Investment CC and others

(Case No: 03/24101).

San Jose

v Louw and others

(Case No: 04/13835).

THE ISSUES

[4]In each of the above applications the Applicant seeks to exercise its

[4

]

In each of the above applications the Applicant seeks to exercise its

statutory powers in terms of the NBRA, as well as in terms of theHealth Act 63 of 1977Section 20 of the Health Act 63 of 1977 imposes the following duties on the Applicant:“20. Duties and powers of local authorities-(1)

statutory powers in terms of the NBRA, as well as in terms of theHealth Act 63 of 1977

Section 20 of the Health Act 63 of 1977 imposes the following duties on the Applicant:“20. Duties and powers of local authorities-

(1)

Every local authority shall take all lawful, necessary and reasonably practicable measures-(a)

Every local authority shall take all lawful, necessary and reasonably practicable measures-

(a)

to maintain its district at all times in a hygienic and clean condition;(b)to prevent the occurrence within its district of:(i)

to maintain its district at all times in a hygienic and clean condition;

(b)

to prevent the occurrence within its district of:

(i)

any nuisance;

(ii) any unhygienic condition;(iii) any offensive condition or(iv) any other condition which will or could be harmful or dangerous to the health of any person within its district or the district of any other local authority, or where a nuisance or condition referred to in sub paragraphs (i) to (iv), inclusive, has so occurred, to abate, or cause to be abated, such nuisance, or remedy, or cause to be remedied, such condition, as the case may be.”

and the Applicant’s fire by-laws.

[5]

The Applicant claims that it is entitled to secure the “evacuation” of the

[5

]

The Applicant claims that it is entitled to secure the “evacuation” of the

occupiers from the properties in terms of section 12(4)(b) of the NBRA and that doing so will serve the good of promoting public health and safety and reversing inner city decay in terms of its Johannesburg Inner City Regeneration Strategy.

[6] The essence of the Applicant’s resistance to the Respondents’ opposition and counter-application is that if successful this would

[6

] The essence of the Applicant’s resistance to the Respondents’ opposition and counter-application is that if successful this would

“effectively put paid to the Applicant’s efforts to eradicate dangerousliving conditions.”The Applicant appeals to the Court“not to place a‘stop’ sign on its difficult road to upliftment of the inner city.”

“effectively put paid to the Applicant’s efforts to eradicate dangerousliving conditions.”

The Applicant appeals to the Court

“not to place a‘stop’ sign on its difficult road to upliftment of the inner city.”

[7] The provisions of section 12(1) and 12(4) of the NBRA provide for theissuing of notices by the Applicant directing the demolition, alteration orevacuation of buildings in circumstances where the Applicant is of theopinion that the building is in such a state as to be dangerous or to showsigns of becoming dangerous to life or property, or where it deems itnecessary for thesafety of any person. Section 12(5) prohibits theoccupation of any building in respect of which a notice has beendelivered, without the Applicant'swrittenconsent.

[7] The provisions of section 12(1) and 12(4) of the NBRA provide for theissuing of notices by the Applicant directing the demolition, alteration orevacuation of buildings in circumstances where the Applicant is of theopinion that the building is in such a state as to be dangerous or to showsigns of becoming dangerous to life or property, or where it deems itnecessary for the

safety of any person. S

ection 12(5) prohibits theoccupation of any building in respect of which a notice has beendelivered, without the Applicant's

written

consent.

[8] The provisions of the Fire Bylaws allow the chief fire officer to issuenotices to remedy firehazards identified on premises and empower theApplicants to take such steps as arenecessary in the opinion of the chieffire officer to remove the risk or danger.

[8] The provisions of the Fire Bylaws allow the chief fire officer to issuenotices to remedy firehazards identified on premises and empower the

Applicants to take such steps as are

necessary in the opinion of the chieffire officer to remove the risk or danger.

[9] Section 20 of the Health Act directs the Applicant to take all lawful,necessary and reasonably practicable measures to maintain its district atall times in a hygienic and clean condition and to prevent conditions thatwill or could be harmful or dangerous to the health of any person.

[10] Each application is opposed on behalf of those occupying the relevantbuilding.

[11] The opposition in each case entails:

11.1 a dispute about the degree of safety or fitness of the building for human habitation;

11.2 a contention that the Applicant is not able to invoke its Fire Bylaws or the provisions of the Health Act to obtain the relief sought;

11.3 a contention that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) are applicable to the exercise of the Applicant's powers in the instant case, that at least some of the occupiers are unlawful occupiers as defined in terms of PIE and are therefore protected by its provisions, and that the application of the provisions of PIE, in particular therequirement concerning suitablealternative accommodation in section 6, leads to the conclusion that the relief sought would not be just and equitable in the circumstances;

11.3 a contention that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) are applicable to the exercise of the Applicant's powers in the instant case, that at least some of the occupiers are unlawful occupiers as defined in terms of PIE and are therefore protected by its provisions, and that the application of the provisions of PIE

, in particular the

requirement concerning suitable

alternative accommodation in section 6, leads to the conclusion that the relief sought would not be just and equitable in the circumstances;

11.4 a challenge to the lawfulness of the administrative conduct in issue on the basis of a failure to afford the Respondents a fair hearing, and immediately approachingthe court for relief;

11.4 a challenge to the lawfulness of the administrative conduct in issue on the basis of a failure to afford the Respondents a fair hearing

, and immediately approaching

the court for relief;

11.5 a contention that the occupiers' rights to access to adequate housing in terms of section 26 of the Constitution of the Republic of South Africa Act 108 of 1996Section 26 of the Constitution reads as follows-Housing26(1) Everyone has the right to have access to adequate housing.(2)

11.5 a contention that the occupiers' rights to access to adequate housing in terms of section 26 of the Constitution of the Republic of South Africa Act 108 of 1996

Section 26 of the Constitution reads as follows-

Housing

26(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.(3)No one may be evicted from their home, or have their home demolished, without an order of Court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

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

(3)

No one may be evicted from their home, or have their home demolished, without an order of Court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

would be unjustifiably violated if the relief sought were granted to the Applicant;

11.6 a contention, in the counter claim that certain of the provisions of section 12 of the NBRA are unconstitutional for violating the right not to be arbitrarily evicted from one's home enshrined in section 26(3) of the Constitution and the right of equality enshrined in section 9 of the Constitution;

11. 7 a contention that the Applicant has failed to fulfil its positive obligations towards the occupiers in terms of sections 26(1) and 26(2) of the Constitution to achieve progressive realisation of the right to access to adequate housing, and a contention that this failure precludes the Applicant from obtaining the relief it seeks;

[12] The Respondents have instituted a counterapplication in whichit seeks the following relief;

[12] The Respondents have instituted a counterapplication in which

i

t seeks the following relief;

12.1 reviewing and setting aside Applicant's decision ineach case to issue the relevant notice in terms ofthe NBRA;

12.2 declaring the practice of securing evictions byreliance on the NBRA, the Health Act and the FireBylaws to be unconstitutional as violating sections26(3) and 9 of the Constitution;

12.3declaring section 12(4)(b), 12(5) and 12(6) of theNBRA unconstitutional as violating sections 26(3)and 9 of the Constitution;

12.3

declaring section 12(4)(b), 12(5) and 12(6) of theNBRA unconstitutional as violating sections 26(3)and 9 of the Constitution;

12.4 declaring that the Applicant's housing programmefails to comply with the constitutional and statutoryobligations of the Applicant in its failure to addressthe situation of those in desperate need;

12.5 declaring such failure to be a violation of section26(1) and/or 26(2) of the Constitution;

12.6 interdicting the Applicant from seeking to evict the

relevant occupiers until suitable alternativeaccommodation is provided to them; and

12.7 a structural interdict to procure compliance by theApplicant with its positive obligations in terms ofsections 26(1) and 26(2) of the Constitution towardsthe relevant occupiers.

THE MATERIAL FACTS

[13] In the present matter there are three different kinds of property at issue.All the buildings are in urban and densely populated areas.

[14] TheJoel Streetproperties entail use of residential houses in the suburbofBerea. In each case the house has been internally partitionedto accommodate several families, and shacks have been erected in the

[14] The

properties entail use of residential houses in the suburbof

Berea

. In each case the house has been internally partitionedto accommodate several families, and shacks have been erected in the

yard of the house. The Applicant regards them“as unfit for humanhabitation, unsafe, a fire hazard that offers no room for escape andconstituting a high risk of disease, particularly given the abundance ofhuman waste.”

yard of the house. The Applicant regards them

“as unfit for humanhabitation, unsafe, a fire hazard that offers no room for escape andconstituting a high risk of disease, particularly given the abundance ofhuman waste.”

[15] TheSan Josebuilding is a highrise building inBerea. According to theApplicant“this building is without water and electricity supply andcovered in human waste.”Open fires are made in a densely packedhigh rise environment“and all means of escape in case of fire have beenblocked up by waste and materials.”The Applicant regards theconditions as unfit for human habitation and“extreme.”

[15] The

building is a highrise building in

. According to theApplicant

“this building is without water and electricity supply andcovered in human waste.”

Open fires are made in a densely packed

high rise environment

“and all means of escape in case of fire have beenblocked up by waste and materials.”

The Applicant regards the

conditions as unfit for human habitation and

“extreme.”

[16] The building at197 Main Streetis an erstwhile doublestorey retail building, the front of which still displays"Motorcycle Spares Centre".The top portion of this building has been gutted by fire, so that the first floor has no roof. The interior is covered with combustible partitioning. Open fires are made. The Applicant regards the conditions as unfit for human habitation and“extreme.”

[16] The building at

is an erstwhile doublestorey retail building, the front of which still displays

"Motorcycle Spares Centre".

The top portion of this building has been gutted by fire, so that the first floor has no roof. The interior is covered with combustible partitioning. Open fires are made. The Applicant regards the conditions as unfit for human habitation and

[17] In each application, there is a dispute about the precise conditions of thebuilding. The disputes, in essence, concern the degree to which thebuilding is unfit for human habitation, dangerous and unhygienic.[18] An inspectionin locowas conducted where it appeared that theconditions, were in fact appalling and at times disgraceful, however farfrom the“extreme”conditionscomplainedofbythe Applicant.TheRespondents can be classified as being in an emergency situation.I did

[17] In each application, there is a dispute about the precise conditions of thebuilding. The disputes, in essence, concern the degree to which thebuilding is unfit for human habitation, dangerous and unhygienic.[18] An inspection

in loco

was conducted where it appeared that theconditions, were in fact appalling and at times disgraceful, however far

from the

“extreme”

conditions

complained

by

the Applicant.

TheRespondents can be classified as being in an emergency situation.

I did

not observeany of the properties “covered in human waste”.It is clearthat the Respondents have attended to the cleaning and sanitising of the

not observe

any of the properties “covered in human waste”.

It is cleart

hat the Respondents have attended to the cleaning and sanitising of the

buildingssince the initial inspection. In each of the buildings thereexistsfireand health risks. The building at197 Main Streetis already partiallydestroyed by fire.[19] The following facts are either not in dispute or alternatively are commoncause.The properties are in an abysmal condition.Manyoccupiers oneach property are illegal occupiers as contemplated in section 1of PIE.Many of the occupiers on each property have been in occupation for asubstantial period of time, some for as long as 10 years. The occupiersof the properties are desperately poor people. Most of the occupiershave no formal employment. In fact many of them have no incomewhatsoever.

buildings

since the initial inspection

. In each of the buildings there

existsfire

and health risks. The building at

is already partially

destroyed by fire.

[19] T

he following facts are either not in dispute or alternatively are common

cause.

The properties are in an abysmal condition.

Many

occupiers on

each property are illegal occupie

rs as contemplated in section 1

of PIE.

Many of the occupiers on each property have been in occupation for a

substantial period of time, some for as long as 10 years. The occupiers

of the properties are desperately poor people. Most of the occupiers

have no formal employment. In fact many of them have no income

whatsoever.

[20] The occupiers of the properties who earn some income do so by virtue of opportunities afforded by the close proximity of the properties to the centre ofJohannesburg. These include–

[20] The occupiers of the properties who earn some income do so by virtue of opportunities afforded by the close proximity of the properties to the centre of

. These include

–

20.1

Informal trading;

20.2

Collecting scrap metal, paper and cardboard for sale to

recycling companies located in centralJohannesburg;andcleaning and doing other odd jobs in houses inHoughton, Yeoville and other inner city suburbs.

recycling companies located in central

;and

c

leaning and doing other odd jobs in houses in

Houghton, Yeoville and other inner city suburbs.

20.3

The livelihood strategies developed by the occupiers of

the properties depend crucially on living at a site in, or adjacent to, the inner city.

20.4

Relocation to an informal settlement or township outside

the inner city would destroy many of the livelihoodstrategies developed by the occupiers of the properties.

20.5

Prior to taking its decisions to issue the notices in terms

of section 12(4)(b) of the NBRA in respect of eachproperty, the Applicant did not give the occupiers of theproperties a hearing.

[21]Prior to instituting the applications the Applicant did not approach the occupiers of the properties to discuss:how any steps to improve health or safety on the properties might be taken; orthe question of suitable alternative accommodation for the occupiers of the properties.In addition, there isno suitable alternative accommodationavailable to the occupiers of the properties in the inner city.

[21]

Prior to in

stituting the applications the A

pplicant did not approach the occupie

rs of the properties to discuss:

how any steps to improve health or safety on the properties might be taken; or

the question of suitable alternative accommodation for the occupiers of the properties.

In addition, there is

no suitable alternative acc

ommodation

available to the occupiers of the properties in the inner city.

[22]The Applicant contendsthat many buildings in the inner city areover crowded, and people within them live in conditions which are unacceptable from a health and safety perspective. The Applicantconcedesthat the occupiers of these buildings are constrained by financial circumstances to pay for basic needs, let alone basic rental. The Applicant inan affidavit that was submittedduring the proceedings indicated that it has approved a model for affordable rental accommodation during December 2005. This model has not been clearly designed. At this point in time all it does is that it articulates a good intention.This model does not cater for persons such as the Respondents.This affidavit deposed to by the acting city manager clearly manifests a realisation of the gravity of the problem.

[22]

The Applicant contends

that many buildings in the inner city are

over crowded, and people within them live in conditions which are unacceptable from a health and safety perspective. The Applicant

concedes

that the occupiers of these buildings are constrained by financial circumstances to pay for basic needs, let alone basic rental. The Applicant in

an affidavit that was submitted

during the proceedings indicated that it has approved a model for affordable rental accommodation during December 2005. This model has not been clearly designed. At this point in time all it does is that it articulates a good intention.

This model does not cater for persons such as the Respondents.

This affidavit deposed to by the acting city manager clearly manifests a realisation of the gravity of the problem.

[23] The Applicant’s applications to secure the eviction of the occupiers from the properties are part and parcel of its Inner City Regeneration Strategy which requires the shutting down of “bad” buildings or “sinkholes.” The Applicant’s Inner City Regeneration Strategy will affect thousands of poor occupiers in the inner city in this way.

[23

] The Applicant’s applications to secure the eviction of the occupiers from the properties are part and parcel of its Inner City Regeneration Strategy which requires the shutting down of “bad” buildings or “sinkholes.” The Applicant’s Inner City Regeneration Strategy will affect thousands of poor occupiers in the inner city in this way.

THEJOEL STREETAPPLICATIONS

THE

JOEL STREET

APPLICATIONS

[24] Mr du Plessis SC acting on behalf of the Applicant informed me during his submissions that the Applicant was satisfied that the Joel Street properties did not constitute a health or safety risk at this point in time. The adverse conditions complained of in the founding papers have been largely attended to and accordingly this matter should be postponedsine die.For the reasonsthat evolve in this judgment, I believe that I should not accede to this request. The exercise carried out onthis property establishes that the occupants can maintain and comply with the necessary health and safety requirements if afforded the assistance and co-operation.THE APPLICATIONS AND COUNTER APPLICATIONS

24

] Mr d

u Plessis SC acting on behalf of the Applicant informed me during his submissions that the Applicant was satisfied that the Joel Street properties did not constitute a health or safety risk at this point in time. The adverse conditions complained of in the founding papers have been largely attended to and accordingly this matter should be postponed

sine die.

For the reasons

that evolve in this judgment

, I believe that I should not accede to this reque

st. The exercise carried out on

this property establishes that the occupants can maintain and comply with the necessary health and safety requirements if afforded the assistance and co-operation.

THE APPLICATIONS AND COUNTER APPLICATIONS

[25] In the present matter I intend dealing with the fundamental rightsof access to adequate housingenshrined in section 26 of the Constitution, enjoyed by the Respondents in matters such as the present.Accordingly, andfor the reasons that I have arrived at my conclusion, I do not deem it necessary to deal with any of the other prayers sought in either the Applicant’s application or the Respondents’ counter application.

[25

] In the present matter I intend dealing with the fundamental rights

of access to adequate housing

enshrined in section 26 of the Constitution, enjoyed by the Respondents in matters such as the present.

Accordingly, and

for the reasons that I have arrived at my conclusion, I do not deem it necessary to deal with any of the other prayers sought in either the Applicant’s application or the Respondents’ counter application.

THE APPLICANT’S CONSTITUTIONAL AND STATUTORY OBLIGATIONS

[26] The historical, social and political background highlighted inModder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd2004 (8) BCLR 821(SCA)

[26

] The historical, social and political background highlighted in

Modder East Squatters v Modderklip Boe

r

dery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boe

dery (Pty) Ltd

2004 (8) BCLR 821(SCA)

as well as in

Port Eliz

abeth Municipality v Various Occupiers

[2004] ZACC 7;2005 (1) SA 217(CC)

[2004] ZACC 7

2005 (1) SA 217

coupled with the relevant constitutional and legal provisions indicate that eviction is fundamentally a constitutional matter. The historical, contextual approach to eviction under our new constitutional order has now been accepted unequivocally by the

Constitutional Court

Port Elizabeth

Municipality

above at paras 8-23 cited with approval in President of the RSAv Modderkip Boerdery (Pty) Ltd2005 (5) SA 3(CC)at paras 36, 55, 56.

2005 (5) SA 3(CC)

In matters such as

the present the

municipalities’

constitutional duty, to promote a safe and healthy environment

Section 152(1)(d) of the Constitution- dealing with the objects of local government

towards the general public

has to be reconciled with the S

tate’s constitutional duty towards the poor and the destitute such as the present Respondents. The Constitution emphasises the need for concrete and case-specific solutions.

[27] In the decision ofGovernment of theRepublicofSouth Africav Grootboom2001(1) SA 46 (CC)

[27

] In the decision of

Government of the

Republic

South Africa

v Grootboom

2001(1) SA 46 (CC)

, the

demonstrated a new commitment to finding ways of enforcing the social and economic rights guaranteed in the Constitution. In so doing, we have now moved away from an insistence on the mere rationality

of s

tate actions t

o a standard that requires the S

tate and other relevant stake holders to act reasonably to fulfil their constitutional duties regarding social and economic rights.

[28] In thePortElizabeth Municipalitycase Sachs J emphasised that“(I)n sum, the Constitution imposes new obligations on the Courts concerning rights relating to property not previously recognised by the common law. It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant rightnot arbitrarilyto be deprived of their home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of their home, or vice versa. Rather, it is to balance out and reconcile the opposed claims in as just a manner as possible, taking account of all the interests involved and the specific factors relevant in each particular case.”Port ElizabethMunicipalitysupra at para [23]

[28

] In the

Port

Eliz

abeth Municipality

case Sachs J emphasised that

“(

I)

n sum, the Constitution imposes new obligations on the Courts concerning rights relating to property not previously recognised by the common law. It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant right

not arbitrarily

to be deprived of their home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of their home, or vice versa. Rather, it is to balance out and reconcile the opposed claims in as just a manner as possible, taking account of all the interests involved and the specific factors relevant in each particular case.”

supra at para [23]

The same may be said about the competing rights and obligations

vis

-

a vis

a municipa

lity and occupiers such as the Respondents

in the present matter.

[29]In matters such as the present, the mere establishment by a municipality that occupation is unhealthy or unsafe does notautomaticallyrequire a Court to make an eviction order. This merely triggers the Court’s discretion. The degree of emergency and desperation of the people who have been living for many years in these squalid conditions will always have to be considered. Where occupiers have been occupying the buildings for some time,(suchas in the present instance)has to be looked at with far greater sympathy than those who deliberately invade the buildings with a view to disrupting a housingregenerationprogramme contemplated by a municipality.

[29

In matters such as the present, t

he mere establishment by a municipality that occupation is unhealthy or unsafe does not

automatically

require a Court to make an eviction order. This merely triggers the Court’s discretion. The degree of emergency and desperation of the people who have been living for many years in these squalid conditions will always have to be considered

. W

here occupiers have been oc

cupying the buildings for some time,

(such

as in the present instance)

has to be looked at with far greater sympathy than those who deliberately invade the buildings with a view to disrupting a housing

regeneration

programme contemplated by a municipality.

[30] Mokgoro J emphasised that section 26of the Constitutionmust be seen as making a decisive break from the past. The Constitutionemphasises the importance of adequate housing and in particular security of tenure in our new constitutional democracy. The indignity suffered as a result of evictions from homes, forced removals and the relocation to land often wholly inadequate for housing needs has to be replaced with a system in which“the State must strive to provide access to adequate housing for all and, where that exists, refrain from permitting people from being removed unless it can be justified.”Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others[2004] ZACC 25;2005 (2) SA 140at para[29].

[30

] Mokgoro J emphasised that section 26

of the Constitution

must be seen as making a d

ecisive break from the past. The Constitution

emphasises the importance of adequate housing and in particular security of tenure in our new constitutional democracy. The indignity suffered as a result of evictions from homes, forced removals and the relocation to land often wholly inadequate for housing needs has to be replaced with a system in which

“the S

tate must strive to provide access to adequate housing for all and, where that exists, refrain from permitting people from being removed unless it can be justified.”

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others[2004] ZACC 25;2005 (2) SA 140at para[29].

[2004] ZACC 25

2005 (2) SA 140

[29]

The learned Justice emphasised in that case, that the underlying problem, is not about greed, wickedness or carelessness but poverty. The same can be said here.

“What is really a welfare problem gets converted into a property one. People at the lower end of the market are quadruply vulnerable: they lack income and savings to pay for the necessities of life; they have poor prospects of raising loans, since their only asset is a State-subsidised house; the consequences of inability to pay, under the law as its stands, can be drastic because they live on the threshold of being cast back into the ranks of the homeless in informal settlements, with little chance of escape; and they can easily find themselves at the mercy of conscienceless persons ready to abuse the law for purely selfish gain.”

Jaftha supra at para 30.

[31] Under the previousinsensitive andoppressive order, the scope of evictions based on the stronger right to possession was exercised in an inhumane and arbitrary fashion. The State was garbed with the power to remove people from land and property when State security, public health or the public interest demanded and justified such callous action. Powers of this nature existed in different forms.See AJ van der Walt “Exclusivity of ownership, security of tenure, and eviction orders: Amodel to evaluate South African land reform legislation” 2002 TSAR; Compare AJ van derWalt “, Dancing with Codes- Protecting, developing, limiting and deconstructing propertyrights in the constitutional State” (2001)118 SALJ for a more detailed discussion.Apartheid land law was entrenched in over one hundred items of legislation. The mostimportant of which, the Prevention of Illegal Squatting Act 52 of 1951 and the Group AreasAct 63 of 1966, criminalised the use and occupation of land on the basis of race: any onewho occupied land designated for a different race group committed a crime. See also theBlack Land Act 27 of 1913; Development Trust and Land Act 18 of 1936; Blacks (Urbanareas) Consolidation Act 25 of 1945; Population Registration Act 30 of 1950; Prevention ofIllegal Squatting Act 52 of 1951; Reservation of Separate Amenities Act 49 of 1953; Black(Prohibition of Interdicts ) Act 64 of 1956; Trespass Act 6 of 1959; Regulations for theAdministration and control of townships in Black Areas 1962; Housing Act 4 of 1966; SlumsAct 76 1979.

[31

] Unde

r the previous

insensitive and

oppressive order

, the scope of evictions based on the stronger right to possession was exercised in an inhumane and arbitrary fashion. The State was garbed with the power to remove people from land and property when State security, public health or the public interest demanded and justified such callous action. Powers of this nature existed in different forms.

See AJ van der Walt “Exclusivity of ownership, security of tenure, and eviction orders: Amodel to evaluate South African land reform legislation” 2002 TSAR; Compare AJ van derWalt “, Dancing with Codes- Protecting, developing, limiting and deconstructing propertyrights in the const

itutional State” (2001)118 SALJ f

or a more detailed discussion.Apartheid land law was entrenched in over one hundred items of legislation. The mostimportant of which, the Prevention of Illegal Squatting Act 52 of 1951 and the Group AreasAct 63 of 1966, criminalised the use and occupation of land on the basis of race: any onewho occupied land designated for a different race group committed a crime. See also theBlack Land Act 27 of 1913; Development Trust and Land Act 18 of 1936; Blacks (Urbanareas) Consolidation Act 25 of 1945; Population Registration Act 30 of 1950; Prevention ofIllegal Squatting Act 52 of 1951; Reservation of Separate Amenities Act 49 of 1953; Black(Prohibition of Interdicts ) Act 64 of 1956; Trespass Act 6 of 1959; Regulations for theAdministration and control of townships in Black Areas 1962; Housing Act 4 of 1966; SlumsAct 76 1979.

[32] So for example,Vena v George Municipality1987 Vol4 SA 29(C)

[32

] So for example

Vena v George Municipality

1987 Vol4 SA 29(C)

4 SA 29

illustrates a situation where the local authority made use of the provision in the Act that considered occupiers as (unlawful squatters

)

if the structures they occupied

which were invariably

self built shacks did not comply with building regulations. Informal housing of this nature never complied with the regulations, and thus the local authorities were allowed to evict and remove the occupiers at will.

[33

] The Prevention of Illegal S

quatting Act obliged land owners to evict “unlawful squatters” from their land. This promoted a political agenda of the apartheid regime by introducing a vague and wide ranging definition of “unlawful squatting”. It also granted draconian powers of eviction and forced removal to state owners, land owners and the police, an

d

ousted the Court’s jurisdiction to review these actions.

Section 3(B) 4 (a) of the Prevention of Illegal Squatting Act is a notorious example; and theBlacks (Prohibition of Interdicts) Act prohibited Black persons from obtaining an interdict toprevent or terminate state action under certain laws specified by proclamation in theGovernment Gazette.

[34

] Thus, the regulation and movement of human beings in the inner city inter alia was differentiated on the basis of race. Those affected almost in all instances by the oppressive legislation were African people

. This constituted a source of g

rave assault on the dignity of Black people

. “It resulted in the creation of a large, well-established and affluent white urban areas co-existing side by side, with crammed pockets of impoverished and insecure black ones. “

supra at para [10], Pretoria City Council v

Walker

[1998] ZACC 1;1998 (2) SA 363(CC); Vander Walt “Exclusivity of ownership, security of tenure, and eviction orders: a model toevaluate South African land reform legislation”2002 TSAR 254at 258, quoted with ‘approval by Olivier JA in Ndlovu v Ngcovo; Bekker and Another v Jaika2003 (1) SA 113SCA

[1998] ZACC 1

1998 (2) SA 363

2002 TSAR 254

2003 (1) SA 113

[35

] Sachs J in the

abeth

case

explains

that

PISA

, accordingly, gave the universal social phenomenon of urbanisation and intensely racialised South African character. Everywhere the landless poor flocked to urban areas in search of a better life. This population shift was both a consequence of and a threat to the policy of racial segregation.

was to prevent and control what was referred to as squatting on public or private land by criminalising it and providing for a simplified eviction process. The powers to enforce politically motivated

, legislatively sanctioned and S

tate sponsored eviction and forced removals became a corner stone of apartheid land law. This marked a major shift, both quantitatively and qualitatively (politically). Evictions could be sought by local government and achieved by use of criminal rather than civil law.

It

was against this background and to deal with these injustices, that section 26(3) of the Constitution was adopted and new statutory arrangements made.”

supra at para [10].

[36

] Whilst it is not necessary for me to deal with the constitutionality of section 12(4)(b) of the NBRA, for the reasons that I have already expl

ained, I must pause to S

tate that this section must be read as if “subject to section 26(3) of the Constitution”

In other words the Applicant cannot be allowed to arbitrarily “evacuate” occupiers such as the Respondents without engaging in the due process. This was correctly conceded by Mr du Plessis SC on behalf of the Applicant.

The procedure suggested by Mr du Plessis SC in respect of notices afforded in terms of the NBRA will have to be tested in the ordinary motion court.

The procedure

envisages a three part process:Part A: gives a notice for consultation;Part B: Relies on section12(4)(b) of the NBRA;

Part C: Requires a Court to evict an occupier in the absence of an agreement.

I do not believe that it is necessary for me to pronounce on the validity of the suggested procedure at this point. However I am encouraged by the pursuance of a consultative process.

[37] Section 26(3)of the Constitution prohibits eviction from and demolishing of homes without a court order. This constitutional principle has been introduced in a range of reform laws that specify the qualifications for allowing evictions and the requirements for carrying them out lawfully.TheRental Housing Act 50 of 1999protects the occupation rights of lawful occupiers ofrural and urban residential property; the Land Reform (Labour Tenants) Act 3 of 1996protects lawful occupiers of agricultural land; theExtension of Security of Tenure Act 62 of1997protects the occupation rights of persons who lawfully occupy rural land with consentof the land owner; theInterim Protection of Informal Land Rights Act 31 of 1996protectslawful occupiers of rural and urban land in terms of informal land rights; and the Preventionof Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 regulates theeviction of unlawful occupiers.

[37

] Section 2

6(

of the Constitution prohibits eviction from and demolishing of homes without a court order. This constitutional principle has been introduced in a range of reform laws that specify the qualifications for allowing evictions and the requirements for carrying them out lawfully.

TheRental Housing Act 50 of 1999protects the occupation rights of lawful occupiers ofrural and urban residential property; the Land Reform (Labour Tenants) Act 3 of 1996protects lawful occupiers of agricultural land; theExtension of Security of Tenure Act 62 of1997protects the occupation rights of persons who lawfully occupy rural land with consentof the land owner; theInterim Protection of Informal Land Rights Act 31 of 1996protectslawful occupiers of rural and urban land in terms of informal land rights; and the Preventionof Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 regulates theeviction of unlawful occupiers.

Rental Housing Act 50 of 1999

Extension of Security of Tenure Act 62 of

1997

Interim Protection of Informal Land Rights Act 31 of 1996

[38

case emphasised

a third aspect of section 26(3) is the emphasis it places on the need to seek concrete and case specific solutions to the difficult problems that arise. Absen

t the historical background out

lined above, the statemen

t in the Constitution that the courts must do what c

ourts are normally expected to do namely, take all relevant factors into account would appear otiose (superfluous) even odd. Its use in section 26(3) however, serves a clear constitutional purpose. It is there precisely to underline how non prescriptive the provision is intend

ed to be. The way in which the c

ourts are to manage the process has, accordingly, been left as wide open as constitutional language could achieve, by design and not by accident, by deliberate purpose and not by omission.”

Ad para 22;

v Peoples Dialogue on land on shelter 2002(2) SA1074 (SE).

Our Constitution imposes an obligation on these courts in matters such as the present to balance out and reconcile the opposing claims in a just manner, taking account of all the interests involved and the specific factors relevant in each particular case.

HOUSING ACT 107 of 1997

[39] TheHousing Act waspromulgatedin order to give effect to the State’s positive obligations in terms of section 26 of the Constitution. The Preamble records that –

[39

] TheHousing Act waspromulgated

Housing Act was

in order to give effect to the S

tate’s positive obligations in terms of section 26 of the Constitution. The Preamble records that –

“In terms of section 26 of the Constitution of the Republic of South Africa, 1996, everyone has the right to have acces

s to adequate housing, and the S

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

[40] TheHousing Act imposesspecific obligations on local government in this regard.Section 9requires every municipality to take all reasonable and necessary steps within the framework of national and provincial housing legislation and policyto:ensure that the inhabitants of its area of jurisdictionSection 9(1)(b)

[40

] TheHousing Act imposesspecific obligations on local government in this regard.Section 9requires every municipality to take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy

Housing Act imposes

Section 9

to:

ensure that the inhabitants of its area of jurisdiction

Section 9(1)(b)

have access to adequate housing on a progressive basis;

Section 9(1)(a) (i).

Section 9(1)

set housing delivery goals in respect of its area of jurisdiction;

identify and designate land for housing development;

Section 9(1)(c)

ensure that conditions not conducive to the health and safety of the inhabitants of its area of jurisdiction are prevented or removed;

Section 9(10(a)(ii)

create and maintain a public environment conducive to housing development which is financially and socially viable;

Section 9(1)(d)

promote the resolution of conflicts arising in the housing development process;

Section 9(1)(e).

and

initiate, plan, co-ordinate, facilitate, promote and enable appropriate housing development in its area of jurisdiction.

Section 9(1)(f).

[41] In terms ofsection 2of theHousing Act>,municipalities must perform the above functions in a manner which:gives priority to the needs of the poor in respect of housing development;Section 2(1)(a).

[41

] In terms ofsection 2of theHousing Act>,municipalities must perform the above functions in a manner which:gives priority to the needs of the poor in respect of housing development;Section 2(1)(a).

section 2

Housing Act>,municipalities must perform the above functions in a manner which:gives priority to the needs of the poor in respect of housing development;Section 2(1)(a).

municipalities must perform the ab

ove functions in a manner which:

gives priority to the needs of the poor in respect of housing development;

Section 2(1)(a).

involves meaningful con

sultation with individuals and

communities affected by housing development;

Section 2(1)(b).

ensures that housing development is economically, fiscally, socially and financially affordable and sustainable;

Section 2(1)(c)(ii).

ensures that housing development is administered

in a

transparent, accountable and equitable manner and upholds the practice of good governance.

Section 2(1)(c)(iv).

THE EMERGENCY HOUSING PROGRAMME

[42]In terms of the National Housing Code, a“Programme for Housing Assistance in Emergency Housing Circumstances,”wasadopted in terms of theHousing Act, (“the Emergency Housing Programme”)andwas a direct response toGrootboom’sruling 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 -

[42

In terms of the National Housing Code, a

“Programme for Housing Assistance in Emergency Housing Circumstances,”

was

adopted in terms of theHousing Act, (“the Emergency Housing Programme”)

Housing Act

was a direct response to

Gro

otboom’s

ruling that the S

tate’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 -

“The Grootboom judgment suggested that a reasonable part of the national budget be devoted to providing relief for those in desperate need. Consequently, this Programme is instituted in terms ofsection 3(4)(g)of theHousing Act, 1997, and will be referred to as the National Housing Programme for Housing Assistance in Emergency Housing Circumstances. Essentially, the objective is to provide temporary relief to people in urban and rural areas who find themselves in emergencies as defined and described in this Chapter.”

section 3(4)(g)

Housing Act, 1997

National Department of Housing. The National Housing Programme: Housing assistance inemergency circumstances; policy prescripts and implementation guidelines (April 2004-Final version) pg 5.

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

[43

] Clause 12.3.1 of the Emergency Housing Programme defines an emergency as,

inter alia,

a situation where –

“the affected persons are, owing to circumstances 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.”

[44] The Programme makes funding available from the Provincial Departments of Housing for emergency housing assistance.

[44

] The Programme makes funding available from the Provincial Departments of Housing for emergency housing assistance.

[45] The Programme requires municipalities to investigate and assess the emergency housing need in their areas of jurisdiction and to“plan pro-actively”therefore. Where an emergency housing need is foreseen municipalities must apply to the relevant Provincial Department of Housing for funding for the necessary assistance. After approval by the MEC of the relevant Provincial Department of Housing, the funding is made available to the municipality for direct implementation of the assistance. In terms of the Programme the Provincial Department of Housing may provide support to ensure the successful implementation of the assistance.

[45

] The Programme requires municipalities to investigate and assess the emergency housing need in their areas of jurisdiction and to

“plan pro-actively”

therefore

. Where an emergency housing need is foreseen municipalities must apply to the relevant Provincial Department of Housing for funding for the necessary assistance. After approval by the MEC of the relevant Provincial Department of Housing, the funding is made available to the municipality for direct implementation of the assistance. In terms of the Programme the Provincial Department of Housing may provide support to ensure the successful implementation of the assistance.

[46] While the Programme is flexible in order to cater for diverse situations, it does lay down certain minimum standards. It requires that water and sanitation be provided and that the floor area of a temporary shelter be at least 24 metres squared. Notably an amount of R23 892.00, including VAT, may be made available to municipalities, per grant.[47] In the present matter it is palpably clear that the municipality does not have such a Programme in place. In terms of the National Housing Programmeand in particular the housing assistance in emergency housing circumstances rules have been determined for emergency housing circumstances. These rules relate to the assistance to people who, for reasons beyond their control, find themselves in an emergency housing situation such as the fact that their existing shelter has been destroyed or damaged, their prevailing situation poses an immediate threat to their life, health and safety, or they have beenevicted, or face the threat of imminent eviction. In terms of this Programme, the municipality can provide funds to give effect to accelerated land development, the provision of basic municipal engineering services and shelter. The supplementary affidavit introduced during the hearing, constitutes a disingenuous attempt to place a disorientated view of the intended Programme. This is simplynot sufficient.The Applicant fails to explain whether it attempted to provide any basic municipal engineering services in these buildings.The Applicant hasnot engaged in any form of constructive consultation with any of the Respondents. The Applicant does not explain what proactive steps if any were taken to forestall the imminent eviction from the unsafe buildings. The Applicant has allowed the destitution to exacerbate.

[46

] While the Programme is flexible in order to cater for diverse situations, it does lay down certain minimum standards. It requires that water and sanitation be provided and that the floor area of a temporary shelter be at least 24 metres squared. Notably an amount of R23 892.00, including VAT, may be made available to municipalities, per grant.

[47

] In the present matter it is palpably clear that the municipality does not have such a Programme in place. In terms of the Nationa

l Housing Programme

and in particular the housing assistance in emergency housing circumstances rules have been determined for emergency housing circumstances. These rules relate to the assistance to people who, for reasons beyond their control, find themselves in an emergency housing situation such as the fact that their existing shelter has been destroyed or damage

, their prevailing situation poses an immediate threat to their life, health and safety, or they have been

evicted, or face the threat of i

m

inent eviction. In terms of this Programme, the municipality can provide funds to give effect to accelerated land development, the provision of basic municipal engineering services and shelter. The supplementary affidavit introduced during the hearing, constitutes a disingenuous attempt to place a disorientated view of the intended Programme. This is simply

not sufficient.

The Applicant fails to explain whether it attempted to provide any basic municipal engineering services in these buildings.

The Applicant has

not engaged in any form of constructive consultation with any of the Respondents. The Applicant does not explain what proactive steps if any were taken to forestall the imminent eviction from th

e unsafe buildings. T

he Applicant has allowed the destitution to exacerbate.

CONSTITUTIONAL ANALYSIS

[48] The plight of the Respondents has been documented by the Centre on Housing Rights and Evictions.Centre on Housing Rights and Evictions: Any room for the poor? Forced evictions inJohannesburg,South Africa(8 March 2005). This document captures the extent and natureof the problem. The report provides a snapshot of the lives of people inJohannesburg’sinner city buildings and informal settlements. The report further expresses the concern thatthere is a disjuncture between the law and practice, which is neither socially sustainablenor legally permissible. It states that the city sees informal settlements and inner cityslums as blights to be eliminated, in its quest to packageJohannesburgas an “Africanworld class city”. According to the report this results in human rights violations, and furthersuffering for large numbers of people who are already locked in a desperate struggle forsurvival.

[48

] The plight of the Respondents has been documented by the Centre on Housing Rights and Evictions.

Centre on Housing Rights and Evictions: Any room for the poor? Forced evictions in

(8 March 2005). This document captures the extent and natureof the problem. The report provides a snapshot of the lives of people in

’sinner city buildings and informal settlements. The report further expresses the concern thatthere is a disjuncture between the law and practice, which is neither socially sustainablenor legally permissible. It states that the city sees informal settlements and inner cityslums as blights to be eliminated, in its quest to package

as an “Africanworld class city”. According to the report this results in human rights violations, and furthersuffering for large numbers of people who are already locked in a desperate struggle forsurvival.

[49] Housing forms an indispensable part of ensuring human dignity. “Adequate housing” encompasses more than just the four walls of a room and roof over one’s head. Housing is essential for normal healthy living. It fulfils deep-seated psychological needs for privacy and personal space; physical needs for security and protection from inclement weather; and social needs for basic gathering points where important relationships are forged and nurtured. In many societies a house also serves an important function as an economic centre where essential commercial activities are performed. Our Constitution provides for justiciability of the Bill of Rights, including the right to adequate housing. It expressly confers legal standing to aggrieved persons and their representatives to approach the courts to enforce their rights.[50] In matters such as the present, the State’s obligationvis-a-visthe right to adequate housing should not be misunderstood. The right to adequate housing does not mean that the State is required to build housing for the entire population, or that housing should be provided free of charge to the populace, or even that this right will manifest itself in the same manner in all places at all times. Rather, recognition of the right to housing by a State means: the State undertakes to endeavour by appropriate means to ensure that everyone has access to affordable and acceptable housing; the State will undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right to housing; the State will protect and improve houses and neighbourhoods rather than damage or destroy them.

[49

] Housing forms an indispensable part of ensuring human dignity. “Adequate housing” encompasses more than just the four walls of a room and roof over one

s head. Housing is essential for normal healthy living. It fulfils deep-seated psychological needs for privacy and personal space; physical needs for security and protection from inclement weather; and social needs for basic gathering points where important relationships are forged and nurtured. In many societies a house also serves an important function as an economic centre where essential commercial activities are performed. Our Constitution provides for justiciability of the Bill of Rights, including the right to adequate housing. It expressly confers legal standing to aggrieved persons and their representatives to approach the courts to enforce their rights.

[50

] In matters such as the present, the State’s obligation

a

the right to adequate housing should not be misunderstood. The right to adequate housing does not mean that the State is required to build housing for the entire population, or that housing should be provided free of charge to the populace, or even that this right will manifest itself in the same manner in all places at all times. Rather, recognition of the right to housing by a State means: the State undertakes to endeavour by appropriate means to ensure that everyone has access to affordable and acceptable housing; the State will undertake a series of measures which indicate policy and legislative recognition of each of the constituent aspects of the right to housing; the State will protect and improve houses and neighbourhoods rather than damage or destroy them.

[51] The decision inGrootboom2001(1) SA 46 (CC); Pierre de Vos: “Grootboom, the right of access to housing andsubstantive equality as contextual fairness”(2001) 17 SAJHR 258.

[51

] The decision in

Grootboom

2001(1) SA 46 (CC); Pierre de Vos: “Grootboom, the right of access to housing andsubstantive equality as contextual fairness”(2001) 17 SAJHR 258.

(2001) 17 SAJHR 258.

confirms that the Bill of Rights is a transformative document which is aimed at achieving a society where people will be able to live their lives in dignity, free from poverty, disease and hunger. Our Constitution encompasses a transformative provision. As such, the State cannot be a passive bystander in shaping the society in which individuals can fully enjoy their rights.

judgment confirms that the full transformative power of the rights in the Bill of Rights will only be realised when they are interpreted with reference to the specific social and economic context prevalent in the country as a whole, and the social and economic context

within which the Applicant now

finds itself in particular. There are vast social and economic inequalities between different groups that leave many people extremely vulnerable and even desperate, far removed from the ideal of a life lived in dignity and respect. This approach acknowledges that people cannot live with a semblance of human dignity and cannot fulfil their full potential as human beings where structural inequality prevails

and where the S

tate fails to take steps to address such structural inequality and its causes.

Pierre de Vos supra at page 268.

In matters such as the present the State must address the special needs of the most vulnerable sections of society. Here, in an instance where the average income

of the Respondents amounts

to R500.00, the

cannot

offer a home

which would cost R600.00 to re

nt.

T

he S

tate’s extensive housing programme, instituted through both legislat

ive, and other measures, is laudable. However the Applicant in its turn

fails to provide in any way for those people in desperate need who find themselves in a crisis situation.[5

2

] The fact that section 26 of the Constitution creates a right that can be enforced by individuals does not in effect mean that these individuals have a right to claim access to shelter or housing on demand. The positive component of the right of access to adequate housing therefore, places a duty on the State to take steps to address the housing needs of the Respondents. The failure by the Applicant to take adequate steps to achieve this

goal

constitutes a failure to engage meaningfully with the transformative vision of the Constitution. Here, no appropriate steps have been taken to meaningfully achieve this comparative.

[53

] A case alleging failure on the part of the

to substantively fulfil its obligations in terms of section 26 of the Constitution will stand or fall on the question whether the

acted reasonably or not. I

have already indicated that not

withstanding the

adoption of the Emergency Housing Programme

; the Applicant has failed in the

pragmatic

implementation

of this programme. In implementing the policy the Applicant must target those who can afford to pay for housing and those who cannot.

he poor are particularly vulnerable and their needs do require special attention. A Programme must be balanced and flexible and make appropriate provision for attention to housing prices and to short, medium and long term needs. A Programme that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the Programme will require continuous review.

Grootboom para [43]; section 26(2) of the Constitution.

[54

] The Constitution requires everyone to be treated with equal care. This means that the actions of the State could be construed as unreasonable if they fail to respond to the needs of the most desperate and vulnerable individuals in society. The right of access to adequate housing includes a duty on the State as well as other relevant players

(such as the Applicant)

to respect

the

access to

housing

(albeit inadequate)

of those who presently enjoy it. It also entails a duty to work towards realising the vision of a future in which persons such as the Respondents are not treated equally merely in a formal manner, but one in which they are treated with equal concern and respect. The Applicant cannot simply wish the Respondents rights away in preference to its inner city project.

In the above paragraphs reference has been made to “the State”. The State has developeda National Housing Programme. My reference to “the State” is directed to the municipalityin the present matter. Section 7(2) of the Constitution obliges the State to respect, protect,promote and fulfil the rights in the Bill of Rights. Section 8 of the Constitution states thatthe Bill of Rights applies to all law, and binds the legislature, the executive, the judiciaryand all organs of State. The Constitution defines the term organ of State to include thenational, provincial and local spheres of government (section 239).

THE RESPONDENTS’ PREDICAMENT

[55] In these applications the Applicant seeks to exercise its statutory powers in terms of the NBRA, as well as in terms of the Health Act 63 of 1977 and the Applicant’s fire by-laws, to“procure the evacuation of buildings which it deems dangerous for the occupants to live in.”The Applicant claims that it is entitled to secure the “evacuation” of the occupiers from the properties in terms of section 12(4)(b) of the NBRA and that doing so will serve the goodof promoting public health and safety and reversing inner city decay in terms of its Johannesburg Inner City Regeneration Strategy.

[55

] In these applications the Applicant seeks to exercise its statutory powers in terms of the NBRA, as well as in terms of the Health Act 63 of 1977 and the Applicant’s fire by-laws, to

“procure the evacuation of buildings which it deems dangerous for the occupants to live in.”

The Applicant claims that it is entitled to secure the “evacuation” of the occupiers from the properties in terms of section 12(4)(b) of the NBRA and tha

t doing so will serve the good

of promoting public health and safety and reversing inner city decay in terms of its Johannesburg Inner City Regeneration Strategy.

[56] The Respondents do not dispute that the Applicant is entitled – and obliged – to eradicate dangerous living conditions within its area of jurisdiction. Nor do the Respondents dispute that the Applicant is entitled to pursue the regeneration of theJohannesburginner city. Indeed the Respondents recognise that this is a necessary and noble endeavour.

[56

] The Respondents do not dispute that the Applicant is entitled – and obliged – to eradicate dangerous living conditions within its area of jurisdiction. Nor do the Respondents dispute that the Applicant is entitled to pursue the regeneration of the

inner city. Indeed the Respondents recognise that this is a necessary and noble endeavour.

[57] As I have already indicated, the Applicant is obliged to take reasonable steps to progressively realise the right of access to adequate housing of allwithin its area of jurisdiction. Here, the occupiers of the properties are desperately poor people. However unsatisfactory their circumstances may be, they at least have secure shelter from the elements. They also have access to water either on the properties themselves or from sources nearby. The Applicant has no plan to enable the occupiers to find homes elsewhere. If they are evicted in the present circumstances they will accordingly lose their protection from the elements and literally be rendered homeless. They will also lose their access to water. The eviction of the occupiers from their current unsafe accommodation willleave them far worse off –they will be without any accommodation at all. TheConstitutional CourtstatedinPort ElizabethMunicipalityv Various Occupiers;

[57

] As I have already indicated, the Applicant is obliged to take reasonable steps to progressively realise the right of access to adequate housing of all

within its area of jurisdiction. Here, t

he occupiers of the properties are desperately poor people. However unsatisfactory their circumstances may be, they at least have secure shelter from the elements. They also have access to water either on the properties themselves or from sources nearby. The Applicant has no plan to enable the occupiers to find homes elsewhere. If they are evicted in the present circumstances they will accordingly lose their protection from the elements and literally be rendered homeless. They will also lose their access to water. The eviction of the occupiers from their current unsafe accommodation will

leave them far worse off –

they will be without any accommodation at all. The

stated

in

v Various Occupiers

;

“It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as awhole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the right-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence.”At para [18].

“It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a

whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the right-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence.”

At para [18].

[58] The Respondents do not suggest that the Applicant does not have obligations in relation to health and safety. It does. The Applicant is not entitled to seek to fulfil these obligations in a manner which breaches other obligations. Nor is the Applicant entitled to choose to fulfil some obligations and not others.

[58

] The Respondents do not suggest that the Applicant does not have obligations in relation to health and safety. It does. The Applicant is not entitled to seek to fulfil these obligations in a manner which breaches other obligations. Nor is the Applicant entitled to choose to fulfil some obligations and not others.

[59] The fundamental point is that the Applicant may not exercise its powers and perform its functions and duties in relation to health and safety in a manner which will violate the Respondents’ constitutionally guaranteed rights – in particular the right of access to housing, protection against arbitrary eviction and the right to dignity. This is especially so where the Applicant has failed in its constitutional duty to provide any alternativeadequateaccommodation.

[59

] The fundamental point is that the Applicant may not exercise its powers and perform its functions and duties in relation to health and safety in a manner which will violate the Respondents’ constitutionally guaranteed rights – in particular the right of access to housing, protection against arbitrary eviction and the right to dignity. This is especially so where the Applicant has failed in its constitutional duty to provide any alternative

adequate

accommodation.

[60] The lack of alternativeadequateaccommodation provided by the Applicant (whether safe or otherwise), has given birth to the Respondentspredicamentto use their own resources to find the accommodation which they presently occupy. The Applicant now seeks totakethis away from them.

[60

] T

he lack of alternative

accommodation provided by the Applicant (whether safe or otherwise), has given birth to the Respondents

predicament

to use their own resources to find the accommodation which they presently occupy. The Applicant now seeks to

take

this away from them.

[61] Towards the end of the hearing counsel for the Applicant suggested that I should consider an order in terms whereof the Respondents are evicted, but the implementation of the order should be suspended. In reality, this submission captures the predicament of the Applicant. It finds itself in an invidious position. However, the future plight of the Respondents coupledwith the inner city regenerationprogramme and the fate of the protagonist is in the hands of the Applicant. I have already clarifiedthata national housing plan is in place. It is for the Applicant to secure the necessary resources and assistance from national government as well as provincial government todeal with the current crisissituation. This must be attended to with a measure of urgency;however in a co-ordinated and coherent fashion.This would include engaging in constructive dialogue with the Respondents. In the interim, the responsibility for securing and cleaning the inner city, which includes the buildings referred to in this applicationlies with the Applicant. TheJoel Streetdispute provides a classic example where the residents and the Applicant can improve their respective lots in a mutually constructive fashion.[62] Our Constitution requires a court in matters such as the present to weave the elements of humanity and compassion within the fabric of the formal structures of the law. It calls upon us to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern.Port ElizabethMunicipalitysupra at para [37]

[61

] Towards the end of the hearing counsel for the Applicant suggested that I should consider an order in terms whereof the Respondents are evicted, but the implementation of the order should be suspended. In reality, this submission captures the predicament of the Applicant. It finds itself in an invidious position. However, the future plight of the Respondents coupled

with the inner city regeneration

programme and the fate of the protagonist is in the hands of the Applicant. I have already clarified

a national housing plan is in place. It is for the Applicant to secure the necessary resources and assistance from national government as well as provincial government to

deal with the current crisis

situation. This must be attended to wit

h a measure of urgency;

however in a co-ordinated and coherent fashion.

his would include engaging in constructive dialogue with the Respondents. In the interim, the responsibility for securing and cleaning the inner city

, which includes the buildings referred to in this application

lies with the Applicant. The

dispute provides a classic example where the residents and the Applicant can improve their respective lots in a mutually constructive fashion.

[62

] Our Constitution requires a court in matters such as the present to weave the elements of humanity and compassion within the fabric of the formal structures of the law. It calls upon us to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

supra at para [37]

Our Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular and repressive, and vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos.

Mahomed J in S v Makwanyane and Another 1995(3) SA 391 CC

This statement articulates a spirit of

u

buntu,

which is part of the deep cultural heritage of the majority of the population.

Mokgoro J has explained: “Generally,

ubuntu

translates as “humanness”. In its mostfundamental sense it translates as personhood and “morality”. Metaphorically, it expressesitself in

umuntu ngumuntu ngabantu,

describing the significance of group solidarity onsurvival issues so central to the survival of communities. While it envelops the key valuesof group solidarity, compassion, respect, human dignity, conformity to the basic norms andcollective unity, in its fundamental sense it denotes humanity and morality. Its spiritemphasises respect for human dignity, marking a shift from confrontation to conciliation. In

has become a notion with particular resonance in the building of ademocracy. “

[63

In

the culture of

buntu

is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity in the interests of building, maintaining and strengthening the community.

U

speaks to our inter-connectedness, our common humanity and the responsibility to each that flow

s from our connection. This in t

urn

must be interpreted to mean that in t

he establishment of our constitutional

values we must not allow urbanisation and the accumulation of wealth and material possessions to rob us of our warmth, hospitality and genuine interests in each other as human beings.

Ubuntu

is a culture which p

laces some emphasis on the commo

nality and on the interdependence of the members of the community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community,

such a person may be apart of. In

must become a notion with particular resonance in the building of our constitutional democracy.

[64

] The absence of adequate housing for the Respondents and any s

ubsequent eviction, will drive them in

a vicious circle, to the depravation of their employment, their livelihood, and therefore their right to dignity, perhaps even their right to life. The right to work is one of the most precious liberties that an individual possesses. An individual has as much right to work as the individual has to live, to be free and to own property. To work mean

s to eat and consequently

to live. This constitutes an encompassing view of humanity. The Applicant’s suggestion that the Respondents be relocated to an informal settlement flies in the face of the concept that a “per

son is a person through persons

”

(Ubuntu)

Recent experience has shown that this alternative is fundamentally skewed. Occupiers of shacks in these

informal

settlements have not only lost their possessions through floods and fire but also their lives.

SUMMARY AND CONCLUSION

[65]The facts of the present matter reflect the plight of thousands of people living in the inner city, in deplorable and inhuman conditions. Our Constitution obliges the State to act positively to ameliorate these conditions.Theseobligationshave been, and continue to bedesignedat a macro level. We now require a coherent plan and the implementation of thisplanat the micro level.The obligation is to provide access to adequate housingto those unable to support themselves and their dependants.See Grootboom at para [93].

[65

The facts of the present matter reflect the plight of thousands of people living in the inner city, in deplorable and inhuman conditions. Our Constitution obliges the State to act positively to ameliorate these conditions.

These

obligations

have been, and continue to be

designed

at a macro level. We now require a coherent plan and the implementation of this

plan

at the micro level.

The obligation is to prov

ide access to adequate housing

to those unable to support themselves and their dependants.

See Grootboom at para [93].

[66]The Applicantmust foster conditions to enable the Respondents to have access to adequate housing in the inner city. The sole criteria for living in the inner city should not depend on affordability or the size of one’s pocket. The values that our Constitution and the various legislative instruments espousemust be taken into account when considering the relevant criteria.[67] In the light of the above conclusions, it is proper to make a declaratory order. The order requires a pronouncement on the Applicant’s failure to comply with its constitutional and statutory obligations with particular regard to the Respondents. The order further requires that the Applicant be interdicted from evacuating the Respondents, until such time that the Applicant has developed a pragmatic, constructive and coherent programme that will deal with the predicament that the Respondents presently have to endure. The programme must also provide for alternate adequate accommodation for theRespondents.

[66

The Applicant

must foster conditions to enable the Respondents to have access to adequate housing in the inner city. The sole criteria for living in the inner city should not depend on affordability or the size of one

’s pocket. The values that our Constitution and the various legislative instruments espouse

must be taken into account when considering the relevant criteria.

[67

] In the light of the above conclusions, it is proper to make a declaratory order. The order requires a pronouncement on the Applicant’s failure to comply with its constitutional and statutory obligations with particular regard to the Respondents. The order further requires that the Applicant be interdicted from evacuating the Respondents, until such time that the Applicant has developed a pragmatic, constructive and coherent programme that will deal with the predicament that the Respondents presently have to endure. The programme must also provide for alternate adequate accommodation for the

R

espondents.

ORDER:

1. It is declared that the housing programme of the Applicant fails to comply with the constitutional and statutory obligations of the Applicant. The Applicant hasfailedto provide suitable relief for people in the inner city ofJohannesburgwho are in a crisis situation or otherwise in desperate need of accommodation;2.

1. It is declared that the housing programme of the Applicant fails to comply with the constitutional and statutory obligat

ions of the Applicant. The Applicant has

fail

ed

to provide suitable relief for people in the inner city of

who are in a crisis situation or otherwise in desperate need of accommodation;

2.

The Applicant hasfailedto give adequate priority and resources to people in the inner city ofJohannesburgwho are in a crisis situation or otherwise in desperate need of accommodation.

to give adequate priority and resources to people in the inner city of

who are in a crisis situation or otherwise in desperate need of accommodation.

3.

The Applicant is directed to devise and implement within its available resources a comprehensive and co-ordinated programme to progressively realise the right toadequatehousing to people in the inner city of Johannesburg who are in a crisis situation or otherwise in desperate need of accommodation.

The Applicant is directed to devise and implement within its available resources a comprehensive and co-ordinated programme to progressively realise the right to

housing to people in the inner city of Johannesburg who are in a crisis situation or otherwise in desperate need of accommodation.

4.

Pending the implementation of the programme referred to in paragraph 3 above, alternatively until such time as suitableadequateaccommodation is provided to theRespondents,the Applicant is interdicted fromevicting or seeking to evict the currentRespondentsfromthe properties in this application.

Pending the implementation of the programme referred to in paragraph 3 above, alternatively until such time as suitable

accommodation is provided to the

Respondents,

t

he Applicant is interdicted f

rom

evicting or seeking to evict the current

Respondents

from

the properties in this application.

5.

In the circumstances the application is dismissed with costs, including the costs occasioned by the employment of two counsel.

________________________

JAJBHAY J

Judge of the High Court ofSouth Africa

Judge of the High Court of

DATES OF HEARING:

6, 7, 8February 2006DATEOF JUDGMENT:3rd March2006

DATES OF HEARING:

6

, 7, 8

February 2006

DATE

OF JUDGMENT:

3rd March

2006

Counsel for the Applicant

AdvocateFdu Plessis SC, together with AdvocateFSnyckers, instructed by Moodieand Robertson.Counsel for the Respondents

Advocate PKennedySCtogether with Advocate H

Counsel for the Applicant

Advocate

F

du Plessis SC, together with Advocate

Snyckers, instructed by Moodieand Robertson.Counsel for the Respondents

Advocate P

Kennedy

SC

together with Advocate H

Barnes,AdvG Goedhart andAdvD Mashingo instructed by the WITS Law ClinicandWebberWentzelBowens.

Barnes,

Adv

G Goedhart and

D Mashingo instructed by the WITS Law Clinic

W

ebber

Wentzel

Bowens