Greeff and 21 Others v Eskom Holdings SOC Ltd and Others (LCC 2021/42) [2021] ZALCC 22 (17 September 2021)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case number: LCC 2021/42

REPORTABLE: YES OF INTEREST TO OTHER JUDGES: YES REVISED: YES 17 September 2021

In the matter between:

WESSEL JOHANNES GREEFF

1st Applicant

AND

21 OTHERS

2nd to 22nd Applicants

and

ESKOM HOLDINGS SOC LTD

1st Respondent

ANDRE DE RUYTER

2nd Respondent

DBVEST PROPERTIES (PTY) LTD

3rd Respondent

BARNABAS DUBE

4th Respondent

EMFULENI LOCAL MUNICIPALITY

5th Respondent

MEC (GAUTENG) DEPARTMENT OF ARGRICULTURE

AND RURAL DEVELOPMENT

6th Respondent

MINISTER OF AGRICULTURE, LAND REFORM AND

RURAL DEVELOPMENT

7th Respondent

MINISTER OF PUBLIC ENTERPRISES

8th Respondent

JUDGMENT

SPILG, AJP

INTRODUCTION

1. This case concerns the occupation of a village established by the predecessor of Eskom Holdings Soc Ltd (“Eskom”). It is known as Redan Village (“Redan”) and is situated in the broader Vereeniging area

Save for the first applicant, Mr. Greeff, all the other applicants currently occupy houses in the village. Greeff had occupied house 62 and one of the issues is whether he had voluntarily left Redan or had been unlawfully evicted, and therefore entitled to an order for immediate restoration.

2. The applicants joined the CEO of Eskom, Mr. de Ruyter, effectively to notify him of what they contended was a questionable if not tainted transaction for the disposal of Redan to the third respondent and to obtain a report from him. The alleged controlling mind of the third respondent was cited as the fourth respondent.

The application was brought on an urgent basis on 6 April 2021 and inter alia sought an ex parte order for the Greeff’s immediate restoration to the house. The court considered that the relief set out in certain of the orders sought, if established, was sufficiently urgent to warrant the case being heard on short notice, but required adequate time for the respondents to deal with the allegations before being prepared to consider the grant of any substantive order.

3. The only relief which was granted immediately related to the order sought in terms of prayer 2.5. This was for an interim interdict restraining the First, Third and Fourth Respondents, their employees or their agents or any other person acting under their authority, from;

a. evicting any of the Second to Twenty-Second Applicants or interfering with their occupation, access to, or use of their respective homes in the Redan Village, Vereeniging.

b. leasing, or authorising or permitting or allowing any person to occupy, or be in possession of, or deal in any manner whatsoever with House № 62, Redan Village, which was the house that had been occupied by the First Applicant.

For this reason I also issued directions for the expeditious filing of papers and set Part A down for hearing on 16 April 2021.

4. Although this judgment only concerns the prayers sought in Part A and whether it should have been brought as an urgent application, one of the issues is dispositive of the entire application because it concerns the court’s jurisdiction to entertain the matter at all.

THE MAIN ISSUES

5. The issue regarding the status of the 2nd to 22nd applicants is not of any moment because the respondents gave an undertaking in that regard. However the 3rd and 4th respondents contend that this part of the relief sought was not urgent because they had already given an assurance prior to the launch of the proceedings that they would not interfere with the status of these applicants without following due process under the applicable legislation.

The respondents also contend that the relief sought by the first applicant, Mr Greeff, was not urgent.

6. Aside from the issue of urgency raised in respect of Greeff, the main issues for determination are;

a. whether he was an occupier under the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) prior to vacating the house he had been renting at Redan Village,

b. whether he was evicted or voluntarily left the house

c. if he was evicted, forcibly or otherwise, whether he is entitled to be restored to occupation of that house or a similar one in Redan Village.

One of the considerations raised by Adv. May on behalf of the third and fourth respondents is that an order for Greeff’s eviction had been granted by the High Court on the grounds that he was an occupier subject to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) and that there had been proper compliance with the provisions of that Act entitling the respondents to evict him.

Accordingly, aside from whether Greeff had been forcibly evicted or had voluntarily left his house at Redan, the other key question is whether the occupiers of homes in Redan Village are subject to ESTA or to PIE. If they are subject to ESTA then this court enjoys jurisdiction, otherwise not. For this reason the first issue for consideration after dealing with urgency is the jurisdiction of the court to hear the case.

URGENCY

7. The court is satisfied that the 2nd to 22nd applicants had sufficient concern as to whether the letter written by the third respondent would be adhered to pending the outcome of the application they intended to launch. They were therefore justified in bringing the application for urgent interim relief as soon as they received the notices which prompted this application.

8. Insofar as Greeff is concerned, the respondents contend that urgency was self-created. They allege that he had from the date he was forcibly removed (being not later than January 2021) until 6 April to bring his application. They argue that there is an unexplained period after he approached a firm of attorneys to represent him and that Greeff was obliged to act with greater expedition when it should have been evident, on his version, that the attorney was not assisting him.

They also contend that urgency was dissipated when the third respondent offered Greeff alternate accommodation pending the outcome of the case.

Urgency Self-created

9. It is difficult to appreciate the argument that urgency was self-created if regard is had to the plight Greeff claims befell him at the hands of the third and fourth respondents. On his version, which must be accepted for purposes of determining urgency, he engaged attorneys as soon as he had been, allegedly, forcibly removed from the premises. He alleged that these attorneys were in fact representing the third respondent at the time and that he had relied on them to protect his rights but they failed to do so.

It is difficult to appreciate how a person who promptly obtains lawyers who turn out to be conflicted, at least on the version proffered, can be said to have created his own urgency by inaction. The respondents assume that Greeff could have been more assertive. I do not share that view having regard to the circumstances in which Greeff found himself (at least on his version).

Urgency dissipated by offer

10. While urgency was dissipated by the offer in so far as all but the first applicant was concerned, it did not do so in respect of him. The alternate accommodation Greeff believed he had been offered was a far cry from the house he had occupied. If a party wishes to dissipate urgency in this manner then it must do so in a meaningful way. An applicant cannot be expected to give up a right to restoration by being obliged to relocate yet again for an indefinite period (possibly up to a final appeal) before the right he or she is seeking to protect is determined. Where that right is based on an act of spoliation, a court will be slow to effectively undermine the salutary purpose of granting such a remedy (which is to prevent a party from taking the law into its own hands) by compelling an applicant to take alternate shelter which may be inferior, may result in inconvenience or may otherwise jeopardise his or her position.

11. The matter is therefore urgent in relation to the relief Greeff seeks and which obviously cannot be covered by the undertaking that was given to all the other applicants.

JURISDICTION- WHETHER GREEFF IS AN ESTA OCCUPIER

The issues

12. This question must precede an enquiry into whether Greeff was unlawfully evicted, if only because it determines whether this court has jurisdiction to hear the case at all.

13. Adv. Botha for the applicants presents a straight forward argument. He contends that the area where the house is situated falls within land which is subject to ESTA, that Greeff qualifies as an ESTA occupier, that the third respondent failed to comply with the provisions of ESTA when evicting him and that he is therefore entitled by reason of s 14 of that Act to be restored to occupation.

14. Counsel also contends that the respondents are unable to identify the area of land in issue, nor can they identify the actual land which is to be transferred as there is a bona fide dispute with regard to whether Eskom acquired a part of the land at any stage, either by way of transfer or through acquisitive prescription.

15. It was soon evident that the issue turned on whether the landowner can demonstrate that ESTA does not apply because the land in question is exempt from its provisions by reason of s 2(1).

16. Section 2(1) of ESTA reads:

Subject to the provisions of section 4, this Act shall apply to all land other than land in a township established. approved, proclaimed or otherwise recognised as such in terms of any law. or encircled by such a township or townships. but including—

(a) any land within such a township which has been designated for agricultural

purposes in terms of any law; and

(b) any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment.

approval. proclamation or recognition.

Section 2(2) has relevance because it creates a presumption that the land in question will fall under ESTA if it is the subject matter of civil proceedings before this court.[1]

17. Redan was not proclaimed as a township pursuant to the provisions of any Provincial Ordinance or Municipal Bye-Law dealing with township development.

The first to fourth respondents contend that Redan Village was established by ESKOM through a special dispensation it was afforded to establish dwellings on land acquired by it in the performance of its functions.

It is common cause that Eskom had shut down its operations in the area a long time ago and had recently concluding a sale of Redan. Although the entitlement of Eskom to sell Redan is contested, the current ownership of the land on which it is situated is irrelevant to a consideration of whether Redan Village was in fact situated on land which fell under ESTA. I should add that the applicants confirm that no transfer has in fact taken place; accordingly, as long as transfer has not passed the question of whether any lawful sale can take place is moot in relation to the issue before me.

A further argument raised by Adv. Botha which however ought to be considered is that, if the sale did go through, then it would result in an automatic lapsing of the dispensation with the consequence that the land will automatically revert to its previous status as an agricultural holding.

18. The question therefore is whether Redan would fall within an exemption which applies to Eskom, whether this would satisfy the exception provided for in s 2(1) and, if it does, whether subsequently shutting down operations and disposing of the land on which it was situated (if validly concluded) would nullify that dispensation.

History of Redan Village and the relevant legislative framework

19. Redan was constructed in the late 1930s. At that time, there were two pieces of legislation to which I have been referred which ordinarily applied to the establishment of a township.

20. The first was legislation passed in 1907/1908 by the then Transvaal Republic. Adv. Botha relied on Act no 33 of 1907 read with Act no 34 of 1908 which had both amended the provisions of the Proclamation of Townships Ordinance of 1905. I will refer to these pieces of legislation collectively as the 1908 Ordinance.

All the other parties accepted that its provisions could be relied on for determining the legislation as it stood in 1908. I will accept counsel’s common position.

21. In broad terms the 1908 Amendment;

a. distinguished between Crown Land (which was defined to bear the same meaning as that assigned to the term in the Crown Land Disposal Ordinance, 1903) and other land for the purpose of determining when a township was required to be established on what became Provincial Land;

b. distinguished between Government, semi-Government and private freehold townships;

c. provided that certain provisions of Law no 15 of 1898 “as to Stands in Stand Townships (would) remain in force for certain Purposes”. This was provided for in terms of s 3. Under s 3(2) the Government would continue to remain exempt from any of the provisions of Law no 15 of 1898 with regard to the disposal of stands in stand townships on Crown-Land if leasehold rights have not been sold or disposed of or had lapsed to the Government. Moreover in terms of s 3(3), the Governor remained entitled to dispose of any stand in a stand township under the Crown Land Disposal Ordinance if such stand had not yet been disposed of and the grant of such stand was deemed to be valid for all purposes if registered as is.

22. None of the parties appear to have considered the relevance, if any, of the Crown Land Disposal Ordinance and how its survival after the 1908 Ordinance may affect tie situation. The conclusion I have reached renders it unnecessary to undertake such an investigation, and I refrain from doing so.

23. The other piece of legislation which Adv. Botha contends was extant at the time the Redan village was built is the 1931 Provincial Ordinance. It provided no similar exemptions as the 1908 Amendment. It did however define a township to mean;

(a) a township legally established or registered as such prior to the commencement of this Ordinance;

(b) an approved township;

(c) any extension of such townships

(d) any area of land [other than all area of land laid out as agricultural holdings in terms of the Agricultural Holdings (Transvaal) Registration Act, No 22 of 1919] registered after the commencement of this Ordinance as one or more pieces of land either contiguous or in close proximity to each other which has been laid out or divided into sites for residential, business, industrial, occupational, or similar purposes in such a manner that the lay-out or division will, in the opinion of the Administrator after reference to the Board, be the cause of such conditions arising in the said area as to justify provision being made for meeting communal needs by its inclusion within a municipality or by means of the constitution for such area of a local authority as defined ….”

a. The definition of “township” contained in the 1931 Ordinance is relevant because, by reason of subsection (d), it is broader than simply one established or approved or even proclaimed under a specific town planning ordinance or bye-law. It will be recalled that s 2 of ESTA itself includes as a category of township one which is “otherwise recognised as such in terms of any law”

24. The report of Mr de Ruyter the CEO of Eskom which was requested by the applicants, and the correctness of which has not been put in issue, describes the establishment of Redan village. It mentions that the village consists of 136 properties, well laid out with roads and divided into sites for residential purposes. It has parks and other amenities to meet communal needs and has been provided with certain a number of services from the Municipality.

25. It is quite evident that de facto the development constituted a township. It was however not established or proclaimed under the legislation referred to earlier. Adv. Mokutu for Eskom relied on a special zoning bye-law said to be found in the Emfuleni Special Planning Bye-Laws of 2015 gazetted in the Provincial Gazette of January of that year. Adv. Botha challenged that it covered the situation. I will accept that his position is correct for present purposes.

26. Adv. Botha was asked by the court whether that meant that the village was unlawfully established. He replied in the affirmative.

He however struggled to explain how the buildings in Redan, for which plans would have been passed (as this was part of his argument), could have been allowed if the development was unlawful. The authority responsible for passing building plans could not have done so unless the property itself was part of a lawfully established or proclaimed township or had received a lawful exemption in one form or another. It must be recalled that Redan village has been in existence since the late 1930s.

27. In my view the answer is to be found in the 1922 Electricity Act which was in force at the time Redan was developed.

This Act created the Electricity Supply Commission; i.e. the Eskom. Extensive powers were conferred on the Commission to enable it to perform the critical function of constructing and operating power stations required to supply electricity. It is not an understatement to refer to its task as providing the lifeblood of a nation, from improving the quality of life of people to enabling every commercial and industrial activity (including critical mining- activity and at the time the electrification of the railway system) to operate and develop.

Due to its critical functions it was essential that it be given broad powers to construct and maintain power plants operated by personnel who would have to be housed in order for Eskom to fulfil its mandate within a growing population and to stimulate economic growth particularly in the industrial and mining sector.

28. Quite understandably s 3 of the Electricity Act gave the Commission the latitude in regard to its functions and powers.

Section 4 built on that by similarly conferring extensive powers on the Commission. Of particular relevance for present purposes is s 4(1)(s) which recognised that the Commission would require a large staff compliment that would have to be housed at its various sites and would have to be provided with all the amenities associated with a township in the vicinity of power plants and the location of any other long term capital projects. To this end s 4 provided that the Commission may acquire land by purchase, lease or otherwise for the purpose of erecting thereon dwelling-hoses for persons in its employ, to erect such dwelling-houses and to enter into agreements with such persons for the letting or sale of such dwellings to such persons. “

29. In my view that power was consistent with such ancillary rights as would enable it to set up housing projects which, it is common cause, equated with those of a township development.

30. I therefore conclude that Eskom had the power since 1922 to have recognised as a township land on which it established dwellings in what would otherwise be regarded for the purposes of provincial Ordinances and Municipal Bye-laws as a township.

31. The fact that the predecessor to the Emfuleni Municipality recognised Redan for all purposes as a township is borne out by the fact that the dwellings and the lay-out of the village were such that municipal services were provided to it and approved whether expressly or impliedly.

Whether it was established or recognised in law as a township is however the issue which needs to be addressed.

32. The drafters of ESTA clearly had the situation of Eskom in mind, and possibly other large public utility projects since it did not limit s 2 exclusion to only “land in a township established, approved (or) proclaimed” but added a township that was otherwise “recognised as such in terms of any law”. [2]

33. While this may require both a factual enquiry as to whether the land in question has the attributes of a township and also an enquiry as to whether it was developed under some lawfully exercised power, in the present case it is evident that s 4 of the Electricity Act is a law which recognised that Eskom could establish, and enabled it to establish, what is in fact a township without having to go through the process of engaging a provincial or local administration for approval or proclamation.

This would make perfect sense having regard to the purpose of the Electricity Act’s purpose and functions read as a whole, and the skilled personnel Eskom would have within its organisation to develop, lay out and establish villages for the needs of its workforce; aspects entrusted to it by its enabling legislation.[3]

In fact Adv. Botha confirmed that Redan village had all the attributes of a township, only that it was not done under any Provincial legislation or Municipal bye-law concerned with township development.

34. The fact that the provincial and municipal authorities recognised the existence of a village which looked like and had all the attributes of a township without demur further indicates that it recognised that Eskom had the power, under s 4, to establish its own townships. It is a principle of law that regularity of administrative action is assumed and it would be strange indeed if after almost a century a tract of land which had all the attributes of a township and to which services had been supplied by the local municipality was suddenly no longer recognised as a township.

35. This analysis also answers the other submission raised by the applicants; namely that the township status of an Eskom village lapses once Eskom disposes of it.

ESTA covers both the situation of a township proclaimed under law and one established under law. While the former situation may lapse at some stage or another (and the applicants rely on a statement made by the municipal town planner to that effect) it is not possible to speak of the lapsing of the establishment of a township. Either it was lawfully established or it was not. What can be undone is that, from the point of view of town planning, administrative regularity requires that once land ceases to belong to Eskom the applicable legislation for the proclamation of a township is absent and a process needs to be undertaken to have the land proclaimed for purposes of the new owner. [4]

36. The effect of establishing Redan as a township under law is that the transfer of ownership does not affect its status for purpose of s2(1). That status can only be affected if the new owner seeks to have it proclaimed as agricultural land and then s 2 (1)(a) is triggered. This interpretation is consistent with the considerations underlying ESTA when compared with PIE and also avoids anomalies and absurdities. Two example will suffice to demonstrate the incongruities if it was otherwise;

a. The mere fact that Eskom may conclude an agreement with another party cannot result in the land changing its character or the rights and obligations of those dwelling on the land suddenly changing from those under a township to whatever its pre-existing position was. If it was a commercial area with business rights it could not mean that every household would be entitled overnight to apply for business licences despite the purchaser acquiring the development for residential purposes

b. More directly, the applicant contends that not all the land acquired can be transferred to the purchaser because Eskom did not own it all. They argue that there is a resolutive condition that if transfer of part of the land cannot be effected because ownership cannot be proven then the sale is a nullity. Applying the applicants’ reasoning to the facts of this case; on the sale agreement being concluded the provisions of s 4 of the Electricity Act special exemption lapses and the property cannot be used for residential purposes but can be used for agricultural purposes, and should the sale fall through, or be concluded and the property is zoned in the hands of the purchaser as a township, then anyone who used it for agricultural purposes would have to desist from such use.

Moreover it would be absurd to expect Eskom to allow the township to be proclaimed in the name of the purchaser the moment the sale agreement was concluded since there may any number of reasons why the sale may fall through, including a failure to provide the required guarantees in due course.

The only rational way of understanding the legislation is that, as with every other essential element of transfer of land rights, real rights are acquired simul ac semel against counter-performance.

c. That being so, it does not matter whether some part of the land was in the hands of another party (albeit that Eskom had acquired a ninety-nine-year lease), the entire village, which included the dwellings now occupied by the applicants or had been occupied by the first applicant, was subject to the exemption from proclamation and was lawfully established as required by ESTA through the provisions of the Electricity Act.

37. Since ESTA does not apply, this court does not have the jurisdiction to deal with what is essentially a PIE issue in relation to all the applicants. Both parties are agreed that if ESTA does not apply then PIE does, a conclusion on which there can be no doubt.

WHETHER GREEFF VOLUNTAIRY VACATED THE HOUSE

38. All that needs to be said regarding the question of whether Greeff was forcibly evicted from his home at Redan or voluntarily left is that there appear to be disputes of fact which are matters for another court to determine if called upon to do so.

GENERAL CONCERNS

39. Two further aspects should be mentioned.

40. The first is that de Ruyter’s Report mentioned that the Municipality’s archives which had been stored in Sebokeng were removed and appear to be lost. Eskom said it would attempt to locate its own copies. The failure to maintain records is a matter of concern. There would be legislation requiring Municipalities to maintain proper record keeping. The failure to do so can have drastic consequences.

41. The other is the way in which the lives of people who are likely to be living close to, or even under, the poverty datum line are affected by decisions taken by major public utilities or public institutions in cases where they fail to take measures to ameliorate foreseeable consequences.

42. As an organ of State, Eskom has broad responsibilities under the Constitution.[5]

While it is evident that Eskom needed to dispose of assets such as Redan village, without imposing conditions before effecting transfer which would ensure that it complied proactively with the purpose of PIE[6], it may have passed on its responsibilities to a private landowner and created a fait accompli which requires the Province or Municipality to provide alternate shelter for those who qualify under PIE before such occupiers can be lawfully removed from Redan. [7]

COSTS

43. The applicants were entitled to bring the application in order to have important principles determined. Moreover, there was a concern regarding the validity of the process adopted which resulted in de Ruyter without any court order but on reading the papers providing a Report as to events as requested by the applicants. However, the applicants should not be given costs from the time they had been provided the Report and (save for Greeff) had received the undertaking

44. The court expresses its appreciation that de Ruyter, his legal team and that of Eskom did not elect to challenge his joinder as a party or the details requested of him, but provided the requested Report. On occasion a legal challenge, even if considered arguable, becomes fruitless particular where it simply reinforces perceptions. As it turned out, the applicants did not take issue with any aspect of De Ruyter’s report but appear to have been satisfied that their concerns did reach the highest level of the organisation and did allay to a sufficient degree their perceptions of impropriety in relation to the disposal of the land in issue.

ORDER

45. In the result this court lacks jurisdiction because the case does not fall under ESTA but under PIE. The following order is made:

a. The application is dismissed

b. The third and fourth respondents are jointly and severally, the one paying the other to be absolved, liable to pay the applicants’ costs of bringing the application up to and including the first day of hearing on the opposed party and party scale, all other costs are to be borne by the parties themselves.

SPILG

ACTING JUDGE PRESIDENT

DATE OF HEARINGS: 22 April, 8 June and 14 July 2021

DATE OF JUDGMENT: 17 September 2021

FOR APPLICANTS: Adv. JJ Botha

Adv A Coertze

Marius Coertze Attorneys

FOR 1st and 2nd RESPONDENTS: Adv. Mokutu SC

Matlala von Metzinger Attorneys

FOR 3rd and 4th RESPONDENTS: Adv. J May

Kok & van Staden Attorneys

[1] Section 2(2) reads: Land in issue in any civil proceedings in terms of this Act shall be presumed to fall within the scope of the Act unless the contrary is proved.

[1] Section 2(2) reads:

Land in issue in any civil proceedings in terms of this Act shall be presumed to fall

within the scope of the Act unless the contrary is proved.

[2] In other words, aside from a township which is expressly established, approved or proclaimed under legislation expressly dealing with township development, the drafters of ESTA also envisaged as falling into the exceptions under s 2(1) a township which was established or recognised as such under law. It is a well recognised aid to interpreting legislation that surplusage is unintended; rather that a meaning must be given to every word. See Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436 and Cornelissen v Universal Caravan Sales (Pty) Ltd 1971 (3) SA 158 (A) at 174E. In my respectful view the decision in Ngwenya and Others v Grannersberger 1999 (4) SA 62 (LCC) is not in point since it was only concerned about whether a township in the process of development could come into existence prior to it being actually established, approved or proclaimed (see at para 12). The present case is concerned with whether such a township had actually been established or recognised in terms of any law.

[3] This result is achieved by applying to s 4 of the Electricity Act and to s 2(1) of ESTA the interpretational norms which require a court to have regard to “the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production” See Airports Company South Africa v Big Five Duty Free (Pty) Ltd and Others 2019 (5) SA 1 (CC) at para 29 citing Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA). Section 2(1) of ESTA could readily have identified townships by reference to Provincial legislation and municipal bye-laws dealing with township developments and proclamations. The drafters chose rather a conceptual divide by reference to both the factual attributes of a township and that it was done pursuant to a legislative right or power.

[4] It was a special condition of the disposal of the land in question by Eskom that the purchase would obtain the necessary rezoning by the time of transfer. See clauses 14.1 and 14.2 of the Deed of Sale (Annexure AA8 to the third and fourth respondents answering affidavit)

[5] See s2 39 definition of “organ of state” in the Constitution (subpara (b)(ii)). See also Eskom Holdings Soc Ltd v Resilient Properties (Pty) Ltd and related cases 2021 (3) SA 47 (SCA) at para 11 See also s 8(1) which binds organs of State to respect and apply the Bill of Rights provisions, one of which is s 26 which accords everyone the right to have access to adequate housing and which requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. Both PIE and ESTA are such statutes. See also ss 41 (1)(b) and (h)(iv) of the Constitution which inter alia requires all spheres of Government and all organs of State to secure the well-being of the people and co-ordinate their actions with one another. In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and another (CC) 2012 (2) SA 104 (CC) the Constitutional Court explained the exchange of responsibilities between a landowner and the responsible authorities in relation to the provision of shelter for those subject to eviction under PIE.

[5] See s2 39 definition of “organ of state” in the Constitution (subpara (b)(ii)). See also Eskom Holdings Soc Ltd v Resilient Properties (Pty) Ltd and related cases 2021 (3) SA 47 (SCA) at para 11

See also s 8(1) which binds organs of State to respect and apply the Bill of Rights provisions, one of which is s 26 which accords everyone the right to have access to adequate housing and which requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. Both PIE and ESTA are such statutes. See also ss 41 (1)(b) and (h)(iv) of the Constitution which inter alia requires all spheres of Government and all organs of State to secure the well-being of the people and co-ordinate their actions with one another. In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and another (CC) 2012 (2) SA 104 (CC) the Constitutional Court explained the exchange of responsibilities between a landowner and the responsible authorities in relation to the provision of shelter for those subject to eviction under PIE.

[6] Or of imposing conditions on the purchaser to enable alternate accommodation to be provided for the occupiers before they were

evicted or the rent significantly increased and an unaffordable increased deposit demanded, all unilaterally.

[7] The questions which arises, and which this court does not have to consider, is whether Eskom had any responsibility as an organ of State to establish details regarding the occupiers before selling any part of the village, and if so whether it was obliged to engage the relevant authorities if alternate accommodation under PIE (or ESTA, if it had been implicated) would have to be found for any of the occupiers before transfer to a new land owner.