MEC For Department of Human Settlements, Gauteng Province v Molema (44773/13) [2013] ZAGPPHC 438 (20 December 2013)

IN THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

REPUBLIC OF SOUTH AFRICA

CASE NO: 44773/13

DATE: 20 DECEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

MEC FOR DEPARTMENT OF HUMAN SETTLEMENTS,

GAUTENG PROVINCE………………………………………………………..…Applicant

and

KEDIBONE MOLEMA ……………………………………………..……..First Respondent

UNLAWFUL OCCUPIERS OF THE SOUTPAN

INFORMAL SETTLEMENT…………………………………………….Second Respondent

JUDGMENT

Tuchten J:

1. The members of the second respondent are unlawful occupiers of the Soutpan informal settlement, located on that portion 1 ofTswaiing 149 JR known as Soutpan New Eersterus Extension 9. Tswaiing 149 is State owned land. The applicant is charged with the development of the land and brought urgent eviction proceedings against the members of the second respondent under the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 19 of 1998.

2. The first respondent was initially believed to have been instrumental in an unlawful scheme to sell occupation rights in Soutpan, The first respondent explained herself in an affidavit and the applicant withdrew its claims against her. She presently plays no part in the proceedings.

3. The case was originally called before me in the urgent court and was thereafter postponed from time to time, mostly before me, as the parties sought to resolve their differences. The postponements were necessary to establish the relevant facts, without a consideration of which no matter relating to housing and eviction from homes can be adjudicated.

4. Ultimately it became common cause that the members of the first respondent had to go: they were obstructing the orderly development of a low cost housing scheme for which the applicant is responsible. This they reluctantly accept although they complain on two grounds. The first ground is that the authorities are being selective in their efforts to evict unlawful occupiers from Soutpan. Their neighbours, they say, are equally unlawful occupiers but the applicant is not proceeding against them.

5. The second respondents’ neighbours live in Tswaiing Informal Village on Eersterus Extension 8, at the north-west corner of

Eersterus Extension 9. Although Tswaiing Informal Village is presently occupied illegally, the applicant has decided not to evict

its residents. Their occupation is of longer duration than that of the second respondents. There are even formal structures in Tswaiing Informal Village. The applicant believes that the development can take place without the eviction of the residents of Tswaiing Informal Village.

6. This decision not to evict the residents of Tswaiing Informal Village is, in my view, not a ground upon which, as a matter of law, the members of the second respondent can rely to stay where they are. Their remedies are twofold: to react to the perceived unequal treatment at a political level or to bring proceedings to compel the authorities to take steps against their allegedly more favoured neighbours.

7. The second ground is, as I see it, one of substance. If they must go, say the members of the second respondent, to where must they go? It is no answer, they submit, that - as counsel for the applicants in such matters are wont to argue - the illegal occupiers must have come from somewhere and should just return from whence they came.

8. I entirely agree with the second respondents’ submission. The argument to the contrary overlooks an historical reality at the heart of this country’s housing problem: that displaced communities often just do not have anywhere to live in a manner that is consistent with human dignity and access to constitutionally guaranteed amenities. That is why, in many cases, land invasions take place: persons disadvantaged by lack of access to decent housing hear of a proposed development and hasten to create facts on the ground by occupying the site of the proposed development.

9. In the absence of concrete evidence that unlawful occupiers of State land have somewhere to go which passes constitutional muster, a court ought to be slow indeed to order eviction. I made it clear at an early stage that on the evidence before me I would not order eviction unless appropriate alternative accommodation was tendered by the applicant. The applicant accepted the justice of this approach and directed her efforts towards identifying somewhere for the members of the first respondent to go.

10. A site was identified. The site in question is to the immediate east of the area described on one of the maps put up by the applicant as New Eersterus Extension 10. The members of the second respondent do not object to the location of the site but they complain that the site is not yet ready for informal settlement. The applicant agrees that the site identified is not yet ready for settlement but has undertaken to make it so. The site must be made suitable for dignified human habitation which, in this case, translates to an informal settlement site equipped with the necessary basic amenities.

11. This approach carries with it its own dangers: once it becomes known that the State is preparing such a site, there is a risk of a fresh influx of persons disadvantaged as to adequate housing. For this reason, a measure of urgency in the implementation of the resettlement plan is called for.

12. I referred to necessary amenities. One of these is the preparation of the ground upon which an informal dwelling may be erected. In this country such dwellings are constructed from a variety of materials but wooden load-bearing poles for the structure and corrugated iron for the roof predominate. In the present case, the evidence is that the site identified by the applicant has too many trees on it. The site was described in the affidavits as a forest. I do not know what kind of trees are on the site but as the site is some 40 km northwest of Pretoria, the removal of the trees should not present much difficulty for a contractor with basic machinery. The trees will have to be uprooted and the portions of the site identified for dwellings as such levelled and cleared of vegetation. This does not mean that every tree on the site must be removed and the entire site made to look like an ungrassed football pitch. Ideally, some suitable trees should remain to provide shade and to be pleasing to the senses.

13. The other required amenities are potable drinking water, sanitation and adequate unsurfaced (dirt) roads. In each case the amenity must meet the minimum standard required consistent with decent informal settlement.

14. The next question is who the arbiter of such standards should be. I shall provide in my order for the court to be the arbiter in case of disagreement between the parties. This means that the order which shall make will not finally dispose of the disputes between the parties. This matter will have to be determined incrementally, with provision for the parties to return to court if a further dispute arises,

15. I accordingly make the following order:

1 The members of the second respondent presently occupying Soutpan New Eersterus Extension 9 must be provided by the applicant with

alternative accommodation on the rectangular portion of land (“the relocation site”) lying to the east of New Eersterus Extension 10 as depicted on the plan titled “Proposed Land Invasion Action Plan” in the applicant’s supplementary affidavit at p146 of the papers.

2 The applicant must render the relocation site suitable for informal settlement by:

2.1 uprooting and removing sufficient trees from the site so as to accommodate informal dwellings of the kind generally erected in informal settlements;

2.2 clearing and levelling such portions of the site where informal dwellings are to be erected;

2.3 providing, to a standard consistent with human dignity and having regard to the number of residents to be accommodated, an adequate supply of piped potable drinking water, sanitary facilities and unsurfaced (dirt) roads.

3 When the applicant has formed the opinion that she has rendered the relocation site suitable for informal settlement in compliance with 2 above, she must forthwith, through her attorney, serve a written notice on the second respondents’ attorney stating that in her opinion she has so complied.

4 Within one week of receipt by the second respondents’ attorney of the written notice contemplated in 3 above, each of those members of the second respondents who do not agree with the applicant’s opinion as stated in the written notice contemplated in 3 above (“disagreeing respondents”) may, through their attorney or personally, serve on the applicant’s attorney a written notice (“notice of disagreement”) identifying each such disagreeing respondent and setting out the ground upon which such disagreeing respondent contends that the relocation site is not suitable for informal settlement in accordance with 2 above.

5 Upon expiry of the period of a week contemplated in 4 above, all those occupants of Soutpan New Eersterus Extension 9 who have not served upon the applicant’s attorney a notice of disagreement shall be subject to immediate eviction from Soutpan New Eersterus Extension 9.

6 Where a member of the second respondent has in fact caused to be served or served a notice of disagreement on the applicant’s

attorney, the applicant or the disagreeing respondent may set such disagreement down for adjudication by the court and to this end, the parties to the disagreement may supplement their papers presently before the court.

7 The court will thereupon adjudicate the disagreement so formulated and will make in regard thereto any order that may be just and equitable, including an order for the eviction of any person from Soutpan New Eersterus Extension 9.

8 The members of the second respondent are hereby interdicted from erecting any formal dwellings or other structure either on Soutpan New Eersterus Extension 9 or on the relocation site.

9 Upon completion of the low cost housing development on Soutpan New Eersterus Extension 9, the applicant must allocate the houses so constructed in accordance with the applicable criteria of its then applicable policy to members of the second respondent who have been relocated from Soutpan New Eersterus Extension 9 who meet such criteria.

10 The applicant must make land available for sale to persons relocated from Soutpan New Eersterus Extension 9 who do not qualify for the allocation of low cost housing in accordance with the then applicable policy.

11 The applicant must, at her own cost, provide transport for every person to be relocated from Soutpan New Eersterus Extension and for his or her goods to the relocation site.

12 The sheriff of this court is hereby authorised and directed to evict from Soutpan New Eersterus Extension 9 every person who qualifies for eviction in terms of paragraph 5 or paragraph of this order.

13 Every member of the SA Police Services is hereby authorised and mandated to assist the sheriff with his task of eviction under 12 above.

14 Any party to this application may, on notice to the other parties, set this matter down before a judge in chambers for reconsideration

or variation of this order.

15 There will be no order as to costs.

NB Tuchten

Judge of the High Court

20 December 2013

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