Odvest 182 Pty (Ltd) v Occupiers of Portion 26 (Portion of Portion 3) of Farm Klein Bottelary No 17, Botfontein Road ('The Property') and Others (19695/2012) [2016] ZAWCHC 133 (14 October 2016)

THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

In the matter between

Case No: 19695/2012

ODVEST 182 (PTY) LTD APPLICANT

and

OCCUPIERS OF PORTION 26 (PORTION OF

PORTION 3) OF FARM KLEIN BOTTELARY NO

17, BOTFONTEIN ROAD (‘THE PROPERTY’)

WHOSE NAMES APPEAR ON ANNEXURE “A”

TO THE NOTICE OF MOTION FIRST

RESPONDENT

ALL OCCUPIERS OF THE PROPERTY WHOSE

NAMES DO NOT APPEAR ON ANNEXURE “A” SECOND

RESPONDENT

CITY OF CAPE TOWN THIRD

RESPONDENT

MINISTER OF HUMAN SETTLEMENTS IN THE

WESTERN CAPE PROVINCIAL GOVERNMENT FOURTH

RESPONDENT

MINISTER OF RURAL DEVELOPMENT AND

LAND REFORM FIFTH

RESPONDENT

Coram: ROGERS J

Delivered: 14 OCTOBER 2016

JUDGMENT

ROGERS J:

Introduction

[1] This is an eviction application by a private landowner. The persons alleged to be unlawful occupiers are cited as the first and second respondents, the former group being persons identified by name or by dwelling, the latter group being all other persons in

occupation. For convenience I shall refer to them collectively as the respondents. The third respondent is the City of Cape Town (‘the City’), within whose area the land is located. The fourth and fifth respondents are the provincial Minister of Human Settlements (‘the MEC’) and the national Minister of Rural Development and Land Reform (‘the Minister’).

[2] The judge who managed and heard the case (‘the previous judge’) has become indisposed. At the request of the Deputy Judge-President, and with the consent of the parties’ legal representatives, I have been assigned to adjudicate the case with reference to the heads of argument and the transcript of the oral argument on the basis that I could in my discretion call for further argument. Given the lengthy delays, I have decided not to call for additional argument. None of the parties indicated that they wished to place further argument or evidence before me.

[3] In argument before the previous judge the applicant was represented by Mr Joubert, some respondents by Mr Magardie of the Legal Resources Centre (‘LRC’), other respondents by Mr Carolissen instructed by the Stellenbosch Legal Aid Clinic (‘SLA’),

the City by Mr Katz leading Ms Pillay, and the MEC and Minister by Mr Naidoo.

Background

[4] The land in question is the farm Klein Akker situated in Kraaifontein near the City’s border with the Stellenbosch Municipality. It is 13 ha in extent. The most recent information is that the respondents number 233 people comprising 79 households. Some of them have been in occupation since early 2000.

[5] Hotelink (Pty) Ltd (‘Hotelink’), a company whose sole shareholder was Mr Jean du Toit (‘Du Toit’), took transfer of the property in 1998, having paid a price of R1,2 million. During June 2005 Hotelink sold the property to Wright Approach Investments 621 CC (‘WAI’) for R1,254 million. WAI, a corporation controlled by a Mr Johann Hattingh, acknowledged that there were persons in alleged unlawful occupation. WAI took transfer in December 2005.

[6] WAI went into voluntary liquidation during March 2009. In April 2011 WAI’s liquidators sold the property to the present applicant (‘Odvest’) for R2,5 million on condition that Odvest was given vacant occupation. This sale agreement fell by the wayside.

Procedural history

[7] In October 2012 WAI’s liquidators launched the present proceedings, seeking the respondents’ eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’). At that stage the MEC and

Minister were not cited as respondents. On 9 November 2012 Nyman AJ postponed the application to 12 December 2012 with a timetable.

Notices of opposition were filed on behalf of various respondents by the LRC and SLA. On 29 November 2012 the City filed a housing report, stating that it did not know the particular circumstances of the case but that it was unable to provide the respondents with accommodation. This was the first of five reports/affidavits filed by the City.

[8] On 12 December 2012 the application was postponed to 12 February 2013 with a further timetable. On that date it was postponed to 9 May 2013 with a revised timetable. Opposing and replying papers were filed over the period January-March 2013. Following an inspection of the property by its officials, the City on 12 April 2013 filed a further affidavit (its second report). On 8 May 2013 and by agreement the case was postponed for hearing on the semi-urgent roll on 14 August 2013 with a timetable for supplementary papers.

[9] Among the points taken by the respondents was that they were ‘occupiers’ within the meaning of the Extension of Security of Tenure Act 62 of 1997 (‘ESTA’) and that by virtue of s 17(1) of ESTA the high court did not have jurisdiction. Section 17(1) states that eviction proceedings in terms of ESTA may be instituted in the relevant magistrate’s court or in the Land Claims Court. Section 17(2) states that if all the parties agree the proceedings may be instituted in the high court. Since Klein Akker is rural land and since the respondents alleged that their incomes did not exceed the prescribed amount (R5000 p/m), the applicability of ESTA, and thus this court’s jurisdiction, turned principally on whether the respondents had consent at any relevant time to reside on the land. The respondents alleged that they had such consent.

[10] The matter came before the previous judge on 14 August 2013. It seems that the parties agreed to address the applicability of ESTA as a separated issue since it was the only point covered in oral argument. Towards the end of the hearing the previous judge asked the parties to consider whether, assuming ESTA were found to apply, they would agree to the high court’s jurisdiction, given

that the case had been pending for some months. The transcript creates the impression that while the previous judge intended to rule on the applicability of ESTA the parties were nevertheless to revert as to whether they would consent to the high court’s

jurisdiction.

[11] On 3 October 2013 Mr Joubert forwarded to the previous judge a draft order to which all the parties had agreed and apologised for the delay. There was a brief appearance on 8 November 2013 when the previous judge made the draft an order of court. The order provided in summary as follows:

· The first and second respondents consented to the high court’s jurisdiction to adjudicate the matter in terms of ESTA if the court should find ESTA to be applicable.

· It appeared prima facie to the court that it was necessary to join the MEC and Minister. A rule nisi was issued calling on the MEC and Minister to show cause why they should not be joined and why they should not be ordered to file reports by specified dates.

· The City was directed to file a further report dealing with specified issues.

· The LRC and SLA were to confirm that between them they represented all the occupiers. They were to provide an updated list of the names of the occupiers.

[12] On 28 November 2013 Ms Hattingh of SLA filed an affidavit adding several names to the persons represented by the SLA but stating that there appeared to be two new structures and that she could not categorically confirm that all persons currently on the land had legal representation.

[13] On 27 January 2014 the City filed a further affidavit dealing with the matters on which it was required to report (its third report). The MEC and Minister did not object to their joinder and filed reports on 6 March 2014 and 11 March 2014 respectively. The liquidators filed papers in reply to the reports.

[14] On 24 June 2014 the City filed its fourth report setting out personal information regarding the persons currently resident on the property. This followed a survey by City officials. This is the report indicating that there were 79 households comprising 233 people.

[15] On 7 July 2014 the previous judge by agreement made an order joining the MEC and the Minister and directing the MEC to file a further report as to whether funds could be made available to the City for alternative accommodation for the respondents. The application was postponed for argument on 16-17 September 2014.

[16] On 20 August 2014 the liquidators concluded a further deed of sale with Odvest for a price of R2,15 million. In terms thereof Odvest was to take occupation and transfer despite the presence of the respondents on the property.

[17] The proceedings did not continue on 16-17 September 2014. On 6 October 2014 the previous judge postponed the case to 17-18 February 2015. The City was directed to supplement a funding application it had made to the provincial government, and the MEC and Minister were to file supplementary reports dealing with the availability of land.

[18] On 26 January 2015 Mr Joubert notified the previous judge that the parties had met and agreed on various issues and that inter alia they wanted to postpone the case to 15-16 April 2015.

[19] On 3 February 2015 the liquidators brought an application to substitute Odvest as the applicant. The respondents opposed the substitution. Following replying papers, the respondents withdrew their opposition. There is no formal order of substitution on the file but by the time the matter came before the previous judge on 23 March 2015 Odvest was reflected as the applicant. In an order of that date made by agreement the application was set down for argument on 9-10 June 2015. There was a timetable: Odvest was to file further papers if any by 27 March 2015; the City, MEC and Minister were to file final reports by 30 April 2015; the respondents were to

file responding affidavits by 15 May 2015; and Odvest was to file replying papers if any by 22 May 2015. The LRC and SLA were directed

to file an updated list of the persons they represented.

[20] Odvest filed a supplementary affidavit on 1 April 2015. Ms Hattingh on 21 April 2015 filed an updated list of the persons represented by the SLA. On 29 April 2015 the City filed its fifth report. On 25 May 2015, about three weeks late, the MEC filed his further report. The respondents did not respond to Odvest’s supplementary affidavit or the further reports.

[21] The matter was argued before the previous judge on 9-10 June 2015. The issue of the applicability of ESTA, in particular whether consent had been furnished, was argued afresh together with the other issues in the case. As previously mentioned, it seems to have been envisaged that the previous judge would, following the hearing on 14 August 2013, rule on the applicability of ESTA. There

was no new material on that question. It is possible that the previous judge thought the issue had become moot in the light of the consent recorded in the order of 8 November 2013. However, to the extent that the considerations for eviction under ESTA differed from those under PIE, the issue remained a live one (or at least so counsel seem to have thought, since it took up a considerable part of the resumed hearing). Judgment was reserved, the judge observing that in view of the fact that she had been case-managing the matter for over two years she would give the case preference.

[22] Unfortunately the previous judge became indisposed without delivering a judgment. Following an approach by the parties’ legal representatives, the matter was assigned to me on 5 September 2016 on the basis previously indicated. It is now about four years

since the application was issued.

[23] Where I refer to submissions made by counsel in argument, I am referring to the hearing of June 2015 unless otherwise indicated. Where I refer to the ‘applicant’, this should be understood as a reference to the liquidators or to Odvest as the context dictates.

ESTA and PIE

[24] If the respondents are ‘occupiers’ as defined in ESTA, their eviction would depend on the following:

(i) Was their right of residence lawfully terminated (s 8(1))?

(ii) Was such termination just and equitable, having regard to the factors listed in s 8(1) of ESTA, namely the fairness of any agreement or legal provision on which the applicant relies, the conduct of the parties giving rise to the termination, the interests of the parties, including comparative hardship, the existence of a reasonable expectation of renewal, and the fairness of the procedure followed by the owner?

(iii) If so, has there been compliance with the procedural prerequisites for eviction contained in s 9(2)(d)?

(iv) If so, is eviction just and equitable, having regard to the factors listed in s 11(3), namely the period of occupation, the fairness of the terms of any agreement, whether suitable alternative accommodation is available, the reason for the eviction, and the balance of the interests of the applicant and the respondents?

(v) If eviction is just and equitable, what is the just and equitable date by which the respondents must vacate, having regard to the factors listed in s 12(2), namely the fairness of the terms of any agreement between the parties, the balance of the interests of the applicant and the respondents, and the period of occupation?

[25] If ESTA does not apply, the issues arising under PIE would be the following:

(i) Would the granting of an eviction order be just and equitable as contemplated in s 4(7), having regard to all relevant

circumstances, including whether other land has been or can reasonably be made available by the City or other organ of state or

land owner and including the rights and needs of the elderly, children, disabled persons and households headed by women?

(ii) If so, what is the just and equitable date by which the respondents must vacate (s 4(8)), having regard to all relevant factors, including the period of occupation (s 4(9)).

Applicability of ESTA

Is the issue still relevant?

[26] ESTA is no longer relevant to jurisdiction. In argument Mr Magardie submitted that the consent to jurisdiction did not mean that the respondents agreed that the high court could determine whether they should be evicted. He argued that the liquidators had brought the application on the basis of PIE and had not pleaded as an alternative that the respondents should be evicted in terms of ESTA.

[27] I do not agree with Mr Magardie’s submission. If the respondents had intended to take that technical approach, there would have been no point in their conceding the high court’s jurisdiction. When the respondents agreed that the court had jurisdiction ‘to adjudicate the matter in terms of [ESTA]’, they must have meant that the court could determine whether their eviction should be granted, having regard to the requirements of ESTA. If, because of the basis on which the application was brought, the evidence did not establish compliance with the requirements of ESTA, the application would naturally have to fail. However, if the

facts establish a case for eviction under ESTA, the fact that the application was brought in terms of PIE would not stand in the way of an appropriate order.

[28] Both ESTA and PIE would require the court to assess whether eviction would be just and equitable and if so the just and equitable date for vacating. The same considerations would largely determine the question whether the termination of any consent which the respondents had to reside on the land was just and equitable. While the lists of factors to be taken into account in the two Acts

are not identical, in neither case is the list exhaustive. If a factor is relevant under the one Act, it will almost certainly be relevant under the other.

[29] I thus agree with Mr Joubert’s submission that at a substantive level the outcome of the case is not affected by whether one approaches it in terms of ESTA or PIE. As I shall presently explain more fully, there has also been compliance with ESTA’s procedural requirements.

[30] I shall nevertheless deal with ESTA’s applicability since it was fully argued at both hearings. The history of the respondents’ occupation is in any event relevant to the enquiry into what is just and equitable. Since the applicant seeks final relief on motion, the respondents’ version must be accepted where there is a genuine dispute of fact.

Only some respondents made affidavits

[31] Not all the respondents filed affidavits. In argument Mr Magardie said that he could not argue for the applicability of ESTA except in relation to those respondents who had made affidavits and alleged consent. This concession was correctly made. In terms of s 3(4) of ESTA a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved. Except in the case of the respondents who made affidavits, there is no evidence as to when the respondents

moved onto the property. They have thus not shown that they are entitled to the benefit of the presumption.

[32] The respondents who filed affidavits and alleged consent were:

· Ilse April, her husband and their two minor children (dwelling 12);

· Dennis Jantjes and his partner (dwelling 24);

· Neville Jansen, his partner and their minor child (dwelling 25);

· Christa Nimmerhout (dwelling 26);

· Caroline Swanepoel, her husband, her two daughters and two grandchildren (dwelling 31);

· Pieter Hermanus (dwelling 32);

· Marneville Solomons and his partner (dwelling 35);

· Anna Schoeman and her six adult sons (dwelling 37);

· Lizette Fourie, her partner and their two minor children (dwelling 39);

· Deon Louw (dwelling 42);

· Carmelita Pietersen and her two minor children (dwelling 43);

· Dorothea Ferns, her husband, their three sons, her sister and her two brothers (dwellings 50-53);

· Angelina Blood, her husband and their two minor children (dwelling 63);

· Willem Gouws (dwelling 67).

The period 1996 – December 2005

[33] Du Toit used the property as a bus depot during 1996-1997. At that time there were no other occupiers. Du Toit’s company, Hotelink, bought the property in 1998. During the course of that year Hotelink relocated the bus depot to Blackheath. For a while

the property was, with Du Toit’s permission, used by one Imraan and several others, including Ahmed Kader (‘Kader’), for pigeon breeding. Imraan permitted certain people to reside on the property. None of the respondents claim, though, to have received consent from Imraan.

[34] Nimmerhout says that she and her family moved onto the property in January 2000. There were already ten families living there. She erected two bungalows. She claims to have obtained permission from one Grant Rabie (‘Rabie’) to whom she paid rent of R400 p/m.

[35] Swanepoel says that she moved onto the property during April 2000 at Rabie’s invitation; he claimed to be leasing the property from Kader. Their dwelling was an old bus which was towed onto the property. She likewise paid rent of R400 p/m, which included

electricity and borehole water.

[36] Schoeman alleges that she and her family have been living on Klein Akker since November 2000. Rabie, whom she describes as the ‘caretaker’ of the property, leased them a caravan, initially at R350 p/m. By this stage the property was not being put to any other use. She says that during 2012 the new ‘caretaker’, Pieter Hermanus, allowed them to erect a wendy-house.

[37] The Ferns family also moved onto the property during 2000. Ferns says they had been unlawfully evicted from another property in Kraaifontein. She alleges that the mayor of Brackenfell, Mr Fanie Jacobs, negotiated with the owner for them to rent the stables at R100 per stall. She attached an undated handwritten demand for rent. She says that during 2001 she handed other documents to an attorney from Lawyers for Human Rights. (In reply Du Toit said he knew nothing of the handwritten demand.)

[38] Louw was another of the respondents to take up residence on the property during 2000. He alleges that he had consent from Rabie. Jantjes moved onto the property during 2001. He too alleges consent from Rabie.

[39] The other respondents who made affidavits took up residence on the property at later times, variously alleging consent from Rabie or Hermanus – Pietersen (2004), Gouws (2005), Solomons (2006), April (2007), Blood (July 2011), Fourie (2011) and Jansen (February 2012).

[40] To return to the earlier period, Du Toit says that in late 1999 he visited the property because of the reported theft of four horses. He was surprised to see about 30 to 40 people (six to eight families or groups) residing on the land. Imraan told him that the people had been brought to the farm in three yellow buses, apparently by Kraaifontein municipal officials. He made enquiries at

the municipality but the officials claimed to know nothing about it. Du Toit decided to ask an acquaintance of his, Hein Pieterse, to move onto the property. Pieterse told Du Toit that he would get rid of the unlawful occupiers. Pieterse and one Theart took up residence in the main house. This was with Du Toit’s consent.

[41] Pieterse reported to Du Toit that one Rabie claimed to have previously lived on the property with Du Toit’s permission. Du Toit said that Rabie’s claim was untrue. Pieterse brought Rabie to see him but Rabie was clearly uncomfortable and left before they could talk. Du Toit never saw Rabie again.

[42] Du Toit claims that during the early part of 2000 he called a meeting to inform the occupiers that they would have to vacate the farm. He told them that nobody had permission to reside there. Theart delivered notice of the meeting to every structure on the property. There were six people present at the meeting but they represented all the occupiers.

[43] It appears that during May 2000 the Wineland District Council (‘WDC’) obtained an order in the Kuilsriver Magistrate’s Court requiring Hotelink to procure the demolition of the structures recently erected on the property. Although the order and papers relating to those proceedings are no longer available, the order is mentioned in a letter which WDC’s attorneys wrote to Hotelink on 13 October 2000. In this letter the attorneys said that the continued occupation of these structures was undesirable given the lack of sanitation and other services. Complaints had been received from adjoining owners. Criminal charges against Hotelink were foreshadowed as were eviction proceedings against the occupiers. Du Toit alleges that his late brother, who was an attorney, replied to the WDC’s attorneys stating that Du Toit was not prepared to incur the costs of demolishing the structures because according to his information the people had been brought there by officials of the Kraaifontein Municipality.

[44] Du Toit says that during 2000/2001 the WDC attempted to implement the demolition order with the support of the SANDF but that political intervention led to the eviction being stayed. It appears that at around this time the water and electricity serving the property were disconnected. Nimmerhout makes reference to this, saying that as a result the occupiers stopped paying rent. Schoeman says that the City subsequently provided the property with water and toilets. Swanepoel says that after the electricity and water were cut off the City brought water to the property in a fire truck. Eventually in 2008 the City put in three taps and portable toilets.

Ferns confirms that there was an eviction order at around 2000/2001 this time. She says the sheriff told her that it did not affect her family because they were living in a permanent structure (the stables).

[45] The WDC’s jurisdiction in relation to the matter is unclear. At some stage the City became involved because on 30 October 2001 Hotelink wrote to the City’s municipal manager regarding a ‘final notice’ dated 8 October 2001 which Du Toit had received as to the undesirable state of affairs on the property. Du Toit said that Hotelink was unable to comply with the

City’s demand. He referred to the unsuccessful attempt by the WDC to implement the order of 24 May 2000. He Informed the City that he had tried various methods to persuade the occupiers to leave but without success. He said that Hotelink was receiving no money for the occupation of the property and did not have funds to obtain an eviction order or to supply the occupiers with services. He welcomed suggestions from the City as to how the situation could be improved. There is no evidence that the City responded.

[46] I have mentioned that some of the respondents claim to have obtained consent from Pieter Hermanus (known to them as Ballie). Hermanus says in his affidavit, filed as part of the respondents’ papers, that he moved into a concrete structure on the property during 2000 after obtaining consent from Rabie. He paid rent to Rabie. About two years later Du Toit, whom he understood to be the

owner, approached him with a proposal that he lease the main house at R1500 p/m. After inspecting the main house he told Du Toit that he was not interested because it was very dilapidated. He would rather spend his money on building a house for himself elsewhere. Du Toit did not want the main house to stand empty and an agreement was thus reached that Hermanus could occupy the main house without paying rent but would repair it at his own cost.

[47] Importantly, Hermanus says that after he moved into the main house Du Toit asked for his help in having the other occupiers ejected. Hermanus refused to become involved. Du Toit asked him at least to ensure that no new people moved onto the property. Hermanus only saw Du Toit on the property twice after this. Hermanus says that over the last 12 years (this was as at January 2013) he gave certain people permission to live on the farm and turned others away. The only person he identifies by name as having had his permission is Solomons.

[48] Du Toit’s version in reply is very different. He says Hermanus was simply one of the unlawful occupiers. Hermanus was at the meeting convened in early 2000. Du Toit says that during 2003 he found a buyer for the property, one Pascall, and told his friend

Hein Pieterse that he would have to vacate the main house and ensure that all other persons residing on the property left. Pieterse

vacated the main house without advance notice. Shortly thereafter Du Toit received a call from Hermanus to say that he had now moved into the main house and wanted to lease it. Du Toit rejected this proposal because he had sold the property on terms which obliged Hotelink to give the buyer vacant occupation. He told Hermanus that he would have to vacate the main house but that for as long as he was there he should at least look after it. Shortly thereafter Du Toit sent some employees to collect the furniture from the main house. Du Toit denies that Rabie or Hermanus had authority to give anyone permission to reside on the property.

[49] It appears that the sale to Pascall did not proceed, presumably because Hotelink was unable to give vacant occupation. During 2005 Du Toit found another buyer, WAI. The sale agreement between Hotelink and WAI was signed in June 2005. Clause 6.5 recorded that there were an unknown number of illegal occupants on the property and any cost in having them removed would be for WAI’s account. Transfer was passed in December 2005.

[50] Du Toit says that during April 2005 he and Theart delivered notice to all the occupiers stating that the property had been sold and that they must vacate by 1 June 2005. He attached a copy of the notice dated 14 April 2005.The respondents deny having seen such a notice.

The period December 2005 – October 2012

[51] There is no evidence as to what WAI did after taking transfer of the property. Various people moved onto the property after December 2005. WAI went into voluntary liquidation in March 2009. During August 2010 WAI’s creditors approved a resolution authorising the liquidators to sell and transfer the property. The first deed of sale, concluded with Odvest in April 2011, required the liquidators to give vacant occupation and thus lapsed.

[52] On 30 January 2012 the liquidators caused the sheriff to serve on the respondents a notice to the following effect: (i) that

the property belonged to WAI, which was in liquidation; (ii) that according to the liquidators’ information nobody was currently occupying the property with consent; (iii) that an eviction application, of which the recipients would be given further notice, would be made on a date after 1 March 2012; (iv) that if any recipients regarded themselves as having consent to occupy the property, such consent was terminated and the liquidators would seek their eviction if they were still in occupation when the application was brought; (v) that any recipient who did not intend to vacate the property should complete the accompanying questionnaire which would assist the court in deciding whether an eviction order should be granted.

[53] Only one occupier completed the questionnaire. I have not been able to find his name on the list of current occupiers.

[54] During March 2012 the Department of Rural Development and Land Reform asked SLA’s Mr Christian Julius (‘Julius’)

to act as a mediator with a view to avoiding eviction. Presumably this was in terms of s 21 of ESTA. Julius says that mediation

failed because the City was not willing to participate. The City’s position was communicated to Julius in an email dated 3 August 2012 from Mr Greg Goodwin, City Head: Sub Councils and Area Coordination: Human Settlements Directorate (‘Goodwin’). Goodwin is the person who has made all affidavits on behalf of the City in the present case.

[55] The eviction application was launched in October 2012. I have already summarised the procedural history.

Conclusions on ESTA

[56] In regard to the period for which Hotelink was the owner (1998-December 2005), I am satisfied that the applicant rebutted the presumption of consent created by s 3(4) of ESTA. The respondents are unable to refute Du Toit’s evidence that Rabie and Hermanus had no authority to consent to their occupation. The respondents filed no affidavit by Rabie. Although they filed an affidavit by Hermanus, he did not claim to have any authority from Hotelink to give consent. On the contrary, it must have been clear to him from what he was told by Du Toit that Hotelink did not consent to past or future occupation by others. Du Toit’s evidence, apart from being uncontroverted, is inherently plausible. There is nothing to indicate that Du Toit or Hotelink received any financial benefit from occupation by the respondents. It is also clear that fairly soon after Hotelink became the owner of the property it came under pressure from the local authority to evict the respondents and demolish their structures. Du Toit’s evidence that he called a meeting of occupiers during 2000 to tell them to vacate rings true. It is consistent with the letter of desperation which he wrote to the City on 30 October 2001. When Du Toit sold the property in 2005 the respondents were described as unlawful occupiers.

[57] Section 3(5) provides that a person who has continuously and openly resided on land for a period of three years shall be deemed to have done so with the knowledge of the owner or person in charge. This does not take the respondents’ case further. It is not the applicant’s case that Hotelink or WAI were unaware of the respondents’ presence. Section 3(5) does not give rise to deemed consent but to deemed knowledge. While an owner’s failure to take action against occupiers over a lengthy period may in appropriate circumstances justify an inference of consent, the mere lapse of time does not suffice. Both sides referred to Residents of Joe Slovo Community, Western Cape v Thubelisha Homes & Others (Centre on Housing Rights and Evictions & Another, Amici Curiae) 2010 (3) SA 454 (CC), which was concerned with the similar definition of ‘consent’ in PIE. Although the members of the court were unanimous on the outcome, there were differences in reasoning and approach. Those members of the court who found that the occupation had been with consent were satisfied that the consent had been validly terminated. The finding of consent was based on the particular facts of the case coupled with the circumstance that the inferences to be drawn from those facts had to take into account that the owner was a municipality with constitutional duties, not a private owner. Hotelink did not owe such duties. If Du Toit ‘tolerated’ the occupation, it was because he did not have the resources or inclination to take legal action.

[58] All those respondents who were in occupation at any stage over the period January 2000-December 2005 were thus in my view occupying the property without consent from the owner or person in charge. ESTA thus did not apply to them at that stage.

[59] WAI took transfer on 27 December 2005. I have already observed that there is no evidence regarding WAI’s tenure as owner until March 2009 when the company went into liquidation. The applicant has not explained the absence of evidence from Mr Hattingh or someone else able to speak on WAI’s behalf. Swanepoel filed a supporting affidavit by a Mr Dirk Hanekom, a former employer of one of the Swanepoel family, who said that he saw Mr Hattingh on the farm a couple of times and that Mr Hattingh gave letters to some people to ask them not to let any more people move onto the farm.

[60] It seems to me that the effect of s 3(4) is that any of the respondents who resided on the property continuously and openly for a period of at least one year after 29 December 2005 would be entitled to the benefit of the presumption if their residence

began prior to 30 January 2011 (ie at least one year prior to the service of the notice of 30 January 2012). I do not think it matters that the express consent alleged by them (ie consent from Rabie and/or Hermanus) has been shown not to have been valid consent. The applicant still needed to prove that the new owner, WAI, did not consent to the occupation. While it may not have taken much evidence to rebut the presumption, there is no evidence at all. It is possible that WAI consented to the continued occupation until such time as it needed the property. The liquidators themselves do not seem to have done anything overt until service of the notices of 30 January 2012.

[61] The following respondents who made affidavits failed to establish that they took up residence prior to 30 January 2011 and also failed to establish that they were occupying with valid consent:

· The Jansen household: Jansen says he and his family took up occupation in February 2012. This was less than one year before proceedings were instituted and shortly after the sheriff served notices to vacate. Jansen says he had permission from Hermanus. If Hermanus ever had authority to give consent (which he did not), he certainly no longer had such authority in February 2012.

· The Blood household: Blood says that she and her family have been in occupation since July 2011. Theirs was among the households which received notice to vacate in January 2012. This was less than one year after she and her family moved onto the property. She does not claim to have received any express consent.

· The Fourie household: Fourie says that she and her family moved onto the property during 2011. She does not say when. She has thus not shown that she and her family were in occupation for at least one year prior to 30 January 2012. She said that Hermanus made no objection when she erected her wendy-house. This falls well short of an allegation of consent from the owner or person in charge. Since the company was in liquidation, authority would have to proceed from the liquidators.

[62] Hermanus provided no information about his personal circumstances. He did not say that he earned less than R5000 p/m. He thus did not bring himself within the purview of ESTA.

[63] The other respondents listed in para 32 above are entitled to be treated as persons who were occupying the property with the consent of the owner or person in charge as at 30 January 2012, the date on which WAI gave notice to vacate. ESTA thus applies to the termination of their rights of residence and to their eviction. In the light of the provisions of s 24, this conclusion is not affected by the subsequent sale of the property to Odvest.

Termination of ESTA consent

[64] The consent which some of the respondents are presumed to have had could clearly not, in law, have been anything more than precarious and terminable on reasonable notice. When s 8(1) of ESTA says that an occupier’s right of residence may be terminated on any lawful ground, this includes in my view the termination on reasonable notice of a precarious consent.

[65] The liquidators served a notice to vacate on 30 January 2012. This incorporated a termination of any consent which any of the occupiers might allege. The notice did not state when the consent would terminate though occupiers were warned that an application for eviction, of which they would be given further notice, would be made after 1 March 2012. If the application had been launched in early March 2012, the notice period of just over one month might well not have been regarded as reasonable, given the length of time for which

some of the respondents had been in occupation. However the application was only issued in mid-October 2012. The respondents thus

effectively had more than eight months’ notice. In my view the presumed consent had lawfully been terminated by the time the application was issued.

[66] There is the further requirement that the termination should have been just and equitable, having regard to the factors listed in s 8(1). There is a separate enquiry into what is just and equitable when it comes to determining whether unlawful occupiers

should be evicted and if so the date on which they should be evicted. Accordingly one should not assume that a termination of consent is unjust and inequitable simply because the consent was terminated with effect from a date earlier than the one on which it would be just and equitable to evict the occupiers.

[67] The effective termination of consent more than eight months after the giving of notice is not unfair in view of the precarious consent which the relevant respondents enjoyed. They could not reasonably have expected to be allowed to stay on the property for ever. There is no evidence that any of them have paid rent since the disconnection of services during 2001. In the circumstances their

lengthy occupation cuts both ways: while termination of consent may be more disruptive when the period of residence has been lengthy, the respondents have enjoyed a lengthy period of residence without having to pay for it and the owner has enjoyed no benefit from the property.

[68] The liquidators of WAI were under an obligation to realise the corporation’s assets. The initial sale to Odvest failed because the liquidators were unable to give vacant possession. The conduct of the liquidators in terminating the consent cannot thus be regarded as unjust or inequitable.

[69] Any respondents who did not intend to vacate the property were invited to provide information which would assist the court in deciding whether an eviction should be granted or not. Since the liquidators’ view was that nobody was occupying the property with consent, this invitation focused on eviction rather than termination of consent. Nevertheless there was a significant period during which the respondents could have provided information to show that the termination of consent would not be just and equitable. Furthermore the liquidators did not decline to participate in the mediation process. That process was scuppered because the City

chose not to be part of it. I do not think the process followed by the liquidators leading up to the launching of the application in mid-October 2012 can be regarded as unfair.

[70] In human terms the respondents’ prejudice outweighed that of WAI, which was purely financial. However the prejudice in question would be the result of eviction rather than the termination of consent per se. The extent of the eventual prejudice would depend on whether organs of state could provide alternative accommodation for the respondents. However the duties of organs of state cannot be invoked for as long as the respondents have consent from the owner. So unless the applicant could terminate the consent it would find itself in a Catch-22 situation.

[71] I have thus concluded that the termination of the respondents’ consent to reside on the property was lawful, just and equitable.

[72] I should mention that none of the respondents claimed the special protection afforded by s 8(4) to persons who have resided on land for more than ten years and have reached the age of 60. While one or two of the respondents may have been in occupation

for ten years and have reached the age of 60 by the time the notices of 30 January 2012 were served, I have found that they did not have consent prior to 29 December 2005. The ten-year period contemplated in s 8(4) is in my view ten years of lawful occupation, ie occupation with consent.

Section 9(2)(d) of ESTA

[73] In regard to the procedural requirements of s 9(2)(d), the liquidators understandably brought the application in terms of PIE. The application was thus not preceded by the prescribed written notices to the occupiers, the City and the provincial office of the Department of Rural Development and Land Reform as contemplated in s 9(2)(d). However the proviso to para (d) states that if a notice of application to court has, after the termination of the right of residence, been given to the said persons not less than two months before the date of the commencement of the hearing of the application, the requirements of the section shall be deemed to have been complied with. The respondents and the City had notice of the application when it was served on them in late October 2012. The Department received notice when the application was served on it pursuant to the order of 8 November 2013. The Minister, through the Chief Director of the provincial office, filed a report on 11 March 2014, some 15 months before the application was heard. In the circumstances there has been deemed compliance with s 9(2)(d).

Is eviction just and equitable (ESTA and PIE)?

[74] Whether ESTA or PIE applies, a determination must be made as to whether eviction would be just and equitable and if so the just and equitable date for eviction. I intend to discuss these questions together because on the case advanced for the respondents and the City a just and equitable date for eviction may lie so far in the future that it might not be just and equitable to grant an eviction order at all.

The owner

[75] The land is privately owned. WAI’s liquidators required eviction so that they could sell the land and give vacant possession. They were eventually able to sell the property to Odvest for a reduced price on the basis that Odvest would take the risk of the unlawful occupation. Odvest’s deponent, Mr Gary Luyt (‘Luyt’), stated in the substitution application that Odvest had bought the property for industrial or semi-industrial purposes, for which it needed various approvals and rezoning. He anticipated that the development of the property would create about a hundred jobs.

[76] Luyt, who made his affidavit in January 2015, said that there was some urgency in the matter. No real planning could be undertaken without certainty as to whether the property would be vacated. He also said that he had received frequent reports and complaints from owners of neighbouring properties as well as SAPS of criminal conduct by occupiers of the property. More direct evidence of this was provided by way of an affidavit served from the chief executive officer of a security company, Mr Charl du Toit. This affidavit was served on 1 April 2015. The previous judge’s order of 23 March 2015 permitted the applicant to file supplementary

papers by 27 March 2015. Mr du Toit’s affidavit was a few days late but no objection was taken. The respondents did not exercise

their right to reply to the affidavit.

[77] The only respondent who is directly implicated by Mr du Toit’s affidavit is Hermanus. There is no basis for finding that all or most of the respondents are engaged in criminal conduct. Nevertheless it is clear that the state of affairs which prevails on

and around the property is undesirable.

[78] The successive owners of the property have had to tolerate lengthy periods of unlawful occupation. It is reasonable to infer that this negatively affected the price which Hotelink was able to get for the property in 2005 and which the liquidators were able to realise by way of the second sale to Odvest in August 2014.

[79] In City of Johannesburg v Changing Tides 74 (Pty) Ltd & Others 2012 (6) SA 294 (SCA) Wallis JA said that a private entity is not obliged to provide free housing for other members of the community indefinitely (para 18). He expressed some difficulty with the proposition that the availability of alternative accommodation could bear on whether an eviction order should be granted as distinct from the date of eviction. He tentatively suggested that in a case where occupiers would be entitled to a lengthy period of notice before being required to vacate, the unavailability of alternative accommodation might operate as a factor to persuade the court that the issuing of an eviction order at that stage would not be just and equitable ‘but such cases are likely to be rare’. He emphasised that this did not mean that the availability of other land was irrelevant where the applicant was a private owner, only that the weight to be attached to that factor ‘may not be great’.

In most cases eviction would be just and equitable if the owner demonstrated a need for possession and there is no valid defence to the claim (para 19).

[80] In the present case the respondents have no defence in law to the claim for their eviction, any consent which they enjoyed having been terminated. WAI’s liquidators required vacant possession in order to comply with their statutory duty to realise the corporation’s assets. Odvest, having purchased from the liquidators, requires the land for development. Odvest may not require immediate possession but it does need certainty that the respondents will vacate the property before it embarks on the process of development, including the obtaining of planning approvals.

The respondents’ circumstances

[81] As is to be expected, the personal circumstances of the respondents vary widely as do their periods of residence on the property. Save for those respondents who filed affidavits, the information about their personal circumstances is sketchy. There is some unsworn information in the questionnaires. The City has provided additional information in its report of 24 June 2014. I am aware that judges must be proactive in ensuring that sufficient information is placed before the court to determine whether eviction would be just and equitable. However the respondents are represented by experienced public-interest lawyers. I think I am entitled to assume that all reasonable steps were taken to procure information.

[82] It is clear from the respondents’ affidavits that some of the households include children, the elderly and persons with disabilities. To judge by the ID numbers contained in the schedule prepared by the City pursuant to its inspection of April 2014, there are at the present time (October 2016) 50 children spread across 27 households. There are at least 12 persons who are now over the age of 60. Ferns says that her 90-year-old father is part of her household (I have not been able to find his particulars on the City’s

schedule). Caroline Swanepoel says that her husband is disabled and in a wheelchair. Both he and she are now over the age of 60. Ferns, who according to her ID number seems to be in her mid-50s, say she has been medically boarded following lengthy medical treatment in Stikland. One of her brothers, who lost an eye in an accident, is in receipt of a disability grant. Jantjes alleges that he is disabled due to chronic asthma and was retrenched in 2005. Fourie is medically unfit to work because of an injury to her right hand which she suffered in a car accident.

[83] The picture that emerges from the affidavits and questionnaires filed in respect of the respondents is that of unemployment or low-paid casual work and that they will be homeless if evicted from the property.

[84] In the City’s affidavit of 24 June 2015 Goodwin says that not a single household head is employed, that no households are in receipt of social grants or housing subsidies and that none of them owns property elsewhere. This information may not be entirely

accurate. A number of the respondents who made affidavits referred to old age pensions, disability grants and child grants.

[85] The property is not served by electricity, same having been cut off some years ago. There are three standing pipes which supply water to residents. There are a few portable toilets.

[86] According to the City only five of the respondents’ names appear on the City’s waiting list for housing. Three were registered in 1999, another in 2001 and another in 2010.

[87] Although the circumstances of the various respondents differ, it was not suggested in argument that distinctions should be drawn between them in determining whether eviction should be granted and the date for eviction. Presumably Odvest’s purposes cannot

be achieved unless all the respondents are evicted. While some respondents may have greater claim to protection than others, it

would not be just and equitable to grant an eviction against some and refuse it against others, or to set some eviction dates earlier and others later, since partial or staggered evictions would bring about hardship for the evictees without corresponding benefit to Odvest.

[88] From a practical point of view, therefore, the just and equitable outcome is largely determined with reference to those households with the strongest case for significant protection. There are at least some households who have resided on the property for many years, whose members include children, the elderly and/or the disabled, who have little or no income, and who have nowhere else to go.

Alternative accommodation - the City’s stance

[89] An eviction order could not be humanely executed unless there were somewhere else for the respondents to go (cf Government of the Republic of South Africa & Others v Grootboom & Others 2001 (1) SA 46 (CC) para 88; President of the Republic of South Africa & Others v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) para 26). On the other hand a refusal to order eviction would effectively amount to an unjust expropriation of Odvest’s land in circumstances where the latter is under no duty to provide land or housing to the respondents.

[90] The undesirability of allowing land invaders to queue-jump is a legitimate consideration which municipalities often raise. I do not think it is a concern in the present case. Klein Akker is not a property on which the City has developed or is intending to develop housing. The respondents did not take up residence on the land with a view to forcing the City to give them preferential treatment. Even now I do not understand them to claim formal housing. The City’s housing reports unfortunately indicates that they are unlikely ever to receive formal housing. What they need is a piece of land with some basic services on which they

can locate the humble structures currently erected on the applicant’s property.

[91] The City’s attitude in its first four reports was that it was unable to assist the respondents. In the first report (November 2012) the City attached its five-year Integrated Housing Plan (‘IHP’) 2012-2017, stating the position as at 1 July 2012. The IHP described all the existing and proposed human settlement projects, including emergency housing. The City said that

there was currently no emergency accommodation for the respondents. There were more than 400,000 households in need of formal housing.

There were about 363 000 persons on the waiting list. The City was currently allocating houses to persons who had been on the list since 1989.

[92] In the second report (April 2013) the City said that it could provide accommodation to the three elderly occupiers in old age facilities (this would mean separating them from their families). In regard to the two disabled occupiers, the City would prioritise their

cases but currently had no accommodation for them. The City had also established that the nearby Stellenbosch Municipality could not assist. The City had asked the provincial government whether it could help and was awaiting a response. The possible purchase by the City of Klein Akker had been discussed in an engagement session. The City was not in favour of doing so because the property lay beyond the urban edge and would thus not be a suitable site for formal housing or as a temporary relocation area. The City, so Goodwin said, was obliged to act within its available resources and fairly to all constituents. There were many desperate and needy people requiring the City’s assistance. It would be unlawful to prioritise one part of the community at the expense of others who had been waiting many years for assistance.

[93] In its third report (January 2014), which addressed various questions identified in the order of 8 November 2013, the City repeated that it was unable to accommodate the respondents in any of its emergency housing projects. Particulars were furnished of vacant land owned by the City in excess of 2 ha where the zoning did not preclude human settlement. Some of this land fell on or outside

the urban edge and was being ‘banked’ for long-term development. Such land currently has no bulk services. Other vacant

land was earmarked for development in accordance with the City’s IHP, the 2013/2014 review of which was attached. One could not use all this land for emergency housing – the IHP covered an array of human settlement projects. The City had been unable to identify any vacant land which was not already designated for other purposes.

[94] Goodwin expanded on why the City could not buy Klein Akker. He said that the City’s annual budget for land acquisition was R30 million and that over the last five years the City had acquired about 300 ha of land with this money. The budget allocation for the next three years was already committed in terms of the IHP. The City could only apply such money to the purchase of Klein Akker by sacrificing another project. Another consideration was that the City was averse to rewarding land owners who failed to take action against land invasions and who then put pressure on the City to buy their land. (As to the last of these points, whatever the merits of that consideration may be in other circumstances, there is nothing to suggest that WAI or Odvest bought the property with this sinister intention.)

[95] Goodwin also addressed the question as to why the City could not submit an application for emergency housing under Chapter 12 of the Housing Code. The Housing Code was promulgated under the Housing Act 107 of 1997. The Code was revised in 2003 pursuant to the decision in Grootboom. Chapter 12 dealt with housing assistance in urgent situations. Chapter 12 was discussed at some length in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & Another 2012 (2) SA 104 (CC). The affidavits and submissions in the present case continue to refer to the relevant part of the Code as Chapter 12. On my

understanding, however, the Code was revised in 2009. What was previously Chapter 12 is now Part 3, and it is this document which

Goodwin annexed to his affidavit (though he called it Chapter 12). Part 3 appears to include similar provisions to those discussed in Blue Moonlight.

[96] Goodwin explained that in terms of Part 3 the City would first need to make an application to the provincial government for approval of an emergency housing project. If the project were approved, the City would use money allocated to it by the provincial government from funds received by the latter pursuant to a Division of Revenue Act (‘DORA’). Once the land was acquired, the project would be added to the City’s five-year IHP and the three-year budget. Goodwin said that the City did not admit that it had an obligation to make a Part 3 application to the provincial government for the benefit of the respondents but that if the City were provided with the requisite information it would ‘out of humanitarian considerations’ apply to the provincial and national governments for the necessary assistance. If such assistance were not forthcoming, the City could not accommodate the respondents within its existing framework for emergency housing, either from its own resources or from its DORA allocation, without prejudicing other potential beneficiaries. He added that such a situation had not yet arisen – the City’s planning for emergencies had to date accommodated all such cases.

[97] In the City’s fourth report (June 2014), Goodwin said that in the light of the information obtained pursuant to the City’s survey it would be submitting an application for emergency housing to the provincial government. He said the City would only be able to assist the respondents if the provincial government’s approval related both to land and funding.

[98] It appears that by the time the previous judge made her order of 6 October 2014 the City had lodged an application with the provincial government, because the order inter alia required the City to supplement its application by 13 October 2014. In the supplemented

application of 10 October 2014 the City said that three pieces of land owned by the Housing Board had been identified as possible sites for the accommodation of the respondents. The City applied for one of these properties together with funding of R4 million (based on R50 000 per structure – ie 80 structures in all).

[99] On 13 October 2014 the provincial government notified the City that for various reasons none of the three pieces of land was suitable. The City’s attention was drawn to the properties which the provincial government had already made available to the City over the past 24 months. On 24 November 2014 the provincial government wrote a further letter to the City, stating that while the province favoured a pragmatic approach the City’s application remained inadequate. The City should explicitly motivate the need to

prioritise the Klein Akker community. The province wished to avoid ‘an entirely unprincipled approach, in which a community is prioritised merely to avoid litigation’. Since the three properties previously identified were not suitable, the City’s

application would either have to relate to Klein Akker itself (if the owner were willing to sell) or to alternative land which the City would have to identify. The province recorded that it had already given the City in-principle funding approval for housing and services for the Klein Akker community.

[100] The City’s fifth and final report was filed on 29 April 2015. Goodwin said that there had been interaction with the provincial government and that the City was now in a position to provide some sort of assistance to the respondents though it was not immediately available. More particularly, the City was willing to accommodate the respondents in the Bloekombos project, which would provide 2000 serviced sites as part of an Incremental Development Area. The City was in the process of ensuring compliance with the statutory requirements for subdivision, environmental impact assessments and permitted densities. Goodwin anticipated that the serviced sites would be available for occupation in four to five years’ time. He said that he was unfortunately unable to provide any further certainty ‘given that the length of time required for the various approval processes is, at this stage, unclear and to a large extent dependent on the public participation process’. He said that the City would argue that eviction in four to five years’ time would be just and equitable on the facts of the matter.

[101] In his report the MEC attached the correspondence between the City and provincial government of October/November 2014 and noted that the City had not pursued its funding application. He added that if financial and other support from the province were still required, the province would consider any application by the City.

The competing contentions in summary

[102] In argument Mr Joubert for the applicant submitted that the City was obliged to provide the respondents with alternative accommodation, that an eviction order would be just and equitable, and that the outer limit for a just and equitable date of eviction would be 18 months, ie 10 January 2017. He said that this would ensure that children were not uprooted during the school year and that the City had enough time to budget for the alternative accommodation.

[103] The 18-month period proposed by Mr Joubert was based on a misreading of the case which was said to represent the outer limit, namely Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newton Urban Village 2013 (1) SA 583 (GSJ), which involved about 2000 unlawful occupiers. Mr Joubert said that the judgment was handed down on 7 April 2011 and that the date set for eviction was 15 January 2013. The judgment was in fact handed down on 15 November 2012 so the period was only two

months. Another case mentioned by Mr Joubert was Hattingh & Others v Juta 2013 (3) SA 275 (CC). He submitted that seven months was allowed in that case. Again this is based on a misreading. The judgment was handed down on 14 March 2013, not 29 November 2012, so the period was about three months (this was not a mass eviction). In Blue Moonlight the period was four and a half months. In Joe Slovo the owner was the municipality and was ordered to provide alternative accommodation. The eviction dates in that case do not shed light on what should happen in a case such as the present one.

[104] Mr Magardie said that he accepted that the City was not under an obligation to provide the respondents with immediate alternative accommodation. He submitted that the respondents should be entitled to remain on Klein Akker until accommodation became available to them at Bloekombos, regarding which there should be a further process of engagement.

[105] Mr Katz for the City was mainly concerned to persuade the previous judge that the City had complied with its housing obligations. He acknowledged that the judge was in an invidious position. He did not venture a suggestion as to what order should be made in regard to eviction save to say that no order should be made against the City.

The absence of an attack on City’s housing policy or its implementation

[106] Mr Katz argued that the important distinction between Blue Moonlight and the present case is that in Blue Moonlight the municipality’s housing policy was attacked and declared unconstitutional whereas in the present case there is no such attack. Mr Katz argued that in the absence of such an attack the court could not find that the City was breaching its constitutional housing obligations by failing to provide the respondents with emergency accommodation.

[107] I disagree with Mr Katz’s argument. The court has the widest power to frame a just and equitable order. A court will naturally not order a party to do something which is impossible (Blue Moonlight para 69). However, if the City were able to provide emergency alternative accommodation, the court would not be precluded from incorporating this as a component of an eviction order merely because the alternative land did not currently constitute one of the projects in the City’s housing policy or because the occupiers were not currently beneficiaries of any approved project. Although Van der Westhuizen J, who wrote for a unanimous court in Blue Moonlight, identified the constitutionality of the municipality’s emergency housing policy as one of the matters to be addressed in

considering whether eviction would be just and equitable (para 33 read with paras 76-95), his reasoning as a whole does not suggest

that a finding of invalidity was essential to the orders which the court made in regard to eviction.

[108] In Blue Moonlight the occupiers brought a counter-application to declare the emergency housing policy invalid because of the distinction drawn therein

between occupiers evicted by the municipality and occupiers evicted by private owners. This distinction was held to be irrational and the counter-application succeeded. Para (e)(iii) of the order is the relief granted on the counter-application. By the time the matter reached the Constitutional Court the attack on the housing policy was quite narrow. The municipality’s policy distinguished between ‘temporary accommodation’ and ‘emergency accommodation’. Temporary accommodation was potentially available to persons evicted by the municipality itself from unsafe buildings. Where persons were evicted by a private owner (whether from safe or unsafe property), the evictees could only be assisted under the ‘emergency accommodation’ part of the housing policy (which followed Chapter 12 of the Code). Since emergency accommodation was said to be fully subscribed, the distinction potentially deprived occupiers evicted by private owners from unsafe buildings of temporary accommodation.

[109] There is nothing in Van der Westhuizen J’s judgment to indicate that the eviction order would not have been granted but for this finding of invalidity. The reasoning contained in paras 34-75 was clearly regarded by the court as sufficient to justify the eviction order and the related order for the municipality to provide the occupiers with alternative accommodation. The reasoning in those paragraphs concerned the municipality’s obligations and resources in respect of emergency housing in general. But for the fact that the municipality’s housing policy purported to exclude privately evicted occupiers from certain temporary facilities which might otherwise be available to meet an emergency, it would not have been necessary for the court to deal with that distinction. The achieving of just and equitable outcomes would be seriously hampered if the court were precluded, in the absence of a substantive application attacking the municipality’s housing policy, to grant an eviction order which required the municipality to provide alternative accommodation. It would also impose an unreasonable procedural burden on the owner and occupiers.

[110] Such a view is also inconsistent with Changing Tides where Wallis JA said (para 37) that if eviction would probably result in occupiers being rendered homeless the municipality’s constitutional obligations to such persons are engaged. The availability of alternative accommodation from the municipality then becomes an important issue. Regarding the municipality’s complaint in that case that it had been incorrectly joined, Wallis JA said the following (the reference to the City being to the City of Johannesburg):

‘An eviction order could only be made on appropriate conditions, which would necessarily include conditions relating to the provision of temporary emergency accommodation. In those circumstances the City manifestly had a direct and substantial interest in the outcome of the litigation and had to be joined as a necessary party. The City’s argument in regard to joinder was misconceived. It was not joined in order to protect the interests of the occupiers, but in order to enable the court to discharge its functions in accordance with the requirements of PIE.’

[111] The City’s housing policy does not draw the distinction which was found in Blue Moonlight to be irrational. That part of the Blue Moonlight judgment thus has no bearing on the present matter.

The Blue Moonlight guidance

[112] The balance of the judgment in Blue Moonlight does, however, provide some guidance though each case must turn on its own facts. In regard to the rights of owners in a constitutional and PIE era (para 32(a) read with paras 34-41), the court emphasised both s 26(3) and s 25(1) of the Constitution, stating that these opposing interests must be balanced in as just a manner as possible (para 36). Unlawful occupation results in a deprivation of property and deprivation must pass constitutional muster (para 37). An owner who has been aware of the presence of occupiers for a long time ‘must consider the possibility of having to endure the occupation for some time’. Although an owner ‘cannot be expected to provide free housing for the homeless on its property for an indefinite period’, the owner in certain circumstances ‘may have to be somewhat patient, and accept that the right to occupation may be temporarily restricted’ (para 40).

[113] In Blue Moonlight a number of the occupiers had once resided on the property with the permission of their employer, a company which had operated from the premises. The applicant for eviction had bought the property knowing about the occupation. There was a factual dispute as to whether the occupiers had continued paying rent to the applicant but their occupation certainly became unlawful at some stage.[1] In the present case many of the respondents never had consent to reside on Klein Akker. Some of them are, in respect of the period

between December 2005 and January 2012, entitled to the presumption created by s 3(4) of ESTA. Odvest, like the applicant in Blue Moonlight, bought the property with knowledge of the unlawful occupation. Odvest’s predecessor, WAI, also purchased with such knowledge.

[114] The Blue Moonlight judgment proceeds with a detailed discussion of the municipality’s obligations in regard to providing accommodation (para 33(b) read with paras 42-67). The court said that although it is generally desirable to join the relevant provincial and national ministers, their non-joinder will not necessarily be fatal. The joinder of the municipality as the ‘main point of contact with the community’ is, however, essential (para 45). Local government has an important role to play in the provision of housing (para 46).

[115] The municipality argued that its role was, in the light of the provisions of Chapter 12, a secondary and limited one (para 46). The analysis which followed was largely directed at refuting the municipality’s argument (and see also Changing Tides para 39). In regard to emergency housing, reference was made to Chapter 12 of the Code, the relevant provisions of which are now found in Part 3 of the Code. Van der Westhuizen J emphasised that the eviction of people from land falls within Chapter 12’s definition of an emergency. The municipality argued that on a proper interpretation of Chapter 12 it was neither entitled nor obliged to fund emergency accommodation (para 48). The court rejected this argument. Although endeavours by local authorities to fulfil the right of access to adequate housing would be empty in the absence of funding from national and provincial government, there is no basis for the assertion that municipalities are not entitled to self-fund, ‘especially in the realm of emergency situations in which [the municipality] is best situated to react to, engage with and prospectively plan around the needs of local communities’ (para 57). The argument that the municipality was not empowered to act outside the national housing policy was found to be ‘unpersuasive’ (paras 58-59).

[116] The municipality argued that the emergencies covered by Chapter 12 were not situations which a municipality could predict, plan and budget for and that all that could be expected of the municipality was to respond to an emergency in an ad hoc fashion by way of an application for funding to the province (para 62). Van der Westhuizen J said that there was no clear indication of this in the wording of Chapter 12. If a municipality were always required to apply to the province on an ad hoc basis, ‘it would go against the very essence of an emergency policy’. Emergencies could not be dealt with on the basis of ad hoc applications alone (para 63):

‘Besides truly exceptional or unforeseen circumstances, the budgetary demands for a number and measure of emergency occurrences are at least to some extent foreseeable, especially with regard to evictions. Predictions can be made on the basis of available information. For example, surveys may serve to establish how many buildings in a municipality are dilapidated and might give rise to sudden eviction proceedings.’

[117] Van der Westhuizen J went on to demonstrate, with reference to the provisions of Chapter 12, that a municipality ought to plan proactively and budget for emergency situations in its yearly application for funds (para 66). In addition to such measures, the municipality has the power and duty to finance its own emergency housing scheme (para 67).

[118] Van der Westhuizen J then moved to a consideration of whether the municipality had the resources to provide the occupiers with emergency accommodation if evicted (para 33(c) read with paras 68-75). The municipality argued that it was impossible to assist the occupiers. Van der Westhuizen J said, however, that the municipality’s budget was the product of its incorrect understanding of Chapter 12. If it had prepared a budget on a proper understanding, it might have made provision for emergency housing (para 69). (This had nothing to do with the irrationality of the distinction drawn in the municipality’s housing policy. The incorrect understanding which Van der Westhuizen J had in mind was the municipality’s view that Chapter 12 did not entitle the municipality to have a self-funded emergency programme.)

[119] Van der Westhuizen J nevertheless proceeded to consider the contention that the municipality lacked resources to provide emergency accommodation to those who faced homelessness as a result of eviction by private owners (para 70). I must emphasise that the court addressed this plea of lack of resources in accordance with the premise of the contention, namely that the temporary accommodation

which the municipality reserved for persons evicted by the municipality itself from unsafe buildings was, by virtue of the municipality’s housing policy, not available to persons evicted by private owners. On that basis the question was whether the municipality had made good its contention that it lacked resources to provide emergency accommodation to the occupiers in question. Whether the distinction in the housing policy, which had the result of excluding the temporary accommodation from the pool of emergency housing, was irrational was considered separately in the next part of the judgment.

[120] Van der Westhuizen J referred to the finding of the Supreme Court of Appeal that the municipality’s supposed lack of resources had been alleged in vague terms. The Supreme Court of Appeal noted that the record showed that the municipality had been operating in a financial surplus for the past year. The municipality had not stated that it was unable to reallocate funds or meet the temporary housing needs of the occupiers. The municipality had had three years of prior knowledge of the occupiers’ plight, indicating (so the Supreme Court of Appeal considered) that the municipality had itself to blame for its unpreparedness (para 71).

[121] Van der Westhuizen J was not persuaded that the findings of the Supreme Court of Appeal were wrong (para 75). He also noted that the municipality had provided information relating to its housing budget but had not given information relating to its budget situation in general. The court thus did not know what the municipality’s overall financial position was. The court’s determination of the reasonableness of measures within a municipality’s available resources ‘cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations’. It is not good enough for a municipality to state that it has not budgeted for something ‘if it should have planned and budgeted

for it in the fulfilment of its obligations’ (para 74).

Adequacy of City’s response in present case

[122] Turning to the circumstances of the present case, the City has at all material times been required to plan proactively to address emergency housing needs that are likely to arise within its area, taking into account the well-established principle that private

owners cannot be expected to tolerate unlawful occupation on their properties indefinitely. The City has been aware of the existence of the Klein Akker community since 2000/2001. There is evidence that some of the current occupiers were brought to the property with the assistance of municipal officials based in Brackenfell (which falls within the City’s area). The WDC obtained a demolition order in May 2000. An attempt to effect the order was averted by political intervention. It is difficult to believe that the City was not aware of these developments. The City was in any event directly engaged by the latter part of 2001, as appears from Du Toit’s letter of 30 October 2001. The City did not respond to Du Toit’s request for assistance (this puts one in mind of the criticism directed at another municipality in Modderklip paras 34-37). One knows that water and electricity to the property were cut off during 2000/2001 and that at some stage thereafter the City began providing water and portable toilets. Du Toit says that he protested to the City’s officials that this would simply encourage further illegal occupation.

[123] If Hotelink and WAI allowed the grass to grow under their feet, so too did the City. The City, like them, allowed ten or eleven years to pass until, in January 2012, the liquidators caused notices to vacate to be served. The City refused to participate in

the ensuing mediation process which thus came to naught. In October 2012 the liquidators issued the eviction application which was duly served on the City. It is now four years later. In successive reports the City adopted a non possumus attitude. Only in its fifth report, filed in late April 2015, about six weeks before the hearing, did the City finally offer some prospect of future accommodation for the respondents. What it offered, though, was a project in the planning phase from which, if it came to fruition, relief could not be expected until 2019-2020.

[124] I find it difficult to see, in these circumstances and in the light of the approach indicated in Blue Moonlight and Changing Tides, how the City can claim that its latest offer is remotely acceptable or how it can rely on a supposed inability to provide emergency accommodation more expeditiously. If it cannot provide alternative emergency accommodation from its current portfolio of properties or from property to be acquired with existing funds, it will need to raise money either by way of an application to the provincial government or by way of an allowance in its next budget. If proper planning for emergency accommodation requires the City to charge increased rates, so be it. The burden should fall on the community at large, not on an individual owner.

[125] I do not intend to discuss the City’s IHP at any length. The document reflects diligent medium- to long-term planning for housing in general, including emergency accommodation. This is no doubt how the City will in most instances be able to meet the housing duties resting upon it. However there needs to be some flexibility to accommodate unexpected emergencies. Indeed I doubt if the City would regard its IHP as being exhaustive in the sense of precluding the City from acting outside the IHP if circumstances truly demand it. In the present case the City seems not to have regarded the Klein Akker situation as a true emergency, perhaps because the respondents are currently de facto accommodated (albeit without right) on private land. The City may have viewed things differently if it were dealing with people who were on the street because their homes had been destroyed by fire or flood. While the situation of the respondents may have not presented an emergency of the same degree, this is mainly because the applicant as the owner could be expected to show some ‘patience’ before an eviction came into effect. However the applicant cannot reasonably be expected to do so indefinitely. And once that stage has been passed, homelessness is homelessness whatever its cause.

[126] Similar criticisms to those made of the municipality in Blue Moonlight can be made against the City in the present case. Financial information has only been provided in vague terms. The IHP itself provides little financial information – it describes projects and goals.[2] Goodwin attached to his first affidavit the allocations received by the City by way of the Urban Settlement Development Grant (‘USDG’

– from national government) and the Human Settlements Development Grant (‘HSDG’ – from the provincial government). Not very much can be deduced from the gross figures: R971 980 000 in the case of the USDG for 2012/2013 and

R678 369 000 in the case of the HSDG for 2012/2013.[3] The projected sums in future years were greater. I do not know how much of these grants was allocated by the City to emergency

accommodation. I note in passing that if the City had bought Klein Akker for the same price that Odvest paid in August 2014, this would have represented 0,13% of the sum of the two 2012/2013 grants.

[127] The updated version of the IHP attached to the City’s third housing report (January 2014) provides information as to how the USDG has been and is to be spent.[4] The 2012/2013 figure is R756 403 374. On the face of it this suggests an under-spending of R215 576 626. The actual or projected spending for subsequent years also appears to be well below the forward estimates for the USDG attached to the City’s first affidavit.[5] The updated IHP gives no information about how the HSDG has been spent.

[128] The City’s IHP makes no reference to funding which the City raises itself, including by way of rates. The ‘funding sources’ segment of the IHP refers only to the USDG and HSDG. Goodwin says in his first affidavit that national funding is supplemented by the City’s own funding sources but does not give any particulars.

[129] In the third report the City said that it budgeted R30 million p/a for land acquisitions and that this usually funded the acquisition of about 50 ha. This represents R600 000 p/ha. Again I observe that if the City had bought Klein Akker for the price paid by Odvest in August 2014, it would only have needed to pay R165 385 p/ha. There is no evidence as to why R30 million p/a should be regarded as adequate, bearing in mind that the allowance is for land for all housing purposes, not only emergency accommodation.

[130] The City has not furnished any information about its overall financial position. While I accept that the respondents are not the only persons whose eviction gives rise to an emergency, I suspect that the City’s allowance of R30 million p/a is a miniscule fraction of the City’s operating and capital budget. (Its website indicates that its budget for 2015-2016 is R38,189 billion of which R32,45 billion is the operating budget and R6,044 billion the capital budget. If these figures are correct, R30 million

is 0,5% of the current capital budget and 0,08% of the overall budget.)

[131] Mr Katz submitted that the respondents were not the only occupiers in need of emergency accommodation. He made reference to various pending cases, in some of which he was representing the City. He said from the bar that about 20 000 people in the City’s area were currently facing eviction. As he acknowledged, the information in question was not contained in the papers. Apart from the absence of evidence, the circumstances in those cases might be different. It appears from the reported judgments relating to one of the matters mentioned by Mr Katz, the Fischer case, that the case may have involved recent land invasions amounting effectively to spoliation.[6]

[132] I am satisfied, in all the circumstances, that the City has failed in its obligation to provide the respondents with emergency accommodation sufficiently expeditiously to avoid unreasonable hardship to the owner. I am also unpersuaded that the City lacks the resources to provide land for the respondents at least on a temporary basis. Even if it does not currently have the resources, the City has the means of raising them, either by rates or by an application to the province. The latter has indicated its willingness in principle to provide funding. There is no adequate explanation as to why the City did not pursue the funding application made in October 2014. At the hearing before the previous judge Mr Naidoo for the MEC highlighted this point and said that if the City’s tender was found not to be adequate the province stood ready to assist.

Conclusion

[133] I thus consider that it would be just and equitable to grant an eviction order and to link the date of eviction to an order requiring the City to provide the respondents with emergency accommodation.

[134] As to the date for eviction, Mr Joubert’s 18-month proposal was made on a misreading of the Newton Urban Village case. Nevertheless I assume from Mr Joubert’s submission, which he made in chief and repeated in reply, that his client was willing to accept an 18-month deferral provided it obtained certainty. This was a generous and humane attitude.

[135] Mr Joubert’s proposal was, however, made at a time when the applicant expected that a judgment would be delivered reasonably promptly, hence the proposed eviction date of 10 January 2017. It is through no fault of any of the parties that the matter has been so long delayed. I do not think it would be fair to the applicant to expect it to bear the full brunt of this delay. On the

other hand the respondents have had no reason to plan for their eviction. They may have expected that the court would refuse an

eviction order or defer it until the Bloekombos land became available. Although the City has less excuse for failing to come up

with an expeditious solution, it too may have hoped that the court would refuse eviction or defer it pending finalisation of the

Bloekombos project.

[136] I do not think it would be reasonable to provide the respondents and the City with a grace period of less than six months. This will unfortunately take one to midway through the next school year and the onset of winter. However I do not think it fair to the

applicant to defer eviction until the end of next year. I will attempt to alleviate disruption by selecting dates which will fall in the mid-year school holidays. The period of deferral will be about eight months.

[137] If the applicant is willing to grant a longer period, either out of a sense of humanity or to limit the risk of appeal, I would naturally be willing to amend the order to provide for more generous states.

[138] In the draft order which Mr Joubert handed to the previous judge in argument the applicant recorded that the respondents’ continued occupation until the eviction date would be gratuitous. I shall repeat this in my order.

[139] Mr Joubert’s draft order required the respondents and the City through their representatives to engage meaningfully with a view to reaching agreement on a possible timetable for the relocation process at an earlier time than contemplated in the order,

logistical assistance for the relocation process, arrangements for any occupiers with special needs, the possibility of preserving the community by relocating them to a single area and whether there were any occupiers who did not require emergency accommodation. The draft order required the engagement process to be completed by 28 February 2016 (ie about eight and a half months after completion of argument). I am not inclined to incorporate such matters in the order. The City will be obliged to perform its obligations under this order in a manner which is consistent with the values of the Constitution in general and the values and principles governing public administration in particular. This will almost certainly require engagement on some of the matters contemplated in the draft order but I will leave it to the good sense of the parties and their legal representatives to determine when and how this should be done. If the respondents consider that the City is failing them in some way in regard to the practical implementation of my order, they will be at liberty to apply to the court for appropriate relief. And both ESTA and PIE permit the court on good cause shown to vary an eviction order (s 12(4) of ESTA and s 4(12) of PIE).

[140] As to costs, there appears to be no prospect that any of the occupiers will be able to pay costs. Mr Joubert did not argue that there should be a costs order against them. He submitted that the City should bear the applicant’s costs. Mr Katz resisted

such an order.

[141] I think it likely that if the City had at an early stage accepted that it was responsible for providing the respondents with alternative emergency accommodation the respondents would not have been advised to continue opposing the application. I have already indicated my views about the shortcomings of the City’s response to the application. On the other hand the hearing of 14 August 2013 was devoted to an issue in which the City played no part. Mr Katz, though present on behalf of the City, did not make any submissions. I think justice would be done if the City were ordered to pay the applicant’s costs incurred after 8 November 2013 but excluding the costs occasioned by the substitution application.

[142] I make the following order:

(a) The persons named in the column headed ‘Head of Household’ in the schedule “SS1” at page 1125 of the record (attached hereto as “X” for convenience) and all persons holding under them, including the persons named in the said schedule as ‘Spouse/Partner’ and/or as ‘Dependants’ (collectively ‘the Occupiers’), are evicted from the immovable property described as Portion 26 (a portion of Portion 3) of the Farm Klein Bottelary No 17, also known as Klein Akker, situated at Botfontein Road, Stellenbosch (‘Klein Akker’).

(b) The Occupiers are ordered to vacate Klein Akker by no later than Monday 10 July 2017, failing which the eviction order may be carried out on Wednesday 12 July 2017.

(c) The third respondent must provide the Occupiers with emergency accommodation on land as near as possible to Klein Akker by Monday 26 June 2017, provided that they still reside at Klein Akker and have not voluntarily vacated it. The emergency accommodation must at a minimum comprise land with basic services not less than those currently provided to the Occupiers on Klein Akker and on which they can relocate the dwellings in which they currently reside on Klein Akker.

(d) The third respondent shall pay the applicant’s costs incurred after 8 November 2013 excluding, however, the costs associated with the application to substitute the applicant, such costs to include those attendant on the employment of two counsel.

______________________

ROGERS J

APPEARANCES

For Applicant: Mr DC Joubert & Mr L Wilkin

Instructed by

Cliffe Dekker Hofmeyr Inc

11 Buitengracht Street

Cape Town

For First & Second Respondents: Mr S Magardie

Legal Resources Centre

3rd Floor Greenmarket Place

54 Shortmarket Street

Mr Carolissen

Instructed by:

Stellenbosch Legal Aid Clinic

44 Banhoek Road

Stellenbosch

For Third Respondent: Mr Katz SC & Ms K Pillay

Fairbridges Attorneys

16th Floor Main Tower, Standard Bank Centre

Heerengracht

For Fourth & Fifth Respondents (abiding): Mr Naidoo

The State Attorney

4th Floor, 22 Long Street

[1] See the Supreme Court of Appeal’s judgment in the case, reported at 2011 (4) SA 337 (SCA) paras 9-16.

[2] There is an annexure to the IHP which gives information about certain amounts budgeted for urban renewal projects [record 259-265]

but it is clear that this is only a small part of the funding available to the City.

[3] Record 269-270.

[4] Record 987.

[5] Record 269.

[6] 2014 (3) SA 291 (WCC); 2014 (4) SA 614 (SCA).