Residents of Setjwela Informal Settlement v City of Johannesburg: Department of Housing, Region E (11079/2016) [2016] ZAGPJHC 202; 2017 (2) SA 516 (GJ) (15 July 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 11079/2016

In the matter between:

Residents of Setjwetla Informal Settlement

Applicants

and

City of Johannesburg

Respondent

Judgment

Van der Linde, J:

[1] This is the return day of a rule nisi issued by this court (Carstensen, AJ) first on 23 and then amended on 24 June 2016 calling on the respondent, a local authority, to show cause why an interim interdict should not be confirmed. The matter initially came before the court as a matter of urgency, and this return day is out of term, also on the urgent roll. Both parties accepted that it was urgent. The cause to be shown is why the respondent should not be interdicted from demolishing shacks in a residential settlement.

[2] The applicants’ case is that they had been living in their shacks for some months, some obviously longer than others, and that without court order the respondent demolished them. The respondent’s case is that the applicants are illegal land invaders; that they commenced invading land of the respondent (that was being prepared for housing) surreptitiously on 20 June 2016, and started putting up shacks; that the respondent commenced three days later on 23 June 2016 demolishing some shacks that were half-way constructed and some that had been completed but were not yet occupied without a court order; and that on this day the applicants obtained the rule nisi coupled with an interim order.

[3] The applicants’ case was not that they were part of those individuals that had come onto the land for the first time on 20 June 2016; they eschewed that suggestion. They proved, on their argument, the dates on which each of them first occupied their homes; the dates range from June 2002 to April 2016. They therefore did not argue that despite having only recently moved onto the land and despite still being in the process of putting up shacks, the respondent nonetheless needed a court order to remove

them as spoliators. Their facts would not support that argument.

[4] Rather, they argued that as people who had been occupying completed homes in the settlement, and for some months at that, they could not be evicted without the respondent first complying with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).

[5] The respondent accepted that if these were the facts, the applicants must succeed and the rule must be confirmed. But the respondent argues that it had embarked on an extensive verification project and recorded every shack owner pre-June 2016 in Alexandra, and not one of the applicants was been verified. On this basis, says the respondent, the applicants’ version of being long-time residents is dishonest. The demolition of their shacks therefore, on the argument, formed part and parcel of the demolition of those individuals that unlawfully invaded the land between 20 and 23 June 2016.

[6] I return to this factual conflict below. In the course of the argument two interlocutory applications were made. Both were opposed. The respondent applied for the admission of a further supplementary affidavit, and the applicants for four photographs (marked exh 1,2,3, and 4) said to have been taken on the day. I have decided, in the interests of justice, having regard to the fact that the papers were prepared urgently and that the homes of individuals were at stake, to allow both applications, and I so direct. I make no costs order on those applications.

[7] The first question is whether this court is entitled and, if so, obliged to enquire whether even on the respondent’s version a court order was nonetheless needed. In commercial matters, that would not be a permissible route, unless the plaintiff in an appropriate pleading raised in the alternative to its main case, the contention that it should succeed on the defendant’s

version anyway.

[8] This question arises because of the following scenario that now presents itself: if the applicants are right, they obviously win. But if the respondent is right, implying that the applicants are dishonest, the applicants may lose because they are dishonest, despite the fact that in law the respondent may be wrong on the basis of unlawful self-help.

[9] The two versions are diametrically opposed. Motion proceedings are not designed for resolving factual disputes, and accordingly I must decline the invitation of counsel for the applicants to decide the factual conflict on the basis of balance of probabilities. In fact, it is the applicant who seeks final relief on motion without asking for a referral to oral evidence, and who therefore, generally, must fail if the respondent’s version stands in the way of the relief it seeks.

[10] The applicants are not prepared to adopt the respondent’s case. Nor are they prepared to argue the case on the hypothesis that the respondent is correct. Without justifying possible dishonesty on the part of the applicants, a matter which can always be assuaged by an appropriate costs order, in my view the duty of organs of state to be seen to be acting within the constraints of the law in this constitutional democracy should enjoy preference.

[11] If that is right, then the enquiry starts with whether, assuming the respondent’s version is correct, the demolition of the shacks without a court order was lawful. On the respondent’s facts, the applicants were part of those individuals who commenced occupying the relevant area in Alexandra on 20 June 2016. They, on the respondent’s version, commenced constructing shacks, and some of them were able to complete their shacks.

[12] These shacks were then, because their presence was unlawful, demolished with the assistance of a law enforcement agency on 23 June 2016. The question is whether the respondent’s conduct in this regard was unlawful.

[13] In my view the conduct concerned was unlawful as being self-help. What had occurred, in effect, is that the applicants had unlawfully acquired possession of the shack sites. In doing so, they had unlawfully dispossessed the respondent of possession of those sites. Their conduct thus amounted to spoliation, and they were obliged, before all else, to restore possession to the sites to the respondent.

[14] At that stage, that is before the shacks had been completed and had been occupied, the provisions of PIE were not yet applicable. The respondent was therefore not yet obliged to follow the prerequisites there laid down. But that does not mean that the applicants had not yet acquired sufficient possession so as to constitute unlawful spoliation.

[15] On the respondent’s version, they had commenced constructing shacks on the respondent’s land, implying that they had driven poles into the ground; perhaps wrapped corrugated iron sheets around some of those; perhaps fixed roofing material on top of those. That implies further that they actually moved around on the land, at least in the areas of those sites, while they were busy with their construction endeavours. It also implies that their own movable assets were affixed with a measure of permanence, at least to such measure that it could afford effective protection against the elements.

[16] In a sense, the respondent found itself between the proverbial rock and a hard place in this regard. If there was not sufficient presence on behalf of the applicants to constitute possession, there was probably not enough to demolish; if the shacks had reached such a state of completion that they could be (and therefore likely was) occupied, PIE applied. Therefore, since the respondent did in fact demolish, then, unless the respondent would concede that PIE applied (which it did not), there was enough of possession on the part of the applicants to constitute spoliation for purposes of the mandament van spolie.

[17] Some reflection on the underlying rationale for the mandament underscores the point. It is to prevent self-help; to foster respect for the rule of law; and to encourage the establishment and maintenance of a regulated society.

[18] If local authorities were permitted to move in with heavy engineering equipment, without first obtaining court sanction, whenever people moved onto their land, that encourages conduct which in our society with its history is reminiscent of a time best forgotten.

[19] It follows that in my view, in principle, the rule nisi should be confirmed. But not without qualification, because the conclusion to which I have come accepts that the applicants are dishonest in the presentation of their case. That has a cost implication, as reflected in the order below. Further, the respondent remains entitled then to approach the court on appropriate papers to apply for the eviction of the applicants.

[20] In the result I make the following order:

(a) The respondent is interdicted and prohibited in any manner from demolishing, vandalising and from continuing to destroy the shacks situated at Old Setjwetla Informal Settlement, Alexandra, Johannesburg, without an order of court.

(b) The respondent is interdicted and prohibited from evicting the occupiers of Old Setjwetla Informal Settlement, Alexandra, Johannesburg, without an order of court.

(c) No order as to costs issues.

WHG van der Linde

Judge, High court

Johannesburg

For the applicant: Adv. D. Skoti

Adv. S.I. Vobi

Instructed by

Machaba Attorneys

62 Marshall Street

Khotso House

Marshalltown

011-4923449

Ref. Nigel Sithole

For the respondent: Mr. S.G. Lusenga

BM Kolisi Inc

Respondent’s attorneys

109 & 110 Works@Market

Cnr Von Brandis and Albertina Sisulu Streets

011-4201923

Ref: Kolisis/GL/COJ/06/16

Date argued: 14 July 2016

Date judgement: 15 July 2016