Mpumalanga Growth Agency v South African Human Rights Commission and Others (1461/2022) [2023] ZAMPMBHC 39 (18 July 2023)

FLYNOTES: ADMINISTRATIVE – Review – Human Rights Commission – Complaint to commission alleging eviction – Findings and directives on right to housing and alternative accommodation – Findings not definitive and directives do not adversely affect the rights of applicant and do not have a direct, external legal effect – Not satisfying definition of administrative action – Court’s review jurisdiction in

terms of PAJA not engaged – Application dismissed – Promotion of Access to Justice Act 3 of 2000, s 6.

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION (MAIN SEAT)

Case Number: 1461/2022

In the matter between: MPUMALANGA GROWTH AGENCY Applicant and SOUTH AFRICAN HUMAN RIGHTS COMMISSION First Respondent JONES BEN SIBANYONI Second Respondent FRANCIS TEMBO Third Respondent

This judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII. The date and time for hand-down is deemed to be at 11h00 on 18 July 2023.

JUDGMENT

Roelofse AJ:

[1] The applicant is the Mpumalanga Economic Growth Agency (“the agency”). The agency is a statutory body that was established

as a juristic person in terms of section 2 of the Mpumalanga Economic Growth Agency Act 4 of 2005 (“the Agency Act”)[1].

[2] The first respondent is the South African Human Rights Commission (“the commission”). The commission established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996[2]. It is one of the State institutions aimed at strengthening the constitutional democracy in the Republic.[3]

[3] The functions of the commission are provided for in section 184 of the Constitution. The commission’s composition, functioning and powers are provided for in the South African Human Rights Commission Act 40 of 2013 (‘the SAHRC Act”).

[4] The commission consists of eight Commissioners.[4] The second respondent a commissioner of the commission.

[5] The third respondent (“Mr. Tembo”) lodged a complaint over the Agency’s conduct with the commission (“the complaint”). This application is about the complaint, the commission’s investigation into the complaint and the commission’s findings and directives set out in the commission’s investigative report pursuant to complaint.

[6] Mr. Tembo complained to the commission that he resided on a property that is owned by the agency and that the agency had orchestrated his eviction “…by using a mob to effect the illegal eviction in violation of his [Mr. Tembo’s] right to be evicted from his home without a court order.”[5]

[7] The commission investigated the complaint and issued a final investigative report on 15 November 2021.

[8] A short summary of the facts that lead to the commission’s investigation, directive and findings will suffice.

[9] Mr. Tembo commenced occupying the property on 13 February 2003. At first it was through Mr. Tembo’s former employer and later on, Mr. Tembo remained in occupation of the property, paying rent first to MFHC and then to the agency that was MFHC’s successor in title. The rent Mr. Tembo paid never increased from R300 per month over all of those years. During 2012, the agency decided to re-evaluate its immovable properties and to collect market related rent in respect of its housing properties. In 2015, the agency engaged with Mr. Tembo (and other tenants of its properties) and presented a new lease agreement to him. The new lease agreement required Mr. Tembo to pay monthly rent in the amount of R917. According to Mr. Tembo, he refused to sign the new lease agreement on legal advice he received. Mr. Tembo also ceased to pay his monthly rent.

[10] Ms. Msiza and others laid claim to amongst others, the property Mr. Tembo rented, claiming that Mr. Tembo and the other the properties, belonged to their ascendants. It appears that the agency created an impression that the agency would lease Mr. Tembo’s property to Ms. Msiza. On or about 4 May 2018, Ms. Msiza accompanied with a mob of people forcefully evicted Mr. Tembo from the property. Mr. Tembo is now occupying another home which he says is smaller and is also more expensive. Ms. Msiza now resides in the property. She pays no rent.

[11] The commission conducted an investigation as contemplated in section 15 of the SAHRC Act. Section 15 of the SAHRC Act provides for investigations by the commission and the procedure for such investigations. The commissioner considered the parties’ representations and heard the evidence of the parties whereupon the commissioner made findings and also issued certain directives.

[12] The commission found[6]:

11.1.1. MEGA [the agency] was entitled to make decisions regarding the sale of its properties, at any point it deemed appropriate.

11.1.2. Although there is no evidence that MEGA directly orchestrated and worked with the mop to secure Mr Tembo’s eviction, there is evidence that by offering the property that was already occupied by Mr Tembo to Ms Msiza, MEGA contributed to the events that culminated in the eviction of Mr Tembo through illegal means by Ms. Msiza with the assistance of the mob.

11.1.3. MEGA Also failed in its duty in terms of section 7(2) of the Constitution to promote and protect Mr Tembo’s right to housing, including his right not to be evicted without a court order.

11.1.4 No evidence has been brought to bear to substantiate the claim that Mr Tembo’seviction was based on his nationality,and the finding is therefore made on this leg of the complaint to the Commission [.]’

[13] The commission issued the following directives:

‘12.1.1. Within 90 (ninety) days of this report, MEGA to secure alternative accommodation for Mr Tembo of the same standard and value as the property from which he was illegally evicted.

12.1.2. Should MEGA not have any available properties within that period, within a further 90 days from the expiry of the initial 90 (ninety) days, MEGA is to institute legal action against Ms Msiza to restore Mr Tembo’s occupation of the property previously occupied by him.

12.1.3 In providing accommodation to Mr Tembo as directed in paragraphs 12.1.1 and 12.1.2 above, MEGA is entitled to impose any reasonable conditions for such accommodation, including the payment of market- related rent. In determining the rental amount, Mr Tembo should be treated fairly and on terms consistent with those applicable to similarly placed tenants.

12.1.4 In the interim (until after alternative accommodation is found or his occupation of the old property is restored), MEGAshould subsidise Mr. Tembo’s current rental payments,taking into account the value of the rental amount Mr Tembowould have been required to pay if he was still in occupation of the property. To be sure, the subsidy payable (if any), would be the difference between Mr Tembo’s current rental amount and the amount that Mr Tembo would have been required to pay if he was still in occupation of the property. Payment of such subsidy must be made directly to Mr Tembo and backdated to the end of April 2021. Mr Tembo to provide the banking details where the subsidy should be paid in within 7 [sic] of this report. It must be emphasised, however, that this directive has no bearing on Mr Tembo’s relationship with his landlord and that therefore, Mr Tembo shall remain liable for the full payment of his rent to his landlord, regardless of whether MEGA pays him the rental subsidy or not. Mr. Tembo shall have recourse against MEGA in due course for any unpaid subsidy amounts.’

[14] The agency seeks the following relief in its notice of motion:

‘1. Reviewing and setting aside the findings made and directives issued by the second respondent [the commissioner] under the auspices of the first respondent [the commission] under file reference number [...], dated 15 November 2021.

2. Substituting the impugned finding with a finding that “the respondent did not play any role in the eviction of the applicant [the agency] from the property situated at [...]”.

3. In the alternative to prayer 2 above, remitting the matter to the first respondent for consideration by another Commissioner other than the second respondent.

….”

The agency also seeks costs from those respondents who oppose the application.

[15] All of the respondents oppose the application. An affidavit purporting to be the Respondents’[7] answering was filed and delivered. The commissioner deposed to the answering affidavit.The commissioner states that the SAHRC acts on behalf of Mr. Tembo. Mr. Tembo did not file an answering affidavit or any other affidavit.

[16] The agency raised six grounds of review, all premised upon the provisions of the Promotion of Access to Justice Act 3 of 2000 (“PAJA”).

[17] The agency’s first ground of review is founded upon section 6(2)(d)[8] of PAJA. The agency says that the commissioner committed an error of fact and/or law when he found that by engaging in discussions with Ms. Msiza with the aim of concluding a lease agreement, contributed to the subsequent eviction of Mr. Tembo by the mob.

[18] The agency’s second ground of review challenges the commissioner’s finding that the agency, in entering into discussions with Ms. Msiza with the aim of concluding a lease agreement, contributed to the subsequent eviction by the mob was not rationally connected to the relevant and material facts which were placed before the commissioner.

[19] The agency’s third ground of review invokes the provisions of section 6(2)(f)(ii)(cc)[9] of PAJA in that the commissioner erred in finding that the agency had violated Mr Tembo’s right to housing and had failed to protect same where the commissioner had found that the agency had not orchestrated or worked with the mob to secure Mr. Tembo’s

eviction.

[20] The agency’s fourth ground of review relies upon the provisions of section 6(2)(h)[10] of PAJA in that the commissioner found that the agency had failed its obligation in terms of section 7(2) of the Constitution in that the agency had failed to promote and protect Mr. Tembo’s right to housing including his right not to be evicted without a court order merely because the agency had entered into negotiations with Ms. Msiza during Mr. Tembo’s occupancy of the property.

[21] The agency’s fifth ground of review challenges the commissioner’s directive that the agency must provide Mr Tembo with alternative accommodation. The agency alleges that the directive is not rationally connected to the material that was before him and his own finding that the agency had not orchestrated or worked with the mob to remove Mr. Tembo from the property. In this regard, the agency relies upon section 6(2)(e)(iii) of PAJA.[11]

[22] For its sixth ground of review, the agency relies upon is section 6(2)(h) of PAJA in that the commissioner directed that the agency provide Mr. Tembo with alternative accommodation in circumstances where Mr. Tembo had refused to conclude a lease agreement with the agency.

[23] Prayer 1 of the notice of motion seeks to engage section 6 of PAJA while prayers 2 and 3 of the notice of motion seeks to engage section 8 of PAJA. Generally regarding sections 6 and 8 of PAJA, see: TMT Services & Supplies (Pty) Ltd t/a Traffic Management Technologies v MEC: Department of Transport, Province of KwaZulu-Natal and Others:[12]

‘[11] Section 6(1) provides that ‘[a]ny person may institute proceedings in a court . .. for the judicial review of an administrative action’. Section 6(2) then codifies the grounds upon which a court may review administrative action. The effect is that administrative actions as defined in the PAJA are subject to review, in terms of s 6(1), by a court on the basis of the grounds of review codified in s 6(2). Section 8 deals with the remedies that may be awarded when administrative action is reviewed and found to be either unlawful, unreasonable or procedurally unfair. Section 8(1) provides that the ‘court . . . in proceedings for judicial review in terms of section 6(1), may grant any order that is just and equitable’, including mandatory and prohibitory interdicts, the setting aside of administrative action, declarators and, in exceptional circumstances, substituting or varying administrative

action and even directing the payment of compensation.’[Endnotes omitted].

[24] Condensed, the agency’s challenge to the commissioner’s findings and directives is that the commissioner found that the agency’s intention to enter into a lease agreement with Ms, Msiza lead to Mr. Tembo’s forceful eviction from his home by the mob in circumstances where the agency did not “orchestrate” Mr. Tembo’s eviction and the directives of the commission pursuant to this finding.

[25] The agency’s review of the commissioner’s findings and directives is solely founded upon the provisions of section 6 of PAJA. Section 6 of PAJA is the pathway the applicant chose. As was stated in Minister of Home Affairs and Another v Public Protector of the Republic of South Africa[13]:

‘[28] An applicant for judicial review does not have a choice as to the ‘pathway’ to review: if the impugned action is

administrative action, as defined in the PAJA, the application must be made in terms of s 6 of the PAJA; if the impugned action is some other species of public power, the principle of legality will be the basis of the application for review. [Endnote omitted]

[26] Section 6 of PAJA provides for the review of an administrative action as defined in PAJA. Therefore, before the court’s review jurisdiction is engaged, the action sought to be reviewed must be an administrative action as defined in PAJA.

[27] Section 1 of PAJA defines an administrative action (in relevant part) as follows:

‘“administrative action” means any decision taken, or any failure to take a decision, by—

(a) an organ of state, when—

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include- ….’

[28] Even defined in PAJA, what constitutes administrative action is not easy to determine. This sentiment was aptly stated in Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others[14]:

‘[21] What constitutes administrative action – the exercise of the administrative powers of the state – has always eluded complete definition. The cumbersome definition of that term in PAJA serves not so much to attribute meaning to the term as to limit its meaning by surrounding it within a palisade of qualifications. It is not necessary for present purposes to set out the terms of the definition in full: the following consolidated and abbreviated form of the definition will suffice to convey its principal elements:

‘Administrative action means any decision of an administrative nature made...under an empowering provision [and] taken...by an organ of state, when exercising a power in terms of the Constitution or a provincial constitution, or exercising a public power or performing a public function in terms of any legislation, or [taken by] a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect...’.’

[29] I turn to the definition of administrative action under the definition of “administrative action” in section 1 of PAJA.

[30] The commission is an organ of state as the commission exercises a power and performs a public function in terms of the Constitution and the SAHRC Act.[15]

[31] In order to complete the definition of administrative action the commission’s findings and directives must have adversely affected the agency’s rights and must have had a direct, external legal effect.

[32] Was the definition of “administrative action” completed? The answer to this question lies in what powers and functions the legislator gave to the commission.

[33] The commission is a creature of statute.[16] Therefore, its powers and functions is circumscribed by its enabling legislation.[17]

[34] Section 184 of the Constitution is the primary source of the functions of the commission. Section 184 (in relevant part) reads:

‘Functions of South African Human Rights Commission.—(1)The South African Human Rights Commission must—

(a) promote respect for human rights and a culture of human rights;

(b) promote the protection, development and attainment of human rights; and

(c) monitor and assess the observance of human rights in the Republic.

(2)The South African Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power—

(a) to investigate and to report on the observance of human rights;

(b) to take steps to secure appropriate redress where human rights have been violated;

(c) to carry out research; and

(d) to educate.

(3)….

(4)The South African Human Rights Commission has the additional powers and functions prescribed by national legislation.’

[35] Sub-sections 184(2)(a) and (b) find application in this application for the commission investigated, brought out a report wherein findings were made against the agency and directives were issued for the agency to comply with.

[36] The Commissions Act that was enacted as foreshadowed in section 184(2) of the Constitution, supplements the powers that are given to the commission in section 184 of the Constitution.

[37] Section 13 of the SAHRC Act provides for the powers and functions of the commission. The section reads:

‘13. Powers and functions of Commission.— (1)In addition to any other powers and functions conferred on or assigned to it by section 184 (1), (2) and (3) of the Constitution, this Act or any other law and in order to achieve its objects—

(a) the Commission is competent and is obliged to—

(i) make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of human rights within the framework of the Constitution and the law, as well as appropriate measures for the further observance of such rights;

(ii) undertake such studies for reporting on or relating to human rights as it considers advisable in the performance of its functions or to further the objects of the Commission; and

(iii) request any organ of state to supply it with information on any legislative or executive measures adopted by it relating to human rights; and

(b) the Commission—

(i) must develop, conduct or manage information programmes and education programmes to foster public understanding and awareness of Chapter 2 of the Constitution, this Act and the role and activities of the Commission;

(ii) must as far as is practicable maintain close liaison with institutions, bodies or authorities with similar objectives to the Commission in order to foster common policies and practices and to promo te co-operation in relation to the handling of complaints in cases of overlapping jurisdiction or other appropriate instances;

(iii) must liaise and interact with any organisation which actively promotes respect for human rights and other sectors of civil society to further the objects of the Commission;

(iv) may consider such recommendations, suggestions and requests concerning the promotion of respect for human rights as it may receive from any source;

(v) must review government policies relating to human rights and may make recommendations;

(vi) must monitor the implementation of, and compliance with, international and regional conventions and treaties, international and regional covenants and international and regional charters relating to the objects of the Commission;

(vii) must prepare and submit reports to the National Assembly pertaining to any such convention, treaty, covenant or charter relating to the objects of the Commission; and

(viii) must carry out or cause to be carried out such studies concerning human rights as may be referred to it by the President, and the Commission must include in a report referred to in section 18 (1) a report setting out the results of each study together with such recommendations in relation thereto as it considers appropriate.

(2)(a)The Commission may recommend to Parliament or any other legislature the adoption of new legislation which will promote respect for human rights and a culture of human rights.

(b)If the Commission is of the opinion that any proposed legislation might be contrary to Chapter 2 of the Constitution or to norms of international human rights law which form part of South African law or to other relevant norms of international law, it must immediately report that fact to the relevant legislature.

(3)The Commission is competent—

(a) to investigate on its own initiative or on receipt of a complaint, any alleged violation of human rights, and if, after due investigation, the Commission is of the opinion that there is substance in any complaint made to it, it must, in so far as it is able to do so, assist the complainant and other persons adversely affected thereby, to secure redress, and where it is necessary for that purpose to do so, it may arrange for or provide financial assistance to enable proceedings to be taken to a competent court for the necessary relief or may direct a complainant to an appropriate forum; and

(b) to bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or a group or class of persons.

(4)All organs of state must afford the Commission such assistance as may be reasonably required for the effective exercising of its powers and performance of its functions.’

[38] The SAHRC Acted on terms of sub-sections 13(3)(a) and (b) of the SAHRC Act when it, in accordance with section 15 of the SAHRC Act, investigated Mr. Tembo’s complaint, made findings and issued directives pursuant to its investigation.

[39] The findings of the commission are what they are – prima facie findings that Mr. Tembo’s right to housing was violated through the conduct of the agency. See the unreported judgment in Afriforum v the South African Human Rights Commission and Others[18], where Sutherland DJP said:

‘[20] It is plain that the SAHRC is not empowered or authorised to decide whether or not a violation of human rights has indeed occurred. It follows that it is not within the power or authority of the SAHRC to pronounce that an alleged violation is indeed a violation and moreover, it is not within the power or authority of the SAHRC to exonerate a person from an allegation of having violated human rights. The SAHRC’s opinion is relevant only to whether there is substance into an allegation, which justifiably could be the subject matter of court proceedings. To use a different and familiar nomenclature, the question the SAHRC asks itself is whether there is a prima facie case to be met by the alleged violator. If the SAHRC reaches that conclusion, it may cause proceedings to be brought.’

[40] The finding that the agency did not orchestrate Mr. Tembo’s eviction but that the agency’s actions contributed to Mr. Tembo’s unlawful eviction does not constitute a definitive finding that the agency violated Mr. Tembo’s rights – that is ultimately for a competent court to decide if called upon to do so.

[41] The directives that were issued do not adversely affect the rights of the agency and do not have a direct, external legal effect. If the agency does not obey the directives, the commission may still, in terms of section 15 of the Commissions Act, proceed to assist Mr. Tembo to take steps to secure appropriate redress for Mr. Tembo’s in its own name or in Mr. Tembo’s name.

[42] I therefore find that a review of the commission’s findings and directives do not fall under PAJA for same does not satisfy the definition of “administrative action” in section 1 of PAJA. The result is that the findings and directives are not open to review in terms of PAJA. The agency, having chosen the pathway of a review in terms of PAJA, must therefore fail. The relief sought by the agency cannot be granted because the court’s review jurisdiction in terms of PAJA is not engaged.

[43] Costs must follow the result.

[44] In the premises, I made the following order:

(a) The application is dismissed.

(b) The applicant is ordered to pay the first respondent’s costs

Roelofse AJ

Acting Judge of the High Court

DATE OF HEARING: 15 JUNE 2023

DATE OF JUDGMENT: 18 JULY 2023

APPEARANCES

FOR THE APPLICANT:

MR. M KGOMONGWE ON INSTRUCTIONS OF GILDENHUYS MALATJI INC

FOR THE FIRST RESPONDENT:

MR. M MORONGO ON INSTRUCTIONS OF THE SOUTH AFRICAN HUMAN

RIGHTS COMMISSION

[1] The Act is provincial Legislation of Mpumalanga.

[2] Section 184 of the Constitution.

[3] Section 181(b) of the Constitution.

[4] Section 5(1)(a) of the Commissions Act.

[5] Para. 7 of the commission’s answering affidavit at page 88 of the record.

[6] Page 24 of the Final Report at page 498 of the record.

[7] I.e., all of the respondents.

[8] Section 6(2)(d) of PAJA reads: ‘(2) A court or tribunal has the power to judicially review an administrative action if— …. (d) the action was materially influenced by an error of law; ….’

[8] Section 6(2)(d) of PAJA reads:

‘(2) A court or tribunal has the power to judicially review an administrative action if—

….

(d) the action was materially influenced by an error of law;

….’

[9] The section reads: ‘the action itself— …. (ii) is not rationally connected to— …. (cc) the information before the administrator; ….’

[9] The section reads:

‘the action itself—

(ii) is not rationally connected to—

(cc) the information before the administrator;

[10] The section reads: ‘A court or tribunal has the power to judicially review an administrative action if— …. (h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function;’

[10] The section reads:

‘A court or tribunal has the power to judicially review an administrative action if—

(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function;’

[11] The section reads: ‘(2) A court or tribunal has the power to judicially review an administrative action if— …. (e) the action was taken— (iii) because irrelevant considerations were taken into account or relevant considerations were not considered;’

[11] The section reads:

(e) the action was taken—

(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;’

[12] (Case no. 1059/2020) [2022] ZASCA 27 (15 March 2022).

[13] [2018] 2 All SA 311 (SCA).

[14] [2005] 3 All SA 33 (SCA),

[15] Section 239 provides: ‘“organ of state” means— (a) any department of state or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution— (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation,’ (iii)

[15] Section 239 provides:

‘“organ of state” means—

(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation,’

(iii)

[16] Established by section 184 of the Constitution.

[17] See: Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa

and Others [2000] ZACC 1; 2000 (2) SA 674 CC; Affordable Medicines Trust and Others v Minister of Health and Another (2006 (3) SA 247 (CC).

[18] Case Numbers: 14370/2019; 31328/2019, Gauteng Divison, Johannesburg, delivered on 14 July 2023.