Abahlali Basemjondolo Movement SA and Another v Premier, KwaZulu-Natal, and Others

• Jurisdiction: South Africa
• Judge: Tshabalala JP
• Judgment Date: 27 January 2009
• Citation: 2009 (3) SA 245 (D)
• Docket Number: 1874/2008
• Hearing Date: 06 November 2008
• Counsel: LH Barnes (with K McLean) for the applicants. JJ Gauntlett SC (with him AA Gabriel) for the respondents.
• Court: Durban and Coast Local Division

Tshabalala JP:

Introduction H

[1] This is an application for an order declaring the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 6 of 2007 (the Slums Act) unconstitutional.

[2] The first applicant is Abahlali baseMjondolo Movement South Africa, a voluntary association which seeks to improve the lives and living I conditions of shack dwellers in South Africa. The second applicant is Sibusiso Zikode, president of the first applicant.

[3] The first respondent is the Premier of the Province of KwaZulu-Natal and is cited in his official capacity as the head of the KwaZulu-Natal Provincial Legislature, which enacted the Slums Act. The second J

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A respondent is the Member of the Executive Council for Local Government, Housing and Traditional Affairs in the Province of KwaZulu-Natal. He is cited in his official capacity as the official responsible for the administration of the Slums Act. The third respondent is the Minister of Housing and is cited in her official capacity as the minister responsible B for the national Housing Act 107 of 1997 (the Housing Act), and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). The fourth respondent is the Minister of Land Affairs, who is cited in her official capacity as the Minister responsible for land reform and land-tenure issues.

Applicants' case C

[4] The first argument raised by the applicants was that the Slums Act purports to regulate eviction, land tenure and access to land, matters which fall outside the legislative competence of provincial government, thereby rendering the Slums Act unconstitutional. Alternatively, it was argued that ss 9, 11, 12, 13 and 16 of the Slums Act are inconsistent with s 26 (2) of the Constitution). In the final alternative it was D argued that the Slums Act is in conflict with the provisions of the Housing Act and the PIE Act.

[5] Dealing with the first argument, applicants' counsel submitted that E the Slums Act deals primarily with land, and issues of land are not a concurrent competence of provincial government. Reference was made to Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2001 (1) SA 500 (CC) (2000 (4) BCLR 347) wherein the test for provincial F competence was established as follows:

1.

One must examine the essence and true purpose and effect of the legislation. [1]

2.

The functional areas of provincial legislative competence must be purposively interpreted in a manner which will enable the national Parliament and the provincial legislatures to exercise their respective G legislative powers fully and effectively. [2]

[6] According to the applicants the Slums Act has two objectives, which are to eliminate slums and to prevent the re-emergence of slums, and these objectives are achieved through ss 5, 6, 11, 14, 15, 16(1) and 16(2). In its papers applicants declare that -

H the chief mechanisms employed by the Slums Act to achieve its objectives are then: the mandatory institution of eviction proceedings and a prohibition on the occupation of certain land and buildings. [3]

Counsel for the applicants submitted that whilst the Slums Act does refer to housing it essentially deals with eviction, land tenure and access to I land. The preamble, although also referring to housing, is not determinative of the Slums Act. During argument applicants' counsel stated that

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the Slums Act has duplicated the application of the PIE Act at provincial A level, in that the PIE Act applies to unlawful occupiers all over the country whilst the Slums Act tries to regulate eviction in relation not only to slum dwellers but also to unlawful occupiers throughout the province. Other submissions made by applicants' counsel were that s 5 of the Slums Act which 'prohibits the use of substandard accommodation for B financial benefit' adds nothing new to what is already contained in the National Building Regulations and Building Standards Act 103 of 1977. Applicant has argued that the result of s 5 is that it seeks to regulate tenure. Section 7 of the Slums Act repeats the content of s 7 of the Housing Act. In terms of s 8, the second respondent is obliged to ensure the alignment and implementation of provincial and municipal housing C slum-elimination policies. However, this obligation is one which the second respondent has already under and in terms of the Housing Act and the KwaZulu-Natal Housing Act 12 of 1998. Section 9(1)(a) provides that municipalities may take reasonable measures to progressively realise the right of access to adequate housing in s 26 of the D Constitution, but these duties are already to be found in the Housing Act. During argument it was submitted that, if the repeated sections contained in the Slums Act were to be removed, it would not make a difference, since the sections are contained in other pieces of legislation. Thus the purpose of the Slums Act must be seen to be in the new E provisions. Counsel's closing comments regarding the first argument were that the references in the Slums Act to housing are insufficient. The true purpose of the Slums Act is to eliminate slums and prevent their re-emergence through the institution of eviction proceedings and regulating the access to land. It was submitted that only national government is competent to legislate on matters of eviction, land tenure and access to F land, and thus the Slums Act is ultra vires the legislative authority of the provincial government and is therefore unconstitutional.

[7] The alternative argument was that ss 9, 11, 12, 13 and 16 of the Slums Act must be declared invalid by virtue of their inconsistency with s 26(2) of the Constitution. It was submitted that the Slums Act does not G constitute a reasonable measure to progressively realise the right of access to adequate housing within the meaning of s 26(2) of the Constitution. Applicants' counsel set out the constitutional and statutory framework applicable to housing rights and evictions in South Africa. There is no need to go into detail: suffice to say that the Housing H Act was enacted to give effect to s 26(2) of the Constitution and it contains mandatory provisions requiring provincial and local governments to promote and facilitate the provision of adequate housing within the framework of national housing policy. 'Breaking New Ground: A Comprehensive Plan for the Development of Sustainable Human I Settlements' (the BNG) was adopted by the National Department of Housing in September 2004. The BNG arose out of a need for change in the South African housing policy. The National Housing Code was adopted in March 2000 with Ch 13 being adopted in October 2004. The objective of Ch 13 is to provide a programme to facilitate the structured upgrading of informal settlements in order to give effect to the principles J

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A set out in the BNG. The chapter advocates the in situ upgrading of informal settlements and discourages evictions.

[8] Applicants' counsel submitted that the reality in Durban is that what is required in terms of the Constitution is not adhered to. Chapter 13 of the National Housing Code does not appear to be implemented in B Durban, with the applicants claiming to be unaware of Ch 13 ever being implemented by the second respondent in a partnership with a municipality in Durban or Pietermaritzburg.

[9] It was submitted that s 16 of the Slums Act is inconsistent with the Constitution in the following respects:

[9.1]

C It undermines security of tenure.

[9.2]

It mandates the institution of eviction proceedings without a consideration of the particular circumstances of those whose eviction is sought.

[9.3]

It does not require the State to provide alternative accommodation D in the event that those whose eviction is sought will be left homeless as a result. [4]

Another reason as to why s 16 is unconstitutional is that it renders the constitutional requirement of meaningful engagement nugatory. The requirement of meaningful engagement is important, but with the Slums E Act any engagement conducted between the municipalities and the occupiers could only take place after the...